Richard James Talbot v Nationwide News Pty Limited

[2006] NSWDC 59

CITATION:	Richard James Talbot v Nationwide News Pty Limited [2006] NSWDC 59
HEARING DATE(S):	5-9, 13-16, 22 June, 21 July 2006
JUDGMENT DATE:	19 October 2006
JUDGMENT OF:	Gibson DCJ
DECISION:	(1)Judgment for the plaintiff for $200,000; (2)Defendant pay plaintiff’s costs; (3)Parties to bring in Short Minutes of Order reflecting any agreed figure for interest on the damages; (4)Liberty to apply concerning interest and costs; (5)Exhibits retained for 28 days
CATCHWORDS:	Tort - Defamation - Whether imputations fact or comment - whether imputations based on proper material for comment - damages - aggravated compensatory damages.
LEGISLATION CITED:	Criminal Code (WA); Defamation Act 1974 (NSW); Defamation Act 1889 (Qld); Defamation Act 1957 (Tas); Trade Practices Act 1974 (Cth).
CASES CITED:	Austin v Mirror Newspapers Limited [1986] AC 299; Bishop Mar Meelas Zaia v Chibo [2005] NSWSC 917; Carson v John Fairfax & Sons Ltd (1992-3) 178 CLR 44; Cassell & Co Ltd v Broome [1972] AC 1027; Crampton v Nugawela (1996) 41 NSWLR 176; Fraser & Talbot v NRMA (1994); Gannon v Gannon (1971) 125 CLR 629; Goldsborough v John Fairfax & Sons (1934) 34 SR (NSW) 524; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; John Fairfax Publications Pty Limited v O'Shane [2005] NSWCA 164; McMullan v TCN Channel 9 [2000] NSWSC 925; Pervan v North Queensland Newspapers (1993) 178 CLR 309; Radio 2UE Pty Limited v Parker (1992) 29 NSWLR 448; Robinson v Laws [2003] 1 Qd R 81; Rogers v Nationwide News Pty Limited (2003) 216 CLR 327; Sutcliffe v Pressdram Ltd [1991] 1 QB 153; State of NSW v Riley (2002-2003) 57 NSWLR 496;
PARTIES:	Richard James Talbot (Plaintiff) Nationwide News Pty Limited (Defendant)
FILE NUMBER(S):	9215/02
COUNSEL:	T Molomby SC / R K M Rasmussen (Plaintiff) T D Blackburn SC / C Hmelinsky (Defendant)
SOLICITORS:	Slater & Gordon Lawyers (Plaintiff) Blake Dawson Waldron (Defendant)

JUDGMENT

1 The plaintiff brings proceedings for damages for defamation for an article “Voters hold key for driving force” by Piers Akerman published in the Sunday Telegraph newspaper on 6 October 2002.

Background

2 The background to the publication is as follows. The plaintiff, a surveyor employed by the Roads and Traffic Authority (RTA), was first elected to the Board of the National Roads and Motorists Association (NRMA) in 1990. He served continuously on the Board until the year 2000. He was off the Board for approximately a year and was re-elected at the end of 2001 and he remains a Board member to this day. He said that from the time he joined the NRMA Board, the NRMA was “my career” (T-8) because he gave up his employment with the RTA and devoted is time to NRMA activities.

3 There were significant changes made to the NRMA during the period of time that the plaintiff was a Board member. Some of these changes were supported by the plaintiff and others were opposed by him. The plaintiff became very well known to the public over this period of time, and was frequently in the news (exhibit M).

4 The plaintiff said in his evidence that his aims as a Board member were to keep the organisation as a “mutual”, keep road service fees down, obtain insurance rebates and encourage a greater participation by the members of the NRMA in the organisation (T-30). He campaigned against the limiting of road service calls and was interested in road service and road safety matters (T-30). In particular, he and Dawn Fraser (another Board member), were parties in proceedings in the Federal Court of Australia concerning whether a prospectus issued by the NRMA involved conduct in contravention of Section 52 Trade Practices Act 1974 (Cth). The plaintiff said in his evidence, and exhibit M demonstrates, that newspaper articles about the plaintiff’s activities as an NRMA Board member, including previous articles by Piers Akerman, were either neutral in tone, or praised the plaintiff.

5 The article by Piers Akerman on 6 October 2002 painted a very different picture of the plaintiff’s performance as an NRMA director. Mr Akerman called the plaintiff a “dead hand” and said that his clique on the NRMA was behind “fifteen years of feuding” and was particularly critical of what was asserted to be an unnecessary special general meting. It went on to criticise the plaintiff for not participating in NRMA committees and concluded by asking the readers if they were for or against the directors who, unlike the plaintiff, had shown their commitment to the NRMA by playing their part on committees, or whether readers wanted to support the plaintiff and his clique, in which case “a great organisation may be sacrificed”. (The full text of this article is set out at the end of this judgment).

6 At a s.7A jury trial on 30 June 2003 a jury found the following imputations to be conveyed and defamatory of and concerning the plaintiff:
(a) He has unnecessarily cost the members and shareholders of the NRMA about $2 million by organising, with his supporters on the Board, one Bill Snodgrass to collect signatures for a petition for a special general meeting, rather than waiting for the annual general meeting;
(b) He has made no positive contribution to the NRMA as a member of its Board;
(c) As a member of the Board of the NRMA, he has been only obstructive;
(d) As a member of the Board of the NRMA, he has had no concern for the interests of its members;
(e) Through unjustified opposition to the majority of the NRMA Board, he, with his supporters on the Board, has cost the organisation’s members and shareholders tens of millions of dollars.

The pleadings
7 There were delays prior to the commencement of the hearing of these proceedings as the plaintiff was required to provide a very extensive discovery in relation to the s.22 qualified privilege defence. That defence was abandoned on the day of the trial and the sole defence on which the matter has been conducted has been the defence of comment pursuant to the Defamation Act 1974 (in relation to publication in New South Wales) and in other states and territories of Australia (except the Northern Territory, where there was no publication).

8 During the trial issues arose as to the adequacy of the plaintiff’s particulars of aggravated damages and failure to file a Reply. These are dealt with elsewhere in this judgment.

The issues
9 The issues in dispute are as follows:
(a) Are the imputations conveyed as fact or as comment? If they are comment, then:
(b) Are the imputations based on proper material for comment, and
(c) Were the opinions genuinely held?
(d) Whether the elements of the defence of comment in each of the States and Territories of Australia have been made out.
(e) If the defence of comment fails in one or more of these jurisdictions, what should be the quantum of damages, and should aggravated compensatory damages be awarded?

10 The first issue to determine is the question of whether the imputations were conveyed as fact or as comment.

(a) Fact or comment?

11 The question of whether a statement is one of fact or comment is a question of substance rather than form. Everything depends on the context: John Fairfax Publications Pty Limited v O’Shane [2005] NSWCA 164 at [27]. A comment can arise purely by inference and does not need to be expressly stated: O’Shane at [27].

12 Complications arise in New South Wales because the defence of comment, which was long thought to be pleaded to the publication, is now accepted as being pleaded to the imputations which arise. However, the form of the imputation found by the jury is irrelevant to the question of whether the defamatory imputation is conveyed as comment because the whole of the matter complained of must be looked at: Radio 2UE Pty Limited v Parker (1992) 29 NSW LR 448 AT 467D.

13 The defendant submits that when each of the imputations is looked at by reference to what Mr Akerman actually wrote it will become clear that the meanings found by the jury, irrespective of their form, were conveyed as comment. The plaintiff submits that the matter complained of comprises factual allegations, one after another, just as a prosecutor at a trial would set out the facts to prove a person was guilty, and that in this framework of condemnation, the imputations are statements of fact and not expression of opinion.

14 The following can be noted from the structure and language of the matter complained of:
(a) There is a series of statements, expressed as facts, particularly the following:
(i) “refusal … to participate in any of the work of the NRMA’s road safety committees” (paragraph 6);
(ii) “Don’t participate in any committee” (paragraph 8);
(iii) “They have not participated” (paragraph 11);
(iv) “They haven’t provided any options or shown any capability to demonstrate constructive thought” (paragraph 15);
(v) “They have just promoted obstruction” (paragraph 15);
(vi) “Those directors who have refused to take part in the NRMA’s activities” (paragraph 25).


(b) The asserted accuracy of the statements is reinforced by references to “what documentation there is available” (paragraph 4) and “the evidence” (paragraph 6).
(c) As the above quotations illustrate, there is a high degree of repetition. Paragraphs 11, 12 and 13, talking about the failure of the plaintiff to participate in NRMA committees, ends with “Not one.” as a sentence after each paragraph.
(d) Having set out this material Mr Akerman then concludes that the question to be “boiled down” is “are you for or against those directors who have shown their commitment to the NRMA by playing their part on its committees?” (paragraph 25).

15 Having considered the publication as a whole I now turn to a consideration of each of the imputations.

Imputation (a)

16 Imputation (a) is a reformulation of the allegations in paragraphs 1, 2 and 3 of the matter complained of, which says that members of the NRMA are being “slugged yet again”. The defendant submits that the use of the word “unnecessarily”, which is the nub of Mr Akerman’s criticism, is a judgmental statement or conclusion which the material published implies but does not state in terms.

17 I do not accept this submission. The function of the word “unnecessarily” is to give a factual meaning to what was wrong about the plaintiff’s conduct, namely that instead of waiting for the annual general meeting when such matters could be considered amongst the other business, the plaintiff and his new ally, Mr Snodgrass, had “slugged” NRMA members with the two million dollar cost to conduct a special general meeting just so Mr Snodgrass’s motion could be considered. The word “unnecessarily” is a shorthand way of referring to the fact that the plaintiff did not need to incur this cost because there was a cheaper way of having this motion dealt with.

18 The defendant submits that this word is what gives the imputation its defamatory sting because merely to say the plaintiff had caused two million dollars to be spent on a special general meeting would have no obvious pejorative meaning (written submissions paragraph 14). I do not accept this submission. To say of a director that he incurred expenses of two million dollars, when something could have been done for little or not cost, is capable of having a defamatory meaning. The defamatory impact of this imputation lies in the fact that the plaintiff embarked on this expensive course when there was an alternative before him which would have saved the members of the NRMA the two million dollars it cost to conduct a special general meeting.

19 This imputation is conveyed as fact rather than as comment.

Imputation (b)

20 Imputation (b) is drawn from the use of the word “negative” (in the caption), “negative hand” (paragraph 6), “dead hands” (caption, paragraph 23) and the repeated use of the negative, particularly in paragraphs 7 to 13, including the use of the clause “not one” four times in paragraphs 11 to 13.

21 The defendant submits that this imputation arises by implication or inference (written submissions paragraph 18). I reject this submission. As the above extracts from the matter complained of show, Mr Akerman repeatedly states categorically that the plaintiff has made no contribution to the NRMA by not contributing and not going to meetings and then describes him as “negative” and a “negative hand” for these reasons. These statements about the plaintiff making no contribution other than a negative one are statements of fact and the imputation reflects these statements.

22 Accordingly, I find this imputation is conveyed as fact rather than as comment.

Imputation (c)

23 The plaintiff is called “obstructive” several times in the matter complained of. He is referred to in the caption as “obstructive”, in paragraph 5 as “obstructive” as one of the “obstructionists” in paragraph 21 and is referred to as promotion opposition in paragraphs 5, 15 and 18. I reject the submission of the defendant that the imputation arises by implication. I reject the submission that the description is what Mr Akerman thinks about the plaintiff and his allies rather than the facts. The matter complained of gives a list of activities of the NRMA which have been obstructed by reason of the plaintiff’s opposition. In other words, the plaintiff is described as having actually obstructed the NRMA, rather than it being a situation where the plaintiff’s conduct is described and an opinion is expressed about whether such conduct is obstructive.

24 This imputation is conveyed as fact rather than as comment.

Imputation (d)

25 The imputation that the plaintiff has had no concern for the interest of NRMA members rises in a number of parts of the matter complained of. The members are referred to as “long suffering” in paragraph 1 but the evidence of the plaintiff’s “negative hand” arises most obviously from his refusal (with members of his “clique”) to participate in any of the work of the NRMA’s road safety committees. Examples are given of the work of the committees that these members have not bothered to front up to such as new driver licensing provisions, street signage, bull-bars, suburban street limits and so on; “you name it’, adds Mr Akerman. This is followed on by a description of the oppositional conduct of the plaintiff to the redraft of the company’s constitution and the assertion that his opposition to the majority of the NRMA Board which had cost the members and shareholders “tens of millions of dollars in legal fees”. Each of these statements is made as a statement of fact.

26 This imputation arises as fact rather than comment.

Imputation (e)

27 This imputation arises principally from the statement in paragraph 18 that the plaintiff’s opposition to the majority of the NRMA Board has cost members and shareholders tens of millions of dollars in legal fees. It is asserted that the word “unjustified” is the word that contains the whole of the pejorative flavour and that without this word the act or condition attributed to the plaintiff would be “ambiguous at best” (defendant’s written submission paragraph 29). The imputation would not be ambiguous without this word, and in any event that is irrelevant to the issue of comment. The clear inference, particularly in the context where one of the members of the team was unable to fill out an ordinary ballot paper, and reasonable corporate directors were looking at the NRMA Board and shaking their heads, is that the NRMA had to pay tens of millions of dollars of legal fees for which the NRMA would not have been liable if it had not been for the oppositional tactics of the plaintiff.

28 This imputation arises as fact rather than as comment.

Conclusion

29 Each of imputations (a)-(e) is a statement of fact rather than an expression of comment.

(b) Are the imputations based on proper material for comment?

30 If I have erred in holding that each of the imputations is conveyed as a statement of fact I must determine whether any of the imputations is based on proper material for comment.

31 The defendant particularised the following material as proper material for comment:

(a) Richard Talbot was a director of NRMA Limited.
(b) A faction of NRMA Limited directors, including Richard Talbot, used an ally, Bill Snodgrass, to collect signatories for a petition for a special general meeting to be held on 17 October 2002 (the “special general meeting” ), proposing a resolution that a number of NRMA Limited directors, led by Maree Callaghan, be removed as directors (the “resolution” ).
(c) The cost of conducting the special general meeting was at least $2,000.000.
(d) The resolution could have been proposed at the upcoming annual general meeting.
(e) Richard Talbot was not a member of and had not participated in any of the NRMA Limited Road Safety committees.
(f) Richard Talbot was not a member of and had not participated in the NRMA Limited Corporate Governance committee, which was working on a redraft of the NRMA Limited constitution.
(g) Richard Talbot had not offered any submissions to the NRMA Limited corporate governance committee, did not attend any briefings conducted by that committee, and did not ask any questions of that committee.
(h) Richard Talbot had rejected and opposed the new constitution proposed by the NRMA corporate governance committee.
(i) One of Richard Talbot’s allies is a member who on one occasion failed to fill out an ordinary ballot paper correctly, and two members who had voted their proxies contrary to their publicly stated positions.
(j) The opposition of the faction associated with Richard Talbot to the majority of the NRMA Limited Board has cost NRMA Limited (including IAG Limited) tens of millions of dollars in legal fees.

32 The factual accuracy of the material set out in particulars (a), (c), (d), (f), (h) and (i) is not in issue.

33 Each of these particulars of proper material for comment relates to each of the imputations as follows:

(a) Imputation (a) arises from facts (a), (b), (c) and (d) in the list above.
(b) Imputations (b), (c) and (d) arise from all of the facts set out above.
(c) Imputation (e) arises from particulars (a), (b), (c), (d), (h) and (j) set out above.

I shall deal with the question of whether particulars (b), (e), (g) and (j) amounts to proper material for comment as these are the particulars which are challenged as factually wrong.

Particular (b)
34 The plaintiff’s evidence was that Mr Snodgrass had never been a member of Motorists Action Group (T-27) and that by the time he circulated his petition he had formed his own group (T-113). It was the evidence of Mr Mackay-Sim that at the 2003, 2004 and 2005 annual general meetings Mr Snodgrass was supporting a different team from the plaintiff’s 9 June 2006 (T-143.19-43).

35 The plaintiff said he pointed out to Mr Snodgrass that if a resolution was put calling for the removal of the Callaghan team, all that would happen would be a “tit for tat” motion for the removal of Mr Talbot’s own team, but that Mr Snodgrass was very much his own man and said he was going to go ahead with the petition (T.110, 137, 142).

36 On the weekend of 12 and 13 October 2002 there were meetings at the home of Dr Jean Lennane and Mrs Ann Keating.

37 Both the plaintiff and Mr Turnbull, who had just been elected to the Board, gave evidence about these meetings. There were inconsistencies in their evidence.

38 The plaintiff said that there were two meetings at the home of Ms Keating and the home of Dr Lennane on the same day. He went from Ms Keating’s house to the meeting at Dr Lennane’s house and he gave Mr Turnbull a lift in his 1985 Laser vehicle. He specifically remembered this because Mr Turnbull had trouble fitting in the passenger seat. The people invited to Dr Lennane’s home were “all sorts of interested people” according to the plaintiff, including Mr Snodgrass, whereas the meeting at Ms Keating’s house consisted of Ms Keating, Mr Turnbull and the plaintiff. Ms Keating had resigned from the Board at this stage and she wanted to introduce Mr Turnbull to the plaintiff because she had known Mr Turnbull for a number of years and she wanted to see “whether we could open up a dialogue to work together” (T-122.35). The meeting at Dr Lennane’s home was of a more general nature to discuss the special general meeting and also the upcoming Board meeting.

39 Mr Turnbull said there was a meeting on Saturday 12 October at which he only met Mr Talbot and Mr Snodgrass and that following that meeting it was agreed he would come back the following afternoon for another meeting with Richard Talbot. From that second meeting he was a passenger in the plaintiff’s vehicle to the home of Dr Jean Lennane, another director. At the Sunday meeting at Ms Keating’s house the other persons there were Richard Talbot and Ann Keating (T-195.21) but not Mr Snodgrass.

40 Mr Turnbull had a poor recollection of events. When asked to exhaust his recollection of what was in them about the meetings he was only able to give an account in general terms of the Saturday meeting which he said he had with Mr Talbot and Mr Snodgrass.

41 Before exhausting his recollection Mr Turnbull said that at this meeting both the plaintiff and Mr Snodgrass threatened to continue the process of having special general meetings (T-197) although he later agreed that it had only been Mr Snodgrass (T-255). He said that Mr Snodgrass was speaking on behalf of the plaintiff (T-224-225, 228) but the notes which are exhibit 13 refer only to “Bill Snodgrass’ colleague Ian Scandrett”.

42 The notes produced by Mr Turnbull are scatty and disorganised. They are not a coherent account of what occurred at these meetings, and are little more than a series of jottings down (T-204-206) of some of the things that he thought were of interest for a variety of purposes, including posterity, as he was planning to write an autobiography. He said (T-202) that the Sunday meeting, not the Saturday meeting, disturbed him. The notes were made shortly after the meetings but it is clear that at least some changes must have been made to these notes before they were sent to Ms Kelly at the NRMA later that month because the document itself says so.

43 This meeting was one of a series that Mr Turnbull had for the purpose of meeting his fellow directors after his appointment to the NRMA Board in October 2002. He described his appointment as follows. He received a telephone call one day from a Mr Coyne, an NRMA director, saying “there’s an opportunity to go on the NRMA Board, we’re appointing a new director, or the Board is appointing a new director tomorrow, would you like to put your name forward” (T-214). Mr Turnbull thought about this for “about fifteen seconds” and said that Mr Coyne could put his name forward. Apart from that Mr Turnbull’s knowledge of the NRMA came from conversations he had had with Ms Keating, with whom he used to go out (T-215) and what he read in the papers. When he became a director, he told Mr Coyne that he had not yet met the president, Ms Callaghan asked “who is she” and said that he should meet with her (T-216). That meeting took place the following day. However, the only notes that Mr Turnbull made when he met his fellow directors were of his meeting with the plaintiff.

44 Mr Turnbull was not an impressive witness. He agreed he had a poor memory, saying “I find it pretty difficult to remember things unless I’ve written them down, so I’ve written them down and that’s my recollection” (T-221). Although Mr Turnbull recorded himself in his notes as having told the plaintiff that he was “an independent unaligned director” (T-213.43-44) such a statement is at best naïve and at worst disingenuous. He was clearly in the other camp.

45 In the course of Mr Turnbull’s meeting with Mr Snodgrass, Mr Snodgrass asked did he want the NRMA to remain a mutual. He replied “I’ve only been a director two days, I’ve not given the matter any thought (T-197.14-15). Despite having no opinion on what was a burning issue for the NRMA at the time, in a matter of days he moved from being the most recently elected director of the NRMA to the president, and it was following this Board meeting that he said to his live-in partner “we better (sic) make notes of this for the book”, being a book Mr Turnbull was planning to write about his life (T-200). Thus, these were not the notes of an independent and objective bystander but someone wanting to have corroborative material for his own purposes.

46 In describing the meeting, Mr Snodgrass used a football metaphor, criticising Mr Snodgrass as “way out of his league” 9T-224.20). However, the person who was out of his league in these conversations was Mr Turnbull. His lack of familiarity with the main issues under discussion at the meetings, his hostility to the plaintiff as a potential rival and the fact that the main purpose of these notes was for his own autobiography means that the accuracy of these notes must be viewed with caution.

47 By contrast the plaintiff gave a straight forward account of these meetings. He said he was quite sure there had only been one meeting at Ms Keating’s, and that Mr Snodgrass had not been there. I accept his evidence that the purpose of this meeting was so that Ms Keating could introduce Mr Turnbull to the plaintiff, who has been a member of the faction from which she had resigned, in circumstances where they would get to know each other in a relaxed atmosphere at her home. It makes no sense for her to have invited Mr Snodgrass (a confrontationalist person at best from everyone’s description) to such a meeting. Accordingly, I prefer the plaintiff’s version of what occurred at these meetings and I find that Mr Snodgrass was only at the Sunday meeting at Dr Lennane’s home. He was one of a number of persons invited by Dr Lennane. I accept the plaintiff’s version of these meetings.

48 There is no evidence led by the defendant of any association between the plaintiff and Mr Snodgrass apart from Mr Snodgrass’s presence at the meeting at Dr Lennane’s (and I have rejected the evidence that he was at the meeting at Ms Keating’s home).

49 The defendant submits that on the plaintiff’s account of the meeting at Dr Lennane’s, the plaintiff was not forceful in attempting to dissuade Mr Snodgrass in relation to his petition. However, the plaintiff told Mr Snodgrass that all that would happen if Mr Snodgrass put forward his petition would be a tit for tat motion for the Talbot team to be dumped from the Board. This was in fact what happened. This was an obvious development to an experienced politician such as the plaintiff and he had nothing to gain by supporting Mr Snodgrass if it would only lead to his own position on the Board being challenged.

50 There is one additional matter. It transpired from Mr Turnbull’s evidence that this meeting with Mr Snodgrass in fact occurred a week after the publication of the matter complained of. (This chronological revelation took the defendant by surprise and is dealt with elsewhere in this judgment in more detail).

51 Consequently, by the time Mr Turnbull met Mr Snodgrass and Mr Talbot for the first time, all of the events referred to in the matter complained of were well in place. Consequently, he can cast no light on the process of collection of signatures for a petition. This had happened well before. Nor can he cast any light on whose decision it was to hold a special general meeting as opposed to having the matter stood over to the annual general meeting. The only evidence I have on this issue is the denials of the plaintiff that it had anything to do with him. I have indicated elsewhere in this judgment that I have accepted the plaintiff as a witness of truth. Accordingly, there is no evidence that the plaintiff used Mr Snodgrass to collect signatures, or that he belonged to a faction of directors which were using Mr Snodgrass to collect signatures proposing a resolution for the removal of a number of NRMA directors led by Maree Callaghan. Accordingly, this particular is not made out.

Particular (e)

52 In the matter complained of Mr Akerman asserts that the evidence of the negative hand of the plaintiff’s clique:

“is possibly nowhere more apparent than in the refusal of all of its members to participate in any of the work of the NRMA’s road safety committees. They aren’t represented on one. Zero. They haven’t bothered to front and put their time in on committees looking at new driver licensing provisions, street signage, bull-bars (now, there’s an issue), suburban street limits – you name it. Serious questions, but they have not participated” (paragraphs 6-8 of the matter complained of).

53 The provisions by the NRMA of a road safety service, and its involvement in road safety issues, are so widely knows as to be notorious. In Fraser and Talbot v NRMA Holdings Limited, NRMA Limited and NRMA Insurance Limited (1994) 124 ALR 548, 1994 (52 FCR 1) Gummow J acknowledged the wide range of operations of the NRMA were well known and noted:

“The Association and Insurance conduct a wide range of operations which have made the term ‘NRMA” very well recognised. Perhaps most well known is the road service which it has been supplying to generations of stressed motorists in broken down cars” (at [13]).


This particular asserts first that road safety committees existed and that the plaintiff had not taken part in any of them.

54 The first point that should be noted is that the defendant concedes such committees have never existed (T-32.1). Mr Talbot gave a list of the committees which existed from 1990 onwards and identified the committees which he had belonged to. It was his evidence that the two committees dealing with road safety issues were the Public Policy Committee and the two Mutuals Committee (T-33.3). He had been a member of the Public Policy Committee since its inception in 1997 until he left the Board at the end of the year 2000. He was a member of the Two Mutuals Committee between 1999 and 2000. He virtually never missed a meeting of the committee and the annual reports, which list attendance at committee meetings, were tendered in evidence. It was only in the last eleven months that he was not a member of any committee; he had attempted to be a member of a committee and had proposed a resolution that directors serve on all of the committees without a separate sitting fee for any committees. This resolution was defeated. During the eleven months prior to publication to the matter complained of he was not nominated to be a member of any committee by the majority of the Board; if he had been nominated he said he would have agreed to be a member (T-35).

55 The defendant submits that the matter complained of contains comments which are “couched in the present tense” and refers to the plaintiff’s refusal to participate in the work of committees dealing with road safety by saying “they aren’t represented on one” (defendant’s written submissions paragraph 44) and using the present tense.

56 While the present tense is used in paragraph 6 of the matter complained of (“they aren’t represented on one”) this needs to be seen in context of the whole of the matter complained of which starts with a reference to “the past fifteen years of feuding” (paragraph2). Mr Snodgrass, who has been a member of the NRMA “only since October 30, 2000” (paragraph 4) is a comparative newcomer who has the temerity to seek to unseat a collection of directors “who together present a rational record of proven expertise and skills”. By contrast the evidence of the negative hand of the plaintiff and his clique can best be seen from the refusal to participate in the road safety committees. While the present tense is used in paragraph 6, the past perfect tense is used in paragraphs 7 and 8 and the plaintiff is one of those who “have steadfastly applied a dead hand on the Board” (paragraph 23).

57 The text of the matter complained of is asserting that the plaintiff and those in his clique have played no part in safety committees over a long period of time. The caption under the photographs is they “have been” negative and obstructionist and this obstructive team “has shown itself to be an expensive oppositional group within the NRMA (paragraph 5). This reference to “expensive” is fleshed out by the reference to “tens of millions of dollars in legal fees” which is clearly a reference to activities going back some years.

58 The ordinary reasonable reader would not read the matter complained of as stating that the plaintiff had simply not participated in any of the NRMA Limited road safety committees only in the months preceding the matter complained of. The whole thrust is that the plaintiff and his team have been negative and obstructionist over a period of years.

59 There is however an additional reason for rejecting the submissions of the defendant. There were no NRMA Limited road safety committees even in the twelve months immediately prior to the publication of the matter complained of when the plaintiff belonged to no committees. Road safety issues were matters that were considered by the Board, according to the plaintiff in examination in chief, and this was not challenged in cross-examination. It was the plaintiff’s evidence that he attended all meetings, including Board meetings, regularly. There is no evidence that the plaintiff at Board meetings refused to participate in discussion of road safety issues. Accordingly, even if I were to read the matter complained of in the highly artificial manner urged upon me by the defendant, this particular would not be made out.

60 The misstatements of fact in relation to this particular are substantial and serious. No evidence was put before me in relation to a refusal of the plaintiff to participate in discussions about the new driver licensing provisions, street signage, bull-bars or suburban street limits referred to in the matter complained of. There are a number of newspaper clippings (exhibit M) in which I note there are statements by the plaintiff about road safety issues over the years.

61 The inaccuracies of fact by the defendant on this topic are gross. In particular, to accuse the plaintiff of failure to attend committees that do not exist when he consistently attended meetings of the Board which did consider such issues, is so extreme a misstatement of fact as to vitiate any defence of comment for any imputation based upon it.

Particular (g)

62 This particular asserts that the plaintiff did not offer any submissions to the NRMA Limited Corporate Governance Committee. What he did was tell them he was opposed to what he was doing (T-58). The defendant submits that this was “no contribution at all” (written submissions paragraph 47). However, expressing opposition to what is being done is still capable of amounting to a submission in my view.

63 However, the fundamental problem for the defendant in this regard is that the assertion that the plaintiff did not attend any briefings conducted by the committee is wrong as there is no evidence of any such briefings being conducted by that committee, other than at Board level. The plaintiff was present when this occurred (T-36 and T-159).

64 I accept the plaintiff’s evidence in this regard. Accordingly, this particular is not made out.

Particular (j)

65 The defendant relies upon the plaintiff’s evidence at T-80-81 when he agreed with a calculation of Justice Giles of twenty-nine million dollars for the costs of the failed demutualisation to the NRMA. However, Senior Counsel for the defendant conceded that the plaintiff was successful in this other litigation. This was an entirely proper application which was brought by the plaintiff on the evidence before me; it was not brought as opposition to the majority of the Board as this particular claims.

66 It was open to the defendant to lead evidence that the plaintiff’s activity in beginning litigation (even successful litigation) was a factional activity. No such evidence was led, nor was such an allegation put in such terms to the plaintiff in cross-examination. As to the question of such litigation being a faction related activity, while it is true that the plaintiff commenced these proceedings together with a fellow faction member, Dawn Fraser, his evidence that he was aware that if he lost the case he could lose his house, which does not speak of factional support. He brought the action because he believed he should do so and his subsequent success confirms this.

67 The particular also refers to IAG Limited. There is no reference to IAG Limited in the matter complained of. There is no evidence of IAG Limited suffering any financial loss as a result of any action by the plaintiff. The reference to IAG Limited in this particular appears to be an attempt to get around the fact that NRMA has no shareholders, only members

68 This particular is in different terms to the text of the matter complained of, which asserts that the plaintiff’s opposition to the majority of the NRMA Board “has cost members and shareholders tens of millions of dollars in legal fees”. There is no evidence that the members and shareholders, as opposed to the NRMA, are the ones who must bear the cost of the tens of millions of dollars in legal fees. The same can be said for the two million dollars to conduct a special general meeting, which from the evidence contained a component for legal fees, because I have rejected the assertion that the plaintiff had anything to do with Mr Snodgrass’s petition or the calling of the special general meeting (particular (b).

69 This accuracy of this particular is not made out.

The consequence of failure to provide proper particulars for the defence of comment.

70 Each of the imputations relies upon one or more facts the accuracy of which cannot be established. In the case of imputation (a) it is particular (b); in the case of imputations (b), (c) and (d) it is all four of the particulars discussed above and in the case of particular (e) it is particulars (b) and (j). Can the comment represent an opinion which might reasonably be based on the remaining particulars?

71 The first two particulars are anodyne. As to particular (d), there is no evidence before me as to what the plaintiff and his clique (who are a minority) could have done to ensure that the resolution was dealt with at the upcoming annual general meeting. Particulars (f) and (g), which assert that the plaintiff was not a member of the Corporate Governance Committee and rejected and opposed the new constitution proposed by the NRMA Corporate Governance Committee, amount to no more than assertions that the plaintiff took no part in the work of a particular committee in circumstances where the matter complained of notes that not all of the company’s activities involve participation by the full Board. The fact that he rejected the new constitution proposed by that committee is not either by itself or in combination with any or all of the above particulars sufficient to amount to a basis for any opinions reflected in any of the imputations.

72 Particular (i) falls into a different class. This is not only a reference to the plaintiff but to members of his faction. One matter relates to the plaintiff’s own evidence that in 1998 he voted 429 proxies in favour of an increase in directors’ fees when his publicly stated position was to the contrary. The plaintiff has been cross-examined on this issue before (see exhibit 11) and I accept the submissions of senior counsel for the defendant that his excuse is “lame”. However, this particular, whether on its own or in combination with other particulars, would not amount to proper material as a basis for any of the imputations. While imputation (d) relates to an imputation of having no concern for the interests of its members, voting proxies a different way from a publicly stated position, while arguably amounting to self interest, is not a lack of concern for the interests of the members of the NRMA.

73 The contents of these particulars is true. Would comment on these stated true facts be reasonable (s.30(3) Defamation Act, 1974)? The New South Wales statutory defence of comment provides that if stated facts are true, the question is whether the comment is reasonable. However, the requirement that the comment is reasonable is a substantial requirement to meet: John Fairfax Publications v O’Shane [2005] NSWCA 164. These particulars could not support the comment contained in any of imputations (a)-(e).

74 There is no reasonable basis for any of the opinions reflected in the imputations.

75 In the event that I have erred in my finding, I should next consider whether Mr Akerman, the employee of the defendant who wrote the matter complained of, held the opinion and honestly believed that the imputations conveyed by the publication were true.

(c) Honest belief

76 In answers to interrogatories which form part of exhibit O in these proceedings, information was given as to one of the pieces of information prior to the matter complained of being written. The relevant extract is as follows:

“…Piers Ackerman (sic) believed (a) to (e) above on the basis of information he obtained from meetings he had prior to writing the matter complained of with … Ross Turnbull …
Ross Turnbull had previously, on a date which Piers Ackerman (sic) cannot recall, told me (sic) that when he was appointed to the Board of the NRMA, he arranged to meet all Board members. Ross Turnbull stated words to the following effect:


“I went to meet Richard Talbot and Jane Singleton at the same time, and Bill Snodgrass was also there. He supports Richard Talbot and Jane Singleton.”


When Mr Turnbull gave his evidence it was immediately clear that either Mr Turnbull’s dates were wrong, or Mr Akerman could not have spoken to him at all. Mr Turnbull was categorical that the meetings in question, which were the first time he ever met any of the persons named, occurred the week after the matter complained of.

77 By reason of this evidence coming as a surprise to the plaintiff, I granted leave to the plaintiff to file a reply, a handwritten draft of which is Exhibit O in these proceedings.

78 The defendant in written submissions asserts that the plaintiff already knew this and that there was nothing new to the plaintiff in anything Mr Turnbull said (written submissions page 2). I reject this submission. It was as big a surprise to the plaintiff as it was to the defendant that Mr Turnbull said in his evidence he did not have a conversation with Mr Akerman prior to the publication of the matter complained of. For all the plaintiff knew, Mr Turnbull and Mr Akerman could have been discussing the matter long before Mr Turnbull became a director of the company or met the plaintiff or Mr Snodgrass. It is of some significance that the particular does not identify the meeting with any particularity, such as by reference to a date or place.

79 The defendant sought the leave of the court to further answer the interrogatory and referred me to Gannon v Gannon (1971) 125 CLR 629.

80 In Gannon at 640, Menzies J (with whom Barwick CJ and Owen J agreed) held that “in a proper case it may perhaps be possible to obtain leave to answer further”.

81 It was submitted by the defendant that it was a proper case for such leave to be given and that the only prejudice to the plaintiff in allowing the further answer is that the plaintiff is deprived of a forensic advantage arising from ambush.

82 In an affidavit which is exhibit 16 Mr Todd, the solicitor for the defendant, deposes to a telephone conversation with Mr Akerman in which he has identified other sources to whom Mr Akerman spoke whose identity was kept confidential. I have since been informed that both sources have released Mr Akerman from his undertaking, and also that Mr Akerman is available to give evidence on this issue but does not wish to do so.

83 There is no doubt on the evidence before me that the meetings in question occurred after publication of the matter complained of and that Mr Akerman could not have had the information about these meetings before publication of the matter complained of. No journalist’s notes have been produced to assist me in determining just what information Mr Akerman had when he formed his belief in this regard.

84 The information that Mr Turnbull gave was specifically about the meeting with Mr Snodgrass. Any lack of honest belief must therefore be restricted to imputation (a).

85 This is not a case where Mr Akerman is able to say that, having consulted his notes, he finds that he was given this information by a person other than Mr Turnbull. The position is that Mr Akerman may have been mistaken, but is unable, unwilling, or both, to enlighten the court further.

86 On the balance of probabilities I am satisfied that the plaintiff has established that Mr Akerman, a servant of the defendant, did not have any belief in relation to imputation (a) because the information the defendant claims to rely upon for its belief in the truth did not exist at the time. However, I make no such finding in relation to the other imputations.

87 It is further asserted by the plaintiff that the defendant would have known that it had an inadequate basis for the defence. It is clear from the defendant’s conduct of these proceedings, including the fact that Mr Turnbull was called, that the defendant and its legal representatives never turned its mind to this issue. It was simply an oversight by the defendant in the preparation of the case.

Conclusions concerning the defence of comment in New South Wales

88 The defence of comment for the publication of the matter complained of in New South Wales has not been made out.

The defence of comment in other States and Territories of Australia

89 The defences in Victoria, South Australia and the Australian Capital Territory can be dealt with in very short compass. The imputations are statements of fact and the failure to provide proper material for comment is fatal. At common law the comment must be fair, which requires the opinion to be expressed on a matter of fact and to be expressed honestly. If the defendant fails to establish the truth of only one of the disputed facts, that would be enough for the defence to fail: Herald & Weekly Times v Popovic (2003) 9 VR 1 at [270].

90 In Queensland, West Australia and Tasmania, the defences of comment are codified: see s.14(1)(h) Defamation Act 1889 (Qld), s.355 Criminal Code (WA) and s.14(1)(h) Defamation Act 1957 (Tas).

91 Adapting the findings I have made in relation to the defence in New South Wales, none of the imputations has the character of comment. I note in this regard it is settled law that in the Code States the defamatory imputations are the cause of action: Robinson v Laws [2003] 1 Qd R 81.

92 In written submissions senior counsel for the plaintiff submits that the use of the term “fair comment” in each of these sections means that regard can be had to the common law: Pervan v North Queensland Newspapers (1993) 178 CLR 309 at 327. Senior counsel for the defendant (written submissions, para 5) submits that this would amount to a massive lacuna in the defence of comment in the Code States but concedes that the comment must be fair and based on true facts.

93 This is a clear case where the comment, if there is one, could not be based on true facts by reason of the substantial and serious factual inaccuracies in the matter complained of. They are therefore not fair: see Goldsborough v John Fairfax & Sons (1934) 34 SR (NSW) 524 at 532. I do not need to consider the impact of Pervan further in such a clear case.

94 Accordingly, the defence of comment fails in all other States and Territories in which publication is pleaded (namely, all of the States and Territories of Australia, except the Northern Territory).

95 As the defence of comment has failed I now consider the issue of damages.

Damages

96 The plaintiff claims general damages and aggravated compensatory damages. The principles relevant to the issue of damages for defamation have been explained by the High Court in Rogers v Nationwide News Pty Limited (2003) 216 CLR 327. An important feature is the distress and hurt to feelings caused to the plaintiff: see Hayne J at 80, Callinan J at 134 and 137 and Heydon J at 194. Similar views were expressed by Mahoney JA in Crampton v Nugawela (1996) 41 NSWLR 176, where his Honour referred to the reputation of a professional person as sometimes being that person’s whole life.

97 The impact of the publication on the plaintiff was profound. When describing his distress in the witness box, he frequently broke down. This was not feigned; it was genuine distress. To borrow Mahoney JA’s analogy, the NRMA is the plaintiff’s whole life.

98 The defendant submits that the plaintiff’s evidence about his hurt to feelings was only superficially persuasive, but most of this evidence went unchallenged and I have found him to be a witness of truth. I reject the defendant’s submission that he was really only upset about the effect of the article on his prospects of success in the forthcoming elections. The plaintiff agreed he was concerned about the effect it might have on his electoral prospects but it did not say that that was the only reason or the main reason. His greatest distress came when he described a conversation he had with his wife just after he had read the article (T-6-8). His wife read the article and told the plaintiff that “this sort of thing was having a very bad effect on our family” in that she had hoped that the NRMA was going to settle down and they would not be subject to this soft of vicious personal attack. The plaintiff said his wife added that “I should think about maybe just quitting and just finding a, I guess, a more normal job to earn a living for our family”. The plaintiff’s wife is a teacher and, according to a rather sarcastic reference in Mr Turnbull’s notes, she was the breadwinner in the family as the amount of money the plaintiff earns as an NRMA director is quite low. The plaintiff did in fact find himself looking for work when he lost the election and gave evidence of his embarrassment when a prospective employer questioned him about the matter complained of after finding it on the internet.

99 The plaintiff, in a state of some distress, spoke about the impact on his family life and his children.

“I was depressed. Just feeling overwhelmed. I was locked into a battle to stay on the Board of the NRMA, which had been my, much of my career up till then. I really didn’t, you know, I felt pretty bad about what my chances would be and was feeling sick about the whole, sick about it and humiliated by a story like this saying what it did about me, to as many people as it had. Family and, effect on family and friends and the community I lived in.” (T-8).

100 This sounds disjointed, and it was because the plaintiff was having difficulty getting these words out due to his distress. He went on to describe how a member of his family had telephoned him from a small country town and said she:

“… couldn’t support me any longer, reading, after reading the article and what it had said about what I’ve been alleged to have been doing. The money I’d been alleged to have been wasting and how I didn’t really have any regard for the members”.

101 The plaintiff described this telephone call as “humiliating” and “shattering” (T-9). He went on to say:
“I felt very sorry for her too in that she had to live in a community like that. It’s a small community. There’s only, I think, about 900 people in the [country area] you know, and everyone knows everyone, knows their business, and these sort of stories come out, everyone’s read it, and, so I just felt really, like, I felt that I’d caused, you know, caused a lot of anguish for her too.” (T-9).


102 The hurt and insult felt by the plaintiff should be measured against what he had in fact done while a member of the Board (there was no cross-examination on any of this material), which included obtaining insurance rebates, keeping road service fees down, preventing the introduction of a fee for service for NRMA users and preventing the demutualisation of the organisations at considerable personal risk to himself (T-30-40). The scrap book that was tendered contains many articles about the plaintiff’s battles. It was submitted on his behalf that many of these battles were “heroic”, in particular in relation to the litigation concerning the deceptive prospectus.

103 The plaintiff submits that the matter complained of was a treacherous and unprofessional attack which denied achievements that Piers Akerman had previously acknowledged (see Exhibits E, F, G, H and J) in which Mr Akerman had in fact acknowledged the substantial contribution made by the plaintiff to the NRMA.

104 Although the matter complained of talks about feuding over the past 15 years (a mathematical error by Mr Akerman as the plaintiff had only been there for about ten years) in circumstances where the uninformed reader would have to think that the plaintiff was the cause of the problems, the other newspaper articles tendered, including articles written by Mr Akerman, show that this was not the plaintiff’s reputation prior to publication. The plaintiff in fact enjoyed a good reputation according to these articles and, in addition, in the general community, according to the evidence of Mr Carrol (T-172) and Mr Mackay-Sim (T-134). He was not only well thought of because of his activities in the NRMA but also because of his activities in the local community.

105 The defendant submitted that the plaintiff was someone who is analogous to a politician in that he can give as good as he can get and is used to the rough and tumble of Boardroom battles. However, the plaintiff is not a politician. He is a member of the NRMA Board, which is a very large organisation, but the size of this organisation gives him no added advantage.

106 The plaintiff submits, and I accept, that this is a publication that is relentlessly condemnatory. The language is highly rhetorical and it is a series of accusations like an indictment in a criminal trial. However, there are significant and substantial factual errors, and “the harder hitting the comment, the greater should be the care to establish the truth of the facts upon which it is based” Austin v Mirror Newspapers Limited [1986] AC 299 at 317.

107 As to general damages, I accept that the plaintiff was powerfully affected by publication of the matter complained of and that the hurt to feelings was of the most extreme kind, in that the NRMA was his whole life. The publication of a further critical article calling on the plaintiff to quit and describing him as “an acrimonious no-hoper who put personal conflict ahead of member services” was hurtful.

108 The issue of falsity is of importance because the plaintiff claims, in addition to general damages, that his hurt to feelings was aggravated by reason of his knowledge of the falsity of the imputations.

109 The claim for aggravated compensatory damages in the present case is limited to the particulars set out in the pleadings, namely the subsequent publication by the defendant of other publications, and the particularised claim of falsity of the imputations in correspondence between the solicitors. The plaintiff said that he felt there was “this campaign against me by journalists, an organisation that I didn’t have the resources to combat” (T-16).

110 A further publication by Mr Akerman on Thursday, December 12, 2002 is more problematical. It is an account of what occurred in Parliament when Labor MP, Mark Latham was joined by Liberal MP, Bruce Baird in calling for the plaintiff to resign to be replaced by Mr Turnbull, described by Mr Akerman as “a man with a reputation for integrity in international law and business circles, as well as being a most personable and down-to-earth former Wallaby” who, it was asserted, had “assembled a talented and apolitical team representative of the broadest spectrum of society”.

111 Mr Latham and Mr Turnbull have since passed from public life. The plaintiff had some difficulty describing just what it was about this article that caused him so much distress. He agreed that newspapers were entitled to report what occurred in Parliament.

112 While both these articles repeat the general effect of imputations (b), (c) and (d) in the matter complained of, I take into account only to a limited extent the aggravation caused by the repetition of these allegations, which on the evidence before me had not been made about the plaintiff before. The real hurt for the plaintiff was the anguish and hurt to feelings because he knew these imputations were without foundation.

113 When considering issues relevant to aggravated compensatory damages, great care must be taken to avoid double counting, for the reasons explained by Hodgson JA in State of New South Wales v Riley (2002-2003) 57 NSWLR 496 at [131]. What can the additional aggravated damages be compensation for when injury to feelings have already been included in general compensatory damages? Where serious misconduct by a defendant has given rise to a situation where it is difficult to quantify appropriate damages, a Court should be careful to avoid the risk of under-compensating a plaintiff and what the Court should do is aim at the upper limit of the wide range of damages which might conceivably be appropriate for the publication. This is the approach taken in English decisions (see Cassell & Co Ltd v Broome [1972] AC 1027 at 1085), as Hodgson JA went on to note in Riley at [131]ff.

114 What this approach means is that where ordinary compensatory damages are awarded, the award of aggravated damages is for the difference justified by this approach, namely an award of so much as is necessary as to bring the damages up towards the top end of the range. This approach also means that aggravated compensatory damages can be a matter of degree, in that the worse the defendant’s conduct, the further from the centre of the range the Court may be justified in going (see State of New South Wales v Riley at [133]). Aggravated damages are awarded when the conduct of a defendant, whether or not it takes the form of another libel, “rubs salt in the wounds” ( Sutcliffe v Pressdram Limited [1991] 1 QB 153 at 170D per Lord Donaldson).

115 The award of aggravated compensatory damages should not amount to an award of exemplary damages. While it cannot be said that there is no element of punishment in the assessment of aggravated compensatory damages (see Carson v John Fairfax & Sons Limited (1992-3) 178 CLR 44 at 106 per McHugh J), it would not be appropriate for me to award damages on the basis that Mr Akerman is “a preposterous polyp on the backside of journalism” (plaintiff’s written submissions, para 54) and I reject this submission.

116 When assessing the quantum of damages generally I must have regard to the provisions of s.46A Defamation Act 1974 which provides that when awarding damages the Court is to ensure there is an appropriate and rational relationship between the relevant harm and the amount of damages awarded and that when considering general damages and any claim for aggravated compensatory damages the Court is to take into account damages for non-economic loss in personal injury awards in the State, including any awards made under statute regulating the award of any such damages by caps on the sum of damages, amending the checklist set out by Hayne J in Rogers v Nationwide News Pty Ltd (2003-2004) 216 CLR 327. It is of the first importance to identify what other features or characteristics of this case are relevant to compare to other cases. Any comparison which is drawn must look to the particular plaintiff, not to what others may have thought of the defamatory words that were published or what kind of injury was sustained ( Rogers at [354]).

117 The fact that the plaintiff has not stood down from or lost his position does not mean that he has not suffered hurt feelings or that no injury to reputation has been presumed. In fact, Dr Nugawela was in the same position, as the Court of Appeal in Crampton v Nugawela noted.

118 An attack upon professional competency and responsibility of a professional person will generally result in substantial damages. In McMullan v TCN Channel Nine Pty Limited [2000] NSWSC 925 Dunford J awarded $150,000 to a plaintiff whose professional competency and responsibility as a school teacher was the subject of an attack.

119 In Bishop Mar Meelas Zaia v Chibo [2005] NSWSC 917 the plaintiff was awarded $175,000 for allegations concerning his conduct as a bishop of the Assyrian Church.

120 Regard must also be had to publications which occur in the mass media. In Rogers the publication was on the front page of the newspaper (although Dr Rogers was not named). This publication is on the page opposite the editorial, which is further back from the front page but which would still have been a prominent item, particularly since it is accompanied by a photograph of the plaintiff and Jane Singleton under the arresting caption “Dead hands”. In addition, unlike Dr Rogers, the plaintiff is named.

121 For a publication which conveyed serious imputations about a plaintiff whose reputation had previously been of the highest kind, in circumstances where the unchallenged evidence was that he was utterly devastated by its contents, the top end of the range of damages would have to be a figure similar to the figure awarded to Dr Rogers in Rogers , namely $250,000. The bottom end of the range for such a publication would be $150,000. It is hard to see how the publication of such serious imputations about a man of the plaintiff’s standing could be awarded a lesser sum.

122 When considering awards for personal injury by way of analogy, I have been assisted by the analysis of the trial judge, Judge Tupman in Rogers , which was endorsed and approved by the High Court and in particular by Callinan J. I gratefully adopt the analysis her Honour made of personal injury verdicts which led to her Honour awarding at the trial the sum of $250,000 to Dr Rogers, which was discussed and approved by the High Court in its unanimous judgment restoring her Honour’s original verdict for the plaintiff.

123 It is my view that an award of less than $200,000 would be to disregard not only the very serious nature of the libel but also its devastating impact on the plaintiff and the aggravating features by reason of the plaintiff’s knowledge of the falsity of the imputations and, to a lesser extent, the additional hurt occasioned by repetition of the libel. In arriving at this figure I have had regard to the relevant factors under s.46A as well as to the awards of damages in defamation and personal injury discussed above.

Interest

124 No submissions were made to me concerning interest, including the appropriate date for commencement of a claim for interest. I propose to grant the parties liberty to bring in Short Minutes of Order, reflecting any agreed calculation of interest or alternatively, to re-list the matter for argument, if that is appropriate.

ORDERS


(1) Judgement for the plaintiff for $200,000

(2) Defendant pay plaintiff’s costs.

(3) Parties to bring in Short Minutes of Order reflecting any agreed figure for interest on the damages.

(4) Liberty to apply concerning interest and costs.

(5) Exhibits retained for 28 days.


The text of the matter complained of

Caption: Dead hands: Jane Singleton and Richard Talbot


“ ’Voters hold key to driving force’

1. The long-suffering members and shareholders of the NRMA are being slugged yet again, this time to the tune of about $2 million, to conduct a special general meeting.

2. Extraordinarily, those responsible for the impost are essentially the same Board members who have been behind the past 15 years of feuding – the clique run by Richard Talbot and Jane Singleton.

3. Rather than wait for the annual general meeting to put their motion for a spill of the more responsible Board members, they have used a new ally, Bill Snodgrass, to collect signatories to the necessary petition for the special and expensive meeting.


4. According to what documentation there is available, Mr Snodgrass has been a member of the NRMA only since October 30, 2000 yet he is publicly leading the charge to unseat a collection of directors led by Maree Callaghan who together present a rational record of proven expertise and skills.

5. By any measure, the obstructive Snodgrass, Talbot and Singleton team has shown itself to be an expensive, oppositional group within the NRMA.

6. The evidence of its negative hand is possibly nowhere more apparent than in the refusal of all its members to participate in any of the work of the NRMA’s road safety committees. They aren’t represented on one. Zero.

7. They haven’t bothered to front and put their time in on committees looking at new driver licensing provisions, street signage, bull-bars (now, there’s an issue), suburban street limits – you name it.

8. Serious questions, but they have not participated.

9. As the most ignorant of investors knows, not all of a company’s activities involve participation by the full Board, for obvious reasons of convenience and productivity.

10. Directors split their time and participate in various committee activities before reporting to the Board for a decision.

11. The members supported by the Snodgrass, Talbot, Singleton team don’t participate in any committee. Not one.

12. In the past 12 months, when corporate governance has been a key concern of the NRMA, not one member of the Snodgrass, Talbot, Singleton team showed upon the NRMA’s corporate governance committee, which was working on a redraft of the company’s constitution. Not one.

13. Nor did any members of the Snodgrass, Talbot, Singleton team offer any submission. Not one.

14. Finally, when the committee held briefings on its work, not one member of that team attended. Not one. Nor did any member put forward a question. Not one.

15. But, true to form, at the conclusion of the process, the members of Snodgrass, Talbot, Singleton team rejected the redraft. They haven’t provided any options or shown any capability to demonstrate constructive thought. They’ve just promoted opposition.

16. Little wonder that reasonable corporate directors around the country look at the NRMA Board and shake their heads.

17. Included in the Snodgrass, Talbot, Singleton team is a member who demonstrated his inability to fill out an extraordinary ballot paper, and two members who have voted their proxies contrary to their publicly-stated positions.

18. Their opposition to the majority of the NRMA Board has cost members and shareholders tens of millions of dollars in legal fees.

19. At the last annual general meeting, the Whitlam team was re-elected in what was, for the NRMA, a landslide, with 25 per cent of members participating in the vote. The fear is that the feuding within the NRMA has not dispirited so many members that few will bother to assign their proxies and get involved this time around, and the Snodgrass, Talbot, Singleton team will be re-elected by exhausted punters.

20. On the agenda now, however, is a reciprocal motion to dump them. That is the proposal that needs the support of the membership.

21. It should be an easy choice – supporting directors who have been earning their fees through getting involved in the NRMA’s committees and moving the organisation forward, as opposed to backing the obstructionists.

22. But pessimists believe the NRMA will be lucky if as much as five per cent of the membership is inclined to cast a vote by October 15 when the proxies close for the October 17 meeting.

23. It would be a tragedy for the organisation if those who have steadfastly applied a dead hand on the Board are rewarded for the skilful manipulation of the media.

24. But that’s the way it’s shaping, unless the silent majority retrieves its voting forms from the dustbin and starts filling them in, against Resolution 1, which calls for the removal of the Callaghan team, and in favour of Resolution 2, which calls for the dumping of Talbot, Singleton et al.

25. The question can be boiled down to this: Are you for or against those directors who have shown their commitment to the NRMA by playing their part on its committees? If you want to support those directors who have refused to take part in the NRMA’s activities, a great organisation may be sacrificed.”

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