Konstantinidis v Foreign Media Pty Limited

[2003] NSWSC 1135

CITATION:	Konstantinidis v Foreign Media Pty Limited & Ors [2003] NSWSC 1135
HEARING DATE(S):	19/11/03, 21/11/03, 27/11/03
JUDGMENT DATE:	5 December 2003
JUDGMENT OF:	Buddin J
DECISION:	Judgment for the plaintiff against first and second defendants.
CATCHWORDS:	DEFAMATION - Assessment of damages.
LEGISLATION CITED:	Civil Liability Act 2002 Defamation Act 1974
CASES CITED:	Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 Andrews v John Fairfax & Sons Limited (1980) 2 NSWLR 225 Broome v Cassell & Co Ltd [1972] AC 1027 Carson v John Fairfax & Sons Ltd (1992-3) 178 CLR 44 Crampton v Nugawela (1996) 44 NSWLR 176 Nikolopoulos & Ors v Greek Herald Pty Ltd & Anor [2003] NSWSC 1060 Rogers v Nationwide News Pty Ltd (2003) 77 ALJR 1739 Triggell v Pheeney (1951) 82 CLR 497 Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58
PARTIES :	Simon Konstantinidis (Plaintiff) Foreign Media Pty Limited (First Defendant) Theodore Skalkos (Second Defendant) George Stavroulakis (Fourth Defendant)
FILE NUMBER(S):	SC 20998/1996
COUNSEL:	M Lynch (Plaintiff) No appearance First and Second Defendants J Rawlings (Fourth Defendant)
SOLICITORS:	Mallesons Stephen Jaques (Plaintiff)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

FRIDAY 5 DECEMBER 2003

20998/96 - KONSTANTINIDIS v FOREIGN MEDIA PTY LIMITED & ORS

JUDGMENT

1 HIS HONOUR: The plaintiff, who is a solicitor, seeks damages arising from what he asserts were defamatory remarks made about him in three radio programs, two of which were broadcast on 28 August 1996 and a further one which was broadcast the following day. The first defendant is a company which, at the relevant time, held a narrow band area service licence, pursuant to which it broadcast to its subscribers a program in the Greek language, known as the “Voice of Greece”. The second defendant, Mr Skalkos, is the director and one of the two shareholders of the company. The other shareholder, I am informed, is his daughter.

2 On 29 August 2002, a jury having been empanelled for the purpose pursuant to s 7A of the Defamation Act 1974, found that the matters complained of in the first broadcast on 28 August 1996 conveyed the following imputations in respect of the plaintiff. Each such imputation was also held to be defamatory of the plaintiff.

(1) That, as President of Sydney Olympic Soccer Club he arranged finance for that club knowing that the funds were derived from the proceeds of crime.

(2) That, in that capacity, he was a person who was prepared to accept laundered criminal money as contributions to the Club.

(3) That, in that capacity, he knowingly engaged in dishonest conduct in the raising of finance for that club.

The program took the form of a discussion in which the third and fourth defendants participated. The program was substantially repeated that evening. In those circumstances, the jury found that imputations (2) and (3) referred to above had been conveyed in that latter program as well.

3 The following day the first defendant again broadcast its program, the “Voice of Greece”. On this occasion, there was a discussion which involved each of the second, third and fourth defendants. The jury found that the matters complained of in this program conveyed the following imputations. Each of these imputations was also held to be defamatory.

(1) The plaintiff defrauded one of his clients by organising a sham auction of her property in order to purchase the property for himself at an undervalue through a criminal retained to bid at the auction on his behalf.

(2) The plaintiff stole money from the poker machines of the Sydney Olympic Soccer Club.

(3) The plaintiff was a person who was prepared to steal money from the Sydney Olympic Soccer Club.

4 When the matter was called on for hearing, Mr Lynch announced his appearance on behalf of the plaintiff. He informed me that the proceedings in respect of the third defendant had been resolved between the parties. There was no appearance by either the first or second defendants. The fourth defendant appeared in person. He said that he had only received notice of the proceedings the previous day when he was provided with a letter to that effect from the plaintiff’s solicitor. He said that he was unable to proceed without representation. He also indicated that he was unable to afford to pay for such representation. Furthermore, he said that he had profound difficulties in understanding English.

5 I adjourned the proceedings for two days in order to ascertain if assistance could be provided to the fourth defendant through the Bar Association’s pro bono scheme. When the matter resumed, Ms Rawlings appeared but only for the purpose of seeking an adjournment of the proceedings in respect of the fourth defendant. The plaintiff opposed the application. His position was that if I was nevertheless minded to grant the application, then he still wished to proceed against the remaining defendants.

6 Ms Rawlings informed me that the fourth defendant, who had been consistently represented until July of this year, wished to defend the proceedings and that he also wished to raise substantive issues concerning the pleadings. It also emerged that the fourth defendant had been overseas between 1 August and 16 October this year. That being so, it was conceivable that he had received no prior notification of the hearing date, notwithstanding the fact that such notification was undoubtedly sent to his home address some time in August. In any event, I granted the adjournment and made consequential orders in relation to the further conduct of the matter so far as that defendant was concerned.

7 In the circumstances, I also adjourned the proceedings in respect of the first and second defendants for a period of two days in the hope that all matters could still proceed together. However neither the first nor the second defendant appeared on the adjourned date. I ultimately decided to proceed to hear the matter in respect of each of those defendants in their absence. I did so after having had regard to the contents of various affidavits sworn by the plaintiff’s instructing solicitor, Ms Sarah Elliott. That material disclosed that this matter had been listed for call-up before Whealy J on 8 August 2003. Ms Elliott appeared on the plaintiff’s behalf on that day. His Honour set the matter down to commence on 17 November 2003 with an estimated hearing time of five days. His Honour directed that the plaintiff’s solicitors should notify the various defendants of the hearing date.

8 The same day, Ms Elliott wrote a letter which was delivered by courier, to each of the defendants informing them of the hearing date. The first and second defendants shared the same premises. I have had placed before me the courier’s note as to what occurred at those premises. The note records the time of delivery as being 3.25 pm on 8 August 2003. It reads, in respect of the second defendant, “delivery to this address was attempted but after the receptionist consulted (in Greek) to (sic) Mr Skalkos he obviously instructed her not to accept or sign for (sic)”. Presumably the author of the note intended that to be a reference to a procedure whereby a person acknowledges receipt of the item delivered by putting his or her signature on the courier’s sheet. The courier’s note in respect of the letter addressed to the first defendant is to similar effect.

9 On 11 August the plaintiff’s solicitor sent a follow-up letter to the first and second defendants in which reference was made to the courier’s unsuccessful endeavours to deliver the letter of 8 August. It repeated the information contained in the earlier letter.

10 On 16 October 2003 the plaintiff’s solicitor wrote to each of the first and second defendants enclosing a Notice to Admit Facts. On 30 October 2003 a further Notice to Admit Facts together with a covering letter was sent to the first and second defendants. The latter documents were sent by courier. A note from the courier company indicates that they were signed for on behalf of the first defendant on 4 November.

11 On 6 November the plaintiff’s solicitors sent a further letter to the first and second defendants in which specific objections were raised to the evidence which it was then anticipated may be led on behalf of the defendants at the hearing which, it was noted in the letter, was to commence on 17 November 2003.

12 On 18 November 2003, Ms Elliott attempted to contact the second defendant at his place of business. She was informed that the second defendant was not at work that day. She left a message with his personal assistant that the matter was awaiting allocation before a judge and that he should inform the Supreme Court registry of his number so that he could be contacted should a judge become available. A letter to similar effect was then sent by courier to the premises of the first and second defendant. Later on that same afternoon, Ms Elliott telephoned and informed the second defendant’s personal assistant that I had been allocated to hear the case. The second defendant’s personal assistant undertook to inform the second defendant of that fact. Confirmation of that information was also contained in a letter which was delivered by courier. Ms Elliott subsequently informed the second defendant’s personal assistant of the fact that the matter had been adjourned for two days.

13 Since the proceedings have been on foot since September 1996, it is perfectly understandable that the plaintiff was anxious for the matter to proceed. A defence was filed in November of that year. Thereafter followed a number of interlocutory proceedings, the details of which it is unnecessary for present purposes, to record. As I have indicated it was not until August 2002, that the hearing pursuant to s 7A of the Defamation Act was conducted. Thereafter the defendants sought leave to appeal against the jury’s verdict. Although leave to appeal was granted, the appeal was dismissed with costs on 23 June 2003. Then on 15 July 2003, the solicitor, who had until then acted on behalf of each of the four defendants from the outset, filed a Notice of Ceasing to Act as Solicitor on behalf of any of them.

14 I have been provided with various extracts from the transcript of proceedings brought by the present plaintiff against inter alia, the second defendant, in the District Court in September this year. The proceedings which concerned allegedly defamatory remarks made in various articles in a Greek newspaper, resulted in a substantial verdict in favour of the plaintiff. The second defendant appeared unrepresented in those proceedings. He sought an adjournment on the basis that he had had no notice of the proceedings and that he lacked the means with which to defend them. The application was refused. I have also been provided with a schedule of a very considerable number of other proceedings in this Court in which the second defendant has had, or retains an interest.

15 One further matter has been brought to my attention. In Nikolopoulos & Ors v Greek Herald Pty Ltd & Anor [2003] NSWSC 1060, proceedings in defamation were commenced against the Greek Herald and the second defendant. When that matter was called on for hearing on 27 October 2003, there was no appearance on behalf of either defendant. The same solicitor, who had been acting for the defendants in this matter had also been acting for those defendants. Just as he had in these proceedings, he had filed a Notice of Ceasing to Act as Solicitor in those proceedings on 15 July 2003. The hearing in that matter proceeded in the absence of the two defendants and judgment was entered for the plaintiffs.

16 From the foregoing material it can be readily inferred that the second defendant is well versed in litigation of the kind involved in the present case and that he is very conversant with the courts and their procedures. Accordingly, I concluded that the first and second defendants had each had proper and adequate notice of these proceedings. No explanation has been provided for their non-appearance and it appears that they have simply declined to participate in them. It was for those reasons, that I decided to proceed with the plaintiff’s action against the first and second defendants in their absence.

17 As I have said a defence was filed in this matter in November 1996. In the pleadings, the defendants raised various defences. Given that the defendants did not appear at the hearing, no evidence was led in support of those defences and accordingly each of them must fail.

18 The sole remaining question is the question of damages. The plaintiff gave evidence before me, as did his wife. He also called three witnesses from the Greek community to give evidence concerning the damage which the programs in question have caused to his reputation. Each of them, as well as his wife, said in effect that he had previously held a very good reputation and that it had been seriously tarnished by the programs. One of those witnesses, a chartered accountant also gave evidence that he had stopped referring clients to the plaintiff after the broadcasts, because people’s opinion of the plaintiff had changed and that made it “very awkward to refer work” to him any longer. The listening audience of the program was estimated to be in excess of 1000 persons in 1996.

19 The plaintiff gave evidence which was, of course, uncontested. In the circumstances, I see no reason not to accept it particularly as his wife corroborated significant parts of it. He gave evidence that he had been a solicitor since 1983. Since 1986 he has conducted his own practice. He said that in 1996, 80% of his clients were from the Australian/Greek community. That figure is now, following these broadcasts, in the order of 65%-70%. He gave evidence that various clients had left the practice in the wake of the broadcasts. He said that the work of the practice diminished to the point that whereas in September 1996 he had six employed solicitors, he only had three employees some 18 months later. He indicated that, following the broadcasts, his participation in various cultural, charitable and social activities in the Greek community diminished. That was partly because he withdrew from such activities but also because invitations from others fell away. As a result he felt he was, in effect, being shunned. This caused him embarrassment. He said that his Bank, for the first and only time, wanted to review his financial circumstances although there was apparently no objective basis for them doing so.

20 He described having developed various physical symptoms as a result of the broadcasts. He said that he suffered from migraines, reflux, night sweats, and for a period, sleep deprivation. His eating habits were also adversely affected. He also experienced a “hot spot” on top of his head. His wife said that a neurologist, whom he consulted, had attributed this symptom to stress. He gave evidence that he also experienced a variety of emotional responses to the broadcasts. Apart from being angry, he felt humiliated, shocked, horrified and a sense of disbelief. He burst into tears on occasions and his hurt was exacerbated by the distress which the broadcasts occasioned to his parents, his wife and his children. He emphatically denied the truth of any of the allegations which were levelled against him. He described the suggestions of his financial improprieties, whilst President of Sydney Olympic Soccer Club, as bizarre. Contrary to the suggestions made in the broadcasts, he had he said, donated and lent his own money to the club. Moreover, he said that he had never cleared the poker machines. He also said that the club’s finances were publicly audited.

21 He indicated that he simply wanted “closure” of the matter and to have vindication of his name, even though he never expects to be able to enforce any judgment which may be made in his favour.

22 The plaintiff’s wife said that in her view her husband had been devastated by the broadcasts. She believed that he had become, and indeed remained, depressed as a result of them. She said that it was “as if his soul had been battered”. She gave evidence that “he was exhausted as if the wind had been struck from him”. She recalled an incident in which someone had said to her husband in her presence, “How come you are not in gaol”? There were other references in the evidence to the plaintiff being “a crook”.

23 The seriousness of the imputations which were found by the jury to have been conveyed in the various broadcasts is quite apparent on their face. Nevertheless, the following extracts from the broadcasts themselves provide some indication of their overall tone. Reproduced below is part of the discussion which took place in the programs on 28 August:

Third Defendant: We are not criticising anyone but Mr Konstandinidis was asked, as my information tells me: “Where does the money these people are in come from?”…
And Mr Konstantinidis’s answer was that it did not matter where the money came from, he says…the money may be coming from any lawful or unlawful means whatsoever.
Fourth Defendant: Mr Konstantinidis’s answer, which I think was clear on this issue, was given last week at the General meeting held at the Sydney Olympic Club.
He mentioned this money because a lot had been heard outside and indeed during an interview I conducted with Mr Konstantinidis. I said to him: “There is information that this money does not belong to the people you present as the Kountouris Group.” And he said to me: “No, I am telling you no as I know fully that all these people who are here put in money themselves.”
However, in an answer that he gave to certain questions…no, the question was not asked then but it had been asked a little earlier, Mr Konstantinidis’s answer was this: “What do you care if this money is in cash or if it is in letters of guarantee in the bank.
And what do you care whether this money was put in by them, themselves, or by some other people? The money is there”.
Third Defendant: In other words, wherever the money came from, it is there.
Fourth Defendant : That was Mr Konstantinidis’s answer and we then can come to any conclusion we like.
Third Defendant: I should say, for example, to Mr Konstantinidis, as an answer, if I were there, that is, I would say to him in other words, if someone has some money from unlawful sources such as drugs, laundering etc., he could in order to promote himself and is in need to do that…by someone who is carrying out unlawful dealings and…I am not talking about any persons now, George…This is theoretically speaking. Someone who is carrying out unlawful dealings could indeed go to Sydney Olympic, the team, and say: “I am putting in not only fifty but one hundred thousand dollars. Why? In order to promote myself as one of the members, right? of the Board of Directors. And we know very well, George, that every person having any dealings with the law wants to appear, somehow, as a respectable person in the community.
So, according to Mr Konstantinidis’s reasoning, could a person like that put money in the team?
Fourth Defendant: By that answer, Mr Konstantinidis let our imagination “gallop” and begin to create scenarios…we do not know what conclusions to reach…that can be true.

24 So far as the first imputation conveyed in the program broadcast on 29 August is concerned, the following extracts from it indicate the tone of the discussion which took place on that occasion:

Second Defendant: There is an instance, of course, of a lady who was…a client of Mr Konstantinidis, went to Toula wanting Toula to help her with her divorce case. The divorce case of course went ahead and a property they had came under the hammer. That is, went to auction.
Before, however, when she went to see Toula, Toula…took this lady to Mr Konstantinidis and they had her complete a form, because the woman did not have any money to pay. A form…and indeed Mrs Andrikopoulou told her what this form is…er she would say that she is a business woman to get a loan from the bank and this loan would have gone to Mr Konstantinidis for costs of the court case they were to handle. When, of course, the court case finished, the building was auctioned off.

The secret is not why the building was auctioned off. The secret is who got the building because by law and I do not know if it is by law, but we think by law, the solicitor has no right to buy his client’s building at auction. This building is 120 Silver Road, Marrickville. We do not, of course, nominate the name of the lady who was the client, but I think they themselves, know it. But if they want to, however, we will get this out on air, too.
And from what we know, at the auction, Mr Konstantinidis did not bid for it. Mr Peter Kay, of course, was then, we think, bankrupt and is now in jail and we think he had then just come out of jail for drugs.
He is a client of Mr Konstantinidis, of course, but we tell things as they are.
…
Third Defendant: I, Mr Skalkos, spoke about 120 Silver Street with reservation, you will learn certain things, you said them now.
Second Defendant: I, without mincing my words, I will keep saying everything and finish.
Third Defendant: These are terrible things though.
Second Defendant: They are terrible.
Because the lady lives in…a small unit in Ashfield now, cooped up in which is like a prison for her and her daughter. Mr Konstantinidis, of course, shows off with his properties. Well, I think helping fellow members of the community is good but not however, to help while you step on bodies.
Because, as we said, Mr Konstantinidis has other things here he has been penalised for…by the Law Society. We will mention this, too, in detail in the ”The Herald” and in the “New Country”.
…
Fourth Defendant: What I cannot understand, Mr Skalkos, is how money was found in Peter Kay’s pockets when at the point we left that restaurant there was not a single dollar in his pockets. Peter Kay went around on borrowed money. How did he go to the auction to bid on a property with no money?
Second Defendant : Yes, Peter Kay did bid at the auction but the building belongs to Mr and Mrs Konstantinidis, understand?
Third Defendant: Why didn’t Mr Konstantinidis appear at the auction?
Second Defendant: He did not want to appear…who knows? Mr Konstantinidis may have put him there as a friend of his, he told him to raise his hand and bid and get it.
Third Defendant: Right.
Second Defendant: Meanwhile, the building went through the auction so quickly it was hastily done and it was not advertised well enough so there were not many customers and it was sold…
Third Defendant: In other words, Mr Skalkos, this woman lost, you find, at this moment?
Second Defendant: She lost everything. There is nothing left. Her car, her house. She lost everything. Anyway, she may have lost it due to the divorce. But here we are talking about the method they used to complete the form for her…to get the loan from the bank, and this money was then given to the bank after the sale of the building.

25 The following extracts from the broadcast of 29 August 1996 illustrate the seriousness of the second and third imputations conveyed in that broadcast.

Second Defendant: I am saying this implicitly. It is not a secret…it is not as though I have hidden it…we all know, though, that a short while ago, a manager was stealing from the club and he was sacked.
I had asked Mr Konstantinidis to have some security put in for the reason that the money was ours, of course, because we are the ones who go there and spend it. It is not Mr Konstantinidis who goes there and spends it.
The only thing I had asked of Mr Konstantinidis was to have a computer put in…with which we also would help to put in to check the poker machines because that is where the money is.
…
Mr Konstantinidis promised, two years ago, that he would go ahead with the matter and would fix the club up properly, to the standards of the Marconi club. …
Mr Konstantinidis did not go ahead to put security on the machines…because we know that the machines, well whoever controls the machines can rob them whenever they want.
I know, in other words, that they can take out of the machines as much as they want as the machines work on a percentage.
I told them the day before yesterday, that I could prove that the machines are being robbed and at the time I said these things there were about seventy people at the General Meeting.
…
And indeed I also told them I would pay their expenses to go into the computer to check the machines. That is the reason Mr Konstantinidis did not want this thing in some way and he himself did not become chairman…
Er…Mr Konstantinidis…er…has a fortune which…we’re not saying that he stole the Sydney Olympic money – but a personal fortune worth many millions of dollars…

26 On 29 August 1996 the plaintiff’s instructing solicitors wrote to each of the defendants indicating that they held instructions to issue proceedings in respect of the broadcasts which had been made up until that point in time. The letter also contained a warning to the same effect should there be future broadcasts of a similar nature. Notwithstanding the letters, the first defendant continued to publish material, in a number of broadcasts following the matters complained of, which were extremely derogatory of the plaintiff. On each such occasion the program involved a discussion style format on the “Voice of Greece” program. There were six programs broadcast between 2 September and 16 September 1996. On each occasion the third defendant also was a participant in the discussion. The second defendant also participated in all but two of the programs.

27 In those programs the plaintiff was variously described as a “snake”, a “rat”, a “rodent”, a “vulture” and as “the devil with incense”. A number of fresh allegations were made about his having improperly conducted himself as a solicitor. On several occasions, claims were made that further revelations of such conduct would be made in subsequent programs. On one such occasion it was said that the revelations “will make you shudder… … if you have a drop… a little shame that is a gram of shame…it will make you shudder”.

28 This series of programs culminated in a program broadcast on 16 September. The second defendant participated in it. It featured an interview with one of the plaintiff’s clients in which the client made a number of serious allegations about him. Each allegation amounted to very significant professional misconduct on the plaintiff’s part. Following the airing of those allegations, the client said “you have cheated me my family. You ruined me you made my husband to be in a wheelchair but I will not allow you to cheat my daughter. Take your dirty hands off my daughter I will kill you.” The client then said “and it is right that he should go to prison. However [the plaintiff and another person] must pass judgment on their conscience themselves…that will be their greatest punishment”.

29 The second defendant concluded the program with these words “we sympathise with the anger…our listeners great anger…but we are also going to bring out more things to the surface and the main thing now is don’t be afraid to lodge a complaint as whatever has been happening in the Greek community today should be a lesson to others… so we don’t have any more…any longer…as they dirtied the Greek community”.

30 The plaintiff gave evidence that these further broadcasts served only to aggravate the distress which had already been occasioned to him. They amounted, he felt, to a “concerted campaign to discredit [him]” and constituted a “vendetta” against him. That conclusion is, I would have thought inescapable, given the contents of those programs and given that the defendants persisted in broadcasting them. Mr Lynch described them as “rubbing salt into the wounds” caused by the original broadcasts. I readily accept that submission.

31 In assessing the damages to be awarded in the present case I must pay due regard to the matters set out in Part 4 of the Defamation Act 1974, and to the authorities in which the general principles to be applied are enunciated. As Hayne J, with whom Gleeson CJ and Gummow J agreed on the question of damages, observed in Rogers v Nationwide News Pty Ltd (2003) 77 ALJR 1739, there are three purposes to be served by an award of damages for defamation. His Honour said that they are:

“(i) consolation and hurt caused to the [plaintiff] by the publication;
(ii) reparation for harm done to the [plaintiff’s] personal, and in this case, professional reputation; and
(iii) the vindication of the [plaintiff’s] reputation. As pointed out in Carson the first two purposes are frequently considered together and constitute consolation for the wrong done to the [plaintiff]; vindication looks to the attitudes of others” (at 1750).

32 A little later his Honour said:

First, damage to reputation is not a commodity having a market value. Reputation and money are in that sense incommensurable. Secondly, comparisons between awards for defamation are difficult. Every defamation, and every award of damages for defamation, is necessarily unique. Thirdly, because the available remedy is damages, courts can and must have regard to what is allowed as damages for other kinds of non-pecuniary injury. (at 1751)

33 In Carson v John Fairfax & Sons Ltd (1992-3) 178 CLR 44, Brennan J said:

The chief purpose of the law in creating a cause of action for defamation is to provide vindication to counter the injury done to the plaintiff in his or her reputation….
The sufficiency of the amount awarded is not to be determined by
reference solely to circumstances past and present; the amount must be sufficient to vindicate the plaintiff's reputation in the relevant respect in the future. Thus Lord Hailsham in Broome v Cassell & Co said:
"Not merely can [the plaintiff] recover the estimated sum of his past and future losses, but, in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge."
…
Although damages are awarded to vindicate the plaintiff's reputation, damages are not awarded as compensation for the loss in value of a plaintiff's reputation as though that reputation were itself a tangible asset or a physical attribute which, once damaged, is worth less than it was before. In order to achieve the purpose of vindicating reputation, damages for defamation are quantified by reference, inter alia, to what is needed to achieve that purpose: those damages are not quantified by reference to a depreciation in the value of a plaintiff's reputation. Other heads of damage are compensation for the external consequences produced by the publication of the defamation and "a solatium" for the plaintiff's internal hurt, that is, for the complex of reactions that the plaintiff has experienced as the result of the publication and its external consequences.
…
The consequences of publication include not only the insult publicly inflicted on the plaintiff but also the effect of the defamation on those to whom it is published, any diminution in the regard in which the plaintiff is held by others, any isolation produced (causing the plaintiff to be "shunned or avoided" is the traditional formula) and any conduct adverse to the plaintiff engaged in by others because of the publication of the defamatory matter. Damages are awarded also for the plaintiff's injured feelings, including the hurt, anxiety, loss of self-esteem, the sense of indignity and the sense of outrage felt by the plaintiff. Indeed, all those objective consequences and those subjective reactions which flow naturally from the publication of the defamatory matter are relevant factors. Of course, the subjective reactions are often produced by the objective consequences of the publication. The two categories are not cumulative heads of damage but descriptions of kinds of intangible factors which must be taken into account in assessing damages.
Damages may be aggravated or mitigated by the manner in which the defamatory matter was published and by the subsequent conduct of the defendant. Conduct of the defendant from the time of publication until verdict (including conduct at the trial, to which reference will presently be made) is relevant. In Broome v Cassell & Co Lord Reid, speaking of the bracket within which any sum could be regarded as not unreasonable compensation, said :
"It has long been recognized that in determining what sum within that bracket should be awarded, a jury, or other tribunal, is entitled to have regard to the conduct of the defendant. He may have behaved in a high-handed, malicious, insulting or oppressive manner in committing the tort or he or his counsel may at the trial have aggravated the injury by what they there said. That would justify going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation."

Evidence of the defendant's conduct is admissible also in proof of malice. But s 46(3)(b) of the Defamation Act provides that, in New South Wales, damages --
"shall not be affected by the malice or other state of mind of the publisher at the time of the publication complained of or at any other time, except so far as that malice or other state of mind affects the relevant harm."
Evidence of the defendant's conduct is therefore relevant and admissible on the issue of compensatory damages, whether or not it tends to prove malice, but only so far as that conduct exacerbates or ameliorates the consequences of the original publication or the plaintiff's injured feelings.

Damages by way of vindication of reputation are not added to the damages assessed under other heads. Although an award of damages operates "as a vindication of the plaintiff to the public and as consolation to him for a wrong done", as Windeyer J said, the dual operation of an award does not require cumulative components of damages. The same sum can operate as vindication, compensation and solatium, for "the amount of a verdict is the product of a mixture of inextricable considerations". The amount assessed under other heads may itself be sufficient in aggregate to provide the vindication required. The extent of the overlap depends on the circumstances. But the award in total must be sufficient to satisfy the purposes for which damages for defamation are awarded: vindication of reputation, compensation for injury to reputation and solatium for injured feelings. (at 69-72) (footnotes omitted)

34 It is well established that damages in defamation are “at large” and that “the whole process of assessing damages is essentially a matter of impression and not addition”. See Broome v Cassell & Co Ltd [1972] AC 1027 at 1071-2 per Lord Hailsham.

35 Nevertheless there are some particular features of the present case that must take their place in the assessment of the appropriate quantum of damages. At the forefront of any such assessment must be the fact that the various imputations to which I have referred are of the utmost gravity. Apart from any other consideration, they constitute a direct attack upon the plaintiff’s integrity and honesty. Those are matters of vital importance to the plaintiff’s professional standing as a solicitor. As Mahoney ACJ said in Crampton v Nugawela (1996) 44 NSWLR 176 “[I]n 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” (at 193). A little later his Honour said “the law should place a high value upon reputation and in particular upon the reputation of those whose work and life depend on their honesty, integrity and judgment”. (at 195) In the present case, the plaintiff has been subjected to allegations not only of gross impropriety and misconduct, but also of various acts which are clearly capable of constituting very serious criminal activity.

36 It is readily apparent that the various imputations found by the jury to have been conveyed would cause very great anguish and distress to anyone about whom they were made. But as Hayne J said in Rogers “it is of the first importance to recall the fundamental principle that the damages to be awarded for defamation must compensate for the effect of the defamation on the particular plaintiff” (at 1753). In other words, it is the plaintiff’s subjective response which is important.

37 I have been somewhat hampered in the task which presents itself for two reasons. First, the matter has as I have indicated, proceeded on an ex parte basis. Secondly, each of the broadcasts containing the imputations found by the jury to have been conveyed, as well as the subsequent broadcasts, were in the Greek language. I am left to assess their impact from the transcripts of the translations with which I have been provided. That said, the words used leave little to the imagination. There was nothing subtle about them. Nor could it be said that the broadcasts contained, as it were, passing references to the plaintiff. Although I am not able to ascertain how long each program lasted, the transcripts of the broadcasts of the 28 and 29 August respectively each run to 8 or 9 pages. By the same token, the broadcast on 16 September runs to 37 pages of transcript.

38 Although the immediate audience reach for each of the broadcasts was relatively modest compared to say a national television broadcast, it was still a very significant audience from the plaintiff’s perspective given his prominent position in the Greek community and the importance of it to his legal practice.

39 The nature and scope of the imputations cast were such that their impact is unlikely to have been temporary or short-lived. These were not allegations which were likely to die a natural death.

40 It is clear from his evidence that the various broadcasts have had a very significant impact upon the plaintiff. Moreover that impact has continued up until the hearing itself. In short, he has been profoundly hurt by them. I do not overlook the fact that the quantum of damages assessed should reflect the fact that the plaintiff should be thereby provided with a significant measure of vindication, especially within the Greek community, in which his reputation has been particularly damaged.

41 It is also reasonable to infer from the totality of the evidence that the broadcasts were responsible for a downturn in the plaintiff’s business. That is also accordingly a proper matter to take into account. See Andrews v John Fairfax & Sons Limited (1980) 2 NSWLR 225 at 235 per Hutley JA and at 251-2 per Glass JA. However there was no evidence adduced to establish that his professional earnings had diminished by an identifiable amount such as would entitle him to compensation for specific economic loss.

42 I am also required to have regard to the implications of s 46A of the Defamation Act. Hayne J in Rogers (supra) made the following remarks about the operation of that section. His Honour said:

In the end, what s 46A draws to attention is that damages awarded for defamation must take their proper place in the administration of justice. In particular, they must stand in a proper relationship with awards for the non-economic consequences of personal injury. The relationship which s 46A (2) identifies is not, however, some precise or mathematical relationship between particular cases of defamation and personal injury or between particular classes of such cases. To do that would compare the incomparable. Nonetheless, s 46A (2) should be understood as having two particular consequences of relevance to the present appeal.

First, it invites attention to the nature of the injury done by defamation compared with the consequences of physical injury. The injury done by defamation, even if serious, is often evanescent. By contrast, some personal injuries are permanent and devastatingly disabling. One of the principal purposes of an award of damages for defamation is to vindicate the wrong that was done. By contrast, damages for personal injury can compensate, but cannot right the wrong that was done. Yet, in neither defamation nor in personal injuries is there any measure by which the compensation for the non-pecuniary loss which the particular plaintiff has suffered can be assessed except what is “reasonable”.

The second effect of s 46A (2) flows from both the reference to the “general range” of damages allowed in personal injury cases and the inclusion, within the class of personal injury cases to be considered, of cases where the damages to be allowed are regulated by statute. Treating cases where the damages allowable are capped by statute as included within the “general range” to be considered shows that those statutory limits imposed in cases of motor or workplace accident are not to be taken as being indirectly imposed as limits on the amount to be allowed in defamation. But the reference to the general range of damages does identify the highest sums awarded for the non-economic consequences of personal injury as what might be called a presumptive outer limit to awards for defamation. So much follows from the fact that rarely, if ever, will the harm done by a defamation be greater than the most serious form of physical injury which leads to permanent and serious disabilities. And if that represents the presumptive outer limit to awards for defamation, each particular award that is made must find a place within a range which is marked out in that way. (at 1753)

43 In the present context I have been reminded by Mr Lynch that the current cap for general damages for non-economic loss in personal injury cases to which the Civil Liability Act 2002 applies, is $365,000 for a most extreme case. I also note that there is a statutory prohibition against the award of exemplary damages. See Defamation Act s 46(3)(a). That being so, no punitive element can be allowed to intrude.

44 I am persuaded that this is a case in which an award of aggravated compensatory damages is warranted. The conduct of the first and second defendants in continuing to broadcast the series of programs which appeared after the complaint was made to them by the plaintiff’s solicitor, is one factor which of itself would justify the making of such an award. Moreover the broadcasts themselves were not only conveyed in a highly sensational way but they contained allegations, upon the uncontradicted material which is before me, that were entirely false.

45 I also take into account in awarding aggravated damages the fact that the defendant persisted, from an early stage of this litigation, in relying upon the defence of truth, at least in relation to the imputation that the plaintiff had defrauded one of his clients. This is a case in which the defendants’ conduct could be characterised as improper, unjustifiable or lacking in bona fides. See Triggell v Pheeney (1951) 82 CLR 497 at 514. Nothing of course has been advanced by way of mitigation which could have led to a reduction in the amount of damages which it is otherwise appropriate to award.

46 I have been provided with a schedule of cases to assist me in my present task. To the limited extent to which assistance can be derived from other cases, I have had regard to them.

47 The plaintiff submits, and I accept, that it is convenient to deal with the first and second broadcasts together especially as there is a significant degree of overlapping involved. As I have foreshadowed, this is a case which calls for an award of aggravated damages. I accept Mr Lynch’s submission that it is not necessary in the present case to make a separate assessment of those damages. See Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 74-5. Accordingly I intend to make a single award of damages in respect of the two programs broadcast on 28 August 1996. For those two broadcasts, I assess the plaintiff’s damages at $200,000.00. That award is made in respect of the first defendant only. So far as of the third broadcast is concerned, I accept the submission that it is more serious, particularly given that it refers specifically (in part) to the plaintiff’s conduct as a solicitor, and also because it contains separate serious allegations against him a mere 24 hours after the first broadcast. Again it is appropriate to make a single award of damages. I assess the plaintiff’s damages, in respect of the third broadcast on 29 August 1996, at $275,000.00. That award is made in respect of the first and second defendants jointly. In arriving at that conclusion, I accept the plaintiff’s submission that the conduct of the first and second defendants which gave rise to the imputations contained in that broadcast, is indistinguishable.

48 The plaintiff is entitled to interest on the damages awarded for the whole period from publication of the defamatory material until verdict. I accept the plaintiff’s submission, which is supported by authority, that the rate of 2% is appropriate in all the circumstances of this case. See Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 in which the relevant principles are discussed at paras 1538–1556.

49 I direct entry of judgment for the plaintiff in accordance with these orders. I order the defendants to pay the plaintiff’s costs. The plaintiff is to bring in short minutes to give effect to these orders.

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Last Modified: 12/08/2003