John Fairfax Publications Pty Ltd v O'Shane (No 2) - [2005] NSWCA 291

NEW SOUTH WALES COURT OF APPEAL

CITATION: John Fairfax Publications Pty Ltd v O'Shane (No 2) [2005] NSWCA 291

FILE NUMBER(S):
40208/04

HEARING DATE(S): On papers.

JUDGMENT DATE: 31/08/2005

PARTIES:
John Fairfax Publications Pty Limited (A)
Patricia June O'Shane (R)

JUDGMENT OF: Giles JA Ipp JA Young CJ in Eq

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): 20527/00

LOWER COURT JUDICIAL OFFICER: Smart AJ

COUNSEL:
B Walker SC and R Glasson (A)
B R McClintock SC and R Weaver (R)

SOLICITORS:
Freehills (A)
Aitken McLachlan Thorpe (R)

CATCHWORDS:
DEFAMATION- Damages- Appellant's appeal on defence of comment partially successful- Four of eight imputations remaining- Whether reduction in number of imputations necessarily reduces damages- Whether appropriate to assess damages with reference to other defamation cases- Discussion of application of s 46A Defamation Act. ND

LEGISLATION CITED:
Defamation Act 1974, ss 9, 46, 46A

DECISION:
(1) Judgment for the plaintiff for $175,000
(2) Defendant pay the plaintiff's costs of the proceedings at first instance
(3) Respondent pay 25% of the appellant's costs of the appeal and have a certificate under the Suitors Fund Act if otherwise qualified

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40208/04
SC 20527/00
GILES JA
IPP JA
YOUNG CJ in Eq
Wednesday 31 August 2005

JOHN FAIRFAX PUBLICATIONS PTY LIMITED v PATRICIA JUNE O'SHANE (NO 2)

Judgment

GILES JA: These reasons should be read together with the reasons published on 17 May 2005 [2005] NSWCA 164. A jury found that an article published by the appellant carried imputations (a) to (h) defamatory of the respondent. Smart AJ found against defences of comment and qualified privilege and assessed damages in respect of the imputations. We upheld the defence of comment in relation to imputations (c), (f), (g) and (h). Damages in respect of imputations (a), (b), (d) and (e) therefore had to be reassessed, and the parties agreed that we should reassess them. Written submissions were provided as to damages, and also as to costs. The respondent suggested some time for oral submissions, but I do not think oral submissions necessary.
The article and the imputations are set out in our earlier reasons. Imputations (a), (b), (d) and (e), repeated for convenience, were -
(a) the respondent, when acting as a magistrate, is biased;
(b) the respondent is biased against police;
(d)the respondent, in breach of her duty as a magistrate to consider criminal charges in accordance with the law, knowingly dismissed charges against four women who pleaded guilty to defacing a billboard when she should have found them guilty and awarded costs and damages against them; and
(e)the respondent, in breach of her duty as a magistrate to consider criminal charges in accordance with the law, knowingly dismissed offensive language charges against Aborigines because she believed the charges were a habitual form of police harassment.
The purpose of the damages is to console the respondent for her hurt and distress suffered as a result of the publication of the article, to compensate her for harm to her reputation, and to provide vindication of her reputation: see Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 69. There is no market value for reputation, hence it is often said that the damages are “at large”. In Crampton v Nugawela (1996) 41 NSWLR 176 Mahoney ACJ said at 195 that the law should place a high value upon reputation, and in particular upon the reputation of those whose work and life depend upon their honesty, integrity and judgment. These words apply to the respondent. The damages must also be a sufficient amount to make clear the vindication of her reputation, see Carson v John Fairfax & Sons Ltd at 61; Crampton v Nugawela at 195.
By s 46 of the Defamation Act 1974, the respondent’s damages are limited to damages for “relevant harm”, meaning harm suffered by her. By s 46A, the court is to ensure that there is “an appropriate and rational relationship between the relevant harm and the amount of damages awarded”, and to take into consideration the general range of damages for non-economic loss in personal injury awards in the State.
The respondent had a significant and prominent reputation. I do not understand Smart AJ’s summation to have been disputed -
“214. The plaintiff submitted, correctly, that she enjoyed a high public profile. After a teaching career in Queensland she studied and graduated in law. She was admitted to the Bar and practised her profession. This was a considerable achievement. She held a number of senior Government appointments culminating in her appointment as the permanent Head of the Ministry of Aboriginal Affairs under the Wran Government. In 1986 she was appointed a Local Court Magistrate and has continued in that office.
215. She has been active in many areas of public life and held senior positions with various organisations and official bodies. She has been awarded an Honorary Doctorate of Law from three universities in New South Wales She was Chancellor of the University of New England. She has worked hard for the advancement of Aboriginal communities and the rights of women. She has been a vigorous and outspoken campaigner. She received glowing references from Ms S Ryan, a former Federal Minister for Education and now President of Superannuation Trustees, Mr E G Whitlam, a former Prime Minister and Ms J Milledge, a magistrate since 1996 and Senior Deputy State Coroner. Prior to her appointment to the Local Court Ms Milledge had served as a police officer for 24 years, sixteen of those as a police prosecutor. She commonly appeared before the plaintiff and noticed nothing untoward about the plaintiff's treatment of police nor any untoward favour towards members of the Aboriginal community.
…
217. I accept that the plaintiff's reputation was and is a very important part of her life. So also were her campaigns to improve the lot of Aborigines, to fight against police harassment of Aborigines and the misuse of police powers, to stop violence against women in all its forms and to redress the balance in what she regarded as a male dominated society. She was passionate and outspoken about the causes in which she believed. The advancement and success of the causes in which she believed were just as important to her as her reputation. Her reputation was important in the advancement of those causes. … “
Remembering that Smart AJ had in mind all the imputations found by the jury, his Honour did not accept that the hurt and injury to her feelings from the article was of the order suggested by the respondent, and considered that her hurt was not solely due to the article. He considered that, apart from the article, the respondent was “troubled by the reactions to her decision of 29 November 1999 and what she had said” (at [231]: the Kanaan decision, see the earlier reasons). He referred to the respondent as “a lady of considerable resilience” (at [192]), and said that she “indicated that she had developed some resilience with which to withstand criticism” (at [231]). His Honour nonetheless accepted that the article added to the respondent’s hurt and distress and did occasion her hurt and injury to her feelings, observing that “the imputations of bias, knowingly acting contrary to law, incompetency, undermining the judicial system and allowing her extreme views to affect her judgment have a major sting”.
The defence of comment was upheld as to some of the imputations last-mentioned, but it remains that imputations (a), (b), (d) and (e) were serious reflections upon the respondent. The assertion that a judicial officer is biased and knowingly acts contrary to her judicial duty goes to the root of her personal and professional integrity and standing. The article was published in a major newspaper, and that and the respondent’s high public profile made its publication all the more damaging.
The appellant nonetheless submitted that, for a collection of reasons, it should be found that the respondent suffered little, if any, relevant harm. It said that Smart AJ had not accepted her evidence of the level of her hurt and distress or that it was all attributable to the article, and that what the respondent said and did on 29 November 1999, and other publications described in Smart AJ’s reasons, made a major contribution thereto. It emphasised the resilience to which Smart AJ referred. It said that, as Smart AJ had noted, the respondent had been unable to recall the names of any person who spoke to her about the article following its publication, that none of the respondent’s witnesses gave evidence that they had read the article or thought less of the respondent as a result of it, and that those witnesses gave evidence that the respondent had been and continued to be widely admired in the circles in which they moved. In particular, Ms Margaret Throsby said that she had read the article and that it did not affect her view of the respondent.
The relevant harm is that resulting from imputations (a), (b), (d) and (e). The appellant submitted that imputations (c), (f), (g) and (h) also made serious allegations against the respondent and, in effect, that it was necessary to carve out from the impact upon the reasonable reader of the article as a whole the impact of imputations (a), (b), (d) and (e); there was a suggestion that the damages assessed by Smart AJ were to be taken as a starting-point and adjusted in the light of this Court’s earlier decision. I do not think that is correct. The damages must be assessed not by a process of subtraction, either from all the imputations or from Smart AJ’s assessment, but afresh and putting out of mind the imputations held to have been justified as comment: see Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 557, 602-3; Selecta Homes and Building Co Pty Ltd v Advertiser-News Weekend Publishing Co Pty Ltd (2001) 79 SASR 451 at [144]-[148].
The appellant did not dispute that the falsity of the imputations and its failure to apologise could give rise to aggravated damages, although submitting that any aggravation was minimal. It said that the only evidence of the falsity of the imputations was that given by the respondent in her evidence in chief; I do not see why that was not sufficient, but I accept that falsity was also supported by the evidence of Ms Milledge. In my opinion, aggravated damages are warranted.
Even upon Smart AJ’s discounting of the respondent’s assertion of the hurt and injury occasioned to her, and allowing for some resilience, imputations (a), (b), (d) and (e) must have been significantly harmful to the respondent’s reputation and must have been productive of hurt and distress; they require forthright vindication of the respondent’s reputation. The step to a figure can not readily be explained. I consider that the purpose of the award of damages will be achieved by the damages, including aggravation, of $175,000 proposed by Young CJ in Eq. I do not think that is out of step with the general range of damages for non-economic loss in the State.
It was necessary for the respondent to bring her proceedings in order to obtain compensation and vindication, and I do not think the fact that half of the imputations found by the jury have been held defensible means that she should obtain less than all her costs of the proceedings at first instance. The appeal was upheld in part, although the appellant was unsuccessful on its more prominent challenge to the decision as to qualified privilege; but it succeeded as to half the imputations and has achieved a reduction in the damages awarded. In my opinion, a just disposition of the costs of the appeal is that the respondent should pay 25 per cent of the appellant’s costs.
I propose the orders, additional to those made on 17 May 2005 -
1.Judgment for the plaintiff for $175,000;
2.Defendant pay the plaintiff’s costs of the proceedings at first instance; and
3.Respondent pay 25 per cent of the appellant’s costs of the appeal and have a certificate under the Suitors Fund Act if otherwise qualified.
IPP JA: I agree with Giles JA.
YOUNG CJ in EQ: The Court gave judgment on 17 May 2005. The appeal was from a decision of Smart AJ, who awarded the respondent $220,000 damages for defamation. The Court set aside Smart AJ's orders, found a verdict for the appellant/defendant in respect of four imputations and let the verdict stand in respect of four others, viz imputations (a), (b), (d) and (e) which are set out below.
We reserved further consideration of questions as to quantum of damages and costs.
By agreement between the parties, we are to assess the damages ourselves on the basis of the written submissions which counsel have provided.
It almost goes without saying that the exercise with which we are currently involved is a different exercise to that which we considered (but then put to one side) when considering our initial judgments. At that time our minds were focused on the question as to whether the order of Smart AJ was within the permissible range. The present matter before us is what we consider as primary judges should be the proper amount of damages to be awarded to the respondent.
I will not set out again the matters which were canvassed in our original reasons for judgment, but it is necessary to set out the imputations (a), (b), (d) and (e). These were as follows:
"(a) the respondent, when acting as a magistrate, is biased;
(b) the respondent is biased against police;
(d)the respondent, in breach of her duty as a magistrate to consider criminal charges in accordance with the law, knowingly dismissed charges against four women who pleaded guilty to defacing a billboard when she should have found them guilty and awarded costs and damages against them; and
(e)the respondent, in breach of her duty as a magistrate to consider criminal charges in accordance with the law, knowingly dismissed offensive language charges against Aborigines because she believed the charges were a habitual form of police harassment."
I should note that the imputations which Smart AJ found but on which we reversed him, (c), (f), (g) and (h), alleged that the respondent, when acting as a magistrate, allowed an attitude of anger and bitterness to affect her judgment, that she was incompetent, that she undermined the judicial system and that she was unfit for office as a magistrate because she allows her extreme views to affect her judgment.
It is appropriate to commence this set of reasons by considering the general principles applicable to assessing damages in defamation cases.
The majority of the High Court in Carson v John Fairfax & Sons Limited (1993) 178 CLR 44 at 60-1 said:
"Specific economic loss and exemplary or punitive damages aside, there are three purposes to be served by damages awarded for defamation. The three purposes no doubt overlap considerably in reality and ensure that 'the amount of a verdict is the product of a mixture of inextricable considerations'. The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant's personal and (if relevant) business reputation and vindication of the appellant's reputation (see Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR at 150). The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant. Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant's reputation. (See Carson (1991) 24 NSWLR at pp 296-299)."
The High Court adopted with approval the statement that currently appears in Fleming, Law of Torts, 9th ed (1998) p 658 as to relevant matters in assessing the quantum of damages necessary to vindicate the appellant:
"The gravity of the libel, the social standing of the parties and the availability of alternative remedies … ."
However, as Lord Hailsham said in Broome v Cassell & Co Ltd [1972] AC 1027 at 1072, "The whole process of assessing damages is essentially a matter of impression and not addition."
It has often been said that " … the law should place a high value upon reputation and in particular upon the reputation of those whose work and life depend on their honesty, integrity and judgment"; see eg per Mahoney ACJ in Crampton v Nugawela (1996) 41 NSWLR 176 at 195 and recently applied by Buddin J in Konstantinidis v Foreign Media Pty Limited [2004] NSWSC 835.
In Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327, Callinan and Heydon JJ paid some regard to previous verdicts in defamation cases and noted that it was not unknown for doctors to receive awards in the $200,000 to $600,000 range. Assuming that this is now a valid approach, I might note that, although most of the successful plaintiffs in such cases were doctors, large verdicts were awarded to solicitors in Carson and in Konstantinidis and to a doctor who was principally defamed as a company director in John Fairfax & Sons Ltd v Vilo (2001) 52 NSWLR 373.
The Court must, when assessing damages in this type of case, pay due regard to s 46A of the Defamation Act 1974. That section provides as follows:
"46A.(1) In determining the amount of damages to be awarded in any proceedings for defamation, the court is to ensure that there is an appropriate and rational relationship between the relevant harm and the amount of damages awarded.
(2) In determining the amount of damages for non-economic loss to be awarded in any proceedings for defamation, the court is to take into consideration the general range of damages for non-economic loss in personal injury awards in the State (including awards made under, or in accordance with, any statute regulating the award of any such damages)."
Although this section has been in the Act since 1994, it has not received a lot of consideration, and indeed, it does not appear to have been considered by those courts which have analysed it to be a substantial brake on awards of damages.
Section 46A was considered in depth by the High Court in Rogers v Nationwide News Pty Ltd.
The principal judgment on this issue was that of Hayne J with which Gleeson CJ and Gummow J agreed in part. Heydon J, at 384ff, with whom Callinan J generally agreed, made some observations on the section, but considered that, because of the way the trial was conducted, it had little relevance in the case before the High Court.
In Rogers a doctor, though not named, had been defamed by a sidewind in a front page article in the Sydney Daily Telegraph. Tupman DCJ awarded him damages of $250,000. The Court of Appeal considered the award excessive and reduced it to $75,000. The High Court restored the District Court award on the basis that no error had been demonstrated.
Reference to one case on quantum is, of course, of little worth by itself. However, the approach of the High Court to the problem and particularly the observations about s 46A are of considerable interest. Apparently unlike Rogers, s 46A was to the fore on submissions on damages in the present appeal.
In Rogers at p 352, Hayne J said of s 46A:
“In the end, what s 46A draws to attention is that damages awarded for defamation must take their proper place in the administration of justice. In particular, they must stand in a proper relationship with awards for the non-economic consequences of personal injury. The relationship which s 46A(2) identifies is not, however, some precise or mathematical relationship between particular cases of defamation and personal injury or between particular classes of such cases. To do that would compare the incomparable. Nonetheless, s 46A(2) should be understood as having two particular consequences of relevance to the present appeal.
First, it invites attention to the nature of the injury done by defamation compared with the consequences of physical injury. The injury done by defamation, even if serious, is often evanescent. By contrast, some personal injuries are permanent and devastatingly disabling. One of the principal purposes of an award of damages for defamation is to vindicate the wrong that was done. By contrast, damages for personal injury can compensate, but cannot right the wrong that was done. Yet, in neither defamation nor in personal injuries is there any measure by which the compensation for the non-pecuniary loss which the particular plaintiff has suffered can be assessed except what is 'reasonable'.
The second effect of s 46A(2) flows from both the reference to the 'general range' of damages allowed in personal injury cases and the inclusion, within the class of personal injury cases to be considered, of cases where the damages to be allowed are regulated by statute. Treating cases where the damages allowable are capped by statute as included within the ‘general range’ to be considered shows that those statutory limits imposed in cases of motor or workplace accident are not to be taken as being indirectly imposed as limits on the amount to be allowed in defamation. But the reference to the general range of damages does identify the highest sums awarded for the non-economic consequences of personal injury as what might be called a presumptive outer limit to awards for defamation. So much follows from the fact that rarely, if ever, will the harm done by a defamation be greater than the most serious form of physical injury which leads to permanent and serious disabilities. And if that represents the presumptive outer limit to awards for defamation, each particular award that is made must find a place within a range which is marked out in that way”.

In the same case at 385ff, Heydon J noted the analyses of Brennan and McHugh JJ in Carson v John Fairfax & Sons Limited (1992) 178 CLR 44 at 72-5 and 111-3 respectively as to the differences between defamation litigation and personal injuries litigation and noted that these analyses were relevant when considering s 46A of the Act.
Heydon J then noted that the majority in Carson at 59 footnote 38 had said that there must be a proper relationship between defamation damages and personal injury damages and that this may be the philosophy behind s 46A, though he queried the relevance of any statutory cap on personal injury damages, such a cap not being either ethically-driven or value-infused. Callinan J took the same approach at p 368.
Callinan J noted in Rogers at p 369 that:
"Neither s 46A in terms, nor the second reading speech suggests that equivalence is possible, or that in every case of defamation, awards for other injuries provide a ceiling above which an award for defamation should not go."
In line with this thought, Mr McClintock submitted that what s 46A(2) “doesn’t say is that defamation awards have to be higher or lower than personal injuries awards” and that as such there is nothing to stop the court from making an award in a defamation case which is larger than an award in a personal injury case. I accept this.
However, as was pointed out during argument, the duty of this Court is to obey the law and carry out the command of the Parliament in s 46A of the Act no matter what the difficulties.
The section is phrased in strong words of command, viz “the Court is to ensure” that certain things occur and when considering the general range of damages for economic loss in personal injury awards in the State it is to
take into account those capped under State legislation.
Section 46A of the Act has been in force for ten years. It does not appear to have been considered a substantial brake on large awards of damages.
In 1996, this Court consisting of Mahoney ACJ, Handley and Giles JJA noted the section and discussed the general relationship of damages in defamation and personal injury cases when dismissing an appeal in a case where a doctor had been awarded $500,000 for defamation. See Crampton v Nugawela (1996) 41 NSWLR 176 at p 192. This case was mentioned by Heydon J in Rogers with some approval.
As far as my researches have revealed, there have not been any reported cases since Rogers where s 46A of the Act has been considered in any meaningful way. However, I should note that Levine J remarked on its scope in Markovic v White [2004] NSWSC 37 and that in Konstantinidis v Foreign Media Pty Limited [2004] NSWSC 835, Buddin J said:
“… the current cap for general damages for non-economic loss in personal injury cases to which the Civil Liability Act 2002 applies, is $384,500 for a most extreme case … there is a statutory prohibition against the award of exemplary damages. - See Defamation Act s 46(3)(a). That being so, no punitive element can be allowed to intrude”.
As to the respondent's reputation, her counsel points to the findings of the learned trial judge in paras [214], [215] and [217] of the judgment which I will now set out:
"[214]     The plaintiff submitted, correctly, that she enjoyed a high public profile. After a teaching career in Queensland she studied and graduated in law. She was admitted to the Bar and practised her profession. This was a considerable achievement. She held a number of senior Government appointments culminating in her appointment as the permanent Head of the Ministry of Aboriginal Affairs under the Wran Government. In 1986 she was appointed a Local Court Magistrate and has continued in that office.
[215]      She has been active in many areas of public life and held senior positions with various organisations and official bodies. She has been awarded an Honorary Doctorate of Law from three universities in New South Wales. She was Chancellor of the University of New England. She has worked hard for the advancement of Aboriginal communities and the rights of women. She has been a vigorous and outspoken campaigner. She received glowing references from Ms S Ryan, a former Federal Minister for Education and now President of Superannuation Trustees, Mr E G Whitlam, a former Prime Minister and Ms J Milledge, a magistrate since 1996 and Senior Deputy State Coroner. Prior to her appointment to the Local Court Ms Milledge had served as a police officer for 24 years, sixteen of those as a police prosecutor. She commonly appeared before the plaintiff and noticed nothing untoward about the plaintiff's treatment of police nor any untoward favour towards members of the Aboriginal community.
[217]      I accept that the plaintiff's reputation was and is a very important part of her life. So also were her campaigns to improve the lot of Aborigines, to fight against police harassment of Aborigines and the misuse of police powers, to stop violence against women in all its forms and to redress the balance in what she regarded as a male dominated society. She was passionate and outspoken about the causes in which she believed. The advancement and success of the causes in which she believed were just as important to her as her reputation. Her reputation was important in the advancement of those causes. I have kept in mind the remarks of Mahoney ACJ in Crampton v Nugawela (1996) 41 NSWLR 176 at 193 as to the central importance of reputation."
The respondent's counsel puts that in view of this finding and in view of the fact that no case of bad or diminished reputation was ever put below, the respondent is entitled to have this Court approach assessment of damages on the basis that her reputation was of the highest and that she was a very well known public figure.
The respondent also puts that it would be quite wrong for this Court to take the attitude that because four of the eight imputations found by the jury have been found to be defensible as comment, that the trial judge's award of $220,000 should be substantially discounted. They put that the assessment of harm done by publication is not a crude exercise of multiplication or addition of imputation upon imputation nor as this case now stands, subtraction or division. Indeed, it could be said that the other statements added very little to the seriousness of the four imputations which in fact have been established. The Defamation Act, s 9(5) and (5A) requires damages for each matter complained of to be assessed in a single sum recognising that it is the overall impression, not the individual imputations that are important in assessing damages.
The appellant says that the trial judge considered the respondent's evidence concerning her hurt feelings and emphatically rejected most of it.
The learned Judge did say that he thought that any hurt that the respondent felt was as much engendered by her general behaviour and complaints made against her to the Judicial Commission as by the article the subject of these proceedings. The kernel of his finding is in para [227] where he said in the second half of the paragraph:
"The plaintiff has sought to lay too much at the door of the article of 16 December 1999. I do not accept that the plaintiff's distress and hurt was generated directly by her reading Ms Albrechsten's article of 16 December 1999 and nothing else at that time. I accept that Ms Albrechsten's article added to the plaintiff's hurt and distress."
He repeated this at [231]:
"I do not accept that the hurt and injury to the plaintiff's feelings from Ms Albrechsten's article was of the order she suggests. Her hurt was not solely due to the article of 16 December 1999 … . Nevertheless, I am of the view that Ms Albrechsten article did occasion the plaintiff hurt and injury to her feelings. The imputations of bias, knowingly acting contrary to law, incompetency, undermining the judicial system and allowing her extreme views to affect her judgment have a major sting."
It is appropriate to note that some of the matters that were particularly noted by the learned trial judge emphasize imputations (f), (g) and (h), which were found to be fair comment.
The appellant invited us to find that the respondent actually suffered little, if any, relevant harm as a result of the publication of the matter complained of.
This is not, with respect, what the trial judge found. His view, as I read it, was that the article had caused the plaintiff harm but he discounted the plaintiff's evidence on the matter because similar harm had been caused by other accusations against her and she had developed a degree of resilience.
The respondent's counsel say that imputations (a), (b), (d) and (e), which were found to be indefensible, are exceptionally grave allegations to make about a judicial officer. They say in fact, short of an allegation of actual corruption such as taking a bribe, nothing more serious could be said about such a person. She was accused of knowingly dismissing charges in quite a wrong way. The imputations, it is put, impute a deliberate and systematic improper approach to the task which the respondent had sworn to do without fear or favour.
Respondent's counsel say that the seriousness of the imputations and the large circulation of the appellant's newspaper call for damages in the range of $200,000 to $250,000.
The appellant says that other articles in newspapers, particularly that on page 1 of The Sydney Morning Herald of 16 December 1999, attack the respondent in a worse way, yet she did not sue and that this should operate as a factor discounting her damages.
I find it a little difficult to appreciate how past newspaper denunciation of the respondent can be relevant in view of what this Court said in Chappell v Mirror Newspapers Ltd [1984] Aust Torts Rep 80-691 and would not give any weight to this submission.
The fact that it would appear that the respondent was already highly respected by many members of the community and thought to be an unattractive person by others and that opinions do not appear to have changed much as a result of the article is a relevant matter. So, however, was the fact that the article was researched from secondary or weaker sources, was quite inaccurate in significant respects, it endeavoured to draw conclusions either from too sparse evidence or from non-disclosed material and that no apology was offered, tends the other way.
I consider that another relevant matter is the fact that at the end of the article it was emphasised in bold print that the author is described as studying for a doctorate of law, which would convey to the average person (though not to a practising lawyer) that she was speaking with some authority.
This is a relevant matter to the assessment of damages. As Higgins J said in Costello v Random House Australia Pty Ltd (1999) 137 ACTR 1 at 33 [285] in relation to compensatory damages:
"The court must bear in mind the extent of circulation, the gravity of the imputations, the apparent authority of the publication, its context and the circumstances of aggravation."
The respondent is a public figure: she is a local court magistrate. She is entitled to protect her reputation like any other citizen. Some of the cases to which I have referred carry the flavour that it may be wrong to compensate such a public figure for the loss of reputation of the office rather than that of the person who holds the office. However, this point was not argued and I will say no more about it.
The respondent points to comparable verdicts. There is still debate as to whether this is permissible (see Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 at 124-5; Carson's case (supra) at 59), or if it is permissible whether it is of any real value; Rogers at 350 per Hayne J. However, in Rogers, Callinan J at 370 and Heydon J at 386 appear to have taken some note of the range from other cases. As I have noted, the doctor in Rogers received $250,000 which the High Court thought was reasonable, even though he was not named. As noted earlier in Crampton v Nugawela, a doctor received $500,000 for defamation which was upheld on appeal. In Konstantinidis v Foreign Media Pty Ltd to which I referred earlier, $200,000 was awarded to a solicitor who was defamed in respect of two radio broadcasts, though that included aggravated damages. This gives some guidance as to the range.
I now turn to the question of aggravated damages.
The trial judge at [245] said that he awarded compensatory damages and also aggravated damages for the factors he mentioned earlier in his reasons, principally the falsity of the imputations and the appellant's knowledge that they were untrue, the failure of the appellant to apologise and the mode and extent of the publication.
No particular detail was given by his Honour as to the weight put on these factors, they were only mentioned as factors taken into account in assessing and ultimately awarding aggravated compensatory damages.
In the submissions made recently, counsel for the appellant put at para 13:
"The only evidence of the falsity of the imputations was that given by the respondent in her evidence in chief. The veracity of the respondent's evidence should be considered in light of … "
the matters which had been set out in those submissions at para 10.
The reaction of the respondent's counsel was that that statement was just factually wrong. Furthermore, the trial judge's findings at [215] which I have already set out, are said to show the imputations were false. In any event, it is submitted, no challenge was made to the respondent's evidence that the imputations were false.
Respondent's counsel go further by saying that the fact that in para 13 the appellant calls the respondent a liar on the basis of a factually wrong assertion is itself a matter that the Court should take into account as to aggravated damages.
Assessing damages in this sort of case is always a difficult matter. The plaintiff has been defamed. She is a public figure. The allegations against her are very grave and they were made in a major newspaper of wide circulation. The material was presented to the paper by a journalist whose reputation it may have considered it could rely upon, but unfortunately in the present case, the material was put together with inadequate research into the primary sources.
It is true that four of the imputations we have found were the subject of justified comment. However, I agree with the submission that one does not just mechanically subtract from the overall damages figure because of this and one must focus on the effect of the imputations that were found as a complete package.
The hurt to the plaintiff's feelings and to her reputation need to be viewed in the context of a lady who has perhaps gone out of her way to establish her fearless pursuit of what she believes is justice and some of the odium which may attach to her on behalf of some citizens is, as the trial judge pointed out, as a result of this rather than the article.
I bear in mind that the trial judge originally awarded $220,000. I pass no comment as to whether, if I were dealing with that figure as an appellate judge I would have thought it within the range or not. However, I believe it is a little high and that the appropriate figure is $175,000. I propose that that amount be substituted for the amount found by Smart AJ.
I now turn to the matter of costs. The appellant says that the proper result is that as the appellant ought to have succeeded on half the imputations at trial the appellant should pay 50% of the respondent's costs of the trial, and the respondent should pay 65% of the appellant's costs on the appeal. The respondent says that this could not be put seriously. The result of the trial, even if one substituted the verdict of the appellate court, was that the respondent won and recovered a substantial verdict, and the appellant lost. I agree that there is no reason why the appellant should not pay the respondent's full costs of trial.
So far as costs of the appeal are concerned, the majority of the time was spent on considering what we have called the "Lange extended concept", a matter on which the appellant was wholly unsuccessful. As to the attack on findings of the imputations, this did not occupy much time and the appellant only succeeded in part. In the net result, the damages were reduced, if my assessment is correct, by about 20%. In my view the appellant should pay the bulk of the respondent's costs of the appeal. My view would be that the appellant should pay 75% of the respondent's costs of the appeal.
Accordingly, in my view the Court should find a verdict for the respondent for $175,000 and order that the appellant should pay the respondent's costs of the trial and 75% of her costs of the appeal.
However as I am in the minority as to costs, the orders of the Court are as recorded by Giles JA, namely:
1. Judgment for the plaintiff for $175,000;
2.Defendant pay the plaintiff's costs of the proceedings at first instance; and
3.Respondent pay 25 per cent of the appellant's costs of the appeal and have a certificate under the Suitors Fund Act if otherwise qualified.
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LAST UPDATED: 31/08/2005