John Fairfax & Sons Ltd v Vilo - [2001] NSWCA 290

No judgment structure available for this case.

Reported Decision:
[2001] ACL Rep 145 NSW 41
52 NSWLR 373

New South Wales

Court of Appeal

CITATION: John Fairfax & Sons Ltd & Anor v Vilo [2001] NSWCA 290

FILE NUMBER(S): CA 40869/00

HEARING DATE(S): 16, 17 August 2001

JUDGMENT DATE:
12 September 2001

PARTIES :

John Fairfax & Sons Ltd (First Appellant)
David Syme & Co Ltd (Second Appellant)
Enn Vilo (Respondent)

JUDGMENT OF: Handley JA at 1; Giles JA at 2; Heydon JA at 3

LOWER COURT JURISDICTION : Supreme Court

LOWER COURT
FILE NUMBER(S) : SC 17027/83

LOWER COURT
JUDICIAL OFFICER : Simpson J

COUNSEL: Mr W H Nicholas QC/Mr J S Wheelhouse (Appellants)
Mr C A Evatt/Mr T Molomby/Mr G Hansen (Respondent)

SOLICITORS: Mallesons Stephen Jaques (Appellants)
Leitch Hasson & Dent (Respondent)

CATCHWORDS: Torts - Defamation - Appeal against decision of jury - Damages - Defence re contextual imputations - Whether quantum of damages manifestly excessive - Whether jury's finding that contextual imputation was untrue was perverse and led to miscarriage of justice justifying re-trial - Defamation Act 1974 (NSW), s 16 - Supreme Court Rules 1970 (NSW), Pt 51 r 23(1) - Torts - Defamation - Appeal against decision and directions of trial judge - Whether statutory and common law defences of qualified privilege made out - Whether publishers' actions were "reasonable" - Whether trial judge should have directed jury to consider range of damages in personal injury verdicts - Whether trial judge should have ordered separate verdicts for the various imputations - Defamation Act 1974 (NSW), ss 9(5), 22(1)(c), 46A(2), 48(b) - Evidence - Relevance - Representations - Form - Discretion - Evidence Act 1995 ss 55, 57, 65 and 135 - D

LEGISLATION CITED: Defamation Act 1974
Evidence Act 1898
Evidence Act 1995
Human Rights Act 1998 (UK)
Motor Accidents Act 1988
Workers Compensation Act 1987

CASES CITED:
Browne v Dunn (1893) 6 R 67
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
Coyne v Citizen Finance Ltd (1991) 172 CLR 211
Crampton v Nugawela (1996) 41 NSWLR 176
Holford v Melbourne Tramway and Omnibus Co Ltd [1909] VLR 497
Hughes v Mirror Newspapers Ltd (1985) 3 NSWLR 504
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Midalco Pty Ltd v Rabendt [1989] VR 461
Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374
Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749
Plato Films Ltd v Speidel [1961] AC 1090
Reynolds v Times Newspapers Ltd [2001] 2 AC 127; [1999] 3 WLR 1010
Ritz Hotel Ltd v Charles of the Ritz Ltd (Nos 15 and 16) (1988) 14 NSWLR 107
Singleton v Ffrench (1986) 5 NSWLR 425
Singleton v John Fairfax & Sons Ltd (No 1) [1983] 2 NSWLR 722
TCN Channel 9 Pty Ltd v Antoniadis (1998) 44 NSWLR 682
Tobias v Allen (No 2) [1957] VR 21
Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697

DECISION: Appeal dismissed. Appellants to pay the respondent's costs of the appeal.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

SC 17027/83

HANDLEY JA

GILES JA
HEYDON JA

12 September 2001

JOHN FAIRFAX & SONS LTD and DAVID SYME & CO LMITED

v ENN VILO

Torts – Defamation – Appeal against decision of jury – Damages – Defence re contextual imputations - Whether quantum of damages manifestly excessive - Whether jury’s finding that contextual imputation was untrue was perverse and led to miscarriage of justice justifying re-trial – Defamation Act 1974 (NSW), s 16 – Supreme Court Rules 1970 (NSW), Pt 51 r 23(1)

Torts – Defamation – Appeal against decision and directions of trial judge - Whether statutory and common law defences of qualified privilege made out – Whether publishers’ actions were “reasonable” - Whether trial judge should have directed jury to consider range of damages in personal injury verdicts – Whether trial judge should have ordered separate verdicts for the various imputations - Defamation Act 1974 (NSW), ss 9(5), 22(1)(c), 46A(2), 48(b)

Evidence – Relevance – Representations – Form – Discretion – Evidence Act 1995 ss 55, 57, 65 and 135

The respondent (“the plaintiff”) was one of two executive directors and a principal shareholder of Bishopsgate Insurance Australia Ltd. On 9 August 1983 a provisional liquidator was appointed to Bishopsgate Insurance Australia Ltd. Funds belonging to Bishopsgate Insurance Australia Ltd disappeared. The other executive director and shareholder, Mr Stathopoulos, went missing and was believed to be overseas. The plaintiff left Australia on 5 August and returned on 3 September. John Fairfax & Sons Ltd (the “first defendant”) published an article mentioning the plaintiff in the Sun-Herald on 14 August. The first defendant and David Syme & Co Ltd (the “second defendant”) jointly published an article mentioning the plaintiff in the Business Review Weekly (“BRW”) in an edition dated 13-19 August 1983.

The plaintiff brought a claim for damages against the defendants on the basis that the articles were defamatory. The jury decided that three defamatory imputations were contained within each article, and rejected the defence of substantial truth. The jury accepted the defence of comment in relation to imputations (ii) and (iii) in the Sun-Herald article, but not in relation to any of the BRW imputations. The jury rejected the defence regarding contextual imputations (under s 16 of the Defamation Act 1974 (NSW)) in relation to the four remaining imputations. The jury awarded a total of $520,000 in damages. In relation to the Su- Herald article, the jury awarded $20,000 for imputation (i). In relation to the BRW article the jury awarded $200,000 for imputation (i), $250,000 for imputation (ii), and $50,000 for imputation (iii). The judge rejected the defences of qualified privilege. The defendants appealed.

Held by Heydon JA (Handley JA and Giles JA concurring), dismissing the appeal:

A heavy burden falls upon a party who complains on appeal that a particular jury direction ought to have been given by the trial judge, when that party was familiar with the tactics of the trial and did not request such a direction at trial. This applies generally where there are no errors in directions about material areas of law.
Singleton v Ffrench (1986) 5 NSWLR 425, referred to.
2. The quantum of damages awarded for the BRW imputations was not manifestly excessive.

(a) The jury were entitled to presume that the plaintiff had a high reputation, and there was specific evidence of his high reputation. There was direct and indirect evidence capable of being accepted by the jury that the plaintiff’s reputation was damaged by the imputations.
Crampton v Nugawela (1996) 41 NSWLR 176, applied.

(b) The jury were entitled to accept the plaintiff’s evidence that his feelings had been gravely injured.
(c) The disparity between damages awarded for imputation (i) in the BRW article and for imputation (i) in the Sun Herald article can be explained by the difference in timing of publication, the difference in content, the difference in readership, and the mitigatory reduction in the damages for the latter because of damages awarded for the former.

(d) Any mishandling by the jury of contextual truth issues was irrelevant because these issues were unconnected to the damages issue.

(e) It was not shown that the jury failed to give appropriate weight to the plaintiff’s delay in prosecuting the case. It was for the jury to decide the relevance of any delay.

(f) The judge did not err by failing specifically to direct the jury to consider in mitigation of the awards for the BRW imputations, the amount awarded for the Sun-Herald imputation. In any event, she did direct the jury to ensure that the total sum of damages awarded was appropriate. Section 48(b) of the Defamation Act does not apply, because it relates to proceedings for damages other than those under consideration by the jury.

3. The trial judge did not err in relation to the admission of evidence.

(a) It was reasonably open to the trial judge to make a finding that Exhibits A and B were relevant under ss 55 and 57(1)(a) of the Evidence Act .

Hughes v Mirror Newspapers Ltd (1985) 3 NSWLR 504, discussed.

(b) The trial judge’s failure to exclude Exhibits A and B under s 135 of the Evidence Act was not erroneous. Through her directions, the trial judge removed the risk of the evidence being confusing, misleading or prejudicial.
(c) The trial judge did not err by admitting Exhibit H under s 65 of the Evidence Act . Exhibit H impliedly made a representation about the plaintiff’s reputation. The Evidence Act does not require “representations” to be in a form that can, over objection, be given as direct oral evidence by their makers if called as witnesses.

4. The trial judge did not err by failing to direct the jury to consider

personal injury verdicts.

(a) The trial juge was entitled in her discretion to refuse to direct the jury to consider personal injury verdicts.

Coyne v Citizen Finance Ltd

Carson v John Fairfax & Sons Ltd

(b) (Obiter): Section 46A(2) of the Defamation Act did not codify the pre-existing common law.

5. The trial judge did not err by exercising her discretion to order separate verdicts in relation to each defamatory imputation, under s 9(5) of the

Defamation Act

.

(c) Special circumstances or rare cases are not necessary for the s 9(5)(a) discretion to be exercised.

(d) The submission that separate verdicts might lead to artificiality, overlapping and double counting was not put to the trial judge, and any such danger was avoided by the trial judge’s directions.

(e) The ordering of separate verdicts was supportable because it minimised the risk of a re-trial being ordered on appeal, considering the many permutations and combinations available to the jury.

TCN Channel 9 Pty Ltd v Antoniadis

(a) If the House of Lords in Reynolds v Times Newspapers Ltd ; [2001] 2 AC 127; [1999] 3 WLR 1010 extended the traditional law in relation to qualified privilege (as modified in Lange v Australian Broadcasting Commission (1997) 189 CLR 520), that extension is not part of the common law of New South Wales.

(f) Information about fleeing company directors is neither governmental nor political. Neither the defendant publishers nor the recipients of the information had a relevant duty or interest in relation to the publication of the information.

Lange v Australian Broadcasting Commission

7. The trial judge did not err by rejecting the statutory defence of qualified privilege under s 22 of the

Defamation Act

.

Sun-Herald

(i) The publication of the imputation that the plaintiff was a fugitive from justice without sufficient knowledge of the factual position was not objectively reasonable.

(ii) Checking the accuracy of existing sources and the unproductiveness or impossibility of further factual inquiries does not render an unreasonable publication of an imputation reasonable.

8. Even if the jury’s finding that the contextual imputation (about police suspicion) was untrue was perverse, this did not result in a substantial miscarriage of justice that would justify a re-trial under the Supreme Court Rules, Pt 51 rule 23(1).

In relation to both articles, even if the jury had found that the contextual imputations were true, it is likely that they would have found that the contextual imputation was not capable of damaging the plaintiff’s reputation to such an extent that the imputations did not further injure it. Therefore, it is likely that the jury would have come to the same final conclusion (that no defence regarding contextual imputations existed under s 16 of the Defamation Act).

O R D E R S

1. Appeal dismissed.

2. The appellants are to pay the respondent’s costs of the appeal.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40869/00
SC 17027/83

HANDLEY JA
GILES JA
HEYDON JA

12 September 2001

JOHN FAIRFAX & SONS LIMITED and DAVID SYME &
CO LIMITED v ENN VILO

JUDGMENT

1 HANDLEY JA: I agree for the reasons given at length by Heydon JA that this appeal should be dismissed with costs.

2 GILES JA: I agree with Heydon JA.

Background

4 The first defendant was the publisher of the Sun-Herald, a Sunday newspaper distributed principally in New South Wales, but also in the other States and Territories. The defendants jointly were the publishers of the Business Review Weekly, a weekly journal covering business and financial affairs and distributed nationally.

5 On 9 August 1983 Bishopsgate Insurance Australia Ltd collapsed in the sense that a provisional liquidator was appointed. The plaintiff was a registered medical practitioner. He was also one of two executive directors and a principal shareholder in that company. The other executive director and shareholder was Mr Andrew Stathopoulos, also known as Andy Stathis. When Bishopsgate Insurance Australia Ltd collapsed, Mr Stathopoulos disappeared and was believed to have left the country. Funds belonging to Bishopsgate Insurance Australia Ltd also disappeared. The plaintiff left Australia on 5 August and returned to Australia on 3 September.

6 The defendants published an article in the Business Review Weekly in the edition bearing the date 13-19 August 1983: it was in fact published on the morning of Friday, 12 August 1983. The first defendant published an article in the Sun-Herald on 14 August 1983.

7 On 16 November 1999 the jury decided that each of the articles conveyed three imputations which the plaintiff had pleaded, and decided that each imputation was defamatory. The imputations were as follows:

“(i) The Plaintiff was a fugitive from Justice;

(ii) The Plaintiff had misappropriated funds from Bishopsgate Insurance Australia, of which he was a Director;

(iii) The Plaintiff was party with Andrew Stathopoulos to the misappropriation of some $19 million from Bishopsgate Insurance Australia, of which both of them were Directors.”

8 On 22 November 1999 the jury rejected a defence of substantial truth raised under the Defamation Act 1974, s 15(2), in relation to imputations (i) and (ii). No such defence was relied on in relation to imputation (iii).

9 The jury accepted the defence of comment pursuant to Part 3 Division 7 of the Act in relation to imputations (ii) and (iii) in the Sun-Herald article but not in relation to imputation (i) in the Sun-Herald article or any of the imputations in the Business Review Weekly article.

10 The jury rejected the defence relating to contextual imputations under s 16 of the Act pleaded in answer to the four imputations in relation to which the comment defence failed.

11 The jury awarded $20,000 damages in relation to imputation (i) in the Sun-Herald article. In relation to the three imputations in the Business Review Weekly article, it awarded $200,000 for imputation (i), $250,000 for imputation (ii) and $50,000 for imputation (iii).

12 On 6 October 2000 the trial judge rejected the defences of qualified privilege at common law and qualified privilege under s 22 of the Act.

13 The trial was hard-fought. It was understandably complex and difficult for all concerned in it. Each of the two counsel who appeared at the trial also appeared on the appeal, though each was led on the appeal by counsel who had not appeared at the trial, and one appeared with a junior who had not appeared at the trial.

14 Some of the grounds in the Notice of Appeal as filed were abandoned at the start of oral argument. Amendments changing two grounds and adding a further ground were made by consent at the start of the second day of oral argument. It is convenient to take the surviving and added grounds in the order they appear in the Notice of Appeal, save that the grounds relating to contextual imputations are considered last, and the added ground, Ground 21, which complains about the trial judge’s decision to admit three exhibits, is considered with other grounds relevant to damages.

15 Before turning to Ground 1, it is to be noted that the defendants made many complaints about the manner in which the trial judge directed the jury. Very few of these complaints were matched by an appropriate application to the trial judge (even though she afforded the parties many opportunities to make submissions about what directions should be given, or what directions should be corrected, before, during and after the summing up). And very few of these complaints were matched by a relevant ground of appeal. The defendants referred to authorities like Holford v Melbourne Tramway and Omnibus Co Ltd [1909] VLR 497 and Midalco Pty Ltd v Rabendt [1989] VR 461, in which there are statements to the effect that a new trial may be granted because of an erroneous direction even though no redirection had been sought. In general, except where there are errors in giving directions about material questions of law, a failure by those who appeared at a trial for a particular party and who were fully familiar with the tactical environment and atmosphere of that trial to seek a particular direction before, during or at the end of the summing up on matters other than matters of substantive law places a heavy burden on that party if it complains on appeal that that direction should have been given. See Singleton v Ffrench (1986) 5 NSWLR 425 at 440 per Samuels JA. None of the complaints made on appeal about directions not sought at the trial or referred to in the Notice of Appeal fell outside that general category. As will be seen, none of the complaints should be upheld.

Ground 1: Damages Manifestly Excessive

16 This ground was:

“The jury’s determination of the amount of damages to be awarded in respect of the BRW imputations, either taken individually or collectively, was manifestly excessive.”

17 The defendants submitted that the excessiveness arose at least in part because of the errors complained of in Grounds 2-6 and 21. However, Ground 1 is capable of standing by itself even if Grounds 2-6 and 21 had not been advanced. It is therefore appropriate to consider it by itself, before proceeding to Ground 21, Grounds 2-4 and Grounds 5-6.

The defendants’ submissions

18 The defendants submitted that the awards of $200,000, $250,000 and $50,000 for imputations (i)-(iii) in the Business Review Weekly were “manifestly excessive when the purpose of the award was compensatory” and “outside the range of any reasonable award that might have been made to compensate the [plaintiff] for injury to his reputation and feelings”.

19 The defendants opened by making two uncontroversial points. First, they pointed out that the damages had to be considered in the light of the fact that they were entirely compensatory. The plaintiff said on the second day of the trial that he was “not running a special damages claim or general economic loss claim”. There was no claim for aggravated damages, other than for the plaintiff’s “increased upset due to his knowledge [that] the imputations are false”. Secondly, the defendants pointed out that s 46(2) of the Act limited the damages recoverable to damages for “relevant harm”, i.e. harm suffered by the plaintiff.

20 The defendants then submitted that the amount awarded should not be the product of speculation or impression, but should be based on evidence which proved that the publication had in fact caused harm to the plaintiff’s reputation and hurt to his feelings.

21 The defendants pointed out that the circulation of the Sun-Herald in New South Wales was 593,907, with an estimated readership of 1,942,000. The defendants did not identify evidence of the circulation of the Business Review Weekly, or its New South Wales readership, but there was evidence that its national readership was approximately 186,000. The defendants contrasted the award of $20,000 for imputation (i) in the Sun-Herald with the award of $200,000 for imputation (i) in the Business Review Weekly.

22 The defendants then submitted that the soundness of the awards had to be judged against the particular evidence capable of supporting them. They submitted that that evidence was scanty. They summarised it thus:

“The Respondent gave evidence of hurt to feelings and subjective reaction to the publications. He did not distinguish between the publications to prove that one was the cause of greater or less damage than the other.

The only evidence for the Respondent from readers affected by the publication was that of Mr Hasson and Mr Sheringham. Each referred to his reaction upon reading The Sun-Herald. Neither said he had read BRW.

There was no evidence as to actual harm to reputation caused by the publication of BRW.

23 The defendants submitted that the jury’s answers to questions about contextual truth and comment indicated that the jury’s reasoning generally was unsafe and unsound, and thus its reasoning on damages was unsafe and unsound. The defendants in fact abandoned the grounds of appeal relating to comment and did not repeat the written submissions relating to comment in support of Ground 1. The defendants submitted that the jury finding that the defendants had not established the substantial truth of the contextual imputations was perverse, for reasons to be examined when Grounds 11 and 12 are considered. In essence those grounds were that the jury’s conclusion involved the rejection of the evidence of two police officers, Detective Sergeant Whittaker and Detective Constable Morgan, as they were in 1983, and the inferences to be drawn from an exhibit, in circumstances where the police officers had not been cross-examined to suggest that their evidence was false, where the plaintiff accepted the correctness of their evidence in final address, and where there was no rational basis to reject their evidence.

24 The defendants also submitted that the amount of the award of damages indicated the failure of the jury to give any, or any adequate, weight to the plaintiff’s delay in prosecuting the action. The proceedings were commenced in November 1983 and did not come on for trial until November 1999. According to the defendants, the substantial portion of the delay was directly attributable to the plaintiff.

25 The defendants submitted that the jury awards were erroneously inflated by the inclusion of a component for punishment of the defendants.

26 The defendants submitted that the jury apparently failed to take into account in mitigation of the awards for the Business Review Weekly imputations the award of $20,000 made for the Sun-Herald imputation.

27 The defendants submitted:

“The jury did not make an award of damages that bore a rational relationship to the harm suffered in the context of statutory awards for non-economic loss. The most severe case of motor vehicle personal injury is entitled to a sum of approximately half the amount awarded by the jury to the [plaintiff] to compensate him for the injury caused by the publication of the second matter complained of.”

28 The defendants submitted that the admission into evidence of certain Exhibits, namely Exhibit A, Exhibit B and Exhibit H, caused the jury erroneously to take into account economic loss as a component of compensation.

29 Finally, the defendants submitted that the amount of the award for each imputation led to the conclusion that the jury had failed to consider an amount appropriate as total compensation for the harm done by the publication taken as a whole. The sum of the parts exceeded relevant compensation for the relevant harm suffered by the plaintiff.

30 The defendants carefully avoided any direct denial of the seriousness of the imputations. Indeed throughout their long written and oral submissions they showed considerable skill in keeping attention engaged on other subjects: they sensibly favoured a variety of indirect approaches over frontal assault. These tactics were sound, because it is beyond argument that the imputations were very grave.

The plaintiff’s submissions

31 The first major submission of the plaintiff was that the disparity between the $20,000 awarded for imputation (i) in the Sun-Herald and the $200,000 for imputation (i) in the Business Review Weekly was rationally explicable on several bases.

32 First, the plaintiff was referred to in only two non-prominent parts of the Sun-Herald article:

“His fellow director, Dr Enn Vilo, a medical practitioner and race horse owner, is also missing.

The Fraud Squad has also asked Interpol to look out for Vilo.”

Business Review Weekly

33 Secondly, the Sun-Herald is directed to a family audience and is read by a large cross-section of the population. On the other hand, the Business Review Weekly, though its readership was much less than that of the Sun-Herald, had quite a large readership, and was read by most of the managers with whom the plaintiff had dealt or was dealing with in business in relation to occupational health, such as Alcan, Myers and Commonwealth Industrial Gases. It was circulated within their companies. Further, the Business Review Weekly circulated in real estate circles, and the plaintiff was a small developer of real estate. The Business Review Weekly was read by intelligent persons involved in business activities generally.

34 Thirdly, it was a reasonable inference that the jury might have thought that imputation (i) in the Sun-Herald article by itself justified a higher award than $20,000, but that they followed the trial judge’s instructions and reduced it to $20,000 by reason of their award for the Business Review Weekly article.

35 Finally, the Business Review Weekly article was not only published on 12 August 1983, before the Sun-Herald article on 14 August 1983, but it was only the second of a group of articles tendered in evidence about the Bishopsgate collapse, and it was the first which was critical of the plaintiff. The first article tendered was in The Australian on 11 August 1983. It mentioned the plaintiff, but only in stating the neutral fact that he was a non-executive director. The Business Review Weekly article on 12 August 1983 was followed by an article in the Sydney Morning Herald on 13 August 1983: it was largely devoted to Mr Stathopoulos or to the company, and said of the plaintiff only the following:

“The fraud squad has also asked Interpol to look out for the collapsed company’s other executive director, the Sydney doctor and race horse owner, Dr Enn Vilo.

It was thought Dr Vilo was staying in Hong Kong, but now Sydney detectives are unsure of his whereabouts. Detectives visited Dr Vilo’s Vaucluse home yesterday and interviewed his wife.

Mrs Vilo said on Monday that her husband was staying in the Hong Kong Regent Hotel, and that she would shortly be going there to join him.

A spokesman from the Regent Hotel in Hong Kong said last night he could find no record of Dr Vilo on the booking list.

Last night, Mrs Vilo would not comment on her husband’s whereabouts.”

National Times

The Australian

36 The plaintiff’s second major submission turned on the evidence which the plaintiff had given about the Business Review Weekly article. From that evidence, it was open to the jury to infer that the article had had the following consequences:

“The [plaintiff] suffered the hurt and humiliation of having the specialist medical work in which he had invested his efforts for the previous 15 years taken away from him. His major contracts were cancelled. He stopped receiving the approaches for work which he used to receive …. Thirty to forty patients withdrew their records from his general practice, local real estate agents asked him if he was going to put his house on the market, he was abused in front of his surgery by passers by, other parents avoided him at his children’s weekly sporting activities, he gave up swimming at the top North Bondi Surf Club, which he had attended regularly for about ten years, he ceased playing regular cricket, which he had done since the age of 12, he withdrew from socialising generally and became withdrawn and hypersensitive.”

Business Review Weekly

37 Thirdly, the plaintiff drew attention to Crampton v Nugawela (1996) 41 NSWLR 176 at 194D, where Mahoney ACJ said that $500,000 as an award for damage to the reputation of a professional man was not “beyond the range of a sound and sensible jury”. The plaintiff also drew attention to 197B, where Handley JA expressed agreement with Mahoney ACJ. In reply the defendants pointed out that the actual award in that case (which was higher than the award in this) was probably influenced by the jury’s perception of the defendant’s malice and contained a significant component for special damages in consequence of probable economic loss, but neither of those circumstances affect the observations just referred to.

38 Fourthly, the plaintiff pointed out that not only was he entitled to recover damages for loss of reputation and for hurt feelings, but he was entitled to recover a figure which would vindicate his reputation against the potential future emergence of the imputations from some place where they had lurked underground: Crampton v Nugawela (1996) 41 NSWLR 176 at 193-195. The plaintiff gave evidence which the jury could accept that the Business Review Weekly “was still circulating somewhere around” even weeks after his return from overseas on 3 September 1983.

39 Fifthly, the plaintiff submitted that imputation (i) was a serious imputation, justifying a high award. He submitted that the relatively low figure of $50,000 for imputation (iii) in the Business Review Weekly (or the relatively high figure of $250,000 for imputation (ii)) could be explained on the basis that, while those imputations were distinct, they overlapped, and that the jury had allowed for the overlap by discounting the figure for imputation (iii) because of what they had already awarded for imputation (ii). To misappropriate funds (which the headline identified as amounting to $19 million) is to be guilty of a crime as principal: to be party to the misappropriation of $19 million is to be guilty of a crime, but not necessarily as the principal, potentially only as a secondary party. It was possible that the jury took the legitimate course (which, in another part of their arguments, the defendants said it should have been directed to do) of arriving at a total figure for the Business Review Weekly imputations, and then apportioning the total over the three imputations. The plaintiff submitted that the apportionment was not irrational, and the overall figure of $0.5 million was moderate. He submitted that to have imputations of the extremely serious kind found by the jury circulated to persons who knew of and had business dealings with him would be ruinous to him, to any other professional, and indeed to any person. Alternatively, even if the figure was not thought to be moderate, it was not so excessive that an appellate court should intervene.

The plaintiff’s evidence

40 In assessing these arguments it is convenient to summarise parts of the plaintiff’s evidence which it was open to the jury to accept.

41 The plaintiff came to Australia from Estonia in 1949 at the age of seven with his family. He received secondary education at North Sydney Technical Boys High School, finishing in 1959. In 1966 he graduated in medicine from the University of Sydney. He worked in Canberra Hospital for two years as a junior and senior medical officer. He then commenced a career in occupational and industrial medicine in Sydney and Newcastle. For six years he worked in partnership with a Dr Croll, each visiting ten or twelve companies per day and examining employees to see if they had any illnesses. After 1975 his association with Dr Croll ceased, and he began to service companies in a more intense manner. In particular, he established a medical centre at Granville to service Alcan. He would arrive early in the morning as the night shift was leaving. He would see employees finishing the night shift and those commencing the morning shift. He would carry out full examinations on persons starting at Alcan. He would review the condition of those off work because of injury. He would inspect the factory. He also serviced three other Alcan factories and the Alcan head office. From 1978 he brought in Dr Brasier as his partner. They also serviced at various times Coles-Myer, Commonwealth Industrial Gases, Borg Warner, Tubemakers, Cottees General Foods and Lincoln Electrics. He contracted with these companies through a corporate vehicle, Industricare Pty Ltd. By 1982 the companies he and Dr Brasier were servicing were Alcan and Lincoln Electrics.

42 By 1982 the plaintiff had also become involved in small scale real estate development. Through that activity he met Mr Stathopoulos. Early the following year they acquired Bishopsgate, an insurance company which had experienced a history of losses.

43 In 1983 the plaintiff decided to go overseas, with the intention of visiting his brother in Estonia, who had recently been released from a gulag, and whom his mother was planning to stay with just before the arrival of the plaintiff. The plaintiff intended also to attend to some business commitments in Hong Kong, South Africa, London and Canada with persons he knew in each place, which he had visited before. Originally he planned to leave on 8 August 1983, but changed his booking to 5 August 1983 because of difficulties in booking hotel accommodation in Hong Kong. On 4 August 1983 he rang his partner Dr Brasier, who was having a skiing holiday, to inform him about the change of plans. He left on 5 August 1983 having no knowledge that anything was wrong with Bishopsgate, that Mr Stathopoulos was about to leave the country or that he had misappropriated any funds of Bishopsgate. The plaintiff then gave evidence about his journeys which it is not necessary to describe but which relates to Grounds 11 and 12.

44 The plaintiff returned to Australia on Saturday 3 September 1983. He met Dr Brasier after Monday morning surgery on 5 September 1983. Dr Brasier told him that Alcan and Lincoln Electrics had terminated their contracts with Industricare Pty Ltd through which the plaintiff’s medical services to them had been provided, and that those corporations had offered new contracts to Dr Brasier. Dr Brasier gave him a document revealing that Alcan had indeed terminated its arrangements with Industricare Pty Ltd on 22 August 1983, and had entered an agreement the next day with Dr Brasier to provide those services. The plaintiff later had a telephone call from Mr Stuart of Alcan confirming that Industricare Pty Ltd’s services were terminated. He also received a letter from Alcan to that effect, since lost. Dr Cook of Lincoln Electrics also called the plaintiff, apparently on 12 September 1983, and sent him a letter of 13 September 1983 indicating that Industricare Pty Ltd’s contract with the Lincoln Electrics was cancelled with effect from 30 September 1983.

45 The plaintiff first saw the Business Review Weekly article two or three days after he returned to Australia on 3 September 1983. After receiving comments from his patients about some “articles”, his attention was drawn to the Business Review Weekly article by his solicitor. He realised that this explained the comments of his patients, and became “angry and furious”. He then spent three or four days perusing the back issues of newspapers at the New South Wales newspaper archives. He said “The only article that resembled the one that caused me so much mental anguish was the one in the Sun-Herald.” He said it “really infuriated” him. This reaction was in part because of the fact that the articles connected him with all of Mr Stathopoulos’ activities, including a history of illicit drug dealing, of which the plaintiff knew nothing. The plaintiff described his mental state in the ensuing days thus:

“as the facts and the material that I read sunk in, I realised that I had left Australia on a trip and I came back as a suspected criminal involved in drugs, fraud by association and I became, over a period of days, furious, frustrated. I suppose you can use every word in the thesaurus to cover frustration, anger, irritability, being withdrawn. The English language does not describe it. I was just infuriated.

That is all I can say. I mean, I had no outlook, there was no-one I could talk to. I could not give my side of the story and I was locked in a maze. I expected to be arrested for whatever these articles referred to, I anticipated having been issued with a search warrant so the withdrawal, I could not sort of go out and associate with people any more, because most people seemed to be aware of these articles and drew their own conclusions, whether I said anything or not and I preferred not to, to be subjected to what I considered humiliating articles.”

46 A succession of unpleasant events then took place.

(a) Thirty or forty patients rang his surgery, spoke to him or his secretary, and removed their records over a period of six to eight weeks. This had only happened before at the rate of two or three times a year when patients moved from the area of his medical practice to a new area.

(b) The plaintiff received calls from local real estate agents for two or three weeks asking if he was going to put his house on the market. In the five years he had lived in the house he had only received calls like that “on invitation”.

(c) In the first few days after his return he was abused in front of his surgery by passers-by in words to the effect: “What have you done to the poor innocent people? They were insured by Bishopsgate, you are a scoundrel.”

(d) When he took his children, aged ten, eleven and twelve, to sporting events in which they played on Saturdays, as he habitually did, other parents whom he had known for years either became more reticent with him or walked to the other side of the field, “which was a bit disconcerting after knowing them for so many years”.

“What did you do with the money? We’re surprised that you came back. Have you been speaking to Stathis?”

As a result he ceased attending the North Bondi Surf Club.

(f) For about the previous five years he had been a member of the Icebergs, a club at the south end of Bondi the members of which swam in winter and played cricket in summer. Many members of the North Bondi Surf Club were also members of the Icebergs, and in consequence he stopped going to the Icebergs and stopped playing cricket, a game he had played from the age of twelve.

(g) He terminated his practice of attending annual secondary school reunions and decennial medical student reunions.

(h) He ceased his practices of meeting every Friday night at the Royal Oak Hotel with persons from all walks of life and of dining at Double Bay restaurants on Saturday with his family.

47 Evidence relevant to the plaintiff’s reputation before the Sun-Herald article and after it was given by two witnesses whom the jury was entitled to accept.

48 The first was Mr Hasson. He was a management consultant. He knew the plaintiff through the game of cricket in the late 1970’s. On occasions he played against the plaintiff, but for one season he played in the same team, meeting once or twice a week for twenty weeks. He understood that the plaintiff was a doctor. He said that the plaintiff’s reputation was that he “was always a quiet guy, … reliable, very likeable and just a good bloke to have in the team”. Mr Hasson left Sydney in 1978. He said that after reading the Sun-Herald article:

“I was surprised and I suppose disappointed … . Certainly my opinion of him as a result of reading that was that things I had thought about him in the past had changed dramatically to the extent where I, well I certainly wasn’t impressed.”

“Q. Did your opinion of him change for the better or for the worst as a result of reading the article?

A. For the worst.

Q. As a result of reading the article, would you have gone out of your way to meet him again?

49 The second reputation witness was Mr Sheringham. He was an employee of Alcan working in the smelter. He wanted to leave because he had developed bad dermatitis and eczema. He was sent to be examined by the plaintiff. If he left without working out a week’s notice, he would have forfeited his first week’s pay which the employer had retained. He said of the plaintiff:

“He had an excellent reputation, which is why the foreman told me to go and see him. ‘He’s a good bloke and an excellent doctor; (a) he can fix you up and (b) he is a sufficiently compassionate person, if anybody can get you out of here without working the week’s notice, it will be him’.”

Sun-Herald

“Q. And as a result of reading that article, was there any change in your opinion about Enn Vilo?

A. At the time yes, I was disgusted. I thought it was a terrible thing that a physician who had so much to offer the community, could sell himself out for a fast buck.”

Business Review Weekly

Sun-Herald

50 The plaintiff was asked the following questions about the Business Review Weekly article:

“Q. What it says about you there, was there anything about that, that you had some particular reflection on? You see it says you had ‘fled the company, Interpol was trying to check.’

A. The word ‘fled’ was very perturbing, because I could not understand what this ‘fled’ was referring to. I had a wife, my children went to school here, everyone was here, my house was half finished, that was still being renovated. I have organised my business so that my absence was covered, I had matters that I had to come back to. I think if memory serves me correct, I had two subpoenas that I had to attend to worker’s compensation matters. I mean, I could not understand if reporters write this, they must see someone that is obviously not fleeing. I mean, how could you flee under these circumstances and leave everything under control? To me, if somebody flees, they pack up their bags and that’s it, gone. They don’t organise their life and leave everything, suddenly in abeyance and disappear. It was bizarre.

Q. Moving on through the article, are there any other --

A. Oh the Estonian thing, because it sort of highlighted, there seems to be, to my reading ‘Estonian’ may be of some significance. I’m a naturalised Australian, I’ve lived here since 1949, I was seven when I arrived here, but all of a sudden I’m an Estonian again. It seems to make us two types of citizens, the ones born overseas and come here are still called by the country of their birth if the press find it highly attractive to put it in the paper and it was an offence to the Estonian community. I mean, there was no necessity to say I’m Estonian.

This exclusive ‘Woollahra’, I mean, my practice was like a little dog box on a corner. It was behind a roller blade shop and next to a firm that did concrete constructions. I had two windows in the middle opposite a hotel. I mean, the suburb in its areas may have been exclusive, but my bolt holt was just, that was it, it was a bolt hole. It was just an ordinary, unpretentious surgery . …

Q. Any other features of the article that struck you?

A. The racehorse ownership I think was a bit over the top. I mean, I had a racehorse, but this ‘racehorse owner’, I mean, it could have said I was a greyhound owner, which I once had a greyhound. The whole article, when you boil down to it, is offensive from beginning to end. I mean, once you start putting bits and pieces into an article, it is very difficult to highlight and bring things out that blend into the matrix of the background.

I have just highlighted a few things, but the ‘Beagle Boys’, as far as I can remember, they were one of the Micky Mouse robberies; ‘Bears’ I think they were with black masks on and loot bags over their shoulders. I thought if this is reporting accurately, there is something rather bizarre with the system that can allow this to be disseminated without any controls. We can go and pick bits and pieces out of it, but the whole thing is just, I group the whole thing as totally out of order.

Q. To you, what was that article saying about you?

A. That I was involved in illegal behaviour, fraud, deceit, my personality and my reputation as such were just destroyed in this article.

Q. I’m asking you now what, as you understood it, the article was saying about you to other people. That is what I’m asking?

A. I was a rogue, a person of dubious character that fled a country, most likely somehow involved in the stealing of $19 million, that’s it.”

Sun-Herald

51 The plaintiff gave the following evidence in chief about the termination of the contracts with Alcan and Lincoln Electrics:

“Q. Coming back to things that happened after your return to Australia, you have given evidence about the termination of the contracts with Alcan and Lincoln Electrics?

A. Yes.

Q. At that time did you have any other contracts in the occupational health industrial medicine area?

A. No.

Q. Had you had any approaches over the previous years from people to take up that sort of work for them?

A. Yes.

Q. With what sort of frequency?

A. Well, in medicine we are not allowed to tout. In other words, we cannot advertise for business, it has to come from a referral, it’s usually personnel managers recognise you, or one of the executives of a firm that is asked whether I would be available to work for somebody else. There always had to be a middle man to introduce me to a different company and generally there would be three or four queries a year. Some were just not suitable.

I tended to be very keen on companies that were prepared to expend money into a health centre, rather than just have a token doctor coming and going for appearance sake who did very well and many companies made the approaches purely and simply to keep it’s unions happy without too much financial input. Thirty per cent were of that nature, the rest were interesting propositions, some I took up, some I did not.

Q. Now, over what period of years had you had approaches of that nature?

A. Fifteen.

Q. After you returned to Australia in September 1983, did you have any approaches of that nature?

A. No.

Q. I want to ask you about the effect on you in the latter part of 1983, after you returned to Australia, of the loss of those two contracts with Alcan and Lincoln Electrics, understand?

A. Yes.

Q. Firstly, if we could look at it under the, if you like under the label of what it meant professionally, how did you see things professionally after you lost those contracts?

A. Having been involved, especially with Alcan for so many years and the nature of the termination in the middle of this publicity and being aware of the fact that throughout the company structures in New South Wales and Victoria, the major cities there is a networking process that is never ending between various stratas of management and they interlock as management levels go up and it was like a domino effect.

If one starts, the ripples go right through, so I was under the impression that the Alcan matter especially, Lincoln not to that same degree, had probably caused me irreparable damage in the occupational field, that for 20 years I had been efficient, this was my career, the career in medicine I selected and I was very, very worried that this was the end of it, and the fact that the Business Review Weekly was still circulating somewhere around, I became paranoid to the extent that I thought everyone was aware in the business community what the articles were, that they were open-ended, nobody knew what to do, the best thing to do, ‘Let’s just keep away from him, wait and see what happens’.

Q. And emotionally, did you have some impact from this emotionally?

A. I became withdrawn, I mentioned this before, I became hypercritical, I analysed everything, I was hypersensitive, I was, I had this feeling that I’m heading for ruin somewhere. It was a terrible position to be put into. I started thinking economically what this all meant to me. I realised that because of what had happened, that a certain significant part of my income was no longer helping me to survive.

Q. In terms of looking to the future, at that time, placing yourself in say September, October 1983 and looking ahead, did you have any sort of apprehension about the economic future?

A. Well I did, but I took a bit of an optimistic view in a sense that I realised that as sad as it was at that time that my occupational health career was almost terminal, I, the only option I had was to, in the short to medium term, to sell some of the assets.

Q. I don’t want to talk so much about your detailed financial circumstances and what you did, if you understand, I want to ask about your own, I used the word ‘apprehensions’, but your state of mind as to what the financial future might hold for you, as you saw it, putting yourself around in that last part of 1983, after the dust had settled a bit and you had had your, if you like, your final reflection on these articles and so on and the degree of the feedback you have spoken about from people, just how did you feel about the future?

A. Grim, grim. I, it was just a day to day proposition. I had no knowledge of what I was going to do. I knew I worked at the surgery, which I did everything to build up, but the rest of it was just living from day to day.”

The jury were entitled to accept this evidence. If they did, they were also entitled to consider that the plaintiff had not been guilty of an over-reaction.

The submissions considered

52 In Crampton v Nugawela (1996) 41 NSWLR 176 at 193 Mahoney ACJ said:

“In some cases, a person’s reputation is, in a relevant sense, his whole life. The reputation of a clerk for financial honesty and of a solicitor for integrity are illustrations of this. The reputation of a doctor is, I think, of this character: at least, it is so where a substantial part of his work is in an area where he acts on reference from or with the recommendation of other doctors. If Dr Crampton’s allegations were true, Dr Nugawela would have no future in informatics or in any matter related to his dealings with other doctors. What he could do as a general practitioner in his relations with his patients might well be affected His relations with consultants or with hospitals to which he might wish to send his patients might well be seen to be affected. In this regard it is relevant that, as the plaintiff said, Dr Crampton did not ever apologise to him. This, he said, ‘makes me angry because it’s a continuing endorsement of his original comments’. And there was, he said, no apology from the College in respect of the letter.

In addition to the positive evidence in this regard, the jury might, in my opinion, have inferred that in a professional grouping such as medicine, allegations made formally suggesting lying and untrustworthiness of a known member of the profession would receive significant coverage. It is a matter in which, gossip apart, professional colleagues have an interest: the trustworthiness, actual or reputed of a professional colleague is a matter of a legitimate and ongoing interest.”

53 Those words have application to the plaintiff in this case. On the evening of 11 August 1983, after half a lifetime of effort and the development of an outstandingly successful career, the plaintiff can be presumed to have had a high professional, business and personal reputation. Indeed, the matter goes beyond presumption. There was specific evidence of his professional reputation from Mr Sheringham. There was specific evidence of his personal reputation from Mr Hasson. He could not have enjoyed the successful career he had without its progress being assisted by a high professional, business and personal reputation, and without its success in turn enhancing that reputation. By the time the Business Review Weekly article had been published and circulated on and after 12 August 1983, he was a ruined man. The three imputations were unquestionably grave. The plaintiff’s general reputation for honesty among doctors must have been seriously damaged. His general reputation for honesty among businesses who had enjoyed his services in occupational health, or were enjoying them, or might in future seek to enjoy them, was very likely to have been damaged. His reputation among patients apart from the employees of Alcan and Lincoln Electrics was lowered. His reputation among private patients was reduced. His reputation amongst the circle in which he moved was adversely affected. Indeed, there was specific evidence - emanating from the plaintiff, but capable of being accepted by the jury - of the collapse of the plaintiff’s reputation among his circle and among his patients, and the independent evidence of Mr Hasson and Mr Sheringham respectively illustrated this. The jury could legitimately conclude as a matter of practical circumstantial inference well within their province that the termination of the Alcan and Lincoln Electrics contracts was because of the Business Review Weekly article even though no witness said this was so. Indeed it would have been surprising if those contracts had not been terminated, at least in the absence of a detailed explanation from the plaintiff justifying his position. Neither Alcan nor Lincoln Electrics appeared interested in hearing any such explanation or even in giving the plaintiff an opportunity for one to be supplied. Further, the jury were entitled to accept the plaintiff’s evidence that his feelings had been very gravely injured.

54 These considerations, with which the defendants’ submissions did not directly grapple, suggest that the total figure of $0.5 million was not appellably excessive. The arguments of the plaintiff to this Court afford rational explanations for how the particular components of that total figure could have been arrived at. Different minds might have arrived at different figures, including figures bearing a different proportion from those actually awarded, as is inevitable when an imprecise process such as assessing general damages in defamation proceedings is embarked on. But neither the total of $0.5 million nor each of the individual awards considered separately either suggests by itself some error in the process which led to it or indicates excessiveness on its face.

55 It was a central part of the defendants’ submissions that the absence of evidence called by the plaintiff as to the specific impact of the imputations meant that the jury had no rational bases on which they could have arrived at each of the elements of the verdict complained of or at the total verdict of $0.5 million. However, the state of the evidence is not a bar to the plaintiff’s defence of the outcome at trial. The three imputations were published in one article. It might well be difficult either for the plaintiff or for any other person to separate out the impact of each imputation compared to the other two imputations, particularly since they were overlapping. The jury were entitled to attempt to assess the inherent seriousness of each imputation even though there was no evidence from any witness other than the plaintiff about the Business Review Weekly article. The plaintiff did isolate imputation (i), that he was a fugitive from justice, when he gave evidence, set out above, that he found the word “fled” very perturbing for the reasons he described. However, the central premise of the defendants’ argument lacked support. The defendants cited no authority for the proposition that large awards are not available for separate imputations even though there is no or little evidence specifically linking the reactions of the plaintiff or other witnesses with each particular imputation considered separately. Indeed the defendants cited no authority even for the proposition that there had to be specific evidence linking the imputations in a publication as a whole with the alleged harm to the plaintiff’s reputation and feelings. Their failure to do so is not surprising.

56 The defendants’ submissions which fasten on the disparity between the award of $20,000 for imputation (i) in the Sun-Herald and $200,000 for imputation (i) in the Business Review Weekly are unsound for the reasons advanced by the plaintiff. The Business Review Weekly article was the first one critical of the plaintiff. The Sun-Herald was later, much briefer, and much milder. The Business Review Weekly was directed to classes of person whose esteem the plaintiff depended on, and even though the plaintiff did not seek special damages, he was entitled to recover for injury to his reputation within that class and for injury to feelings resulting from the loss of that reputation. If anything the Sun-Herald award shows that the jury took the Business Review Weekly award on imputation (i) into account and reduced the Sun-Herald imputation (i) award accordingly. That last factor also means that the defendants’ submission that the jury apparently failed to take into account in mitigation of the awards for the Business Review Weekly imputations the award of $20,000 for imputation (i) in the Sun-Herald must fail. In any event, if that was their only error, it would be an error affecting a relatively miniscule part of the total award.

57 The defendants’ submission that the jury’s answers to questions about contextual truth reveal that its reasoning on damages was unsafe and unsound must be rejected. There is nothing explicit in the trial record pointing to any such connection. For reasons given in relation to Grounds 11 and 12, the contextual truth issues were difficult, in both a legal and a practical sense. But whether the jury or any other participant in the trial mishandled them is beside the point, because they were wholly severable from and unconnected with the damages issues. The rather distracted and perfunctory manner in which the parties dealt with them indicates that they were treated as a complete sideshow, having no significant relationship to the damages part of the case at all.

58 The defendants’ submission that the award revealed that the jury had failed to give any or any adequate weight to delay in prosecuting the case is baseless. The jury heard the plaintiff cross-examined on this subject. He gave various explanations for delay, including difficulties resulting from changes of solicitor. The trial judge directed the jury about delay. There is no reason to suppose that the jury failed to give delay whatever weight they thought proper. In particular, it was for the jury to decide whether the delay revealed that in truth the plaintiff was not greatly troubled about any injury to reputation or feelings caused by the imputations. Nothing suggests that they failed to carry out that part of their task properly.

59 The defendants’ submission that the jury awards were erroneously inflated by a punitive element is also baseless. The trial judge directed the jury not to do that. There is no reason to suppose that they disobeyed.

60 The defendants’ submission that the jury awards bore no rational relationship to the harm suffered on the ground that the most severe case of motor vehicle personal injury is entitled to a sum of approximately half the amount awarded by the jury to the plaintiff to compensate him for the injury caused by publication of the Business Review Weekly article must fail. That is not an appropriate comparison to make, because, as explained in relation to Grounds 2-4, awards of general damages to plaintiffs not subject to statutory capping can be much higher. Those awards are not appellably disproportionate to the figures at which the jury arrived for the plaintiff.

61 Finally, it is necessary to deal with the defendants’ submission that the admission into evidence of Exhibits A, B and H misled the jury into thinking that they could take into account economic loss as a component of compensation. This submission was advanced separately from the defendants’ challenge to the trial judge’s decision to admit these Exhibits, which was propounded in Ground 21.1-.3 and is considered next. Exhibit A is the document apparently emanating from Alcan which Dr Brasier showed the plaintiff on 5 September 1983 revealing that Alcan had terminated its contract with the plaintiff on 22 August 1983. Exhibit B is the letter of 13 September 1983 from Lincoln Electrics terminating its contract with Industricare Pty Ltd. Exhibit H is a document dated 19 October 1983 signed by Mr E R Green, who had dealings with the plaintiff during the currency of the Alcan contract, speaking highly of the plaintiff’s performance. The defendants’ submission was that the amount of the verdict indicated that the jury ignored the direction which the trial judge gave them to put out of mind any financial loss being incurred as a result of the loss of those two contracts. However, there is simply no basis for concluding that the jury did ignore that direction or that Exhibits A, B and H misled them into doing so.

62 The defendants submitted that the trial judge erred in failing to give any directions to the jury as to the need for them to take into account in mitigation of the awards for the Business Review Weekly imputations the award of $20,000 made for the Sun-Herald imputation. This criticism was said to rest on s 48 of the Act which provides:

“In proceedings for damages for defamation in respect of the publication of any matter, evidence is admissible on behalf of the defendant, in mitigation of damages, that the plaintiff:

(a) has already recovered damages,

(b) has brought proceedings for damages, or

(c) has received or agreed to receive compensation,

for defamation in respect of any other publication of matter to the same purport or effect as the matter complained of in the proceedings.”

Business Review Weekly

Sun-Herald

63 Ground 1 should be rejected.

Ground 21: Admissibility of Evidence

64 Ground 21 was as follows:

“21.1 The trial judge erred in admitting into evidence exhibits A, B and H.

21.2 The trial judge should have refused to Admit Exhibits A and B on the grounds:

(a) each document was irrelevant to an issue in the proceedings because the Respondent failed to adduce evidence to establish that the authors of the respective exhibits had read either the first matter complained of or the second matter complained of [and] wrote the letters comprising exhibits A and B in response to:

(i) their reading of either of the matters complained of; and

(ii) their understanding that the relevant matter complained

of carried the imputations alleged; and

Evidence Act

21.3 Her Honour should have refused to admit exhibit H on the ground that it was irrelevant to any matter in issue because it was evidence as to the Respondent’s ‘character’ and not reputation.

21.4 Having admitted exhibit H Her Honour misdirected the jury on how they should use the document. The trial judge’s directions erroneously permitted the jury to use the document to come to a finding as to the manner in which the Respondent conducted himself as a medical practitioner.”

65 Ground 21.1, being a rolled-up ground, does not call for separate examination.

66 In examining Ground 21.2(a), it is necessary to bear in mind s 55(1) of the Evidence Act 1995, which provides:

“The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.”

“If the determination of the question whether evidence adduced by a party is relevant depends on the court making another finding (including a finding that the evidence is what the party claims it to be), the court may find that the evidence is relevant:

(a) if it is reasonably open to make that finding; or

(b) subject to further evidence being admitted at a later stage of the proceeding that will make it reasonably open to make that finding.”

67 It was open to the jury to infer that relevant executives of Alcan (in relation to Exhibit A) and Lincoln Electrics (in relation to Exhibit B) had read or been informed of either the Business Review Weekly article or the Sun-Herald article; had formed the understanding that the articles carried the imputations complained of; and had decided in consequence that the relevant contracts should be ended. Of course the jury could reject the inferences, but they were, in the light of all the evidence, open. At the time when the trial judge admitted Exhibit A and Exhibit B, which was on the second day of the trial, the trial judge was entitled to treat the evidence as relevant if it was reasonably open for findings along those lines to be made. The plaintiff gave evidence that Business Review Weekly circulated within Alcan. It was open to the jury to infer that by similar means or by some other means someone at Lincoln Electrics saw the article. It would be a coincidence if, immediately after the two articles, Alcan and Lincoln Electrics would choose to terminate their contracts for some reason other than the imputations. It would be a coincidence if they terminated the contracts despite the fact that no relevant executive had read the articles or spoken to someone who had. If any relevant executive had read the articles, it would be a coincidence if the contracts were terminated merely because the plaintiff had been the executive director of a company which crashed notwithstanding the much graver imputations against the plaintiff appearing in the articles. At all events, these were issues fairly open for the jury’s consideration. The defendants very properly put to the plaintiff in cross-examination various possible grounds other than the imputations on which Alcan and Lincoln Electrics might have terminated the contracts. These possible grounds were the crash of Bishopsgate itself; the other publicity about the crash and the plaintiff’s connection with the company; and the plaintiff’s alleged failure to perform services during August 1983 without making proper alternative arrangements. The plaintiff denied these suggestions, and the merits of that contest were a matter for the jury. The jury were entitled to conclude that termination of the contracts after publication of the imputations was no coincidence.

68 The defendants submitted that there had to be direct evidence that executives from Alcan and Lincoln Electrics had read the matter complained of and identified the imputations conveyed. They submitted that that proposition was supported by statements in Hughes v Mirror Newspapers Ltd (1985) 3 NSWLR 504 at 510 and 512. The statements in that case do not enunciate that proposition. That case does not exclude the legitimacy of establishing that the executives had read the articles and identified the imputations by a process of circumstantial inference. Even if Hughes v Mirror Newspapers Ltd did support the contentions of the defendants, it is questionable whether it could stand after the enactment of the Evidence Act.

69 The argument that the documents were irrelevant fails.

70 The issue raised by Ground 21.2(b) is whether the trial judge ought to have excluded Exhibits A and B on one of the grounds specified in s 135 of the Evidence Act. It provides:

“The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing; or

(c) cause or result in undue waste of time.”

71 Ground 21.3 related to Exhibit H. Exhibit H was a statement composed by Mr E R Green on 19 October 1983. He was an Alcan executive who dealt with the plaintiff until April 1983. By the time of the trial he had died. On its face the document was written in response to a request from solicitors formerly acting for the plaintiff.

72 The defendants said that Ground 21.3 rested on a principle of the law of defamation as distinct from the law of evidence. The principle was said to have been illustrated in Plato Films Ltd v Speidel [1961] AC 1090. In that case the House of Lords held that evidence of particular acts of misconduct on the part of a plaintiff could not be given in mitigation of damages where a plea of justification had failed. See also Singleton v John Fairfax & Sons Ltd (No 1) [1983] 2 NSWLR 722. More specifically, in Plato Films Ltd v Speidel [1961] AC 1090 at 1139 Lord Denning said that a reputation witness called by the plaintiff “cannot be asked questions in examination-in-chief about particular facts so as to illustrate the plaintiff’s good behaviour on particular occasions”. The trial judge said, in a judgment giving reasons for her ruling that Exhibit H was admissible:

“a central issue in a defamation proceeding is the reputation of the plaintiff. Evidence that can throw light on the plaintiff’s reputation, either before or after the publication, is therefore relevant and, subject to exclusory provisions, admissible. While the plaintiff’s character is to be distinguished from reputation, evidence of character may, in my opinion, sometimes illuminate the question of reputation.

In the document Mr Green identified himself as having been employed for more than eight years by one of the two companies against whom the plaintiff had commenced proceedings, in the personnel and industrial relations areas, in which role he had responsibility for overseeing the services provided by the plaintiff. He acknowledged that he lacked medical qualifications to supervise the services from a medical point of view; his role was to monitor the provision of the services in accordance with company objectives. Mr Green appeared to state the purpose of the document in the following sentence:

‘Therefore I feel qualified to comment on the benefit and performance from a corporate viewpoint of the occupational health activities in various organisations.’

However, what follows goes well beyond that rather limited and specific purpose. After identifying himself and his experience, Mr Green wrote that he had had ample opportunity to observe the plaintiff’s professionalism and administrative expertise and:

‘I can categorically state that Dr Vilo as the principal officer of Industricare Pty Limited established and maintained an occupational health centre which was recognised by many outside organisations including the Division of Occupational Health as one of the most professionally well organised and modern in Sydney …

I feel I should also add that Dr Vilo established a rapport with the trade union members and certain officials with whom he was required to deal with and [to] the best of my knowledge they valued his credibility. Perhaps I should also add that for many years because of the occupational health centre to which Dr Vilo was responsible for having such a high reputation in that community that the occupational health centre was regularly visited by the students of the Occupational Health Nursing Certificate Course as an example of how such centres should be set up and furthermore on a number of occasions Company representatives were asked to attend various seminars, some run in conjunction with the trade union movement to explain the occupational health centre’s activities again as an example to the community …’

All of this is plainly relevant to the plaintiff’s reputation and is capable of assisting the jury to a resolution of the issues they have to decide, and is therefore relevant.

It is not so in relation to the contents of the paragraph numbered 3. That paragraph opens with the observation that the author had been asked to comment on the terms and conditions of the plaintiff’s contract with the company and this is what he did. That can provide no enlightenment on issues relating to the plaintiff’s reputation or on any other presently identified issue.”

73 Exhibit H, in particular that part of it which the trial judge quoted, can be read as stating that the occupational health centre for which the plaintiff was responsible had a very high reputation. To state that an occupational health centre run by a corporation has a very high reputation is to say something about that corporation’s reputation. In turn, to state that a corporation run in large measure by one person has a high reputation is to say something about that person’s reputation at least in a particular circle of society. This is particularly so where, as here, the excellence of the occupational health centre’s reputation is explicitly attributed to the person. Here the excellence of the reputation enjoyed by the centre, the corporation and the person existed in the world of occupational health centres - those who wanted them and those who supplied them.

74 It is true that if Mr Green had survived and had been giving evidence in the witness box in the language of Exhibit H, the form of his evidence might have been objectionable, and from one point of view this was the basis of the defendants’ complaint. But in due course the process of objection and ruling would have hammered out a series of questions which would have elicited his evidence in admissible form. Exhibit H, though falling within the hearsay rule set out in s 59(1), was admitted under the exception to it which is created by s 63. Section 63 makes admissible “a document so far as it contains [a previous representation], or another representation to which it is reasonably necessary to refer in order to understand the reputation”. “Representation” is defined in Part 1 of the Dictionary as including “an express or implied representation …”. Exhibit H at least impliedly made a representation about the plaintiff’s reputation. There is no provision in the Evidence Act requiring “representations” to be in a form which could, over objection, properly be given as direct oral evidence by their makers if called as a witness. There is no reason to read that requirement into the legislation, any more than McLelland J read it into corresponding provisions in the Evidence Act 1898, s 14B: Ritz Hotel Ltd v Charles of the Ritz Ltd (Nos 15 and 16) (1988) 14 NSWLR 107 at 111-112; cf Tobias v Allen (No 2) [1957] VR 21.

134 The plaintiff pointed out that the article was written, and the relevant judgments made, within no more than a day and a half. Again, the plaintiff submitted that even if no further inquiries could have been made, that would not make reasonable what was otherwise unreasonable, and the totality of what was available to the defendants’ journalists was not sufficient to justify publication of such serious accusations.

135 The reasoning of the trial judge has not been shaken by the defendants’ criticisms. The stress placed by those criticisms on an analysis of the journalists’ sources is misplaced because it is a partial inquiry. Even if the trial judge had set out the evidence on sources as fully as the defendants did in their submissions to her and to this Court, and even if she had given it the fullest weight, that would not avail the defendants. Questions about the analysis of sources overlook the real essence of the trial judge’s reasoning, which fastened on a concentration by the defendants on the irrelevant and sometimes incorrect matters of prejudice and on a failure to set out Dr Brasier’s opinion that the plaintiff would return. Mr Penberthy, who in one breath called Dr Brasier loyal and perhaps naive, three questions later admitted that he had no reason to disbelieve or doubt him. He admitted that, particularly since Dr Brasier was the only source he had who really knew the plaintiff, the article should have contained a statement of Dr Brasier’s view that he was sure that the plaintiff would return. The omission of a report of what Dr Brasier said is hard to square with criteria of reason, particularly since the article included some material from Dr Brasier which suited the apparent purpose of its authors, namely Dr Brasier’s account of being recalled by the plaintiff “back from the NSW snowfields on Thursday evening, calmly telling him that he had to ‘go overseas on business’.”

136 Grounds 19 and 20 fail.

Grounds 11 and 12: Contextual Imputations

137 These grounds, which were amended on the second morning of the appeal, were:

“11. The jury’s finding that the defendant had not proved the truth of the contextual imputation namely: the plaintiff was suspected by Officers of the Fraud Squad of fleeing from Australia because the plaintiff was involved in the defrauding of Bishopsgate Insurance Australia Limited by Andrew Stathopoulos, was perverse because:

(a) the jury had heard the evidence of Commander Morgan (T672/50-60) and Mr Whittaker (T438/5-45) each of whom gave unequivocal evidence of having held the relevant suspicion; and

(b) there was no matter which might have cast doubt on that testimony; and

(c) it was not suggested to either Commander Morgan or Mr Whittaker in cross-examination that he (or they) had not held the relevant suspicion.

12. The only finding a reasonable jury properly instructed could make in respect of the said contextual imputation was that that imputation was a matter of substantial truth.”

138 Section 16 of the Act provides:

“(1) Where an imputation complained of is made by the publication of any report, article, letter, note, picture, oral utterance or other thing and another imputation is made by the same publication, the latter imputation is, for the purposes of this section, contextual to the imputations complained of.

(2) It is a defence to any imputation complained of that:

(a) the imputation relates to a matter of public interest or is published under qualified privilege,

(b) one or more imputations contextual to the imputation complained of:

(i) relate to a matter of public interest or are published

under qualified privilege, and

(c) by reason that those contextual imputations are matters of substantial truth, the imputation complained of does not further injure the reputation of the plaintiff.”

139 At the trial there were two relevant contextual imputations for the jury to consider. One was:

“That the plaintiff was so derelict in his duties as an Executive Director of Bishopsgate that he fled Australia to avoid inquiries into the collapse and defrauding of Bishopsgate.”

“That the plaintiff was suspected by officers of the Fraud Squad of fleeing from Australia because the plaintiff was involved in the defrauding of Bishopsgate Insurance Australia Limited by Andrew Stathopoulos.”

140 These contextual imputations had a somewhat untidy history at the trial.

141 On 9 November 1999 Detective Sergeant Whittaker gave evidence that in 1983 he liaised between the Fraud Squad and Corporate Affairs Commission personnel; that in August 1983 he contacted Interpol in order to have the plaintiff placed on the Interpol watch list; and that he had a suspicion that the plaintiff “could have been responsible with Stathis as being the perpetrator of the fraud involving Bishopsgate”. He also referred to the plaintiff as having “absconded”. He was not cross-examined on that evidence.

142 On 11 November 1999 Detective Constable Morgan, who was assisting Detective Sergeant Whittaker, said that from 8 August 1983 he had suspicions that the plaintiff “was in some way involved in events which had resulted in the stripping of the insurance company of its assets”. He was not cross-examined on that evidence.

143 The defendants also tendered business records constituting communications from the Australian Federal Police, apparently at Detective Sergeant Whittaker’s instigation, and also the defendants would have it, with Interpol in relation to placing the plaintiff on a watch list, though since the dates of the communications are either unclear or post-date the articles they do not afford distinct corroboration for the evidence of the police officers as to their beliefs just before the articles were published.

144 Though the police officers had not been cross-examined to suggest that they did not hold the relevant suspicion, Detective Sergeant Whittaker was cross-examined about telephone calls which the plaintiff said had occurred between himself and Detective Sergeant Whittaker while the plaintiff was overseas. The plaintiff’s evidence did not enable these calls to be dated with precision. Detective Sergeant Whittaker denied them.

145 The defendants addressed first. All they said on this subject was that they had proved the contextual imputation about suspicion to be substantially true because of the police officers’ evidence, and they noted that there had not been cross-examination on that evidence.

146 Then the plaintiff addressed. The plaintiff advanced submissions to the jury, which the defendants identified by degrees on the first day of the appeal, about whether the phone calls had taken place and whether Detective Sergeant Whittaker’s evidence about them should be rejected. Early on the second day of the appeal, however, the defendants took the court to a passage late in the plaintiff’s address to the jury in which he made the point that the contextual imputation about being suspected by the police did not arise because in truth the articles said more. He then said:

It is quite obviously true that at one point the police suspected Mr Vilo. It is true as a fact. I do not argue with that at all. The police suspected him.

I don’t argue about the suspicion not being true, of course it is. At that period, yes it was.

147 The trial judge said the following about contextual imputations in her summing up:

“The defendants also argue that each publication conveyed the additional imputation that the plaintiff was so derelict in his duties as executive director of Bishopsgate that he fled Australia to avoid enquiries into its collapse and defrauding; and they allege a further imputation, that he was suspected by officers of the Fraud Squad of fleeing Australia because he was involved in that defrauding. It is a matter for you whether you consider that either of those imputations was conveyed and, if so, whether it was defamatory.

I would suggest that if you find that those imputations were conveyed you would have little difficulty in finding that each of them was defamatory but, as I say, that is a matter for you.

Then you have to decide whether either of those or both of them were substantially true and again you put that into the equation and balance whether the publication of the imputation that the plaintiff had been a party with Stathopoulos to the misappropriation of $19 million did any further damage to his reputation.

You will remember Mr Wheelhouse did not advance a strong argument in relation to the first imputation that he put forward, that is the imputation that the plaintiff was derelict in his duties as an executive director. As I understand it, he did not suggest that if you considered that that imputation was conveyed and was defamatory and was substantially true, that you would consider that it was so serious as to outweigh the damage done by the third imputation about stealing $19 million. However, he did argue, and strongly, that if you find any of the other imputations made out and proved true, or any combination of them, then they together would outweigh the harm done by the third imputation.

I don’t think there is a great deal more I can say to you about this question. It depends upon looking at the articles themselves in the same way you previously did when considering the imputations contended for by the plaintiff and weighing up the relative seriousness of those that you find to have been true, against the imputation that you are considering which necessarily you will have found not to be true.

Mr Molomby put an argument to you about the two imputations which the defendants say arise additionally to the plaintiff’s imputation, that is that he was derelict in his duties as director and that he was suspected by the Fraud Squad of being guilty of misappropriation. He said you would not draw those imputations from the articles because the articles go, in each case, further than that. They say more than that. They do not say he was suspected by the Fraud Squad of being guilty, they convey the imputation that he was guilty; and they do not say that he was neglectful or derelict in his duties as director, they concentrate on the fraud.

It is a matter for you and, as I say, you will have to look at each article. You might find one of the articles conveys the imputations contended for by the defendants or one of them and one does not. It is very much, as before, a case of looking at the whole of the context of the articles and determining what they would mean to the ordinary reasonable reader.

I have dealt with all I can in relation to that. You will remember the arguments put to you on the one hand, that these, this is the collection of imputations that were conveyed and were true, against any imputation you find conveyed was not true.”

148 On the appeal the defendants complained that these directions were inadequate. They did not put that complaint to the trial judge at the time; they did not ask for any direction about the plaintiff’s breach of the rule in Browne v Dunn (1893) 6 R 67 (if that rule fully survives s 46 of the Evidence Act) by reason of having not cross-examined the police officers on their suspicions; they did not ask for any direction about the plaintiff’s concessions near the end of his address that the police officers had the suspicions; they did not ask for leave to serve a Notice to Admit Facts to be responded to instantly which would have reduced those concessions to written form; and they did not seek to agree a relevant fact pursuant to s 191 of the Evidence Act. Further, the defendants’ complaint about the trial judge’s summing up is not matched by any ground of appeal. In those circumstances that complaint should not be entertained. But that conclusion is independent of the merits of Grounds 11 and 12.

149 The jury found that both contextual imputations were not substantially true. The finding as to the first contextual imputation was not the subject of appeal. Grounds 11 and 12 were concerned with the second contextual imputation. Much time was taken up on the appeal in debate about such questions as whether the trial judge could have made it plainer to the jury that they did not have to worry greatly about the truth of the relevant contextual imputation about police suspicion in view of the plaintiff’s concession near the end of address; whether the jury could legitimately have decided that the defendants had failed to discharge their burden of proof on that issue, notwithstanding the plaintiff’s concession, given that the issue had to be left to the jury, on the basis that the police officers were giving evidence about events sixteen years ago without the benefit of contemporary notes and were not, contrary to one suggestion in the defendants’ written submissions, directly corroborated by the Interpol documents; whether the jury could legitimately have decided that the defendants had failed to discharge their burden despite the plaintiff’s failure to cross-examine the police officers and his failure directly to submit that their evidence on suspicion should be rejected; whether the telephone conversations between the plaintiff and Detective Sergeant Whittaker, if they occurred, and if they occurred at the appropriate time, constituted circumstantial evidence, taken with the fact that the plaintiff’s solicitor was in touch with the police, negating his claim to have suspicions; whether, since though Detective Sergeant Whittaker had been partially attacked in address on the telephone conversations, Detective Constable Morgan had not been attacked at all, it was open to the jury to find that the latter had suspicions even though they were not satisfied that the former did, and whether that would make the contextual imputation, which referred to “officers” in the plural, something which was not a matter of “substantial truth”; whether what the plaintiff said by way of apparent concession could be read as either being a statement meaning something else, or as an attempt to say something else; whether what the plaintiff said by way of apparent concession was a concession of some suspicion other than the relevant suspicion; and whether light was cast on the last two issues by the lack of reference to the supposed concession by the defendants’ failure to seek any direction about it from the trial judge and by the trial judge’s failure to refer to it in her summing up. Indeed, there are other possible issues: for example, there might be a question whether the jury answers could be defended on the ground that while the police officers’ evidence in chief was that they suspected the plaintiff of wrongdoing, they did not say in terms that they suspected that he had fled because of the wrongdoing.

150 However, it is not necessary to decide these points which arise out of a wholly unsatisfactory evidentiary and procedural matrix. Let it be assumed that for some reason the jury’s conclusion that second the imputation was not substantially true was, as Ground 11 said, perverse. What follows?

151 So far as the Business Review Weekly article is concerned, if the jury had found that both contextual imputations had been conveyed, and that both were substantially true, it would have been a jury question whether imputations (i)-(iii) did not further injure the plaintiff’s reputation. Obviously no-one at the trial could foresee what the jury findings would be until they were announced. Once they were announced, it became clear that the jury findings that the first contextual imputation was not conveyed but that the second was opened up a weakness in the defendants’ position which until then had only been potential. That weakness would have existed even if the jury had found not only that the second contextual imputation was conveyed but also that it was true. The weakness would have been exposed when the jury moved to consider whether the substantial truth of the surviving contextual imputation meant that imputations (i)-(iii) did not further injure the plaintiff’s reputation. Bearing in mind the terms of imputations (i)-(iii), it can be seen that the surviving contextual imputation was in substance an imputation that the plaintiff was “suspected” of carrying out the conduct alleged in imputation (i) (fleeing from justice) because of the conduct alleged in imputations (ii) and (iii) (misappropriating and being a party with Mr Stathopoulos to the misappropriation of $19 million from Bishopsgate). As a matter of logic an imputation that one is merely suspected of conduct must be less serious than an imputation of being suspected of that conduct on reasonable grounds, and must in turn be much less serious than an imputation of having in fact carried that conduct out. The contextual imputation of being suspected, since it is less serious than the imputations of having carried out the conduct suspected, was such that the latter imputations must inevitably have further injured the plaintiff’s reputation. If the contextual imputation about suspicion had been the only contextual imputation pleaded, it would have been open to the plaintiff to have had it struck out of the Defence, at an early stage of the proceedings, or to have had its merits determined as a separate question under Part 31 rule 2 of the Supreme Court Rules, or to have had it withheld from the jury. However, those courses were not available to the plaintiff, because until the jury returned their verdict, the contextual imputation about suspicion was not the only contextual imputation. The other contextual imputation was a very serious one capable, if it was conveyed and if it was substantially true, of causing imputations (i)-(iii) not to have the effect of further injuring the plaintiff’s reputation.

152 These grounds of appeal arise when the contextual imputation about suspicion is the only contextual imputation. In deciding whether the trial miscarried by reason of the finding of the jury which is to be assumed to be perverse, and which led to a verdict for the plaintiff, it is relevant to consider whether they could have arrived at any outcome other than a verdict for the plaintiff even if they had made a contrary finding as to the truth of that imputation.

153 In relation to the Business Review Weekly article, it was not reasonably open for them to do so. For the reasons just explained, the contextual imputation by itself was not capable of damaging the plaintiff’s reputation to such an extent that imputations (i)-(iii) did not further injure it.

154 Alternatively, the court’s discretion should be exercised against ordering a new trial in relation to the Business Review Weekly article. Part 51 rule 23(1) of the Supreme Court Rules provides:

“(1) The Court of Appeal shall not order a new trial:

(a) on the ground of misdirection, non-direction or other error of law;

(b) on the ground of the improper admission or rejection of evidence;

(c) where there has been a trial before a jury, on the ground that the verdict of the jury was not taken upon a question which the trial judge was not asked to leave to the jury; or

(d) on any other ground,

unless it appears to the Court of Appeal that some substantial wrong or miscarriage has been thereby occasioned.”

155 What is the position in relation to the Sun-Herald article? Here the jury only found a verdict on imputation (i), because they accepted defences of comment on imputations (ii) and (iii). The question is whether by reason of the fact that a contextual imputation that the plaintiff was suspected by officers of the Fraud Squad of fleeing from Australia because the plaintiff was involved in the defrauding of Bishopsgate by Mr Stathopoulos was substantially true, the jury could reasonably conclude that imputation (i) did not further injure the reputation of the plaintiff. There is less formal congruity between the generalised imputation of being a fugitive from justice and the imputation of being suspected of fleeing for a particular discreditable reason than there is between that generalised imputation taken with imputations (ii) and (iii) and the contextual imputation. It may be less clear that the jury must inevitably have concluded that imputation (i) did not further injure the reputation of the plaintiff. But the better view is that the contextual imputation by itself was not capable of damaging the plaintiff's reputation to such an extent that imputation (i) did not further injure it. Hence the jury could not reasonably have concluded that imputation (i) did not further injure the plaintiff’s reputation.

156 But let it be postulated that that conclusion is wrong. In that event, the position would be that the defendants, assuming the jury finding on the substantial truth of the contextual imputation was perverse, have established an error which may have affected the outcome of the trial. However, the likelihood that it would have done so is so low that it cannot be said that any substantial wrong or miscarriage occurred. The court ought to exercise its discretion under Part 51 rule 23(1)(d) against ordering a new trial on imputation (i) appearing in the Sun-Herald article.

157 Grounds 11 and 12 fail.

Orders

158 The following orders are proposed:

1. The appeal is dismissed.

2. The appellants are to pay the respondent’s costs of the appeal.

**********

Citations

John Fairfax & Sons Ltd v Vilo [2001] NSWCA 290

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CITATION:	John Fairfax & Sons Ltd & Anor v Vilo [2001] NSWCA 290
FILE NUMBER(S):	CA 40869/00
HEARING DATE(S):	16, 17 August 2001
JUDGMENT DATE:	12 September 2001
PARTIES :	John Fairfax & Sons Ltd (First Appellant) David Syme & Co Ltd (Second Appellant) Enn Vilo (Respondent)
JUDGMENT OF:	Handley JA at 1; Giles JA at 2; Heydon JA at 3

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	SC 17027/83
LOWER COURT JUDICIAL OFFICER :	Simpson J

COUNSEL:	Mr W H Nicholas QC/Mr J S Wheelhouse (Appellants) Mr C A Evatt/Mr T Molomby/Mr G Hansen (Respondent)
SOLICITORS:	Mallesons Stephen Jaques (Appellants) Leitch Hasson & Dent (Respondent)
CATCHWORDS:	Torts - Defamation - Appeal against decision of jury - Damages - Defence re contextual imputations - Whether quantum of damages manifestly excessive - Whether jury's finding that contextual imputation was untrue was perverse and led to miscarriage of justice justifying re-trial - Defamation Act 1974 (NSW), s 16 - Supreme Court Rules 1970 (NSW), Pt 51 r 23(1) - Torts - Defamation - Appeal against decision and directions of trial judge - Whether statutory and common law defences of qualified privilege made out - Whether publishers' actions were "reasonable" - Whether trial judge should have directed jury to consider range of damages in personal injury verdicts - Whether trial judge should have ordered separate verdicts for the various imputations - Defamation Act 1974 (NSW), ss 9(5), 22(1)(c), 46A(2), 48(b) - Evidence - Relevance - Representations - Form - Discretion - Evidence Act 1995 ss 55, 57, 65 and 135 - D
LEGISLATION CITED:	Defamation Act 1974 Evidence Act 1898 Evidence Act 1995 Human Rights Act 1998 (UK) Motor Accidents Act 1988 Workers Compensation Act 1987
CASES CITED:	Browne v Dunn (1893) 6 R 67 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 Coyne v Citizen Finance Ltd (1991) 172 CLR 211 Crampton v Nugawela (1996) 41 NSWLR 176 Holford v Melbourne Tramway and Omnibus Co Ltd [1909] VLR 497 Hughes v Mirror Newspapers Ltd (1985) 3 NSWLR 504 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Midalco Pty Ltd v Rabendt [1989] VR 461 Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 Plato Films Ltd v Speidel [1961] AC 1090 Reynolds v Times Newspapers Ltd [2001] 2 AC 127; [1999] 3 WLR 1010 Ritz Hotel Ltd v Charles of the Ritz Ltd (Nos 15 and 16) (1988) 14 NSWLR 107 Singleton v Ffrench (1986) 5 NSWLR 425 Singleton v John Fairfax & Sons Ltd (No 1) [1983] 2 NSWLR 722 TCN Channel 9 Pty Ltd v Antoniadis (1998) 44 NSWLR 682 Tobias v Allen (No 2) [1957] VR 21 Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697
DECISION:	Appeal dismissed. Appellants to pay the respondent's costs of the appeal.