Poniatowska v Channel Seven Sydney Pty Ltd (No 2)

[2020] SASCFC 5

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

PONIATOWSKA v CHANNEL SEVEN SYDNEY PTY LTD (No 2)

[2020] SASCFC 5

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Nicholson)

29 January 2020

DEFAMATION - DAMAGES - GENERAL DAMAGES - ASSESSMENT

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - ASSESSMENT OF DAMAGES

In October 2011 the respondents broadcast a story on Today Tonight which depicted the appellant as having defrauded and cheated Centrelink of $20,000 in single parent benefits while working for a building company and having avoided prosecution by finding a loophole in social security law that did not require her to disclose her income to Centrelink. The story was also published on a Channel Seven website.

The appellant sued the respondents for defamation. The trial Judge dismissed the action. The Judge did not assess damages but summarised the evidence and made some findings of fact relevant to damages.

This Court allowed the appellant’s appeal on liability and heard submissions on the assessment of damages.

Held by the Court:

1. The appellant failed to establish a basis for the award of aggravated damages (at [92]).

2. Damages for non-economic loss assessed at $200,000 (at [172]).

3. Damages for economic loss assessed at $80,000 (at [172]).

4. The parties to be heard on interest and costs (at [173]).

Criminal Code Act 1995 (Cth) Sch 1 s 135.2; Defamation Act 2005 (SA) s 32, s 33, s 36; Defamation Act 2005 (Vic); Freedom of Information Act 1982 (Cth), referred to.
Poniatowska v Channel Seven Sydney Pty Ltd [2019] SASCFC 111; Poniatowska v Channel Seven Sydney Pty Ltd (No 4) [2016] SASC 137; Nevin v B & R Enclosures Pty Ltd [2004] NSWCA 339; Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; Triggell v Pheeney (1951) 82 CLR 497; Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154; Ali v Nationwide News Pty Ltd [2008] NSWCA 183; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; Google Inc v Duffy [2017] SASCFC 130; Cornes v The Ten Group Pty Ltd (No 2) [2011] SASC 141; Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674; Ali v Nationwide News Pty Ltd [2007] NSWSC 58, discussed.
Cripps v Vakras [2014] VSC 279; Wilson v Bauer Media Pty Ltd [2017] VSC 521; Rayney v Western Australia (No 9) [2017] WASC 367; Wagner v Harbour Radio Pty Ltd [2018] QSC 201; Forrest v Askew [2007] WASC 161; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; Jones v Dunkel (1959) 101 CLR 298; Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254; Humphries v TWT Ltd (1993) 120 ALR 693; Jeffrey and Curnow v Giles; Giles v Jeffrey and Curnow [2015] VSCA 70, considered.

PONIATOWSKA v CHANNEL SEVEN SYDNEY PTY LTD (No 2)
[2020] SASCFC 5

Full Court:      Kourakis CJ, Blue and Nicholson JJ

1. THE COURT:      On 27 September 2019 the Court allowed an appeal by Malgorzata Poniatowska against a judgment of a Judge of this Court dismissing her defamation action against the respondents Channel Seven Sydney Pty Ltd and Channel Seven Perth Pty Ltd (collectively Channel Seven).[1]

   [1]    Poniatowska v Channel Seven Sydney Pty Ltd [2019] SASCFC 111.

2. The trial Judge did not assess damages but summarised the evidence and made some findings of fact relevant to damages.[2] After hearing submissions from the parties, the Court decided to assess damages on the appeal rather than remit the assessment to a single Judge. These reasons address that assessment.

   [2]    Poniatowska v Channel Seven Sydney Pty Ltd (No 4) [2016] SASC 137 at [469]–[671].

   Background

3. The background facts relevant to liability are set out in the reasons for judgment of Blue J in the reasons for judgment on liability.[3] The following background facts are supplementary or recapitulated.

   [3] [2019] SASCFC 111 at [18]–[167].

4. Ms Poniatowska was born in 1967 in Poland. In 1986 she commenced Bachelor and Master of Canon and Civil Law degrees, which she completed in 1991. She married in 1989.

5. In November 1991 Ms Poniatowska emigrated with her husband to Australia. In 1992 her daughter was born and she also undertook a TAFE course in English. In 1993 she undertook an Information Technology course. In 1994 she undertook a one year Graduate Diploma of Business (Administrative Management) at the University of South Australia. In 1995 her son was born.

6. In January 1996 Ms Poniatowska commenced employment with the Commonwealth government as an administrative services officer. She worked initially in the Department of Immigration and Multicultural and Indigenous Affairs processing migration applications and then in the Department of Defence recruiting office. She remained there until she resigned in January 1998.

7. In January 1998 Ms Poniatowska commenced employment with the University of South Australia as a student advisor, responding to student inquiries about university services and providing information and advice about programs and admissions. She remained there until January 2000. From 1999 onwards, she also worked in her husband’s second-hand car dealership. Her work included marketing, advertising and contacting clients.

8. In January 2000 Ms Poniatowska commenced employment with radio station 5DN as an account manager, organising advertising campaigns for businesses and clients on a salary and commission. She remained there until December 2003.

9. In January 2002 Ms Poniatowska commenced a part-time Master of Business (Administrative Management) degree at the University of South Australia, which she completed in December 2005.

10. In November 2002 Ms Poniatowska’s husband left her and their children and later moved overseas.

11. In January 2005 Ms Poniatowska commenced employment with Hickinbotham, selling house and land packages on commission. She experienced sexual harassment in the workplace which commenced in May 2005 and adversely affected her mental health. She remained there until February 2006, when Hickinbotham purportedly terminated her employment.

12. In May 2006 Ms Poniatowska commenced employment with AV Jennings, selling house and land packages. She remained there until she resigned in October 2006 due to mental ill-health.

13. In August 2006 Ms Poniatowska commenced (initially on a part-time basis) a Bachelor of Laws degree at the University of Adelaide, which she completed in December 2009.

14. In September 2006 Ms Poniatowska began seeing a psychiatrist, Dr Jha. In February 2007 she also began seeing Dr Czechowicz and in June 2007 she ceased seeing Dr Jha and continued only with Dr Czechowicz.

15. In July 2007 Ms Poniatowska instituted a proceeding in the Federal Court against Hickinbotham for sexual harassment.

16. In May 2008 Ms Poniatowska was served with the Centrelink complaint issued out of the Magistrates Court alleging contraventions of section 135.2(1) of the Criminal Code (Cth).

17. In June 2008 the trial of the Hickinbotham proceeding commenced before Mansfield J, concluding in September 2008.

18. In June 2009 Mansfield J delivered reasons for judgment,[4] finding that Ms Poniatowska had been subjected to sexual harassment at Hickinbotham and awarding her damages assessed at $466,000. This included $200,000 for past loss of earning capacity and $140,000 for future loss of earning capacity. The latter figure was based on an assessment that Ms Poniatowska was likely to be able to return to work in approximately two years, with a prospect of an earlier return but also a prospect of a later return or of some ongoing impairment. Hickinbotham appealed against the judgment.

    [4]    Poniatowska v Hickinbotham [2009] FCA 680.

19. In October 2009 Ms Poniatowska was sentenced by a Magistrate on the Centrelink complaint to imprisonment for 21 months, suspended on her entry into a recognisance to be of good behaviour for two years. She appealed against the sentence and ultimately appealed to this Court against her convictions.

20. In February 2010 Ms Poniatowska commenced a Graduate Diploma in Legal Practice at the Law Society of South Australia. She was awarded the Diploma in May 2011.

21. In July 2010 Hickinbotham’s appeal to the Full Court of the Federal Court was dismissed. Hickinbotham sought special leave to appeal to the High Court, which application was dismissed in February 2011.

22. In August 2010 Ms Poniatowska’s appeal to this Court against her convictions was allowed. The Commonwealth Director of Public Prosecutions sought special leave to appeal to the High Court. On 26 October 2011 the High Court dismissed the appeal.

23. On the evening of 26 October 2011 Channel Seven Sydney Pty Ltd broadcast in Sydney and Channel Seven Perth Pty Ltd broadcast in Perth the program “Today Tonight”. The program included a story addressing Ms Poniatowska (the broadcast story).

24. The broadcast story was also broadcast as part of the Today Tonight program by other television stations (not operated by the respondents) in Brisbane, four regional cities in Queensland, two regional cities in New South Wales, five regional cities in Victoria, Canberra, Hobart, Darwin and Alice Springs. The broadcast story was not broadcast in Adelaide or Melbourne.

25. Between 26 October 2011 and January 2012 a Channel Seven website contained a webpage for the Today Tonight program of 26 October 2011, which contained a link entitled “The Centrelink cheat who got away” with a picture of Ms Poniatowska, such that clicking on the link took a browser to the same story as the broadcast story (the internet story).

26. In December 2011 Ms Poniatowska was admitted as a barrister and solicitor of the Supreme Court.

27. In December 2011 Ms Poniatowska sent a series of letters in the same terms enquiring about employment as a lawyer to various law firms in South Australia and to the District Court enquiring about employment as an associate. She sent further letters to other law firms between February and November 2012.

28. In February 2012 Ms Poniatowska sent letters in the same terms enquiring about employment as a sales consultant to Stellar Homes and Fairmont Homes. She sent further letters to other home builders between March and September 2012.

29. In March 2012 Ms Poniatowska sent a letter to the Burnside Council enquiring about employment as manager of development services. She sent further letters in essentially the same terms to potential employers in relation to various positions between April and October 2012.

30. Ms Poniatowska did not receive any response to her letters of enquiry (except from the District Court) and has not been employed since the publication of the broadcast or internet story (collectively the story).

31. In October 2012 Daryl Stillwell was asked by Ms Poniatowska’s solicitor to provide a report concerning the effect of the Today Tonight story on her employment prospects. He interviewed her and conducted a psychological appraisal. In November 2012 he provided an expert report.

32. In February 2013 Paul Burgess was asked by Channel Seven’s solicitor to provide a report concerning Ms Poniatowska’s employment prospects in the absence of the Today Tonight story. In March 2013 he provided an expert report.

33. In April 2014 the trial of Ms Poniatowska’s defamation action commenced. Evidence concluded in September 2014 and closing addresses were made in November 2014.

    Evidence relevant to damages

34. Ms Poniatowska gave evidence about the effect of the Today Tonight story on her.

35. Jeremy Cordeaux gave evidence that Ms Poniatowska had been a very effective sales representative at radio station 5DN.

36. Dr Czechowicz gave expert evidence about Ms Poniatowska’s mental health and the effect of the sexual harassment at and subsequent proceedings against Hickinbotham, the Centrelink criminal proceedings and the Today Tonight story on her. Several reports by Dr Czechowicz were tendered.

37. Mr Stillwell and Mr Burgess gave expert evidence concerning the effect of the Today Tonight story on Ms Poniatowska’s employment prospects. Their expert reports were tendered.

38. Patsy Rowe, an employee of New Holland Publishers, gave affidavit and oral evidence concerning her dealings with Ms Poniatowska in relation to Ms Poniatowska’s manuscript What Does Not Kill You Makes You Stronger. Her evidence was that her assessment had been that the manuscript was not worthy of publication.

39. On appeal, portions of two affidavits by Ms Poniatowska were tendered without objection or cross-examination in which she said that she has been unemployed since November 2014 when the defamation trial concluded. Ms Poniatowska did not seek to adduce any evidence on appeal from Dr Czechowicz due to the state of his health.

    The approach of the Judge to damages

40. The Judge did not assess the amount of damages that he would have awarded if he had found liability established. However, the Judge found that Ms Poniatowska had not established an entitlement to aggravated damages, summarised evidence relevant to damages and made some findings that would be relevant to damages.

41. As a general proposition, a judge should address all issues in reasons for judgment even though an issue does not affect the judge’s disposition of the case because the judge has already decided to dismiss the case on an anterior issue. This is because an appeal court might take a different view on the anterior issue. This general proposition applies to the assessment of damages when a judge has decided to dismiss a case on liability as much as to any other subsequent issue.

42. In Nevin v B & R Enclosures Pty Ltd,[5] Tobias JA (with whom Sheller and Beazley JJA agreed) said:

    Although it can be put no higher than a rule of convenience, it is generally (although not invariably) the practice of judges both of this Court and the District Court who propose to find for the defendant in personal injury cases to assess damages in order to avoid the cost and expense, as well as the inconvenience in the taking up of valuable court time and resources, of a new trial limited to the issue of damages should there be a successful appeal on the issue of liability…

    In my opinion, where the issue of damages in personal injury cases has been fully litigated, and there is at least a reasonable possibility that the trial judge’s decision on liability in favour of a defendant may be overturned on appeal, it is both just and convenient that the trial judge should proceed to assess damages to guard against the eventuality of a successful appeal.[6]

    [5] [2004] NSWCA 339.

    [6]    At [74]–[75].

43. However, this is not a universal or unqualified principle and there will be cases where a judge need not, or even should not, decide a subsequent issue when it is not dispositive at first instance. It is neither necessary nor possible to identify the circumstances in which this will be the case.

44. In Prince Alfred College Incorporated v ADC,[7] French CJ, Kiefel, Bell, Keane and Nettle JJ said that the Judge ought not to have decided liability given her conclusion that an extension of time should be refused. They said:

    … It is a matter of long-standing practice in most trial courts that, where possible, all issues be the subject of adjudication. The practice is based upon the desirability of avoiding the need for a new trial in the event that an appeal on one issue is successful. However, as has been observed, it is no more than a rule of convenience. It is not something which should invariably be done without consideration of the appropriateness of that course of action in the circumstances of the case.[8]

    [7] [2016] HCA 37; (2016) 258 CLR 134.

    [8] At [113]. (Footnote omitted)

45. An appeal is against the ultimate decision by a judge and not against primary or intermediary findings of fact. If a judge assesses damages at a particular figure, the onus is on the appellant to demonstrate error in the outcome or process or explanation of the process that led to that outcome. That error should be identified in the grounds of appeal or the submissions by the appellant. If a judge does not make an ultimate decision, it is doubtful that an appellant bears that onus.

46. However, in the present case, the appeal on damages was conducted on the basis that Ms Poniatowska, as the appellant, assumes the onus of demonstrating error by the Judge in relation to such findings as were made relevant to damages. Because of the way in which the appeal was conducted, we proceed on that premise, notwithstanding the reservation in the previous paragraph.

47. The Judge reached final conclusions on all issues as to aggravated damages but not on all issues as to ordinary non-economic loss or economic loss. However, the Judge did comprehensively summarise most of the evidence relevant to damages, and in particular comprehensively summarised the evidence of the recruitment experts Mr Stillwell and Mr Burgess. As a result, it is not necessary in these reasons to refer in detail to much of that evidence.

    Aggravated damages

48. It is convenient to commence with the issue whether Ms Poniatowska established that an award of aggravated damages was warranted.

49. This is because, amongst other things, Ms Poniatowska contends that, if aggravated damages are warranted, subsection 33(2) of the Defamation Act 2005 (SA) (the Act) operates such that the maximum amount of damages for non‑economic loss under subsection 33(1) does not apply. We observe that this contention is disputed: Channel Seven contend first that subsection 33(2) has no effect on the limit for ordinary damages for non-economic loss and only provides that there is no limit on aggravated damages; secondly that only conduct at or before publication warranting aggravated damages can displace the limit; and thirdly that section 33 impliedly abrogates aggravated damages at common law for post-publication conduct.

50. It is necessary in any event to determine whether aggravated damages should be awarded.

51. Ms Poniatowska contends that there are several grounds on which aggravated damages are warranted.

    Conduct at time of publication

52. Ms Poniatowska contends that the circumstance of publication by a major media entity of the story to promote its business at the expense of a private individual warrants such an award. The mere fact that the publication is to promote the publisher’s business, is at the expense of a private individual and/or is by a major media entity does not warrant the award of aggravated damages.

53. Ms Poniatowska relies on the fact that the story compared her to people who multiplied their identity to deliberately defraud Centrelink for high amounts. This is relevant to the imputations that arose from the story and the gravity of the imputations, which affects ordinary damages, but it is not a ground for the award of aggravated damages.

54. Ms Poniatowska relies on the fact that no mention was made in the story regarding her disclosure of estimates of income to Centrelink, her notification to Centrelink of her employment and employers, her total disclosure in tax returns, the exchange of information between the Australian Taxation Office and Centrelink or the total failure of Centrelink to question her method of reporting. Ms Poniatowska relies on the fact that there was nothing in the story suggesting that she had paid to Centrelink $20,000 that had allegedly been overpaid. These matters were relevant to the question whether Channel Seven established justification but do not comprise grounds for the award of exemplary damages.

55. Channel Seven contend that these grounds for aggravated damages were not advanced at trial and cannot now be advanced by Ms Poniatowska on appeal. It is not necessary to consider this contention.

    Conduct after publication

    Plea of justification

56. Ms Poniatowska contends that Channel Seven’s conduct in advancing and persisting with the plea of justification warrants an award of aggravated damages.

1. In Triggell v Pheeney,[9] Dixon, Williams, Webb and Kitto JJ held:

   … the conduct of the defence may be taken into consideration … as improperly aggravating the injury done to the plaintiff, if there is a lack of bona fides in the defendant’s conduct or it is improper or unjustifiable.[10]

   [9] (1951) 82 CLR 497.

   [10]   At 514.

2. In Bauer Media Pty Ltd v Wilson (No 2),[11] Tate, Beach and Ashley JJA said:

   Moreover, additional care needs to be taken in this area to ensure that findings of impropriety are not based upon hindsight analyses.  Whether a particular step in a proceeding was improper or unjustifiable or lacking in bona fides falls to be determined at the time the step is taken, rather than by reference to whether the jury did or did not ‘comprehensively reject’ the losing party’s case.[12]  

   [11] [2018] VSCA 154.

   [12] At [105]. (Footnote omitted)

3. The mere fact that Channel Seven did not ultimately succeed (on appeal) on the defence of justification does not warrant an award of aggravated damages. It must be shown that the defence either was not pursued in good faith or was improper or unjustifiable.

4. The Judge found that, leaving aside the fact that he found the defence of justification proved (a finding that we have overturned on appeal), Ms Poniatowska’s plea of guilty provided a proper basis for Channel Seven to plead justification.

5. There is no basis on which a finding could be made that Channel Seven did not advance the defence of justification in good faith. Ms Poniatowska contends that Channel Seven implicitly recognised error by removing the story from the internet. She also contends that an adverse inference can be drawn from the fact that the story was not broadcast in South Australia and from Channel Seven’s failure to call Mr Archer, the Adelaide producer of Today Tonight. No inference of a lack of good faith can be drawn from these circumstances individually or collectively.

6. Ms Poniatowska contends that the persistence of the justification plea following the evidence of Mr Reynolds who confirmed complete disclosure of income in tax returns is unacceptable, particularly in circumstances where Channel Seven had no intention of calling a witness from Centrelink. Disclosure by Ms Poniatowska of her income in her tax returns was one relevant fact in deciding whether the defence of justification was established; it was not determinative. The fact that Channel Seven did not call a witness from Centrelink had certain consequences on the question whether on the whole of the evidence they had established the defence of justification; it did not entail that the defence was improper or unjustified.

7. Ms Poniatowska contends that Channel Seven sought to rely on an inappropriate application of the rule in Jones v Dunkel[13] in an attempt to discharge the onus upon it. This also is incapable of giving rise to an inference of a lack of good faith.

   [13] (1959) 101 CLR 298.

8. While we found that justification was not in fact established, it does not follow that the pursuit of the plea was “improper or unjustifiable” in the context of the requirement to warrant an award of aggravated damages.

9. This ground for the award of aggravated damages is not established.

   Failure to apologise

10. Ms Poniatowska contends that the fact that Channel Seven declined to accede to a request for an apology increased the hurt and warrants aggravated damages.

11. Channel Seven contend that this ground for aggravated damages was not advanced at trial (it was not addressed by the Judge). For the reasons that follow, it is not necessary to consider that contention.

12. Making an apology or publishing a correction of defamatory matter is capable of mitigating damages.[14] However, it does not follow that a failure to apologise in itself warrants aggravated damages.

    [14]    Defamation Act 2005 (SA) sections 36(1)(a) and (b).

13. In Ali v Nationwide News Pty Ltd,[15] the New South Wales Court of Appeal held that a failure to apologise can warrant aggravated damages but only when the prerequisite for the award of aggravated damages is satisfied; that is, that the defendant’s conduct in not apologising is in bad faith or is improper or unjustified. Tobias and McColl JJA said:

    We have earlier referred to the High Court’s observations in Herald & Weekly Times Ltd v McGregor that in assessing damages the relevant tribunal can take into account the fact that no apology was ever offered to the plaintiff: see also McDonald v Coles Myer Ltd (t/as K-Mart Chatswood) (1995) Aust Torts Reports 81-361 at 62,686-62,687 per Clarke JA.

    
    
    

    Despite doubts expressed in Carson (at 66) about how the mere absence of an apology could aggravate damages, this Court has held that damages can be awarded for such a failure: Clark v Ainsworth [1996] NSWSC 610; (1996) 40 NSWLR 463 at 468 per Sheller JA, Simos AJA agreeing. By failing to publish any retraction or apology, the defendant is seen to be continuing to assert the imputations found to have been published: Carson at 78 per Brennan J. Damages for failure to apologise can be awarded both as part of general compensatory damages, the rationale being that the harm from the original publication may be prolonged and intensified by the absence of an apology, or as aggravating compensatory damages: Clark at 466 per Sheller JA.

    Such a failure can be taken into account in awarding aggravated damages, even if the plaintiff sought no apology, as long as the failure satisfied one of the three criteria for such an award. [16]

    [15] [2008] NSWCA 183.

    [16]   At [81]–[83].

14. There is obviously a degree of overlap between persisting in a plea of justification and failing to apologise comprising conduct warranting aggravated damages. For similar reasons to those in respect of Channel Seven’s plea of justification, their failure to apologise did not comprise conduct in bad faith or improper or unjustified conduct.

    Cross-examination

15. Ms Poniatowska contends that attacks on her credit on several topics warrant the award of aggravated damages. She also contends that the nature and extent of the cross-examination warrant the award of aggravated damages

    Attacks on credit

16. Channel Seven put to Ms Poniatowska in cross-examination and submitted to the Judge that she deliberately failed to discover five letters from Centrelink dated between July and September 2006. While the Judge did not make such a finding, the Judge correctly found that Channel Seven’s conduct in this respect was not improper or unjustifiable.

17. Channel Seven put to Ms Poniatowska in cross-examination that Ms Poniatowska opened her Commonwealth Bank account when commencing employment with Hickinbotham to enable her salary to be paid into an account of which Centrelink was unaware. While the Judge did not make such a finding, the Judge correctly found that Channel Seven’s conduct in this respect was not improper or unjustifiable.

18. Channel Seven put to Ms Poniatowska in cross-examination that she did not pay in full her lawyer’s fees, and in particular the fees of senior counsel, in the Centrelink criminal proceedings. Ms Poniatowska denied this and counsel for Channel Seven did not persist with the suggestion. The Judge correctly found that, having regard to the very limited nature of the cross-examination on this topic and the fact that senior counsel said that he had a proper basis to pursue this line of enquiry, Channel Seven’s conduct in this respect was not improper or unjustifiable.

19. Channel Seven put to Ms Poniatowska in cross-examination that Mansfield J had not accepted Ms Poniatowska’s evidence that her supervisor had spoken to her about developing a sexual relationship with the development manager of another development company so that Hickinbotham would be better placed to secure a land deal with that company; that Alan Hickinbotham had said, whilst staring at her breasts, that she had “two good assets”; and that Michael Hickinbotham had, at a function at a hotel, spontaneously and without warning kissed her strongly on the lips. It was not put to Ms Poniatowska that her evidence before Mansfield J in this respect was knowingly false or even that objectively it was false, but merely that Mansfield J had not accepted that her evidence was accurate in this respect. This was in the context that Ms Poniatowska had given evidence about the extent to which Mansfield J had accepted her evidence and vindicated her and in the context that Mr Burgess had expressed the opinion in his expert report that the non-acceptance of Ms Poniatowska’s evidence in this respect would (rightly or wrongly) be viewed adversely by a potential law firm employer. No adverse submission was made by Channel Seven in relation to Ms Poniatowska’s credit in this respect. Mansfield J had found that Ms Poniatowska’s evidence was not dishonest but merely mistaken. In the circumstances, the Judge correctly found that Channel Seven’s conduct in this respect was not improper or unjustifiable.

20. Channel Seven put to Ms Poniatowska in cross-examination that she had agreed with the builder of her house to inflate the cost shown in her building contract to be shown to her bank so that the bank would make advances based on the inflated price and the builder would kick back to her the difference. This questioning was treated as relating only to credit and, when Ms Poniatowska foreshadowed calling the builder to support her account, the Judge intimated (without ruling) that this would probably be foreclosed by the collateral challenge rule. The Judge found that Channel Seven’s conduct in this respect did not warrant aggravated damages. The Judge gave as the reason for this conclusion a finding that the Judge made that Ms Poniatowska had entered into such an arrangement with her builder. The Judge relied on the fact that Mr Lutt had, after speaking to her, recorded in a draft statement a purported statement by Ms Poniatowska describing the arrangement in this way. We accept that the Judge erred in making a finding as to the existence of the arrangement given that it was collateral. However, it does not follow that Channel Seven’s conduct in putting the proposition to Ms Poniatowska in cross-examination warranted an award of aggravated damages. On the contrary, there was nothing improper or unjustified in Channel Seven’s conduct in this respect.

21. Ms Poniatowska contends that Channel Seven made an unfounded attack on her credit in putting to her in cross-examination that she resisted obtaining a file from Centrelink under the Freedom of Information Act 1982 (Cth). However, that suggestion was not put to Ms Poniatowska in the passages cited by her in support of her contention: she was merely asked open questions concerning that process.

    Conduct of cross-examination

22. Ms Poniatowska contends that the damages were aggravated by a six-day cross-examination, which was abusive and intimidating. She also relies on the fact that she was in pain while being cross-examined and during cross-examination developed a rapidly growing tumour.

23. The Judge found that, while the cross-examination was vigorous and extensive, it did not constitute improper or unjustifiable conduct. We agree with that assessment. In many respects, while the cross-examination was lengthy and covered many topics, the style of the cross-examination was very constrained.

24. While the cross-examination no doubt objectively had an adverse effect on Ms Poniatowska and her health, the question is whether it was improper or unjustified, not as to its objective effects on her.

    Holistic assessment

25. We accept that it is not necessarily sufficient merely to consider each of the matters relied on by Ms Poniatowska in isolation. On a holistic assessment of Channel Seven’s conduct, she has not established that they acted in bad faith or that their conduct was improper or unjustified.

    Issues of construction of section 33

26. As observed above, three issues of construction of subsection 33(2) are raised by the parties.

27. Section 33 provides:

    33—Damages for non-economic loss limited

    (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 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 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.

28. First, Channel Seven contend that, if aggravated damages of the requisite type are warranted under subsection 33(2), ordinary damages for non-economic loss remain subject to the subsection 33(1) limit: the only consequence is that aggravated damages may be awarded without regard to that limit.

29. In light of our conclusion that Ms Poniatowska has not established that aggravated damages are warranted on the merits, it is not necessary to decide this question. However, Channel Seven acknowledge that, in Bauer Media Pty Ltd v Wilson (No 2)[17] the Victorian Court of Appeal rejected the construction of the identical section of the Defamation Act 2005 (Vic) (the Victorian Act) that is now advanced by Channel Seven.[18] Because the Act is part of a scheme of uniform national legislation, of which the Victorian Act is also part, we could only depart from that construction if we were convinced that it is plainly wrong.[19] If it were necessary to decide, we would not be so convinced.

    [17] [2018] VSCA 154.

    [18]    At [249] per Tate, Beach and Ashley JJA.

    [19]    Farah Constructions Pty Ltd v Say-Dee Pty Ltd(2007) 230 CLR 89 at [135] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.

30. We note for completeness that Channel Seven has drawn the attention of the Court to the recent release by the Council of Attorneys-General of a consultation draft of model amendments to the Model Defamation Act on which the Act is based and a Background Paper explaining the proposed amendments. If the amendments were made to the Act, they would have the effect of requiring separate assessments of ordinary and aggravated damages (when applicable) for non‑economic loss and providing that the limit still applies to the assessment of ordinary damages when aggravated damages are also assessed. However, this amendment would only apply to publications after the amendment (if made). Ms Poniatowska objects to Channel Seven drawing the attention of the Court to this material after we reserved our judgment on damages. There is nothing improper about Channel Seven’s conduct in this respect. However, the possibility of an amendment to the Act is incapable of comprising extrinsic material that could be considered in construing the Act prior to the possible amendment.

31. Secondly, Channel Seven accept that at common law post-publication conduct can warrant an award of aggravated damages (provided that the pre‑conditions are met). However, Channel Seven contend that the effect of subsection 33(2) is to limit aggravated damages to aggravation arising from the circumstances of the publication itself and to eliminate the right to aggravated damages for post-publication conduct. Alternatively, even if aggravated damages can be awarded for post-publication conduct, such conduct cannot result in the exclusion of the cap on damages for non-economic loss.

32. There are two steps in Channel Seven’s primary contention. First, the words in subsection 33(2) referring to “the circumstances of the publication of the defamatory matter to which the proceedings relate” limit those circumstances in a temporal manner to those existing at or before publication for the purpose of negating the cap. Secondly, the effect of subsection 33(2) is to eliminate the right to aggravated damages for post-publication conduct.

33. In relation to the first step, Channel Seven concede that they are unable to cite any authority in support of their contention and that the same contention in respect of counterpart interstate legislation has been rejected by judges at first instance.[20] Channel Seven concede that in Bauer Media Pty Ltd v Wilson (No 2)[21] the Victorian Court of Appeal proceeded on the assumption of this construction but observe that it did not decide it as such. We prefer to express no view concerning this contention.

    [20]   Cripps v Vakras [2014] VSC 279 at [610]–[614] per Kyrou J; Wilson v Bauer Media Pty Ltd[2017] VSC 521 at [76]–[77] per John Dixon J; Rayney v Western Australia (No 9) [2017] WASC 367 at [856] per Chaney J; Wagner v Harbour Radio Pty Ltd [2018] QSC 201 at [757]–[759] per Flanagan J.

    [21] [2018] VSCA 154.

34. In relation to the second step, Channel Seven concede that they are unable to cite any authority in support of their contention and that the same contention in respect of counterpart interstate legislation has been rejected by judges at first instance.[22] Channel Seven concede that in Bauer Media Pty Ltd v Wilson (No 2) the Victorian Court of Appeal proceeded on the assumption of this construction but observe that it did not decide it as such.

    [22]   Forrest v Askew [2007] WASC 161 at [71]–[74] per Newnes J; Cripps v Vakras [2014] VSC 279 at [610]–[614] per Kyrou J; Wilson v Bauer Media Pty Ltd[2017] VSC 521 at [76]–[77] per John Dixon J; Rayney v Western Australia (No 9) [2017] WASC 367 at [856] per Chaney J; Wagner v Harbour Radio Pty Ltd [2018] QSC 201 at [757]–[759] per Flanagan J.

35. If it were necessary to decide, we would reject Channel Seven’s contention. There is no reason to construe section 33 as changing the common law by eliminating the right to aggravated damages for post-publication conduct. First, subsection 33(2) is addressed, and all of the other subsections of that section are also clearly addressed, to a limit on damages for non-economic loss: not to aggravated damages as such. Secondly, section 33 and the Act as a whole merely modify in specific and limited respects the operation of the common law tort of defamation. Thirdly, the posited elimination would represent a very substantial change in the common law and, if that were intended, it may be expected that the legislature would have expressly so provided.

    Conclusion

36. Ms Poniatowska has not established an entitlement to aggravated damages.

    Damages for non-economic loss

    Factual basis for assessment

37. Channel Seven admitted that the average number of viewers for the Seven Network stations was 331,000 viewers in Sydney and 156,000 viewers in Perth. The case was conducted at trial and on appeal on the basis that, on the one hand, there should be a single assessment of damages against both defendants for the collective damage caused by the broadcasts in New South Wales and Western Australia (and indeed for the internet story) and, on the other hand, the section 33 cap (if it applies) applies to damages against both defendants collectively and not severally.

1. Ms Poniatowska pleaded that the broadcast story was also broadcast on a further 33 television stations around Australia. Channel Seven admitted that it was broadcast on 17 of those stations (pleading that they were not operated by them) and no evidence was adduced by Ms Poniatowska to prove broadcast by the other 16 stations. The 17 stations included Brisbane, four regional cities in Queensland, two regional cities in New South Wales, five regional cities in Victoria, Canberra, Hobart, Darwin and Alice Springs. The broadcast story was not broadcast in Adelaide or Melbourne.

2. The Judge found that Ms Poniatowska had not pleaded a case against Channel Seven directly for publication by other Seven Network stations; however, it was open to her on her pleadings to contend that the further publication by the 17 stations was relevant to the assessment of damages flowing from the original publication. Ms Poniatowska did not adduce any evidence of a connection or relationship between the publication of the story by either respondent on the one hand and broadcast of the story by the other 17 Seven Network stations. In those circumstances, we have no regard to the broadcast by those 17 stations in the assessment of damages.

3. The position in respect of internet downloads is unfortunately complex. Ms Poniatowska tendered as exhibit P19 a letter from Channel Seven’s solicitors to her solicitor. The letter stated that the defendants admitted that the story was uploaded to “the Today Tonight website” but did not admit that it was downloaded by any person. It did not explain what was meant by “the Today Tonight website”, particularly in the context in which the content of the Today Tonight program varied (at least in respect of the story and inferentially more generally) from State to State and from station to station. The letter said that the defendants did not have any relevant documents relating to access by users to the website but data had been extracted from the Yahoo Web Analytics Web database. The letter enclosed a table referring to a url Yahoo webpage). The table showed a number of “page views” from various locations in each of October, November and December 2011 and January 2012. The total for the four months was 42 from Sydney, nine from Melbourne, seven from Brisbane, four from Adelaide, two from Perth and one from each of Christchurch and Germany.

4. Ms Poniatowska tendered as exhibit P23 an expert report by Adrian Panazzolo, an information technology professional, in which he stated that:

   ·the link through the Yahoo webpage was no longer operable;

   ·it was not clear whether the Yahoo webpage was a link to the story, or the story itself;  and

   ·the Yahoo webpage was not any one of the Today Tonight websites which had different URL links. 

5. Mr Panazzolo also said that the figures reflected the number of occasions that the page was accessed but did not reflect the number of occasions that a person viewed any other pages of the Today Tonight website containing the story or downloaded the video. Mr Panazzolo was not cross-examined and did not give any oral evidence.

6. When exhibit P23 was tendered, counsel for Ms Poniatowska said that the purpose of calling Mr Panazzolo was in part to explain that the figures in the table had no evidentiary value. Counsel foreshadowed that Ms Poniatowska proposed instead to rely on inference as to the extent of publication via the internet. The exchanges included the following:

   MR HEYWOOD-SMITH: [for Ms Poniatowska] … the evidence of Mr Panazzolo will be that there is reference to the actual Today Tonight websites which he gives, and on which he makes comments, about the current accessibility to, and in the event he’s saying ‘No reliance can be placed upon the figures on the fourth page for anything’.

   MR WHITINGTON:  [for Channel Seven]   If that is my learned friend’s case, we will accept that point…

   MR WHITINGTON:  … But can I say this: if my learned friend is going to call the witness on a purported report, and he’s allowed to say no more than what is provided to us in the report on this topic, then to save time and cut through this, we would say that part of the report can go in, because all it does is say that P19 doesn’t really advance matters. I think that has always been my client’s position anyway. There are no statistics available and it can’t advance things. 

7. In his reasons for judgment, the Judge appears to have relied on the table contained in exhibit P19. The Judge said:

   The only evidence before the Court establishes that there was a maximum of 66 possible occasions when the story was viewed on the internet. However, because of the arrangements referred to in the previous paragraph, persons who opened the website page will not necessarily have then gone on to view the story. Thus the number who viewed the story may well be less than 66. While I am left with the feeling that the actual number of views may have been higher, the evidence does not permit me to make such a finding.

8. On the one hand, it appears that, in light of the exchange extracted above, the Judge probably erred in making a finding that the maximum number of occasions when the story was viewed on the internet was 66. We cannot be certain of this, given that there appears to be some ambiguity in what the parties said to the Judge on this topic. 

9. Be that as it may, Channel Seven’s admission that it maintained the Today Tonight website, and that it uploaded the story on it, is important. We take judicial notice of the fact that websites and webpages are generally accessible through readily available search engines of which Yahoo is but one. We also take judicial notice of the fact that it has become common for news information to be accessed through broadcast and online media. Indeed, the maintenance of the Today Tonight website by Channel Seven evidences that fact. Persons who watched all or some of the broadcast story, or who heard about it from others, may have accessed the story through Yahoo or through another search engine.

10. In the absence of evidence, the Court is not in a position to infer that there was a specific number of occasions when the story was viewed on the internet. In the circumstances, we proceed on the premise that the story was viewed on approximately 100 occasions.

11. Ms Poniatowska gave evidence about the effect of the publication of the story on her and Mr Cordeaux gave evidence of his observations of her reaction to the story. That evidence is consistent with what might be objectively expected of the effect of such a story on any person, including a person in Ms Poniatowska’s position.

12. Ms Poniatowska gave evidence that she regularly attended a Polish Catholic Church on a Sunday. On one occasion not long after the publication, she overheard a group of people talking about the program, saying that she had cheated and stolen money from Centrelink and laughing (the Church discussion). The Judge said in respect of this evidence:

    … Because the story was not broadcast in this State and internet access was apparently minimal I am not satisfied that the people she overheard were referring to the publications that are the subject of these proceedings. They may possibly have been referring to other adverse material published about her. The evidence of Mr Paul Burgess established that much of the extensive publicity about the Hickinbotham and Centrelink proceedings still remained accessible through the internet up until the time of trial.

13. The Judge in making this finding accepted the honesty and reliability of Ms Poniatowska’s evidence. Given that Ms Poniatowska said that the people she overheard were talking about the program and the timing of the conversation being shortly after publication of the story, the Judge erred in finding that the Church discussion was not about the story.

14. Ms Poniatowska gave evidence that shortly after the Church discussion, when she was doing her grocery shopping in her local supermarket, she was passed by a woman who gave her an angry look and said “Cheating cow” (the supermarket remark). The Judge found that it was not established that the remark was prompted by the story. The Judge said:

    … There was nothing at all in her evidence to link this alleged incident to the publication by the defendants.  She was the subject of extensive adverse publicity by others that might have prompted the woman’s alleged remark. 

15. Accepting, as the Judge did, as a primary fact that the comment was made, we find that it was a reference to the story. The reference to “cheating” is much more consistent with the broadcast story than the Hickinbotham saga. The temporal proximity to the broadcast story, and the echoing of its theme, satisfies us, on the balance of probabilities, that it is not a reference to the publicity about the criminal proceedings and the appeal to the High Court. We find that the supermarket remark was prompted by the story.

16. Ms Poniatowska contends that it should be inferred that persons in Adelaide became aware of the story via the “grapevine effect”. We accept that it is very likely that some persons in Adelaide became aware of the story as a result of speaking to persons who viewed the story interstate. The Church discussion and supermarket remark are examples of the grapevine effect. We accept that interstate travel for work and leisure is extensive, and that many people have family and friends who live interstate. We also accept that modern electronic communication has facilitated and expanded the exchange of information across State borders. However, the content of the broadcast story was such that it would not have attracted a high level of public interest or controversy. The grapevine in this case is not an extensive one. 

    Principles of assessment

17. Section 32 of the Act provides:

    32—Damages to bear rational relationship to harm

    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.

18. Section 33, discussed above, imposes a limit on damages for non-economic loss. The Judge in his reasons for judgment said that the relevant amount of the limit was $366,000 being the amount gazetted with effect from 15 May 2014. While Ms Poniatowska refers to the fact that the limit has now been increased to $407,500, she does not challenge the Judge’s approach of regarding the date of trial as the relevant date for determination of the amount of the limit. We proceed on that basis, noting that, for reasons that will appear, we assess damages for economic loss below the limit on any view. It is common ground that the limit operates as a cap and not so as to require a court to scale the damages awarded against the maximum amount.

19. Damages are otherwise to be assessed under common law principles (subject to mitigation under the Act, which has no specific application in the present case).

20. Damages for non-economic loss in defamation address three overlapping aspects of compensation for harm: compensation for hurt to the plaintiff’s feelings and damage to the plaintiff’s reputation and compensation to vindicate the plaintiff’s reputation. In Carson v John Fairfax & Sons Ltd,[23] Mason CJ, Deane, Dawson and Gaudron JJ said:

    Specific economic loss and exemplary or punitive damages aside, 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 a verdict is the product of a mixture of inextricable considerations”. The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant’s personal and (if relevant) business reputation and vindication of the appellant’s reputation. The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant. Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant’s reputation. “The gravity of the libel, the social standing of the parties and the availability of alternative remedies” are all relevant to assessing the quantum of damages necessary to vindicate the appellant.[24]

    [23]     (1993) 178 CLR 44.

    [24]   At 60–61. (Footnotes omitted)

21. The harm caused by the defamatory publication does not end at the time of publication but encompasses continuing harm including ongoing hurt feelings during and up to the conclusion of the litigation by the plaintiff seeking vindication.[25]

    [25]   Herald & Weekly Times Ltd v McGregor(1928) 41 CLR 254 at 263 per Knox CJ, Gavan Duffy and Starke JJ; Humphries v TWT Ltd (1993) 120 ALR 693 at 706 per Gallop, Davies and von Doussa JJ; Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [75]–[76] per Tobias and McColl JJA; Jeffrey and Curnow v Giles; Giles v Jeffrey and Curnow [2015] VSCA 70 at [26]–[27] per Warren CJ and Tate JA.

22. In Ali v Nationwide News Pty Ltd,[26] Tobias and McColl JJA helpfully summarised the principles applicable to the assessment of damages for non-economic loss in the following terms:

    Damages awarded for defamation serve three purposes: consolation for the personal distress and hurt caused to the plaintiff by the publication, reparation for the harm done to the plaintiff’s personal and (if relevant) business reputation and vindication of the plaintiff’s reputation. These purposes “overlap considerably in reality and ensure that ‘the amount of a verdict is the product of a mixture of inextricable considerations’” …

    The harm caused to the plaintiff by the publication of the defamation often lies more in his own feelings, what he thinks other people are thinking of him, than in any actual change made manifest in their attitude towards him. Thus “[a] solatium for injured feelings, however innocent the publication by the defendant may have been, forms a large element in the [general compensatory] damages”.

    A person who is defamed receives damages because he or she has been injured in his or her reputation; that is, because he or she was publicly defamed. Damages in a defamation action vindicate the plaintiff to the public, and are consolation for a wrong done.

    The damages awarded in a defamation action have to be regarded as demonstrating that the plaintiff has been vindicated in his or her reputation. The level of damages should reflect the high value the law places upon reputation and, in particular, upon the reputation of those whose work and life depend upon their honesty, integrity and judgment.

    The harm done by the defamatory publication for which general compensatory damages are recoverable, does not come to an end when the publication is made. “It is impossible to track the scandal, to know what quarters the poison may reach”. Accordingly, the damages awarded for defamation must be such that “in case the libel, driven underground, emerges from its lurking place at some future date, [the plaintiff] must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge”. Mahoney ACJ referred to this statement with approval in Crampton at 193, holding (at 194–195) that “[t]he award must be sufficient to ensure that, the defamation having spread along the ‘grapevine’ ... and being apt to emerge ‘from its lurking place at some future date’, it was ‘sufficient to convince a bystander of the baselessness of the charge’”.

    In assessing damages the tribunal of fact is entitled to take into consideration “the mode and extent of the publication, that the defamatory statement was never retracted, that no apology was ever offered to the respondent, and that the statement had been persisted in to the end”. Such circumstances might in the opinion of that tribunal “increase the area of publication and the effect of the libel on those who had read it or who would thereafter read it, might extend its vitality and capability of causing injury to the plaintiff”. The assessment of damages involves an understanding of the nature and seriousness of the imputations and the defendants’ conduct.

    Finally under these general observations, we would observe that the defendant must take the plaintiff as it finds him or her.[27]

    [26]   [2008] NSWCA 183.

    [27]   At [70]–[77]. (Citations omitted; emphasis in original)

    Assessment

23. The starting point for the assessment of damages for non-economic loss must be the consolation for the personal distress and hurt caused to Ms Poniatowska. The imputations made by the broadcast and internet stories were that:

    ·Ms Poniatowska was dishonest;

    ·the overpayment from Centrelink [of $20,000] arose through deliberate and wilful conduct;

    ·Ms Poniatowska was a cheat and cheated Centrelink;

    ·Ms Poniatowska committed fraud and was guilty of fraud;

    ·despite her fraud, Ms Poniatowska avoided prosecution [because she successfully resisted the charges]; and

    ·Ms Poniatowska got away with her dishonesty and fraudulent behaviour [because the prosecution foundered on a legal technicality or loophole].[28]

    [28]   Poniatowska v Channel Seven Sydney Pty Ltd [2019] SASCFC 111 at [323].

24. Objectively viewed, the imputations were likely to cause substantial distress. As we shall see, in Ms Poniatowska’s case, they exacerbated a pre-existing depressive condition. The personal hurt would more keenly have been felt by Ms Poniatowska because, having reluctantly entered her plea of guilty, she felt relieved and vindicated by the success of the High Court appeal. Her distress at her public shaming by the broadcast and internet stories was brought close to home by the Church discussion and the supermarket remark. 

25. In relation to the second but related “inextricable consideration”, reparation for the harm done to her reputation, Ms Poniatowska lived, studied and worked in South Australia but the story was broadcast on television only in Western Australia and New South Wales. It can be accepted that Ms Poniatowska might come across persons from interstate in work or social interactions, or might herself travel interstate for work or personal reasons. As we earlier observed, the grapevine effect is important because of the ease of interstate communications in modern times. The publication of the internet story transcended State borders but the number of people who accessed it was relatively small. Overall, therefore, the number of South Australians before whom Ms Poniatowska’s standing suffered is relatively confined.

26. Finally, the award must be sufficient to vindicate Ms Poniatowska’s reputation in the face of serious allegations of fraud and criminal wrongdoing. 

27. We turn to consider awards given in particular cases referred to by the parties. In Google Inc v Duffy,[29] the Full Court of this Court reviewed an award of general damages made by the trial Judge of $100,000 for defamatory material published on the internet carrying the imputation that the plaintiff was a psychic stalker. Few South Australians were likely to access the material because of its esoteric nature. The Full Court found that the award was generous but not manifestly inadequate. The imputations of fraud made against Ms Poniatowska are more serious than the imputations in Google Inc v Duffy.

    [29] [2017] SASCFC 130.

28. In Cornes v The Ten Group Pty Ltd (No 2),[30] a Judge of this Court awarded general damages in the sum of $85,000 for an imputation made in the course of a comedic television program that the plaintiff was an adulteress. The plaintiff was a well-known South Australian identity and the television program was broadcast in South Australia. The award may be considered to be at the low end of the range but, in any event, the imputation did not suggest criminality.

    [30] [2011] SASC 141.

1. In Pedavoli v Fairfax Media Publications Pty Ltd,[31] an award for general damages, including aggravated damages, in the sum of $350,000 was made for a story published in the Sydney Morning Herald that the plaintiff, a teacher in Sydney, had engaged in unlawful sexual misconduct with several boys. That allegation was of serious criminal offending in breach of the trust imposed in teachers. Moreover, the publication in a daily newspaper in the city of work and residence of the plaintiff necessarily caused extensive damage to her reputation.

   [31] [2014] NSWSC 1674.

2. In Ali v Nationwide News Pty Ltd,[32] the New South Wales Supreme Court awarded the sum of $125,000 in general damages for a statement in The Australian newspaper carrying the imputation that the plaintiff raised money for the operations of the Laskar Jihad and was a supporter of terrorism. 

   [32] [2007] NSWSC 58.

3. In Bauer Media Pty Ltd v Wilson (No 2),[33] the Victorian Court of Appeal heard an appeal against damages awarded for defamatory material published in the hard copy Woman’s Day magazine, and on a number of associated online websites, carrying the imputation that the plaintiff, a well-known professional actor, was a serial liar who invented fantastic stories. The plaintiff grew up in Sydney where she completed a law degree. Between 1998 and 2009, she established a successful acting career in Australia and then relocated to Los Angeles. The trial Judge made an award of $650,000 for general damages, including aggravated damages. The award for aggravated damages was primarily based on the Judge’s findings that no responsible analysis of the relevant facts and circumstances could have justified the decision to defend the allegations as being substantially true and that, in the circumstances, an apology and correction were self-evidently called for. The Court of Appeal concluded that the Judge erred in some of the findings made as to the circumstances of aggravation and reassessed the general award at $600,000. The allegations were less serious than those made against Ms Poniatowska. However, the high award is explicable by the plaintiff’s celebrity status and the circumstances of aggravation.

   [33] [2018] VSCA 154.

4. It is not possible to reason directly from these awards, or any number of other awards, to the appropriate award in this case. A process of inductive reasoning, and the synthesis of all of the circumstances, is required. We award the sum of $200,000 for general damages.

   Economic loss

5. Ms Poniatowska’s case at trial was that the publication of the defamatory material caused a relapse of her psychiatric conditions (depression and anxiety), which caused an incapacity to work, which would continue until approximately two years after the final resolution of the defamation proceedings. Her case was also that her loss of reputation caused by the publication adversely affected her prospects of obtaining employment. Her case was that, but for the publication of the defamatory material, she would have obtained employment. She also claimed damages for loss of opportunity to publish her manuscript What Does Not Kill You Makes You Stronger.

   Causation: effect of publication on capacity to work

6. Ms Poniatowska’s case that the publication caused a relapse of her psychiatric conditions, which caused an incapacity to work, relied principally on the expert evidence by Dr Czechowicz.

7. Ms Poniatowska gave evidence that she had planned to start a new career in law, all her hopes and hard work over several years were crushed by the publication, she had been a hard-working and ambitious person, and, as a result of the publication, she suffered a relapse of depression and post-traumatic stress disorder, her health had really suffered and she was now unable to provide for her family. She gave evidence that the only steps she had taken to seek employment were to send the letters referred to above and that she had not received any response to any of the letters apart from a reply from the District Court.

8. Dr Czechowicz gave evidence by way of the tender of several expert reports as well as oral evidence. His qualifications and evidence are summarised in detail by the Judge. He had, at the time he gave evidence at trial, been practising as a psychiatrist for over 40 years and had given expert evidence on many occasions. Between 2007 and 2014, he saw Ms Poniatowska on about 30 or 40 occasions.

9. Dr Czechowicz in 2007 diagnosed Ms Poniatowska as suffering from Adjustment Disorder with Mixed Anxiety and Depressed Mood and Post-Traumatic Stress Disorder. He had been treating her since February 2007 and the first report by him that was tendered was a report in June 2008 for the purpose of the Hickinbotham litigation. He expressed the opinion that sexual harassment at Hickinbotham was the initial cause of her diagnosed psychiatric conditions (against a background of trauma caused by the death of her mother when she was two years old and her relocation to Australia).

10. Dr Czechowicz expressed the opinion that the Hickinbotham trial and appeal and the Centrelink proceedings, together with the associated publicity, caused an aggravation and continuation of Ms Poniatowska’s psychiatric conditions. However, in June 2011 Dr Czechowicz observed that her mental state had significantly improved, she was hopeful of obtaining further work and her anti-depressant medication was discontinued.

11. Dr Czechowicz gave evidence at the trial in August 2014. He expressed the opinion that she was suffering from Adjustment Disorder with Mixed Anxiety and Depressed Mood and Post-Traumatic Stress Disorder. He expressed the opinion that, while this had originally been caused by sexual harassment at Hickinbotham in 2005 and had waxed and waned, she was largely symptom-free by June 2011 and she then suffered a relapse because of publication of the story.

12. In a report dated 22 December 2011, Dr Czechowicz confirmed a diagnosis of depression, but thought that Ms Poniatowska had “in general” recovered from her Major Depressive Illness. He stated that Ms Poniatowska continued to suffer from chronic anxiety. Dr Czechowicz stated that Ms Poniatowska was not taking anti-depressants and was fit to hold a firearms licence. In his report dated 23 November 2012, Dr Czechowicz said that, when he saw Ms Poniatowska on 14 December 2011 for the purpose of providing a report concerning her fitness to hold a firearms licence, she was still relatively well because she believed that Channel Seven would concede her innocence and publish a retraction. However, in 2012 when this did not occur, her mental state deteriorated and he reinstituted her treatment with anti-depressant medication. Her symptoms included depressed mood, loss of interest in daily activities, tearfulness, feeling flat, impaired sleep, impaired capacity to deal with others and variable mood. The publication impaired her capacity for work, which was continuing. The prognosis was that, after the defamation case was resolved, she was likely to be able to return to work after some time, possibly of the order of two years.

13. Dr Czechowicz was cross-examined about Ms Poniatowska’s letters to potential employers. He said that he was not previously aware of them and they appeared contrary to her telling him in November 2012 that she felt unable to work and had lost confidence in the legal profession. It was put to him that, if he had known about the letters in 2012, it might have changed his opinion and he acknowledged that was possible but said that she still presented with the same symptoms so this may have been a desperate attempt at rehabilitation. He said that, even taking into account the letters, he adhered to his opinion that she was incapable of working due to her psychiatric condition.

14. The relevant findings of the Judge are:

    I find that the response of the defendants did aggravate Ms Poniatowksa’s pre‑existing psychiatric condition. The extent to which that occurred is difficult to determine precisely in view of the evidence of Dr Czechowicz that her pre-existing condition waxed and waned over time.

    …

    I find as follows in relation to the evidence of Dr Czechowicz. The publication on 26 October 2011 was not significantly affecting her mental health when he saw Ms Poniatowska on 14 December 2011. However, during 2012 her condition deteriorated. He attributed that to the action of Channel 7 in defending this claim. While Ms Poniatowska was plainly suffering already from significant mental health issues, I accept that the defence of her claim by Channel 7 would have exacerbated her pre-existing condition although the precise effect is difficult to determine because her condition fluctuated over time. The fact that Ms Poniatowska failed to inform Dr Czechowicz of her efforts, albeit unsuccessful, to gain employment and the qualification he attached to his evidence because of that fact, causes me not to be persuaded that the effect of the defendants’ conduct on her employment prospects was as serious as he had suggested. Furthermore, Dr Czechowicz’s evidence clearly established that the mental health issues that had been present since 2005 on a recurrent basis would limit the employment prospects of Ms Poniatowska in the legal profession. Thus, while the approach adopted by the defendants in response to Ms Poniatowska’s complaints about the publication would have to some extent exacerbated her condition, it had a relatively limited impact on her employment prospects. Moreover, the evidence of the employment expert, Mr Paul Burgess, indicates that for reasons unrelated to her mental health, Ms Poniatowska’s prospects of obtaining legal work were already poor. I have preferred his evidence to that of Mr Daryl Stillwell. Thus, I consider that the approach taken by the defendants had only a limited adverse effect on Ms Poniatowska’s prospects as a lawyer.

15. On the evidence of Dr Czechowicz, and the findings of the trial Judge, the publication of the defamation was one of a number of contributing factors to Ms Poniatowska’s psychological dysfunction after the publication of the story. Dr Czechowicz’s opinion was based on an acceptance that Ms Poniatowska was devastated by the publication of the story. That is a natural human reaction and it should be accepted that Ms Poniatowska was devastated by the publication. The defence of her action by Channel Seven exacerbated her condition, precisely because one of the contributing factors to it was the defamation. We accept that Ms Poniatowska’s major depression returned over time following the broadcast story because the psychological insult caused by its publication was not ameliorated by the making of the apology she expected. In those circumstances, Ms Poniatowska’s reaction to Channel Seven’s defence is not a novus actus interveniens. On the contrary, it is a foreseeable sequelae of the distress caused by the defamation.

    Causation: effect of publication on reputation

16. Ms Poniatowska’s case is also that publication of the story adversely affected her prospects of obtaining employment from employers in South Australia who became aware of the story.

17. If Ms Poniatowska had sought employment in Sydney or Perth, it is likely that a significant proportion of potential employers would have been aware of the story directly or indirectly. Even so, many potential employers would have been unaware of the story. Ms Poniatowska did not suggest in her evidence that she had any interest in moving or seeking employment interstate and her case did not extend to a loss in this respect.

18. It is likely that only a small proportion of potential employers in South Australia would have been aware of the story. It is likely that a few potential employers became aware of the story via the grapevine effect. The internet story was only available on a Channel Seven Today Tonight website for a relatively brief period between late October 2011 and January 2012.  

    Prospects of obtaining employment on the counterfactual

19. It is necessary to assess Ms Poniatowska’s prospects of obtaining employment on the hypothetical assumption that the story had not been published.

20. Ms Poniatowska called Mr Stillwell and Channel Seven called Mr Burgess to give expert evidence concerning Ms Poniatowska’s prospects in this respect. Mr Burgess gave evidence concerning Ms Poniatowska’s prospects of obtaining employment as a lawyer or as a contracts or commercial manager relying on her legal qualifications. The Judge preferred Mr Burgess’ evidence and assessment in respect of Ms Poniatowska’s prospects of obtaining employment as a lawyer over that of Mr Stillwell.

21. The Judge summarised the evidence of Mr Stillwell and Mr Burgess in detail. It is necessary only to refer briefly to the principal points. Mr Burgess was admitted as a lawyer in South Australia in 1994 or 1995; worked for a law firm for three and a half years; and then worked in management and human resources roles before founding a legal recruitment firm in 2006. He is based in Melbourne but has a national and international practice and has maintained a focus on Adelaide as well as Melbourne.

22. Mr Burgess addressed Ms Poniatowska’s prospects of obtaining employment as a lawyer in the commercial field because she expressed interest in that field. He distinguished between three levels of law firms: “tier one” law firms; “second tier, mid-tier or strong boutique” law firms; and “smaller” law firms. His assessment of Ms Poniatowska’s prospects of obtaining employment as a lawyer was that they were extremely poor, rating her prospects lowest for first tier law firms followed by second or mid-tier or strong boutique law firms.

23. Mr Burgess said that the starting salary of a commercial lawyer in a small to mid-tier firm was in the range between $45,000 and $55,000 (including superannuation) per annum, increasing to a range of between $50,000 and $75,000 after two years and to a range of between $70,000 and $110,000 after five years (up to 10 years after commencement as a lawyer). He identified a series of higher rates for employment in a first-tier law firm. Mr Stillwell identified generally higher salary levels across the board (also varying depending on the tier of the law firm and years of experience). Both experts referred to higher rates for partners and equity partners.

24. Mr Burgess said that, when he gave his oral evidence in 2014 and since Ms Poniatowska qualified as a lawyer in 2011, the legal market for law graduates in South Australia (and in the rest of Australia) was relatively poor, with a significant percentage of graduates not finding employment as a lawyer. Mr Stillwell agreed with this assessment.

25. Ms Poniatowska’s academic transcript from the University of Adelaide shows that she received 32 units (out of a total of 83 units) towards her law degree through recognition of her degree from Poland. She did not obtain any distinctions. She obtained two credits (between 65 and 74 marks) with marks of 66 and 70. She withdrew from one subject in 2007 and two subjects in 2008. She obtained 13 passes with marks ranging from 51 to 63. Mr Burgess expressed the opinion that Ms Poniatowska would not obtain an interview at a first tier, or second or mid-tier or strong boutique law firm based on her academic record. He expressed the opinion that academic record was not such a critical factor at a smaller firm but was still one of the key factors under consideration.

26. Ms Poniatowska’s curriculum vitae did not disclose that she had worked as a clerk or obtained work experience at a law firm. Mr Burgess expressed the opinion that this would be a negative feature for a potential law firm employer. He said that most legal graduates obtaining employment in commercial roles were not brought into law firms as lateral hires but joined the firm after undertaking a clerkship or work experience. In addition, Ms Poniatowska’s lack of work experience entailed that she could not provide a referee with whom she had obtained such work experience to recommend her.

27. Ms Poniatowska’s curriculum vitae showed Mr Cordeaux and a lecturer at the University of Adelaide as referees (as well as her solicitor in the litigation). It did not show anyone from her most recent employers, AV Jennings or Hickinbotham, as referees. Mr Burgess expressed the opinion that this would be a negative feature for a potential law firm employer.

28. Mr Burgess said that Ms Poniatowska’s curriculum vitae did not display a significant volume of networking or social activities or list any associations, clubs or memberships that would be likely to appeal to a law firm employer and did not show that she took part in many extra-curricular activities at law school. Mr Burgess expressed the opinion that this would be a negative feature for a potential law firm employer.

29. Mr Burgess expressed the opinion that, while he did not condone it, the fact that Ms Poniatowska completed her studies as a mature aged student (aged 45 when she was admitted as a lawyer) and the fact that she is not originally from Adelaide were negative features for a potential law firm employer.

30. Mr Burgess referred to Ms Poniatowska’s results of psychological testing undertaken by Mr Stillwell. They showed a very low (10^th percentile) result for verbal intelligence and relatively low result (43^rd percentile) for quantitative intelligence in standard time but Mr Stillwell said that it was standard practice to allow an additional 10 minutes for persons for whom English is a second language and after that time Ms Poniatowska achieved improved results of 46^th and 63^rd percentiles respectively. She achieved a better result (67^th percentile) for abstract intelligence for which no extra time was (generally) allowed. However, the Judge found that it is likely that these results were adversely affected by her psychiatric condition and in addition Mr Burgess said that it was uncommon for law firms to administer psychological testing. This factor can therefore be discounted.

31. Mr Burgess’ assessment of Ms Poniatowska’s letters to potential employers and her curriculum vitae was that they exhibited a “poor level of substantive quality”. To some degree, this is explicable by her psychiatric condition, and in particular her depression. While this remains a factor, we do not regard it as a major factor.

32. Mr Burgess undertook a Google search of Ms Poniatowska in March 2013, which disclosed media articles concerning the Hickinbotham and Centrelink litigation. He expressed the opinion that this would be a negative feature for a potential law firm employer. However, he did not suggest that there was a universal practice for law firms to undertake such a search.

33. Ms Poniatowska challenges the Judge’s acceptance of the evidence of Mr Burgess in preference to that of Mr Stillwell insofar as they expressed opinions concerning Ms Poniatowska’s prospects of obtaining employment as a lawyer. Mr Stillwell did not consider the factors identified by Mr Burgess to be as detrimental as Mr Burgess considered and identified some positive countervailing factors. However, while Mr Stillwell was more positive in his assessment of Ms Poniatowska’s prospects, he did not assess them as high or good.

34. Mr Stillwell has very impressive qualifications in the recruitment field generally. He is a qualified psychologist and has practised as a principal in recruiting and human resources firms since 1987. He is based in Adelaide. He interviewed Ms Poniatowska (whereas Mr Burgess did not). However, while his experience includes legal recruiting, unlike Mr Burgess, he does not specialise in that field and it comprises only a minority (five to ten per cent) of his overall experience.

35. We agree with the assessment of the Judge insofar as he generally preferred the evidence of Mr Burgess over that of Mr Stillwell in relation to Ms Poniatowska’s prospects of obtaining employment as a lawyer. Mr Burgess’ reasons and reasoning are cogent and are more persuasive than those of Mr Stillwell in this respect. On an objective assessment, Ms Poniatowska’s prospects of obtaining employment with a first tier, or second or mid-tier or strong boutique law firm would, on the hypothetical assumption, have been remote. The prospects of obtaining employment with a smaller law firm cannot be discounted, but nevertheless would have been relatively small. The Judge did not make a specific finding concerning salary levels. In view of Mr Burgess’ specialisation in the legal market and on an assessment of his evidence overall, we prefer his evidence in relation to salary levels.

1. As noted above, Mr Burgess also addressed Ms Poniatowska’s prospects of employment as a contracts or commercial manager (relying at least to some extent on her legal qualifications). He assessed her prospects in this respect as very poor. This was due to similar factors to those in respect of a law firm. Mr Stillwell said that the remuneration of a senior commercial manager for a large organisation such as Santos, or an in-house legal counsel, was in the range between $250,000 and $600,000 per annum. Mr Burgess agreed with this range. The Judge did not specifically address this question. We accept Mr Burgess’ assessment for reasons similar to those in respect of his assessment relating to employment at a first-tier law firm.

2. Mr Burgess did not address Ms Poniatowska’s prospects of employment in the fields in which she has worked. Her employment background involved either sales (radio station 5DN, Hickinbotham and AV Jennings) or administration or advice (Department of Immigration and Multicultural and Indigenous Affairs, Department of Defence and University of South Australia). Our assessment is that Ms Poniatowska would have had relatively higher prospects of obtaining employment in these fields than as a lawyer or as a contracts or commercial manager. However, she still would have faced similar types of negative features, such that her prospects of obtaining such an employment could only be assessed as modest.

3. Based on Ms Poniatowska’s level of earnings at Hickinbotham and AV Jennings, our assessment is that the net remuneration (including superannuation and deducting income tax) that Ms Poniatowska would have earned if she had been able to obtain employment would have been in the vicinity of $75,000 per annum.

   Publication of manuscript

4. Ms Poniatowska claimed damages for loss of the opportunity to publish her manuscript What Does Not Kill You Makes You Stronger. The Judge found, based on Ms Rowe’s evidence, that the rejection by New Holland Publishers of the manuscript for publication was not caused by the story. The Judge did not make a specific finding concerning the assessment of any damages in respect of the non-publication of the manuscript more generally.

5. Ms Poniatowska failed to prove that publication of the story caused, directly or indirectly, the non-publication of her manuscript. In any event, she failed to prove a sufficient prospect that publication would have produced any financial return to her. We disregard her claim in this respect.

   Assessment of damages

6. In simple and straightforward loss of opportunity cases, it is possible to make a mathematical assessment by reference to the value to the plaintiff if the opportunity had materialised multiplied by the percentage chance that the opportunity would materialise. In other cases, the inherent difficulties of the assessment entail that it is only possible to make a holistic assessment of the value of the loss of opportunity. Some cases fall between these two extremes.

7. In the present case, it is only possible to make a broad-axe holistic assessment of the economic loss caused to Ms Poniatowska by the publication of the story.

8. It is necessary, first, to identify the adverse circumstances caused by the defamatory publication which impacted adversely on Ms Poniatowska’s earning capacity. The first consequence was the exacerbation of her psychological dysfunction. Plainly enough, Ms Poniatowska’s psychological dysfunction did not prevent her from making many applications for employment, but they were all unsuccessful. We accept that her psychological condition, as exacerbated by the story, was one of the reasons for the poor presentation of the applications. Moreover, Ms Poniatowska’s condition would have diminished her insight into the need to improve the presentation of the applications, and her capacity to seek assistance, professional or personal, to improve these applications. Ms Poniatowska’s condition is also likely to have diminished her motivation to seek other forms of employment to which she may have been suited. Finally, Ms Poniatowska’s psychological condition is also likely to have diminished her motivation and capacity to seek employment by more effective, direct and personal job-seeking.

9. It was Dr Czechowicz’s opinion that Ms Poniatowska would be able to return to work two years after the completion of the litigation. Dr Czechowicz’s opinion on Ms Poniatowska’s incapacity must be approached cautiously because he did not know that Ms Poniatowska had actively applied for work in 2012, and because of the absence of any close investigation in his reports or his testimony of the way in which her condition would preclude her from undertaking particular employment.

10. The Court was informed, by consent, that Ms Poniatowska is yet to find employment. However, no evidence has been led of her attempts to do so and to what extent, if at all, her psychological condition has limited her capacity to find work.

11. We proceed on the basis that the exacerbation of Ms Poniatowska’s condition significantly affected her ability to find employment for some years from early 2012.  We accept that Ms Poniatowska’s legal qualifications were poor, however her previous work experience added to her prospects of obtaining employment in a smaller law firm but it must be accepted that those opportunities were limited and highly competitive.  Ms Poniatowska’s law degree may also have enhanced her prospects to obtain employment in administrative or sales roles.

12. We find that the exacerbation of her condition by the publication and its effects on her earning capacity have, by now, dissipated.

13. The second consequence is that some potential employers may have heard about the story and for that reason would not employ, or be less likely to employ, Ms Poniatowska.

14. The assessment of the economic loss caused by the exacerbation of Ms Poniatowska’s psychological condition and the damage to her reputation necessarily involves the balancing of competing contingencies. We assess Ms Poniatowska’s economic loss on the basis that her employment in the period after her graduation and admission to practice was interrupted and delayed by the publication of the stories. The interruption and delay in obtaining employment is likely, particularly having regard to Ms Poniatowska’s age, to have diminished her prospects of advancement in any employment.   

15. In all of the circumstances, we assess the loss of Ms Poniatowska’s earning capacity in the sum of $80,000.

    Conclusion

16. We assess damages at $200,000 for non-economic loss and $80,000 for economic loss, making a total of $280,000.

17. We will hear the parties concerning interest and costs.