Hardie v The Herald and Weekly Times Pty Ltd
[2016] VSCA 103
•13 May 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2015 0075
| RAELENE HARDIE | Applicant |
| v | |
| THE HERALD AND WEEKLY TIMES PTY LTD | First Respondent |
| and | |
| ANDREW RULE | Second Respondent |
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| JUDGES: | ASHLEY, TATE and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 26 April 2016 |
| DATE OF JUDGMENT: | 13 May 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 103 |
| JUDGMENT APPEALED FROM: | [2015] VSC 364 (Whelan JA) |
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DEFAMATION – Appeal – Imputations – Whether imputations conveyed – Whether imputation that plaintiff was a brothel madam was conveyed – Imputation conveyed – Application for leave to appeal granted – Appeal allowed.
DEFAMATION – Cross-appeal – Whether imputation found to have been conveyed was defamatory of the plaintiff – Imputation that ‘Plaintiff runs a venue in which police give secret tip-offs to members of outlaw motorcycle gangs that hinder police investigations and frustrate search warrants’ held to be defamatory of the plaintiff – Application for leave to cross-appeal granted – Cross-appeal dismissed.
DEFAMATION – Damages – Need for damages to be re-assessed – Whether proceeding should be remitted to Trial Division for assessment of damages – Matter not remitted – Assessment of damages – Aggravated damages – No entitlement for aggravated damages established – Imputations seriously defamatory – Vindication – Reparation for harm – Consolation for distress, upset and injury to feelings – Two publications, articles and broadcast – Assessments of damages in sum of $150,000 for articles and in sum of $100,000 in respect of relevant parts of broadcast – Defamation Act 2005, ss 34, 38 and 39.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S K Wilson QC with Ms E Nikou | Mills Oakley Lawyers |
| For the First and Second Respondents | Dr M J Collins QC with Ms R L Enbom | M+K Lawyers Group Pty Ltd |
ASHLEY JA
TATE JA
BEACH JA:
Introduction
The applicant, Raelene Hardie, is a part-owner and manager of a ‘strip club’ in Shepparton called ‘Club Rawhide’. The first respondent, the Herald & Weekly Times Pty Ltd, is the publisher of the Herald Sun newspaper. The second respondent, Andrew Rule, is a journalist employed by the first respondent.
On 16 May 2013, on pages 1 and 4 of the Herald Sun, the first respondent published two articles (‘the news article’ and ‘the colour piece’, collectively ‘the articles’) written by the second respondent.[1] On the same day, the news article and the colour piece were uploaded onto the Herald Sun website. While the format of the articles that were uploaded was different from the format of the articles published on pages 1 and 4 of the newspaper, the content was the same.
[1]The news article was published partly on page 1 and partly on page 4. The colour piece was published entirely on page 4.
On the following morning (17 May 2013) the second respondent appeared on the breakfast program on Triple M radio. During his appearance, he said a number of things referrable to what had been published in the Herald Sun the previous day.
On 18 February 2014, at a community information session held at the Shepparton Senior Citizen’s Centre, an unknown person apparently produced a photocopy of the colour piece, in a reformatted form from that which had been originally published.
The applicant was the plaintiff in a defamation proceeding brought by her, in the Trial Division, against the respondents for damages, including aggravated damages. The applicant alleged that the articles conveyed the following defamatory imputations:
(a)the plaintiff [applicant] runs a venue that is regularly attended by members of an outlaw motorcycle gang;
(b)the plaintiff [applicant] runs a venue in which police give secret tip-offs to members of outlaw motorcycle gangs that hinder police investigations and frustrate search warrants;
(c) the plaintiff [applicant] is a brothel madam; and
(d) the plaintiff [applicant] runs a brothel at Club Rawhide in Shepparton.
At trial, the applicant alleged in a separate cause of action against the second respondent that the second respondent defamed her in the Triple M broadcast by repeating imputations (c) and (d). Additionally, the applicant alleged (against both respondents) a republication of imputations (a) to (d) at the community information session held on 18 February 2014. While the republication alleged to have occurred on 18 February was originally pleaded by the applicant as a separate cause of action, at trial the applicant confined her reliance on this publication to the issue of damages (including aggravated damages).
On 22 July 2015, following a six-day trial, the trial judge found that the articles conveyed imputations (a) and (b), but not imputations (c) and (d). However, the applicant succeeded only on imputation (b) because the judge upheld a defence of truth in respect of imputation (a). A defence of qualified privilege in respect of imputation (b) failed.
As to what was said by the second respondent on the Triple M radio program, the judge found for the second respondent, holding that imputations (c) and (d) were not conveyed by him in the broadcast.
As to the alleged republication at the community information session in February 2014, the judge concluded that the applicant had not established that the document produced at the meeting had been published to any person.
In respect of the publication of the only imputation upon which the applicant succeeded (imputation (b)) the judge awarded the applicant compensatory damages in the sum of $90,000. However, the judge rejected the applicant’s claim for aggravated damages.
The applicant now seeks leave to appeal. While there are 16 proposed grounds of appeal, the applicant’s complaints raise three broad issues:
(a) the judge’s failure to find that imputations (c) and (d) were conveyed (proposed grounds 7 to 15);
(b) the correctness or otherwise of the judge’s assessment of the applicant’s compensatory damages in the sum of $90,000 (proposed grounds 1 and 2); and
(c) the failure by the judge to award the applicant aggravated damages (proposed grounds 3 to 6 and 16).
The applicant, if successful in this Court, seeks to have the judge’s assessment of damages set aside and for this Court to re-assess the applicant’s damages. On the other hand, the respondents submit that if damages have to be re-assessed, then this Court should remit the re-assessment to the trial judge.
The respondents are also dissatisfied with the trial judge’s judgment. They seek leave to cross-appeal. The respondents’ sole proposed ground of appeal is that the judge erred in concluding that imputation (b) was defamatory of the applicant. If the respondents are successful in this Court they seek the setting aside of the judgment against them and the entry of judgment in their favour.
The publications in respect of which complaint was made by the applicant
At trial, the applicant contended that the news article and the colour piece were to be read as a single composite publication. In final submissions to the trial judge, the respondents accepted the correctness of that proposition.[2]
[2]Hardie v The Herald & Weekly Times Pty Ltd [2015] VSC 364 (‘Reasons’) [30].
There was no specific reference to the applicant in the news article, and there was only one reference to Club Rawhide. The trial judge (whose description of the articles was uncontroversial in this Court) described the news article in the following terms:
The news article, which began on the front page and continued on page 4, concerned a story that internal investigators for Victoria Police, referred to as ‘Taskforce Eagle’, were, or ought to be, investigating corrupt or improper relationships between police officers and outlaw motorcycle gangs in the Goulburn Valley. It was suggested that the existence of these relationships was indicated by the fact that several police raids, which had been expected to discover weapons, drugs and other incriminating material, had been unusually unsuccessful. It was said that in one case cannabis plants had ‘vanished overnight’. The premises in question were all said to be linked to the Outlaws which had chapters in Shepparton and Kyabram. The news article then continued:
Members of both groups[3] are regulars at a raunchy strip venue, named Club Rawhide, in an industrial estate that’s walking distance from Shepparton police station and two popular hotels.
The story went on to refer to a belief that listening devices in one regional police station had been found. References were then made to various other relationships which were said to be a cause of concern. No further reference was made to Club Rawhide in the news article.[4]
[3]In the context it is clear this means both groups of the Outlaws — Shepparton and Kyabram (footnote in original).
[4]Reasons [24]–[25] (footnote in original).
We turn now to the colour piece. As the judge noted, the colour piece was written in a different style from the news article.[5] The judge accepted the second respondent’s description that the colour piece was written in a ‘jocular manner with a sort of sardonic edge’.
[5]Ibid [26].
There were 29 substantive paragraphs in the colour piece. After referring to the subject matter of the news article, and to some unrelated issues, the colour piece continued:
Not just any old outlaws — The Outlaws, one of the oldest ‘one percenter’ biker clubs around. They have two local chapters — one in Shepparton and one across the river at Kyabram. The whisper is these bands of brothers disagree on the issue of manufacturing and selling drugs.
They certainly have no objections to the local strip joint, Club Rawhide, set up in an industrial building next to a car yard overlooking the railway line.
It’s around the corner from two of Shep’s biggest pubs — and the police station, which is handy if members need to attend in either professional or pleasure-seeking capacity.
Police were called there late on the night of December 7, because a prominent local footballer and his mates were filmed punching and ‘stomping’ some other rocket surgeons, in a brawl a magistrate called ‘extreme violence’ when he sentenced them this month.
They appealed and got bail. If they lose, they will go inside. This would interfere with the local hero’s footy career but it might not do any harm to membership of his other club, which happens to be The Outlaws.
In a case spookily like the cult television series Sons of Anarchy, it turns out the local hero and his dad are both in the biker club.
In fact, he was excused attending a football coaching camp last season because he had a prior social engagement with The Outlaws.
It was an invitation he couldn’t refuse.
Of course, it’s good that police arrested the bikies and brawlers so efficiently at Club Rawhide. Madam Black Mercedes, who runs the place, will be grateful.
It’s unlikely our ’hero’ will hold too many grudges, as The Outlaws and a few country police officers seem to have a healthy mutual respect. Locals suggest Rawhide is a convenient common ground for the two groups to unwind after a hard day at the office. As drinkers do the world over, they probably talk shop and swap business cards and phone numbers.
That might or might not explain why so many police raids around the Goulburn Valley have drawn blanks in recent times.
A former local detective has heard that at least eight search warrants have resulted in police finding no guns, no drugs and, sometimes, nobody home. When the law came knocking, The Outlaws were outdoors. In one case, huge cannabis plants vanished overnight.
Suspicious minds have pointed investigators toward a person who allegedly got a heads-up from a superior that Taskforce Eagle was circling.
Whether Eagles dare wreck the chummy Club Rawhide ambience is yet to be seen.[6]
[6]Ibid [28].
The news article and the colour piece were both published on the Herald Sun website. As we have already said, while the format was different, the content was the same. The articles remained on the Herald Sun website until judgment was given by the trial judge (25 July 2015). During this period, the website enabled and encouraged viewers to share publications on the website via email and social media, and to download and save them.
The evidence at trial as to the distribution of the Herald Sun and the articles, at the relevant time, was as follows:
(d) 2,714 copies of the Herald Sun were distributed in the City of Greater Shepparton;
(e) 416,902 copies were distributed in Victoria;
(f) a further 26,964 copies were distributed in the other states and territories of Australia;
(g) 401,032 copies of the particular edition containing the articles were distributed;
(h) the estimated readership of the Herald Sun at the relevant time was 1,400,046;
(i) there were approximately 53,800 subscribers to the Herald Sun online during the relevant period when the articles were online; and
(j) there were 118,780,368 hits on the Herald Sun website between 29 April 2013 and 2 June 2013, with the website having 1,618,000 unique visitors to the site between 1 May 2013 and 31 May 2013.
As a result of the publication of the articles in the Herald Sun on 16 May 2013, the applicant telephoned the second respondent and, among other things, complained about the reference that had been made to her as ‘Madam Black Mercedes’. During this conversation, the second respondent raised with the applicant matters which he thought might embarrass her and which had little or nothing to do with the articles. In evidence, the second respondent said that he had done this to ‘bounce’ the applicant. In any event, during this conversation, the applicant and the second respondent came to an understanding that the second respondent would apologise the next day on his regular Triple M radio appearance.
During the course of the hearing before us, we listened to a recording of the relevant part of the Triple M broadcast. A transcript of this broadcast records the speakers as the second respondent, Luke Darcy, Eddie McGuire and Mick Molloy. In the relevant part of the broadcast, the second respondent began by clarifying another matter which had appeared in the Herald Sun the day before, in the same articles. He then moved to what he described as ‘another apology’. The transcript of the broadcast (which, while containing some differences from the recording, is sufficiently accurate for present purposes) reads relevantly as follows:
SECOND RESPONDENT: I’ve got another apology, from Madam Rawhide
EM: We’ve got a second edition, Madam Rawhide, ok
SECOND RESPONDENT: From Club Rawhide …
LD: That’s the northern town that Andrew was on the front page of the paper talking about.
ALL: It’s a strip club
SECOND RESPONDENT: It’s a strip club — it’s a respectable strip club.
…
EM: Let’s take some news, and when we come back, I want to hear about Madam –
MM: Rawhide?
SECOND RESPONDENT: Well from Club Rawhide. She’s Madam something else.
EM: Madam something else? Was she Madam Black Mercedes in our story?
SECOND RESPONDENT: But we’re going to correct that …
EM: Ah.
MM: Do you do anything other than apologise for stuff you say in your articles?
SECOND RESPONDENT: Not much.
[Laughter]
…
SECOND RESPONDENT: I had a call yesterday from the proprietor of Club Rawhide, who is a lady.
EM: Mhmm.
SECOND RESPONDENT: And she was referred to in the story as ‘Madam Black Mercedes’. I know her actual birth name but I thought ‘Madam Black Mercedes’ sort of caught the situation, because I was told that at some point she used to own …
EM: You’ve become the new Lou Richards … you just bestow nicknames on people.
SECOND RESPONDENT: … A Black Mercedes.
LD: Ed prefers Madam Lexus.
SECOND RESPONDENT: You know that is a tradition in our business, we do that. We should go through it one day, all the nicknames that we have. Madam Black Mercedes has called and she said: [In growly voice]: ‘I’m not um, Madam Black Mercedes’. And she said ‘I’m not a madam’. And I said, ‘M’amm, I meant that in a most respectful way, as people do when they talk about the Queen. In no other connotation.’ So she swallowed that but she’s not that happy.
[Stifled Laughter]
EM: As a professional communicator, you’re having trouble getting your meanings in your writings across at the moment aren’t you?
SECOND RESPONDENT: Well, I am or I aren’t. I’m not sure Ed, maybe I’m getting them through too well. So first thing was the Madam bit and we sorted that out, and she said, as for Black Mercedes, I used to have a Black Mercedes, and then she explained to me that she no longer does. So I’m here to apologise about that, to the proprietor of Club Rawhide, which is a family friendly strip venue …
[Laughter]
The Triple M radio program was not broadcast in Shepparton, but residents in Shepparton could have listened to it over the internet. The Melbourne audience of the program was approximately 85,000 people. The program was rated the number one FM radio breakfast show in Melbourne at the relevant time.
As to the alleged republication of the colour piece at the community information session in February 2014, the judge described the circumstances of that alleged publication as follows:
On Tuesday 18 February 2014 a community information session on the drug ‘ice’ was held at the Shepparton Senior Citizens Centre. A person or persons unknown produced a poor photocopy or photocopies of the colour piece, in a reformatted form, and that document or those documents were at the meeting.
Mrs Hardie became aware of the document or documents through a friend, Max Cimmono, who sent a message to her daughter. After Mrs Hardie complained, one of the organisations involved in the meeting wrote to her. That letter was tendered. Relevantly, it reads:
This letter is in response to our telephone conversation today regarding a document on display at the Community Education Forum on ICE held in Shepparton on Tuesday 18th February, 2014.
I would like to thank you for bringing this mater to my attention.
After an internal review it has been determined that this document had been placed on the table without FamilyCare’s knowledge or approval and at no stage did FamilyCare staff distribute this document.
To give you some context a number of local service providers were asked to bring their agency brochures, flyers or literature on the night to be displayed on the table. I now realise we should have had a better system in place to ensure all displayed material had been approved by FamilyCare.
I am deeply concerned regarding the upset this has caused you and therefore offer my full apology.
I will further investigate this matter next week and if I find any other information I will contact you immediately.
The photocopied document is of poor quality but it can be read. The meeting itself, but not the document of concern, was reported on in the local paper.[7]
[7]Ibid [32]–[34].
In the hearing before this Court there was some debate whether the applicant established at trial that the colour piece was published to any person at the community information session. In our view, the evidence led at trial was capable of establishing (subject to objection being taken) that the colour piece was published to at least one person at the community information session. But it seems clear that the evidence was not received for that purpose, objection being taken for the respondents that second-hand hearsay evidence could not be received in proof of the truth of the second-hand representations. The real relevance of the evidence concerning that meeting was in relation to the effect on any assessment of the applicant’s damages of the fact that the applicant became aware in February 2014 that the colour piece was continuing to circulate. Her state of mind, given that awareness, was the pertinent circumstance.
The issues in this Court
The application for leave to appeal and the application for leave to cross-appeal raise four issues: first, whether the judge was correct in his conclusion that imputation (b) was defamatory of the applicant; secondly, whether the judge erred in failing to find that imputation (c) and or imputation (d) was conveyed in the articles, or by the second respondent in the Triple M broadcast; thirdly, the appropriateness (or otherwise) of the judge’s assessment of damages in the sum of $90,000; and fourthly, whether the judge erred in not awarding aggravated damages.
In argument before us, both sides agreed that for the purposes of their applications (and appeals) there was no relevant difference between imputations (c) and (d). Thus the arguments in respect of those imputations can be considered by reference to imputation (c). If imputation (c) was not conveyed nor was imputation (d). Further, the conveying of imputation (d) would add nothing so far as damages are concerned to an assessment based upon an acceptance that imputation (c) was conveyed.
It is convenient to deal with the parties’ complaints including that raised by the cross-appeal about the judge’s conclusions in respect of imputations (b), (c) and (d), before coming to questions of damages. If this Court concluded that imputation (c) was conveyed, then the applicant’s complaints about the inadequacy of the award of $90,000 compensatory damages would become moot, because the applicant’s damages would have to be reassessed. We propose to begin our consideration with imputation (b), before turning to the other imputations.
Was imputation (b) defamatory of the applicant?
Imputation (b) was pleaded as follows:
The plaintiff [applicant] runs a venue in which police give secret tip-offs to members of outlaw motorcycle gangs that hinder police investigations and frustrate search warrants.
The respondents did not contest at trial or in this Court that this imputation was conveyed by the publication of the articles. But they argued at trial and in this Court that the imputation was not defamatory of the applicant.
In considering whether the imputations alleged by the applicant were defamatory, the judge said that the test to be applied was whether the imputation would be likely to make an ordinary reasonable person think less of the applicant.[8] The respondents accepted that this was a correct statement of the relevant test.
[8]Reasons [98].
In determining that imputation (b) was defamatory of the applicant, the judge said:
My conclusion is that ordinary reasonable people would think less of the plaintiff because of imputation (b). Her business or professional reputation is damaged.
The reasons why ordinary reasonable people would take this view are many and varied. It seems to me that the position here is relevantly the same as that which applied in relation to imputations (a) and (c) in Gacic. It does not matter what the myriad of reasons might be which would lead the ordinary reasonable person to think less of a restaurateur who owns a restaurant which serves unpalatable food and provides poor service. Likewise, it does not matter what the myriad of reasons might be which would lead the ordinary reasonable person to think less of a strip club owner whose club is a venue for corrupt police to give secret tip‑offs to members of an outlaw motorcycle gang. The ordinary reasonable person may attribute these circumstances to a variety of potential failings respectively on the part of the restaurateur or the strip club owner, but it is not necessary that the plaintiff identify what the reasoning process of that ordinary reasonable person would be, provided the Court is satisfied that the effect is that the ordinary reasonable person thinks less of the plaintiff.[9]
[9]Ibid [147]–[148].
The respondents submitted that this reasoning was erroneous. Relying on various pleading authorities,[10] they contended that:
[10]Monte v Mirror Newspapers Ltd (1979) 2 NSWLR 663, 677–8 (‘Monte’); Feros v West Sydney Radio Pty Ltd (Unreported, New South Wales Court of Appeal, Moffit P, Reynolds and Samuels JJA, 22 June 1982), 4–5 (‘Feros’); Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, 137 (‘Drummoyne’); Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 [118]–[126] (‘Harvey’); Trkulja v Google Inc LLC [2010] VSC 226 [19] (‘Trkulja’); Gant v The Age Co Ltd [2011] VSC 169 [40] (‘Gant’); Franchise Central (Aust) Pty Ltd v Fairfax Media Publications Pty Ltd [2011] VSC 379 [23]–[24] (‘Franchise Central’); Lyons v Fowler [2014] VSC 627 [34] (‘Lyons’).
(k) an imputation must specify with precision the defamatory act or condition asserted of or attributed to the plaintiff by the publication;
(l) an imputation must represent the final distillation of the alleged defamatory meaning;
(m) the publication must convey imputations which themselves are defamatory of the plaintiff (it is not enough that the imputations might induce those to whom the publication is conveyed to draw some conclusion or inference which is detrimental to the plaintiff’s reputation); and
(n) where a publication might give rise to one or more possible meanings as to the particular condition attributed to the plaintiff, the plaintiff is obliged to specify how and in what respect that condition is conveyed in the imputation.
The respondents then contended that imputation (b) ‘offended these principles’, with the consequence that the judge effectively found for the applicant ‘on the basis of unidentified and unpleaded imputations’. Further, it was submitted by the respondents that if properly formulated imputations had been pleaded, identifying how and in what respects the applicant had failed in her operation of Club Rawhide, the applicant’s case ‘might well have been defended, and the trial conducted, on a different basis’.
The correctness of the pleading principles upon which the respondents based their argument in respect of imputation (b) may for present purposes be accepted. In our view, however, the alleged breaches of these principles do not lead to the conclusion for which the respondents contended.
First, it is often possible to refine a pleaded imputation into a form that is more precise than the currently pleaded form. That does not necessarily mean that there has been a breach of a pleading rule or principle.
Secondly, the question of the need for refinement or further distillation is always one to be considered by reference to what is reasonable in the circumstances of the case. As was said by Gleeson CJ in Drummoyne[11] (one of the pleading cases relied upon by the respondents):
The requirement that a plaintiff must ‘specify’ the act or condition which he claims was attributed to him, that is to say, the statement which he says is made about him, which follows from the scheme of the Defamation Act, the provisions of the Supreme Court Rules, and the ordinary rules of pleading, is one which, in its practical application, raises questions of degree. Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology. …
Furthermore, whilst the principles relevant to the plaintiff’s obligation remain constant their practical application may depend upon the facts and circumstances of the given case, and the relevant circumstances may include the manner in which the defendant, or the author of the defamatory matter, has expressed the defamatory matter. Defamation may come in the form of snide insinuation or robust denunciation, or something in between those two extremes. The attribution to a person of an act or condition may be done with a high degree of particularity or it may take the form of the most generalised and non-specific abuse. … If a defendant has posted in a public place a sign that simply says ‘X is disgusting’, the degree of specificity with which it is appropriate to require X to formulate the defamatory imputation will need to be related to the nature and content of the defamatory matter.[12]
[11](1990) 21 NSWLR 135.
[12]Ibid 137.
Similarly, as was said by Kaye J[13] in Trkulja (another of the pleading cases upon which the respondents rely):
First, the question, whether an imputation has been properly pleaded, is to be determined as a matter of practical justice, rather than as an exercise of close semantic or linguistic refinement. Secondly, the question whether a particular imputation is sufficiently specific depends, essentially, on the context in which it is pleaded. In some publications, the allegation about a plaintiff may be so unspecific as to give rise only to the most general imputation. For example, a billboard alleging that a particular plaintiff is ‘corrupt’ may, in an appropriate case, only give rise to an imputation pleaded in the most general form. On the other hand, and by contrast, a publication may, by its context, give rise to one or more possible meanings of a particular condition attributed to the plaintiff. In such a case, where the plaintiff pleads that the publication imputed that condition to him, the plaintiff is obliged to specify how and in what respects that condition is conveyed in the imputation.[14]
[13]As his Honour then was.
[14]Trkulja [2010] VSC 226 [19].
It may be observed that, in the present case, none of the publications complained about by the applicant descended to a level of detail that imputed one of the particular conditions that might be attributed to the applicant, and which the respondents contended must have been the subject of a more specific pleading or particulars.
Thirdly, rarely (if ever) could the fact that an imputation might be capable of being pleaded with greater precision or refinement be the basis for a conclusion that an imputation is not defamatory. The usual consequence of a breach of the rules of pleading is a remedial order requiring the defaulting party to re-plead or give relevant particulars.
The respondents submitted that imputation (b) was at such a level of generality that it contained within it possible meanings that were not defamatory of the applicant. For example, they contended that, in its terms, imputation (b) asserted that the conduct of police referred to in it was ‘secret’ — that is, conduct that took place without the applicant’s knowledge or endorsement. They contended that the fact that the conduct was ‘secret from the applicant’ mandated a conclusion that the imputation could not be defamatory of the applicant.
Along similar lines, the respondents pointed to the fact that the applicant could have refined imputation (b) to assert that the articles conveyed that she was knowingly involved in the relevant police conduct or negligent in her running of the club so as to permit the relevant police conduct. As with the acceptance of the pleading principles relied upon by the respondents, again, so much may for present purposes be accepted. But the question is not whether the applicant could have pleaded her case with greater precision. It is rather whether the judge was correct in his conclusion that the imputation as pleaded was defamatory of the applicant.
The issue raised by the respondents was the subject of consideration in Radio 2UE Sydney Pty Ltd v Chesterton.[15] In that case, French CJ, Gummow, Kiefel and Bell JJ said:
That moral or ethical standards held by the general community may be relevant to imputations which reflect upon a person's business or professional reputation does not suggest a true dichotomy as between imputations of that kind and those as to character, with different standards applying to each. Rather it confirms as practicable the general test as applying in all cases involving all aspects of reputation. In such cases the ordinary reasonable person may be expected to draw upon such community standards as may be relevant, in order to answer the question whether there has been injury to that reputation. In keeping with that test it may be said such standards are those by which a person's standing in the community, the esteem in which others hold them, is lowered.
The focus upon moral or ethical standards, in discussions about standards of the community, no doubt reflects the fact that they are the standards most often identified as relevant in actions for defamation. There are obviously other standards, for example as to the behaviour expected of persons within the community, which may not involve a sense of wrongdoing. In some cases injury to reputation may appear so obvious that a standard, which may unconsciously be applied, is not identified. And in some cases such a conclusion may be possible without the need to identify a standard. It may be obvious that people will be thought the less of simply because of what is said about them.[16]
[15](2009) 238 CLR 460 (‘Radio 2UE’).
[16]Radio 2UE (2009) 238 CLR 460, 479–480 [46]–[47].
The respondents’ contention that imputation (b) was not defamatory of the applicant because, in its terms, it asserted that the police tip-offs took place without the applicant’s knowledge or endorsement must be rejected. That submission misrepresents the use of the word ‘secret’ in imputation (b). Plainly, it was meant that the alleged tip-offs were secret in the sense that they were secret from relevant law enforcement officers or agencies.
Further, we see no error in the judge’s conclusion that imputation (b) was defamatory of the applicant. In our view, this is one of those cases in which it can be said to be obvious that the relevant imputation is defamatory of the plaintiff ‘simply because of what was said about [her]’:[17] that is, that the applicant runs a venue at which the relevant corrupt conduct is engaged in by certain members of the police force. There are also, in our view, obvious parallels between the present case and the case of John Fairfax Publications Pty Ltd v Gacic[18] referred to by the judge in his reasons for concluding that imputation (b) was defamatory of the applicant.[19]
[17]Cf Radio 2UE (2009) 238 CLR 460, 480 [47].
[18](2007) 230 CLR 291 (‘Gacic’).
[19]Reasons [148].
For these reasons, we see no error in the judge’s conclusion that imputation (b) was defamatory of the applicant. While we would give leave to the respondents to cross-appeal, the cross-appeal must be dismissed.
Were imputations (c) and/or (d) conveyed by the articles or in the broadcast?
The legal principles which apply in determining whether a pleaded imputation is conveyed were not in controversy before the trial judge.[20] Nevertheless, the judge briefly stated the principles before coming to the question of whether each of the applicant’s imputations were in fact conveyed (including the principle that the issue of whether an imputation was conveyed is to be determined objectively, in the sense that it is determined in accordance with the meaning which would be given to the words by hypothetical referees described as ‘ordinary reasonable readers or listeners’).[21] It is not necessary for us to set out again the other relevant principles that were, with respect, correctly set out by the judge. To the judge’s summary of principles we would only wish to add Hunt J’s summary in Farquhar v Bottom[22] of the attributes of the ordinary reasonable reader as follows:
This ordinary reasonable reader does not, we are told, live in an ivory tower. He can, and does, read between the lines, in the light of his general knowledge and experience of worldly affairs: Lewis v Daily Telegraph Ltd (supra at 258); Jones v Skelton (supra at 650); Lang v Australian Consolidated Press Ltd ([1970] 2 NSWR 408 at 412). It is important to bear in mind that the ordinary reasonable reader is a layman, not a lawyer, and that his capacity for implication is much greater than that of the lawyer: Lewis v Daily Telegraph Ltd (supra at 277); Morgan v Odhams Press Ltd ([1971] 2 All ER 1156 at 1163); Lang v Australian Consolidated Press Ltd ([1970] 2 NSWR 408 at 412); Middle East Airlines Airliban SAL v Sungravure Pty Ltd ([1974] 1 NSWLR 323 at 34).[23]
[20]Ibid [46].
[21]Ibid [47]–[51].
[22][1980] 2 NSWLR 380.
[23]Ibid 386. See further Jones v Skelton [1963] 2 SR (NSW) 644, 650; Slatyer v Daily Telegraph Newspaper Co Limited (1908) 6 CLR 1, 7; Mirror Newspapers Limited v Harrison (1982) 149 CLR 293, 301; World Hosts Pty Ltd v Mirror Newspapers Limited [1976] 1 NSWLR 712, 725; Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500, 505–6; Li v Herald and Weekly Times [2007] VSC 109 [63]–[74].
In determining whether imputations (c) and (d) were conveyed by the articles or in the Triple M broadcast, the judge commenced his consideration with an analysis of whether imputation (c) was conveyed by the articles. In respect of that imputation, the judge said:
Club Rawhide is described as a ‘raunchy strip venue’ in the news article and as ‘the local strip joint’ in the colour piece. There is no other reference to anything with a sexual connotation in the text of the articles. The articles are about police corruption. They are not about sex.
The word ‘madam’ is both an honorific and a name given to a female manager of a brothel. As an honorific, it is now somewhat archaic and is rarely used.
The evidence was that there certainly were people who interpreted the colour piece as asserting that Mrs Hardie was conducting a brothel at Club Rawhide. Mr Rule himself was sufficiently concerned by that possible connotation to see the need to correct it after Mrs Hardie rang him about it, and he attempted to do so, albeit ineffectively. The fact that some people interpreted what was said that way is not the relevant issue, however. Evidence is not admissible on the question of meaning.
Mason J (as he then was) observed in Mirror Newspapers Ltd v Harrison:
It is one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff.[24]
[24](1982) 149 CLR 293, 301.
Club Rawhide offers entertainment of a very sexually explicit nature. The nature of the entertainment offered is such that Mrs Hardie has gone to considerable lengths to regulate the behaviour of the women who provide the entertainment, inside and outside the club, and the behaviour of the patrons who seek out that form of entertainment. All of the evidence before me indicated that Mrs Hardie conducts this business in a professional manner. The very nature of the business, however, means that the risk of prostitution occurring is inevitably present. That is why Mrs Hardie adopts strict rules and practices in relation to it. That is also why it would take little to excite in some readers a belief that prostitution was occurring. Some readers would hold beliefs and prejudices about strip clubs which mean they would adopt that conclusion.
Some people did conclude that Club Rawhide was a brothel and that Mrs Hardie was a brothel madam because Mr Rule referred to her as ‘Madam Black Mercedes’. But that does not mean that the ordinary reasonable person reading the news article and the colour piece would understand what was being said as being that Mrs Hardie was herself a brothel madam.
I do not consider imputation (c) to be the single meaning which should be adopted. In my view, it is not an approximate centre point in the range of possible meanings and it is not the dominant meaning, notwithstanding that some persons, perhaps many persons, may have interpreted it in that way. My reasons for this conclusion are as follows.
(a)The news article and the colour piece are not about sex. No reference is made to the form of entertainment offered or the activities of the women who provide entertainment at the club.
(b)Although the term ‘madam’ is a term which can apply to the female manager of a brothel, that is not its only use. The use of this somewhat archaic honorific in the course of an article written in a sardonic tone would not, in my view, be reasonably interpreted as a serious statement that the person who ‘ran’ Club Rawhide was in fact the manager of a brothel.
(c)A conclusion that Mrs Hardie was the manager of a brothel could only be drawn if the reader was prepared to read into the use of the expression considerations which do not arise out of the text of the article but arise instead out of beliefs or prejudices the reader holds in relation to strip clubs of this kind and the people who run them.
The focus of the defendants’ case in relation to this imputation was that what was said did not convey it. It was not suggested that it was justified. The submissions made on qualified privilege did not address it. My conclusion is that imputation (c) was not conveyed.[25]
[25]Reasons [108]–[115] (citation in original).
The judge then considered whether imputation (c) was conveyed in the Triple M broadcast. The judge said:
For like reasons I do not consider that imputation (c) was conveyed in the Triple M broadcast. The broadcast did not improve the situation but it did not make it worse either. Mr Rule’s attempts to disabuse those who had interpreted his article as suggesting Mrs Hardie was a brothel madam of that notion were ineffective for the reasons I have given. But I do not consider
that an ordinary reasonable person would have interpreted what was said as conveying the precise opposite of what Mr Rule was attempting to convey.[26]
[26]Ibid [116].
With respect to imputation (d), consistently with the way the parties have conducted this litigation, the judge said that the analysis with respect to that imputation was the same as that in relation to imputation (c).[27]
[27]Ibid [117].
Counsel for the respondent submitted that this Court should be very slow to overturn the findings of the trial judge that imputations (c) and (d) were not conveyed by the articles or in the Triple M broadcast. As was submitted, the trial judge had the benefit of hearing and seeing the witnesses and was more immersed in the trial than an appellate court can be by merely reading the transcript.[28] That said, the appeal to this Court is by way of rehearing and if, making proper allowance for the advantages of the trial judge, this Court concludes that an error has been shown, this Court is obliged to discharge its appellate duties.[29]
[28]Cf Fox v Percy (2003) 214 CLR 118, 125–6 [23].
[29]Ibid 127–8 [27].
With great respect to the judge, and giving appropriate weight to his reasoning about imputation (c), we have concluded that his Honour was wrong not to find that imputation (c) was conveyed by the articles and in the Triple M broadcast.
While the respondents conducted their case at trial and in this Court by reference to dictionary definitions of the word ‘madam’,[30] one would not expect that the ordinary reasonable reader (or listener) would have considered the meaning of what was published by reference to the various meanings (archaic or otherwise) which might be found in dictionaries. The ordinary reasonable person (reader or listener) does not consider the meaning of what he or she hears or reads by analysing and comparing what they have seen or heard with dictionary definitions. As has been said before, the ordinary reasonable person reads between the lines, in the light of his or her general knowledge or experience of worldly affairs, and has a capacity for implication that is much greater than that of a lawyer.
[30]Specifically, the respondents relied upon meanings in the Shorter Oxford English Dictionary (6th ed, 2007) as follows:
1 Used as a form of respectful or polite address or mode of reference, orig. by a servant to or of his or her mistress or by any person addressing a lady of rank; later used more widely to address or refer to a woman of any rank or position, spec. by a sales assistant to or of a female customer or (more fully dear madam) at the beginning of a letter to a woman. Corresp. to sir.
2 As a title: a Used preceding a woman's forename. arch. b Used preceding a woman's surname, a woman's designation of rank or (occas.) office, or (formerly) playfully or derisively preceding any noun personified as a woman.
b SHAKES. Meas. for M. Behold, behold, where Madam Mitigation comes! GOLDSMITH Good people all, with one accord Lament for Madam Blaize.
3 A woman usually addressed or referred to as 'madam', eg a lady of rank, the mistress of a house, etc. b An affected fine lady. derog. c A conceited or precocious girl or young woman. colloq. d A female brothel-keeper.
b M. CHARLTON What should I care what those fine Madams says of me! cM. BINCHY She was a proper little madam that one.
4 Nonsense, humbug. slang.
It was accepted between the parties that the reference to ‘Madam Black Mercedes’ in the articles was a reference to the applicant. The only question was whether, in calling the applicant Madam Black Mercedes, the articles conveyed the imputation that she was a brothel madam (imputation (c)) or that she ran a brothel at Club Rawhide in Shepparton (imputation (d)). In our view, the reference to Club Rawhide being a ‘raunchy strip venue … in an industrial estate’ coupled with the description of the applicant as Madam Black Mercedes would have conveyed only one meaning to the ordinary reasonable person (not a lawyer) – namely, that the applicant was a brothel madam (imputation (c)). Each of the other meanings suggested by the respondents had an air of artificiality about it. The suggestion that the reference was a respectful reference akin to the way in which the Queen is addressed strains credulity. Again, there might have been some force in the respondents’ suggestion that it was a reference to the fact that the applicant once owned a black Mercedes if that had been a matter which the respondents conveyed to the readers of their articles. But the articles did nothing of the sort.
We turn to the Triple M broadcast. In our view, imputation (c) was even more clearly conveyed by the second respondent. The judge said that the broadcast did not improve the situation.[31] The judge went on to say that the broadcast ‘did not make it worse either’.[32] While the first proposition cannot be cavilled with, we respectfully disagree with the second. First, the second respondent, in saying that he meant ‘Madam Black Mercedes’ ‘in a most respectful way as people do when they talk about the Queen’ was likely to be disbelieved by Triple M’s listeners (irrespective of what the second respondent intended to convey).
[31]Reasons [116].
[32]Ibid.
Secondly, in saying that the applicant ‘swallowed that’, the second respondent in reality again (irrespective of what he intended) conveyed that his explanation for his reference to Madam Black Mercedes was false.
Thirdly, the second respondent’s statement that ‘maybe I’m getting them [his meanings in his writings] through too well’ was, in the face of the applicant’s complaint, likely (again notwithstanding the second respondent’s stated intention) to convey to listeners that the second respondent was saying that the applicant was justified in her complaint that she had been called a brothel madam.
Finally on this point, the second respondent’s reference to Club Rawhide being a ‘family friendly strip venue’, at the conclusion of what was meant to be an apology to the applicant, would have conveyed to reasonable listeners that in the critical aspects of what the second respondent said during the broadcast, what was actually being conveyed was the opposite of what was actually being said. Plainly, a strip club is not ‘family friendly’.
In summary, the second respondent having set up the dichotomy between brothel madam (for which he said he was apologising) and a term of address for the Queen (for which he conveyed what a reasonable listener would have understood to be his own disbelief, by his reference to the applicant having ‘swallowed that’) conveyed and republished imputation (c).
For the reasons we have already given, it is not necessary for us to consider specifically imputation (d).
The complaint about the judge’s assessment of compensatory damages in the sum of $90,000
In proposed grounds 1 and 2 of the applicant’s application for leave to appeal, complaint was made that the judge’s award of $90,000 damages, in respect of the publication of imputation (b) by the respondents in the articles, was manifestly inadequate. Having regard to our conclusion that the respondents also published imputation (c) in the articles (and that the second respondent published and/or republished imputation (c) in the Triple M broadcast), there is a need for a fresh assessment of the applicant’s damages. In such circumstances, it is not necessary for us to give detailed consideration to the question of whether the damages awarded in respect of the publication of imputation (b) were manifestly inadequate.
It is sufficient for present purposes to say that if the applicant had not persuaded us that imputation (c) was conveyed, then we would not have concluded that the damages awarded by the judge in respect of the publication of imputation (b) were manifestly inadequate. The question to be asked is whether the judge’s assessment of damages was within the range reasonably open to him on the facts as he found them. The question is not what this Court might have awarded had we been trying this case at first instance. All that needs to be said in the present case is that we are not persuaded that the damages awarded by the judge fell outside the range that was reasonably open to him for an award of compensatory damages in the circumstances of this case assuming that only imputation (b) was conveyed in the articles.
Aggravated damages
At trial, the applicant claimed aggravated damages. The judge summarised the circumstances that the applicant relied upon in support of her claim for aggravated damages as follows:
(a) the [respondents’] failure to properly investigate the allegations;
(b) the [respondents’] malice;
(c) the failure to apologise;
(d) the repetition of ‘madam’ in the Triple M broadcast;
(e)[The second respondent’s] attempt in his phone call with [the applicant] to ‘bounce’ her;
(f) the website publications remain on line;
(g)the ‘realisation’ of the [applicant’s] fears of republication by what occurred at the ‘ice’ meeting;
(h)[The second respondent’s] alleged conduct in laughing at the [applicant] as she entered the courtroom on the first day of the trial.[33]
[33]Ibid [190].
The judge gave detailed reasons for rejecting the applicant’s various claims and/or for finding that those matters that were made out were not sufficient to found a claim for aggravated damages.[34]
[34]Ibid [191]–[198].
While the applicant contended that the judge’s treatment of her claim for aggravated damages was wrong even assuming only imputation (b) was conveyed, the fact that we have now concluded that imputation (c) was conveyed requires the Court that reassesses the applicant’s damages to look afresh at the question of whether the applicant established an entitlement to aggravated damages. We will come to that issue later. In this part of the judgment we will only consider whether the judge erred in failing to award aggravated damages on the assumption that only imputation (b) was conveyed in the articles.
In order for there to be an award of aggravated damages, a plaintiff must establish that there was a lack of bona fides in the defendants’ conduct or that the defendants’ conduct was in some relevant way improper or unjustifiable. The principles governing awards of aggravated damages were helpfully summarised by Gillard AJA[35] in Herald & Weekly Times Ltd v Popovic,[36] where his Honour said:
[35]Winneke ACJ and Warren AJA (as her Honour then was) delivered separate concurring judgments.
[36](2003) 9 VR 1 (‘Popovic’).
There are two well‑established principles that apply where a claim is made for aggravated damages. The first is the oft‑cited dictum of Lord Esher MR in Praed v Graham where his Lordship said –
‘The jury in assessing damages are entitled to look at the whole conduct of the defendant from the time the libel was published down to the time they gave their verdict. They may consider what his conduct has been before action, after action, and in court during the trial.’
Secondly, the conduct of the publisher must meet the description of what the High Court said in Triggell v Pheeney concerning aggravation.
‘ … as improperly aggravating the injury done to the plaintiff, if there is a lack of bona fides in the defendant’s conduct or it is improper or unjustifiable.’
(Emphases added).
The misconduct justifying aggravated damages may be because of lack of bona fides or it was improper or it was unjustifiable. The damages usually are confined to the distress element in the award.
I respectfully adopt the statement of the law by Brennan J in Carson v John Fairfax & Sons Ltd where his Honour said –
‘Damages may be aggravated … by the manner in which the defamatory matter was published and by the subsequent conduct of the defendant. Conduct of the defendants from the time of publication until verdict (including conduct of the trial, … ) is relevant. In Broome v Cassell and Co Lord Reid, speaking of the bracket with which any sum could be regarded as not unreasonable compensation said:
“It has long been recognised that in determining what sum within that bracket should be awarded, the jury, or other tribunal, is entitled to have regard to the conduct of the defendant. He may have behaved in a high handed, malicious insulting or oppressive manner in committing the tort or he or his counsel may at the trial have aggravated the injury by what they there said. That would justify going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation”.’
The amount awarded for aggravated damages is not a discrete head of damages. The tribunal determining the compensatory damages includes the amount for aggravated damages in the sum awarded.[37]
[37]Popovic (2003) 9 VR 1, 77 [381]–[385] (citations omitted).
In answer to the applicant’s complaints that the judge erred in failing to award aggravated damages, the respondents pointed to three passages in the judgment which they submitted told against any award of aggravated damages. In the three passages relied upon the judge said:
First, having listened to the broadcast and having heard Mr Rule’s evidence about it and about the phone call which prompted it, I accept that Mr Rule had intended to make it clear that he had not meant to suggest that the manager of Club Rawhide was a brothel madam. I also accept that in the broadcast he was trying to do that.
…
Mr Rule agreed with the proposition I had put to him but then addressed it as if the issue was one concerning proof. My impression watching him give his evidence was that he gave an honest and frank account of what his sources had told him during his evidence-in-chief. He thinks his articles accurately reflect what he had been told. In my opinion they do not.
…
Finally, when Mrs Hardie rang Mr Rule on 16 May, Mr Rule raised with her matters he thought might embarrass her which had little or nothing to do with the articles. Mr Rule said that he had done that as a form of defence. With commendable frankness, he described it as an attempt to ‘bounce’ her. In other words, he attempted to deflect her complaint about him by raising matters possibly embarrassing to her. This conduct was rude and uncalled for. But on both of their accounts the two of them got over that initial foray and then discussed the matter of principal concern, which was the use of the word ‘madam’. Essentially they came to an understanding that Mr Rule would apologise the following day on the Triple M radio appearance. Mrs Hardie was upset about the unsatisfactory nature of the apology Mr Rule gave. I can understand that but, in my view, the circumstances are not a basis for aggravated damages.[38]
[38]Reasons [42], [173] and [197].
Relying on these passages, the respondents submitted that the judge (who had the benefit of hearing and seeing the witnesses, including the second respondent) had accepted the second respondent as an honest witness who had tried to make it clear in the broadcast on Triple M that he had not meant to suggest that the manager of Club Rawhide was a brothel madam.
There is force in the respondents’ submissions that, on the judge’s findings, the second respondent’s conduct was not shown to lack bona fides or to be improper or unjustifiable so as to entitle the applicant to an award of aggravated damages. If we had accepted that imputation (c) was not conveyed in the articles or the broadcast, we would not have overturned the judge’s findings about the second respondent to which we have referred. In those circumstances, we would not have been persuaded that the judge erred in failing to award aggravated damages. However, as we have said, that is not the end of the issue. The question of aggravated damages needs to be considered afresh (including all of the circumstances relied upon by the applicant) by the court that reassesses the applicant’s damages in respect of the articles and assesses the damages against the second respondent in respect of what he said during the Triple M radio broadcast.
Which court should assess the applicant’s damages?
The applicant submitted that, in the event that this Court determined that her damages in respect of the publication of the articles should be reassessed and/or that she had made out a cause of action in relation to the Triple M radio broadcast, this Court should assess her damages. The respondent, on the other hand, submitted that any reassessment or further assessment of damages should be remitted to the trial judge. The respondent submitted that this Court was not in as good a position as the trial judge to assess damages because (unlike the trial judge) we have not seen or heard the relevant witnesses.
The principal witness (and the one in respect of whom a court assessing damages would get the most benefit from seeing and hearing) on the assessment was the applicant. It seems to us that if anyone would be disadvantaged by this Court assessing damages, it not having seen or heard the witnesses, it would most likely be the applicant. Further, in submitting that this Court should now undertake the assessment tasks, the applicant must accept that this Court would not lightly reverse the trial judge’s conclusions about the honesty and state of mind of the second respondent.
It was not suggested by the respondents in argument before us that there were issues of credibility that were of such substance as to make it inappropriate for this Court to undertake the assessment of the applicant’s damages. Rather, it was submitted that there was further material (transcript and exhibits) which the Court would need before any assessment could be undertaken. In those circumstances, we gave the parties leave to provide us with further material upon which they sought to rely. They did so. Having considered all of the material, we are of the view that, subject to what we have said above, we are in almost as good a position as the trial judge to assess the applicant’s damages. While we have not seen the relevant witnesses give evidence, an assessment by this Court has one advantage over that which might be undertaken by the trial judge: namely, that possible questions of apprehended bias which might arise out of conclusions already expressed by his Honour cannot arise in respect of any assessment by this Court.[39]
[39]See generally, Murphy v Victoria (2014) 45 VR 119, 151–3 [106]–[111].
In all of the circumstances, we do not think it justifiable to impose upon the parties the expense of a further hearing to reassess (and assess) the applicant’s damages. The parties have had the opportunity to make such submissions as they wished to make about questions of the assessment of damages before this Court, and to provide and rely upon additional material. It seems to us that we should now assess the applicant’s damages rather than to remit the proceeding to the trial judge.
Has the applicant established an entitlement to aggravated damages?
In order to establish an entitlement to aggravated damages, the applicant must show that there has been a lack of bona fides in the conduct of one or both of the respondents, or that relevant conduct which has aggravated the injury done to the applicant was improper or unjustifiable.
We do not see any basis for a claim of aggravated damages against the first respondent. True it is that the first respondent has never apologised and the articles were permitted to remain on its website until the time of judgment. While these facts may be capable, in an appropriate case, of forming part of the foundation for a claim for aggravated damages, in our view (and in the circumstances of the present case) they do not support a conclusion that the first respondent’s conduct has been lacking in bona fides or has been relevantly improper or unjustifiable.
The same may be said about the applicant’s complaint that the first respondent failed to properly investigate matters. While, in an appropriate case, a failure to investigate sufficiently may form a basis for awarding aggravated damages, in our view no such failure by the first respondent in the present case rises to the level that would justify an award of aggravated damages against it in respect of its own conduct. If there was to be an award of aggravated damages against the first respondent, it seems to us that it could only be made by reference to some vicarious liability on the part of the first respondent for improper or unjustifiable conduct (or conduct lacking bona fides) engaged in by the second respondent.
The second respondent’s conduct left much to be desired. There was no basis for linking the applicant’s premises with the corrupt conduct alleged to have been occurring between certain police officers and criminals. Furthermore, the so called ‘bouncing’ of the applicant by the second respondent when the applicant telephoned him to complain about the articles was, to say the least, not entirely satisfactory.
But it is the second respondent’s conduct during the course of the Triple M radio broadcast that was the most unsatisfactory part of his overall conduct of the matter. If there had been any doubt about what the second respondent in fact conveyed to the ordinary reader about the applicant in the articles, that doubt was dispelled during the course of the radio interview. The second respondent had agreed to make an apology with respect to the description of the applicant as Madam Black Mercedes. Instead, he participated in a jocular session which a reasonable listener would plainly have understood was asserting that the applicant was a brothel madam. Indeed, he introduced the apology by referring to the applicant with the title that had caused offence, namely, ‘Madam’, when he described the applicant as ‘Madam Rawhide’. He later referred to the applicant as ‘Madam something else’ before he commenced what he described as a correction. Further, the references to ‘she swallowed that’ and ‘Club Rawhide, which is a family friendly strip venue’ were indeed likely to convey to a reasonable reader the opposite of a sincere apology.
All of that said, the trial judge (in what some might say were generous findings so far as the second respondent was concerned) ultimately accepted the second respondent as an honest and frank witness who tried to make it clear during the broadcast that he had not meant to suggest that the applicant was a brothel madam, but failed.[40] While we have some reservations about the bona fides of the second respondent’s conduct, ultimately we must recognise that we have neither seen nor heard the second respondent give evidence and that the trial judge was (as a result) much better placed than this Court to form conclusions about the veracity of the second respondent’s evidence. Further, in circumstances where the applicant wishes this Court to reassess her damages, we do not think it appropriate to reverse the judge’s conclusions as to the second respondent’s credibility. In all, we are not persuaded that the judge’s conclusions in respect of this aspect of the case were wrong.
[40]Reasons [42], [173] and [197].
While, as we have said, there is significant criticism that may be levelled at the conduct of the second respondent in this matter, ultimately we are not persuaded that there should be an award of aggravated damages. The judge’s findings as to the second respondent’s state of mind and what he did and attempted to do in dealing with the matter (which findings we have not overturned) preclude the awarding of aggravated damages in the present case.
The assessment of the applicant’s damages
We turn now to the assessment of the applicant’s damages in respect of the articles and what was said by the second respondent during the course of the Triple M broadcast.
Compensatory damages are awarded in defamation proceedings as a vindication of the plaintiff’s reputation, reparation for the harm done to the plaintiff’s reputation and consolation for the distress, upset and injury to the plaintiff’s feelings occasioned by the defamatory publication.[41] Section 34 of the Defamation Act 2005 requires the Court, in determining the amount of damages to be awarded in any defamation proceeding, to ensure that there is ‘an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded’.
[41]Cassell & Co Ltd v Broome [1972] AC 1027, 1070–1071.
In the present case, the applicant is entitled to an assessment of damages in relation to the publication of the articles and the publication of the relevant parts of the broadcast. While s 39 of the Defamation Act permits a court to assess damages for more than one cause of action in a single sum, it is to be remembered that, while both respondents are responsible for the publication of the articles, only the second respondent is responsible for what he published during the broadcast. In the circumstances, we think it appropriate to assess damages separately in relation to the publication of the articles (against both respondents) and in relation to the broadcast (against only the second respondent). That said, in assessing damages in respect of the publication of imputation (c) in the articles, and the same imputation in the broadcast, we are required to take into account the fact that the applicant has brought proceedings for two publications having the same meaning.[42]
[42]Defamation Act 2005, s 38(1)(d).
The applicant and her business partner (Mr Haynes) gave evidence that six weeks after publication of the articles they ceased opening the club on one of the three nights per week that it was previously open and that over the two years prior to trial, business had gone down 40 per cent. While, as the judge said, it is difficult to determine the reason why people might have stopped frequenting the club, the evidence disclosed that it was likely that some patrons stopped attending because of the articles.
The applicant gave evidence that she was disgusted, upset and ‘gutted’ by what had been published about her. Her evidence was that the suggestion that her venue was a meeting place for corrupt police and bikies had made her feel ‘terrible’. She also made it clear that she was very upset by the suggestion that she was a brothel madam (indeed, this was her primary concern). Other witnesses called on behalf of the applicant confirmed that she was ‘totally distraught’ and ‘terribly upset’ by what had been published. The judge described the evidence of the reaction of people in Shepparton in the following terms:
Mrs Hardie gave evidence that she was especially upset by the reaction of strangers and acquaintances in the small community of Shepparton. She said that people avoided and ignored her after the articles were published and that that had continued to this day. She said that it had been suggested to her that bikies owned the club. Her business partner also gave evidence that people were saying that bikies ‘ran the show’.
As to the reaction of people in Shepparton, the evidence of Ms Duke was particularly compelling. Ms Duke gave evidence of meeting Mrs Hardie in the supermarket in Shepparton at a time when she had not yet read the article. When asked to describe what occurred she said:
People were kind of taking a wide berth and looking at us weirdly and I have said to Raelene, ‘What’s going on? Why are they not looking at us? Why are they looking at us this way?’, type thing. I had a little boy with me and I thought maybe they were looking at him but it wasn’t that kind of look. It was a look of disgust. I could see people kind of walking around us and glaring at us. I don’t know if ‘glaring’ is the word but it wasn’t a nice look I was getting.
The aspect of the publication that Ms Duke said was referred to by local people with her was that they thought Mrs Hardie was a madam and that Club Rawhide was actually a brothel.[43]
[43]Reasons [207]–[209].
While not having found imputations (c) and (d) conveyed, the judge said that the articles created what could fairly be described as a scandal in the Shepparton area, and that the applicant had been put at the centre of that scandal.[44] We agree with that assessment of the evidence.
[44]Ibid [210].
The respondents submitted that in assessing damages in respect of the publication of the articles, the proof of the truth of imputation (a) needs to be taken into account. So much may be accepted. All of the circumstances of and surrounding the publications need to be taken into account (including the brawl, referred to in the colour piece, as having taken place in the December before publication). Additionally, we accept the respondents’ submission that the applicant’s damages in relation to the publication of imputation (c) fall to be assessed in the context of the business that was actually being run at the club. That said, both assessments of damages must be sufficient to vindicate the applicant’s reputation and ‘nail the lie’.
The imputations published by the respondents were seriously defamatory of the applicant. To be crystal clear, there was not the slightest suggestion that the applicant was in fact a brothel madam; and there was much evidence which showed that she ran Club Rawhide so as to reduce, so far as possible, prostitution taking place there. However, a balancing exercise needs to be struck between the publication of the articles on the one hand, and the second respondent’s publication during the broadcast.
In the articles, both imputations (b) and (c) were conveyed, whereas in the broadcast, only imputation (c) was conveyed. That said, we think that the way in which imputation (c) was conveyed in the broadcast was significantly more hurtful to the applicant because of the apparent flippancy of the second respondent in circumstances where he was already on notice about the applicant’s concerns.
Next, the articles were published to a wide audience, and in particular in the applicant’s local community, whereas the broadcast was published to a much more limited audience and only likely to have been accessed by a small (perhaps very small) group of people in the Shepparton area. Indeed, only two people told the applicant that they had heard the broadcast.
Again, the articles were published in permanent form and remained online for more than two years, whereas the broadcast was a transient publication. The existence of the articles online, and the applicant learning that a copy of the colour piece had allegedly been produced at the community meeting in February 2014, can realistically have had no effect on the applicant other than to cause additional anxiety over and above any that might have been caused by the broadcast.
Further, while there were aspects of the broadcast (specifically, those parts of the broadcast for which the second respondent is responsible) that were more hurtful and damaging in particular respects than the publication of the articles, there were also aspects of the circumstances of the publications of the articles that made them more serious than the broadcast. On one view, it could be permissible to assess the damages for the publication of the articles in the same amount as the damages to be assessed in respect of the publication of the broadcast. However, on balance, we think that the publication of the articles to a much wider audience and over a much longer period than the broadcast requires an award of damages in respect of the articles that is larger than the award to be made in respect of the broadcast. In the circumstances, we would assess the applicant’s damages in respect of the publication of the articles in the sum of $150,000, and her damages in respect of what the second respondent said during the course of the broadcast at $100,000.
Conclusion
The application for leave to appeal will be granted and the appeal allowed. The application for leave to cross-appeal will be allowed, but the cross-appeal will be dismissed. Orders will be made setting aside the judgment below and entering judgment for the applicant against the first and second respondents in the sum of $150,000, and against the second respondent in the additional sum of $100,000.
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