Ninio v Southern Television Corporation Pty Ltd No. DCCIV-95-766 Judgment No. D3552

[1997] SADC 3552

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of His Honour Judge Anderson

Hearing

08/08/96 to 09/08/96, 28/10/96 to 29/10/96.

Catchwords

Defamatory words - in law and fact - qualified privilege conceded - malice established by recklessness thereby defeating defences of qualified privilege and fair comment - damages assessed at $20,000.

Materials Considered

• James v Skelton (1963) 1 WLR 1362;
• Hepburn v TCN Channel 9 Pty Ltd (1983) 2 NSWLR 664;
• Sim v Stretch (1936) 2 All ER 1237;
• Horricks v Lowe (1975) AC 135;
• Peterson v Advertiser Newspaper (1995) 64 SASR 152;
• Carson v John Fairfax (1993) 113 ALR 577, applied.

Representation

Plaintiff HENRY NINIO:
Counsel: MR D TRIM - Solicitors: WALLMANS

Defendant SOUTHERN TELEVISION CORPORATION PTY LTD:
Counsel: MR G MUECKE - Solicitors: LAWSON DOWNS

DCCIV-95-766

Judgment No. D3552

24 January 1997

(Civil)

NINIO v SOUTHERN TELEVISION CORPORATION PTY LTD

Civil

Judge Anderson

The plaintiff, who at all relevant times was the Lord Mayor of the City of Adelaide, has instituted proceedings seeking damages for defamation from the defendant, who is the operator of the Channel 9 television station in Adelaide.

The publication of the alleged defamatory words was by television broadcast on 10 April 1995.

It is common ground that on 13 April 1995, the plaintiff wrote to the defendant seeking an apology for the contents of the broadcast.No such apology was forthcoming and the proceedings herein were issued on 27 June 1995 as threatened in the absence of such an apology.In his letter, the plaintiff sought that the record of the broadcast be preserved.

The plaintiff also wrote to Mr Atkinson, MP, who was named in the broadcast, demanding an apology for what it was alleged he had said.It was the plaintiff's evidence that shortly after he sent his letter to Mr Atkinson, that that person attended upon him in his Town Hall Chambers and offered an unreserved apology which was accepted.The plaintiff said that having received that apology he undertook to Mr Atkinson that he would not further proceed against him.

The defendant joined Mr Atkinson as a Third Party.I was advised at the commencement of the trial that those proceedings had been resolved and might be dismissed with no order as to costs.By consent, I so ordered.

The background to the publication is to be found in a long standing local dispute which came to a head in the midst of a contested campaign for the office of Lord Mayor of the City of Adelaide.After considerable debate over some years, the Adelaide City Council resolved to close a portion of Barton Terrace West on the north western extremity of the city.There was further delay and debate before all relevant authorities, including the police, were satisfied that the closure was legally effective.

Whilst this delay occurred motorists continued to use that portion of the road, the subject of Council's intent, to travel to the adjoining suburbs of Adelaide.Mr Atkinson was at all relevant times the Member of Parliament for inter alia those adjoining suburbs.He, on behalf of his constituents, was vehemently opposed to the partial closure of Barton Terrace and had previously written to the plaintiff in severe terms on the topic.That letter has been admitted into evidence de bene esse as exhibit P3.

Mr Muecke of counsel for the defendant objected to the tender of that letter in the form tendered and on the basis of relevance.The letter had been discovered.It was tendered only as evidence of what it conveyed to the plaintiff.Objections based upon the state of the pleadings as to malice have been overcome by amendments made by the plaintiff since the application to tender this letter was made.Presently the letter is relevant to the plaintiff's understanding of Mr Atkinson's complaint and to any response he would have made to any media questions on the topic.As such, it should be admitted into evidence.

It was on 10 April 1995 that the police, having been satisfied that the road closure was legally complete, moved to impose infringement notices upon motorists using the closed portion of Barton Terrace West.It was the spectacle of motorists being stopped and penalised by the police on this day which attracted the attendance of Mr Atkinson and at least representatives of Channel 9 and Channel 10.

Mr Atkinson spoke to Ms Cronin, a Channel 9 journalist and gave her an on air "grab", as it was called in evidence, - a short statement for telecast in which he made his position in relation to the then situation quite clear.Mr Atkinson also spoke with Mr Smith from Channel 10.There is no evidence to indicate when these events occurred in relation to each other.

It was as a consequence of this interview that Ms Cronin prepared the report which was published by the defendant that evening.The words of that report, which are not in dispute, are set out in paragraph 6 of the Statement of Claim as follows:

"READER . . . The dispute over the controversial Barton Terrace road closure has flared again, with unsuspecting motorists being fined during an early-morning blitz, and Lord Mayor, Henry Ninio, has been accused of inflaming the issue to score political points.

REPORTER . . . Following complaints from a small group of residents, Adelaide City Council resolved, in 1993, to close Barton Terrace West to all traffic except buses, but a legal technicality meant that law couldn't be enforced.

Today, unsuspecting motorists faced the wrath of traffic police, copping a one hundred and fourteen dollar fine for using the road as a thoroughfare.

But anti-road closure campaigner, Labour MP, Michael Atkinson, remains convinced that police still don't have the power to enforce the law.

MICHAEL ATKINSON - LABOUR MP . . . Many good North Adelaide people support reopening the road, but it's very wealthy people, millionaires, who have a lot of influence with the City Council, millionaires who fund the mayoral election campaigns, are.. who are lobbying for the closure of this road.

REPORTER. . . Mr Atkinson produced a letter from Lord Mayor, Henry Ninio, to residents, saying he would advise police to enforce the legislation, and he'd be taking up the issue personally with Police Commissioner, David Hunt, to make sure penalties were imposed on offending motorists.

Mr Ninio wasn't available for comment today, but a council spokesperson said that all necessary regulations are now in place, so the fines can be imposed.

A police spokesman said this morning officers had responded to complaints by bus drivers."

Paragraph 8 of the Statement of Claim alleges that the following words which were contained therein, were broadcast of and concerning the plaintiff:

"The dispute over the controversial Barton Terrace road closure has flared again, with unsuspecting motorists being fined during an early-morning blitz, and Lord Mayor, Henry Ninio, has been accused of inflaming the issue to score political points."

And

"Many good North Adelaide people support reopening the road, but it's very wealthy people, millionaires, who have a lot of influence with the City Council, millionaires who fund the mayoral election campaigns, are.. who are lobbying for the closure of this road."

As much is admitted by the defendant in paragraph 1 of its Further Amended Defence.

The plaintiff alleges in paragraph 9 of the Statement of Claim that these words, "in their natural and ordinary meaning meant and were understood to mean that:

"9.1 The plaintiff had received financial support in his election campaign from wealthy people and in return for such support he had improperly used his position as Lord Mayor to close Barton Terrace West or to keep Barton Road West closed.

9.2 The plaintiff was corrupt in the discharge of his duties as Lord Mayor of Adelaide.

9.3 The plaintiff had failed to discharge his responsibilities as Lord Mayor of Adelaide.

9.4 As Lord Mayor of the City of Adelaide had favoured the interests of wealthy people over the interests of the residents of the City of Adelaide as a whole.

And as a consequence that the plaintiff has been greatly injured in his character and reputation ... "and the plaintiff claims damages. (Paragraph 12 of Statement of Claim).

The defendant denies that the words were defamatory of the plaintiff.In the first instance it pleads qualified privilege in the context of political discussion.In the course of final addresses Mr Trim of counsel for the plaintiff, conceded that this was an occasion of political discussion to which the Theophanous principle applied: Theophanous v Herald & Weekly Times
(1994) 124 ALR 1.As such, this defence could only be defeated by express malice.

In the alternative, the defence pleaded that the words were fair comment as a matter of public interest.

Again, the plaintiff met this plea with an allegation of express malice.

The first objective which the plaintiff must satisfy before he can go further is to establish that the words, as set out in paragraph 8 of the Statement of Claim, are defamatory.

The correct approach to be taken by me in this regard is to be found in James v Skelton (1963) 1 WLR1362 @ 1370 (PC) as follows:

"it is well settled that the question whether words which are complained of are capable of conveying a defamatory meaning is a question of law and is therefore one calling for decision by the court.If the words are so capable then it is a question for the jury to decide whether the words do in fact convey a defamatory meaning.In deciding whether words are capable of conveying a defamatory meaning the court will reject those meanings which can only emerge as the product of some strained or forced or utterly unreasonable interpretation.In Capital and Counties Bank v George Hentry & Sons Lord Selborne L.C. said :"The test, according to the authorities is, whether under the circumstances in which the writing was published, reasonable men, to whom the publication was made, would be likely to understand it in a libellous sense."The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words."

As Mr Muecke said in his address, in determining this initial question of law, I must have regard to "the ordinary reasonable reader of fairly average intelligence" (T155).I am not to do other than take this reader to be a layman who has a much greater capacity for implication than a lawyer : Hepburn v TCN Channel 9 Pty Ltd [1983] 2 NSWLR 664 @ 667.

What the defendant may have considered the words to mean is here irrelevant. As Lord Atkin said in Sim v Stretch (1936) 2 All ER 1237 @ 1240:

"The words will be capable of a 'defamatory meaning' if they 'would ... tend to lower the plaintiff in the estimation of right thinking members of society generally'".

I accept that this test is to be applied in contemporary terms, that is, to these words uttered as they were, in the midst of a fiercely contested Lord Mayoral election campaign.Doing so, in my opinion, the words were, as a matter of law, capable of bearing the defamatory imputations contended for by the plaintiff.In my opinion, once the words were capable of bearing such imputations they would tend to lower the plaintiff in the estimation of right thinking members of society.

The function of determining the issue of fact, that is, whether the words would in fact be read by such a reasonable reader as conveying the alleged imputations and whether that reader would in fact have understood the imputations to be such as to cause right thinking members of society generally to think less of the plaintiff then falls for decision.

It is my opinion that the words pleaded in fact bore the defamatory imputations contended for by the plaintiff and as a matter of fact were defamatory of the plaintiff.

The defence of qualified privilege having been conceded by the plaintiff, he then has the onus of defeating such defence.This he can only do by establishing that the defendant was actuated by express malice.As much was pleaded by amendments to the Further Amended Reply.

The plaintiff particularises the allegation of express malice in paragraph 3 of that pleading in the following terms:

"3.1 The defendant had no positive belief in the truth of the words complained of.

3.2 The defendant published the words complained of recklessly, being indifferent to the truth of what it published and without caring or considering whether they were true or not.Recklessness is to be inferred from the fact that no representative of the defendant made an attempt or in the alternative a reasonable attempt to contact the plaintiff to check the accuracy of the allegations contained in the said words before they were broadcast by the defendant.

3.3 If any of the said words constituted an expression or expressions of opinion (which is denied) such opinion was not the genuine opinion of the defendant.

3.4 The words complained of were published of the plaintiff with the intention of doing harm to the plaintiff.Such intention is to be inferred from the fact that the defendant, through its newsreader, made the following allegation: 'Lord Mayor, Henry Ninio, has been accused of inflaming the issue to score political points.'"

The authoritative exposition as to malice is to be found in the speech of Lord Diplock in Horricks v Lowe [1975] A.C. 135 at 149.There His Lordship said:

"So, the motive with which the defendant on a privileged occasion made a statement defamatory of the plaintiff becomes crucial.The protection might, however, be illusory if the onus lay on him to prove that he was actuated solely by a sense of the relevant duty or a desire to protect the relevant interest.So he is entitled to be protected by the privilege unless some other dominant and improper motive on his part is proved."Express malice" is the term of art descriptive of such a motive.Broadly speaking, it means malice in the popular sense of a desire to injure the person who is defamed and this is generally the motive which the plaintiff sets out to prove.But to destroy the privilege the desire to injure must be the dominant motive for the defamatory publication; knowledge that it will have that effect is not enough if the defendant is nevertheless acting in accordance with a sense of duty or in bona fide protection of his own legitimate interests.

The motive with which a person published defamatory matter can only be inferred from what he did or said or knew.If it be proved that he did not believe that what he published was true this is generally conclusive evidence of express malice, for no sense of duty or desire to protect his own legitimate interests can justify a man in telling deliberate and injurious falsehoods about another, save in the exceptional case where a person may be under a duty to pass on, without endorsing, defamatory reports made by some other person.

Apart from those exceptional cases, what is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally thought tautologously termed "honest belief".If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false.But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true.The freedom of speech protected by the law of qualified privilege may be availed of by all sorts and conditions of men.If affording to them immunity from suit if they have acted in good faith in compliance with a legal or moral duty or in protection of a legitimate interest the law must take them as it finds them.In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value.In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognise the cogency of material which might cast doubt on the validity of the conclusions they reach.But despite the imperfection of the mental process by which the belief is arrived at it may still be "honest", that is, a positive belief that the conclusions they have reached are true.The law demands no more.

Even a positive belief in the truth of what is published on a privileged occasion - which is presumed unless the contrary is proved - may not be sufficient to negative express malice if it can be proved that the defendant misused the occasion for some purpose other than that for which the privilege is accorded by the law.The commonest case is where the dominant motive which actuates the defendant is not a desire to perform the relevant duty or to protect the relevant interest, but to give vent to his personal spite or ill will towards the person he defames.If this be proved, then even positive belief in the truth of what is published will not enable the defamer to avail himself or the protection of the privilege to which he would otherwise have been entitled.There may be instances of improper motives which destroy the privilege apart from personal spite.A defendant's dominant motive may have been to obtain some private advantage unconnected with the duty or the interest which constitutes the reason for the privilege.If so, he loses the benefit of the privilege despite his positive belief that what he said or wrote was true.

Judges and juries should, however, be very slow to draw the inference that a defendant was so far actuated by improper motives as to deprive him of the protection of the privilege unless they are satisfied that he did not believe that what he said or wrote was true or that he was indifferent to its truth or falsity.The motives with which human beings act are mixed.They find it difficult to hate the sin, but love the sinner.Qualified privilege would be illusory, and the public interest that it is meant to serve defeated, if the protection which it affords were lost merely because a person, although acting in compliance with a duty or in protection of a legitimate interest, disliked the person whom he defamed or was indignant at which he believed to be that person's conduct and welcomed the opportunity of exposing it.It is only where his desire to comply with the relevant duty or to protect the relevant interest plays no significant part in his motives for publishing what he believes to be true that "express malice" can properly be found.

There may be evidence of the defendant's conduct upon occasions other than that protected by the privilege which justify the inference that upon the privileged occasion too his dominant motive in publishing what he did was personal spite or some other improper motive, even although he believed it to be true.But where, as in the instant case, conduct extraneous to the privileged occasion itself is not relied on, and the only evidence of improper motive is the content of the defamatory matter itself or the steps taken by the defendant to verify its accuracy, there is only one exception to the rule that in order to succeed the plaintiff must show affirmatively that the defendant did not believe it to be true or was indifferent to its truth or falsity.Juries should be instructed and judges should remind themselves that this burden of affirmative proof is not one that is lightly satisfied.

The exception is where what is published incorporates defamatory matter that is not really necessary to the fulfilment of the particular duty or the protection of the particular interest upon which the privilege is founded.Logically it might be said that such irrelevant matter falls outside the privilege altogether.But if this were so it would involve the application by the court of an objective test of relevance to every part of the defamatory matter published on the privileged occasion; whereas, as everyone knows, ordinary human beings vary in their ability to distinguish that which is logically relevant from that which is not and few, apart from lawyers, have had any training which qualifies them to do so.So the protection afforded by the privilege would be illusory if it were lost in respect of any defamatory matter which upon logical analysis could be shown to be irrelevant to the fulfilment of the duty or the protection of the right upon which the privilege was founded.As Lord Dunedin pointed out in Adam v Ward [1917] A.C 309, 326-327 the proper rule as respects irrelevant defamatory matter incorporated in a statement made on a privileged occasion is to treat it as one of the factors to be taken into consideration in deciding whether, in all the circumstances, an inference that the defendant was actuated by express malice can properly be drawn.As regards irrelevant matter the test is not whether it is logically relevant but whether, in all the circumstances, it can be inferred that the defendant either did not believe it to be true or, though believing it to be true, realised that it had nothing to do with the paritcular duty or interest on which the privilege was based, but nevertheless seized the opportunity to drag in irrelevant defamatory matter to vent his personal spite, or for some other improper motive.Here, too judges and juries should be slow to draw this inference."

The plaintiff has sought to discharge the onus of proof in this regard by concentrating upon what is alleged to be the recklessness of the defendant's employee, Ms Cronin, in the manner in which she investigated and then composed the offending words. Mr Trim relied upon the evidence for a finding that the creation and publication of the telecast "strongly exhibited such a reckless indifference as to truth or falsity in its inferences that this should, on the basis of Horricks v Lowe be equated with a lack of belief in truth": Peterson v Advertiser Newspaper (1995) 64 SASR 152 @ 193 per Olsson J and @ 200 per Mullighan J.Should this be established, then such a lack of belief is taken to establish expressmalice.Mr Trim asserted that a correct view of the facts went further than mere carelessness, impulsiveness or irrationality and amounted to publication in circumstances where Ms Cronin did not care whether what she created for broadcast was true or not.Such recklessness is to be equated to knowledge of falsity.

It is the plaintiff's case that when Ms Cronin appreciated the need for the plaintiff to comment, she either abstained from inquiry or deliberately stopped short in making any adequate inquiry: see Gately on Libel and Slander 8th Edition, paras 774-778.

It is necessary therefore to turn to the evidence which the plaintiff asserts discharges the onus which is upon him to prove express malice.

The starting point is the evidence upon which the plaintiff relies as establishing a procedure at the Town Hall by which inquiries by members of the press are brought to the attention of the Lord Mayor and his policy in relation thereto.It is important to bear in mind, as I have said, that in April 1995 there was underway a fiercely contested Lord Mayoral election campaign.

The plaintiff first gave evidence about the procedures of his office.

His evidence in this regard was supported by the then and present manager of his office, Ms Roy, and by two of the four corporation departmental heads, Mr Hitchin and Mr Pascoe.The former is the manager Corporate Communications and had been so for about one year at the relevant time.The latter is the manager Urban Services and had been so for about 8 months at the relevant time.

The plaintiff gave evidence of the media communication policy which had been in existence for the time which he had been Lord Mayor which in April 1995 was nearly two years.That policy had been promulgated within Council and the Corporation of the City of Adelaide.In essence, it was that all matters of policy were the province of the Lord Mayor and matters of business concerning the Corporation in its daily doings may be commented upon by a Departmental Head, but that all inquiries were to be via Mr Hitchin.

In matters of media inquiry, the Lord Mayor said he was always available and made it his practice to respond to any such inquiry at the earliest possible time after he became aware of it.There was in place a procedure whereby messages relating to such inquiries and other telephone calls were left in a message book on his desk were he not present to respond immediately.That book was tendered in evidence as exhibit P6.

The plaintiff said that all members of staff knew of his invariable practice and acted accordingly by notifying members of his office so that he could be told of any such media inquiry or a message could be left in the message book. He said that he was particularly sensitive to such inquiries during the election campaign.

Ms Roy confirmed that this was the policy and practice.She said that were the Lord Mayor not available when such an entry was made in the message book, she would be informed and would contact the Lord Mayor by mobile phone to advise him.

Both Mr Hitchin and Mr Pascoe gave evidence to the effect that they knew of the policy to refer all such inquiries to the Lord Mayor's office for comment and acted upon it.MrHitchin said in evidence that in his employment with the Adelaide City Council he had never advised an inquiry by the media "that the Lord Mayor was unavailable" (T81).

That this was in fact the policy and practice at the time is significantly supported by the evidence of Mr Smith who is a news reporter for Channel 10. He was also aware of this news story on 10 April 1995 and had spoken to Mr Atkinson.He appreciated that it required a comment, although he had not the personal slant to his story that Ms Cronin had.Mr Smith appreciated that Mr Atkinson's complaint was about the campaign each of the Lord Mayoral Candidates was waging, more so than Ms Cronin did.

In evidence, Mr Smith said he simply wanted a comment from the Corporation, not necessarily from the Lord Mayor, and he rang accordingly.Notwithstanding this, a record of that call appears in the Lord Mayor's message book for 12.30pm on 10 April 1995.A further message is entered prior to 4.30pm.Mr Smith said that he rang back at about 4.00pm.

I find that all relevant Council officers were aware of the Lord Mayor's media policy and complied with it.

There is no inquiry recorded from Ms Cronin in the Lord Mayor's message book for 10 April 1995.Mr Hitchin has no recollection of having spoken to her on that day and was quite firm in his evidence that had he done so and received a request for a comment from the Lord Mayor, he would have followed policy and put Ms Cronin through to the Lord Mayor's office.

Ms Cronin gave evidence.She had no real and independent recollection of the communication which she had at the telephone with Council officers on 10 April 1995 except to the extent that her memory was assisted by the words of the story set out in paragraph 6 of Statement of Claim.She had not previously communicated with the plaintiff or his office since he had been Lord Mayor.

Having interviewed Mr Atkinson on camera and having spoken to him by way of background, she appreciated the need to speak to Mr Ninio.She totally overlooked the thrust of Mr Atkinson's complaint as contained within the reported item as being a criticism of both the Lord Mayoral candidates and she concentrated upon the plaintiff.

She recognised the need for him to comment having taken a combination of what Mr Atkinson had told her and what he had said on camera to be disparaging of the plaintiff.She concentrated upon him, as I have said.

Ms Cronin said she thought that she spoke to Mr Hitchin and that he told her that the Lord Mayor was not available either in that phone call or in a subsequent one.She allowed for several calls and could not be precise.She said that she summarised her notes and read the summary to whomsoever it was she was speaking to and received approval of the form of words she spoke from that person and she then created it into the news item.She had no recollection of having spoken to Mr Pascoe on that day or of receiving a facsimile transmission from him.

Mr Pascoe gave evidence, supported by contemporaneous notes, of a telephone conversation with Ms Cronin on 10 April 1995.He also had a note that Mr Smith from Channel 10 was seeking comment.

Mr Pascoe said that whilst he could not recall the conversation with Ms Cronin, he appreciated that it related to a sensitive topic and so he offered to send her a statement by facsimile.He said he spoke to her as a consequence of a message he had received from elsewhere within the Corporation.He had no recollection from whence it came, but his conversation with Ms Cronin was initiated by him in response to that message indicating her inquiry.

Consequently, he created a facsimile and had his then secretary send it.In evidence he identified her mark on his copy thereof as an indication that it was then sent on that day.There is nothing in any comment or suggestion that such a course did not occur.

The facsimile was sent to the Channel 9 newsroom facsimile number that afternoon.

As I have said, Ms Cronin said she did not receive it. However, there must be some real doubt about that assertion.The facsimile contained the words:

"Council has passed all resolution and undertaken all procedures necessary to give effect to the recommendation of the Working Party."

The news item written by Ms Cronin contained the words ".... a council spokesperson said that all necessary regulations are now in place ..."

I find that these words were written as a consequence of the receipt by Ms Cronin of the facsimile from Mr Pascoe.I reject her evidence that she had created the item from notes of a conversation with a person at trial she assumed to be Mr Hitchin.In so doing, I rely upon and accept the evidence of Mr Hitchin as to his unwaivering compliance with council media policy, the absence of any entry in the message book of an inquiry from Ms Cronin and the evidence of Mr Pascoe.It follows that I reject her evidence that the contents of her news item was approved by someone at the Corporation.

The recollection of Ms Cronin was plainly driven by the exigencies of the case.By her own admission in cross examination, she had no real recollection of a matter which, at the time, she appreciated as being sensitive such as to require legal advice before broadcast.

Notwithstanding that the plaintiff sought an apology by letter of 13 April 1995 and issued proceedings on 27 June 1995, no attempt was made by the defendant to preserve contemporary records and Ms Cronin was permitted to dispose of her notebook, which she said in evidence contained contemporaneous notes, approximately six months after April 1995.

As a direct consequence of my inability to accept the evidence of Ms Cronin, I conclude that notwithstanding that she appreciated that this was a sensitive news item, she did not seek in any meaningful way to make contact with the plaintiff.She was easily satisfied by her response from Mr Pascoe and accepted its thrust into her story.Had she asked either him or Mr Hitchin for a comment on camera from the Lord Mayor I am satisfied that the usual steps to bring that request to the notice of the Lord Mayor's staff and so to him would have been followed.This is so whether or not the plaintiff was, on that day, in his office or out and about in the City.I find that he was, at all relevant times, able to be contacted by his office.I therefore reject her evidence that she so attempted and was told that the plaintiff "wasn't available for comment today".

Having appreciated the sensitivity of the issue, to not have so inquired as a matter of basic fairness, which she acknowledged in her evidence was required, was reckless.It was more than a casual disregard.It was an indifference to the inference which she saw as flowing from what Mr Atkinson had said on camera and to her concerning the plaintiff, whom she sought to isolate out from Mr Atkinson's comments as recorded and which clearly referred to both Lord Mayoral candidates and the conduct of their respective campaigns.

Her evidence was that she did not care whether what Mr Atkinson had said about the funding of the campaign by millionaires was true or not (T130).

All of this can lead only to the conclusion that, when the story was written and broadcast, there was no belief by Ms Cronin and therefore by the defendant, her employer, that what was said was true.Such a failure is conclusive of express malice: Horricks v Lowe @ pp149, 150.

A finding of express malice defeats both the conceded defence of qualified privilege and the pleaded alternative defence of fair comment.As such, it is not necessary that I dissect the latter defence for what is fact and what is comment.However, I should say that I am far from persuaded that those words relied upon in paragraph 4.2 of the Further Amended Defence are comment as pleaded.Those words sought to be so described are redolent with facts which remain unproven.

I turn then to the issue of damages.Little was said by counsel upon this topic.Mr Muecke for the defendant said that the plaintiff had not sustained any loss by virtue of the fact that he was successful in the election held about three weeks after the publication of the defamatory words and that there was no evidence of any such damage.

I agree with Mr Trim that in such a circumstance as this damage is presumed and need not be susceptible of proof.

In Carson v John Fairfax (1993) 113 ALR 577 @ 594, it was said by way of direction to trial judges assessing damages in such circumstances as the present:

"... that, in considering the plaintiff's claim for damages to vindicate his ... reputation, the damages must not exceed the amount appropriate to compensate the plaintiff for any relevant harm which he ... has suffered."

Earlier in its reasons, the majority said, at p589:

"... there are three purposes to be served by damages awarded for defamation. The three purposes no doubt overlap considerably in reality and ensure that 'the amount of the verdict is the mixture of inextricable considerations' Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR per Windeyer J at 150.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: Fleming, The Law of Torts, 8th Edition, 1992, p595."

The failure by the defendant to publish an apology does not serve to enhance the plaintiff's claim for damages : Carson p593.

In assessing the plaintiff's damages it is important to recognise that even though he was undoubtedly concerned by thoughts of what he thought others were thinking of him, these thoughts must have been significantly assuaged by his campaign victory within the month.That, however, is not the end of the matter.He is entitled to damages which signal to the community at large, even at this time, that his reputation has been vindicated. He suffers no loss past the delivery of these reasons.

It is also relevant that the publication here was on one occasion only.It was not repeatedly in the public eye and was not in any way aggravated by the conduct of the proceedings or the trial.(Compare Crampton v Nugawela NSW Court of Appeal, 23 December 1996 unreported.)

Allowing for such vindication of reputation and reflecting to some extent in favour of the defendant as a consequence of the plaintiff's victory in that there then was a public manifestation that his fears as to the thoughts of others as to him may no longer be as severe, I assess the plaintiff's damages at $20,000.

I shall hear counsel as to interest and costs.

In Court: Judgment for the plaintiff in the sum of $20,000.Interest and costs reserved.Liberty to apply.