Rene Rivkin v Amalgamated Television Services Pty Limited

[2002] NSWSC 496

CITATION:	Rene Rivkin v Amalgamated Television Services Pty Limited [2002] NSWSC 496
FILE NUMBER(S):	SC 20086/98
HEARING DATE(S):	27/05/02, 28/05/02, 29/05/02, 30/05/02
JUDGMENT DATE:	18 June 2002
PARTIES :	Plaintiff: Rene Rivkin Defendant: Amalgamated Television Services Pty Limited
JUDGMENT OF:	Cripps AJ

COUNSEL :	Plaintiff: B R McClintock SC & M Richardson Defendant: R Stitt QC & M Lynch
SOLICITORS:	Plaintiff: Gilbert & Tobin Defendant: Mallesons Stephen Jacques
CATCHWORDS:	Defamation - defences - s13, s22 - common law qualified privilege - damages
LEGISLATION CITED:	Defamation Act (1974) NSW
CASES CITED:	Wright v Australian Broadcasting Commission 1977 1 NSWLR 697 Morgan v John Fairfax & Sons Ltd 23 NSWLR 374 Barbro v Amalgamated Television Services 1990 - 199120 NSWLR 493
DECISION:	The plaintiff is awarded damages in the sum of $150 000.00

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

CRIPPS AJ

18 June 2002

20086/98 Rene Rivkin v Amalgamated Television Services Pty Limited

JUDGMENT

1 His Honour: On 4 March 1998, Amalgamated Television Services (the defendant) broadcast a television program called “Witness”. The program was concerned with the circumstances surrounding the death of Caroline Byrne, whose body was found at the bottom of the Gap at Watson’s’ Bay in the early hours of 8 June 1995.

2 The interviewer referred to the fact that the Coroner made an open finding concerning the cause of Ms Byrne’s death – misadventure, suicide or murder. Ms Byrne’s partner prior to her death was Mr Wood, who was interviewed in a manner that suggested that he was unlawfully involved in her death – if not that he murdered her.

3 Prior to her death, Ms Byrne was living with Mr Wood. At that time, Mr Wood was employed by Rene Rivkin (the plaintiff) as his chauffer and personal assistant.

4 In the course of the program, Mr Wood was asked questions concerning his relationship with the plaintiff and suspicions that Ms Byrne may have had with respect to that relationship. He was also asked questions about the information that a police officer gave that he had received information that Ms Byrne had arranged for Mr Wood and the plaintiff to be placed under surveillance on the afternoon of her disappearance and that she had observed them having homosexual intercourse.

5 I will refer in greater detail to the program when considering the grounds of defence and issues arising with respect to damages but for present purposes the above outline is sufficient to indicate and explain the nature of the proceedings brought by the plaintiff against the defendant.

6 I will set out in some detail the course the litigation took because submissions were made to the effect that, with respect to certain defences pleaded by the defence and of relevance to the damages claimed by the plaintiff, I should have regard to what imputations the jury rejected as well as the one imputation it accepted.

7 In his statement of claim, the plaintiff alleged the “matter complained of” was the televised presentation of the program Witness. A transcript of the program was set out in the Schedule.

8 The plaintiff contended that the matter complained of in its ordinary and natural meaning contained a number of defamatory imputations of the plaintiff. They were:

(a) That the plaintiff was the person responsible for the murder of Caroline Byrne;

(b) That the plaintiff had behaved in such a way as to warrant a well deserved suspicion that he was a person responsible for the murder;

(c) That the plaintiff had engaged in homosexual intercourse with Gordon Wood;

(d) That the police had reason to suspect that the plaintiff had engaged in homosexual intercourse with Gordon Wood.

9 It was alleged that the matter complained of was published throughout NSW and all other parts of the Commonwealth of Australia.

10 Later, the imputations were changed to the effect that the matter complained of contained the following defamatory imputations:

(a) That the plaintiff was a person criminally liable for the death of Caroline Byrne;

(b) That the plaintiff had behaved in such a way as to warrant the well deserved suspicion that he was a person responsible for her murder;

(c) That the plaintiff had engaged in homosexual intercourse with Gordon Wood;

(d) That the police had reason to suspect that the plaintiff had engaged in homosexual intercourse with Gordon Wood.

11 The trial, pursuant to s7A (4) of the Defamation Act 1974 (NSW) (“the Act”) took place before Bell J on 28 May 2001.

12 Submissions were made to Her Honour concerning whether any of the imputations in the amended statement of claim were capable of being conveyed to the ordinary viewer. Bell J held that amended imputations (a) and (b) were capable of being conveyed and should be considered by the jury. Her Honour ruled that imputations (c) and (d) should be struck out but gave the plaintiff leave to re-plead. In lieu of discarded imputations 4(c) and 4(d) the plaintiff alleged:

(c) That the plaintiff engaged in homosexual intercourse with Gordon Wood, a man who was an employee of his, much younger than him, who viewed him as a father figure, upon whom he lavished gifts and who was engaged to be married;

(d) That the police had reason to suspect that the plaintiff had engaged in homosexual intercourse with Gordon Wood, a man who was an employee of his, much younger than him, who viewed him as a father figure, upon whom he lavished gifts and who was engaged to be married;

(e) The plaintiff procured a male employee to have sexual intercourse with him by lavishing presents on him: an abuse of his wealth and power.

13 The jury found that imputations (a), (b) and (e) were not conveyed to the ordinary reasonable viewer. It found that imputation (c) was and, accordingly, found it unnecessary to deal with imputation (d).

Defences

14 So far as NSW was concerned, the defendant alleged:

(i) That the circumstances of the publication of the matter complained of were such that the person defamed was not likely to suffer harm (Section 13 of the Act);

(ii) That the matter complained of was published on an occasion of qualified privilege at common law;

(iii) That the matter complained of was published on an occasion of qualified privilege pursuant to s 22 of the Act.

15 So far as the other States are concerned, the defendant pleaded that it was protected by common law privilege or by legislation equivalent to s22 of the Act. It appeared to be accepted that in Queensland the publication would be a libel and it was also accepted by the parties that the defamation was the imputation found by the jury. A question arose as to whether it had been proved that the matter complained of was published in Tasmania, the Northern Territory and the ACT. There is no evidence that the matter was published in Tasmania or the Northern Territory. However, I think I am entitled to infer from the material tendered in evidence that the matter was published in the ACT although the Territory was not specifically mentioned.

16 The evidence establishes that NSW is divided into two regions – North and South – and it is reasonable to infer, I think, that the ACT (being entirely surrounded by NSW in the south) received the broadcast. I also mention that if I be wrong about this it would remove less than 10% of the people receiving the broadcast. Accordingly I have dealt with the matter upon the basis that a little over one million viewers throughout Australia (but excluding the Northern Territory and Tasmania) would have seen and heard Witness.

Section 13
17 I have already referred to the Coronial Inquiry into the death of Ms Byrne. The findings were reported in the Sydney Morning Herald and the Daily Telegraph prior to the Witness program going to air. These publications were, in the submission of Mr Stitt QC, relevant to the “circumstances of the publication” of the matter complained of. Reference was made to an article in the Bulletin, but later, if I understood Mr Stitt correctly, it was conceded that this article, which took place after the Witness program was not relevant to the question I am required to determine under section 13.

18 The publications referred to above, and in particular a publication in the Sydney Morning Herald headed “Death of a Model” discussed, in detail, the proceedings before the Coroner including the findings of the Coroner. Mr Wood gave evidence before the Coroner and his record of interview with the police was tendered. In his reasons for recording an open finding the Coroner found Mr Wood’s evidence full of glaring inconsistencies and unsatisfactory.

19 Mr Stitt has asked me to accept that Witness was directed to Mr Wood’s unlawful involvement in the death of Ms Byrne and his motive for that involvement. These, he submits, are part of the circumstances of the publication of the matter complained of. He also relies on the circumstance that when giving evidence of his hurt feelings the plaintiff appeared to be incapable of or unwilling to separate the effects of the imputations found by the jury and the imputations he believed should have been found by the jury but which were rejected. Thus, Mr Stitt argued, if the plaintiff could not identify the relevant harm to him, that failure could establish that there was no “likelihood of harm” as those words must be relevantly understood.

20 I do not think the defence has been made out. I put to one side the argument advanced by Mr McClintock SC that s13 operates only on trivial actions. However, I am of the opinion that publications in the Sydney Morning Herald and the Daily Telegraph were not relevantly “circumstances of the publication of the matter complained of”. Even if they were, I am not prepared to assume that the imputation found by the jury was not likely to harm the plaintiff because other publications may have conveyed the same imputation. The Witness program and the imputation it carried reached a very wide audience throughout Australia. There would be a large number of people, I would have thought, who had read neither the Daily Telegraph nor the Sydney Morning Herald’s article but who saw the Witness program. But even if it be assumed that a sufficiently large number of people were aware or believed an allegation that the plaintiff had had a homosexual affair with Mr Wood, I do not accept the argument that for that reason the plaintiff was not likely to suffer further hurt and further damage to his reputation. If one assumed that the plaintiff had suffered harm by reason of publication in other newspapers prior to the subject publication it is highly probable that his reputation was further damaged and his feelings further hurt by the subject publication – at least, I am not persuaded that that would not have been so.

21 Moreover and for reasons which I shall give in another context I do not think that the plaintiffs inability to separate out the hurt arising from the imputation found by the jury from the hurt arising from his understanding of the imputations not found by the jury has any real relevance to the task that I am required to undertake. Section 13 requires the defendant to establish that a person in the plaintiff’s position “was not likely to suffer harm”.

Common Law Privilege
22 Mr Stitt made a brief submission to the effect that the defendant had established common law qualified privilege. I trust I do no disservice to Mr Stitt’s submission by observing that the defence has not been made out, if for no other reason than I am not prepared to conclude that there was any reciprocity of interest between the defendant and the more than a million viewers who watched the program. Even assuming the defendant had an interest, duty or social or moral obligation to present material with respect to the open finding of the Coroner and about Mr Wood’s unlawful implication with respect to the death of Caroline Byrne, it had no interest, duty or social or moral obligation to say of the plaintiff that he was caught having sexual intercourse with his chauffer (which is what the jury found). The defendant has not sought to justify the imputation and the plaintiff on oath denied it without challenge. Thus, even if there were an interest, duty or social or moral obligation to impart information, that did not extend to telling untruths about the plaintiff. But, as I have said, even if it did the defendant has failed to establish any relevant reciprocity of interest between it on the one hand and its many viewers on the other.

Section 22

23 Section 22 of the defamation act provides:

(1) Where, in respect of matter published to any person:
(a) The recipient has an interest or apparent interest in having information on some subject, and;
(b) The matter is published to the recipient in the course of giving to the recipient information on that subject, and;
(c) The conduct of the publisher in publishing that matter is reasonable in the circumstances,
there is a defence of qualified privilege for that publication.

24 Mr Stitt has submitted that (a) and (b) have been established because the program was providing information relating to the inquest into the death of Ms Byrne.

25 In answer to interrogatories the defendant has said it had no honest belief in the truth of the imputation found by the jury. That imputation was false. The defendant has not attempted to justify the imputation. As I have said, the plaintiff gave evidence denying he had a homosexual affair with Mr Wood and was not cross-examined to the contrary. It is not without significance that no-one was called on behalf of the defendant to explain the reasonableness of publishing an imputation which was false and about which the makers of the program had no honest belief in it’s truth. Conformably with authority I accept that the word “interest” in s22 has a broader meaning than the type of interest in the defence of common law privilege. I have assumed a broad meaning of the word interest would encompass, in the instant case, the circumstances surrounding the death of Ms Byrne and the involvement of her former partner Mr Wood.

26 Mr Stitt has pointed to the fact that in the program the interviewer said that Mr Wood thought of the plaintiff as a father who had bought him an apartment, furniture, clothes and a car and added that “as Gordon (Mr Wood) told the police in an interview tendered to the inquest ‘Caroline was suspicious’”. He submits it was reasonable to publish Mr Wood’s denial in the interview that Ms Byrne had caught Mr Wood and the plaintiff having sexual intercourse. Moreover he refers to the circumstance that it was Detective Senior Constable Wyver who said he had received information that Ms Byrne had placed the plaintiff and Mr Wood under surveillance and hence the defendant was entitled to believe that the police officer was telling the truth.

27 In my opinion there are a number of answers to the defendants submission. I am prepared, with some misgiving, to accept that a substantial number of the one million odd viewers had an interest or even an apparent interest in having information about the identity of the person whose conduct, it might be said, was capable of providing a motive for Mr Wood’s unlawful involvement in the death of Ms Byrne.

28 I was provided with a number of references concerning the obligation on the defendant if it relies on s 22 of the act. In Wright v Australian Broadcasting Commission 1977 1 NSWLR 697, Reynolds JA (with whom Glass JA agreed) said at p 712:

“S 22 (1)(c) calls for the conclusion of a wide range of matters. Some are to be found in the published material itself and the manner and extent of its publication and others from the whole of the surrounding circumstances. The connection between the subject and defamatory imputation remains relevant. It may be tenuous or it may be real and substantial…questions of the exercise of care before the defamatory utterance are also relevant, and questions as to whether the maker of the statement knew whether he was likely to convey a misleading impression”.

29 As was pointed out, it is not reasonable to publish defamatory matter merely because it was reasonable to give information on the subject which that interest inspires.

30 In Morgan v John Fairfax & Sons Ltd 23 NSWLR 374 at p 387, Hunt AJA referred to the fact that if a defendant intends to convey an imputation that was conveyed, it must, to have the benefit of the defence, have believed in the truth of the imputation, and if the defendant did not intend to convey a particular imputation then the defendant must establish that it believed in the truth of the imputation which was in fact conveyed and the conduct was nevertheless reasonable in the circumstances in relation to that imputation which it did not intend to convey but was in fact conveyed.

31 Hunt AJA also referred to an obligation on the defendant to establish that the manner and extent of the publication did not exceed what was reasonably required in the circumstances and that the imputation intended to be conveyed was relevant to the subject about which the information was given.

32 I have also been referred to Barbro v Amalgamated Television Services 199 - 1991 20 NSWLR 493. That case established that while proof of honest belief will often be critical in determining whether the conduct is reasonable, it did not necessarily follow that reasonableness could be denied in the absence of honest belief. On behalf of the defendant it is submitted that it was reasonable to rely on a statement made by the police to Mr Wood in the record of interview viz that police had information concerning the surveillance of Mr Wood and the plaintiff.

33 As I have said, no evidence has been called by the defendant. In the absence of explanation, I think there is force in the submission made by Mr McClintock that if the jury found (as it did) that the plaintiff had homosexual intercourse with Mr Wood then that must have been apparent to the people who created the program. It is said in submission, but by no person on oath, that Witness did not intend to convey that imputation. I do not accept the submission.

34 It is, of course, no part of my function to determine what imputation reasonable readers find in the matter complained of. I think, however, it is appropriate for me to observe that I have no difficulty in seeing how the Jury could have reached the conclusion it did, and in the absence of any other relevant material concerning the state of mind of the presenter, I have some difficulty in determining why the presenter did not know that what was being presented would result in an imputation that the plaintiff and Mr Wood were caught having homosexual intercourse.

35 Mr Stitt relies on the circumstance that in the interview Mr Wood said that the claim of the informant to the police that he had had sexual intercourse with the plaintiff was “utter garbage”. However, it is apparent from the program that Mr Wood was not presented as a truthful person. The whole tenor of the program was that Ms Byrne had probably been murdered and that Mr Wood was unlawfully involved in her death. The above denial by Mr Wood concerning sexual intercourse between him and the plaintiff was preceded by a number of questions (together with a great deal of visual support) concerning the plaintiff and a number of young men on his yacht.

36 When referring to Ms Byrne’s suspicion Mr Wood opined that they might relate to “twelve good looking young men hanging out on his boat in the afternoon…” The interviewer then said, “Were you one of his good looking young men?” To which Mr Wood responded, “Paul, I don’t get up and look in the mirror and think I’m good looking”.

37 Questions and answers were given against the visual presentation of expensive cars, pictures of the plaintiff smoking a cigar etc. Statements that the plaintiff entertained young men on his yacht were supported by footage of Mr Wood emerging from the surf in his swimming shorts.

38 Statements were made concerning Ms Byrnes suspicions as to the sleeping arrangements on a three-week trip the plaintiff took to Europe with Mr Wood. The source of that information was not made clear during the trial. A number of statements were made which were untrue. As I have said, not only do I accept that the plaintiff did not have sexual intercourse I also accept that he did not purchase an apartment for Mr Wood and he did not buy him a car. He financed the purchase of an apartment and after Mr Wood left his employment allowed him to keep a car that he had been driving.

39 It was also submitted that it was not reasonable to ask the police officer who (for reasons not altogether clear to me) elected to give an interview to the presenter of Witness, the identity of the informant. It was submitted that it was unlikely that the police would make public the name of the informant. That may be so, but it does not explain why the question wasn’t asked and I accept the submission made by Mr McClintock that the failure to ask Detective Wyver that question must have been deliberate. Had it been asked and had Detective Wyver declined to answer, that at least would have highlighted the fact that it was a mere allegation by an unidentified informant and not (as the jury found) an established fact. But whether the omission to put that question to Detective Wyver was deliberate or not, in my opinion, it does not support the defendant’s case that it’s conduct was reasonable conduct in the circumstances.

40 Finally, I would observe that prior to the preparation of the program, the plaintiff was invited by the defendant to be interviewed “about your relationship with Caroline Byrne and Gordon Wood” to which the plaintiff’s solicitor replied that the plaintiff “had no relationship with Caroline Byrne and Gordon Wood was his employee”.

41 The presenter made no mention of the fact that the plaintiff was not called to give evidence at the Coronial Inquiry.

42 Hence, I am left in the position that a false allegation was made with no explanation from the presenter as to the reasonableness of its conduct. All I have is submissions by counsel asking me to accept that an imputation as plain as a pikestaff was not intended to be conveyed or, if it was, the defendant’s conduct was reasonable in the circumstances.

43 In my opinion the defence of statutory privilege fails.

Other parts of Australia

44 For reasons which I have already set out above, the defence of common law privilege fails. S 16 of the Queensland legislation relevantly provides qualified protection as follows:

(e) For the purpose of giving information to the person to whom it is made with respect to a subject which the person has, or is reasonably believed by the person who makes the publication to have, such an interest in knowing the truth as to make the last mentioned persons conduct in making the publication reasonable in the circumstances…
(h) In the course of, or for the purposes, of the discussion of a subject of public interest the public discussion of which is for the public benefit.

45 I have already given reasons why I do not think the subject publication was reasonable in the circumstances and I do not accept that (as was alleged) it was for the public good to publish false allegations concerning the conduct of the plaintiff. Moreover I have come to the conclusion that it has not been established that it was for the public benefit that a false imputation should be published even assuming Mr Wood’s possible motive for being unlawfully involved in the death of Ms Byrne was a “subject of public interest” inspiring the need for “ public discussion”. Moreover I do not understand the defendant’s submission to be other than if the defence of common law qualified privilege fails there is no other qualified privilege defence in Victoria or South Australia.

46 The defence in the ACT fails because, as I have held, the publication was not an occasion of common law qualified privilege and it has not been established, for reasons which I have given, that the plaintiff’s character (ie reputation) was not likely to be injured by the publication.

Damages

47 The plaintiff seeks monetary compensation because he was injured in his reputation and his feelings were hurt by the imputation. He seeks an amount of money which recognises full vindication of the baselessness of the allegation against him. He also seeks aggravated damages alleging that the conduct of the defendant has aggravated the injury done to him. He accepts that he is not entitled, so far as the publication in NSW is concerned, to exemplary damages but claims exemplary damages for publications outside NSW.

48 In NSW damages for defamation are assessed in accordance with the common law but are limited to relevant harm, which is defined as meaning “harm suffered by the person defamed”. The court is required to take into account, when determining the amount of damages, that there is an appropriate and rational relationship between the relevant harm suffered and the amount of damages awarded and damages for non economic loss are to be assessed by the court taking into consideration the general range of damages for non economic loss in personal injury awards in NSW.

49 Section 48 of the Act also requires me to take into account the fact that the plaintiff has already recovered damages or has brought proceedings to recover damages for defamation in respect of any other publication of matter to the same purport or effect as the matter complained of in these proceedings.

50 I have already referred to articles in the Sydney Morning Herald and the Daily Telegraph. The plaintiff has also taken proceedings against John Fairfax & Sons Pty Ltd for publications in the Sydney Morning Herald and the Financial Review. In that litigation it is alleged that the matter complained of (being the articles in the newspapers) carry imputations not dissimilar to the imputations in the present case both as to that one which was found and ones that were rejected. The jury in that case found for the defendant. On appeal, the jury’s verdict was set aside and the matter was remitted for a new trial. My understanding of that decision is that the Court of Appeal determined the jury had not applied its collective mind to the issues for determination (not that the imputations necessarily had to be found). I have some difficulty in determining how to apply s 48 in the context of other proceedings that are pending and have not been finalised. I understand the purpose of s 48 is to preclude a plaintiff receiving double compensation. The plaintiff has not yet received damages for an imputation arising out of the publication of matter to the same purport or effect as the matter complained of in these proceedings. I cannot, for example, assume that another jury will not find imputations arising out of the matter before them, which have been rejected by the jury in this case. Doing the best I can, I have regard to the circumstance that other proceedings are to be determined and that the damages in the present case are to be assessed against the possibility that an imputation not dissimilar to the one found by the jury will be found.

51 Mr McClintock has submitted, in effect, that it is impossible to give any real meaning to s 48 and therefore it should be ignored. I reject the submission. The section is included in the legislation and hence must be given effect to notwithstanding difficulties of application to pending litigation.

52 On behalf of the defendant it is submitted that the plaintiff’s reputation was already tarnished prior to the publication of the matter complained of and that I should discount any hurt to his feelings by the circumstance first that his feelings had been already hurt (and presumably hardened) by earlier publications, and second because the plaintiff believed that more serious imputations than found by the jury had in fact been conveyed to members of the public. In evidence before me the plaintiff made it clear that he was unable or unwilling to assign an effect on his feelings by the one imputation found by the jury. Hence it was submitted that I should not allow anything other than perhaps a very small component of damage for hurt feelings.

53 It is also submitted on behalf of the defendant that I should assess damage on the effect to a hypothetical person of the imputation found by the jury. That is to say, I should not have regard to the circumstance that the plaintiff was (and is) a married man and has five children or that the subject imputation was made in the context of assigning a motive to the person the presenters of the program endeavoured to portray as being unlawfully involved in the death of another person. I do not accept the submission.

54 I make it clear I am not proposing to award damages for imputations not found by the jury. But that, in my opinion, does not preclude me from having regard to the context surrounding the subject imputation both as to its effect on the plaintiff’s reputation and the hurt to his feelings. He has given evidence, as have people who have supported him that he was very much concerned with the effect of the imputation on his family.

55 Damage to the plaintiff’s reputation is presumed. In any event, the subject imputation must, on any view of the matter, have damaged the plaintiff’s reputation. I reject the submission that because the plaintiff could not or would not assign hurt feelings to the imputation found by the jury I should conclude his feelings were not hurt. It is true that the imputation rejected by the jury (but contended for by the plaintiff) was more serious than the imputation found by the jury. It would seem to me, with respect to Mr Stitt's argument that merely because the plaintiff was unable to separate the imputations in his own mind (ie to put to one side those he believed were made but which were rejected and to concentrate only on the one that was accepted) does not, in my opinion, mandate a conclusion from the court that he suffered no hurt feelings by reason of the false imputation that the jury found. That hurt derived, as it would seem to me, from what he would ordinarily think that other people, particularly members of his family, were thinking of him.

56 The hurt the plaintiff described refers in part to an imputation that was rejected and I take that circumstance into account. But, as I have said, I do not think I am bound to ignore his hurt simply because he found it hard, to use his word, to “segmentise” it.

Aggravated Damages

57 Aggravated damages may be awarded where the conduct of the defendant by reason of lack of bona fides, impropriety or unjustifiableness exacerbates the hurt to the feelings of the plaintiff. Such conduct may arise out of the way the proceedings are conducted or, if the circumstances are appropriate, by the failure of the defendant to apologise for the imputation. It may also arise by the extent and mode of publication of the matter complained of.

58 I do not find any impropriety or unjustifiable conduct in the way the litigation was conducted. In particular, I reject the submission on behalf of the plaintiff that I should have regard to a statement attributed to Mr Stitt after the jury returned its verdict to the effect that the defendant had substantially succeeded. The statement was made in the course of making a submission as to what order the learned trial judge should make as to costs. It may have been a statement made in the lift by Mr Stitt to his junior and overheard by some other person. But if the plaintiff suffered a hurt by reason of that statement being made, the hurt was caused by the publication in the newspapers and not Mr Stitts conduct.

59 Mr McClintock has also submitted that I should take into account the failure of Channel Seven to apologise for the imputation the jury found to have been conveyed. Mr Stitt has pointed to the circumstance that the imputation found by the jury was not advanced until the day of the hearing before Bell J and, he asks the question rhetorically, why should the defendant be expected to apologise for an imputation that was not advanced by the plaintiff. Mr McClintock, on the other hand points to the circumstances that, while that may be true with respect to the period before trial as from 28 May 2001 the defendant was aware that the imputation contended for by the plaintiff had been established and thereafter it failed to apologise. I do not know whether, after the jury’s verdict, the plaintiff requested the defendant to apologise. It is, I am told, now customary for a fairly long period of time to elapse between a jury’s verdict and the commencement of the hearing directed to defences and damage and it may be that the defendant’s failure to apologise could, in some circumstances, aggravate the hurt to the feelings of the plaintiff. But I do not think that this is such a case. Accordingly I record that I have not taken a failure to apologise into account.

60 It also appeared to be submitted by Mr McClintock that the hurt to the plaintiff’s feelings was aggravated by the circumstances that it was known, or should have been known, that people who live in the “eastern suburbs” are more prone to absorb salacious gossip and translate imputations such as the one found by the jury into even more hurtful meanings than had that imputation been directed to a person in the plaintiffs situation who happened to live in, say Bankstown. I merely record this submission and note that I have not had regard to it when dealing with the question of aggravated damages.

61 I have formed the opinion however, that the extent and mode of publication entitles the plaintiff to an award of aggravated damages. Before doing so I should also record that I do not accept Mr McClintock’s submission that the presenters of Witness set out “to manufacture a false case by overstating the cause of death intending thereby to implicate Mr Wood”. I do, however, conclude that it would have been highly unlikely that the treatment accorded to the plaintiff would have been accorded to a lesser-known figure. I have come to the conclusion that the defendant knew or ought to have known that the imputation would be received by members of the public as found by the jury and that that imputation was to its belief unfounded. In effect, the defendant, by reference to an unsubstantiated allegation made by an unidentified person asserted a homosexual relationship between the plaintiff and Mr Wood. Not that it was an allegation but that it was true. I can only conclude it did so deliberately. I have already referred to the fact that there were some statements, the source of which has not been explained eg the supposed concern Ms Byrne had about sleeping arrangements when the plaintiff and Mr Wood went overseas. As I have said earlier, the imputation was made in the context of pictures of the plaintiff smoking a cigar, a picture of what was intended to be portrayed as his yacht and assertions made that he entertained young men to whom he was attracted on his yacht and the pictures of Mr Wood emerging from the surf in a bathing suit etc.

62 It seemed to me that the defendant presented the program upon the basis that the plaintiff was fair game by reason of other publications concerning him. That, however, did not entitle them to make an allegation against him that was not true. Although the defendant has sought to maintain that Mr Wood’s motive was relevant to the investigation being undertaken, the presentation, in my opinion, focused primarily on the plaintiff. Mr Stitt has submitted that Mr Wood’s motive was relevant to the piece of investigative journalism that was being undertaken. However, on my understanding of the program the plaintiff was the centrepiece of the production and, as I have said, the imputation against the plaintiff was false to the knowledge of the defendant.

63 In all the circumstances I have come to the conclusion that when awarding damages as vindication for reparation for the injury to his reputation and hurt to his feelings I can have regard to the fact that the conduct of the defendant aggravated the hurt to his feelings.

64 I have also been asked to award punitive damages for publication outside NSW. The purpose of punitive damages is to punish and to deter. Of course, an award of damages at large in defamation proceedings of itself operates as a kind of deterrence. However, I have come to the conclusion that the conduct of Channel Seven although improper did not rise to the level justifying the court imposing a penalty. Accordingly I do not award punitive damages.

65 Taking the above matters into consideration I award the plaintiff damages in the sum of $150,000.00.

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Last Modified: 06/19/2002