Poniatowska v Channel Seven Sydney Pty Ltd (No 4) - [2021] SASCFC 32

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
PONIATOWSKA v CHANNEL SEVEN SYDNEY PTY LTD (No 4)
[2021] SASCFC 32
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, the Honourable Justice Blue and the Honourable Justice Nicholson)
9 August 2021

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS
In September 2019 the Court delivered reasons for judgment allowing an appeal by the appellant against a judgment dismissing her defamation action against the respondents.
The Court heard submissions on the assessment of damages. In January 2020 the Court assessed damages for non-economic loss at $200,000, assessed damages for economic loss at $80,000 and rejected a claim for aggravated damages: Poniatowska v Channel Seven Sydney Pty Ltd (No 2) [2020] SASCFC 5.
In March 2021 the appellant applied for an order setting aside the order assessing damages and substituting a higher award of damages for economic loss and an award of aggravated damages.
Held:
1Assuming without deciding that the Court has power under rule 186.1 of the Uniform Civil Rules 2020 (SA) to set aside a judgment on appeal if the Court misapprehends a material fact or the law (at [16]), the appellant has not established that the Court misapprehended a material fact or the law in the various respects asserted by the appellant (at [27], [31], [34], [42], [43], [47]-[49], [52], [54], [57], [58], [61]-[65], [71]-[75]).
2Application dismissed (at [77]).

Autodesk Inc v Dyason (1993) 176 CLR 300; McAdam v Robertson (1999) 73 SASR 360; McAdam v Robertson (No 2) [2001] SASC 206; Smith v New South Wales Bar Association (1992) 176 CLR 256; Poniatowska v Channel Seven Sydney Pty Ltd (No 2) [2020] SASCFC 5; Wagner v Nine Network Australia Pty Ltd [2019] QSC 284, considered.

PONIATOWSKA v CHANNEL SEVEN SYDNEY PTY LTD (No 4)
[2021] SASCFC 32

Full Court: Kourakis CJ, Blue and Nicholson JJ

THE COURT: In September 2019 the Court delivered reasons for judgment allowing 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.
The trial Judge had not assessed damages but had made findings of fact relevant to damages. Ms Poniatowska invited the Court to assess damages itself rather than remit the assessment to a single Judge. Channel Seven invited the Court to remit the assessment to the trial Judge. The Court decided to assess damages itself.
The Court heard submissions on damages. Ms Poniatowska adduced limited further evidence at the hearing in addition to the evidence adduced at trial before the trial Judge.
In January 2020 the Court delivered a second set of reasons for judgment assessing damages for non-economic loss at $200,000, assessing damages for economic loss (loss of earning capacity) at $80,000 and rejecting a claim for aggravated damages.[2]
[2] Poniatowska v Channel Seven Sydney Pty Ltd (No 2) [2020] SASCFC 5.
In May 2020 the Court delivered a third set of reasons for judgment on interest and costs and made final orders determining the appeal.[3] The orders included that, in lieu of the original judgment dismissing the claim, judgment be granted in favour of Ms Poniatowska against Channel Seven for $346,700 inclusive of pre-judgment interest to 12 May 2020.
[3] Poniatowska v Channel Seven Sydney Pty Ltd (No 3) [2020] SASCFC 37.
On 15 May 2020 the Deputy Registrar entered a formal order by the Court dated 13 May 2020 to the effect set out in the previous paragraph.
In June 2020 Ms Poniatowska filed in the High Court an application for special leave to appeal against the damages award, complaining of the assessment of damages for economic loss and rejection of the claim for aggravated damages.
In October 2020 the High Court dismissed the application for special leave to appeal, stating that an appeal to the High Court would enjoy no prospect of success.[4]
[4] Poniatowska v Channel Seven Sydney Pty Ltd [2020] HCASL 212.
On 31 March 2021 Ms Poniatowska filed an interlocutory application, supported by an affidavit sworn by her on 30 March 2021, seeking reopening of our reasons for judgment in Poniatowska v Channel Seven Sydney Pty Ltd (No 2), setting aside of the orders made on 13 May 2020 and substitution of a higher award of damages for economic loss and an award of aggravated damages.
Power to set aside or vary judgment
Ms Poniatowska in her interlocutory application relies on rule 186.1 of the Uniform Civil Rules 2020 (SA) (the Rules) and the inherent jurisdiction of the Court as sources of power to set aside.
In her written submissions, Ms Poniatowska cites McAdam v Robertson[5] and McAdam v Robertson (No 2)[6] in support of her contention that this Court has power to set aside a previous appellate judgment.
[5] [1999] SASC 169, (1999) 73 SASR 360.
[6] [2001] SASC 206.
In McAdam v Robertson[7] Doyle CJ (with whom Bleby and Martin JJ agreed) quoted the following passage from the judgment of Brennan, Dawson, Toohey and Gaudron JJ in Smith v New South Wales Bar Association[8]:
It has long been the common law that a court may review, correct or alter its judgment at any time until its order has been perfected. ... The power is discretionary and, although it exists up until the entry of judgment, it is one that is exercised having regard to the public interest in maintaining the finality of litigation. Thus, if reasons for judgment have been given, the power is only exercised if there is some matter calling for review. And there may be more or less reluctance to exercise the power depending on whether there is an avenue of appeal. It is important that it be understood that these considerations may tend against the re-opening of a case, but they are not matters which bear on the nature of the review to be undertaken once the case is re-opened, as this case was.
and the following passage from the judgment of Mason CJ in Autodesk Inc v Dyason[9]:
These examples indicate that the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law. As this Court is a final court of appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment. However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases.
[7] (1999) 73 SASR 360.
[8] (1992) 176 CLR 256 at 265.
[9] (1993) 176 CLR 300 at 302-303.
Doyle CJ said:
I consider that the observations of Mason CJ and Brennan J in Autodesk provide reliable guidance in relation to the exercise of the jurisdiction. I refer in particular to their observations that the jurisdiction is not exercised to enable a party to improve upon the argument that it has put, or merely to demonstrate that a decision is wrong. However, I proceed on the basis that a misapprehension in a significant respect as to the facts or the law may be a basis for the exercise of the jurisdiction, but in the light of what I have just said that cannot be a misapprehension which would be demonstrated only by persuading the Court to change its mind on something that it had already decided. I also proceed on the basis that the jurisdiction will not necessarily be exercised in the same way by an intermediate court of appeal and by a final court of appeal, although I do not attempt to identify any relevant distinctions here. I merely make the point that, in the case of the Full Court, the ability to apply to the High Court for special leave to appeal is a relevant matter that will tend to confine the exercise of the jurisdiction.[10]
[10] At 38.
In each of Smith v New South Wales Bar Association, Autodesk Inc v Dyason and McAdam v Robertson, the order made by the appellate court had not been perfected and this was identified as essential to the inherent jurisdiction of the Court to set aside its order disposing of the appeal. However, in the present case, the orders made by this Court disposing of the appeal were perfected by a formal order dated 13 May entered on 15 May 2020.
Rule 186.1 of the Rules provides:
186.1—Power to set aside or vary judgment
(1)     The Court may at any time correct an error in a judgment.
(2)     The Court may, if satisfied that the interests of justice so require—
(a)     vary a judgment;
(b)     set aside a judgment and reopen a proceeding;
…
We assume, without deciding, that this Court has power under rule 186.1(2) to set aside or vary a judgment if it is demonstrated that the Court made a misapprehension in a significant way of the facts or the law which affected the disposition of the appeal. Rule 186.1(2) confers a discretion on the Court and, if such a misapprehension is demonstrated, various factors will be relevant to the exercise of the discretion, including any delay by the applicant.
The hearing
Ms Poniatowska’s application was listed for hearing on 4 June 2021.
Before the hearing, Ms Poniatowska filed lengthy written submissions. They made various complaints about the reasoning in our second set of reasons for judgment. They did not generally articulate whether Ms Poniatowska was contending that this Court misapprehended a fact, misapprehended the law or disagreed with our reasoning or conclusions.
At the hearing, Ms Poniatowska said that she was not prepared to make oral submissions on her application. The Court directed that by 23 June 2021 Ms Poniatowska file written submissions identifying the paragraph in the judgment of each asserted error as to loss of earnings or aggravated damages, identifying the evidence that she contends shows that there was a misapprehension of fact and, if asserted to be an error of law, identifying exactly what that error was.
The Court indicated that it would consider those written submissions; and if the Court was of the view that there was something to answer, it would call on the respondents to provide submissions in response. The Court would then consider the submissions, whether just Ms Poniatowska’s written submissions or both parties’ written submissions, and may decide the application on the papers. If considered necessary, the Court would invite the parties to speak to the written submissions.
Ms Poniatowska filed written submissions in accordance with those directions on 23 June 2021. These reasons address the misapprehensions of fact or law asserted by Ms Poniatowska in those written submissions. By way of overview, many of those submissions were either not made by her in the submissions made by her Senior Counsel at the hearing in relation to the assessment of loss or were not put in the manner that Ms Poniatowska now puts them.
Economic loss
Ms Poniatowska contends that the Court made misapprehensions of fact and law in the course of assessing damages for her economic loss at $80,000.
Period of incapacity
Ms Poniatowska contends that the Court made five misapprehensions of fact in relation to the period of her incapacitation from employment caused by the defamatory publication by Channel Seven.
Period unemployed
Ms Poniatowska refers to paragraph [39] of our reasons for judgment in relation to damages, in which we said:
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.[11]
[11] Emphasis added.
The affidavits to which reference was made were affidavits sworn by Ms Poniatowska on 4 and 22 October 2019.
Ms Poniatowska contends that the Court misapprehended the fact in the words italicised for emphasis in the extract above from our reasons for judgment. She contends that if the Court had taken proper consideration of the evidence in her two affidavits (and certain other evidence), the Court would have come to a different conclusion, namely the conclusion that she was unemployed for the period January 2012 until the hearing of the appeal.
This contention is misconceived for two reasons. First paragraph [39] was part of six paragraphs appearing under the heading “Evidence relevant to damages” and was a summary of the evidence relevant to damages; it was not a finding or conclusion of fact. Secondly, our assessment of damages proceeded on the factual basis that Ms Poniatowska had not in fact been employed from January 2012 onwards.
Evidence of Dr Czechowicz
Ms Poniatowska refers to paragraph [165] of our reasons for judgment, in which we said:
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.[12]
[12] Emphasis added.
Ms Poniatowska contends that the Court misapprehended two facts in that paragraph.
First Ms Poniatowska contends that the Court made a factual error in the first italicised passage in saying that Dr Czechowicz did not know that Ms Poniatowska had actively applied for work in 2012. Ms Poniatowska contends that this finding was inconsistent with paragraph [134] of our reasons for judgment, in which we said:
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.
When the second sentence of paragraph [165] is read as a whole, in the context of our reasons as a whole, it is clear that a reference to Dr Czechowicz not knowing that Ms Poniatowska had actively applied for work in 2012 was a reference to his knowledge when he saw Ms Poniatowska and when he prepared his expert reports. It was not a reference to what he learnt for the first time during cross-examination, to which we had referred at paragraph [134]. The relevance of our observation at paragraph [165] was that his contemporaneous opinions formed while he was treating Ms Poniatowska were formed under the erroneous belief that she was not applying for employment and he was surprised that she had not informed him that she was. This was coupled with the fact that, when informed during cross-examination of the employment applications, although as we had observed he said that he adhered to his opinions, there was no close investigation by him why, particularly in light of those applications, her psychiatric condition precluded her from undertaking particular employments.
Secondly Ms Poniatowska contends that the Court made a factual error in the second italicised passage in saying that there was an absence of any close investigation by Dr Czechowicz in his reports or his testimony of the way in which her condition would preclude her from undertaking particular employment.
Ms Poniatowska refers to certain passages contained in Dr Czechowicz’ report dated 23 November 2012 in which he expressed the opinion that the trauma caused by the defamatory program impaired and continue to impair her capacity for work and she should be able to return to work possibly two years or more after resolution of the defamation case. She refers to certain passages from Dr Czechowicz’ evidence in chief and cross-examination in which he expressed a similar opinion. She also refers to an answer given by Dr Czechowicz in cross-examination that, if he had known that she made those applications, he would have discussed them with her in detail and discussed about her chances of actually getting a job from submitting those applications.
Ms Poniatowska’s contention is not that we made a misapprehension of fact within the concept described by the High Court and this Court in the decisions referred to above. Rather, she merely takes issue with the evaluative judgment that we made that the evidence given by Dr Czechowicz did not involve a close investigation of the way in which her condition would preclude her from undertaking particular employment. In any event, we adhere to that evaluation. The passages quoted by Ms Poniatowska from Dr Czechowicz’ report and his oral evidence exemplify the lack of such a close investigation. Dr Czechowicz did not identify specifically what aspect of Ms Poniatowska’s condition precluded her from undertaking employment as a lawyer, as a commercial manager, as a salesperson or in any other particular employment or how it so precluded her. This was an observation about the weight to be afforded to Dr Czechowicz’ opinion about the prognosis. We observed also that no evidence was adduced from Dr Czechowicz about Ms Poniatowska after 2014.
Attempts to find work
Ms Poniatowska refers to paragraph [166] of our reasons for judgment, in which we said:
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.[13]
[13] Emphasis added.
Ms Poniatowska contends that the Court made a factual error in the passage italicised above in stating that it was by consent that the Court was informed that Ms Poniatowska is yet to find employment because no consent was ever given that she is yet to find employment. This contention is misconceived. First, senior counsel for Ms Poniatowska informed the Court that Ms Poniatowska had not worked since publication of the defamatory broadcast and senior counsel for Channel Seven accepted this. Secondly, and in any event, the Court proceeded to assess damages on the basis that in fact Ms Poniatowska had not worked since the broadcast.
Ms Poniatowska contends that the Court made a factual error in the passage italicised above in stating that no evidence was led of her attempts to find employment and to what extent, if at all, her psychological condition has limited her capacity to find work. Ms Poniatowska refers to evidence led at trial summarised in a document entitled “Appellant’s Notes Regarding Damages and Aggravation of Damages to the Consolidated Damages Appeal Submissions” provided to the Court on 7 November 2019. This document, provided in response to an invitation by the Court to identify evidence at trial in relation to employment, summarised the evidence given at trial by Ms Poniatowska and Dr Czechowicz. In the passage from our reasons identified by Ms Poniatowska, we were not referring to evidence given at trial in 2014. We were referring to the absence of evidence over the ensuing five years.

As observed above, Ms Poniatowska swore affidavits on 4 and 22 October 2019. The express purpose of the 4 October affidavit was to support an application (not ultimately pursued) for an interim award of damages of $150,000. The affidavit stated that Ms Poniatowska continued to be unemployed and continued to be unable to meet her mortgage payments and everyday expenses in support of the application for an interim award. Apart from a reference to continuing to receive treatment from Dr Czechowicz, the affidavit itself did not otherwise address what had occurred between 2014 (when Ms Poniatowska gave evidence at trial) and 2019 (when the Court was being urged by Ms Poniatowska to assess damages). At paragraphs 12 and 13, Ms Poniatowska referred to seeing Dr Czechowicz in August and October 2019 and referred to short reports by him that she exhibited to her affidavit. However, she did not ultimately tender those reports, adduce any evidence from Dr Czechowicz or press the tender of paragraphs 12 and 13 of her affidavit as described below.
The evident purpose of the 22 October 2019 affidavit was to depose to the distress suffered by Ms Poniatowska as a result of what she described as “false accusations and lies” and distress-causing conduct by Channel Seven since the Court delivered its first reasons for judgment on 27 September 2019. She reiterated that she had had no employment since 2014 and its consequences for her but did not otherwise address what had occurred between 2014 and 2019.
In response to Ms Poniatowska’s two affidavits, Channel Seven foreshadowed that it would object to the tender of Dr Czechowicz’ two short reports and, if their tender was pursued, would seek to cross-examine Dr Czechowicz and would also seek to have Ms Poniatowska examined by a psychiatrist chosen by Channel Seven.
At a hearing on 28 October 2019, senior counsel for Ms Poniatowska informed the Court that he had been instructed by Ms Poniatowska not to press adducing any further evidence from Dr Czechowicz. This was said to be for two reasons: first, to avoid the delay that would inevitably be occasioned if she sought to adduce further evidence from Dr Czechowicz; and secondly due to the state of health of Dr Czechowicz. Senior Counsel also informed the Court that he had been instructed not to press any of the paragraphs of Ms Poniatowska’s affidavits to which Channel Seven objected.
As a result of Ms Poniatowska’s instructions to her senior counsel, no evidence was adduced about any attempts by her to seek employment or other remuneration between 2014 and 2019, nor was any evidence adduced from Dr Czechowicz since he gave evidence at the trial in September 2014 or from another psychiatrist. Ms Poniatowska’s contention that the italicised passage at [35] above involves a misapprehension of fact is misconceived.
Conclusion
Ms Poniatowska contends that the five alleged misapprehensions of fact impugn our finding that the exacerbation of Ms Poniatowska’s condition significantly affected her ability to find employment for some years from early 2012 and by 2019 that exacerbation and its effects on her earning capacity had dissipated. Ms Poniatowska has failed to establish any misapprehensions of fact. In light of her decision not to adduce evidence from Dr Czechowicz or another psychiatrist concerning her condition after 2014 or to give evidence herself beyond the fact that she had not in fact been engaged in employment since 2014, we adhere to our finding.
Prospects of employment as contracts or commercial manager
Ms Poniatowska contends that the Court erred in its assessment of the prospects of obtaining employment as a contracts or commercial manager by failing to take into account two matters.
Ms Poniatowska refers to paragraph [157] of our reasons for judgment, in which we said:
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.
The first matter that Ms Poniatowska contends that the Court failed to take into account is that she had relevant experience in contracts and commercial management positions because her last three employment positions were as an “Account Manager” at Radio 5DN, a “Building Consultant, Contract Building” at Hickinbotham Homes and “Sales Consultant – Contract Building” with AV Jennings Homes and her duties included preparing, managing, executing and signing contracts valued in the several hundred thousands of dollars.
In general, a contention that a court failed to take into account a fact will not amount to a “misapprehension of fact” within the meaning of that phrase used by the High Court and this Court in the decisions cited above. Rather, it is a complaint to be made on appeal. We accept that in a rare case a primary fact not taken into account might be so critical that it results in a misapprehension of a secondary fact but this will not often be the case.
Ms Poniatowska’s employment at Radio 5DN and at Hickinbotham Homes and AV Jennings Homes was as a salesperson, selling radio advertising and house and land packages respectively. Little evidence was adduced at trial concerning her preparation of contracts and it is clear that it only entailed completing the variables in standard form contracts rather than negotiating their substantive terms. Little evidence was adduced concerning her administration of the contracts and it is clear that the substantive administration was undertaken by others. Ms Poniatowska’s involvement in the contracts was only incidental to the selling. The job positions of contracts or commercial managers described by Mr Burgess in his evidence are entirely different to Ms Poniatowska’s employment. We did not overlook that employment (to which we referred at paragraphs [8] to [12]) but it had extremely limited relevance to her prospects of obtaining employment as a contracts or commercial manager.
The second matter that Ms Poniatowska contends that the Court failed to take into account was that, apart from her qualifications as an admitted legal practitioner, she also holds business management qualifications (Master of Business (Administrative Management) and Graduate Diploma of Business (Administrative Management)). We did not overlook those qualifications. They are referred to at paragraphs [5] and [9] of our reasons for judgment.
Prospects of employment in sales or administration
Ms Poniatowska contends that the Court erred in its assessment of her prospects of obtaining employment in sales or administration by failing to take into account two matters.
Ms Poniatowska refers to paragraph [158] of our reasons for judgment, in which we said:
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.
The first matter that Ms Poniatowska contends that the Court failed to take into account is that, apart from her qualifications as an admitted legal practitioner, she also had other relevant qualifications, namely a Master of Business (Administrative Management). We have addressed this above.
The second matter that Ms Poniatowska contends that the Court failed to take into account is that negative features applying to seeking employment as a lawyer were not similar types of features to those applying to sales or administration.
Beginning at paragraph [142], we summarised the evidence given by Mr Burgess, whose evidence was generally preferred by the trial Judge and this Court over the evidence given by Mr Stillwell. Mr Burgess in his evidence identified numerous negative features applying in respect of attempts by Ms Poniatowska to obtain employment. We explicitly recognised that they did not apply to the same extent in respect of sales or administration positions as they applied in respect of legal or contracts or commercial manager positions by stating that Ms Poniatowska would have had higher prospects of obtaining employment in the former fields. However, there remained negative features common to both fields of employment. There was no relevant misapprehension of fact.
Level of Ms Poniatowska’s income
Ms Poniatowska contends that the Court erred in its assessment of her earning capacity by failing to take into account two matters.
Ms Poniatowska refers to paragraph [159] of our reasons for judgment, in which we said:
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.
The first matter that Ms Poniatowska contends that the Court failed to take into account is that her earnings were commission-based; and, although her earnings in her first year at Hickinbotham Homes were $82,000, that was negatively impacted by cancellation by Hickinbotham of contracts worth $30,000 in commission caused by harassment and discrimination, her work efficiency was negatively affected by harassment and discrimination, and she would have achieved greater earnings in later years after establishing skills and a base. Ms Poniatowska does not identify any evidence at trial relating to these matters and the primary emphasis, although not exclusive, at trial was on her loss of opportunities to work as a lawyer or to use her legal skills. Ms Poniatowska contends that her earnings for the subsequent year should have been assessed at $250,000 and for following years up to $500,000 per year. There was no basis in the evidence for an assessment that Ms Poniatowska had an earning capacity in sales positions in that vicinity. There was limited evidence adduced on which to make an assessment and, in making our assessment, we did not misapprehend relevant facts.
The second matter that Ms Poniatowska contends that the Court failed to take into account is that she had a Master of Business (Administrative Management). We have addressed this above.
Alleged errors of law
Ms Poniatowska contends that the Court erred in its assessment of her economic loss by not applying the correct legal principles to the assessment of causation and loss of opportunity in relation to economic loss.
Ms Poniatowska refers to the well-established principle that causation can be established without the defendant’s conduct being the sole cause, its being sufficient that it be a cause (subject to application of the common sense test).[14]
[14] March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 509 per Mason CJ, 524 per Deane J and 530 per McHugh J applied in the context of defamation in Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37, (1998) 193 CLR 519 at [177]-[178] per Kirby J.
Ms Poniatowska contends that there was no reason to reject the opinion expressed by Dr Czechowicz in his November 2012 report (exhibit P33) that she was only likely to be able to return to work after some time, possibly in the order of two years or more after the proceeding was finalised. We have addressed this above. No evidence was adduced by Ms Poniatowska from Dr Czechowicz or another psychiatrist concerning her psychiatric condition after 2014.
Ms Poniatowska contends that a finding as to the duration of her incapacity to work as a result of the defamatory publication is to be made on the balance of probability as part of findings as to causation rather than on an assessment of possibilities as part of a loss of opportunity assessment, the Court erred in not finding that she would be incapacitated for two years after the proceeding was finalised, and the Court therefore made a misapprehension of law. However, a court can only do the best that it can when there is limited evidence, particularly when a plaintiff does not adduce evidence available to her. Our assessment as to the duration of the relevant incapacity was made on the balance of probabilities, albeit it was difficult to be more precise than that it had lasted for several years after the defamatory publication.
Ms Poniatowska contends that the Court should have concluded that the most probable outcome was that she would work in the fields in which she had previously worked and the appropriate projection of her earnings was $250,000 per annum in the second year of her employment, adjusted thereafter at five per cent per annum. However, leaving aside the fact that there was no adequate basis in the evidence for such an assessment (addressed above), as a matter of law it is clear that the hypothetical scenario is to be assessed as a matter of possibilities as part of the loss of opportunity assessment rather than on the balance of probability as part of the causation assessment.
Ms Poniatowska contends that the Court erred by not taking into consideration the principle that “you must take your victim as you find them”, including the “eggshell skull rule” and accordingly, even if she had pre-existing conditions or disadvantages in the marketplace, Channel Seven are responsible for paying for the total loss. This submission confuses two separate matters. It is true that the mere fact that Ms Poniatowska had a pre-existing psychiatric condition or weakness does not prevent Channel Seven’s conduct being a cause of an exacerbation of that psychiatric injury and the exacerbation being a cause of a loss of capacity to work (and we proceeded on this basis in our reasons for judgment). However, when it comes to assessing what hypothetically would have occurred if Channel Seven had not engaged in the relevant conduct, it is obviously necessary to have regard to Ms Poniatowska’s pre-existing condition (without exacerbation). There was no error of law or misapprehension as to the law in our adopting this approach.
Conclusion
Ms Poniatowska has failed to establish that we made a misapprehension of fact or law in the course of assessing damages for economic loss.
Aggravated damages
Ms Poniatowska contends that the Court made errors of law in the course of concluding that an entitlement to aggravated damages had not been established.
Ms Poniatowska refers to paragraphs [57] to [59], in which we said:
In Triggell v Pheeney, 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.
In Bauer Media Pty Ltd v Wilson (No 2), 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.
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.[15]
[15] Footnotes omitted.
Ms Poniatowska contends that it was not necessary for her to demonstrate that Channel Seven’s conduct was not engaged in subjectively in good faith; it is sufficient if the conduct is objectively and reasonably assessed as unjustifiable even if done in good faith. Ms Poniatowska cites in support of this proposition Wagner v Nine Network Australia Pty Ltd,[16] in which Applegarth J said:
The most that can be reasonably inferred is that the defendants hoped to enlist the same evidence which was to be relied upon by the defendants in the Harbour Radio case. Any fair or objective assessment of that evidence would have revealed that the prospects of succeeding upon it were poor. This conclusion is not a case of hindsight bias, based upon the emphatic rejection of the Harbour Radio truth defence by Flanagan J. It is based, in part, upon the fact that the GFCI report was a forensic examination of the issue which demonstrated that the quarry wall did not cause the Grantham disaster. The defendants in this case have not shown that they had reasonable grounds to suppose that they had sufficient evidence to prove the truth of the imputations in the face of the evidence produced at the GFCI. However, even if it is supposed that the defendants believed that they would be able to obtain reasonable evidence to support their plea and that the evidence would be sufficient to prove such serious allegations at trial, there was no prejudice to them in waiting a few weeks to see how that evidence stood up to forensic examination at the Harbour Radio trial or to wait a few months for a decision in that case. In the absence of any evidence from the defendants to explain their conduct in pleading the defence when they did, I conclude that their pleading of the defence on 11 April 2018 was unreasonable.
It might be said that this is sufficient to characterise their conduct as at least “unjustifiable” in the sense that word is used in Triggell v Pheeney. Although the defendants’ conduct in pleading the truth defence was unreasonable, I am reluctant to find that it was improper or lacking in bona fides. I decline to find that the defendants (or their legal advisers at the time whose conduct is attributed to them) engaged in misconduct or improper conduct in pleading a truth defence on 11 April 2018. There is a basis to conclude that their conduct was unjustifiable, at least in the sense of not according with the proper approach to the pleading of a defence of justification and the time at which such a defence should be pleaded. However, I will not make that finding so as to trigger an award of aggravated compensatory damages in respect of the defendants’ conduct in pleading the truth defence.[17]
[16] [2019] QSC 284.
[17] At [167]-[168].
Contrary to Ms Poniatowska’s contention, in those paragraphs Applegarth J did not adopt a pure objective test in assessing whether the conduct of the defendants was unjustifiable and indeed, in the second paragraph extracted above, declined to find that their conduct was unjustifiable despite the objective findings made in the first paragraph extracted above.
However, in a case such as the present where the defendants do not give evidence, the distinction between a subjective test and an objective test tends to be illusory. Even if a subjective test is applied, the assessment must necessarily be circumstantial and rely upon objective matters. Our assessment was objective in this sense.
Ms Poniatowska refers to observations made in our first set of reasons for judgment that the pleading by Channel Seven of justification was defective and liable to be struck out and contends that it follows that their conduct was not in good faith and was not justifiable. However, this confuses Channel Seven’s pleading with their case. Merely because a party’s pleading is defective does not mean that it does not have a tenable case. Ms Poniatowska did not apply to strike out the pleading and the matter proceeded to trial on the basis of Channel Seven’s case rather than their pleading. The deficiencies in the pleading did not entail that the defence of justification advanced was not justifiable.

Ms Poniatowska refers to observations made in our first reasons for judgment about types of documentary and oral evidence relevant to justification that were not adduced by Channel Seven. Again, the mere fact that they did not adduce that evidence does not entail that the defence of justification advanced was not justifiable.
Ms Poniatowska refers to the difficulties identified in our first reasons for judgment with Channel Seven’s reliance on her guilty plea to prove justification. However, as we observed in our reasons for judgment, 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.
Ms Poniatowska contends that, in its judgment the subject of Channel Seven’s defamatory broadcasts, the High Court had found that she did not commit any fraud, after taking into consideration all facts including her guilty plea. This contention mischaracterises the High Court’s decision. The High Court’s decision was based on the elements of the charged offence. The High Court did not address, and did not need to address, the question whether Ms Poniatowska was guilty of fraud as commonly understood.
Ms Poniatowska contends that the imputations of fraud, cheating and dishonesty made by Channel Seven were not contained in the High Court judgment to which the broadcast related but were chosen to be made by Channel Seven. This does not amount to improper or unjustifiable conduct warranting an award of aggravated damages.
Ms Poniatowska has failed to establish that we made a misapprehension of law in the course of rejecting her claim for aggravated damages.
Conclusion
Ms Poniatowska has failed to establish that we made a misapprehension of fact or law in the course of assessing damages for economic loss or rejecting her claim for aggravated damages. We dismiss her interlocutory application. We will hear the parties in relation to costs.