McGaw v Channel Seven Sydney Pty Ltd - [2006] NSWSC 1147

No judgment structure available for this case.

CITATION: McGaw v Channel Seven Sydney Pty Ltd [2006] NSWSC 1147

HEARING DATE(S): 14 November 2005 - 30 November 2005

JUDGMENT DATE :
2 November 2006

JURISDICTION: Supreme Court

JUDGMENT OF: Rothman J

DECISION: Plaintiff awarded damages of $385,000; Orders to be formalised after hearing the parties on costs and interest.

CATCHWORDS: CIVIL LAW - DEFAMATION - imputations found by jury - imputations known by plaintiff to be false - credit issues - aggravation of damage - renown of plaintiff affects damage occasioned - defamation damage not higher than limit set by statute on non-economic damage in personal injury matters - no purpose of punishment in damages awarded - damages for hurt and distress - damages for damage to reputation - vindicate plaintiff to those who read or hear of judgment

LEGISLATION CITED: Crimes Act 1900 (NSW)
Defamation Act 1974 (NSW)

CASES CITED: Aldridge v John Fairfax & Sons Ltd [1984] 2 NSWLR 544
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
Harrigan v Jones [2001] NSWSC 623
Meissner v The Queen (1995) 184 CLR 132
Waters v PTC (1991) 173 CLR 349
R v Abboud [2005] NSWCCA 251
Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327

PARTIES: Mark McGaw
Channel Seven Sydney Pty Ltd

FILE NUMBER(S): SC 20340/03

COUNSEL: P: Mr T Molomby SC, Mr A Gemmell
D: Mr T E F Hughes AO QC, Mr K P Smark

SOLICITORS: P: Colin W Love & Co
D: Mallesons Stephen Jaques

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ROTHMAN J

THURSDAY, 2 NOVEMBER 2006

20340/2003 MARK McGAW v CHANNEL SEVEN SYDNEY PTY LIMITED
JUDGMENT

1 HIS HONOUR: Mark McGaw, the plaintiff, sues Channel Seven Sydney Pty Limited (Channel Seven) for damages arising from the publication of defamatory material on the Today Tonight program on 11 June 2003. Pursuant to s 7A of the Defamation Act1974 (NSW), the jury has found that the broadcast of Today Tonight by Channel Seven gave rise to two defamatory imputations: that Mr McGaw is “a man of dangerous domestic violence” (the first imputation); and that he “bashed his lover so severely that she was hospitalised with horrific injuries” (the second imputation).

2 This judgment relates to the remainder of the matter and deals with the consequences of that publication, any defences that may arise and, to the extent that the defences are unsuccessful, the assessment of damages.

3 The allegations broadcast in the program concern the treatment by him of a person alleged in the program to be his partner, Ms Louise Boucheron. (Ms Boucheron underwent a name change between the date of the interview broadcast on Today Tonight and the date of giving evidence in the proceedings. For all purposes in this judgment I will continue to refer to her as Ms Boucheron.) The jury answered the questions as to the imputations and their defamatory character on 16 June 2004.

4 The plaintiff seeks damages, including aggravated and exemplary damages, and seeks to prove that the imputations are false and were known to be false to the plaintiff. The defendant asserts as its defence, under s 15(2) of the Defamation Act 1974 (NSW) that the first imputation is true and relates to a matter of public interest, at least in relation to NSW, and that the second imputation is contextually true: s 16 Defamation Act. Outside of New South Wales (at least in relation to Queensland and the Australian Capital Territory) the defendant also relies upon a defence that, in turn, relies on truth in substance and in fact and a publication in or for the public benefit.

5 As can be seen by the above, the truth of the imputations broadcast by Channel Seven is an essential ingredient in the cases for the plaintiff and for the defendant. The truth of those imputations depends very much upon whether one believes that which was said in the interview and in evidence by Ms Boucheron, or whether one believes the plaintiff, Mark McGaw, or believes neither of them. Each of them allege that the other displays erratic violent behaviour. For Channel Seven, the imputations are claimed to be based upon three incidents, the last of which culminated in a charge against Mr McGaw for common assault and a plea of guilty. For Mr McGaw, other evidence has been adduced, admitted over objection of the defendant, which seeks to show the tendency of Ms Boucheron to act in the way alleged by the plaintiff. Earlier judgments deal with the admissibility of that evidence.

Broadcast

6 The Today Tonight broadcast was tendered, as was a transcript of the relevant segment. The broadcast on Mr McGaw was the lead story in the program. The transcript does not have the same impact as the broadcast but it is more convenient to set out the transcript. The broadcast was in the following terms:

“Naomi Robson:

Louise Boucheron:

Naomi Robson:

Woman:

Naomi Robson:

Man:

Naomi Robson:

Louise Boucheron

David Richardson:

Football commentator

Louise Boucheron:

Richardson:

Louise Boucheron:

Richardson:

Football commentator:

Richardson:

Louise Boucheron:

You fight you make it worse, you don’t fight – it’s…it’s like I said it all happens in a matter of seems like seconds, it happens in a matter of minutes.

Richardson:

Louise Boucheron:

Richardson:

Louise Boucheron:

Football commentator:

Richardson:

Louise Boucheron:

Richardson:

Louise Boucheron:

Richardson:

Louise Boucheron:

Richardson:

Louise Boucheron:

Richardson:

Louise Boucheron:

Richardson:

Louise Boucheron:

Richardson:

Mark McGaw:

Louise Boucheron:

Richardson:

Louise Boucheron:

Richardson:

Louise Boucheron:

Naomi Robson:

7 Channel Seven admits that the broadcast occurred in New South Wales, Queensland, Victoria, the Australian Capital Territory and the Northern Territory and estimates the viewing audience (which numbers exclude the Northern Territory) at over 1.37 million people. Excluding children under ten, this translates to approximately one in ten of the population in the States for which estimates exist. This is an extremely large number of people who were directly exposed to the broadcast. There is evidence, which I accept, that the story was a “topic of discussion” after the broadcast even amongst some who did not see it.

8 The broadcast included pictures of Ms Boucheron being interviewed; a short shot of the plaintiff, Mr McGaw, with a doorstep comment, Mark McGaw scoring a try and an extract of the Legends of League game in 2001, being that part of the game in which there was an altercation between Mark McGaw and Mal Meninga after which Mr McGaw left the field.

Credit

9 Ultimately, the determination of the facts depends on whether one believes Mark McGaw or Louise Boucheron (or neither) in the testimony that they have given. As will be seen by the remainder of the factual analysis in this case, I accept the evidence of Mark McGaw and I do so with no hesitation.

10 Demeanour, it has been said, is overrated as a determinant of the truthfulness of witnesses and I have, as a consequence, questioned my initial reaction to the demeanour of Ms Boucheron and tested it against objective evidence. Apart from the demeanour of the witness, her body language, her reluctance to answer some questions which were perceived to be unhelpful to her case and her direct inconsistency in testimony before the Court, there was objective evidence that was inconsistent with her testimony (and necessarily rendered that which was said untrue) on matters of some significance in the issues before the Court.

11 Some of the inconsistencies in evidence were on matters not directly relevant to the primary facts: for example, whether Ms Boucheron had been given a copy of her statement to the police of 12 March 2003. Initially, Ms Boucheron gave evidence that she only had the statement for a short time between 12 March 2003 and June 2003 and her evidence two days later was that the statement had been given to her to read by Channel Seven in the last few weeks. Seemingly minor inconsistencies, of which that was one example, on matters not otherwise relevant, when added to other inconsistencies and prior inconsistent statements and the objective evidence inconsistent with her version of events leads inexorably to that which seemed obvious from her demeanour, namely that she was giving a version of events that was inaccurate or untruthful.

12 Some of the other inconsistencies will be dealt with in dealing with the issues of relevance in the proceedings. As the above indicates, on any issue of fact on which there are divergent accounts, I do not accept the evidence of Ms Boucheron and I do accept the evidence of Mr McGaw. These findings are made bearing in mind that Channel Seven, as it would, ran the case in its interests, not the interests of Ms Boucheron. She is not a party, was not represented and, if she were, may have conducted the proceedings and cross-examined very differently.

Relationship

13 Mr McGaw ran a business in which he provided personal training services and a fitness training accreditation business. Mark McGaw and Louise Boucheron first met in about March 2001. A mutual friend, Tina Brown, who gave evidence in the proceedings, introduced them. Shortly thereafter, in about April 2001, Ms Boucheron moved into the same accommodation as Mr McGaw. At the time Ms Boucheron was working for a company called Spectacular Group Pty Limited which was a company organising events. Ms Boucheron prepared a business plan for Mr McGaw, or companies of which he was a principal, and left the employ of Spectacular Group and worked for Mr McGaw.

14 Initially, Ms Boucheron was engaged as a consultant and became increasingly more involved in conducting the business, suggested that he needed “a better image” and that he move to offices at Brighton-Le-Sands. As a matter of fact, Ms Boucheron ran the business and ultimately, in about November 2001, took on the title of General Manager and worked on a full-time basis. During the initial period Ms Boucheron wrought significant changes in the business of Mr McGaw, including the outsourcing of accounting, the dismissing of a number of staff and the hiring of more staff.

15 In every practical sense Ms Boucheron ran the business, receiving bank statements, operating the bank accounts of business and also operating Visa accounts and the like.

16 An incidental issue in the proceedings was whether the relationship went beyond cohabiting and business.

17 Mr McGaw denied that there was any relationship of a sexual nature between Ms Boucheron and him. It was never suggested to Mr McGaw, by Channel Seven, that there was a sexual relationship. Ms Boucheron on the other hand described the relationship as one which started off as “dating” and moved into a “sexual relationship not long after we moved in”, with which Mr McGaw was not comfortable. As Ms Boucheron described it, “we then started having an open relationship” meaning “we would sleep with each other and on odd occasions we would sleep with other people as well.” The last comment should be understood, from context, to mean that each of them would sleep with a different person.

18 Whatever its meaning, I do not accept it. Ms Boucheron, according to the notes of the police, “made it very clear to police that she and the defendant were not in an intimate relationship but were merely flatmates.” Of course, it may be a definitional issue in which “casual sex” is not treated as “a sexual relationship” or a relationship that could be described as one of a “sexual nature”. In any event, I find that the relationship between the plaintiff and Ms Boucheron was overwhelmingly one of flatmate and business relationship and there was no sexual relationship that would allow Ms Boucheron to be described as “a lover” or that would define the nature of the relationship.

19 Notwithstanding the above description, the business relationship between them was as close as it could be. In all respects, Ms Boucheron ran Mr McGaw’s life, especially that part of it that related to business. I also find that Ms Boucheron wanted to effect other changes to the life of Mr McGaw and wanted a relationship that was deeper than that which existed, including a desired relationship as his “lover”.

20 During the course of their relationship, Ms Boucheron exclaimed, on a number of occasions, “you just don’t get it”. This she did, for example, in circumstances where Mr McGaw was “chatting up” a young woman at a function that each attended. It also occurred when Mr McGaw had been out for the evening or night and, the next morning, she came into his room and woke him with that exclamation. Again, there may be an explanation that goes beyond the desire for a personal relationship of the kind described. It matters not for the purposes of this judgment. It is conceivable that, as well as seeking to have a closer personal relationship, Ms Boucheron was seeking to “improve the image” of Mr McGaw and have him become more “socially acceptable”. There are aspects of these explanations that are consistent with both inferences. But it is an inference that arises that at least some of those explanations (and perhaps all) are related to a desire to have a closer personal relationship.

21 There are three main incidents with which the Court is concerned and I need to deal with each of them in turn.

26 October 2002

22 The incident of 26 October 2002 was an incident described in the broadcast by Ms Boucheron as “an explosive rage” being the incident that occurred about seven o’clock in the morning and commenced at a time when Ms Boucheron was asleep. This was the incident that was described as the one that required Ms Boucheron to be “hospitalised with horrific injuries”. Ms Boucheron’s account of the incident differs significantly in the versions given in evidence and also between the evidence given and the statement made to the police. The broadcast interview was in some parts different again. None of the statements by Ms Boucheron suggested that as a result of the actions of Mr McGaw she “was hospitalised with horrific injuries”, which is part of the imputation that the jury found derives from the broadcast. This was an interpolation of Channel Seven.

23 On the evening of 25 October 2002, Mr McGaw went out with a friend, Matthew Laverty, who gave evidence in the proceedings. Mr McGaw describes the behaviour of Ms Boucheron before he went out. She had, according to Mr McGaw, smashed items and punched him in the stomach. She was drunk and abusive. Ms Boucheron, in her evidence, accused Mr McGaw of smashing the items. Mr Laverty gave evidence in relation to this evening. After confirming that he picked Mr McGaw up in his (Mr Laverty’s) car to go to a hotel in Balmain and confirming that he arrived at about six o’clock in the evening, his evidence continued:

…

24 He received a phone call from her which he related: “she said: ‘where is that f…ing c…? I want to talk to him’ and just abusive phone calls.” He did not put Mr McGaw on the phone because he “couldn’t get a word in. She just hung up.” A number of abusive phone calls were received and it seems that Mr Laverty and Mr McGaw considered the evening quite disastrous and made the decision to go back to Mr Laverty’s place. During the time at Mr Laverty’s place, Mr McGaw received further phone calls. At least one, it seems, from Ms Boucheron and one from the car alarm monitoring service. Mr Laverty’s evidence confirms the evidence of Mr McGaw, which I accept. Telephone records and the records of the car alarm monitoring service have been adduced in evidence to confirm this account.

25 I find that Ms Boucheron was drunk and abusive prior to Mr McGaw leaving the house. I find that she had damaged items in and around the apartment and that she had assaulted Mr McGaw.

26 Further, I find that during the course of the evening Ms Boucheron became more and more inebriated. She made a number of abusive calls both to Mr Laverty and Mr McGaw and she entered the garage and damaged Mr McGaw’s motor vehicle and did so deliberately. I find that Mr Laverty and Mr McGaw went back to Mr McGaw’s premises, inspected the damage to the car, returned to Mr Laverty’s house and spent the night there. I also find that Mr McGaw, on returning to his apartment, saw items smashed and damaged; that he approached Ms Boucheron’s room, stood at the doorway and asked her what had occurred. Her reaction was erratic and irrational. She immediately got up on the bed and started screaming and yelling saying; “you just don’t get it, you don’t get it.” As she was waving her arms and jumping the bed collapsed. She fell back landing half on the mattress with her neck against the wall. Mr McGaw went to her assistance. Ms Boucheron complained that her neck was sore. Mr McGaw’s experience in football told him that she ought not be moved; he called an ambulance; they went to hospital to check out her injuries; and the hospital cleared her of any serious injury and sent her home.

27 Ms Boucheron’s versions are to the following effect: to the police she said:

“Around the 26th on the Saturday at or about 7 or 7:30 am he started throwing stuff around the room. He threw me around the room. I was in bed and he started laying into me.”

28 The version given in the interview has already been reproduced.

29 In evidence she said of the incident:

“Mark walked into the bedroom and stood near the bed, an argument started. I remember reaching for my mobile phone. We both seemed to reach for the same mobile and we started wrestling over the mobile.

30 There are a number of inconsistencies within the accounts given my Ms Boucheron. Firstly, no injuries were occasioned by the incident. Secondly, she describes, depending upon the audience, her being thrown around the room or Mr McGaw “laying into” her. The version given in evidence, even by Ms Boucheron, was that they were wrestling for a telephone. Each of these versions is materially different. Ultimately, both she and Mr McGaw accept that the bed broke (it was a slat bed and apparently the slats moved apart).

31 The version of Ms Boucheron is wholly inconsistent (except for the breaking of the bed) with the evidence of Mr McGaw and of Mr Laverty, although in the case of the latter his evidence was limited to events that occurred during the evening and night. Mr Laverty was not cross-examined. I reiterate I accept the evidence of each of Mr McGaw and Mr Laverty on this issue.

The Second Assault

32 This incident was described in the broadcast as the reason that Ms Boucheron moved out of the house that she and Mr McGaw shared. The interviewer described it as “the last straw”.

33 The incident occurred at or shortly after a visit to the Bondi Icebergs. Ms Boucheron’s version of events (some of which is uncontroversial) was that, on 5 March 2003, Mr McGaw went to the Icebergs to meet with the person running the new gym both to work out at the gym and to explore possible business opportunities. Ms Boucheron went with him. The person that Mr McGaw was hoping to meet was not there and Mr McGaw busied himself with a workout while Ms Boucheron walked from Bondi to Bronte and returned. Most of these details are irrelevant. However, Ms Boucheron met with another woman who works in the fitness industry and they explored the possibility of working with each other in the business. Ms Boucheron introduced her to Mr McGaw and described Mr McGaw’s attitude as “short”. The acquaintance was not called to give evidence. Ms Boucheron says that she then waited for Mr McGaw to finish his workout and while waiting he directed her, on her version in a seemingly perfunctory manner, to have dinner. This she did with another friend in the bistro.

34 At or about 8:30pm she realised she had not seen Mr McGaw who was, on her version, supposed to drive her home. She borrowed her friend’s mobile. Omitting the terms of the telephone conversation, Mr McGaw picked her up at Bondi Icebergs and drove towards their home. During that drive an argument ensued. Ms Boucheron alleges that during the drive home, while the argument was occurring, Mr McGaw hit Ms Boucheron with his hand on the right side of her face and on her right leg.

35 When they arrived home she went to the boot of her car to get out her bag, keys and the like and, according to Ms Boucheron, Mr McGaw picked her up off the ground and threw her onto the footpath and started hitting and kicking her. She says that the front light came on, she heard her neighbour calling her cat and Mr McGaw directed Ms Boucheron to go into the house, which she did. She says, after referring to her by his former wife’s name and then yelling at her as if she was his ex-business partner, the fight continued; Mr McGaw hit her and Ms Boucheron went and locked herself in the bedroom.

36 Ms Boucheron was, as a result of this incident, terrified to remain under the same roof as Mr McGaw and the very next morning booked into a caravan park. She would not, she said, be with him because she feared him. Further, this is the reason that she gave to the police in her statement of 12 March 2003.

37 In cross-examination, Ms Boucheron conceded that she was wrong about the date. Ms Boucheron conceded that she in fact lived at the apartment with Mr McGaw for at least one week after the incident she said occurred and which I have described above. Further, Ms Boucheron described the circumstances of her return to the apartment as being based solely on the proposition that she would have to spend no more than one night with Mr McGaw. Again, the objective evidence from phone records is inconsistent with that assertion. I reiterate I do not accept the evidence of Ms Boucheron as to the account on that evening. I do accept the evidence of Mr McGaw, which is consistent with the objective evidence.

38 Mr McGaw’s version of events was that Ms Boucheron was abusive in the phone call from the Icebergs and after he had picked her up from the car and that no assault occurred. I accept this evidence.

39 Crucial to the findings of credit in this case is the concession, made by Ms Boucheron in her evidence, that the incident, whatever be its nature at the Icebergs, occurred on 26 February 2003 and not the day before moving into the caravan park. This means, as at 12 March 2003 (i.e. within two weeks of 26 February and the week of 5 March) she concocted a story in her police statement relating to an assault, which caused her such fear that she would no longer live in the same home as Mr McGaw. While anyone could, years after an event, mistake the date of an event or merge events in a way that displays inaccuracy, the statement to the police displays, within two weeks of the event, such a significant departure from the truth that the evidence of Ms Boucheron must generally be considered incredible.

40 Further, on Mr McGaw’s evidence, Ms Boucheron went to the caravan park because she needed time on her own. On one occasion, he drove her to the caravan park and told her that it was ridiculous for him to be paying rent when there was a separate room for her and that she should come back and live at the apartment. He then went home. At 9:30pm on the same evening he received a phone call from Ms Boucheron to the effect that she was not “white trash” and, leaving out the expletive, he should pick her up. This he did.

41 She denies this version of events and insisted that she returned only after he had called her a number of times on the phone and had given undertakings that he would be there only one night. Again, telephone records indicated that her version, at least in all the detail, could not be possible. Further, it indicated that she returned to the apartment more than one day before the date on which all the witnesses said Mr McGaw was to leave for overseas and this, once more, destroyed the basis of her allegation.

The incident of 12 March 2003

42 As is probably already clear by process of elimination, the incident of 12 March 2003 is the incident that gave rise to the charge of assault to which Mr McGaw pleaded guilty. Somewhat surprisingly, the essential circumstances that led up to the struggle are not really in issue. While the initial stories may have had some significant differences, after cross-examination, those differences seemed largely to disappear.

43 On the morning of 12 March 2003 Mr McGaw had an appointment. Ms Boucheron needed to get to work at Brighton-Le-Sands. It is perhaps appropriate, at this stage, to reiterate that Mr McGaw was the owner of the business and a motor vehicle (either directly or through the business) and Ms Boucheron worked for him.

44 Mr McGaw, on that morning, suggested to Ms Boucheron that he would drive her to the train station. Her response was forthright:

“She told me that she wasn’t catching any train, that she doesn’t take public transport and that I was the one to be dropped off and she would take the car. I told her no, it’s my car and it’s just a short walk from the train station to Rockdale, I’ll just drop you off. She says: ‘No way am I getting out of this car, you make me’.”

45 Essentially Ms Boucheron agrees with that account. Indeed, the evidence that I accept is that on at least three occasions, during the drive from their apartment to Queens Park, Mr McGaw asked her to leave the car. He did so on the way to Bondi Junction; he did so near the train station in Bondi Junction and he did so outside the police station at Waverley. On each occasion Ms Boucheron refused to leave the car. I also accept that Mr McGaw asked her to leave the car when they arrived adjacent to Queens Park.

46 Mr McGaw’s evidence is that by the time they had driven past Waverley Police Station Ms Boucheron had started to kick the car and punch the dashboard. This is the reason why he diverted from his original course to drive to Waverley Police Station. He said to her at that stage words to the effect that he would go to the police if she did not get out. Finally they arrived adjacent to Queens Park and the struggle occurred.

47 Mr McGaw described the struggle essentially as one in which he left the car and moved around to the passenger side. On arriving at the passenger side he sought to remove Ms Boucheron from the car and she refused. She wrapped her left arm in the seatbelt and hooked it around her thigh while she was jamming her feet underneath the dash of the car. Mr McGaw accepts that he grabbed the seat belt, grabbed Ms Boucheron and slid her out of the car and probably grabbed her on the thigh, the waist and on one wrist. He says he then put her down on her lower back on the ground and he was on one knee because of her weight. He let her go and they both got to their feet quickly and ran back to the car. Mr McGaw’s version is that he stood against the door handle so that she could not get to it. Ms Boucheron, he said, was pushing him away from the door handle and she then put her left foot into the open part of the window and rested her body on the window which was open about ten inches. After the initial “lunge” onto the window she rested both legs inside the car.

48 In her evidence, Ms Boucheron described the struggle in the following way:

“He was leaning in trying to undo the seatbelt. I was holding onto the seatbelt because I was afraid if he pulled me out of the car I was going to get hit again. I asked him to move away. I got hold of the seatbelt. He grabbed my wrists and started pulling me out of the car. When he pulled me out of the car he flung me and I fell on my back under a tree.”

49 In Ms Boucheron’s version, Mr McGaw grabbed both her wrists, the wrists were crossed over the top of her head and, except for the time during which he held both wrists with one hand, in order to free a hand to punch her, he had hold of both of her wrists with both his hands. At one stage of the evidence she referred to the fact that she did not seek after the initial struggle to get back into the car. In her police statement she said that she had raced back to the car and grabbed some money and a bag. In cross-examination she agreed these were very different accounts, and with much reluctance agreed, in evidence, despite initial denial, that she did go back inside the car.

50 Further, there are inconsistencies in the details of the assault given by Ms Boucheron. Different details were given to the police, in the 000 call and to medical practitioners.

51 The plaintiff made the following submission:

“[Ms Boucheron’s] injuries are not compatible with her account. The bruising on or near the right and left ring and little finger knuckles has no source in Ms Boucheron’s story; according to her she was pinned throughout by the wrists. In Mr McGaw’s account, she could have received such injuries in hitting the car dashboard. The ‘fingerprint’ bruising on her right shin and knee has no possible source in her account, where Mr McGaw was either punching or kicking, whereas in his account of her jamming her feet under the dash while he was leaning into undo her seatbelt, it is possible he grabbed her leg to restrict her movement. [Indeed, at one point Mr McGaw gave evidence that he put his arm under her thigh around her leg or that it had moved to that position while he was trying to get her out of the car.]

The most noticeable bruise by far is that on Ms [Boucheron’s] left wrist. This fits well with Mr McGaw’s account of the seat belt, and one can see a sharp edge at one point which could not have been caused by a blow or the sort of holding described by Ms Boucheron. Her account does not differentiate between the treatment of her wrists. If she were held tightly, at times by the same hand, one would expect injury to both wrists, whereas there is bruising on the left but none at all on the right. This is inconsistent with her account, but consistent with Mr McGaw’s.

The notable feature of the bruises on her thigh is that they all fit locations which could have been affected by her lunging into the car window as described by Mr McGaw. The small bruise near the right ankle could easily have been caused by her kicking inside the car. The bruise under her right armpit could have been caused by pressure there while removing her from the car.

There is a notable absence of bruising in more accessible and obvious areas which one would expect to be affected by generalised punching and kicking. Mr McGaw saw her injuries as self-inflicted…

Ms Boucheron has seriously exaggerated her injuries. Her claim in the interview with Channel Seven…— ‘I put my hip out, bruised spleen…’ is entirely false. Dr Johansson noted all injures she saw or had suggested to her by Ms Boucheron. There is nothing in her records about a hip injury. As to the spleen, the doctor was concerned that there may have been injury, and so informed Ms Boucheron. She sent her for a scan, which showed no sign of any damage. She informed Ms Boucheron of this.”

52 I accept this submission in totality. It is not the function of the Court to diagnose the cause of the injuries to Ms Boucheron. The history given to her doctor is inaccurate and undermines the diagnosis. I find that the injuries in question are far more consistent with the version of events given by Mr McGaw than they are with anything said by Ms Boucheron and I accept that the incident occurred as Mr McGaw has described it. I also find that evidence of the injuries is not inconsistent with Mr McGaw’s version.

53 It is difficult to describe the impact of the oral evidence, because much of the explanation in the witness box was visual. It is clear that the actions of Ms Boucheron were the primary cause of her injuries. The description of Mr McGaw when put in writing does not adequately reflect the relatively innocuous and reactive nature of his conduct.

54 Ms Boucheron, in her version, denied that, at least at Queens Park, Mr McGaw asked her to leave. She also stated that she did not have time to get out of the car. In so doing she defied reality and common sense and experience. After much defiance, Ms Boucheron finally (and reluctantly) conceded, in the face of objective evidence and/or prior inconsistent statements, events, which mean that, at Queens Park, the following occurred: Mr McGaw pulled over; turned off the car; undid his seat belt; took out his keys; opened his door; left the car; went to the boot and opened it; took out Ms Boucheron’s bag and closed the boot; threw or placed it on the grass; went to her door and opened it. During that time, Ms Boucheron, who is relatively young and fit, did not, she says, have time to take off her seat belt, open her door and get out. This cannot be accepted.

Plea of guilty

55 Following the incident on 12 March 2003, Ms Boucheron rang 000, went to the police station and made a statement to the police. Subsequently Mr McGaw made a statement to the police. Mr McGaw was charged and on 11 June 2003, the day of the broadcast, pleaded guilty, was found guilty but the court did not record a conviction and instead discharged the offender upon entering a good behaviour bond for 12 months. I add that contrary to the broadcast there was no term of imprisonment imposed upon Mr McGaw and no suspension of that term. A “suspended sentence”, the description given by Channel Seven, involves the recording of a conviction, the imposition of a term of imprisonment and the suspension of the term. None of those three events occurred.

56 The defendant, Channel Seven, relies in part upon the plea of guilty and the finding of guilt by the Magistrate. Channel Seven relies upon that finding and the account of Ms Boucheron given in evidence in the proceeding. I have already rejected that account. However, the plea of guilty to the charge of assault is a different issue. The nature of the criminal proceedings was that Mr McGaw was charged with common assault, a term used to describe an offence under s 61 of the Crimes Act 1900 (NSW). Police also applied for an apprehended violence order, which was granted. The apprehended violence order was an interim apprehended violence order and was revoked at the hearing before the Local Court on 12 March 2003, without ever having been made a final order and without any hearing.

57 The prosecution for common assault, as has been said, was a prosecution for a contravention of s 61 of the Crimes Act. The offence is described in the following terms:

“Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years.”

58 Other offences under the Crimes Act deal with assaults that occasion actual bodily harm or worse. It is no part of the elements of an offence under s 61 that there was the occasioning of actual bodily harm and, indeed, on one view, it is inconsistent with that charge. As I said in R v Abboud [2005] NSWCCA 251 (with which Grove and Howie JJ agreed):

Crimes Act

[19]

59 In the proceedings against Mr McGaw, the Crown tendered no such evidence. The Facts Sheet upon which the Crown relied in the prosecution is before the Court (Ex H) and is confined, in terms of the relevant actions of Mr McGaw, to the following:

“At 8:30am on Wednesday 12/03/2003 the defendant, Mark McGaw, and the victim were travelling in the defendant’s vehicle. They had been having a verbal argument since they left their home address in Bellevue Hill.

The defendant was travelling to Coogee and wanted to drop the victim at a local train station so she could proceed to their place of work at Brighton. This argument continued to the point at which the defendant stopped his vehicle at Queens Park and asked the victim to get out. They both continued to argue with each other.

The defendant [Mr McGaw] has then approached the victim’s side of the vehicle and opened the door. He removed the victim’s seatbelt and removed her body from the car and thrown her bag out of the car.

The defendant has then left the scene and the victim called for police assistance. The victim was conveyed to Waverley Police Station and a statement obtained.”

60 These facts placed before the Magistrate by agreement, and upon which the Magistrate found Mr McGaw guilty, are consistent with the account of Mr McGaw and, in some significant respects, inconsistent with the account of Ms Boucheron.

61 I do not rely upon the agreed facts tendered before the Magistrate as evidence that the circumstances of the assault were confined to those that were before the Magistrate. Channel Seven was not a party to those proceedings and cannot be bound by any such agreement. Ms Boucheron was not a party to those proceedings. Indeed, Ms Boucheron is not a party to these proceedings. However, it cannot be said that the assault charge, or the plea of guilty to it, is evidence that supports the version of events given by Ms Boucheron or the truth of the imputations. Even if I could, I do not go behind the proceedings before the Magistrate. There are many reasons why people plead guilty to an offence. As the High Court remarked:

Meissner v The Queen

62 It is, however, necessary to remind oneself that the entry of a plea of guilty upon grounds such as those adumbrated by Dawson J, as his Honour subsequently pointed out, “nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred.” Of course, in the case of Mr McGaw, no such conviction was entered, but, for present purposes, nothing turns on that distinction.

63 It not necessary in these proceedings, to construe the meaning of “domestic violence” as it is used in the Crimes Act. The definition in the Crimes Act includes a common assault committed against a person who is living or has lived in the same household or other residential facility as the person who commits the offence. It is a nice question, which does not need to be resolved, as to whether the offence needs to be committed against that person because they are living or have lived in the same household or other residential facility. In other words, an offence, such as this, perpetrated against a person because of their refusal to leave the offender’s car, and not because of the “domestic” relationship, may not, even on the extended definition under the Crimes Act, be properly categorised as a domestic violence offence.

64 Whatever be the meaning of the term in the Crimes Act, it is difficult to imagine that the ordinary meaning of the term “domestic violence” would extend to the physical removal of a person from one’s own car simply because the person removed happened to be a flatmate. In this instance the assault that was occasioned by Mr McGaw on Ms Boucheron is perpetrated against a person who lives in the same residential facility which fact is only an ancillary aspect of the offence. I find that the sole purpose and/or motive of Mr McGaw was to remove Ms Boucheron from his car, so that he could go about his business.

65 I do not by the above suggest that the manner in which Mr McGaw handled the situation was appropriate. It seems that it would have been far more preferable had he implemented the course of conduct which he suggested, namely, stopping outside the police station, leaving the car and asking the police to remove Ms Boucheron.

66 However, I do not consider that the ordinary meaning of the term domestic violence extends to a situation such as this. It is not without doubt. It may be that given the cohabiting relationship between the two persons, any act of violence would be construed by the public as an act of domestic violence. I therefore deal with the remainder of this judgment on the basis that the ordinary understanding of the term domestic violence would include this incident.

67 I have earlier stated the terms of the imputation found by the jury. It was, relevantly, that Mr McGaw was “a man of dangerous domestic violence”. The ordinary meaning of that imputation goes beyond that which could be categorised by this conduct. The use of the term “dangerous”, in particular, would take the imputation beyond anything that could arise from the events as I find they occurred.

68 Further, the ordinary and the natural meaning of the imputation is that it goes beyond the occurrence of a single event in which Mr McGaw sought to remove, even forcibly, Ms Boucheron from his car. It imputes to Mr McGaw a general characteristic, which, on my findings, is false.

69 In some respects the imputation that Mr McGaw “bashed his lover so severely that she was hospitalised with horrific injuries” is a worse imputation than the former and overtakes it. Such imputation goes well beyond engagement in non-injurious violence. However it seems that the first imputation deals with the general character and conduct of Mr McGaw, while the second deals with so much of his character as can be affected by an incident of the kind there described. In other words, the first-mentioned imputation is of a general character going beyond the event of the 12 March 2003, while the second-mentioned imputation is an imputation relating to specific conduct and in particular refers to one or more of the three events. In those circumstances both imputations are false and each imputation is “different from the other”.

70 There are other aspects of the broadcast which showed the general nature of the first imputation: the reference to other women learning from the mistakes of Ms Boucheron; the reference to his general nature as “a demon” with “a psychological disorder which led to explosive violence”; the reference to Mr McGaw’s seeking treatment for his condition; the reference to the general nature of this kind of conduct by him, including the possibility that accidents would happen, or he could do it again to someone else.

71 I accept the submission of the plaintiff that the first imputation imputes a specific violent character or tendency to Mr McGaw and that the second imputation imputes particular acts, or a particular act, of extreme violence. As is made clear, I have found that the first imputation is false. I have also found that the second imputation is false. Channel Seven did not seek, in relation to the second imputation, to prove otherwise. In relation to that imputation it sought only to defend the imputation on the basis of contextual truth bearing in mind the first imputation, which they said was true.

Subsidiary factual issues

72 During the course of proceedings I admitted evidence that was adduced for the purpose of showing a tendency on the part of Ms Boucheron. As can be seen from the above analysis, ultimately that evidence was not needed for the purposes of determining the issues of fact between the parties. However, it is sufficient for my purposes to find that, on the night of 13/14 August 2002, there was an incident in which Ms Boucheron displayed the kind of erratic irrational behaviour which I find she displayed on other occasions.

73 In this instance the necessary inference from the evidence that is before me is that Ms Boucheron damaged property in the apartment including a computer upon which Mr McGaw had been working. Other damage was occasioned to items in the apartment and to the walls of the apartment. Further, Ms Boucheron had hidden Mr McGaw’s phone and it was ultimately found at the bottom of a basket in Ms Boucheron’s bedroom. The computer had also been hidden but was ultimately found.

74 Apart from Mr McGaw, who gave evidence from which these inferences can be drawn, Mrs Annette McGaw, the plaintiff’s mother, gave evidence from which this can be ascertained. Mrs McGaw was not cross-examined on this evidence. It is clear from the evidence (including concessions by Ms Boucheron) that she was drunk at the time and now says that she is unable to recall some matters of relevance relating to the incident.

75 The defendant has made some submissions of fact, which need to be dealt with separately from that which has gone before. I do not find that the account given by Mr McGaw of Ms Boucheron entering the car window on 12 March 2003 was absurd. As previously stated, I find it is an accurate account. The task of putting her left foot on the rim of the door between the window and the front panel and then sliding her right leg into the space between the top of the window and the roof is, in a car of the kind which Mr McGaw had and for a person of Ms Boucheron’s physique and seeming athletic capacity, possible and not particularly acrobatic.

76 Further, I find that, consistent with earlier conduct in relation to the car, Ms Boucheron was indeed jamming her knees into the car in accordance with the account given by Mr McGaw.

77 I have dealt with most of the other matters, but some further matters need attention. Mr McGaw gave evidence, and I accept it, that when Ms Boucheron re-entered the car she sat on the window and caused the window to come off its rail. More importantly, she sat there for some little time, during which time Mr McGaw sat in the car, and stood alongside the car, and spoke to her. Mr McGaw gave evidence that during this time Ms Boucheron calmed down. Whether she did or not is probably something about which Mr McGaw can only guess. However, I accept that Ms Boucheron appeared to be calm after some minutes sitting on the car window as described. Further I accept, predominantly because of the demeanour of Ms Boucheron in the witness box and the change in the tone of voice during the course of it, that the call to the distress number, 000, was not one which displayed genuine distress from an assault occasioned by Mr McGaw. There were parts of the phone call that sounded distressed. Other parts of the phone call sounded very business-like and matter of fact. There were some parts of the evidence in the courtroom that sounded similar to each emotion.

78 Penultimately, I deal with the criticism made of Mr McGaw’s response to police questioning on the bruising. On the facts as I have found them, Mr McGaw would have been unaware of the extent of any bruising that had occurred and I do not consider his response to the police to be inadequate.

79 Lastly, I deal with an alleged inconsistency between the assertions of Mr McGaw about the deteriorating relationship with Ms Boucheron and his spending three days with Ms Boucheron in Terrigal and several days with her in Melbourne around the date of the Melbourne Cup. The motive of Mr McGaw for spending three days in Terrigal and the days in Melbourne was a matter of evidence before the Court. By this stage, Mr McGaw depended totally in relation to his business on the conduct of Ms Boucheron. To spend time with her after she “trashed” the apartment may be something which a number of people would not do. My impression of Mr McGaw was that he displayed enormous patience in dealing with the tirades of his flatmate. The care that he took of Ms Boucheron following her outburst on 26 October 2002, where, notwithstanding her abuse, he called the ambulance, went with her to the hospital and stayed with her to ensure that she was all right, bespeaks the behaviour of a “gentle giant” as otherwise described in relation to his reputation. I will shortly deal with the details of his reputation.

80 There a number of other matters on which Ms Boucheron gave evidence, which I do not accept. It is unnecessary to deal in detail with each of them. The purpose of the time spent by Mr McGaw at Camp Eden is one such example. Some of the details provided to doctors and the inconsistency within them, while matters of detail, are not unimportant. The plaintiff submits that I should find that Ms Boucheron is a “shameless and skilful liar”. While the submission has a proper basis in the evidence that is set out by the plaintiff, it is unnecessary for the Court to make that finding. It is sufficient, for the purposes of this judgment, to reiterate that I do not accept her evidence on any matter of controversy in the proceedings.

81 As can be seen from the foregoing, I find that the imputations said by the jury to have arisen from the broadcast are false, and the defences are not made out. It is necessary to deal with the question of damage and in so doing it is necessary to return to the question of the reputation of the plaintiff.

Reputation

82 I have set out in full the transcript of the broadcast and the description by the defendant of the plaintiff. More needs to be said. Prior to the broadcast, the reputation of the plaintiff was of a highly respected, if not legendary, sportsperson, “a real gentleman” who exemplified the very highest attribute which Australians admire in their sporting heroes. There is significant unchallenged evidence to this effect. Mr McGaw’s reputation is not challenged by Channel Seven.

83 The broadcast describes Mr McGaw as “a sporting superstar”, “one of rugby league’s favourite sons”, “a State of Origin hero” and “a sporting great”. It also describes him as “a television star” and “a household name”.

84 Each of these descriptions is deserved. The evidence in this case is irrefutably to that effect.

85 The sporting prowess of the plaintiff was a matter of evidence. He played first grade rugby league for Cronulla Sharks from 1984 to 1992, for Penrith Panthers in 1993 and for South Sydney in 1994 and 1995. He played representative football representing New South Wales in State of Origin from 1987 to 1991 and Australia from 1988 to 1991. He was so well respected and so well thought of in terms of his sporting prowess and reputation that he was invited back, after his retirement, to play in a game called the Legends of League State of Origin, between New South Wales and Queensland, part of which was broadcast on Today Tonight in the episode in question.

86 A section of that game was shown in which Mr McGaw and Mr Mal Meninga engaged in an altercation. The tape discloses that Mr McGaw was seemingly hit in the jaw by Mr Meninga’s forearm during the course of a tackle and responded. Mr Meninga gave evidence in the proceedings. He described the reputation of Mr McGaw as at the end of 2002 in the following way:

“He’s highly respected. Not only for his ability on the field but certainly all the things that he used to do off the field. Again, I mention his community work, he gave himself readily all the time to, you know, whether charity or to school appearances or to any presentations the rugby league world took him to.”

87 He described his reputation as a player in the following way:

“Mark was a fierce competitor, very intent on the football field, but certainly a great player. I had a lot of respect and admiration for his ability off the field, he was a fantastic bloke, I got on with him really, really well, you know, gave himself very clearly in a lot of community work and we struck up a pretty good friendship.

Q. Did you maintain any contact with Mark McGaw after you finished your playing career?

A. Every now and again in community work or, you know, in charity rugby league games and things like that where we obviously used to play football and raise funds for different charities, different charities around the Eastern [Sea] Board of Australia.”

88 As to the incident between he and Mr McGaw, he made clear that this was not an incident that was typical of Mr McGaw’s rugby league career. Asked of his recollection of the incident, Mr Meninga said:

89 This is consistent with the evidence that the incident shown was a deliberate course of conduct engaged in by both the teams for ‘entertainment’ purposes. There can be little doubt that within rugby league circles, at least prior to the broadcast, Mr McGaw’s reputation as a sportsperson was amongst the top rugby league players in Australia in this generation and as a person was second to none. His reputation went beyond that of rugby league.

90 As a consequence of his sporting prowess and his high regard he was chosen as a star of a program on national television. This program was called “The Gladiators” and Mr McGaw played the role of “Hammer”. Indeed, the instant broadcast described him as “a television star” and “a household name”. The Gladiators was a national television program, which took Mr McGaw’s reputation well beyond that of the rugby league playing areas of Australia.

91 His reputation in rugby league, which would have been greatest in New South Wales, Queensland and the ACT, was augmented by his role in the Gladiators which spread his reputation and renown well beyond those areas. He appeared in TV commercials and was regularly involved in charitable institutions for which and by whom he was sought after. The evidence in this proceeding discloses that he was involved with and a contributor to the Starlight Children’s Foundation, Camperdown Children’s Hospital, Royal Prince Alfred Hospital at Randwick, celebrity golf and tennis days for benevolent concerns, variety club fundraisers, rotary club presentations, involvement with aboriginal children, and country New South Wales causes.

92 The level of commitment of his own time to benefit those less well off than himself bespeaks a person who rightly gained a reputation of the highest possible order. The plaintiff’s submission describes him and his activities as all having “contributed to the plaintiff generating a reputation, across numerous and diverse walks of life in Australia, as a man of generous spirit and friendly temperament, and as one of those rare individuals who despite fame and success retained an earthy authenticity and outward perspective on the world.” I accept this submission as accurate in light of the evidence before the Court.

93 Apart from Mr Meninga, Mr Steve Rogers (since deceased) and his wife, Mrs Ingrid Rogers, gave evidence, all to the same effect. Evidence was given as to the reputation of Mr McGaw by the former leader of the New South Wales Opposition, Ms Kerry Chikarovski, Mr Alan Jones of Radio 2GB and a number of others. The effect of the evidence was the same. He was described by Mr Jones, which description I accept, as being “very highly regarded; impeccably courteous; always well presented. His demeanour was always sound, he wasn’t a man given to course language or delivering insults. A courteous gentleman.” He was described by Ms Chikarovski in the following terms:

“Mark was known to be a good bloke, a very generous individual. He was generous with both his time and his commitment to the community, particularly to young people; he was very well regarded. I never heard a bad word against him.”

94 His father, a former police officer, and his mother, a former nurse, described his celebrity status by recalling what it was like being out with him, especially in the Cronulla area. In his mother’s words:

“It was almost embarrassing at times…we were out, people coming up and chatting to him and asking him for autographs. Yes, he was very popular…his popularity just escalated, he just became more known throughout Australia. He got mail from everywhere. Fan mail from Perth, New Zealand, everywhere. It [the Gladiators] escalated his popularity.”

95 That reputation translated into Mark McGaw’s circumstances in a number of ways. Firstly, he was sought after for a number of charity events, which he readily accepted. Ultimately, after retirement from football, he entered business as a physical trainer and is generally in the fitness industry. Those business interests largely depended upon his reputation and recommendation by word of mouth.

96 A personal trainer, or person offering services as a personal trainer, needs to invoke confidence, a feeling of security and safety in clients and have a reputation that would allow people to put themselves in his/her hands and in close quarters. A reputation as a person who has inflicted on someone close to him injuries of a kind that require that person to be hospitalised or a reputation as a person generally of dangerous domestic violence is inconsistent with the successful continuation of such a career.

97 For understandable reasons given the circumstances of this case and the state of his business at the time of the trial (his business was in administration at the time of the trial), no economic loss is claimed on behalf of the plaintiff and no economic loss will be taken into account. Nevertheless, this aspect is relevant, not because of any head of damage for economic loss but because the effect of the defamation and injury to reputation that occurred from this broadcast was felt in every aspect of Mr McGaw’s life and being.

98 The evidence, which I accept, is that he was devastated. He was shunned in the Cronulla area and beyond. He became reclusive and depressed. There was a significant grapevine effect from the broadcast, which was described in evidence and was not confined to the Sydney region. He was the subject of vituperative “humour” on the basis of this story and his consequent reclusiveness. Mr McGaw was unable to attend charity functions because of the way in which he felt and invitations to charity functions were withheld. In some instances, eg, the 2003 Cronulla Sharks Immortals Night, the effect of the broadcast on his own personality was such that Mr McGaw, even though he was invited, declined to attend. The evidence was that the effect on Mr McGaw was immediate in terms of his personality and emotions and that it continues. Likewise, the severe distress suffered by Mr McGaw from the outset was, at the time of trial, continuing.

99 The effect of the broadcast on the plaintiff cannot be overestimated. It was described in submissions of the plaintiff as immense. Frankly, on the evidence before the Court, that seems an understatement. Perhaps the best description is that given by Channel Seven in the broadcast when it described Mr McGaw’s public life as “now in tatters”. Channel Seven was referring to his plea of guilty, but the description better suits the effect of the broadcast itself. The only qualification one would put on that description is that, on the evidence before the Court, it was not only his public life that was destroyed. To borrow a phrase from the criminal law, it is always possible to imagine a worse case, but the imagination of a judge does not determine whether the objective seriousness of behaviour is in the worst case category. In this instance it is difficult to imagine a defamation that would have more profound or worse effects on a plaintiff than this one.

100 The Court is injuncted to take into consideration the general range of damages for non-economic loss in personal injury awards: s 46A Defamation Act1974. By legislative requirement that general range takes into account the statutory regulation of awards in this State.

101 It is of course impossible to truly compare personal injury cases and general damages associated therewith and an assessment for damage arising out of a defamation because they compensate in such different ways and compensate such different elements: Harrigan v Jones [2001] NSWSC 623 at [153].

102 Nevertheless, even though damages are at large, the assessment of those damages must necessarily be constrained by reference to the relevant harm suffered (see s 46(2) of the Defamation Act) and the general range of damages for non-economic loss in personal injury awards.

103 Section 46(2) of the Defamation Act provides:

“Damages for defamation shall be the damages recoverable in accordance with the common law, but limited to damages for relevant harm.”

104 Section 46A of the Act provides:

“(1) In determining the amount of damages to be awarded in any proceeding for defamation, the court is to ensure that there is an appropriate and rational relationship between the relevant harm and the amount of damages awarded.

(2) In determining the amount of damages for non-economic loss to be awarded in any proceedings for defamation, the court is to take into consideration the general range of damages for non-economic loss in personal injury awards in the State (including awards made under, or in accordance with, any statute regulating the award of any such damages).”

105 There are a number of aspects to this provision which require comment. Firstly, s 46A(2) does not expressly limit the amount of damages that may be awarded. On one view, the subsection requires only that the general range of damages for non-economic loss in personal injury be taken into consideration. While it is clear that the range in personal injury awards must include statutory limits that are now imposed, those statutory limits are, pursuant to the provisions of s 46A, a consideration only. This is to be expected. While general damages in a personal injury case have an upper limit, that upper limit has been set in circumstances where, in those worst cases, it is most likely that there will be significant damages for economic loss, and further significant damages to compensate for other matters such as extended care arrangements.

106 Despite or because of that imprecision in language and the difficulties of comparing dissimilar situations, s 46A has been the subject of significant authority. It has been accepted, and for the purpose of the present proceedings I too accept, that the provisions of s 46A(2) of the Defamation Act require any judgment to be no more than the limits set by statutes for general damages in personal injury cases. I also adopt the principle adumbrated in a number of judgments, with which I will shortly deal, that the range between worst case and best case must fit within the statutory regime for personal injury damages, and that a comparison should be made with other defamation awards of recent time.

107 The High Court has provided the necessary guidance in relation to interpretation of this statutory provisions, in the following terms:

“ [72] No doubt the purpose of comparing awards for defamation and awards in personal injury cases is to ensure that what Diplock LJ called “the scale of values of the duel” is not adopted. A person's reputation is not to be valued more highly than life or limb. If an award of damages for defamation is greater than the amount that would be allowed for the non-economic consequences of the most serious physical injuries with permanently disabling consequences, it may be evident that the amount awarded for defamation is manifestly excessive. In this way, the comparison which s 46A requires limits awards for defamation. What it does not do, however, is identify where, within the outer limits of proper awards, a particular case should find its proper level. It does not, for example, say that some or all forms of defamation should attract awards less than (or greater than) an award that might be made for (say) the loss of a limb.

[73] Nor would it be consistent with the statutory adoption of the rule that “[d]amages for defamation shall be the damages recoverable in accordance with the common law” to understand s 46A as prescribing a particular, let alone a mathematical, relationship between the damages to be awarded for defamation and the damages for non-economic loss in personal injury awards. 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. Likewise, it is fundamental that the damages for non-economic loss in personal injury awards must compensate for the effect of the injury on the particular plaintiff. Classifying kinds of defamation and kinds of personal injury, and using that classification to assert some relationship between the damages to be awarded in these cases would deny those fundamental principles. Nothing in s 46A permits or requires it to be done.

[74] 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.

[75] 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”.

[76]

highest

Rogers v Nationwide News Pty Ltd

108 Comparisons with personal injury cases are difficult but not impossible. Firstly, serious personal injury cases carry with them award for damages beyond general damages and include elements of economic loss, future expenses for significant care arrangements and the like. In those circumstances the non-economic damage is sometimes an insignificant part of the total award of damages. In the current situation it is not at all clear that the injury done to Mr McGaw by the defamatory broadcast is “evanescent”.

109 As already explained, this defamation has significantly altered every aspect of Mr McGaw’s life. Even the vindication that will occur by virtue of this judgment will not gain the same publicity, nor will it have the same effect, as the original broadcast. The reaction of the plaintiff to this broadcast has a number of similarities with some elements of the effects of personal injury cases e.g. post-traumatic stress disorder, general anxiety and some brain injury cases: elements akin to agoraphobia; depression; and anxiety. One would hope that with time and proper treatment the depressing effect Mr McGaw now suffers can be overcome. But there are no guarantees.

110 There can be little doubt that, in the case of Mr McGaw, the personal distress and hurt occasioned to him has been debilitating and has had a significant and lasting, probably permanent, effect. Further, the harm done to Mr McGaw’s personal and business reputation has been extraordinary and even though the amount I award will, for those that hear of or read the judgment, vindicate Mr McGaw’s reputation, it is likely that there will continue to be some residual effects of the broadcast. I hasten to add that I do not intend to augment the damages on account of the need for the plaintiff to be vindicated. That which I will otherwise award for personal distress and hurt and for reparation for the harm done to the appellant’s personal and business reputation will be sufficient to serve that purpose. Vindication will, it is hoped, flow from the damages otherwise assessed.

111 The purposes of an award of damages for defamation has been described by the High Court in Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, in the following terms:

“The three purposes no doubt overlap considerably in reality and ensure that ‘the amount of a verdict is the product of a mixture of inextricable considerations’. The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant's personal and (if relevant) business reputation and vindication of the appellant's reputation. The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant. Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant's reputation. ‘The gravity of the libel, the social standing of the parties and the availability of alternative remedies’ are all relevant to assessing the quantum of damages necessary to vindicate the appellant.”

Carson v John Fairfax & Sons

112 In the current case, the degree of distress and hurt and the harm done to the appellant’s personal and business reputation must be measured in circumstances where the plaintiff has a particular social standing and has no other remedy than the award of damages to vindicate his position.

113 A comparison with comparable awards must therefore bear in mind those issues. Unlike a medical specialist defamed by a hurtful description of the reasons for an award of damages against him, Mr McGaw’s work colleagues were not aware of the factual circumstances that gave rise to these allegations. Similarly, unlike a politician or a media personality currently employed in the media, there are no alternative means by which Mr McGaw can redress the defamatory comment or could reverse its effect at the time it was published. Further, Mr McGaw is not in a business or line of work which carries with it the necessary robustness that some may. His income, as well as his personal life, is dependant upon his personal reputation.

Aggravated damages

114 Aggravated damages are compensatory damages awarded because the conduct of the defendant, being conduct which is improper, unjustifiable or lacking in bona fides, has made the impact of the original wrongdoing on the plaintiff greater. In my opinion it involves no element of punishment, although there are some statements that seem to undermine that view. No part of this award of damage seeks to punish the defendant, notwithstanding the comments of McHugh J in Carson. Justice McHugh said:

Carson

115 It would seem that the terms of s 46(3)(b) of the Defamation Act, which require that damages not be affected by the state of mind of the publisher, would preclude punishment being a separate factor in the determination of damages under the Act. In any event, because of the level of proper compensation that I will award, it is unnecessary to punish the defendant.

116 As earlier stated, aggravated damages involve the determination of the conduct of the defendant and whether that conduct has increased the personal distress and hurt caused by the publication or the harm done to the appellant.

117 To paraphrase others, it would be a rare occurrence for common assault to which there was a plea of guilty and no conviction recorded, to be the lead item in a national current affairs program. This was the lead item because of the public interest created by the reputation and renown of the plaintiff. The defendant paid an amount of $10,000 for the rights to the story. It did so in circumstances where its contract required payment of the amount within 14 days of Seven’s broadcast of the interview. One can imagine that an interviewee faced with such a clause may be encouraged to make the content of the interview more salacious and/or more interesting. However, in this case I do not find that the interviewee, Ms Boucheron, was aware of the provision or took the view that the amount would not be payable if the interview was not broadcast. Notwithstanding that, in some circumstances, such a provision may amount to improper conduct, I do not find that it is and I do not find that Channel Seven intended that the clause would operate to deny payment if the interview was not broadcast.

118 The imputations were broadcast in circumstances that the plaintiff, Mr McGaw, knew they were false. It would, therefore, have an impact upon him of greater intensity than if that were not the case. Knowledge by the plaintiff of the falsity of the imputation is a matter going to aggravation: Aldridgev John Fairfax & Sons Ltd [1984] 2 NSWLR 544 at 549.B. In this case I do not consider that such knowledge is a matter which would significantly add to the level of damage otherwise assessed.

119 The plaintiff raises as a matter of aggravation the failure to provide an apology when requested and, more relevantly, the defendant’s reasons for refusing to apologise. This brings into play more starkly the original conduct of the defendant in investigating the allegations. The defendant filmed the plaintiff outside the courtroom and contacted the plaintiff for the purposes of obtaining a comment.

120 When Channel Seven contacted Mr McGaw, it did not seek to provide to him all of the issues which it was alleging, and was about to allege, in the broadcast, or provide to him any basis upon which he could apprehend the nature of its “investigation”. From the position of Mr McGaw, he was reasonably entitled to assume that all that would be put forward was the fact that he pleaded guilty to a common assault and the circumstances of that common assault as put before the Court. This of course brings in another factor. Channel Seven did not attend the court hearing. Had it done so, it may have been alerted to the very different basis upon which a guilty plea was entered than the allegations that were adumbrated by Ms Boucheron. It would also have been aware that its description of the sentence was wrong.

121 Instead, the investigation conducted by Channel Seven of the circumstances which it was alleging was superficial. I do not take the view that they were not entitled to believe Ms Boucheron, only that they were required to make some effort to determine what the court had done and, if they had done so, they may have been alerted to the falsehood or exaggeration of Ms Boucheron.

122 I turn then to the reasons given by the defendant for refusing to apologise. I do not here raise any criticism of General Counsel for Channel Seven who responded on the assumption that proper investigations had been undertaken by the Current Affairs staff. However, there was no basis for the statement by Channel Seven that the program had made clear that the plaintiff had pleaded guilty to common assault. Indeed the allegations in the program were almost the antithesis of a proposition that what Mr McGaw had done was an assault not occasioning actual bodily harm.

123 I have already found that the broadcast was incorrect in asserting that the court had imposed a twelve month suspended sentence on Mr McGaw. There is a significant difference between a bond for good behaviour without recording a conviction, on the one hand, and on the other hand a conviction, the imposition of a custodial sentence and its suspension. The explanation in the letter responding to the request for an apology, that the program had made clear that Mr McGaw received a bond, is patently incorrect and its falsity should have been known to Channel Seven. Channel Seven was given the names of Ms Chikarovski and Mr Marslew, each of whom gave evidence in the proceedings, to deny some of the allegations in the broadcast. Before writing the letter in response, they did not check with those persons.

124 I have no hesitation in accepting the evidence of Mr McGaw that the terms of the response exacerbated the damage suffered: the hurt and the distress. These are circumstances of aggravation when Channel Seven had the opportunity to ameliorate the damage.

Exemplary damages

125 A number of authorities have discussed the question of exemplary damages in so far as they relate to publications outside of New South Wales. I do not repeat that discussion. The plaintiff submitted that I should give leave, if I am otherwise minded, to allow the plaintiff to argue for exemplary damages in the states outside of New South Wales. I have decided not to grant that leave. I have done that primarily because the conclusion to which I come is that the amount of damages is sufficient and I would have some doubt as to whether there is evidence of conscious wrongdoing or a need to punish by the awarding of a greater sum than that which I now award.

Conclusion

126 The determination of an appropriate range and the comparison with personal injury cases is not an arithmetic exercise. Nor is there some mathematical matrix which would allow one to determine comparability of awards with precision. Nevertheless, a fundamental concept of our legal system is that parties will be treated equally. It finds expression in the parity principle in sentencing, in discrimination law and in the comparability of awards for damages in personal injuries and other matters. It recognises that equality, and the perception of equality, is a necessary concomitant of the objective application of law and principle. It applies in a number of areas. Applying the same principles of consistency of approach, the courts have held that unequal treatment of persons who are relevantly equal is discrimination. So, too, is the equal treatment of persons who are relevantly unequal: Waters v PTC (1991) 173 CLR 349 at 402, per McHugh J.

127 As already stated, this plaintiff is a person of national reputation and renown. The defamatory imputations were broadcast beyond New South Wales. Their effect and the consequent distress permeates every part of the life of Mr McGaw. He has no capacity to deal with these imputations other than through this proceeding and he is not a person who operates in the robust arena where imputations of this kind might be expected and dealt with through other means.

128 He depends for his livelihood on his personal reputation and the effect of this broadcast has been that it is next to impossible for him to continue in his chosen career. He has been shunned and this has, in turn, had a debilitating effect on his personality.

129 In those circumstances, the level of damages must be in the highest order and must properly compensate the plaintiff for his hurt, his distress and the harm done to his personal and business reputation.

130 There are some other matters with which I need to deal. I have earlier stated that each of the imputations are distinct and have different qualities: one general; one specific. I consider that the second imputation is an imputation which, were it more general in nature, would be a worse imputation than the first. Overall damages that would properly compensate the second imputation would compensate, though not completely, the damage engendered by the first imputation. I take the view that the combination of the two imputations is slightly greater than the second imputation by itself. The second imputation deals with a particular incident and ascribes to the plaintiff conduct of significant domestic violence occasioning significant harm, and the first imputation adds to that imputation a generalised nature. Together it aggrandises the damages I would otherwise order for the second imputation alone.

131 I take into account, in mitigation of the damage, that the plaintiff was involved in a common assault of a kind described in these reasons and some part (quite minuscule) of the damage would have been caused simply by the accurate reporting of that incident.

132 Last, I deal with where in the range of available damages this award should fit. Were the publication of the second imputation largely confined to New South Wales, or the reputation of the plaintiff confined to New South Wales, based on the comparison with other predominantly New South Wales defamation awards, I would have little hesitation in awarding an amount of at least $250,000 to the plaintiff. However, I take into account that the reputation of the plaintiff goes well beyond New South Wales and it is a reputation as, in the words of Channel Seven, a “sporting superstar, a television star”, “a household name”. This applies equally to Queensland and the ACT and to a lesser degree to Victoria. There are of course differences. A much greater shunning and opprobrium was occasioned in Sydney (particularly in the Cronulla and the Shire area) than was the case interstate. Were I to deal only with Queensland, Victoria and the ACT, without regard to New South Wales, the level of damages would be almost the same as that which I would award for New South Wales, except that I would then be double counting the distress and hurt feeling, or most of it. Regardless, the aspects of damage to both personal and business reputation are, in this case, as important as the hurt and distress. As such, I estimate that the additional damages that ought to be awarded in relation to the publication interstate is about half as much again as it would be if it were confined largely to New South Wales.

133 I award damages to the plaintiff in the amount of $385,000. I realise that this puts the verdict at the high end of recent judgments. But this is appropriate and anything less would not properly compensate the plaintiff. As earlier stated, there is no mathematical formula for the determination of these amounts. Intuitively, this amount is compensatory but not more than is apt. It is also one which allows due discrimination for the different effect on this plaintiff of the broadcast of these defamatory imputations compared with the circumstances of other awards and other defamation.

134 I will not as yet enter any verdict because the parties may wish to address me on interest, and on the question of costs.

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Citations

McGaw v Channel Seven Sydney Pty Ltd [2006] NSWSC 1147

Most Recent Citation

Coull v Nationwide News Pty Ltd [2007] NTSC 47

Cases Citing This Decision

5

Harvey v Henderson [2025] NSWSC 601

Attrill v Christie [2007] NSWSC 1386

McGaw v Channel Seven Sydney Pty Ltd [2006] NSWSC 1270

Cases Cited

7

Statutory Material Cited

2

R v Abboud [2005] NSWCCA 251

Harrigan v Jones [2001] NSWSC 623

Carson v John Fairfax & Sons Ltd [1993] HCA 31

CITATION:	McGaw v Channel Seven Sydney Pty Ltd [2006] NSWSC 1147
HEARING DATE(S):	14 November 2005 - 30 November 2005
JUDGMENT DATE :	2 November 2006
JURISDICTION:	Supreme Court
JUDGMENT OF:	Rothman J
DECISION:	Plaintiff awarded damages of $385,000; Orders to be formalised after hearing the parties on costs and interest.
CATCHWORDS:	CIVIL LAW - DEFAMATION - imputations found by jury - imputations known by plaintiff to be false - credit issues - aggravation of damage - renown of plaintiff affects damage occasioned - defamation damage not higher than limit set by statute on non-economic damage in personal injury matters - no purpose of punishment in damages awarded - damages for hurt and distress - damages for damage to reputation - vindicate plaintiff to those who read or hear of judgment
LEGISLATION CITED:	Crimes Act 1900 (NSW) Defamation Act 1974 (NSW)
CASES CITED:	Aldridge v John Fairfax & Sons Ltd [1984] 2 NSWLR 544 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 Harrigan v Jones [2001] NSWSC 623 Meissner v The Queen (1995) 184 CLR 132 Waters v PTC (1991) 173 CLR 349 R v Abboud [2005] NSWCCA 251 Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327
PARTIES:	Mark McGaw Channel Seven Sydney Pty Ltd
FILE NUMBER(S):	SC 20340/03
COUNSEL:	P: Mr T Molomby SC, Mr A Gemmell D: Mr T E F Hughes AO QC, Mr K P Smark
SOLICITORS:	P: Colin W Love & Co D: Mallesons Stephen Jaques