Lam v Nationwide News Pty Ltd

[2000] NSWSC 792

CITATION:	Lam v Nationwide News Pty Ltd [2000] NSWSC 792
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 20109/97
HEARING DATE(S):	26 June-28 June 2000, 6 July 2000
JUDGMENT DATE:	11 August 2000
PARTIES :	Le Lam (Plaintiff) Nationwide News Pty Limited (Defendant)
JUDGMENT OF:	Studdert J

COUNSEL :	R. Campbell/W. Andrews (Plaintiff) T.S. Hale SC/ E.A. White (Defendant)
SOLICITORS:	Greenaway & Tohme (Plaintiff) Cropper Parkhill (Defendant)
LEGISLATION CITED:	Defamation Act
CASES CITED:	Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Austin v Mirror Newspapers (1985) 3 NSWLR 354 Morgan v John Fairfax & Sons Limited (1991) 23 NSWLR 374 Hunt v Star Newspaper Co. Limited [1908] 2 KB 309 Thompson v Truth and Sportsman Limited (1934) 34 SR 21 Kemsley v Foot [1952] AC 345 Pervan v North Queensland Newspaper Co. (1992-1993) 178 CLR 309 Goldsborough v John Fairfax & Sons Limited (1934) 34 SR 524 Broome v Cassell & Co Limited [1972] AC 1027 Carson v John Fairfax & Sons Limited (1993) 178 CLR 44
DECISION:	See para 58

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

STUDDERT J

Friday 11 August 2000

20109/97 LE LAM v NATIONWIDE NEWS PTY LIMITED

JUDGMENT

1   HIS HONOUR: In this cause Le Lam seeks damages from Nationwide News Pty Limited, claiming to have been defamed in an item published in the Parramatta Advertiser on 9 May 1996.

2   Earlier this year, on 3 February 2000, a jury determined in the plaintiff’s favour that the newspaper article conveyed the following imputation which it found to be defamatory of the plaintiff:

“That she is reasonably suspected of obtaining a dishonest financial benefit for herself through her office as Deputy Mayor of the Auburn Council in CIA Real Estate’s procurement of a tender with that Council.”

3   In the further hearing before this Court the defendant relied upon defences of qualified privilege at common law and under s 22 of the Defamation Act, and the plaintiff, by way of reply, pleaded malice. I state the issues arising on the pleadings very shortly at this stage, but, of course, it will be necessary to return to consider them in detail later.

4   The Parramatta Advertiser is circulated in Auburn, Berala, Clyde, Granville, Homebush Bay, Lidcombe, Regents Park, Rookwood, Silverwater, Woodville, parts of Chester Hill, Flemington and Sefton. Answers to interrogatories disclose that 29,000 copies of the edition published on 8 May 1996 were circulated. That edition had a front page item under a prominent banner:

“’IMMORAL’ DEAL
Row over council decision”

5   The text of the article, to the extent that it appeared on p 1, was as follows, and I number the paragraphs for ease of reference:

“1. The Independent Commission Against Corruption will assess a controversial Auburn Council tender awarded to the deputy mayor’s real estate agency last week.

2. In confidential session, council endorsed CIA Real Estate’s tender to manage 16 council properties, understood to be worth about $15,000 over three years.

3. Independent councillor Le Lam is a director and licensee of that company.

4. She declared a pecuniary interest and did not debate or vote on the issue.

5. But the decision raised the ire of some councillors and unsuccessful tenderers, with all sides enlisting advice from the ICAC.

6. One company, The Professionals Real Estate at Berala, has questioned the ethics of the decision.

7. In a letter to the ICAC, licensee J A Rodi claimed the tender was ‘unethical and improper’.

8. ‘Our question to you is to clarify if such conduct is acceptable and ethical and should this company be eligible to make the submission,’ Mr Rodi said.

9. Property manager and former councillor Helen Lane said it was not a case of sour grapes, but the principle at issue.

10. Outspoken councillor Terry Keegan blasted the decision and tried to overturn it.

11. ‘If it’s not illegal, it’s immoral,’ he said.

12. ‘Regardless of whether Mrs Lam has declared a pecuniary interest in the matter…her company will get financial gain through this action.

13. ‘We should exclude ourselves as councillors from applying in the first place for tenders such as this,’ Mr Keegan said.”

6   Then the item continued on p 2 under a different heading “Property deal row”:

“14. But Le Lam said she had done nothing wrong, and Mayor Pat Curtin agrees.

15. He’ll ask council at next week’s meeting to make public all documents related to the tender. He’s also forwarded copies to the ICAC.

16. Mrs Lam said she received advice from the ICAC before council’s decision last week, assuring her that, as long as she declared an interest, all was above board.

17. She said she had no input in the tender document and that she would receive no financial gain.

18. ‘As far as I am concerned I have done nothing wrong at all,’ Mrs Lam said.

19. Mrs Lam claimed it was an approach originally by The Professionals which resulted in council’s property management going to tender.

20. Mr Curtin said declaring an interest was all Mrs Lam had to do.

21. ‘That’s spelt out in black and white in the [Local Government] Act. I had no concerns whatsoever, he said.

22. Mr Curtin said council’s corporate services director Trevor Brown had sought advice from the Local Government Association’s legal services.

23. ‘I’m happy it was the correct protocol,’ he said.”

The plaintiff’s history

7   The plaintiff was born in Saigon in January 1963 and escaped from Vietnam and went to Canada, arriving there at the age of fourteen. In the course of her escape the plaintiff met her future husband but he went to Australia and settled here. The plaintiff was educated in Canada and having achieved Higher School Certificate standard in 1982 did a business diploma course between 1983 and 1986. In 1987 the plaintiff made contact with her husband again and visited him in Australia in 1987. In the following year the plaintiff married her husband in Canada and came to settle in Australia with him in December 1988.

8   It is clear from the evidence that the plaintiff has been very industrious in this country. The plaintiff undertook real estate studies and attended the Meadowbank College where in 1988 she succeeded in obtaining an advanced certificate of real estate (She only arrived here in December 88). The plaintiff worked with L.J. Hooker’s at Auburn and obtained a real estate agent’s licence in 1991. The ownership of the estate agency changed and Bellenden Pty Limited became the proprietor, trading under the name of CIA Real Estate. The plaintiff became a director of Bellenden on 14 February 1992 and the licensee in charge on 5 June 1992.

9   There were, at times relevant to this action, some six employees in CIA, including the plaintiff herself. The plaintiff’s responsibility was in selling real estate, but the other feature of the company’s business was the management of properties. Ms Vanessa Basara was involved in that side of the operations. At times relevant to this cause, the plaintiff was one of two directors, the other director being one Shawkey Salah. Mr Salah and his wife were the only shareholders of the company and Mrs Salah was also the secretary. The plaintiff’s evidence was to the effect that she had no financial interest or shareholding in the company and her only income from this source was as an employee. Mr Salah gave evidence to the like effect and I am satisfied that the plaintiff had no financial interest in Bellenden by shares or otherwise. Indeed, the evidence disclosed that the only shareholders of Bellenden at any relevant time were Mr Shawkey Salah and his wife.

10   I mentioned earlier that the plaintiff has been industrious in Australia. The plaintiff decided to seek election in the local council and was first elected to the Auburn Council in 1991, being elected as an independent. The plaintiff said, and I accept, that she decided to stand for council with a view to seeking to assist migrants. Apart from her involvement in the Auburn Council since 1991, the plaintiff has involved herself in other community activities. These have included a position on the management committee at the Migrant Resource Centre, presidency of the Auburn Asian Welfare Centre and involvement in an organisation assisting the elderly on welfare issues.

11   Having been elected to the Council in 1991 the plaintiff succeeded again at the 1995 elections, and following re-election was elected as the Deputy Mayor in 1995, holding that post from September 1995 until September 1996. At the next election for the positions of Mayor and Deputy Mayor in September 1996 the plaintiff was unsuccessful. However in September 1997 she became Deputy Mayor again and presently holds the office of Mayor.

12   I turn now to consider what happened before the publication complained of on 9 May 1996.

The Council decides to engage CIA Real Estate

13   As para 2 of the publication asserts, the Council owned a number of properties which, prior to 1996, were managed by more than one agent. A decision was made by Council in March 1996 to call for expressions of interest for the management of the Council’s rented properties and this led to advertisements being placed in a local newspaper. These advertisements in turn prompted a number of expressions of interest to be communicated by various estate agents. It appears that one of these was the plaintiff’s employer, although the plaintiff asserted that she was party to no discussion at CIA about any application by CIA to the Council and was unaware of CIA’s interest before seeing a report prepared by the Director of Finance for the Council. Ms Vanessa Basara was the property manager employed by CIA in 1996 and gave evidence that it was on her initiative that CIA tendered to manage the Council properties. The tender was submitted after Ms Basara had consulted Mr Salah. Ms Basara prepared and submitted the tender and said that the plaintiff was not consulted about the matter and had no involvement in the tender preparation. Mr Salah gave evidence confirming that the tender process was undertaken following discussion between himself and Ms Basara and Mr Hunt, who was working with the plaintiff in the sales section of CIA at the relevant time, said that the plaintiff played “no role whatsoever” in putting together and submitting the tender. I accept the evidence given by Ms Basara, Mr Salah and Mr Hunt to the above effect.

14   The evidence in point which I have reviewed together with the evidence of the plaintiff, satisfies me that the plaintiff was not involved in any way in the preparation or submission of CIA’s tender to Council and that she was not involved in any discussions within CIA concerning the decision taken to tender. I accept the plaintiff’s evidence that she first became aware of CIA’s interest when she saw the report to which she referred which was prepared for the Council meeting for 1 May 1996.

15   Several days before the Council met on 1 May 1996 Mr Brown submitted a confidential report to be considered by the members of the Finance and Works Committee, and the plaintiff was one such member. The report recommended that the Council engage CIA Real Estate to manage its current and future rental properties for a period of three years. Having received that report the plaintiff said, and I accept, that she sought advice from ICAC and from the Local Government Association. The plaintiff asserted, and I accept, that from both sources she was advised that the course she should adopt was to declare her interest and to refrain from voting. This I am satisfied the plaintiff did. There was a confidential meeting, that is to say one in closed session, of the Finance and Works Committee on 1 May 1996. The report on that meeting (Exhibit E) records the following, in relation to the relevant subject matter:

“At this stage Councillor Lam declared a pecuniary interest in the matter, refrained from debate and refrained from voting.
A motion sponsored by Councillor Keegan and seconded by Councillor Moore that Council maintain its current Property Management arrangements was, upon being submitted to the meeting, declared lost.
A motion sponsored by Councillor Borluk and seconded by Councillor Jones that the report be adopted was, upon being submitted to the meeting, declared won.
RECOMMENDED that the report be adopted.”

16   The recommendation of the Finance and Works Committee was adopted then by the full meeting of the Council in open session. I find that meeting followed immediately upon the meeting of the Finance and Works Committee. The minutes on the full meeting of Council which was open to the public record but the following (Exhibit F):

“ Finance & Works Committee Meeting of even date :
RESOLVED that the report of the Finance & Works Committee Meeting of even date be adopted.
Matter Arising
In reply to Councillor Keegan the Mayor advised that, in relation to item 4 of the Director’s Report, Corporate & Financial Services to the Committee, it would be necessary for a rescission motion to be lodged if the Councillor wished to maintain the current arrangements for the Management of Council’s Properties.”

17   The plaintiff was cross examined about what occurred in the confidential session of Council on 1 May 1996 and in the open session that followed. Her recollection of what was said and by whom appeared to be vague and was not altogether satisfactory. Ms Milohanic, in evidence to which I shall shortly refer, recorded what Cr Keegan said in the open session and I accept her evidence about that as being accurate.

18   However, I am satisfied that the plaintiff did declare her interest, that she did refrain from debate and further that the plaintiff did refrain from voting at both relevant meetings on 1 May 1996.

The involvement of Ms Milohanic

19   Sonia Milohanic is a journalist who was employed at the Parramatta Advertiser in 1996 by which time she had had some five years experience in journalism. One of her responsibilities with the Parramatta Advertiser was to attend meetings of the Auburn Council with a view to writing on what was newsworthy arising from such meetings. Ms Milohanic attended the meeting on 1 May 1996 and recorded what Cr Keegan had to say. Cr Keegan was known by Ms Milohanic to be an experienced councillor who in the past had served as mayor. Ms Milohanic recorded in her notebook (Exhibit 9) what the councillor said and I accept that Exhibit 10 is an accurate typescript of what Ms Milohanic recorded at the meeting:

“CR TERRY KEEGAN
CIA…one of the councillors is a director and licensee of that organisation.
I believe that council has a legal obligation to unfortunately disregard that application from the councillor.
We, under the Local Government Act, can’t accept the quotation. Regardless whether Cr Lam has declared a pecuniary interest in the matter it goes further. Her company will get financial gain through this action. Council would be a loser as well.
We should exclude ourselves as councillors from applying in the first place for tenders such as this.
If we do carry this resolution it would affect the majority of councillors.
(moved recommendation that the status quo remain)
MAYOR PAT CURTIN:
I can’t accept that. You are well aware of the status of rescission motions if you want to rescind that. I recommend you don’t go any further.
KEEGAN: I will go as far as I like.
CURTIN: No you won’t.”

20   Ms Milohanic considered the topic addressed by Cr Keegan to be newsworthy, and the following day received a telephone call from Helen Lane, a former councillor working for The Professionals Real Estate Agency. Ms Lane revealed her agency was an unsuccessful tenderer, but complained about the CIA tender having regard to the plaintiff’s position on the Council. Ms Lane revealed that the licensee of the agency where she worked, Mr Joseph Rodi, was making a submission to ICAC. Ms Milohanic took notes of the conversation with Ms Lane and I accept that Exhibit 11 is an accurate transcript of those notes. Ms Milohanic subsequently obtained a copy of the letter written by The Professionals to ICAC dated 2 May 1996. This became Exhibit 8 and reads:

“I refer to the above mentioned matter and our telephone conversation of the 1st May, in bringing to I.C.A.C’s attention what is in my opinion unethical and improper.
The submission by C.I.A. Real Estate to manage council’s rental properties when the Licensee and Director of CIA Real Estate is an elected representative on the same council, holding the position of Deputy Mayor (Councillor Le Lam).
Our question to you is to clarify if such conduct is acceptable and ethical and should this company be eligible to make the submission.
I further note that the tender was awarded to C.I.A. Real Estate at Councils Meeting on the 1st May, 1996, even though the Councillor …declared an interest and refrained from voting.
I would appreciate your immediate attention and investigation into the above mentioned matter.
Awaiting your urgent reply.”

21   Other sources for what subsequently appeared in the newspaper item on 9 May 1996 were identified by Ms Milohanic:

(i) an interview with Cr Keegan - notes Exhibit 12;

(ii) an interview with the Mayor, Mr Curtin - notes Exhibit 13;

(iii) an interview with the plaintiff - notes Exhibit 14;

(iv) a second discussion with Ms Lane - notes Exhibit 15.

22   Ms Milohanic said that she spoke with a media liaison officer with ICAC to confirm The Professionals’ letter had been received and that the matter was being “assessed”. In a subsequent telephone call, the medial liaison officer informed Ms Milohanic the letter had been received and was at the “assessment” stage. Ms Milohanic explained there was a distinction between “assessment” and “investigation”. A complaint had to be “assessed” before a decision could be made as to whether or not it should be “investigated”.

23   Ms Milohanic acknowledged that she read the article which gave rise to the imputation and said that she considered this article to be fair and accurate. Ms Milohanic said that she believed the article could be defamatory and she alerted the editor to this. The witness said that the article did not express any of her opinions and she also said that the headlines and the layout of the article in the newspaper were not her responsibility. The witness explained that the sub-editor does the headlines and “then it will go to the layout people, production people to physically put on the page.”

24   The jury having found the imputation set out in para 2 above to have been conveyed and to have been defamatory of the plaintiff, I now turn to consider the various defences that have been pleaded.

25   I propose to consider each of these defences in the order in which they were addressed by Mr Hale in his submissions.

Common law qualified privilege

26   Mr Hale acknowledged that the defence of common law qualified privilege as it was limited prior to the decision in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 could not be established having regard to the manner and width of the distribution of the newspaper. As was observed in Lange at 570:

“Only in exceptional cases has the common law recognised an interest or duty to publish defamatory matter to the general public.”

27   However, Mr Hale submitted that the present case fits into the new category of qualified privilege recognised in Lange. Mr Hale acknowledged that whether the defence is available depends upon whether the publication was reasonable in the circumstances: see Lange at 574.

28   Mr Hale submitted that the publication was reasonable. In a close written analysis of the article, Mr Hale identified the sources for what he contended was its accuracy and submitted that Ms Milohanic held reasonable grounds for believing what she wrote to be true, having taken proper steps to verify the accuracy of what was written. The plaintiff was interviewed and given an opportunity to make a response which was recorded in the article.

29   There are however further considerations urged by Mr Campbell that have persuaded me that the requirement of reasonableness has not been satisfied:

(a) CIA Real Estate is described as the plaintiff’s real estate agency: “The Deputy Mayor’s real estate agency” . This description is to be found in para 1, and then “her company” is referred to in para 12. Her description in para 3 as “a director and licensee” does nothing to correct the inaccuracy of the description in para 1 as to the plaintiff’s possessory interest. The reader is not alerted to the fact that the plaintiff had no financial interest in the company. I am satisfied that at the time she wrote the article Ms Milohanic was aware it was not true to say that CIA was the plaintiff’s own company and that the witness was aware that the plaintiff had no proprietary interest in it. Plainly, absent any financial interest in the company, the basis for a reasonable suspicion that the plaintiff had obtained a dishonest financial benefit for herself would not exist.

(b) Paragraph 17 of the article informs the reader that the plaintiff had no input in the tender document as such but it does not inform the reader, as I have found to be the fact, that the plaintiff played no part in the decision to tender or in the tender process. This is plainly significant as Mr Joseph Rodi, who wrote to ICAC, acknowledged in cross examination (T 167):

“Q. Assuming that she didn’t know about the tender and that she had not participated at all, I take it from your answer that you would agree that there was nothing unethical about her position?
A. That’s correct.
Q. And nothing improper either?
A. That’s correct.”
I accept the submission by Mr Campbell that reasonableness in the circumstances of this case required inquiry of persons at CIA other than the plaintiff, and including Mr Salah and Ms Basara, to determine responsibility for the tender and the plaintiff’s non-involvement in and ignorance of the whole tender process.

(d) A further circumstance to be considered on the issue of reasonableness in relation to the publication complained of is the layout of this item. Ms Milohanic had no responsibility for this and qualified her assertion as to the fairness and accuracy of the article by excluding the headline from that assertion. I do not lose sight of the fact that the jury rejected the second imputation which it was called upon to consider: “That she was guilty of immoral conduct in CIA Real Estate’s procurement of a contract with the Auburn Council” , but it by no means follows that the banner did not influence the jury in concluding that the imputation upon which the plaintiff succeeded was conveyed. When Ms Milohanic was cross examined about the banner and the layout, the witness gave this evidence at T243:

“Q. Do you think that’s fair to divide the article up with the nasty parts on page 1 and any description of an explanation on page 2?
A. I’m sure it could have been done in another way. It could have been. As if I was reading it, just as a reader, I probably wouldn’t think it was fair…
Q. Yes, in your view it is certainly unbalanced to put all of the nasty stuff on page 1 and the explanation from the person spoken about on page 2?
A. If it was done with malice that would be unfair.
Q. I am asking you, regardless of the intention, it is simply as a fact unbalanced, is it not?
A. Yes.”
I do not consider that the banner was a fair banner nor do I consider that the layout of the article keeping what might be considered favourable towards the plaintiff to the second page (where, indeed, it appears under a different heading) was fair. The banner and the layout, in my opinion, are matters to be taken into account in determining the issue of reasonableness.

30   The matters urged upon me by Mr Campbell and which I have above considered lead me to the conclusion that the making of the publication was not reasonable in the context of the defence of common law qualified privilege and, accordingly, this defence fails.

Statutory qualified privilege: s 22 Defamation Act

31   Section 22(1) provides:

“(1) Where, in respect of matter published to any person -
(a) the recipient has an interest or apparent interest in having information on some subject:
(b) the matter is published to the recipient in the course of giving to him information on that subject; and
(c) the conduct of the publisher in publishing that matter is reasonable in the circumstances,
there is a defence of qualified privilege for that publication.”

32   Mr Hale submitted that the reciprocal requirements of s 22(1)(a) and (b) have been satisfied. I accept that submission. This leaves s 22(1)(c), where, again, the focus turns to the conduct of the publisher in making the publication. Was the conduct of the defendant in publishing the matter reasonable in the circumstances?

33   The answer to this inquiry depends upon a consideration of all the circumstances: see Austin v Mirror Newspapers (1985) 3 NSWLR 354 at 360.

34   Mr Hale drew attention to the much cited dicta of Hunt A-JA in Morgan v John Fairfax & Sons Limited (1991) 23 NSWLR 374 at 387-388, where his Honour stated the various propositions to be addressed in assessing the reasonableness of the defendant’s conduct.

35   Mr Hale submitted that the defendant’s conduct passed the various tests to be found in the propositions stated in Morgan. However, once again I prefer Mr Campbell’s submissions to the contrary. It seems to me that the various considerations identified when considering the concept of reasonableness in the context of common law qualified privilege operate when looking at the statutory defence. I do not consider that the defence of statutory qualified privilege has been established because I do not consider that the conduct of the publisher in making the publication was reasonable having regard to those various considerations I earlier identified.

Comment

36   Although the defendant pleaded comment of a stranger so as to enliven s 34 of the Defamation Act, and alternatively comment of a servant or agent for the purposes of s 33, Mr Hale has not contended that the comment is that of a servant or agent. Rather he has identified the comment as that of J.A. Rodi in claiming “the tender was unethical and improper” (para 7), together with the added words in para 8. Mr Hale has, in addition, referred to what Cr Keegan said in para 11.

37   Section 31 of the Act confines the availability of the defences in Div 7 to comment that relates to a matter of public interest. I am satisfied that the subject matter to which the imputation relates is a matter of public interest. There is a very obvious public interest in the administration of local government and the conduct of those involved in such administration. Any impropriety in the process of tendering for council business, especially where it involves a deputy mayor, is plainly a matter of public interest.

38   Section 30(3) limits the availability of the defences under Div 7 to comment, and makes such defences available only if

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

39   Where matter complained of includes both comment and the material upon which comment is based, a defence as to comment is not a defence as to the material upon which the comment is based: s 35 of the Defamation Act. Further, the defence of comment does not extend to any matter that does not indicate sufficiently that it purports to be comment as opposed to a statement of fact: see Hunt v Star Newspaper Co. Limited [1908] 2 KB 309 at 319-320; Thompson v Truth and Sportsman Limited (1934) 34 SR 21 at 24-25.

40   One of the difficulties in considering this defence is that it is not known precisely how the jury determined that the imputation which it found established arose. The article did not limit itself to expressing comment and clearly there was material upon which the comment was based for the consideration of the jury as well.

41   However Mr Hale referred to a number of cases in which consideration has been given to the principles to be applied in determining whether an imputation is conveyed as fact or comment. In particular, see Kemsley v Foot [1952] AC 345 per Lord Porter at 356; Pervan v North Queensland Newspaper Co. (1992-1993) 178 CLR 309 per McHugh J at 340-342; and Goldsborough v John Fairfax and Sons Limited (1934) 34 SR 524 per Jordan CJ at 531-532.

42   If one treats paras 7, 8, 11, 12 and 13 as comment, as Mr Hale has submitted such paragraphs should be treated, and if it be assumed that the imputation which the jury found to have been conveyed was conveyed as comment as distinct from fact, what s 30(3) requires is that comment is based upon proper material for comment or, alternatively, material on which the comment is based is to some extent proper material for comment and the comment represents an opinion which might reasonably be based on that material to the extent that it is proper material for comment.

43   Section 30(2) of the Defamation Act renders a statement of fact which is matter of substantial truth proper material for comment. Conversely a statement of fact which is not a matter of substantial truth is not proper material for comment. The paragraphs in the article outside those paragraphs identified by Mr Hale as comment include para 1 which describes the successful agency as the plaintiff’s agency (“the Deputy Mayor’s real estate agency”), and this is not a matter of substantial truth. Paragraph 12, containing comment by Councillor Keegan, seems to be based upon the material in para 1, at least in part, and the comment is expressed to relate to “her company”. As I observed earlier, nowhere does the material contained in the article alert the reader to the fact that the plaintiff had no financial interest in the company. Nowhere in the article is there material which alerts the reader to the fact that the plaintiff played no part in the decision to tender, or to the fact that the plaintiff played no part in the tender process. The closest it goes to addressing the plaintiff’s non-participation is in para 17, but plainly this does not go far enough. Part of the material is the banner headline, which I do not take merely to be an extract from the words attributed to Councillor Keegan in para 11 of the item. True it is that he there uses the words “immoral” but the context in which he used the word does not appear in the headline and he did not use the word as descriptive of a “deal”. Notwithstanding that the word “immoral” is put in inverted commas in the headline, it seems to me that the banner headline may be taken to be a statement of fact. If it is not to be so treated, then it is not the comment of a stranger identified in the article and can only be regarded as the comment of the subeditor whose responsibility it was to settle the headline. If it be treated as a statement of fact, it does not qualify as proper material for comment because it is not a matter of substantial truth.

44   In my opinion, the defence of comment has not been established.

Damages

45   The plaintiff has established her claim to damages and I now turn to their assessment.

46   In the assessment of damages the Court must “ensure that there is an appropriate and rational relationship between the relevant harm and the amount of damages awarded”: s 46A(1) of the Defamation Act. The “relevant harm” is the harm suffered by the plaintiff: s 46(1)(a).

47   There is in this case no claim for damages for economic loss and in arriving at an assessment of damages for non economic loss, the Court must “take into consideration the general range of damages for non economic loss in personal injury awards”: s 46A(2). As that sub-section recognises, damages may be assessed in cases involving personal injury on different bases, depending on where and in what circumstances injury was suffered by the plaintiff. Damages for personal injury may be determined in accordance with common law principles, or under a different regime if injury is sustained in a motor vehicle accident, or under yet a different regime if injury is sustained in the course of employment. Recognition of these differing bases for assessment does not facilitate the task which s 46A(2) requires me to undertake.

48   The plaintiff’s cause of action is in respect of the imputation identified in para 2 of this judgment, namely that the plaintiff

“is reasonably suspected of obtaining a dishonest financial benefit for herself through her office as Deputy Mayor of the Auburn Council in CIA Real Estate’s procurement of a tender with that Council.”

49   Mr Hale submitted that the imputation should be considered as a “low level one”, since it is founded only upon reasonable suspicion. He submitted further that although the evidence establishes the publication prompted much discussion, there was no evidence that the plaintiff suffered any economic loss as a result of it, and he referred to the evidence of Mr Hunt that not only was the plaintiff “very, very highly regarded” before the publication but that she still is. The plaintiff did not lose office as a councillor after this publication but was re-elected in 1999. Whilst the plaintiff failed to be elected as Deputy Mayor in September 1996 , I accept Mr Hale’s submission that the evidence does not permit me to conclude that this failure was due to the offending publication and the plaintiff did become Deputy Mayor again in 1997 before her subsequent election as Mayor.

50   Whilst it has not been proved that the plaintiff’s career has been adversely affected by the publication, and whilst it has not been proved that the plaintiff suffered any economic loss, harm is nevertheless to be presumed and in assessing damages I must have regard not only to any injury to the plaintiff’s reputation but to the hurt the plaintiff suffered. I must also be mindful of the need for the plaintiff’s vindication; the damages that are awarded should suffice “to convince a bystander of the baselessness of the charge”: Broome v Cassell & Co Limited [1972] AC 1027 at 1071.

51   The plaintiff said that she became aware of the publication on the day it was made and when she saw the article was very angry and shocked. The plaintiff also considered that the article was unfair both in layout and in content. I earlier referred to the concession made by Ms Milohanic in cross examination concerning the banner and the layout in para 29(d) above, and I regard the plaintiff’s response as a reasonable one. I accept that her distress was increased by the responses of others conveyed to her. I find that the responses included the following:

(i) the plaintiff’s husband telephoned her and I accept that he was very angry about the publication, the moreso because of the use of the word “immoral” in the banner headline. The plaintiff perceives her husband to have remained distressed by the article and the imputation he understood it conveyed against his wife, and in the mind of the plaintiff this had some adverse impact upon her relationship with her husband;

(ii) the plaintiff received other phone calls in which, in effect, she was asked by persons whether she had done something wrong and in which, by way of response, the plaintiff endeavoured to persuade the caller that she had done nothing to justify criticism, and that the article conveyed the wrong impression. The plaintiff named the callers to whom that message was conveyed as including Tony Khaltar, Ruth Anderson and Jemal Hassami;

(iii) The plaintiff said that people talked to her in the street about the publication, and named as one of those Mr John Alcorn, a former estate agent who had the management of the plaintiff’s properties;

(iv) others who addressed her about the subject matter of the article included other estate agents in the area, and people in commercial outlets such as the local chemist shop, the local bread shop and the Commonwealth Bank.

52   I am satisfied by the evidence in point that the plaintiff felt aggrieved by the publication and by her experience in having to face many people who raised the subject matter of the publication with her and to whom she perceived the need to protest her innocence of any impropriety and to whom she endeavoured to do just this.

53   I am mindful of course that the plaintiff is not to be compensated for the cause of action based upon the imputation which the jury was not satisfied had been conveyed (referred to in para 29(d) above), but nevertheless I am satisfied that the publication in question occasioned the plaintiff much distress. I accept that the plaintiff was, by reason of her background, particularly sensitive to her reputation and that she entertained deep and genuine concern about the impact this publication may have had upon that reputation. Further, I am satisfied by the evidence of the plaintiff and her husband that the publication affected the relationship between the plaintiff and her husband.

54   The plaintiff was prompt to see her solicitors after this publication and was aware of their letter of 9 May 1996 demanding a retraction and apology, and of the reply from the defendant’s solicitors dated 10 May 1996 expressing the defendant’s refusal to meet such demand, as well as the assertion in that letter of the availability of “strong defences”. I am satisfied that the defendant’s behaviour contributed to the plaintiff’s hurt feelings and that the hurt was prolonged by the inevitable delay in the matter coming on for hearing and by the conduct of the defendant’s case. At the same time I remind myself that a failure to apologise may not be relied upon as a matter going to aggravated damages: Carson v John Fairfax & Sons Limited (1993) 178 CLR 44.

55   I have regard to the extent of the publication referred to earlier, and I am satisfied for the purposes of s 47 of the Defamation Act that the imputation was not true or a matter of substantial truth.

56   Having reflected on all the evidence in the case and upon the various submissions of counsel, written and oral, I have concluded that I should award damages in the sum of $70,000.

57   That assessment attracts interest and it is agreed that I should award interest at the rate of two percent per annum, and I propose to award interest at that rate on the total damages since I do not regard the case as one that attracts compensation for the future, nor have I assessed damages on the basis that it does.

58   I calculate interest in the sum of $5950 (four and a quarter years) and there will therefore be judgment for the plaintiff in the sum of $75,950.

59   I reserve the question of costs and will entertain submissions as to costs on a date to be arranged with my associate.

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Last Modified: 09/26/2000