Mirabella v Price
[2018] VCC 650
•16 May 2018
| IN THE COUNTY COURT OF VICTORIA AT WANGARATTA COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
DEFAMATION LIST
Case No. CI-17-01644
| SOPHIE MIRABELLA | Plaintiff |
| v | |
| LIBBY PRICE | First Defendant |
| and | |
| BENALLA NEWSPAPERS PTY LTD | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Wangaratta | |
DATE OF HEARING: | 26, 27 & 30 April and 1, 2, 3 & 16 May 2018 | |
DATE OF JUDGMENT: | 16 May 2018 | |
CASE MAY BE CITED AS: | Mirabella v Price & Anor | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 650 | |
REASONS FOR JUDGMENT
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Subject: Defamation; Assessment of damages
Catchwords: Defamation; Assessment of damages; whether plaintiff guilty of disreputable conduct; whether a relevant consideration upon assessment; significance of other adverse factors affecting the plaintiff’s reputation and feelings; mitigating effect of apology; apology late and after conclusion of election campaign; limited effect in mitigation; effect of defence of justification based on alternative meaning
Legislation Cited: Evidence Act 2008; Defamation Act 2005;
Cases Cited:Newsgroup Newspapers Limited v Campbell [2002] EWCA Civ 1143; Broome v Cassell & Co [1972] AC 1027; Praed v Graham (1889) 24 QBD 53; Plato Films Limited v Speidel [1961] AC 1090; Briginshaw v Briginshaw (1938) 60 CLR 336; Wilson v Bauer Media Pty Ltd [2017] VSC 521; Jeffrey v Giles [2015] VSCA 70; Croucher v Cachia (2016) 95 NSWLR 117; Upper Murray Rural Water Corporation v Di Masi (2014) 43 VR 348
Judgment: 1. Plaintiff’s damages assessed at $175,000.
2. Costs reserved.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms G.L. Schoff QC with Mr T J Mullen | Corrs Chambers Westgarth |
| For the Defendants | Mr D. P. Gilbertson QC with Ms S C Bailey | HWL Ebsworth Lawyers |
HIS HONOUR:
Background
1 The plaintiff, Mrs Mirabella, was the Member of the Commonwealth House of Representatives for the electorate of Indi. She was elected on 10 November 2001, retaining the seat at a number of subsequent elections until she suffered a narrow defeat in the General Election of 2013. (Transcript “T” 75, Line(s) “L” 23 – T76, L8.) She held a number of shadow ministries and significant committee appointments during her time on the House, though never served as a minister. (T76) The Liberal Party whom she had represented pre-selected her once again as its candidate for the 2016 General Election. (T77, L25 – T78, L10) Her opponent was independent, Ms Cathy McGowan, who had taken the seat in 2013. Mrs Mirabella had been pre-selected in mid-2015. The 2016 election occurred on 2 July. Accordingly, she was “a fulltime candidate for a year”. (T79, L20-24)
2 Some weeks prior to 15 April 2016, Mrs Mirabella became aware that Commonwealth Assistant Minister for Aged Care, the Honourable Ken Wyatt, would be visiting the electorate of Indi. (T82, L12-14) Mrs Mirabella was assisted in her candidacy by a Liberal Party field officer, Ms Karen Rourke, who provided part-time support of Mrs Mirabella’s campaign from an office in Wangaratta established in the name of “Liberals for Indi”. (T80, L11-22) In that capacity, Ms Rourke arranged a meeting between the Minister and Mr Freddie Dowling, an Elder of the Bangerang People, which was seeking recognition as an individual ethnic group inter alia for land rights purposes. The meeting took place at a restaurant in Benalla and was attended by the Minister, Mrs Mirabella and the first defendant, Ms Libby Price, who was the editor of the Benalla Ensign, the publisher of which is the second defendant in this proceeding. The Benalla Ensign published an article and a photograph relative to this meeting. (T82, L26 – T84, L2)
3 Following this meeting, Mrs Mirabella and the Ministerial party proceeded to an aged care facility known as Cooinda. An event was being staged to mark an extension to the facility, which included the usual formalities, with the official party touring the facility and meeting residents. There were speeches followed by the unveiling of a plaque to mark the occasion. The Chief Executive of Cooinda, Ms Margaret Aldous, and members of its Board were in attendance. (T84, L9 – T85, L9) Also in attendance was the sitting member and Mrs Mirabella’s opponent in the forthcoming General Election, Ms Cathy McGowan. There were reserved seats for the “VIPs” or “dignitaries” at the front of the gathering. According to Mrs Mirabella, Mr Wyatt sat to her right and on his other side was Ms McGowan. (T85, L21-31) Also in attendance was a television crew and Ms Price of the Benalla Ensign. (T86, L24-31) According to Mrs Mirabella: “After the formal part, people mixed and mingled.” (T87, L12-13) According to Mrs Mirabella’s evidence, with most of the guests having left, the Minister prepared to depart, having participated in official photographs. (T87, L14-25)
4 As the Minister prepared to leave, Mrs Mirabella was informed by Ms Rourke that her opponent, the sitting member, Ms McGowan, “wanted a photograph with Mr Wyatt.” (T94, L13) According to Mrs Mirabella, Ms McGowan, “was quite a few metres away. She was waiting at the plaque.” (T94, L29-30) Mr Wyatt and Liberal Party staffers formed a group of people, with Mrs Mirabella several metres away from Ms McGowan and the plaque. According to Mrs Mirabella, since the official photos with the Cooinda representatives had already been taken, there was no occasion for a further photograph featuring the Minister and Ms McGowan. Mrs Mirabella:
“wanted to have a conversation with Ken about our political strategy and why it wasn’t a sensible thing to do, and I made sure that we were far away enough [from Ms McGowan].” (T95, L30 – T96, L1)
5 She said she wanted to avoid the “perpetuation of this myth that Ms McGowan was Liberal light.” (T96, L6-7) She said she urged Mr Wyatt:
“not to assist in that regard, and, um, he told me that he’d already said he’d have a photo with her, and I said, ‘Well, that’s okay, just tell her you don’t have time. You should tell her that you don’t have time and, um, I'll walk up with you.’” (T96, L22-26)
6 Mrs Mirabella said that she and the Ministerial group walked towards Ms McGowan, who was accompanied by a staffer “with a huge camera” and in company with Cooinda CEO, Ms Margaret Aldous. (T96, L31 – T97, L6) Ms McGowan said the photo would not take long and, “You don’t mind, Sophie, do you?” (T97, L18-19) to which, according to Mrs Mirabella, she replied, “Well, since you’ve asked me, yes, I do mind, Cathy, cause (sic) if you wanted to have promotional material with Liberal ministers, you should have run for Liberal pre-selection.” (Ibid, L17-22) Meanwhile, Mr Wyatt was already walking away, presumably to his next meeting. (Ibid, L27-29)
7 According to Mr Wyatt, when Mrs Mirabella interceded with him not to be photographed with Ms McGowan, he said:
“That as a Minister, I was in a seat and if there is a request like that, I tended to have photos with whoever the sitting member was. … So Ms Mirabella put her hands on my chest and asked that I don’t have a photo, ah – with Cathy, because it would legitimise, ah – an alliance to the Liberal brand that she was an Independent. And that was the gist of the conversation. …” (T195, L22-24, 30 – T196, L2)
8 He said Mrs Mirabella maintained her hands on his chest, “For the duration of the conversation, which it – probably about a minute, at the most.” (T196, L8-10) According to Mr Wyatt, “if I’d moved to turn, then there would’ve been pressure exerted either way.” (Ibid, L20-21) According to Mr Wyatt, “What happened [then] was my, ah – senior adviser, Brigid Meney, grabbed my shoulder and said, ‘Minister, we are running late, we need to go to the next, ah – meeting’. So I moved sideways and then we left.” (Ibid, L21-24)
9 Mrs Mirabella did not distinctly deny placing her hands on Mr Wyatt’s chest, as he described. She remembered it as a hand on the shoulder but, perhaps, “on the front”. She remarked “I’m a touchy person”. (T165, L28 – T166, L1) Mr Wyatt seems to have had a distinct recollection of the event. He is, in the circumstances, a disinterested witness, and I accept that events occurred in this respect as he described them.
10 The Benalla Ensign published its next weekly edition on 20 April 2016. This edition of the paper was not available in Wangaratta until the following day. The 20 April 2016 edition of the Benalla Ensign included an article at the foot of one of the internal pages headed “Awkward Encounter”. It was accompanied by a photograph of a group of mostly older people apparently looking toward a speaker. In the front row sat Ms McGowan on the left and Mrs Mirabella on the right. There was a vacant seat between them which, according to Mrs Mirabella’s evidence, had been occupied by Mr Wyatt. One may infer, therefore, that the photograph was taken during Mr Wyatt’s speech at the opening (Exhibit B) It began:
“It seems election fever has struck with a vengeance, with a cacophony of politicians attending the opening of the new wing at Cooinda Village by Federal Liberal MP Ken Wyatt last week.”
11 The second article referred to the attendance of the candidates for the 2016 election, Ms McGowan, the sitting member, and her challenger, Mrs Mirabella, stating that Mrs Mirabella “took exception to the current member for Indi … asking to have photo taken with Mr Wyatt in front of the Cooinda plaque …” The article then continued “Mrs Mirabella very publicly pushed Ms McGowan out of the way to obstruct the photograph being taken.” The final paragraph stated “Ms McGowan did get her photo with the rather bewildered Mr Wyatt, but not in front of the plaque.”
12 No one at the Benalla Ensign, whether the editor, Ms Price, or anyone else, contacted Mrs Mirabella or her office for comment on the story before it was published. (T330, L19-24) On 20 April, Ms Rourke arrived at the Wangaratta office at her accustomed time of approximately 8.00am to 8:30am. Before Mrs Mirabella arrived, Ms Rourke received a telephone call from a Liberal Party member in Benalla; she thought either Tony Schneider or Rohan McEwan, who were members of Mrs Mirabella’s campaign team. (T332, L26 – T333, L11). The caller enquired if Ms Rourke had seen the article in the Benalla Ensign. She assumed that the comment related to the Ministerial meeting arranged by Mrs Mirabella relative to the Bangerang People. The caller said, “Oh no, it says [that] Sophie has pushed Cathy McGowan.” (T333, L18-19)
13 Ms Rourke said that she “jumped online” to try and access an online version of the article but she could not find it “at that point”. (T333, L31 – T334, L2-3) The caller then texted the words of the article to Ms Rourke shortly after the phone call. (T334, L4-9)
14 Ms Rourke telephoned Mrs Mirabella who was en route to the office. (Ibid, L10-14) According to Ms Rourke, Mrs Mirabella, “looked flustered … a bit teary.” She said upon viewing the article itself, Mrs Mirabella “got even more upset”. (Ibid, L19-22) Mrs Mirabella asserted that nothing of the sort had happened and Ms Rourke agreed that she had observed nothing. (Ibid, L25-27)
15 Ms Rourke then rang the Benalla Ensign and spoke to Ms Price, who agreed that she had not seen the “push” but declined to inform Ms Rourke who had told her of its occurrence. Ms Rourke challenged the failure to seek a response from Mrs Mirabella or a member of her staff and, according to Ms Rourke’s evidence, Ms Price replied, “Well, she would have denied it anyway.” (T335, L7-24) Ms Rourke then said that she was in attendance for the whole time and, “nothing happened”. Ms Price then offered to interview Mrs Mirabella to which Ms Rourke replied, “Well, it’s a bit late for that, um, but I'll get back to you.” (Ibid, L27-31 – T336, L1)
16 Whilst the call had not been made “on speaker” at Ms Rourke’s end, Mrs Mirabella was in attendance and got the general drift. Ms Rourke commented, “Sophie was pretty upset … in tears … She was distraught.” (T336, L14-19) According to Ms Rourke, Mrs Mirabella was even more distraught than “when she lost her seat”. (Ibid, L19-20)
17 According to Ms Rourke, she followed “standard process”, notifying the State Director of the Party Secretariat. (Ibid, L28-29) The State Director told her “to just sit tight at that point and, um, see what happened and just to prepare a draft statement and keep in touch.” (T337, L9-11) Ms Rourke received further calls from local party members on the balance of 20 April, “It wasn’t on Twitter or Facebook yet.” (T337, L15) Amongst the first to issue a “tweet” was Margo Kingston. (T338, L7-8) This led to Mrs Mirabella’s issuing a tweet (Exhibit AQ) stating:
“I emphatically reject reports I pushed Cathy McGowan. Reporter did not even bother 2 call me. A sad return 2 nasty tactics from my opponents.
April 21, 2016”
18 According to Ms Rourke, Margo Kingston was a journalist with the Sydney Morning Herald who has now set up a website called “Nofibs”:
“what they call a citizen journalism project that was – I think she had a grant from Macquarie Uni or something to set that up. But it was around reporting in journalism, outside the mainstream, so using every-day people to report news.” (T339, L8-14)
19 Ms Rourke believed that the operation “was based in Sydney” but had a local representative known as “Wayne”. (Ibid, L22) Ms Rourke sent an email on the morning of 21 April to Ms Price in the following terms:
“Hi Libby,
I have today seen your reporting on a supposed altercation between Sophie Mirabella and Cathy McGowan. I was standing a few feet from them and had Cathy McGowan in clear view. Sophie might be regarded as forthright and pushy, but there’s a big difference to ‘pushing’ someone. If she pushed Cathy McGowan, I would have seen it. Sophie emphatically rejects your report. It is extremely disappointing that you did not contact her in advance of printing, one of the key standards of ethical journalism is a right of reply. Sophie had a positive conversation with Marg Aldous after the opening and has a meeting with Cooinda and their board coming up. You could hardly expect this if the incident had occurred as you report.
Sophie will be pursuing this matter further.
Yours sincerely,
Karen
Karen Rourke
Field Officer”
(Exhibit AR)
20 The ABC online news report for 21 April 2016 reported Mrs Mirabella’s denial on Twitter and her criticism of the journalistic standards, which she said the story exhibited. According to the ABC report, “former ABC presenter, Libby Price, stands by the story. She said the incident was witnessed by a number of people and she independently confirmed it took place with four sources”. (Exhibit H)
21 The news item alleging the very public push was repeated in The Australian Online for 21 April 2016, together with Mrs Mirabella’s denial, together with a statement by Ms McGowan saying “the Liberal candidate intervened to prevent the photo being taken”. (Exhibit J)
22 Meanwhile, there was an email exchange between Ms Rourke and Ms Bridget Rollason of Prime 7 TV News. Ms Rollason sought a comment on behalf of Mrs Mirabella at 3.30pm on 21 April. The initial email included the statement “But Cathy [McGowan] is saying she [Mrs Mirabella] didn’t push her …”. A further clarification by Ms Rollason at 3.40pm said “Cathy hasn’t confirmed that she wasn’t pushed sorry, just hasn’t addressed it”. (Exhibit P)
23 That evening, there was a nationally televised debate held at a hotel in Wangaratta between sitting member Ms McGowan and her challenger, Mrs Mirabella. Mrs Mirabella raised the issue at the outset by asking Ms McGowan to confirm that she had not been pushed. According to a report in the Border Mail the following day, Ms McGowan replied, “Do we want to talk about it Sophie?” The moderator, Mr Paul Murray, asked Ms McGowan what had happened, and she replied, “My sense is we don’t want to talk about it publicly. I think it’s caused enormous distress to Sophie and I don’t think it’s appropriate to go into details”. (Exhibit K)
24 Meanwhile, there was a flurry of activity on Twitter under “#Indivotes”. There were a number of tweets from Ms Kingston. Margot Kingston tweeted, “so did Sophie push Cathy? Only one is telling the truth”. Andy13 tweeted the same day, “Out of my way! – Benalla …. Sophie Mirabella is a bully!” Le voyageur tweeted, “Pollies can’t expect to be abusive rude and lazy and win support”. P McGee tweeted, “Meanwhile in Indi Sophie Mirabella is quietly pondering who she can push over next”. A Magickeagle999 tweeted, “THE PUSHINATOR – `I Won’t Be Back’”. Disgraced Ex Speaker said, “I can positively say Sophie has a great left uppercut”. Frightbat Banshee said, “Oh bitch please … everyone knows that you’re a vile nasty cow…LOL!”. Amanda Steeles said, “It just plays to all her past behaviour. Don’t want people to believe ‘nasty’ stories – behave better!” Reklaw Ynot said, “Back to your virulent & lecherous shape shifting self; #indivotes has denounced this poison snake lady & will again”. Ed Rumbo referred to Mrs Mirabella’s denial and said, “and yet multiple witnesses have stated otherwise. Dear me, you just couldn’t help yourself could you?”. Emotional Support Peacock said, “Sophie’s words v that of several witnesses who saw the incident. I wonder who we should believe…”. Smithian said, “Out of my way! Sophie Mirabella really is a piece of my work, isn’t she?”. John Davis said, “Basic discourtesy never impresses, especially in the country where we know we all need to work together”. Green Rust said, “Sophie hasn’t changed at all”. Adora Krem said, “I’d say it was unbelievable but it’s pure @MirabellaSophie bush pig behaviour”. Dennis Ginnivan (Ms McGowan’s brother-in-law) said, “Common decency wins votes. Rural people see through rude behavioural rubbish!”. John Englart complained of “Hubris and Campaign nastiness from #LNP candidate Sophie Mirabella”. Mr Davis referred to a tweet by Mr Tony Windsor, an Independent member of the House of Representatives for New England (Northern New South Wales) (T341, L14-20, T342, L13-17). Mr Windsor in his tweet described Mrs Mirabella as “the Nasty one” (Exhibit Z)
25 The report was taken up in numerous online sites, including one by James Hennessy. (Exhibit R) Another by Malcolm Farr, where the author asked, “Did the former MP drop the shoulder into the woman who replaced her?” (Exhibit S) The online Herald Sun reported, on 22 April, of an ugly spat, which report included Mrs Mirabella’s denial. (Exhibit T) The site, “thenewdaily.com.au”, on 21 April 2016, referred to “startling claims” that Mrs Mirabella “pushed her political rival, Ms McGowan, in public”. (Exhibit V) The site quoted a spokesperson for Ms McGowan as stating, “an unfortunate incident had occurred” between her and Mrs Mirabella. The Shepparton News, on 22 April 2016, reported Mrs Mirabella’s denial under the heading, “Allegation Is Rejected, Mirabella Says She Did Not Push McGowan”. (Exhibit W)
26 The following day, 22 April, the satirical website, The Shovel, ran a photograph of Mrs Mirabella with a headline “Softer, Calmer Sophie Mirabella Pushes Cathy McGowan, Rather Than Punching Her In The Face”. It attributed the following statement to Mrs Mirabella: “If the f… in the electorate want to vote for some loser independent over me, well they’re absolute d…s. But I’m not going to get all worked up over it”.
27 On 22 April, a journalist from The Border Mail interviewed Ms McGowan. In her evidence to the court, Ms McGowan said she did not remember the event “No, not at all”. (T409, L25) Ms McGowan agreed that her interviewer was a journalist but cavilled at describing him as “a respected journalist”. She said “Respected could be an interesting adjective to describe him but he is certainly a journalist”. (T410, L2-3) Ms McGowan agreed that the interview gave her the opportunity “to just clear things up”. (Ibid, L18-19) She agreed that she could have said, correctly, that she was not pushed by Mrs Mirabella, but continued, “I could have said that, yes, Your Honour, and do you know, I chose not to”. (Ibid, L21-23) She agreed that in the interview she referred, on a number of occasions, to the article published in the Benalla Ensign, saying that an incident had occurred and “it was recorded by the journalist”. (Ibid, L24-29)
28 Ms McGowan said:
“I was trying to do my best as a journalist to say this is not of great interest to the community, they want to talk about mainstream topics, let’s stay focused on the topic and that’s what I tried to do. And to try and say I had other motives is just so wrong”. (T411, L13-18)
29 She disagreed with the proposition that it would have been “more honest” for her to have answered the question. She said:
“So that probably comes to the crux of the evidence that I need to give. And clearly the answer is no because if I thought that, I would have done it. What I thought was that an incident took place at Cooinda where a Minister of the Crown, a guest of our community and the community itself was really embarrassed. That's what I saw. And I thought there would be nothing to gain in bringing that out into the media because people would say to me Cathy, you didn't get pushed, who got pushed? And then I would be in a position of saying Ken Wyatt got pushed, and I decided - and maybe this court will find otherwise in terms of judgment that that was a failing, but I decided that it was far better if we let the case run as it was and people thought Sophie had pushed me. In terms of respect for the institution and respect for the Minister of the Crown and the Liberal Party, I thought that probably was of too undesirable places, better to go there because I could begin to even imagine what the national media would have done as they are doing now in this court case, if they had heard me say that it was Ken Wyatt who got pushed, I just could not in all honesty do that to Ken, to Cooinda, to my community.” (T411, L25-T412, L17)
30 Ms McGowan continued, “… it wasn’t my job to step in and do something with the media about it, they would do whatever they wanted to do with it”. (T412, L22-25)
31 A fortnight or so after these events, Mrs Mirabella attempted to make contact with Mr Wyatt. He was on government business in the United States and could not be contacted. According to Mr Wyatt, “I did not have contact with Ms Mirabella, until federal executive”. (T197, L1-8) He said that Mrs Mirabella referred to the newspaper article alleging she had pushed Ms McGowan, to which Mr Wyatt replied, according to his account, “I didn’t see that occur”. He continued, “The only pressure I saw – the only, ah – touching, was when she had her hands on my chest”. (Ibid, L13-17)
32 At the Federal Liberal Council the following year, that is in June 2017, Mrs Mirabella had a conversation with Mr Wyatt which, according to Mr Wyatt, “was taped, unbeknown to me”. (T197, L18-25) Mr Wyatt said that Mrs Mirabella told him in that conversation that she had not placed her hands on his chest but on his shoulder which, according to Mr Wyatt, “was incorrect”. He also disagreed with her suggestion that “I had walked with her to talk to Cathy [McGowan] when in fact we hadn’t”. (Ibid, L26-30) This conversation was admitted as Exhibit 1 with an agreed Transcript marked Exhibit 2.
33 Mr Wyatt said that he had a further conversation with Ms Mirabella at the Federal Liberal Council meeting at the morning tea break. (T198, L28-32) Mr Wyatt said on that occasion Mrs Mirabella said, “We need to have a discussion because we have to get our evidence right”. (T199, L1-2) According to Mr Wyatt, “I said the comment was inappropriate and I made it clear that I was a Justice of the Peace”. (Ibid, L8-9)
34 Challenged in cross-examination, Mr Wyatt denied the proposition that Mrs Mirabella had never suggested to him that he should change his evidence. He said, “She did, on the morning of the – the morning tea break. I had a staff member standing near me who heard the conversation as well”. (T202, L7-11)
35 Mrs Mirabella said she did not recall saying anything to this effect. (T217, L15-17) Indeed, Mrs Mirabella denied that there was any second conversation. (T219, L18-19) In re-examination, Mrs Mirabella said that she never asked Mr Wyatt to change his evidence. (T267, L16)
36 On 8 August 2016, solicitors acting for Mrs Mirabella wrote a letter of demand to Ms Price, as editor of the Benalla Ensign. This followed up an earlier letter sent on 21 April 2016. The solicitors complained that the second defendant had “not seen fit to provide even the courtesy of a reply”. The letter demanded a response or publication of an apology. It continued:
“Whilst the original letter provided that our client was not interested in progressing the matter further, it appears that this may now be necessary. We urge you therefore to either publish the apology or provide cogent reasons as to why not”. (Exhibit AO)
37 By letter dated 25 August 2016, solicitors acting for the second defendant replied, advising that their client did not consider the proposed apology appropriate, and continuing:
“Further, our client does not believe the ordinary reader would derive meanings from the subject article that your client was involved in ‘improper’, ‘physically violent’, and ‘abusive’ conduct.”
38 It noted that the Benalla Ensign had published Mrs Mirabella’s denial on 27 April 2016. It proposed a clarification which misquoted the 27 April article as saying: “Mirabella denies punching McGowan” and concluded, “We are happy to clarify the matter by confirming that Mrs Mirabella did not make physical contact with Mrs McGowan during the photo opportunity at Cooinda Village”. (Exhibit AO)
39 Meanwhile, the previous month, the General Election had been conducted and Ms McGowan had been returned as the Member for Indi. This “clarification” was not accepted by Mrs Mirabella and was not, at that stage, published. Neither was any legal proceeding commenced.
40 According to Mrs Mirabella, she was telephoned by a journalist from The Border Mail asking her if she had seen “a cartoon clip” produced by the Wodonga Racing Club, which described her as she replied to the journalist that she did not want to talk about it. She told the jury:
“There I was again. Um, I had entered – this pushing lie had entered the realm of folklore. It was what had happened. It was part of, you know, the last campaign.
It was a cartoon promoting the Wodonga Racecourse, with which I was familiar. I had advertised at the racecourse, I had been to races there and, um, I called the CO of the Wodonga Racecourse. I knew him. I’d had discussions with him before and during the campaign about their development proposals up there, so I knew him and – and I explained to him that this pushing allegation on which the article was based wasn’t true.” (T156, L11-22)
41 She viewed the cartoon. She called to complain the CEO of the Racing Club. She said she was “quite distraught”. His response was, “That’s what was in the paper …” (T158, L4-10) The cartoon was produced by a company known as Dutch Media, a media company carrying on business in Wodonga which had prepared Mrs Mirabella’s television ads for the campaign. She said, “and I thought, what a whack”. (T158, L9-14) Mrs Mirabella then thought “This is never going to end. This is just going to get worse”. (Ibid, L17-18)
42 The cartoon was reported in The Border Mail under the heading, “Mocking in Wodonga Gold Cup. Satire cartoon taken with a laugh by Cathy McGowan and Matt Seiter”. The cartoon shows a horse mounted by Ms McGowan being pushed by Mrs Mirabella. (Exhibit AA) Commenting on the series of cartoons used by the Wodonga Race Club, The Border Mail said, “one of the most sensitive was what appeared to be a reference to assault allegations which were denied, during the Indi election campaign”.
43 On 26 October 2016, the Benalla Ensign carried an article headed “Apology to Mrs Mirabella”, in column 5 of page 3 at the top of the page. It stated:
“In our April 20 edition our article ‘Awkward Encounter’ referred to Mrs Sophie Mirabella pushing Ms Cathy McGowan out of the way in order to obstruct a photo being taken.
We take this opportunity to clarify that this reference was a mistake.
There was no physical contact that occurred at the time and Ms McGowan was not pushed.
We apologise to Mrs Mirabella for the mistake and for any hurt or embarrassment this may have caused.”
44 This apology was published over three months after Mrs Mirabella’s loss in the General Election.
45 On 19 April 2017, the solicitors for Mrs Mirabella issued the Writ which commenced this proceeding, that is, right on the time limit for bringing such a proceeding in accordance with s5(1AAA) of the Limitation of Actions Act 1958 seeking damages for defamation.
This proceeding
46 In her Amended Statement of Claim, Mrs Mirabella alleged that the newspaper article and an online counterpart published by the defendants:
“In their natural and ordinary meaning … were defamatory of Mirabella and meant and were understand to mean that Mirabella had physically pushed Cathy McGowan out of the way of a photograph for her own political reasons.” [Paragraph 7]
47 Further, it was alleged that it was a natural and probable consequence of the original publication of this imputation that it would be republished or partially republished in other media outlets and on social media:
“and that the meanings referred to in the preceding paragraph would constantly be conveyed, to a wide and extensive audience in the State of Victoria and throughout the Commonwealth of Australia, which in fact occurred.” [Paragraph 8]
48 The Particulars referred to some 24 press articles, 3 newspaper articles, and numerous tweets and posts, together with the Wodonga Race Club video and The Border Mail article commenting upon it. [Particulars to paragraph 8]
49 Consequently, it was said that Mrs Mirabella:
“has been seriously injured in her feelings, her career and in her reputation both personally, as a politically active participant in the public arena and in her role within the community of North East Victoria.” [Paragraph 9]
50 The Amended Statement of Claim sought aggravated damages. [Paragraph 10, pleading lengthy particulars]
51 The defendants, in their Defence, admitted all formal matters, including publication. They denied that the articles “were defamatory or meant or were understood to mean or were capable of meaning or being understood to mean” the meaning as alleged by Mrs Mirabella in paragraph 7 of the Amended Statement of Claim. They said the pleading in paragraph 8, relative to republications, was not capable of making good such a cause of action and should be struck out. They denied that it was a natural and probable consequence of the publication of the article that it would be republished or partially republished, or that Mrs Mirabella had been substantially injured in her feelings, career and reputation. They also denied any entitlement to aggravated damages.
52 Further, they said that if the articles were found to be defamatory of the plaintiff, then “in their natural ordinary meaning, the articles meant and were understood to mean that the plaintiff [Mrs Mirabella] had physically pushed a politician out of the way for her own political reasons”. That meaning was said to be “substantially true”. They relied on the common law defence of truth or justification and s25 of the Defamation Act 2005.
53 Finally, the defendants said that if the articles did bear the meaning alleged by Mrs Mirabella, which they denied, and were defamatory of her, the defendants relied on the following matters in mitigation:
(a) the delay in commencing the proceeding;
(b) the publication of Mrs Mirabella’s denial on 27 April 2016;
(c) the publication in October 2016 of the apology.
The trial
54 The matter proceeded to trial before me and a jury of six on 26, 27, 30 April and 1 and 2 May, with the jury retiring on the afternoon of the last day of trial. That evening, the jury returned a verdict finding that the articles in question bore the meaning alleged by the plaintiff and not the alternative meaning advocated by the defendants, and that such meaning was defamatory of her. The defendants, having made no attempt to justify the meaning as found by the jury on the motion of Ms Schoff QC, counsel for the plaintiff, I pronounced judgment for Mrs Mirabella against both defendants for damages to be assessed.
55 The trial was adjourned to 3 May 2018 when, with the jury discharged, counsel for the parties proceeded to make submissions as to damages, with that issue to be determined by me in accordance with s22 of the Defamation Act.
Plaintiff’s conduct
56 It is well-established by the authorities, as we will see later, that the defendants’ conduct after publication is relevant to the assessment of damages, in particular, any aggravated compensatory damages. At the outset of his submissions on damages on behalf of the defendants, Mr Gilbertson QC, however, submitted that the conduct of the plaintiff was also relevant.
57 He noted first that the jury, in reaching its verdict and giving the answers which it did, made no findings as to the credibility of Mrs Mirabella. Implicitly, I took him to be saying that these issues remain at large for me to consider as part of the damages assessment phase of the proceeding.
58 Mr Gilbertson then took me to a passage in Collins on Defamation (2014), where Dr Collins stated:
“Damages may be reduced by reason of a claimant’s conduct in the course of the litigation, as where a claimant attempts to pervert the course of justice, makes or procures false testimony, or levels damaging allegations of corruption or dishonesty against innocent third parties.” (p. 417)
59 The primary authority cited by Dr Collins for this proposition is the judgment of Schiemann LJ (as a member of the English Court of Appeal) in Newsgroup Newspapers Limited v Campbell [2002] EWCA Civ 1143 where at [32] his Lordship, speaking for himself and the other members of the court, Mantell and Mance LJJ, said that conduct by the plaintiff which his Lordship characterised as “wholly disreputable” and which was “established in the course of determining the issues in the litigation itself”, constituted a relevant consideration by way of mitigation of the damages which would otherwise have been awarded to him. His Lordship quoted from the speech of Lord Hailsham in Broome v Cassell & Co [1972] AC 1027, 107f-1072a, where his Lordship said that “the bad conduct of the plaintiff himself” was also relevant in assessing damages.
60 Lord Hailsham had referred to the statement by Lord Esher MR, concurred in by Lindley and Lopes LJJ, stating that a jury in assessing damages “are entitled to look at the whole conduct of the defendant from the time the libel was published down to the time they gave their verdict. They may consider what his conduct has been before action, after action and in court during the trial”. (Praed v Graham (1889) 24 QBD 53, 55) Lord Hailsham said that this principle applied equally to the plaintiff.
61 Mr Gilbertson said that, so far as he was aware, this issue has not been considered in any reported Australian decision. He said he had even raised the matter with Dr Collins himself, who was likewise unaware. As a matter of principle, however, he said this approach should be adopted.
62 In the present case, according to Mr Gilbertson, Mrs Mirabella’s approach to Mr Wyatt in June 2017, stating that “we had to get our evidence right”, and her denial of it in cross-examination, constituted disreputable conduct such that any damages she might otherwise have been awarded should be reduced to a modest level.
63 Ms Schoff QC contended that, in the circumstances, this sort of approach was impermissible. She referred me to the judgment of the House of Lords in Plato Films Limited v Speidel [1961] AC 1090 and, in particular, to the speech of Lord Denning, where his Lordship traced the history of particulars in defamation proceedings. The effect of his Lordship’s analysis, she submitted, was that attacks of the sort now mounted by Mr Gilbertson could be made only if proper particulars had been given. She referred to Order 40.10 of the court’s rules, the modern Victorian equivalent of the English rule referred to by Lord Denning as requiring particularisation.
64 Mr Gilbertson submitted that the material on which he relied emerged properly in support of his client’s justification defence and in accordance with Campbell’s case and the other authorities, and it was proper to consider it as a matter of mitigation of damages.
65 In my view, Lord Denning’s analysis in the Plato Films’ case was dealing with a very different situation from the present. The effect of what was said by the English Court of Appeal in Campbell’s case and Lord Hailsham in Broome v Cassell, is that matters which arise relative to other trial issues may be considered in mitigation at the damages assessment stage of a proceeding.
66 Insofar as the principle, as stated in the authorities relied upon, extends to events that occurred during trial, it is difficult to see that such matters could be made the subject of pre-trial particularisation in the manner provided for in the rules and referred to by Lord Denning. Order 40.10 of the rules did not apply in this trial because the defence of justification was relied on by the defendants. It follows that the matters urged by Mr Gilbertson are properly to be considered upon the assessment of damages.
67 The effect of the evidence was that Mr Wyatt said, and Mrs Mirabella denied, that she approached him on a second occasion at the Liberal Party Federal Council in June 2017 and said, “we’ve got to get our evidence right”. Mr Wyatt is a disinterested witness. His ministerial office means that he is a person of high standing. He had a very particular recollection of events in a way that Mrs Mirabella, aside from the audio and transcript material, did not. It is appropriate, I think, to regard his evidence on this point as the more reliable. Acceptance of his account of the words spoken, however, does not make good a contention of disreputable conduct unless a sinister connotation is applied to the words.
68 Accepting Mr Wyatt as a witness of truth, his narrative of events ought be accepted. However, one is not obliged necessarily to accept his interpretation of events. Plainly, he put a most pejorative construction on what was said to him and regarded it as an attempt to have him change the evidence that he might otherwise have been given in circumstances where a court proceeding was already pending.
69 As I put to Mr Gilbertson in argument, there are many steps which legal practitioners very properly take in preparation for the trial of a proceeding to “get the evidence right” without any impropriety at all. Taking proofs of evidence at an early stage is plainly some protection against the failure of memory as time goes on. Having a witness attend a pre-trial conference with counsel where these matters can be gone over, serves to refresh the witness’s memory and clarify matters to enable him or her to give evidence in a more coherent manner. None of this is improper. Why, then, should a suggestion of “getting evidence right” be regarded as improper?
70 A practising barrister or solicitor would, I think, refrain from using this sort of language lest it be misconstrued. Mrs Mirabella holds legal qualifications and has undertaken legal work during her career. Her adult life, however, has overwhelmingly been spent in the political realm. That she might use language which someone who has spent a lifetime in the practice of the law might refrain from using does not, in itself, establish that she had an improper motive or that she was pressing Mr Wyatt to alter his evidence, though plainly it seems he believed she was. These would be serious findings to make against Mrs Mirabella. They should only be made on the basis of clear evidence. (Briginshaw v Briginshaw (1938) 60 CLR 336; Evidence Act 2008, s140) In the circumstances described, I am not satisfied that Mrs Mirabella has shown to have engaged in disreputable conduct.
71 I have preferred Mr Wyatt’s recollection of these events to Mrs Mirabella’s. That preference is an example of a legitimate difference in recollection rather than any attempt on the part of Mrs Mirabella to mislead.
72 I now turn to the general issues as to the assessment of damages.
Damages generally
73 Section 34 of the Defamation Act 2005 provides, with respect to damages:
“In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.”
74 Section 35 of the Defamation Act states:
“(1) Unless the court orders otherwise under subsection (2), the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings is $250 000 or any other amount adjusted in accordance with this section from time to time (the maximum damages amount) that is applicable at the time damages are awarded.
(2) A court may order a defendant in defamation proceedings to pay damages for non-economic loss that exceed the maximum damages amount applicable at the time the order is made if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages.
(3) The Minister is, on or before 1 July 2006 and on or before 1 July in each succeeding year, to declare, by order published in the Government Gazette, the amount that is to apply, as from the date specified in the order, for the purposes of subsection (1).
(4) The amount declared is to be the amount applicable under subsection (1) (or that amount as last adjusted under this section) adjusted by the percentage change in the amount estimated by the Australian Statistician of the average weekly total earnings of full-time adults in Australia over the 4 quarters preceding the date of the declaration for which those estimates are, at that date, available.
(5) An amount declared for the time being under this section applies to the exclusion of the amount of $250 000 or an amount previously adjusted under this section.
(6) If the Australian Statistician fails or ceases to estimate the amount referred to in subsection (4), the amount declared is to be determined in accordance with the regulations.
(7) In adjusting an amount to be declared for the purposes of subsection (1), the amount determined in accordance with subsection (4) is to be rounded to the nearest $500.
(8) A declaration made or published in the Government Gazette after 1 July in a year and specifying a date that is before the date it is made or published as the date from which the amount declared by the order is to apply has effect as from that specified date.
75 The statute prohibits the award of exemplary or punitive damages – see s37.
76 Section 38 of the Act is relevant to issues of mitigation, providing as follows:
“(1) Evidence is admissible on behalf of the defendant, in mitigation of damages for the publication of defamatory matter, that—
(a)the defendant has made an apology to the plaintiff about the publication of the defamatory matter; or
(b)the defendant has published a correction of the defamatory matter; or
(c)the plaintiff has already recovered damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or
(d)the plaintiff has brought proceedings for damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or
(e)the plaintiff has received or agreed to receive compensation for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter.
(2) Nothing in subsection (1) operates to limit the matters that can be taken into account by a court in mitigation of damages.”
Only paragraphs (a) and (b) appear to be engaged in the present case.
77 The cap imposed by s35(1) on damages for non-economic loss has been adjusted from time-to-time such that the current maximum is $389,500 in accordance with the Victorian Government Gazette of 1 June 2017, p.1006. (T542, L27-31)
78 The general principles as to the award of damages in a defamation case were, according to Mr Gilbertson, stated by John Dixon J in Wilson v Bauer Media Pty Ltd [2017] VSC 521 at [59], where his Honour said:
“Some damage to the plaintiff’s reputation is presumed by law. The defendants did not dispute that the plaintiff also suffered some hurt to her feelings. The plaintiff gave further evidence of the damage to her reputation and the injury to her feelings that I will come to. It is convenient to commence by stating some well-established principles relevant to the assessment of general damages that were not in contest. In doing so, I will defer until later in these reasons a discussion of the principles in respect of the plaintiff’s claim to special damages.
(a) The purposes of an award of damages are to provide consolation for hurt to feelings, compensation for damage to reputation, and vindication of the plaintiff’s reputation. The assessment of general damages is necessarily imprecise and, accordingly, damages are ‘at large’ in the sense that they cannot be arrived at through calculation or the application of a formula.
(b) The sum awarded must demonstrate vindication of the plaintiff’s reputation. The level of damages ought to reflect ‘the high value which the law places upon reputation and, in particular, upon the reputation of those whose work and life depends upon their honesty, integrity and judgment’.
(c) The gravity of the libel and the social standing of the parties are relevant to assessing the quantum of damages necessary to vindicate the plaintiff. The award must be sufficient to convince a bystander of the baselessness of the charge. At common law, it was legitimate to take into account not only what the plaintiff should receive but also what the defendant ought to pay.
(d) Section 34 of the Act requires that the court in determining the amount of damages to be awarded in any defamation proceedings is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.
(e) The extent of publication and the seriousness of the defamatory sting are pertinent considerations.
(f) In determining the damage done to a plaintiff’s reputation, the court should also take into account the ‘grapevine’ effect arising from the publication of the defamatory material. This phenomenon is no more than the realistic recognition by the law that, by the ordinary function of human nature, the dissemination of defamatory material is rarely confined to those to whom the matter is immediately published. It is precisely because the ‘real’ damage cannot be ascertained and established that damages are at large. It is often impossible to track the scandal and to know what quarters the poison may reach. The award of damages must be sufficient to ensure that, the damage having spread along the ‘grapevine’, and being apt to emerge ‘from its lurking place at some future date’, a bystander will be convinced ‘of the baselessness of the charge’.
(g) It is well accepted that injury to feelings may constitute a significant part of the harm sustained by a plaintiff, and for which a plaintiff is to be compensated by damages. Injured feelings include the hurt, anxiety, loss of self-esteem, sense of indignity and the sense of outrage felt by the plaintiff.
(h) Aggravated damages are a form of compensatory damages and, where appropriate, form part of the general damages awarded to a successful plaintiff for non-economic loss, designed to reflect aggravation caused to a plaintiff’s hurt or injury by reason of some conduct of the defendant. An award of aggravated damages may be made if a defendant has acted in a manner which demonstrates a lack of bona fides or engaged in conduct which is otherwise improper or unjustifiable. Conduct with those characteristics will be such as to increase the harm which the defamation has caused or may be supposed to have caused to the plaintiff. A damages award is not usually broken down into components for pure compensatory damages and aggravated compensatory damages.
(i) At common law, in awarding aggravated damages, the court compensated the plaintiff for the loss actually suffered as a result of the defamation. In doing so, the court could adopt the highest level of damages open as compensatory damages. The parties disagreed about whether this approach was now precluded by s 35 of the Act.” (Footnotes omitted)
79 Ms Schoff for the plaintiff did not disagree with this general formulation.
80 As to aggravated damages, Mr Gilbertson again referred me to Wilson v Bauer Media Pty Ltd where, at paragraphs 84-88, John Dixon J said:
“84. Where the conduct of the defendant has increased the injury suffered by the plaintiff, a court may award aggravated damages.
85. Circumstances of aggravation can be found in the defendant’s conduct from the commission of the tort up until the day of judgment. The inquiry is whether the harm suffered by the plaintiff was aggravated by the manner in which the act was done or by the publisher’s conduct thereafter. The focus of the inquiry is on the subjective experience of the plaintiff.
86. The defendant’s aggravating conduct may be found in the circumstances of publication where, for example, the defendant increased the harm suffered by the plaintiff by intentionally or recklessly inflicted damage on the plaintiff’s reputation, by repeating the offending allegations, or where the defendant failed to investigate the defamatory allegations before publishing them. Acts of publication in retaliation or reprisal against the plaintiff may aggravate the harm. Evidence which establishes malice will also generally support a claim for aggravated damages, but only to the extent that the malice affects the harm sustained by the plaintiff.
87. Aggravating conduct may occur after publication and prior to proceedings being commenced where, for example there was a failure to publish a retraction or an apology that amounts to a continuing assertion of the defamatory imputations.
88. Damages may also be aggravated after the proceeding is commenced where the defendant’s conduct, either prior to or during the trial, has been calculated to deter the plaintiff from proceeding, or where a defence of justification has been pleaded with reckless indifference as to its relevance, provided in all cases that the defendant’s conduct increased the harm suffered by the plaintiff. In the conduct of proceedings, the defendant’s conduct must have been lacking in bona fides, unjustifiable or improper. Legitimate defence of a proceeding is not a circumstances of aggravation.” (Footnotes omitted)
81 Mr Gilbertson submitted that the mere reliance upon a failed justification defence could not, on its own and without more, entitle a plaintiff to an award of aggravated damages. The pursuit of the justification defence, he submitted, entailed no reckless indifference.
82 Mr Gilbertson referred to the answers given by Ms Price to interrogatory 12 of her examination, (Exhibit E) to the effect that a third of the sources upon which she relied for publication of the “pushing” allegation, being a confidential source, was fully supportive of the words employed in the article. There was no knowledge of falsity or reckless indifference, he said. Further, said Mr Gilbertson:
“The publication of the article was swamped by the publicity the following day surrounding the televised debate on 21 April [2016], in particular Mrs Mirabella’s statement in relation to the Wangaratta Hospital”.
In the course of that debate, following Ms McGowan’s refusal to discuss the detail of what occurred or did not occur the previous day at Cooinda, Mrs Mirabella made a statement which could have been interpreted as meaning that a $10 million grant had been committed to the Wangaratta Base Hospital, which failed to proceed because the electors failed to return her as their member in the 2013 General Election.
83 Mrs Mirabella took full responsibility for this statement which she characterised as a “gaffe”. She conceded that this was a factor in her election loss in 2013 and, pressed in cross-examination, conceded that it was a major factor, though not the only cause of the loss. (T262, L28 – T263, L17).
This statement had led to public condemnations by the leader of the opposition, Mr Shorten, demands for clarification from the Prime Minister, and statements to the effect that no commitment had been made by the government to outlay the $10 million. (T243-4)
84 Ms Schoff referred to and relied upon the decision of the Court of Appeal in Jeffrey v Giles [2015] VSCA 70, where their Honours Warren CJ, Tate JA and Ginnane AJA, in sustaining an appeal against the paucity of the damages award, said:
“In our view, the judge erred by imposing a requirement that the harm for which an award of general damages was to be made was that for which the defamatory statements were the sole”. [38]
85 Mr Gilbertson referred to a number of the republication materials relied upon by the plaintiff. He referred to Exhibits U, AB, AC, AD, AG, AJ and AL. These exhibits, he contended, showed a trend. He also referred to Exhibits Q and R. Whilst these articles referred to the incident at Cooinda, a far more serious matter canvassed in them, he said, was the “gaffe” over the hospital funding, which tended to swamp or overwhelm the Cooinda issue. (T560)
86 Mr Gilbertson submitted that, all-in-all, this was not a very serious defamation. It was at the lower end. Based upon the matters which he referred to, he said the damages award should be less than $100,000.
87 Ms Schoff conceded that whilst this was not an occasion to consider exceeding the statutory cap, as there was a discretion to do so by reference to matters of aggravated damages, nevertheless an award in the vicinity of $300,000-$400,000 was appropriate.
Conclusion
88 In a general sense, it is difficult to disagree with Mr Gilbertson’s characterisation of this defamation as not being particularly serious. It pales, for instance, in comparison to, say, an unjustified allegation against a Member of the House or a candidate that he had beaten his wife or partner, leaving her in need of hospital treatment. Mrs Mirabella complained that she had been described as an “assaulter”. (T101, L9) Any unwanted touching could be described as an assault or, perhaps, more accurately, as a battery. (Croucher v Cachia (2016) 95 NSWLR 117, 122 [20]-[22]) Whatever the legal technicalities may be, it would be a substantial overstatement to regard what allegedly happened between Mrs Mirabella and Ms McGowan as being a very significant matter, or a matter which might have attracted a criminal prosecution. Turning to what the evidence showed in fact happened, namely the placing of Mrs Mirabella’s hands on Mr Wyatt’s chest, immediately after he described this event, he referred to a member of his own staff grabbing him by the shoulder without any apparent consciousness or apprehension that such a thing could be regarded as a “battery” by the staff member.
89 Considered as a matter of physical violence, the defamatory statement was very much at the low end of the scale; but the reputational damage to Mrs Mirabella did not reside in this consideration. As Liberal Party activist, Mr Schneider, put it, this report reinforced a narrative advanced by her political opponent that Mrs Mirabella was “unpleasant, not a nice person … aggressive”. He said those criticisms had started back in 2013, and this report “brought [Mrs Mirabella’s] reputation down another notch”. (T295, L21 – T296, L5) As Mrs Mirabella herself put it, following her viewing of the Wodonga Race Club cartoon, the “pushing” narrative seemed to have become a permanent part of her image. The involvement in the exchange of out-of-state figures such as Margo Kingston and Tony Windsor and the widespread media republications gave it a national dimension.
90 The apology, when it came, in one sense was an entire exoneration of Mrs Mirabella from the allegation of pushing Ms McGowan; but it came after the election and therefore attracted scant attention. It is not said as a basis for any narrative that Mrs Mirabella’s election loss could be attributed to the defamation. Such an argument was not directly put. Rather, it draws attention to the fact that, whilst Mrs Mirabella’s doings and the things said about her were big news within the electorate of Indi before the General Election of 2016, once it had concluded and Ms McGowan was victorious, statements about Mrs Mirabella ceased to be of the same importance and public interest. To put it another way, her public image as the “pusher” had already solidified and had become part of the general folklore. The apology should be given relatively little weight in mitigation, not because it could be regarded as niggardly, but rather because it has come too late.
91 The republication of the defamatory article was very extensive. Mr Gilbertson questioned whether this could be regarded as the natural consequence of the publication of the defamatory article. What in fact occurred would tend to establish the opposite. Moreover, this was not merely a defamation that appeared in a regional newspaper with a far lesser circulation than a metropolitan daily or the viewership of a national television network. Aside from widespread media republications, Dr Collins, in his standard work on defamation, gave the following assessment of the effect of online publication:
“In the past, a defamatory article in a newspaper might have been quickly forgotten and accessible only to an intrepid researcher prepared to spend hours in a dusty archive or pouring over microfiche film. Today, the same article stored in an online archive may be able to be retrieved in a matter of seconds by anyone with a computer or other Internet-enabled device, an Internet connection, and a passing familiarity with the formulation of search engine inquiries. Where defamatory material remains accessible in the wilds of the Internet as the ordinary consequence of its original publication, and where there is no hope of successfully corralling the matter by a permanent injunction at the end of a defamation trial, the measure of damages ought thus to be increased to reflect the extent of the injury caused by the original publication and the risk that it will cause future damage to the claimant.” (Collins, The Law of Defamation and the Internet (3rd ed, 2010) 385 [20.10]
This passage was approved by the Court of Appeal in Jeffrey v Giles [2015] VSCA 70 [36]. It appears in the 2014 edition of Dr Collins’ work as [21.21] at p.420.
92 In her closing address, Ms Schoff displayed a copy of the article, “Awkward Encounter” on a tablet produced, she said, by an online investigation made by her instructing solicitor as closing submissions were being made. This demonstrated the durability of the defamatory article. Mrs Mirabella complained that the alleged pushing of Ms McGowan was narrated in the article in Wikipedia about her. (T161, L7)
93 This defamation is not as serious as the unjustified allegation of wife beating against the hypothetical politician; but it is more than merely trivial. Here, it is necessary to consider “the grapevine effect” referred to by John Dixon J in the passage quoted from his judgment in Wilson’s case.
94 Mr Gilbertson contended that the vicious embellishments which we find in the tweets recorded in Exhibit Z, as part of #Indivotes, were not the responsibility of the defendants. As I understood him, it was a contention that they were in the nature of a novus actus interveniens. In my view, however, the defamatory statement provided the platform from which the vitriol in these tweets could be hurled at Mrs Mirabella. As John Dixon J noted, this is part of the “ordinary function of human nature [meaning that] the dissemination of defamatory material is rarely confined to those to whom the matter is immediately published”. (Wilson’s case [59(f)])
95 As to the claim for aggravated damages, I do not agree that this defamation can be seen as having been published without some degree of recklessness. Ms Rourke’s evidence that Ms Price determined not to seek a response from Mrs Mirabella because she was confident that Mrs Mirabella would deny the allegation, stood uncontradicted. There is no report in the articles of an actual or presumed denial by Mrs Mirabella. The occurrence of the “pushing” event seems to derive from one, only, of the four sources consulted on the subject, who chooses to remain anonymous. Of the two principals involved in the alleged incident, the defendants presumed that Mrs Mirabella would deny the matter, but did not bother asking her. Neither Ms McGowan nor Cooinda CEO, Margaret Aldous, distinctly alleged the push. On this state of facts, it is difficult to acquit the defendants of a degree of recklessness which was worsened by their decision in the immediate aftermath to “stand by” the article when asked for comment by ABC News. The allegation was then withdrawn some six months later without the defendants receiving, as far as the evidence indicated, any further information on the subject.
96 The conduct of the defendants in issuing the apology and clarification, albeit late, and not attempting to justify what the jury found to have been the natural and ordinary meaning of the article, must stand in mitigation. But it is difficult not to regard the improbable justification defence advanced at trial as being other than a point of aggravation. The jury took less than an hour to determine that the article bore, as its natural and ordinary meaning, the imputation alleged by the plaintiff.
97 This defamation has caused significant hurt to Mrs Mirabella’s reputation. I accept the evidence given by herself, her husband and Ms Rourke, and other witnesses, that it has been the occasion of great distress to her. Ms Rourke, it will be recalled, said she perceived Mrs Mirabella to be in even greater distress following the publication of this article than she was following her loss of the seat of Indi at the 2013 General Election.
98 I accept that the political and personal adversity to which Mrs Mirabella was exposed during the 2016 election campaign and in its aftermath had causes, and very significant causes, other than this defamatory article. But, as the Court of Appeal pointed out in Giles’ case, it is unnecessary for a plaintiff to prove in a defamation case that the defamation is the sole cause of his or her loss or damage.
99 I was referred to a number of recent damages awards. In Wilson v Bauer Media [2017] VSC 521 (which is under appeal) John Dixon J awarded $650,000 general damages where the plaintiff had been labelled as a “serial liar”. In Upper Murray Rural Water Corporation v Di Masi (2014) 43 VR 348 in three separate proceedings three plaintiffs were each awarded $70,000 for defamation by means of a letter from the former Minister for Water where it was found there was no real ”grapevine effect”. The Court of Appeal upheld the verdicts though describing them as “modest”. In Giles’ case the court increased the trial awards to two plaintiffs to $65,000 and $75,000 respectively in circumstances where there was publication on the internet. Needless to say, each case depends upon its own facts.
100 Mr Gilbertson, at the conclusion of his submissions, contended that the proper award of damages was a sum less than $100,000. As previously observed, plaintiff’s counsel sought an award between $300,000 and $400,000. The considerations referred to above lead me to the view that the award advocated by the defendants is plainly too low, but the one sought by the plaintiff is too high. The matters I have referred to do aggravate the damages to some degree. The proper award, in my view, is the sum of $175,000. This figure, higher than the awards in Giles and Di Masi is dictated by the extensive republication and internet activity and the issues of aggravation mentioned above.
Costs
101 I have heard no submissions on the question of costs and so I will reserve them.
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