Harrigan v Jones - [2001] NSWSC 623

No judgment structure available for this case.

Reported Decision:
(2001) Aust Torts Reports 81-621
[2001] NSWSC 623
[2001] ACL Rep 145 NSW 35

New South Wales

Supreme Court

CITATION: Harrigan v Jones [2001] NSWSC 623

CURRENT JURISDICTION: Common Law Division
Defamation List

FILE NUMBER(S): SC 20486/99

HEARING DATE(S): 25/06/01-02/07/01

JUDGMENT DATE:
27 July 2001

PARTIES :

Bill Harrigan - Plaintiff
Alan Jones - Defendant

JUDGMENT OF: Mathews AJ

COUNSEL : C Evatt; M Rollinson - Plaintiff
B McClintock SC; BA Connell - Defendant

SOLICITORS: Williamsons Solicitors - Plaintiff
Bush Burke & Company - Defendant

CATCHWORDS: DEFAMATION - Defences - JUSTIFICATION - Defamation Act 1974, s 15 - truth based on statistical information - defendant claimed statistics showed referee was biased - held, statistical information inadequate to prove the truth of the imputations - COMMENT - Defamation Act 1974, s 32 - whether imputations were opinion or statements of fact - held, imputations were opinion - whether comment was based on proper material for comment - s 30 - some factual statements not substantially true - whether comment represented an opinion which might reasonably be based on material which was substantially true - s 30(3)(b) - objective reasonableness - held, material not reasonably capable of supporting opinion - QUALIFIED PRIVILEGE - Defamation Act 1974, s 22(1)(c) - whether defendant’s conduct reasonable in the circumstances - defendant’s conclusions did not follow logically, fairly or reasonably from information provided - held, defendant’s conduct not reasonable - UNLIKELIHOOD OF HARM - Defamation Act 1974, s 13 - whether denial of defamatory statement by third party neutralised sting - defence not made out - DAMAGES - Defamation Act 1974, ss 46, 46A - relevant considerations

LEGISLATION CITED: Defamation Act 1974
Workers Compensation Act 1987
Motor Accidents Act 1988

CASES CITED: Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448
NSW Aboriginal Land Council v Perkins (1998) 45 NSWLR 340
Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171
Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174
Morgan v John Fairfax & Sons Ltd [No 2] (1991) 23 NSWLR 374
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Stephens v Western Australia Newspapers (1994) 182 CLR 211
Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80 - 691
Carson v John Fairfax & Sons Limited (1993) 178 CLR 44
Hepburn v TCN Channel 9 Pty Ltd [1983] 2 NSWLR 664

DECISION: Verdict for the plaintiff in the sum of $60,000 in relation to the first imputation and $15,000 in relation to each of the second and third imputations; I reserve the questions of interest and costs until a date to be fixed.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MATHEWS AJ

27 JULY 2001

20486/99 - BILL HARRIGAN -v- ALAN JONES

JUDGMENT
Background

1 HER HONOUR: The plaintiff, Bill Harrigan, is a prominent rugby league referee. The defendant, Alan Jones, is a well-known broadcaster with a regular morning program on radio 2UE and an average listening audience of some 250,000 people. In the course of his program on Tuesday, 8 September 1998 Mr Jones broadcast a telephone interview with Neil Whittaker, then Chief Executive Officer of the National Rugby League (“NRL”). During the course of the interview, Mr Jones asked questions and made observations about Mr Harrigan in a manner which Mr Harrigan said was defamatory of him. He therefore commenced these proceedings. Pursuant to section 7A of the Defamation Act 1974 (“the Act”) a preliminary hearing took place last year in which a jury found that the matter complained of by Mr Harrigan bore three imputations which were defamatory of him. The hearing before me has related to the defences raised on Mr Jones’ behalf, and the issue of damages.

The Broadcast in Context

2 In order to understand the context in which this broadcast took place it is necessary to describe a little of the history of rugby league in Australia over the few years preceding 1998.

3 Until 1995 rugby league in this country, at least at first grade level, was conducted by the Australian Rugby League (“ARL”). Early in 1995 a number of first grade teams broke away from the ARL in order to form a rival competition called the Super League. Brisbane spearheaded this break-away, which was apparently the brain child of its then Chief Executive Officer, John Ribot. Super League was financed by Rupert Murdoch’s News Limited organisation. Altogether 10 teams, including Brisbane, joined the Super League group. They were: Adelaide, Auckland, Brisbane, Canberra, Canterbury, Cronulla, North Queensland, Penrith, Hunter and Perth. Eleven Teams remained within the ARL. They were: Balmain, Gold Coast, Illawarra, Manly, Newcastle, North Sydney, Parramatta, South Sydney, St George, Sydney City and Wests. Several referees joined Super League in 1995 including the plaintiff, Mr Harrigan.

4 In 1996 there were to have been separate ARL and Super League competitions. However as a result of a Federal Court injunction, none of the Super League teams played that year, and the competition was thus confined to the teams which had remained with the ARL. In 1997 the injunction was lifted and two separate competitions were held, one under the auspices of Super League and the other under the ARL. It was generally agreed that this was a most unsatisfactory arrangement and was not in the best interests of rugby league. At the end of 1997, a truce was reached between the two factions. As a result, the two competitions, Super League and ARL, combined to constitute a single competition under the auspices of the National Rugby League (“NRL”).

5 The NRL comprised 20 rugby league teams. Its Chief Executive Officer, as mentioned, was Neil Whittaker.

6 There was some concern during the 1998 rugby league season that lingering rivalries between ex-ARL and ex-Super League teams and their supporters might impact upon the quality and fairness of the sport. By September of that year, the unified competition had entered into the quarter-finals and semi-finals stage. Concern was apparently expressed to Mr Jones, who was very conversant with rugby league and had himself previously coached a first grade team, that the ex-ARL teams were, to use his word, being “dudded”. The particular concerns at that time, according to Mr Jones, related to the proposed venues for the remaining games in the competition and the refereeing of Mr Harrigan. Issues had been raised, Mr Jones said, as to whether ex-Super League teams were being given a better run by Mr Harrigan than were ex-ARL teams.

7 With this background Mr Jones sought an interview with Mr Whittaker. As mentioned, it took place on the morning of Tuesday, 8 September 1998. Much of the interview related to the proposed venues for the remaining games in the competitions. However, during the course of the interview, the following exchange took place:

JONES: “Have you had presented to you any statistics about refereeing, because I have. And there’s an agitation about that as well. I’m talking about ARL and ex-Super League and ex-ARL. And that - well, all Brisbane matches played under Bill Harrigan, penalties for Brisbane 33, penalties against, 14. Penalties points scored, 108; points against, 18.

But when Bill Harrigan wasn’t refereeing Brisbane, they only scored 72 points against the same teams, and there were 107 scored against them. Is there any kind of bias out there which is a hangover from the ARL Super League days? And what are you doing about it?

WHITTAKER: Alan, absolutely not, absolutely not. And I reject that. We spent a lot of time with our referees, making sure that on the weekends, that we provide the best group of officials for the games that we’ve got. It’s been an incredibly difficult year for them. I think we’ve got a good young group, of which Bill Harrigan is probably a stand-out. We’ve got a good young group of referees coming through.

And that assertion, I read something about that in the paper during last week, that just doesn’t happen, and I would hate anybody out there to think it did happen.

JONES: Well, there are 13 matches he’s controlled.

WHITTAKER: The exposure that referees have these days in this game, is under so much of a microscope that that isn’t sustainable. I think Bill Harrigan is a very, very good ref.

JONES: Let me tell you, he’s controlled 13 matches between ex-ARL teams and ex-Super League teams. The total penalties for the ex-Super League teams were 83. The total penalties for the ex-ARL teams, 56, a difference of 27 penalties, which is over two a match.

The position in relation to Brisbane is even worse. The total penalties for Brisbane, 33 in four matches that they played under him; the total against, 14. The difference is up to five penalties a match. Those things win and lose games.

WHITTAKER: Look, Alan, the war between the ARL and Super League is finished ages ago. The clubs and the players and everybody are just getting on with it.

JONES: That’s what they want to do.

WHITTAKER: Look, that assertion I find very, very disturbing.

JONES: Well, I can only tell you what the people are saying. I don’t have time to compile these statistics, but people are writing to me about season tickets. Easts supporters and Parramatta supporters are really bidding for a war in this.

WHITTAKER: Look, Alan, you’re talking about ..(inaudible).. officials and the way they’re conducted, and I think they do a wonderful job. In the way, all of us, collectively, players, clubs, the administration, the referees, the officials, everybody, have got on with making sure that we’ve put all of that behind us. We don’t do the numbers anymore about, oh, we picked this many from Super League and this many from ARL. The fact is, the game is back together again. We’re doing the best job that we can to run what I think has been a pretty good season.”

(I have added paragraph numbers for future reference)

8 Mr Harrigan did not hear the broadcast. However, he was told of it very soon afterwards and it was frequently mentioned to him during that and subsequent days. He was extremely upset, he said, for he prided himself on his integrity and was distressed that a person with the authority of Mr Jones would criticise him in this manner. Nevertheless, no communication was made with Mr Jones until February 1999. Mr Harrigan said that he was unaware of this delay. He had told his agent, Mr Karandonis, of his concerns about the broadcast and had left it for him to take appropriate action.

9 On 5 February 1999 Mr Harrigan’s solicitor, Mr Williamson, wrote to Mr Jones complaining about the broadcast. The letter indicated that proceedings would be commenced against Mr Jones unless the matter was dealt with by way of “an apology and compensation”.

10 It is unnecessary at this stage to detail the correspondence which followed that letter. Suffice is to say that no settlement was reached, and on 28 October 1999 the statement of claim in these proceedings was lodged.

11 The delay in informing Mr Jones of Mr Harrigan’s concerns about this broadcast has affected the conduct of these proceedings, for it has meant that the sound recording of the broadcast has not been available. Recordings are, it seems, routinely destroyed after six weeks, unless there is reason to keep them. In this case no such reason was known. Accordingly, the only record of the broadcast available to the parties and to the Court is contained in a written transcript made by Media Monitors which Mr Harrigan had faxed to him on the day of the broadcast. This is a less than ideal situation, particularly as there is a real issue as to the accuracy of the transcript in a very significant respect. I shall be discussing this later.

The Court Proceedings

12 As happens in these cases, a number of interlocutory hearings took place, many of them relating to the nature of the imputations pleaded by the plaintiff. The following imputations were found pursuant to section 7A of the Act, to be reasonably capable of arising from the matter complained of and to be reasonably capable of bearing a defamatory meaning:

13 On 5 and 6 April 2000 a preliminary hearing took place under section 7A presided over by Kirby J. The jury found that each of the imputations was published by the defendant and was defamatory of the plaintiff.

14 It is against this background that the proceedings before me took place.

15 Four defences have been pleaded by the defendant, namely truth, qualified privilege, comment, and a defence under section 13 of the Act that the circumstances of the publication of the matter complained of was such that the plaintiff was not likely to suffer harm. Each of these defences was pursued before me, and I shall discuss them in turn.

Truth - Defamation Act, Section 15

16 Section 15(2) of the Defamation Act provides as follows:

“(2) It is a defence as to any imputation complained of that—

(a) the imputation is a matter of substantial truth; and

(b) the imputation either relates to a matter of public interest or is published under qualified privilege.”

17 It is conceded by Mr Evatt, who appeared with Mr Rollinson for Mr Harrigan, that the subject matter of the imputations are of public interest. Accordingly, the only issue under this defence relates to the truth of the imputations, for which the burden of proof lies upon the defendant.

18 It is, as section 15 makes clear, the imputations which need to be justified under this defence. The truth of the actual words used will usually be relevant, but will not necessarily be determinative of this issue.

19 The focus, therefore, in this case, must be on the three defamatory imputations. Mr McClintock SC, who appeared with Mr Connell for Mr Jones, described the second and third imputations as having a lower meaning than the first. He went so far as to suggest that the mere fact that Mr Harrigan awarded more penalties to Brisbane and other ex-Super League teams than he did to their opponents was sufficient to establish the truth of these imputations. But this ignores the jury’s finding that the imputations were defamatory. They must be taken to bear a derogatory meaning, denoting favouritism; or, to use one of the Macquarie Dictionary’s definitions of “favour”, to mean “unfair partiality”.

20 It emerged during the opening address of Mr McClintock, that there is a significant dispute as to the meaning of the first defamatory imputation, namely that the plaintiff carries out his duties in a biased manner. In a judgment given on 8 March 2000 Studdert J declined to allow the plaintiff to rely upon a further pleaded imputation, namely that “the plaintiff is dishonest as a referee”. His Honour made his finding in the following terms:

“Having taken time to reflect upon the competing submissions, I do not consider that the plaintiff ought to be allowed to amend so as to rely upon imputation (d). It is precisely the same content of the broadcast upon which the plaintiff seeks to rely to support the proposed imputation of dishonesty as he relies upon to support the imputation of bias, namely the tendency or inclination to favour particular teams. Whilst that same material in the broadcast is capable of supporting an imputation of bias, it is not, in my opinion, reasonably capable of supporting a separate and discrete imputation of dishonesty which would involve a conscious and deliberate course of conduct amounting to cheating.”

21 Thereafter, according to Mr McClintock, the defendant’s case was framed on the basis that imputation (a) related to unconscious rather than conscious bias. It was on this basis, Mr McClintock said, that he addressed the jury in the section 7A hearing. Mr Evatt, who appeared for the plaintiff at the section 7A hearing, says that the plaintiff’s case before the jury was by no means confined to unconscious bias. Moreover, the fact that the defendant’s case before the jury was based on unconscious bias is of little assistance at this stage. It was in the defendant’s interests to minimise the defamatory impact of the imputations. In any event, the jury clearly rejected at least some of Mr McClintock’s submissions.

22 This situation illustrates the type of difficulties which can arise under the present legislation whereby different tribunals are called upon to determine different aspects of the same defamation case. The jury, of course, gave no reasons for its findings. In the result, I have no choice but to determine for myself what the defamatory imputation means, insofar as this is relevant to the issues before me.

23 As the issues in this case have emerged, the fact that there is a dispute as to the meaning of imputation (a) does not affect the defence of truth, nor that of qualified privilege or comment. It is, however, relevant to damages, and I shall be discussing it later. In the meantime, I return to discuss the defence of truth.

24 On 7 June 2000 the plaintiff’s solicitors wrote to the defendant’s solicitors seeking particulars of the “facts, matters and circumstances upon which the Defendant will rely to establish the truth of the imputations.” The response, in a letter dated 1 August 2000, was short and to the point: “The defendant relies upon the facts, matters and circumstances set out in discovered document number 5.”

25 Discovered document number 5, which is now Exhibit 3, is an eight page document which, in different forms, contains various statistics about games played during the 1998 NRL season. It is dated 8 September 1998 and was the document which Mr Jones had available to him when he made his broadcast. A number of the statistics set out in Exhibit 3 were referred to by Mr Jones during the broadcast. A copy of Exhibit 3 is annexed to this judgment. Repetitious portions have been omitted. The paragraph numbers are my own addition in order to facilitate future reference.

26 The defendant’s case on truth is based solely on the statistics in Exhibit 3. The defendant says that they show that during the 1998 season Mr Harrigan consistently granted a disproportionate number of penalties in favour of ex-Super League teams, particularly Brisbane, and that this on its own is sufficient to establish the truth of the three defamatory imputations. The plaintiff, through Mr Evatt, disputes that the statistics are capable of supporting the imputations.

27 There are really two issues here: first, whether statistics of this nature are capable of saying anything about a referee’s bias or partiality, and second, whether these particular statistics indicated that Mr Harrigan was biased. A negative answer to either question would be sufficient to defeat the defence of truth. As will be seen, I will be answering both questions in the negative: the first when discussing the defence of truth, and the second when discussing the reasonableness of Mr Jones’ conduct as relevant to the defence of qualified privilege.

28 I now turn to deal with the first issue: whether statistics of this nature are capable of saying anything about a referee’s bias or partiality.

29 The statistics in Exhibit 3 show that during the 1998 season Mr Harrigan awarded considerably more penalties in favour of Brisbane and other ex-Super League teams than he awarded to ex-ARL teams. In all matches refereed by Mr Harrigan in which Brisbane played against ARL final 10 teams, the penalty score favoured Brisbane and the outcome followed the penalty score, with Brisbane winning all those matches. This trend, at least as regards the outcome, was not sustained when other referees controlled matches between Brisbane and ex-ARL final 10 teams. Brisbane lost four out of five of these matches with a points score which was 72 to 107 in favour of Brisbane’s opponents. Exhibit 3 does not indicate the number of penalties scored in these matches.

30 The real question relates to the weight, if any, that can be given to statistics such as these when assessing the performance of a referee and in particular when asking whether a referee is biased towards a particular team or group of teams. Or, to put it another way, can statistics such as this provide an adequate foundation for concluding, in terms of the imputations, that Mr Harrigan carried out his duties as a referee in a biased manner and that he favoured Brisbane and other ex-Super League teams over their opponents when awarding penalties.

31 Evidence was given on this matter by Mr Harrigan and four of his witnesses, all of whom are very experienced in the game of rugby league. They all said that it would not be possible to conclude that a referee was biased on the basis of statistics alone. Mr Jones, who is no less experienced in the game, and who was the only witness on his own behalf, categorically disagreed with this proposition. He expressed the very firm view that the statistics in Exhibit 3 clearly showed that Mr Harrigan was biased during the 1998 season and that he was favouring ex-Super League teams, particularly Brisbane, over ex-ARL teams.

32 This is an important issue. It is central to the defence of truth, and is relevant also to the defences of qualified privilege and comment. It is therefore necessary to discuss the evidence on this subject in some detail.

33 Dealing first with the evidence of Mr Harrigan. He was asked by Mr Evatt what, in his opinion, would be the best way to judge the performance of a referee. He said that the best way would be for a person to watch the game live, from a sufficiently elevated position to see the whole field. This was better than watching it on television where the camera concentrates only on the immediate area of play. You could not, Mr Harrigan said, judge a referee’s performance by the score of a game or the penalties awarded. Games always differ, he said, from match to match, referee to referee and player to player. Penalties are given for different reasons. You need to assess each penalty separately. In this regard, Mr Harrigan pointed out that some penalties are mandatory and must be awarded if a particular infringement occurs. Others are at the discretion of the referee, who will take into account matters such as the seriousness of the infringement and whether the stopping of the game at that point might benefit the infringing team.

34 The issue also arose during Mr Harrigan’s cross-examination as to the link, if any, between penalties awarded and the outcome of a match. Mr Harrigan said that a referee cannot control the scoring of tries or the kicking of goals. He conceded that the awarding of a penalty can be an advantage to a team, but disputed that it was so in all cases. Mr McClintock put to him that a discrepancy of five penalties per match could easily swing the game in favour of the team with the greater number of penalties. Mr Harrigan conceded that it could, but said that it was necessary to take each game on its merits. He described one game, between Newcastle and Sydney City, in which the penalty count was 9 to 1 against Sydney City which nevertheless won the game convincingly. (By way of aside, another illustration of this phenomenon is to be found in Exhibit 2, which shows Brisbane defeating Melbourne by 30 points to 6, in spite of a penalty count favouring Melbourne of 8 to 1. This match post-dated the broadcast and could therefore not have been known to Mr Jones. However it adds weight to Mr Harrigan’s assertion that the outcome of a game is not necessarily linked to the penalties awarded.)

35 Finally on this issue, Mr Harrigan said that if statistics were to be used as a basis for judging a referee’s performance, 12 to 14 matches would be “far too few games to look at”, when asked why, he said: (T.41)

“A. When you base a referee’s career, my career over 330 games, that would be a fairer indication, and still that would not be the way to judge a referee’s performance.”

36 Mr Harrigan, as indicated, called four witnesses who gave evidence on this subject. The first was Tim Mander. Mr Mander has been a referee for 25 years, and a first grade referee since 1992. He was one of the five referees, including Mr Harrigan, who went over to Super League in 1995. He described Mr Harrigan as “probably one of the best referees ever”.

37 Mr Mander struck me as a very precise witness. He was certainly a strong witness from Mr Harrigan’s point of view. He was asked by Mr Evatt as to the best way of assessing the capabilities of a referee. He said that watching the game live and then viewing it later on video would be the best combination. He was asked about the utility of statistics containing the final scores and the number of penalties in assessing a referee’s performance. He said “that really is not an indicator of a referee’s performance at all.”

38 Mr Mander was cross-examined about this by Mr McClintock. He agreed that the NRL uses statistics for various purposes. They provide information about a number of aspects of the game of rugby league, he said, particularly the performance of players. However he knew of no statistic which would give an indication of a referee’s performance. Mr McClintock asked him about the statistics contained in paragraph 1 of Exhibit 3 (see annexure to this judgment) and suggested that this discrepancy could “not be explained by the accidents of refereeing”. Mr Mander replied: (T.183)

“There could be a hundred variables involved, why those penalty counts happened in that way. You can’t look at the penalty counts of the game to determine a referee’s performance. It has nothing to do with a referee’s performance.”

39 Mr Mander gave similar answers on a number of other occasions. He said that he saw a number of matches refereed by Mr Harrigan in 1998 and saw no bias towards Brisbane.

40 Mr Mander was asked about mandatory as opposed to discretionary penalties. An illustration of the former, he said, occurs if the ball is kicked out on the full. In that situation the referee has no option but to award a penalty. In other situations, he said, the referee is able to apply some discretion. There are many variables involved, such as whether it might be more advantageous to the non-infringing team to continue with the game than to award a penalty. These decisions, he said, are being made by referees all the time.

41 Mr McClintock suggested to Mr Mander that, given that a referee is constantly using his discretion, certain teams’ playing styles might suit some refereeing styles more than others. Mr Mander replied: (T.187-188)

“No. I can’t really agree with that. I think that is too broad a statement to make. I think it is mainly to do with discipline. So, a non disciplined side will come to grief with, basically, any referee whereas a well disciplined side, which is usually a better and well drilled team and is more competent, will come to less grief with the referee.”

42 Mr Mander was asked by Mr McClintock about the benefits which follow the giving of a penalty. The non-penalised team gains an opportunity to kick the ball, and will usually get both possession and a territorial gain. The extent of the gain, however, varies, Mr Mander said, according to where the penalty is given. If the penalty is given in the middle of the field it is much more difficult to gain ground than if the penalty is given closer to the sideline. He disagreed with the proposition that teams never deliberately give away penalties.

43 Mr McClintock put to Mr Mander that a penalty count of 16 to 6 would give “a very significant advantage” to the team receiving the 16 penalties. (Mr McClintock was referring here to the match between Brisbane and Manly, refereed by Mr Harrigan, in which Brisbane received 16 to 6 penalties and won by 22 to 6 points - see paragraph 3 of Exhibit 3 annexed hereto). Mr Mander agreed that the penalties would potentially have given Brisbane an advantage. At this point the following exchange took place: (T.177)

“Q. It is so great an advantage that it would be impossible for the team receiving the lower penalty count to win, wouldn’t it?

A. No, that is totally incorrect.

Q. It would certainly make it very, very, very difficult for the team who received the lower penalty count to win, wouldn’t it?

A. I don’t agree with that. The team’s capabilities are the major determining factor on, on which team wins. Which team has the highest skill level, which team has played better, and I have refereed many games where the penalty count of the lesser side, I’m sorry, the winning team has had less penalties than the opposing side.

Q. You are not suggesting, are you, that refereeing decisions don’t have an impact on the result of games, are you?

A. Refereeing decisions do have an impact on the result of the game but the referee is simply responding to what has happened on the field. So a player’s indiscretion or indiscipline has an effect on the game.”

44 Finally, Mr McClintock questioned Mr Mander about the difference in outcome between the Brisbane matches controlled by Mr Harrigan and those controlled by other referees. Brisbane, it will be recalled, won all four games controlled by Mr Harrigan but lost four of the five games controlled by other referees. In this context the following exchange took place: (T.185-186)

“Q. There is no doubt, is there, that Brisbane did significantly better when Mr Harrigan was refereeing than when he was not refereeing?

A. I do not think you can tie those two things together. In those different games they won and lost. In my opinion that has nothing to do with the refereeing.

Q. You would agree with me, would you not, that refereeing can have a significant impact on the outcome of a game?

A. An incorrect ref’s decision can, yes.

Q. A biased ref’s decision, if there were such a thing, could have impact, could it not?

A. It could.”

45 The next witness, Brian Grant, was a first grade referee between 1988 and 1999. He also went over to Super League in 1995. He is now a coach of referees for the NRL. This involves assessing their games and selecting referees for future games.

46 Mr Grant saw Mr Harrigan refereeing a number of matches in 1998 and did not consider that he was biased or that he was favouring Brisbane or other ex-Super League teams over their opponents.

47 He was asked by Mr Evatt what he regarded as the best way to judge the competence of a referee. Mr Grant replied that in his present role he firstly views the game, either live or by video, and then analyses the game, often in consultation with the referee himself.

48 Mr Evatt asked Mr Grant about the usefulness of statistics: (T.191)

“Q. And what about fairness of a referee? What use, if any, would statistics be to judge the fairness of a referee: I’m talking about the final scores and the number of penalties?

A. The number of penalties are insignificant as far as fairness. It is what penalties are given and if he has played it even handed, he has penalised consistently across the game.

Q. But can you assess fairness just from statistics alone?

A. I couldn’t.”

49 Mr Grant said that he regarded Mr Harrigan at present as “the number one referee in the NRL.” Mr Harrigan had been nominated to referee the deciding game in the State of Origin series which was to take place a few days after the hearing. This was a critically important game, Mr Grant said, and Mr Harrigan would not have been nominated as referee if he had a reputation for being biased or partial in any respect.

50 The next witness for the plaintiff, Peter Louis, also coaches referees for the NRL. He and Mr Grant work together. He started rugby league coaching in 1984. From 1993 he was head coach of the North Sydney team until taking up his present position. Mr Louis had no involvement with Super League: the team which he coached remained aligned with the ARL.

51 Mr Louis said that in his opinion Mr Harrigan is the leading referee in rugby league. He observed Mr Harrigan refereeing on numerous occasions both before and after 1998. Mr Evatt asked him whether, over all those matches, he had ever formed the opinion that Mr Harrigan carried out his duties as a referee in a biased manner. Mr Louis replied “definitely not”. He also said that, from the matches that he observed which were refereed by Mr Harrigan in 1998, it was not his opinion that Mr Harrigan was favouring either Brisbane or other ex-Super League teams over their opponents when awarding penalties.

52 Mr Louis was asked by Mr Evatt about the usefulness of statistics in assessing referees: (T.201)

“Q. In your opinion would it be possible to judge the capabilities of a referee on statistics alone, those statistics being the results of the match, and the number of penalties?

A. Not completely sir, no.

Q. Would the same apply for fairness, judging the fairness of the referee?

A. You have to get a feel of the game and I think the best way to do that is to observe the game live.”

53 Mr Louis was asked about the match played between Brisbane and North Sydney during the 1998 season, which Brisbane won by 60 points to 6. This was one of the matches referred to in Exhibit 3 (see paragraph 3). Mr Louis had a particular interest in the match, as he was North Sydney’s coach at the time: (T.201-202)

“Q. Well, I see here statistics that in a match refereed by Mr Harrigan, Brisbane beat North Sydney 60 to 6?

A. That is correct.

Q. And the penalties were 8, 3 in favour of Brisbane by the look of it. Did you watch that match?

A. Unfortunately.

Q. Did you regard that result as coming about through any bias of Mr Harrigan?

A. Definitely not, definitely not. It was the attitude of the players on the day, and certainly when you get beat by 60 points you want to forget about those things. But the referee had no influence on the outcome of the game.”

54 Mr McClintock cross-examined Mr Louis about the use of statistics: (T.202)

“Q. You would agree with me, wouldn’t you, that statistics of refereeing can legitimately be used to raise a question about the referee’s capabilities?

A. Not completely, sir.

Q. Can I suggest this: If you saw a marked discrepancy between the way one team was treated by one referee, and how that team was treated by all other referees, it would raise a question in your mind, wouldn’t it?

A. You have to be there to observe it, or watch a videotape to form an opinion. You know, with the background that we have in this business, you know, you just sort of can’t jump to conclusions. I believe that you know, you have to have the evidence yourself.”

55 Mr McClintock put to Mr Louis, in a somewhat convoluted question, the hypothetical situation of referee A giving team X, on every time he refereed one of its matches, something in excess of double the number of penalties that team X’s opponents received, whereas other referees awarded team X half the number of penalties that referee A awarded. The examination proceeded: (T.203-204)

“Q. And the statistics I’ve put to you would raise a question in your mind that you would feel should be explored. That is correct, isn’t it?

A. Well, you form your own opinion, if you were at the game you would be able to form your own opinion. People look at Rugby League games and view it differently, but I’ve been in the game a long time and if you are talking about me observing whether the referee was one way or the other with teams, I would certainly form my opinion by, by looking at the game.

Q. I know this might not be terrible likely to happen, but assume that in the hypothetical I’ve put that it happened that you had not seen any referee A’s games - do you understand that?

A. Yes.

Q. If, say, Mr Grant came to you and gave you the statistics that I’ve suggested, the first thing you would do is go along and watch the next game that referee A refereed of team X, wouldn’t you?

A. The first thing I would do is grab a videotape and have a look at what the penalties are for.

Q. In other words you would investigate, wouldn’t you?

A. Yes.”

56 I have quoted this passage in full for Mr McClintock relies upon it in submitting that the statistics in Exhibit 3 constitute a sufficient basis for inferring bias on the part of Mr Harrigan. (I have to interpolate here, however, that the factual proposition put to Mr Louis had no relevance to this issue as it did not derive from Exhibit 3, which is the sole basis of the defendant’s case on truth. Exhibit 3 set out a comparison between the points scored in Brisbane games controlled by Mr Harrigan and other referees, but was silent on the number of penalties awarded by the other referees).

57 The final witness for the plaintiff on this issue was Michael Stone, who is currently the NRL referees’ co-ordinator. He was a first grade referee himself, between 1981 and 1989, and in 1991 became a referees’ coach. He was not part of the Super League breakaway, and remained with the ARL throughout. He described Mr Harrigan as “the best referee I think that I have ever seen”. When asked why he said that, he responded: (T.208)

“He has got all the attributes of a fine referee. He is supremely fit. He has a very good knowledge, working knowledge, of the laws of the game. He has a wonderful rapport with the players. He has an understanding, a feel, for the game of Rugby League and what the game is about. Generally, those sorts of characteristics amount to what you need to be a good referee.”

58 He was asked about Mr Harrigan’s fairness and gave the following response: (T.209)

“Bill’s integrity, in my opinion, is beyond doubt. As the referee’s coach, and Bill was one of my referees both prior to Super League era and afterwards, if I believed that any referee carries an element of bias I certainly wouldn’t be appointing him to any football match.”

59 Mr Stone was asked by Mr Evatt what use could be made of statistics of the results of matches and the number of penalties awarded in assessing the capabilities of a referee. Mr Stone replied that they would be of no use. Mr McClintock cross-examined him on this and suggested that statistics, in combination with other matters, might give significant information about a referee’s performance. Mr Stone replied “No”. Mr McClintock then put to Mr Stone that questions might be asked if a referee gave a particular club double the number of penalties that he gave its opponents, whereas the penalty count was reversed when the same club was refereed by other referees. Mr Stone responded “I would watch the game”.

60 Finally Mr Jones, the defendant, gave evidence on this issue. Mr Jones has had very extensive involvement with football over the years. Between 1984 and 1988 he coached the Wallabies. In the early 1990’s he coached the Balmain rugby league team and then, until 1997, was the head coach of South Sydney. He was provided with Exhibit 3 before 8 September by Mr John Gibbs, a former rugby league international player, who was at that stage employed by 2UE. Mr Gibbs used statistics compiled by David Middleton, who Mr Jones described as a “highly esteemed rugby league statistician and historian”.

61 Mr Jones, in his evidence in chief, described the benefits which a team derives from having a penalty awarded in its favour. He said that a penalty differential of 33 to 14, or 29 to 13, conferred a “phenomenal advantage” in the two issues that are critical in rugby league, namely territory and possession. This “overwhelming advantage”, Mr Jones said, “will be invariably reflected in the score line”. In the case of the matches played by Brisbane in 1998, Mr Jones said that the penalty differential “led to Brisbane getting 108 points and the opposition 18”. Mr Jones was asked what these figures told him: (T.237)

“Well, it told me that there was an overwhelming bias in Bill’s refereeing towards Brisbane, which wasn’t present when other people were refereeing Brisbane and it had a very significant impact on the result.”

62 Mr Evatt asked Mr Jones about the use of statistics. The following exchange ensued: (T.249)

“Q. Do you agree that statistics like the ones you have used are worthless in judging the capabilities of a referee?

A. I completely disagree.

Q. The statistics tell you nothing about a referee. Would you agree with that?

A. I disagree.

Q. Statistics might tell you something about a player for example the statistics might show that one player has scored 100 tries in so many games, or kicked so many goals and those statistics might help you judge a player’s performance against other players. Would you agree with that?

A. So you are using the mathematics to judge the player but not the referee. Is that what you are saying? I think you need a little exposure to the game.

Q. That’s exactly what I am saying?

A. You use maths to judge the merit of the player and the referee and every person in Rugby League knows that.

Q. You won’t agree with me that the statistics do not tell the worth of the referee?

A. I am not quite sure what your question means. Statistics will tell you what I was seeking in the question, the level of bias in the referee.

Q. I have been putting to you first of all that statistics might help judge the performance of a player. I think you agreed with that. Say yes or no?

A. Yes, of course I do.

Q. I further put to you that statistics are of no use in judging the performance of a referee. You disagree with that?

A. That’s an opinion you are entitled to but I disagree”

63 I have quoted the evidence on this issue in considerable detail, for whether these statistics are capable of giving rise to the defamatory imputations is, as already mentioned, a central issue in this case. It must be remembered that it is for the defendant to affirmatively satisfy me of this matter.

64 I shall put aside, for the moment, the evidence of Mr Harrigan and Mr Jones, both of whom have an obvious interest in the outcome of these proceedings. The remaining four witnesses, who are all extremely experienced in rugby league, all said that statistics on their own will constitute an insufficient basis for assessing the bias or otherwise of a referee. Certainly Mr Louis, and to a lesser extent Mr Stone, qualified their evidence on this aspect. Mr McClintock particularly relied on the answers given by Mr Louis and quoted in paragraph 55 above. He suggested that Mr Louis’ evidence provided support for Mr Jones’ assertion that the statistics, on their own, showed that Mr Harrigan was biased. But that is overstating the effect of Mr Louis’ evidence. All he said was that, given what appeared to be a significant discrepancy between penalties awarded by one referee and penalties awarded by others (which is not in any event shown in Exhibit 3), he would investigate the matter. That is far short of saying that, on the basis of such statistics, he would conclude, in terms of the first imputation, that the referee was biased.

65 Each of the four witnesses called by the plaintiff said that they observed Mr Harrigan refereeing games in 1998. They saw no sign of bias. Mr Louis was coach of the losing team in the match which Brisbane won by 60 points to 6. He said that the referee had no influence on the outcome of this game. As Mr Grant pointed out in his evidence, the points scored in this match were so highly disproportionate that it affected the point score statistics set out in Exhibit 3. The remaining two matches played by Brisbane against ex-ARL final 10 teams had combined scores in favour of Brisbane of 48 to 12. This is still a significant difference, but is not as starkly so as the figures in Exhibit 3, which are 108 to 18.

66 Mr McClintock did not suggest to any of Mr Harrigan’s witness that they were deliberately misstating their evidence in order to assist the plaintiff. Indeed, no significant credibility issues were raised about their evidence. Between them, these witnesses gave very powerful evidence on this issue. The only witness favouring the contrary view was Mr Jones. Given that he has an obvious interest in the proceedings, I find it impossible to prefer the evidence given by him alone to that given by the four witnesses called by Mr Harrigan.

67 The defence of truth has, from the outset, been based on the statistics contained in Exhibit 3. It must have been obvious to the defendant that the capacity of those statistics to support the defamatory imputations would be a crucial issue in the case. Yet no evidence was led by the defendant, other than that of Mr Jones, to support the proposition that statistics of this nature were sufficient, on their own, to lead to an inference of bias or favouritism on the part of Mr Harrigan. In the absence of any such evidence, I am unable to find that the statistics contained in Exhibit 3 showed that Mr Harrigan carried out his duties as a referee in a biased manner or that, as a referee, he favoured Brisbane or other ex-Super League teams against their opponents when awarding penalties.

68 It follows that the defence of truth under section 15 of the Act has not been made out.

Comment - Defamation Act Section 32

69 The defence of comment is pleaded in the following form:

“In further and alternative answer to the Statement of Claim, the defendant says that the matter complained of in paragraph 1 of the Statement of Claim:

(a) related to matters of public interest:

(b) amounted to comment;

(c) that comment was -

(i) the comment of the defendant:

(ii) based upon proper material for comment and no other material or, in the alternative, was based to some extent on proper material for comment and represented an opinion which might reasonably be based on that material to the extent to which it was proper material for comment.”

70 Section 32 of the Defamation Act provides as follows:

“Comment of defendant

(1) Subject to sections 30 and 31, it is a defence as to comment that the comment is the comment of the defendant.

(2) A defence under subsection (1) as to any comment is defeated if, but only if, it is shown that, at the time when the comment was made, the comment did not represent the opinion of the defendant.”

71 Sections 30 and 31 set out the parameters of this defence. They are in the following terms:

“

30

Proper material

(1) For the purposes of this section, but subject to subsection (2),

proper material for comment

means material which, if this Division had not been enacted, would, by reason that it consists of statements of fact, or by reason that it is a protected report within the meaning of section 24, or for some other reason, be material on which comment might be based for the purposes of the defence or exclusion of liability in cases of fair comment on a matter of public interest.

(2) A statement of fact which is a matter of substantial truth is proper material for comment for the purposes of this section, whether or not the statement relates to a matter of public interest.

(3) The defences under this Division are available as to any comment if, but only if:

(a) the comment is based on proper material for comment, or

(b) the material on which the comment is based is to some extent proper material for comment and the comment represents an opinion which might reasonably be based on that material to the extent to which it is proper material for comment.

(4) There is no special rule governing the nature of the material which may be the basis of comment imputing a dishonourable motive or governing the degree of foundation or justification which comment imputing a dishonourable motive must have in the material on which the comment is based.

31 Public Interest

The defences under this Division are not available to any comment unless the comment relates to a matter of public interest.

72 It is axiomatic that this defence is available only in relation to a publication which consists of comment, or opinion, as opposed to a statement of fact. This threshold question, which sounds simple enough, often involves fine nuances of meaning and can be very difficult indeed. I have found it to be so in the present case.

73 The first issue to be determined under this head is whether the defence of comment attaches to the defamatory imputation or to the matter complained of, in this case the words used by Mr Jones in his radio broadcast. This is an issue which has troubled the New South Wales courts, both at first instance and at appellate level, since the enactment of the 1974 Act, which makes the publication of the defamatory imputation the gist of the cause of action. The determination of this issue dictates the approach to be adopted when assessing whether the publication consists of comment or fact. Is the focus to be on the defamatory imputation or the words actually used, or a combination of the two?

74 It is unnecessary to describe the various judicial approaches which have been adopted in relation to this question. It is fair to say that the issue has provoked a considerable divergence of views. However, for present purposes I must take the matter to have been resolved by the decision of Clarke JA in Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 and by Priestley JA in NSW Aboriginal Land Council v Perkins (1998) 45 NSWLR 340.

75 In Parker, Clarke JA, with whom Cripps JA agreed, made the following statement at 467-468.

“In my opinion a defendant who raises a defence of comment is obliged to establish that the imputation which the jury has found that the published matter conveyed was conveyed by the writer or speaker as a comment. In this respect, as I have sought to point out, the actual form of the pleaded imputation is not a relevant consideration. What the jury is required to consider is the published material in order to determine whether the writer or speaker conveyed the

defamatory statement

which, according to its finding, the published matter conveyed as an expression of opinion or conclusion on the one hand or a statement of fact on the other. I regard this conclusion as consistent with principle and it is, in any event, supported by the decisions in

David Syme & Co Ltd v Lloyd

both in this Court and in the Privy Council:

Lloyd v David Syme & Co Ltd

(1985) 3 NSWLR 728.”

76 A little later his Honour said, also at 468:

“Where the terms of a pleaded imputation are based upon, and are in precisely the same terms as, the words spoken or written by the defendant then, where a defence of comment is raised, the question whether those words were spoken or written by the defendant as his or her comment will be relatively straightforward. Where, however, the imputation relied upon is said to arise by implication from the published material the question whether the defendant was making the defamatory statement as a comment may be more difficult. Whichever way the imputation is said to arise the determination whether it was made as comment is determined upon a consideration of the words actually used: see generally the judgment of Mahoney JA in

Petritsis

(at 196).”

77 It is clear that, in using the underlined words “defamatory statement” in the first passage quoted above, Clarke JA was referring to the defamatory imputation pleaded by the plaintiff. This was certainly the view of Priestley JA in Perkins, and it must, with respect, be correct. The precise meaning of Clarke JA’s judgment in Parker was debated before the Court in Perkins. Priestley JA, with whom Sheppard A-JA agreed, approved Clarke JA’s approach to this issue. Precisely what that approach was, had been the subject of debate in Perkins. This prompted Priestley JA to restate the propositions asserted by Clarke JA in the following terms (at 345):

“(a) whether or not an imputation pleaded by a plaintiff as a cause of action is an expression of opinion or conclusion, or a statement of fact or some mixture of any two or all three of these will sometimes be impossible to decide simply from the terms of the imputation itself;

(b) in the kind of case referred to in (a), where the jury finds the alleged imputation was made by the published matter complained of

and

was defamatory of the plaintiff

and

the defendant is relying on the defence of comment, then it will be for the defendant to show, amongst the other requirements of that defence, that the defamatory imputation was a comment and not a statement of fact;

(c) to do that the defendant is entitled to require the tribunal of fact to consider the published matter which made the defamatory imputation in order to determine whether that matter made an imputation which was comment (in which case the defendant will have succeeded in establishing one of the matters necessary to the defence) or was not (in which case the defence will have failed).”

78 Applying this test to this case, my task is to determine, in relation to each of the three imputations, whether it was conveyed by Mr Jones in his broadcast as his opinion, rather than as a statement of fact. In making this determination, as both Clarke and Priestley JJA confirm, I must consider the words used in the broadcast rather that the terms of the imputation itself. As the onus of proving this defence lies on the defendant, I must be affirmatively satisfied of this matter, namely that the imputation was conveyed to listeners as Mr Jones’ opinion, rather than as an assertion of fact.

79 Whether defamatory material consists of opinion or fact is essentially a factual issue. Until recently, it has been left for juries to determine. There will be many cases where this question poses no real difficulty: the defamatory material will clearly fall into one category or the other. There is, for example, a prima facie presumption that criticisms of published works or public performances are comment (see Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171). In other cases it will be difficult to determine where the line is to be drawn between an expression of opinion on the one hand and a statement of fact on the other. The context of a publication might alter the nature of its contents. For example, a statement which on its face appears to be an assertion of fact, might be found to be comment if it is the speaker’s conclusion drawn from facts which are contained within the publication. Indeed, Mr McClintock urges that that is precisely the case here. Mr Jones, in his broadcast, set out the statistics of the matches conducted by Mr Harrigan and by other referees, according to Mr McClintock’s submissions, and went on to comment, in the terms of the imputations, that Mr Harrigan must be biased as a referee and that he must be favouring Brisbane and the ex-Super League teams over their opponents.

80 It is apposite here to describe the manner in which the defendant has particularised this defence. In a letter dated 1 August 2000, Mr Jones’ solicitors, Bush Burke & Company, said that the following parts of the material complained of were relied upon as comment. (For ease of reference I am inserting, beside the following quotes, the paragraph numbers used in paragraph six of this judgment.)

6.2 …“ Is there any kind of bias out there which is a hangover from the ARL Super League days? And what are you doing about it?”

The position in relation to Brisbane is even worse.”…

Those things win and lose games.”

Well, I can only tell you what the people are saying.”

81 In the same letter, the defendant’s solicitors specified the following statements in the matter complained of to be fact.

… all Brisbane matches played under Bill Harrigan, 33, penalties against, 14…points scored 108; points against 18.”

“But when Bill Harrigan wasn’t refereeing Brisbane, they only scored 72 points against the same teams, and there were 107 scored against them.”

“Well, there are 13 matches he has controlled.”

“Let me tell you, he’s controlled 13 matches between ex-ARL teams and ex-Super League teams. The total penalties for the ex-Super League teams were 83. The total penalties for the ex-ARL teams, 56, a difference of 27 penalties, which is over two a match.”

“The total penalties for Brisbane, 33 in four matches that they played under him; the total against, 14. The difference is up to five penalties a match.”

82 It is, of course, the effect on the listener which is crucial to this issue. Would the ordinary reasonable listener of Mr Jones’ broadcast have understood that, in using the words particularised as comment, he was stating his opinion rather than making a statement of fact? Although this is a question of fact, some assistance can be derived from the authorities. The following passage of Mahoney JA in Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 is particularly helpful (at p.196):

“The statements were essentially judgmentative. Whether a person is “unfit to be and remain a priest” may be affected by considerations essentially of a moral nature, or be the result of the weighing up of considerations otherwise of an imponderable character. Where a matter is described by use of terms such as “sham” or the like, the statement is open to be regarded as inherently one of opinion. It is not necessarily so: in

Smith’s Newspapers Ltd v Becker

(1932) 47 CLR 279 at p 302, Evatt J saw “a German quack” as capable of being a statement of fact. But to say of a person that his “presence in the priesthood was a sham” is, in my opinion, to make a statement open to be seen as one of opinion. In the present case, there is one other relevant consideration. The statements in question are derived by implication from the material stated in terms in the two articles. They are not mere translations of the terms used in the articles, nor are they unexpressed steps in such processes of reasoning as are contained in the articles; they are derived as inferences or conclusions suggested by the material set forth in the articles. Statements of fact may, of course, be derived in this way, but statements in judgmentative terms so derived are, I think, particularly open to be seen as statements of opinion.”

83 With this background, I turn to the terms of the broadcast itself. The first imputation (that the plaintiff carries out his duties as a referee in a biased manner) is particularly referable to the question posed by Mr Jones “Is there any kind of bias out there which is a hangover from the ARL Super League days? And what are you doing about it?” In one sense, the second question, “And what are you doing about it?” pre-empts the answer to the first question, in that it assumes the existence of bias. However I do not think that listeners would have taken this to alter the nature of Mr Jones’ question. I think they would have taken it as Mr Jones in effect saying to Mr Whittaker: “This is what the figures show. On this basis, it appears to me that there must be bias on the part of Mr Harrigan. What do you say about that, and what are you doing about it?” The listener who took it this way would have understood Mr Jones to be expressing his opinion rather than making a statement of fact. Interpreted thus, the defence of comment would prima facie be available to the defendant.

84 It could possibly be argued that Mr Jones’ question in paragraph 2 might have been taken by his listeners to mean: “Here are the figures. They show that Mr Harrigan is biased. What are you doing about it?” Taken this way, the imputation would have been conveyed as a statement of fact, rather than as Mr Jones’ opinion.

85 On balance I think that the listener would have taken Mr Jones’ observations in the first sense. In other words that they would have taken him to be expressing his opinion, based upon the statistics he provided, that Mr Harrigan was biased in favour of the ex-Super League teams. And although I cannot pretend to have reached this conclusion with a great degree of confidence, I am sufficiently satisfied of this matter to find, in favour of the defendant, that the first imputation was conveyed to Mr Jones’ listeners in the form of comment.

86 The issues in relation to the remaining two imputations require separate discussion. I have already noted that, given the jury’s finding that these imputations were defamatory of Mr Harrigan, they must denote something more than a simple statement that Mr Harrigan awarded more penalties to Brisbane and other ex-Super League teams than he did to their opponents. There is nothing in such a statement which could possibly be defamatory of Mr Harrigan. There must be a further element, of favouritism or partiality, involved in these imputations. And it is here that any comment, if comment there be, must lie.

87 In effect, Mr Jones was saying in his broadcast: Mr Harrigan has awarded significantly more penalties to ex-Super League teams, particularly Brisbane, than he has to their opponents. Brisbane has done much better in games refereed by him, than it has with other referees. It follows that there must have been some favouritism on his part.

88 The real question is whether this conclusion, of favouritism, was presented to listeners as a statement of fact or as Mr Jones’ opinion. I am inclined to the view that it was the latter, although the question is by no means an easy one.

89 Accordingly, I find that the three imputations were conveyed to the listeners of Mr Jones’ programme as his statements of opinion, based on facts stated by him, which consisted of the various statistics relating to Mr Harrigan’s performance as a referee. Accordingly, the defence of comment is potentially available to Mr Jones.

90 Before turning to discuss the particular matters which need to be established to make good this defence, it is apposite to say something very briefly about the general nature of a comment defence.

91 The defence of comment in section 29 to section 35 of the Act has its origins in the common law defence of “fair comment on a matter of public interest”. The philosophical basis for this defence is that all citizens have the right to express their views on matters of public interest. Listeners can then determine for themselves whether they agree with those views. It is axiomatic that listeners will not be in a position to make this assessment unless they have sufficient facts available to them to enable them to draw their own conclusions. Hence the rule that the facts upon which a defamatory comment is based must either be contained in the publication or otherwise be known or available to the listener.

92 In this case, Mr Jones referred in his broadcast to many of the statistics set out in Exhibit 3. The figures that he mentioned form the factual sub-stratum to be considered when determining whether the defence of comment has been made out. The remaining figures in Exhibit 3, not referred to by Mr Jones, were not available to his listeners, nor could they be expected to know of them. Accordingly, when considering the availability of this defence, the factual material upon which the comment was based must be confined to the facts stated by Mr Jones in the broadcast. Those facts, as particularised by the defendant’s solicitor, are set out in paragraph 79 above.

93 The following issues need to be addressed under the defence of comment:

· Whether the comment was based on proper material for comment (s30 (2) and (3))

· Whether the comment in fact represented Mr Jones’ opinion (s32 (2))

94 The requirement, in section 31, that the comment must relate to a matter of public interest is clearly met in this case, as Mr Evatt has conceded.

95 The question of whether the comment, as conveyed in the imputations, was based on proper material for comment is a difficult one in this case. This is because there were some factual errors or discrepancies in the broadcast, one of which was potentially very significant.

96 The first error relied upon by the plaintiff arises from Mr Jones’ reference, according to the transcript, to “penalties points scored, 108; points against, 18” at the end of paragraph 6.1 above. There is no such thing as a “penalty point” in rugby league. Even if there were, the words used by Mr Jones, according to the transcript, were “penalties points”, a phrase that makes no particular sense. Mr Jones was asked about this by Mr Evatt. Mr Evatt suggested to him that the transcript accurately conveyed what Mr Jones had said. Mr Jones, understandably, had no particular recollection of what he did say. He conceded that the word “penalties” might have been a slip of the tongue, but went on to say that the transcript did not make sense to him and he was certain he did not use those words.

97 I think it is very likely that there is an error in the written transcript of the broadcast, at least in the punctuation used. In fact, Brisbane scored 108 points in the matches referred to by Mr Jones, and its opponents scored 18. This had nothing to do with penalties. A possible explanation is that Mr Jones repeated the word “penalties” before turning to deal with the separate issue of points scored, so that there should have been a full stop between the words “penalties” and “points”.

98 Had the tape of the broadcast been available, this matter would easily have been resolved. In the event, I cannot take the meaningless phrase “penalties points scored”, as used in the transcript, as derogating from the substantial truth of the factual information conveyed by Mr Jones and used as a basis for his opinion.

99 Other errors in the facts cited by Mr Jones have been relied upon by Mr Evatt. Two of these do not, in my view, derogate from the substantial truth of the factual information conveyed in the broadcast. The third, however, is a significant error. It occurred in paragraph 6.2 above when Mr Jones talked about matches which Mr Harrigan did not referee which had been played by Brisbane “against the same teams” as referred to in paragraph 6.1. In fact, they were not the same teams at all.

100 In order to understand this and the other errors relied on by Mr Evatt, it is necessary to relate the figures used by Mr Jones in his broadcast with those contained in the document he had in front of him. (See Exhibit 3, annexed hereto.) In the first paragraph of the matter complained of (paragraph 6.1 above) Mr Jones referred to “all Brisbane matches played under Bill Harrigan” and said that 33 penalties had been awarded to Brisbane with 14 penalties against, and 108 points scored by Brisbane and 18 against. In fact, the penalty count of 33 to 14 was taken from four matches, but the point score of 108 to 18 from only three. The four matches which led to the penalty count of 33 to 14 were played by Brisbane against Manly, Norths, Newcastle and Melbourne. The total points scored in those matches were 142 to 34 in favour of Brisbane. The point score of 108 to 18 was taken from only three of those matches. The match against Melbourne was not taken into account. The penalty score in those three matches was 29 to 13 in favour of Brisbane.

101 Mr Evatt asked Mr Jones about this, and the following exchange occurred: (T.256)

“Q. Then forget the penalties points scored, you say 108 to 18. What I’m saying is it should actually be 142 to 34?

A. No, it shouldn’t. Because I wasn’t referring to that.

Q. But --

A. I’m submitting to you, and I have already to the court, that that is not a correct interpretation of what I said and we have that jumbled second last sentence. I don’t believe I said that. I know exactly what 108 to 18 was about and that was about the matches that Bill Harrigan controlled against the ex ARL teams in the top ten which Brisbane were playing, and there were three of those and that is why my score is right. Because that takes Melbourne away from there, 34 from 42 is 8, in your document, and 16 from 34 is 18. And that is how you get 34 to 18.

Q. But that can’t be right, because if you had deliberately excluded Melbourne from the 108 to 18 you have included Melbourne in the 33 to 14 penalty points?

A. That was of all the games, Mr Evatt, all the games that he refereed during the year. The reason that Melbourne was excluded was because that was when the ARL teams played the Super League teams in the top 10 and Bill Harrigan refereed three matches then.

Q. Why didn’t you exclude Melbourne going from the 33 to 44 penalties?

A. Because the 33, the penalty count, I repeat, relates to Bill Harrigan’s refereeing in the season. That is quite clear in the document that has been tendered here which is document exhibit 3, that in all the matches in 1998 Bill refereed Brisbane four times, one was Melbourne, 33 to 14. The 108 points to 18 refers to the final ten teams that made the “semi finals, “quarter finals” or whatever and in that Bill only refereed Brisbane three times and in those three matches the penalty count was 29 to Brisbane, and 13 to the opposition. The score 108 to Brisbane, 18 to the opposition.

Q. But Mr Jones, you don’t say any of that to your listeners?

A. I’m submitting to you, Mr Evatt, and I’ve done this now three times and I will say it for the fourth time, my submission is that that is not what I said and that is proven by the fact that the second last line doesn’t make sense.”

“penalties points”

102 A further issue raised by Mr Evatt related to Mr Jones’ inclusion of Melbourne as an ex-Super League team when he was comparing the penalties awarded by Mr Harrigan to ex-Super League teams and to ex-ARL teams (see paragraph 6.6). Melbourne was in fact a new team, and had not been in existence during the Super League/ARL split. However the evidence shows that Melbourne, although not part of Super League, was closely aligned to it. It was started by Mr Ribot (the initiator of Super League) and was financed by News Limited (the financer of Super League). Accordingly, if there were to have been an alignment of all NRL teams into ARL or Super League during the 1998 season, Melbourne would have been counted with the latter.

103 In all the circumstances, I do not consider that the errors or discrepancies discussed thus far can be taken to derogate from the substantial truth of the factual statements in Mr Jones’ broadcast.

104 However, as I have mentioned, a more serious error occurred in paragraphs 6.1 and 6.2 of the broadcast. Here Mr Jones said that Brisbane matches refereed by Mr Harrigan resulted in a points score of 108 to 18 in favour of Brisbane, but when Brisbane played against the same teams under the control of different referees, there was a points score of 72 to 107 against it. The fact is, however, that the matches played by Brisbane which led to this adverse point score, were not against the same teams as the matches which had been refereed by Mr Harrigan and which had led to the 108 to 18 point tally. This is established by paragraph 4 of Exhibit 3 (annexed). The teams played by Brisbane which were controlled by other referees were Manly, Parramatta (twice), St George and Sydney City. Only one of those teams, namely Manly, had played Brisbane in the matches refereed by Mr Harrigan and referred to in paragraph 6.1. In other words, they were by no means the same teams.

105 Mr Jones was asked about this by Mr Evatt and the following exchange took place: (T.258)

“Q. But you can use either page 2 of your original figures or E3. You can see that the 72 to 107 penalty points for and total penalty points against, 70 to 107. You can see that there?

A. Yes I can.

Q. They are the results of Brisbane matches lost to Manly lost to Parramatta, won against St George, lost to Sydney City and lost to Parramatta again, is that right?

A. Correct.

Q. They are not the same teams to which you referred in the first paragraph when those teams, being Brisbane playing Manly, Norths, Newcastle and Melbourne…

OBJECTION …

QUESTION ALLOWED

Q. They are not the same teams?

A. They are to me because my argument in the course of this has been the generic basis on the conflict between Super League and ex ARL teams, and that is evidenced in the document you are referring to in the heading “Brisbane Matches Versus ex ARL”. And the second heading says: “Brisbane Matches Against ex ARL”. The only thing is Harrigan is refereeing the first lot and not the second.

Q. In the second paragraph it says against the same teams, and they were not?

A. Generically they are, they were ex ARL teams and that is the reference I was making.

Q. You didn’t say that on the programme; “Oh, by the way listeners, I’m not speaking generically”, did you?

A. No, I did not.

Q. I know they would all understand that, but nonetheless you didn’t say it. Now, there’s one further thing: Will you agree with me that nongenerically they are different teams?

A. Correct.”

106 This is a serious error. The reference to the matches refereed by persons other than Mr Harrigan and played by Brisbane “against the same teams” immediately preceded Mr Jones’ comment about Mr Harrigan’s bias. The ordinary listener would have understood it to be an integral and significant component in the statistical ammunition which Mr Jones had obtained against Mr Harrigan. Accepting that these matches were not, in fact, against the same teams which were referred to in paragraph 6.1, it is impossible to conclude, in terms of section 30(2) that the statement of fact upon which the comment was said to be based, was a matter of substantial truth.

107 However, this is not the end of the matter. For it is in precisely this situation that, to use Mr McClintock’s words, section 30(3)(b) kicks in. I am told that this provision has not yet been the subject of judicial scrutiny, at least in any reported cases, as determinations under this section have, until recently, been within the province of the jury.

108 As I understand it, this provision requires the decision maker to embark upon an exercise which involves notionally deleting any inaccuracies in the factual material referred to in the publication, so that what remains is substantially true. Then, in relation to the substantially true portion, one is to ask whether the comment, as conveyed in the imputation, represents an opinion which might reasonably be held on the basis of that material.

109 The inaccurate portion in this case consists of those few words “against the same teams” in paragraph 6.2. As it happens, one can notionally delete those words and still be left with a meaningful sentence which accurately represents the true picture. Accordingly, I am satisfied that, without those words, “against the same teams” the statements of fact contained in paragraph 6.1, 6.2, 6.4, 6.6 and 6.7 are matters of substantial truth and are therefore, to that extent, proper material for comment.

110 The real question is whether Mr Jones’ comment that Mr Harrigan was biased and that he favoured Brisbane and other ex-Super League teams over their opponents was an opinion which “might reasonably be based on” that material.

111 The concept of reasonableness commonly has both an objective and a subjective component. However, the terms of section 30(3)(b) suggest that the test here is entirely objective. The question is not whether it was reasonable for Mr Jones to have reached a particular opinion on the basis of the material in his broadcast, but whether the opinion was such that it might reasonably be based on that material. This accords with the nature of the defence, for it is the impact upon the listener, and the listener’s capacity to draw his or her own conclusions, which is central to the defence of comment.

112 I have already found, in relation to the section 15 defence, that statistics of the nature of those contained in Exhibit 3 are inadequate to support an imputation of bias or favouritism. This finding alone would probably be sufficient to dispose of the present issue in favour of the plaintiff. For if the statistics were inadequate to prove that Mr Harrigan was biased or was showing favouritism, then it is difficult to see how they could provide a reasonable basis for an opinion to the same effect, particularly as some only of the figures were mentioned in the broadcast and were thus available to support Mr Jones’ opinion.

113 However, I would go further and say that, in addition to the incapacity of statistics generally to give rise to an opinion of bias, the particular statistics used in Mr Jones’ broadcast did not support his opinion to this effect. In order to explain this, it is necessary to return to the facts of this matter.

114 The factual basis for the comments contained in each of the three imputations is the same. It consists of the following propositions as set out in the broadcast:

· In the Brisbane matches played under Mr Harrigan, 33 penalties were awarded to Brisbane and 14 against.

· In the Brisbane matches played under Mr Harrigan, Brisbane scored 108 points and its opponents scored 18.

· In the Brisbane matches played under other referees, Brisbane scored 72 points and its opponents scored 107.

· In the 13 matches between ex-ARL and ex-Super League teams which were refereed by Mr Harrigan, ex-Super League teams were awarded 83 penalties and ex-ARL teams were awarded 56.

115 The mere fact that a referee awards more penalties to some teams than to others cannot, in my view, provide a reasonable basis for concluding that he is biased or partial in awarding penalties. The evidence clearly shows that it is the discipline and skill of the various teams that normally dictates the award of penalties, not the predilections of the particular referee. This applies both to the matches played by Brisbane and to the matches played between ex-Super League teams and ex-ARL teams. As for the number of points scored by the teams involved in these matches, this is even more remote from the issue of the referee’s fairness. It is difficult to see how any legitimate connection can be drawn between the point score of a game and the impartiality of the person who referees it. In this regard, I refer to Mr Mander’s evidence quoted at paragraph 40 above. Moreover, in this case the sample was extremely small, comprising (so far as points are concerned) a comparison between three games refereed by Mr Harrigan and five games refereed by others.

116 Given the lack of connection between the possible bias or partiality of a referee and the points scored in matches refereed by him, the conclusion that Mr Harrigan was biased or partial was not one which might reasonably be based on the factual material which was stated in the broadcast. In this regard it must be noted that the only comparison which was made between matches controlled by Mr Harrigan and those controlled by other referees related to the points scored, not to the penalties which were awarded. The fact that three Brisbane matches which were refereed by Mr Harrigan resulted in an overall points score which resoundingly favoured Brisbane, says nothing at all about his impartiality. Similarly, the fact that Brisbane scored fewer points than its opponents (not being the same opponents) in matches controlled by other referees, says nothing whatsoever about either their impartiality or about Mr Harrigan’s. Had the comparison between the matches refereed by Mr Harrigan and those refereed by others related to the same teams and been based on the penalties awarded, rather than the points scored, then the position might perhaps have been different. But in this case no comparison was drawn between the penalties awarded by Mr Harrigan and those awarded by other referees, only between the points scored by competing teams which were not in any event the same teams. This, as I have said, provided an entirely inadequate foundation for any adverse inference in relation to Mr Harrigan’s fairness as a referee.

117 In my view, it was not reasonable to conclude, on the basis of the material summarised in paragraph 110 above, that Mr Harrigan was biased as a referee or that he favoured Brisbane or other ex-Super League teams against their opponents in the sense that he showed favouritism towards them.

144 Mr Evatt urges that these considerations might be relevant to damages, but are irrelevant to the application of section 13. I agree with this submission.

145 It is highly questionable whether the first matter relied upon by Mr McClintock, namely that referees are frequently accused of bias, can avail a defendant under section 13. In Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80 - 691 Moffitt P, with whom Samuels and Priestly JJA agreed, said that the nature of the plaintiff’s reputation prior to the publication was not “a circumstance of the publication” and was therefore not relevant to a section 13 defence. His Honour pointed out that the person defamed is not involved in the act of communication. If any person’s individual qualities are to be taken into account as being part of “the circumstances of the publication” they can only be those of the person who made the publication or those who received it.

146 Mr Harrigan agreed in cross-examination that disappointed supporters of losing teams have often turned on referees and suggested that the outcomes of matches were the product of the referee’s bias. Mr Harrigan himself has, on numerous occasions, been subjected to criticisms of this nature. But it is difficult to see how this can be a “circumstance of the publication” so as to be relevant under section 13. And even if it were, it could not possibly, in my view, lead to a finding that Mr Harrigan was, for that reason, not likely to suffer harm as a result of this broadcast, given the breadth of its publication and the authority accorded to Mr Jones’ opinions. I therefore reject this as a basis for the application of section 13.

147 Mr McClintock also submitted that Mr Whittaker’s denial of any bias on the part of Mr Harrigan had the effect of neutralising Mr Jones’ adverse comments so that, taking the whole of the broadcast into account, Mr Harrigan was not likely to suffer harm from its publication.

148 The fact that Mr Whittaker was given an opportunity to come to Mr Harrigan’s defence is certainly a “circumstance of the publication” under section 13. His denials might well have served to diminish the harm done to Mr Harrigan as a result of the broadcast. But that is by no means enough. In order to attract section 13, it must be shown that the circumstances of the publication were such that the person defamed was not likely to suffer any harm at all.

149 It is to be remembered that Mr Jones’ broadcast had an estimated audience of some 250,000 people. The allegation of bias, conveyed in the first imputation, is a very serious one to make against a referee, particularly a referee of Mr Harrigan’s prominence. It was suggested to the jury in the section 7A hearing that Mr Whittaker’s denials so neutralised Mr Jones’ comments that the imputations of bias and favouritism could not be drawn from the broadcast when taken as a whole, or alternatively that the imputations were not defamatory of Mr Harrigan. The jury rejected these submissions. They found that the imputations did lie, and that they were defamatory of Mr Harrigan. Given these findings it is not possible, in my view, to conclude that the circumstances of the publication were such that Mr Harrigan was not likely to suffer harm.

150 I conclude my discussion of section 13 by observing that this provision was not designed to provide a defence in this type of case, given the breadth of the present publication and the serious nature of the imputations. In this regard, I would respectfully adopt Moffitt P’s observations in Chappell (at p.68,947):

“The apparent purpose of sec. 13 and its predecessors, despite some difference in their terms and application, was to give a defence to and hence discourage actions for trivial defamation. This will arise in particular where there is a limited publication. This will more often be the case where the defamation is oral but will sometimes extend to a written defamation. Examples of written defamatory imputations of trivial impact published by letter or circular to a limited or particular class of persons can be readily thought of.”

151 Accordingly, the defence under section 13 has not been made out. A verdict for the plaintiff must follow.

152 I turn to consider the question of damages.

Damages

153 The quantification of damages in defamation cases is an extremely difficult task. It involves translating concepts which, by their nature, are anything but concrete, into concrete figures. Moreover, there is no ascertainable range of damages in defamation as there is in many personal injury cases. The court is now required to consider “the general range of damages for non-economic loss in personal injury awards” (see section 46A(2) of the Act). These can provide valuable guidance in ensuring that the damages ultimately awarded are neither too high nor too low. And I respectfully agree with the need to ensure that there is a rational relationship between the scale of values in the two classes of case (per Mason CJ, Deane, Dawson and Gaudron JJ in Carson v John Fairfax & Sons Limited (1993) 178 CLR 44 at 58-59). But the court’s first task is to assess the appropriate amount of compensation in relation to the harm suffered by the particular plaintiff as a result of the particular defamatory publication. In making this assessment, it is difficult to draw meaningful parallels with personal injury cases, given that the harm to be compensated is so different.

154 Section 46 of the Act makes it clear, if this were needed, that damages for defamation are designed to compensate plaintiffs for the “harm” suffered as a result of the defamation. Exemplary damages are no longer available. Aggravated damages are only to be awarded to the extent that the defendant’s “malice or other state of mind” increases the harm suffered by the plaintiff.

155 Damages in defamation cases traditionally fulfil three purposes. They are: to console the plaintiff for hurt and distress suffered as a result of the publication; to compensate the plaintiff for harm to reputation; and to act as a vindication of the plaintiff’s reputation. The third of these, vindication, is not necessarily an independent head of damages. Rather, the Court must ensure that the final award is sufficient to vindicate the plaintiff’s reputation. If the amounts notionally awarded in relation to the first two components are insufficient to achieve this purpose, then a further amount must be added on this account.

156 Dealing first with damages for hurt feelings as applicable to this case: Mr Harrigan gave evidence about the distress he felt after learning of the broadcast and after receiving numerous comments relating to it over the following days and weeks. He also called evidence from other witnesses, including his partner Leslie Murray and his mother Joy Harrigan, as to comments which they heard about Mr Harrigan after the broadcast and repeated back to him. To use Ms Murray’s words, he was “horrified”.

157 Mr Harrigan was exercising at a gym when he was first told about the broadcast. From there he went home, where he was telephoned by his parents who expressed concern about him being labelled as biased. Later that day he went to the NRL office where a number of comments were passed about the broadcast. Mr Evatt asked Mr Harrigan whether he was upset by this. He replied; “Even though I know the way they said it it was more probably in a joking manner, enough was said that deep down it was hurtful. You take it on board”. (T.42)

158 In the following days, Mr Harrigan said, a number of relatives raised the matter with him. Some had heard the broadcast and others had heard about it. Mr Harrigan said; “It was getting to the stage where I was really upset about it because so many people were bringing it up, talking about it.” He went on to describe several comments which were made during the following weeks about his being biased which he said he found very upsetting. He was also anxious about the litigation and was very upset when he learned that the defendant had pleaded that the imputations were true. He was further distressed, he said, because of the falsity of the imputations.

159 On the basis of this evidence, Mr Evatt urges that substantial damages should be awarded to Mr Harrigan for the hurt and distress which he suffered as a result of the defamatory broadcast and its aftermath.

160 Mr McClintock submits that there are a number of factors which need to be taken into account in reduction of damages under this head. In this context he referred again to the evidence that referees, including Mr Harrigan, were often accused of bias by disgruntled supporters of losing teams. It was suggested that referees must develop thick skins in relation to allegations of bias, thereby reducing the upset caused by this defamation. Indeed only the previous week an article in the Sydney Morning Herald had expressed concern about the partiality of Mr Harrigan’s refereeing during the 1998 season.

161 The fact that Mr Whittaker vigorously defended Mr Harrigan and dismissed the possibility of bias was also, Mr McClintock submitted, a matter to be taken into account when assessing the hurt to Mr Harrigan’s feelings. Mr McClintock asked Mr Harrigan about this in his cross-examination. He suggested that Mr Whittaker’s rejection of Mr Jones’ criticisms would have substantially reduced any damage to him from the broadcast. Mr Harrigan disputed this, and said that what Mr Jones said far outweighed Mr Whittaker’s denials. He did not agree that these denials made him feel any better about the broadcast.

162 Mr Harrigan said in his evidence that he was upset by Mr Jones’ failure to apologise. However Mr McClintock urges, with some force, that any increase to Mr Harrigan’s hurt on this account was more than offset by other events following the broadcast, particularly Mr Harrigan’s delay in complaining to Mr Jones, and his failure to take up Mr Jones’ offer to have Mr Harrigan put his side of the story in a later broadcast.

163 I do not propose to describe the course of the correspondence in great detail. But some outline of it is necessary.

164 The first complaint to Mr Jones about the broadcast was contained in a letter dated 5 February 1999 from Mr Harrigan‘s solicitors, Williamsons, to Mr Jones. The letter claimed that the broadcast was defamatory of Mr Harrigan and expressed his preference that the matter be dealt with by way of an apology and payment of suitable compensation. In the event that the matter was not settled, the letter indicated that proceedings would be commenced. No reply was received from Mr Jones, and on 5 March 1999 Williamsons sent a copy of the letter to him “in case it went astray in the post”.

165 Mr Jones referred Williamsons’ letter to his solicitors, Bush Burke & Company. It is apparent that negotiations then took place between the solicitors but these came to nothing. On 14 April 1999 Bush Burke & Company wrote to Williamsons in the following terms:

“We refer to our various discussions in this matter. We confirm our previous advice that we do not consider the financial demands made by your client to be appropriate.

Notwithstanding that your client’s complaint was received approximately five months after the date of the broadcast of which he complains, our client remains prepared to broadcast any suitable material, including an interview with your client, which explains the matter or offers your client the opportunity to deal with the issue generally or specifically.”

166 Mr Harrigan did not take up this offer.

167 On 21 July 1999 Mr Harrigan’s agent, Mr Karandonis, wrote to Mr Conde, the chairman of 2UE, proposing that a meeting take place between them and Mr Harrigan’s solicitor. The letter detailed in strong terms the damage which Mr Harrigan was said to have suffered as a result of the broadcast. The letter referred to Mr Jones’ “current difficulties” and contained a veiled threat that Mr Harrigan would give information to the press about Mr Jones abusing his position as a broadcaster in order to further his own interests unless the issues arising from the defamatory broadcast were amicably settled. Mr Jones responded to this letter on 23 July 1999 expressing surprise at the terms of the letter and saying that he would get back to Mr Karandonis the following week. No response was received from Mr Conde. These proceedings were commenced on 28 October 1999.

168 Mr McClintock made a number of points about this correspondence. First, he relied on the five month delay between the broadcast and the first complaint to Mr Jones, and the subsequent delay before the commencement of the proceedings. He said that if Mr Harrigan had been truly upset by the broadcast he would not have allowed these delays to occur. Further, Mr McClintock relied on Mr Harrigan’s failure to take up Mr Jones’ offer to participate in a broadcast and give his own side of the matter. Finally, he criticised Mr Harrigan for the terms in which Mr Karandonis had written to Mr Conde. He put to Mr Harrigan in cross-examination that the letter constituted an attempt to blackmail Mr Jones. Mr Harrigan denied this. He said that he did not see Mr Karandonis’ letter before it was sent. Indeed, he was not certain whether he had ever seen it.

169 Whilst Mr Harrigan was technically responsible for the letter written by his agent, Mr Karandonis, I do not think it appropriate to use the contents of that letter against him in these proceedings, given that he did not know of them at the time. However, the other matters raised by Mr McClintock are relevant to the extent of the hurt and distress suffered by Mr Harrigan as a result of the broadcast and I propose to take them into account.

170 I turn to discuss the injury to Mr Harrigan’s reputation. The law presumes that a plaintiff’s reputation has been damaged by a defamatory publication. It is unnecessary to adduce evidence of injury to reputation. Indeed, apart from Mr Harrigan’s description of adverse comments being made to him shortly after the broadcast, no such evidence has been adduced in this case.

171 Mr McClintock submits that Mr Harrigan’s professional reputation cannot have suffered as a result of Mr Jones’ broadcast. Mr Harrigan has, to use Mr McClintock’s words, gone from strength to strength as a referee since 1998. He is now indisputably the most prominent referee in Australia and was even described by Mr Mander as “probably one of the best referees ever.” On the other hand, it must be remembered that the very high reputation which Mr Harrigan now enjoys has been earned by his continuing efforts during the lengthy period - nearly three years - which has elapsed since the broadcast. The fact that he is now, as a result of these efforts, at the peak of his profession, does not mean that he suffered no damage to his professional reputation as a result of the broadcast. Moreover, a person’s reputation extends well beyond their professional reputation. The NRL officers who select referees for rugby league matches clearly hold Mr Harrigan in the highest regard. He has earned this regard by dint of hard work and commitment, as described in his evidence. But it by no means follows that there is no continuing taint to his reputation as a result of the defamatory broadcast.

172 It is necessary here to return to an issue which I adverted to earlier in this judgment, namely the meaning to be accorded to the first imputation that “the plaintiff carries out his duties as a referee in a biased manner”. As I indicated then, Mr McClintock submitted that, following a judgment of Studdert J delivered on 8 March 2000, the defendant’s case was framed on the basis that this imputation related only to unconscious, rather than conscious, bias.

173 Quite a lengthy discussion took place between Mr McClintock and myself on this subject. He suggested that a preference for one side or the other (or a “bias”) can come from a lack of objectivity rather than from any deliberate or preconceived preference. This, he suggested, is the meaning to be attributed to the first imputation. It therefore carried little sting, and sounds in a relatively low amount of damages.

174 As I commented earlier, this situation illustrates the difficulties which can arise when different tribunals are called upon to determine different but interlocking aspects of defamation cases. Under the previous system, the jury would have determined matters relating to the meaning of the imputations and would then have gone on to assess damages. In this case I can draw no assistance from the jury’s findings. Accordingly, I must determine for myself what the defamatory imputation means. Or, more accurately, I must determine what the listeners to the broadcast would have taken it to mean, bearing in mind the terms of the broadcast itself. (see Hepburn v TCN Channel 9 Pty Ltd [1983] 2 NSWLR 664).

175 The word “bias” is the operative word in the imputation and was also used by Mr Jones in the broadcast. According to the Macquarie Dictionary, its meaning, as relevant here is “a precise tendency or inclination, especially one which prevents unprejudiced consideration of a question.” The word “prejudice”, as relevant here, means “any preconceived opinion or feeling, favourable or unfavourable”. According to the Oxford English Dictionary, Second Edition, a “bias” is “an inclination, leaning, tendency, bent; a preponderating disposition or propensity; predisposition towards; predilection; prejudice”. “Prejudice” is defined as “a preceding judgment or decision”.

176 In my view the word “bias” would have connoted to the majority of listeners of the broadcast something more than a mere lack of objectivity on the part of Mr Harrigan. They would have taken it to mean, at the very least, that Mr Harrigan was predisposed towards particular teams, and that this predisposition led to his treating those teams more favourably than their opponents.

177 It must also be remembered that different people will attach different nuances of meaning to the same phrase. There is obviously a difference between an entirely objective referee on the one hand, and one who is deliberately biased on the other. They are at opposite ends of the spectrum. But the line between them is an unbroken one, and not all the listeners to Mr Jones’ broadcast would have placed Mr Harrigan at the same point on that line as a result of Mr Jones’ comments. Some might have taken them to mean that Mr Harrigan merely lacked objectivity, whereas others might have taken them to denote a deliberate bias in favour of Brisbane and the other ex-Super League teams. Others might have taken them to denote a position somewhere between the two.

178 Even taking the imputation at its lowest level, as denoting an unconscious bias or a mere lack of objectivity, this was still a serious allegation to make against Mr Harrigan as a leading rugby league referee. It reflected on his professional integrity and, by extension, on his integrity generally. To listeners who might have taken a more serious view of the imputation, the reflection on Mr Harrigan’s integrity was correspondingly greater.

179 To conclude this aspect, whilst the external consequences of the defamatory broadcast can never precisely be known, it is highly probable that Mr Harrigan’s reputation, both professional and personal, was seriously diminished in the minds of a large sector of Mr Jones’ listening audience. In this regard, a publication of the defamatory material to 250,000 people constituted a very wide area of publication. And whilst some of the listeners no doubt knew little about rugby league and had never heard of Mr Harrigan before, for many of them he was a prominent participant in a much loved sport. For those people, the broadcast was likely to have seriously affected Mr Harrigan’s reputation.

Conclusion

180 I turn now to the range of damages for non-economic loss in personal injury awards, as I am obliged to do under section 46A(2). Where there is no applicable statute limiting the amount that may be awarded, I understand that a maximum award of general damages would be in the order of $400,000. But this would be reserved for the most serious of cases, involving catastrophic consequences for the plaintiff. Under section 151G of the Workers Compensation Act 1987 the maximum amount which may be awarded for non-economic loss is $252,550 which may be awarded only in “a most extreme case”. Under section 79A of the Motor Accidents Act 1988 the maximum amount that may be awarded for non-economic loss, also reserved for the most extreme cases, is $284,000. It goes without saying that the harm suffered by Mr Harrigan as a result of the defamatory broadcast can in no way be compared with the calamitous injuries suffered by plaintiffs who receive damages in this order.

181 The jury found that the broadcast conveyed three defamatory imputations. Mr Harrigan therefore has three causes of action against Mr Jones and is entitled to damages in relation to each of them. However in the case before me, little differentiation has been drawn between these three imputations. The first imputation, of bias, has generally be treated as a more serious version of the second and third imputations, of favouritism.

182 It is very difficult for judges to make abstract assessments in the early stages of defamation cases as to whether particular imputations differ in substance for the purposes of Pt.67 r.11 of the Supreme Court Rules. With the benefit of hindsight, it might well have been found in this case that there was no substantial difference between the first imputation on the one hand and the second and third imputations on the other. The real sting of the broadcast was conveyed through the first imputation, namely that Mr Harrigan was biased as a referee.

183 Given this background, it is the overall award of damages, for all three imputations, which must reflect the appropriate amount of compensation, rather than the individual amounts awarded for each imputation. The overall figure must be sufficient to compensate Mr Harrigan for his hurt feelings and for the damage to his reputation, and must also be sufficient to vindicate his reputation to the public. In my view the amount of $90,000 is an appropriate award in this respect, representing an award of $60,000 in relation to the first imputation and $15,000 in relation to each of the second and third imputations.

184 As to costs, I consider that Mr Harrigan had sufficient reason for commencing these proceedings in this Court. Damages were at large, and an important part of his action was the vindication of his reputation. Accordingly, in the absence of any submissions to the contrary, I propose to order that the defendant pay the plaintiff’s costs on a party and party basis. However, I shall defer making an order to that effect in case the parties wish to make further submissions on costs.

185 I will also reserve the question of interest so that submissions can be made by the parties.

186 The orders of the Court are as follows:

1. Verdict for the plaintiff in the sum of $60,000 in relation to the first imputation and $15,000 in relation to each of the second and third imputations.

**********

“ ANNEXURE ”

PARAGRAPH 1

BILL HARRIGAN - 1998 Record

MATCHES CONTROLLED BETWEEN ex-ARL TEAMS & ex-SUPER LEAGUE TEAMS by BILL HARRIGAN this year

· 13 matches
· on 10 of those occasions the ex-Super League team has won the penalty count
· On 1 occasion the penalties were tied
· only twice has an ex-ARL team won the penalty count under HARRIGAN

***

PARAGRAPH 2

HARRIGAN / BRONCOS - 1998

ALL BRISBANE MATCHES PLAYED UNDER BILL HARRIGAN (1998)
· 4 matches
· Total Penalties For: 33
· Total Penalties Against: 14
· Difference: 19 - almost 5 penalties per match in favour of Brisbane

***

PARAGRAPH 3

BRISBANE MATCHES v ex-ARL FINAL 10 TEAMS
(controlled by BILL HARRIGAN)
· Beat Manly in Round 1 22-6 (penalties 16-6)
· Beat Norths in Round 7 60/6 (penalties 8-3)
· Beat Newcastle in Round 8 26-6 (penalties 5-4)

Total Penalties For: 29
Total Penalties Against: 13

***

PARAGRAPH 4

BRISBANE MATCHES v ex-ARL FINAL 10 TEAMS
(matches not controlled by Harrigan)
· Lost to Manly in Round 6 28-4
· Lost to Parramatta in Round 13 20-16
· Beat St George Round 16 30-18
· Lost to Sydney City 26-12
· Lost to Parramatta - Quarter final 15-10

***

PARAGRAPH 5

HARRIGAN/MELBOURNE STORM - 1998

Bill Harrigan’s Matches - 1998 Season
(up to and including August 29 1998)

Date	Home Team	Opponent	Venue	Result	Points For Again	Penalties For Again	Total Penalties
13/03/98	Brisbane	Manly	ANZ	W	22	6	16622
21/03/98	Penrith	Canberra	Penrith	W	28	24	8513
27/03/98	Adelaide	Canterbury	Adelaide	W	22	20	9514
03/04/98	Manly	Parramatta	Brookvale	L	10	34	6612
10/04/98	Auckland	Melbourne	Ericsson	W	16	12	3912
18/04/98	Cronulla	Balmain	Shark Park	L	10	11	213
26/04/98	Brisbane	Norths	ANZ	W	60	6	8311
01/05/98	Newcastle	Brisbane	Marathon	L	6	26	459
08/05/98	Melbourne	St George	Olympic Park	L	14	18	9413
17/05/98	Penrith	Balmain	Penrith	W	32	18	5510
29/05/98	Sydney City	Newcastle	Stadium	L	4	20	639
12/06/98	Sydney City	Cronulla	Stadium	W	18	14	437
28/06/98	Newcastle	Parramatta	Marathon	W	36	12	123
3/07/98	Brisbane	Melbourne	ANZ	W	34	16	415
12/07/98	St George	Norths	Kogarah	W	22	14	5510
18/07/98	Canterbury	Parramatta	Belmore	L	6	7	325
24/07/98	Melbourne	Newcastle	Olympic Park	W	32	16	7310
31/07/98	Auckland	North Qld	Ericsson	W	34	18	4610
09/08/98	St George	Canterbury	Kogarah	L	16	28	3710
16/08/98	Manly	North Qld	Brookvale	W	28	12	10313
21/08/98	Melbourne	Canberra	Olympic Park	W	16	12	7310
28/08/98	Canberra	Manly	Bruce	W	17	4	7512
18192223

MATCHES BETWEEN EX-SUPER LEAGUE TEAMS AND EX-ARL TEAMS CONTROLLED BY BILL HARRIGAN FOR 1998

DATE	HOME TEAM	OPPONENT	VENUE	RESULT	PENALTIES	TOTAL PEN
13/3/98	Brisbane	Manly	ANZ	Bris 22-6	Bris 16-6	22
18/4/98	Cronulla	Balmain	Shark Park	Balm 11-10	Cron 2-1	3
26/4/98	Brisbane	Norths	ANZ	Bris 60-6	Bris 8-3	11
1/5/98	Newcastle	Brisbane	Marathon	Newc 26-6	Bris 5-4	9
8/5/98	Melbourne	St George	Olympic Park	St Geo 18-14	Melb 9-4	13
17/5/98	Penrith	Balmain	Penrith Park	Pen 32-18	Equal 5-5	10
12/6/98	Sydney City	Cronulla	SFS	Cron 18-14	Syd C 4-3	7
18/7/98	Canterbury	Parramatta	Belmore	Parra 7-6	Cant 3-2	5
24/7/98	Melbourne	Newcastle	Olympic Park	Melb 32-16	Melb 7-3	10
9/8/98	St George	Canterbury	Kogarah	St Geo 28-16	Cant 7-3	10
16/8/98	Manly	Nth Queens	Brookvale	Man 28-12	Man 10-3	13
28/8/98	Canberra	Manly	Bruce	Canb 17-4	Canb 7-5	12
TOTAL PENALTIES	HOME 78 AWAY 47	125
EX-SUPER LEAGUE PENALTIES 75 EX-ARL PENALTIES 50 50% MORE TO EX-SUPER LEAGUE TEAMS

1998 BRISBANE GAMES CONTROLLED BY BILL HARRIGAN

DATE	HOME	AWAY	VENUE	RESULT	PENALTIES	TOTAL
13/3/98	Brisbane	Manly	ANZ	Brisbane 22-6	Brisbane 16-6	22
26/4/98	Brisbane	Norths	ANZ	Brisbane 60-6	Brisbane 8-3	11
1/5/98	Newcastle	Brisbane	Marathon	Brisbane 26-6	Brisbane 5-4	9
3/7/98	Brisbane	Melbourne	ANZ	Brisbane 34-16	Brisbane 4-1	5
Total Penalties	Brisbane 33 Others 14
19 More penalties to Brisbane than opposition over 4 games an average of nearly 5 more per game

Last Modified: 07/30/2001

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Citations

Harrigan v Jones [2001] NSWSC 623

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CITATION:	Harrigan v Jones [2001] NSWSC 623
CURRENT JURISDICTION:	Common Law Division Defamation List
FILE NUMBER(S):	SC 20486/99
HEARING DATE(S):	25/06/01-02/07/01
JUDGMENT DATE:	27 July 2001
PARTIES :	Bill Harrigan - Plaintiff Alan Jones - Defendant
JUDGMENT OF:	Mathews AJ

COUNSEL :	C Evatt; M Rollinson - Plaintiff B McClintock SC; BA Connell - Defendant
SOLICITORS:	Williamsons Solicitors - Plaintiff Bush Burke & Company - Defendant
CATCHWORDS:	DEFAMATION - Defences - JUSTIFICATION - Defamation Act 1974, s 15 - truth based on statistical information - defendant claimed statistics showed referee was biased - held, statistical information inadequate to prove the truth of the imputations - COMMENT - Defamation Act 1974, s 32 - whether imputations were opinion or statements of fact - held, imputations were opinion - whether comment was based on proper material for comment - s 30 - some factual statements not substantially true - whether comment represented an opinion which might reasonably be based on material which was substantially true - s 30(3)(b) - objective reasonableness - held, material not reasonably capable of supporting opinion - QUALIFIED PRIVILEGE - Defamation Act 1974, s 22(1)(c) - whether defendant’s conduct reasonable in the circumstances - defendant’s conclusions did not follow logically, fairly or reasonably from information provided - held, defendant’s conduct not reasonable - UNLIKELIHOOD OF HARM - Defamation Act 1974, s 13 - whether denial of defamatory statement by third party neutralised sting - defence not made out - DAMAGES - Defamation Act 1974, ss 46, 46A - relevant considerations
LEGISLATION CITED:	Defamation Act 1974 Workers Compensation Act 1987 Motor Accidents Act 1988
CASES CITED:	Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 NSW Aboriginal Land Council v Perkins (1998) 45 NSWLR 340 Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171 Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 Morgan v John Fairfax & Sons Ltd [No 2] (1991) 23 NSWLR 374 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Stephens v Western Australia Newspapers (1994) 182 CLR 211 Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80 - 691 Carson v John Fairfax & Sons Limited (1993) 178 CLR 44 Hepburn v TCN Channel 9 Pty Ltd [1983] 2 NSWLR 664
DECISION:	Verdict for the plaintiff in the sum of $60,000 in relation to the first imputation and $15,000 in relation to each of the second and third imputations; I reserve the questions of interest and costs until a date to be fixed.