Arthur Dent v Macquarie Radio Network Pty Ltd

Justification - imputation (a) 15 Section 15 of the Act provides that it is a defence that the imputation is a matter of substantial truth and, relevantly, that it relates to a matter of public interest. The defendant pleaded the following particulars of public interest: (a) Personal injury liability litigation, including the proceedings brought by the plaintiff; (b) how the courts deal with personal injury claims, including the claim brought by the plaintiff; (c) the payment of social security benefits, including the benefits paid to the plaintiff; (d) the reform of the laws governing personal injury liability and the impact of such reform on the insurance industry; and (e) the reform of the laws governing personal injury liability where dangerous activities are involved. Mr Evatt did not submit that the imputations did not relate to a matter or matters of public interest. 16 The focus of the s 15 defence was on whether the defendant had established the substantial truth of the proposition that the plaintiff is a malingerer. To malinger is "to pretend or exaggerate illness in order to escape duty or work; to feign or produce physical or psychological symptoms to obtain financial compensation or other reward", the Oxford English Dictionary, 2nd ed, Oxford University Press, 2000.

17 Mr McClintock put to the plaintiff that a malingerer is a person who although fit, asserts that he is unfit or ill as an excuse for not working (T 132.27-28 and 33-34). He put that, at least in the period from 1992 to 1997, the plaintiff was a malingerer. This period covered the plaintiff's two unsuccessful applications for the disability support pension, which were made at a time when he was regularly skydiving.

18 Mr Hadley gave evidence of his understanding of the meaning of the noun "malingerer" as being: Someone that wants something for nothing, that won't work for it. A lazy person (T 188.53-54). 19 In the course of closing submissions Mr McClintock put his case with respect to the substantial truth of imputation (a) on a wider basis than it had been put to the plaintiff: That the plaintiff had made a voluntary decision not to work and that he had been absolutely fit in the period between 1982 and 1987.

Mr McClintock submitted that it would be fair to describe the plaintiff as being "a dole bludger" (T 220.23). In response to a query as to the distinction between the receipt of unemployment benefits and the disability support pension in the context of the issues raised by the s 15 defence, Mr McClintock submitted: They both come down to, on the one hand the dole comes from not being able to find work, that's the criteria, the disability pension in effect is not being able to work. They are both related to, in effect, the ability to work. Our submission in relation to the dole is that he was fit enough. Our submission in relation to the disability pension was that putting aside whatever the position is now, up till 1998 he had no disability whatsoever we would say (T 220.46-56). 20 It seems to me that there is a distinction between a malingerer and a dole bludger; the latter being a person who receives unemployment benefits without making any genuine effort to obtain employment. A dole bludger is not a person who necessarily feigns or exaggerates physical or psychological symptoms in order to escape work or duty or to obtain a financial reward. Mr Evatt did not take such a point. In closing submissions he referred to features of the plaintiff's personality that might explain his long periods of unemployment in support of the submission that, "he's not a malingerer; he's done his best to find work" (T 261.16-17). I approach the question of whether the defendant has established the substantial truth of imputation (a) in the way the matter was argued by the parties by considering both the proposition that was put to the plaintiff in cross-examination and the broader proposition, which is that the plaintiff is a person who has deliberately avoided work although fit enough to undertake it.

21 The plaintiff gave evidence that he left school after obtaining his School Certificate. He undertook what he described as a cadetship in metallurgy. He was employed by a firm called Metlabs as a trainee metallurgist and he undertook part-time TAFE studies, which led to him obtaining a certificate in metallurgy. He was employed by Metlabs for three years. Thereafter he worked as a metallurgist with two other firms for a further six years. At the end of this time, around 1980, he was retrenched.

22 The plaintiff said that he had not been able to obtain another job working as a metallurgist. He described the metallurgy industry as "shutting down everywhere" at this time (T 6.33-34). He sought employment in other occupations and worked for a time as a door-to-door salesman, selling fire alarms. He gave up this employment in 1982 following an incident in which he had been assaulted while he was working. He had gone to the assistance of a person who was being beaten up and was himself attacked. 23 The plaintiff said that he had not been able to find other employment after he gave up door-to-door selling. He had made applications for employment to a large number of firms, but he had not been successful. He explained his lack of success by reference to a number of factors: the downturn in the metallurgy industry; the high level of unemployment at the time; his lack of experience (in fields other than metallurgy) and his "over-education".

24 The plaintiff has been a recipient of benefits provided by the Department of Social Security and Centrelink from some time in 1982 up to the date of the proceedings. For most of this period he has been the recipient of unemployment benefits. 25 In the mid-1990's the plaintiff applied for and was approved for the Centrelink New Enterprise Incentive Scheme (NEIS). The NEIS was administered by an organisation called Skill Share and provided support to unemployed persons who were assessed as having the potential to establish a viable business. A successful NEIS candidate was required to prepare a business plan and thereafter he or she was awarded a one-year scholarship in which to implement it. The plaintiff submitted a proposal for the production of a skydiving magazine in DVD format. This was approved. He completed his NEIS scholarship in January 1996 and resumed receipt of Centrelink New Start benefits. 26 The plaintiff remained on the New Start allowance until he was transferred to the Disability Support pension. There was some question as to the date on which this occurred. The probability is that the plaintiff was granted a disability support pension following a medical examination that was conducted in October 1997 and the pension was backdated to the date of his application in March 1997 (exhibit R).

27 The plaintiff was involved in two motorcycle incidents in 1972. One caused him injury to his lower back. He was admitted to hospital following the accident, but discharged himself after less than one day. The plaintiff said that he suffered ongoing back problems as the result of this accident. He said that his back problem had not prevented him from obtaining employment. In chief, he gave this evidence: Q. Were you fit to do the work if you could get a job? A. I had problems but I was fit enough - I believe I was fit enough to work, yes. Q. Do you mean problems with your back? A. Yes. Q. But you believed you could do it? A. I couldn't do a labouring job, you know, like digging or any thing that resulted in heavy physical but I did try even some of those (T 12.20-30). 28 The plaintiff was an active skydiver until October 1997. He started skydiving in 1969. Since that time he estimated that he has made around ten thousand jumps of which four or five thousand have been made since 1980. In the early years the plaintiff participated in competition jumps and won a number of championship events. From around 1974 he concentrated on filming jumps made by students and others at the various clubs with which he was associated. He was paid a modest fee by the club for his camerawork.

29 Prior to his application for the disability support pension in March 1997, the plaintiff had twice earlier applied for the pension. The first time was in May 1992. In this application the plaintiff assessed his injury as affecting his ability to work at sixty percent. He listed the medical conditions that affected his ability to work as "six damaged vertebra, left elbow, right shoulder, problem with hands, pins and needles and loss of strength". He also stated: Can't do any heavy lifting, or even make a bed without some adjustment in how I do things. The pain sometimes is too severe to do anything I use a moderate amount of A.S.A.'s for pain relief.

He went on to say that his condition stopped him from both using public transport and driving a car, in that prolonged sitting or standing for more than two hours caused difficulty.

30 The plaintiff said that he applied for the disability support pension in May 1992 because the Department of Social Security had changed its guidelines for eligibility such that a twenty percent disability entitled an applicant to be transferred from the unemployment benefit to the pension. He believed that he suffered a disability that incapacitated him by at least twenty percent. 31 The plaintiff's application for the disability support pension was unsuccessful. The examining medical officer assessed his disability as being five percent.

32 In May 1992 the plaintiff was skydiving regularly, making ten to fifteen jumps per week. He denied that he had been fit and well at this time. He said that skydiving is not a physically arduous sport. He did not consider his continued participation in skydiving to be inconsistent with the assertions that he had made in the application for the pension. 33 The plaintiff is also a martial arts enthusiast. He had undertaken training in a variety of different martial arts, commencing in the late 1960's. His last involvement was in 1995 when he was practising Aikido. He gave this up when he suffered an injury to his arm. He said that he had not been doing martial arts training in 1992 because he was living in Picton and there was no martial arts facility in the area. 34 The plaintiff was a member of the Military Parachute Club at HMAS Albatross, Nowra. He injured his knee towards the end of 1995 in an accident at the military skydiving championships. He underwent surgery on the knee in early 1996 but he continued to have troubles with it and these difficulties aggravated his back problem. The 1995 accident occurred at a time when the plaintiff was working on the production of the DVD skydiving "magazine". He said that he had been overworking and this had led to what he described as a mental breakdown. In evidence in chief he put it this way: That was during the '95 - '96 period when I was working on my business plan. I worked too hard. I had major problems with my back. I had a lot of problems with my knee and problems with my federation [a reference to the Australian Parachute Federation]. It just got too much and I lost all the skin off my hands and feet. I didn't understand what was going on but it was later diagnosed as stress related (T 16.56-58 - 17.1-4). 35 In 1996 the plaintiff made a second application for the disability support pension. The report completed by Dr Demkin, the medical practitioner who examined him in connection with this application, records that he presented with his main complaint being of back pain, which had started in 1972 and which he found to be the most incapacitating of his various difficulties (exhibit 4, Dr Demkin's report, dated November 1996). It is to be noted that the plaintiff gave a history to Dr Demkin that included that he had injured his left knee the previous year while skydiving.

36 In October 1997 the plaintiff was involved in another skydiving accident. He said that this had caused him a variety of injuries, including traumatic brain injury to the front temporal lobe and significant injury to his middle back area (T 41). In evidence in chief he said that about one month after this accident he commenced on the disability support pension. This is consistent with the evidence, to the extent that the approval of his application appears to have followed a medical examination in October 1997, albeit the pension was backdated to an earlier date. 37 The evidence does not disclose the basis on which the plaintiff was assessed as eligible for the disability support pension in 1997. 38 The plaintiff denied that he had feigned or exaggerated his injuries in order to obtain the disability support pension. He maintained that he had sought to obtain employment notwithstanding his back injury, but that he had been unsuccessful. The defendant's case is that the plaintiff's evidence is inherently incredible and should be rejected and that the inference to be drawn from his continuous receipt of one form of social security benefit or another is that he is a malingerer in the sense of that term that I refer to in [20] above. 39 Before I deal with the trenchant attack that was made on the plaintiff's credibility I will refer to certain of the medical evidence, which was tendered by consent and which comprised the various reports that were prepared in connection with the plaintiff's District Court claim. 40 A report prepared by Dr Revai, a psychiatrist, comments on the results of his examination of the plaintiff carried out at the request of one of the solicitors for a defendant in the District Court proceedings. It is dated July 2001 and includes the opinion: Mr Dent, I believe, is paranoid and I will highlight this when commenting on the reports that you forwarded. I do not believe that he is psychotic.

Dr Revai set out passages from a number of reports, together with extracts of letters written by the plaintiff. The latter includes allegations of misconduct made by the plaintiff against medical practitioners, the Manager of the Skill Share Centre and a member of the Australian Parachute Federation. In Dr Revai's opinion, this material, taken with the history obtained by Dr Wenden, a psychiatrist, in January 1998, is supportive of his conclusion that the plaintiff suffers from a long-term personality disorder, which retards him from returning to the workforce. He considered that the plaintiff required psychiatric treatment, but did not believe this arose as a consequence of the October 1997 skydiving incident. 41 I will deal with each of the challenges that Mr McClintock made to the plaintiff's evidence in turn. One related to his of his use of marijuana. The plaintiff said that he was "against drugs and alcohol" (T 85.55). He was asked what his attitude had been in the 1980's and 1990's to marijuana. He said, "I was actually recommended it by a doctor to deal with my back pains" (T 86.1-2). Mr McClintock came back to this topic, putting to the plaintiff that he had given a history to a doctor of having been a heavy user of marijuana. The plaintiff denied this was the case. His attention was directed to the history recorded by Dr Patrick in his report dated 29 May 2001 (exhibit G, p. 59). The plaintiff commenced to read the report aloud. There followed the following exchange: Q. No, read it to yourself, not out loud. A. I won't remember it. Q. I'm sorry? A. I can read it and I won't remember it, it's like more than my memory can store. Q. Mr Dent, are you seriously suggesting that you can't read six lines of a doctor's report and recall it? A. Yes (T 90-38-47).

Mr McClintock took the plaintiff through the history recorded in the report and obtained his assent to the proposition that he had told Dr Patrick that he had used cannabis at least weekly or more over the past twenty-five years to 2001. The plaintiff said that he did not consider this to be heavy usage of the drug. He said that he had commenced taking marijuana and continued to do so over this lengthy period on advice from a medical practitioner that it was more effective than prescribed medication, such as Indocin or Ibuprofen, which might have a bad effect on his digestive system. 42 Mr McClintock submitted that the admission of regular use of marijuana over this period was, itself, a matter affecting the plaintiff's reliability. There was no evidence of the effect of long-term marijuana use on cognitive functioning. There were features of the plaintiff's evidence that raised issues as to his reliability, but I do not include among them his admission to having regularly used marijuana over a period of twenty-five years. I did not take his evidence that he was "against drugs and alcohol" as necessarily inconsistent with his admission of marijuana usage in the circumstances that he described, namely, that his use of the drug was on medical advice. 43 A second aspect of the challenge to the plaintiff's evidence arising out of the cross-examination that I have set out at [41] above was his claim to be unable to keep in his mind the contents of six lines of type for the short interval between reading it and answering a question directed to it. In Mr McClintock's submission, this evidence was incredible. This was not the only occasion when the plaintiff gave evidence of this character. He was cross-examined about an inconsistency between his evidence in these proceedings - that he had been aware of the hooks inside the plane - and evidence that he had given in the District Court proceedings - that he had no knowledge of the hooks. In the course of this challenge Mr McClintock put to him: Q. You see the next question was "did you know there was a hook on the plane?" A. No, I done very few jumps out of the plane. Yes, well I may have misheard the question. What I meant to say was, did you know about - I've already said, it's a brain thing, it's a brain thing (T 98.44-49).

His attention was directed to a question asked of him in the District Court, "You had, you say, before the jump had no knowledge of the hook?" to which he responded: Well that's like sort of one of those double negatives which can cause people, especially someone who has cognitive problems and can't string together as conceptual continuity issues" (T 99.4-6).

The plaintiff went on to give, a somewhat argumentative response to the proposition that he had given evidence in the District Court that he did not know about the hooks. He concluded this response by observing: The confusion is just here, pure and simple cognitive processes and not understanding questions that have double negatives in them (T 99.23-25).

Mr McClintock then put: Q. Mr Dent, if you had told Mr Evatt in the District Court proceedings that you did not know of the existence of the hooks on this plane, that would have been untrue wouldn't it? A. Now I'm confused because your question is too long, could you shorten it down for me please? 44 The plaintiff presented as an unusual individual. At times his answers were rambling. This was particularly evident during the course of his evidence about his allegations of sexual harassment by the Manageress of the Skill Share program (T 115-116). He volunteered other allegations about persons associated with the Skill Share program that were hard to follow. In like vein was his evidence about a letter that he had written to Dr Kolak in August 2002, in which it was suggested he had accused her of trying to pull his pants down (at T 113.36-53). 45 Mr McClintock submitted that I would find the plaintiff to be a fabulist. He pointed to the plaintiff's evidence that at the time of his mental breakdown, he had, "lost all the skin off my hands and feet" (T 17.2). The medical evidence established that the plaintiff had a persistent rash including on the dorsa of his feet which was consistent contact dermatitis and for which he received specialist medical attention over a period of months. I did not consider the plaintiff's rather florid account of loosing all the skin off his hands and feet supported the submission. 46 Mr McClintock submitted that the plaintiff's evidence was deliberately untruthful in a number of respects. He referred to the plaintiff's evidence of the circumstances in which he left the NEIS scheme. Mr McClintock submitted that the plaintiff had given evidence of leaving the NEIS scheme because of the accident, whereas he had completed it by 1995/1996 (T 13.52-54). This seemed to me to be a misconception of the effect of the plaintiff's evidence. The plaintiff said that he had been on the scholarship [a reference to the NEIS scheme] and that he "did the course for a year" (T 13.45-46). He was then asked (at T 13.48-49): Q. Well, what happened, did you end up getting the job or the award or what? A. I was in the process of - yeah, no, I finished the course, I was on my way to earning, getting the business started and was in the process of gathering footage when I had the accident. 47 As appears from the above, the plaintiff maintained that he had completed the NEIS course. This is not inconsistent with the evidence that he undertook the NEIS program in 1995 and that by January 1996 he had applied to Centrelink to resume the New Start Allowance, having completed it (exhibit R). I did not understand the plaintiff to be claiming that he left the NEIS program because of the accident, but rather that he had been gathering video footage for the DVD magazine at the time of the accident. 48 Next, Mr McClintock submitted that the plaintiff's evidence about the number of skydivers with whom he had collided in the October 1997 accident was deliberately untruthful. It is necessary to refer to his evidence of the circumstances of the October 1997 accident in order to deal with this and related submissions. 49 The plaintiff gave evidence that he was one of two cameramen filming a group of twenty skydivers. He had a still camera and a video camera attached to his headgear. When the plane reached around 14,000 feet the rear hatch was opened. It had a locking mechanism involving four hooks, which held the hatch in the closed position. The plaintiff was the first to jump out of the plane. He executed a backwards jump. In the moments before jumping he held onto a strap, located inside the plane with one hand and balanced on the balls of his feet on the edge of the base of the hatch. He said that by exiting from the plane in this way he was able to obtain lift from the current of air under it. The skydivers exited from the plane by executing vertical jumps. The plaintiff explained the dynamics are such that it is possible for a cameraman skydiver, jumping backwards and catching the air current, to freefall from a position above divers who jump after him in a vertical dive. The plaintiff said that as he launched himself the harness of his leg strap became hooked on one of the hooks. The skydivers jumped from the plane in two groups of ten. The first group collided with his left leg, causing him to pivot on the hook and bring him into contact with the second group. All of this happened in the space of about two seconds. The force of the collision with one or more of the skydivers was sufficient to tear through the webbing of the harness. He said that he had been unconscious for a brief period. He fell to between 3,500 and 4,000 feet and then opened his parachute. He was confused and had difficulty controlling his canopy on landing. 50 A copy of the videotape, recorded by the camera attached to the plaintiff's headgear, showing his exit from the plane and the descent of the twenty skydivers, was in evidence, as was a copy of the videotape recorded by the second cameraman. 51 In evidence in chief the plaintiff said that he had been hit by three, maybe four of the skydivers. In an application for a grant of Legal Aid, dated 20 July 2000, made in connection with the District Court proceedings the plaintiff's then solicitors, Foulsham & Geddes, stated: Upon becoming caught on the hook, our client was then impacted upon by a mass of about ten (10) skydivers who exited the aircraft, followed by a further ten (10) a couple of seconds later. 52 In cross-examination the plaintiff's attention was directed to his solicitors' assertion. He said that he had never claimed to have been struck by all twenty of the skydivers who exited the plane after him. The letter from Foulsham & Geddes attached a copy of a statement made by the plaintiff. To my mind there is no inconsistency between the solicitor's letter and the statement attached to it, nor is the account given in the statement inconsistent with the plaintiff's evidence. The statement records (paragraph 18): The tailgate is about six to eight feet wide and all twenty-two people have got to go through it on exit. I was immediately hit by a mass of ten skydivers (all holding each other together) and then an instant later by the next connected mass of ten people (much faster moving since they had run flat out from the front of the aircraft) to go through the door as close as possible to the first group which they link up with. The first ten people crashed through my left leg tearing my groin, injuring my left arm and spinning me around, the second group of ten skydivers slammed into my back and head tearing through my 30000 lb leg strap and knocking me unconscious; this second group hit me like a freight train and carriages (there were at least three definite high speed skydivers who impacted me machine-gun like). 53 In his evidence in chief the plaintiff described the skydivers in the group standing next to him as "sort of connected so they act as one body, they are about a tonne or thereabouts so that mass of skydivers collides with me - it is not an individual skydiver, it is the mass of skydivers" (T 24.4-7). When asked how many individual skydivers in the first group hit him he put it at maybe two, maybe three about two" (T 24.11-12). He was next asked: Q. Was that the same in the second group? A. No, the second group, they are a fast moving group and they are two lines of skydivers so there is like five skydivers, two lines of five and I got hit by, by my estimations, four - three, maybe four of them" (T 24.14-19). 54 Next, it was submitted that the plaintiff had deliberately lied about the circumstances of the accident and the injuries that he had suffered as the result of it. This contention was based on the submission that the videotape recordings of the jump made by the recorder attached to the plaintiff's headgear and by the second cameraman were inconsistent with an acceptance of his evidence. I do not find that either of the video recordings insofar as it depicts the exit of the plaintiff or of any of the skydivers from the plane to be inconsistent with his evidence. Mr McClintock's principal submission was that the videotape recording taken by the camera attached to the plaintiff's headgear appears to have been filmed intentionally, in that it captures all twenty divers descending in formation during their freefall. I have concluded that I should not draw the inference that the plaintiff lied about the accident by reference to the recording. The recording at the point at which the plaintiff says he pivoted as the result of impact with one or more of the skydivers seems to me to be consistent with such an event. The plaintiff's evidence is that after he was freed from the hook, and after he recovered consciousness he had stayed with the skydivers, opening his parachute at between 3,500 and 4,000 feet. The camera, which is attached to the top of his headgear, was activated throughout this period. The plaintiff was in freefall above the twenty skydivers. I do not conclude from the fact that the videotape records all the skydivers in formation that the plaintiff was deliberately filming them. 55 The next matter that Mr McClintock relied upon as evidencing deliberate dishonesty was the plaintiff's evidence concerning the number of jumps he had done after the October 1997 accident. In chief he said this: Q. You were injured in October 1997? A. Yes. Q. How many - did you do any parachute jumps after that accident? A. Yeah, I - about October; so November, December, January, February. … Q. I thought you qualified it. The question was, did you do any more parachute jumps after 26 October '97? A. Yes. Q. How many? A. Six. Q. Six, under what circumstances? A. I was cameraman for the Australian World Champion Skydiving Team and I turned up despite the fact that they assumed I wouldn't turn up (T 40.15-21, 40.30-40).

There was further evidence on this topic in chief: Q. Have you done any more skydiving since? A. No. Q. Since '97? A. Since that last six jumps in '98. Q. When was that in '98? A. February or March. Q. So no parachute jumps from 20 October or February or March '98 then six; is that right? A. Yes. Q. And then none? A. Yes (T 41.4-18). 56 In cross-examination it was put to the plaintiff that he had given evidence of jumps in November 1997, December 1997, January 1998 and February 1998. His attention was directed to that part of the transcript that I have set out at T 40.15-21. He responded, "I know it's in the transcript. I don't believe I said it. I could barely walk in those months" (T 147.28-30). He went on to say that the jumps executed after the October 1997 accident were in February or March 1998. 57 I did not understand the plaintiff's evidence at T 40.20, "I - about October, so November, December, January, February", taken in the context of the whole of the evidence in chief on this topic to be fairly understood as an assertion that he had executed jumps in each of October, November, December 1997 and January and February 1998. In light of his further evidence in chief at T 41.7-15 I do not consider that the plaintiff's response at T 40.20-21 supports the submission that he was deliberately untruthful. 58 The next matter relied on by Mr McClintock as evidencing deliberate untruthfulness was the plaintiff's evidence of the changes in his social life. In evidence in chief he said that he had been invited to functions and parties prior to the broadcast and that following it he had no social life (T 61). In cross-examination he was asked if he recalled giving a history to a doctor that he was not a social person. He responded that he was socially inept. The cross-examination continued: Q. That's always been the case? A. Very strange upbringing, not inclined to be part of the normal social scene. I don't go to pubs. I don't enjoy parties particularly. Q. That has always been the case? A. Yes, it is (T 150.22-28). 59 I do not consider the plaintiff's evidence that he had been invited to functions and parties prior to the broadcast to be inconsistent with his acknowledgment of his social ineptitude. 60 Some of the challenges to the plaintiff's credibility seemed to me to be without substance and to fail to take into account features of his personality that are commented on in a number of the medical and psychological reports. The rambling quality of some of his answers did not impress me as evidencing a deliberate endeavour to avoid answering the question asked of him, but rather to be consistent with his general prolixity that is evidenced in the letters extracted in Dr Revai's report. I note that Dr Buckley, who examined the plaintiff in May 2001, commented that he had spoken to him over an extremely long period and that the plaintiff's history was "extensive and circumlocutory". There were features of the plaintiff's presentation that were consistent with the suggestion in the medical and psychological reports that he may suffer from some form of psychological or psychiatric difficulty. 61 The plaintiff's evidence concerning his knowledge of the hooks in the rear section of the plane on the date of his accident was inconsistent with the evidence that he gave before Ainslie-Wallace DCJ. The topic is one of significance, which makes the inconsistency, notwithstanding the interval of time between the date he gave evidence in the District Court and the present hearing, surprising. It demonstrates that he is unreliable, but, taking into account the matters I have noted above, I did not conclude that his evidence was deliberately untruthful. 62 In the statement submitted with the application for Legal Aid by Foulsham & Geddes the plaintiff gave an account of his employment history: 53. I had a bike accident in 1972 and injured my lower back which caused problems. I have problems with L3, L4 and L5. This has certainly been aggravated by this recent "accident". 54. I have had troubles in the past doing labouring jobs because of my back. 55. I went onto the dole and was then eventually pushed onto a sickness pension. I have been unemployed effectively since 1979, although I have had some small periods of employment. 56. In the early 1980's I made a decision that I was going to dedicate my life to skydiving and camera work. I initially started doing some work with the Newcastle Sport and Parachute Club. I then came down to the Sydney Skydivers at Picton. I looked at the whole thing and decided to develop a business. I only really received whilst at Picton only enough money to live on and barley (sic) the recovery of the costs involved in his (sic) cameras parachute. 57. In 1996 I was put onto a sickness and disability pension and I remain on this benefit; this was done or to cover up problems within the local DSS rather than because of my injuries … that's an equally documented (experience) being dealt with by Sen. Martin Ferguson. 63 Mr McClintock submitted that paragraph 56 of the plaintiff's statement is eloquent of him having made a voluntary decision to pursue his interest in skydiving in the early 1980's and that thereafter he had not made genuine endeavours to obtain employment. Allied to this was the submission that the plaintiff, in fact, has been in employment as a video cameraman recording parachutists' jumps. Support for such a finding was to be found in the plaintiff's admission of receiving payment from the clubs for the films that he made and in the evidence of Mr Webster. Mr Webster gave evidence of the plaintiff's good reputation. He was acquainted with the plaintiff through their mutual interest in skydiving. He was aware in the period 1982 to 1990 that the plaintiff was filming skydivers and that he had been paid for this activity by the club. 64 The imputation that is to be justified is that the plaintiff is a malingerer. Evidence tending to suggest that he was in receipt of some income from his role filming skydivers in the period 1982 to February 1997, when he was in receipt of unemployment benefits (or payments under the NEIS scheme), does not impress me as tending to establish that he was a person who, although fit, was asserting unfitness as an excuse for not working. 65 The plaintiff appears to have considered that the decision to approve his application for the disability support pension may have been made for an improper motive associated with covering up his revelations of sexual impropriety involving a senior employee of the Skill Share organisation. This might be thought to provide some further support for the observations made by Dr Revai that I have set out at [40] above. 66 The reasons that the plaintiff was assessed in October 1997 as eligible for the disability support pension are not in evidence.

67 The 1992 and 1996 applications for the disability support pension were made by the plaintiff on the basis that he had physical symptoms that compromised his ability to obtain employment. He has complained over a number of years of back pain arising from the 1972 motorcycle accident. He has also complained of other physical symptoms arising from that accident and the 1995 skydiving accident. The circumstance that in 1992 he was assessed as five percent impaired and that in 1996 another medical practitioner assessed him as ten percent impaired, resulting in the rejection of each of his applications, does not, establish that he feigned physical or psychological symptoms in order to avoid work and/or receive the disability support pension. 68 I have dealt with the submissions that Mr McClintock developed concerning the plaintiff's reliability and credit at some length since they were prominent in the way in which he put the defendant's case. While I do not find that the plaintiff's evidence was deliberately untruthful, I accept that features of it and of his presentation made him a witness of doubtful reliability. It does not follow from this that the defendant has established the substantial truth of imputation (a). The fact that the plaintiff was capable of skydiving does not prove that he feigned symptoms of incapacity in support of his applications for the disability support pension. As noted earlier, the plaintiff volunteered to Dr Demkin in 1996, at the time of his second application for the pension, that his 1995 injury was caused in a skydiving accident. The evidence of the May 1992 application falls short of establishing that the plaintiff feigned his symptoms. 69 I do not consider that the plaintiff's statement of his intention to dedicate his life to skydiving and camera work evidences a voluntary decision by him not to make efforts to obtain employment. 70 A letter written by a special placements officer with the Commonwealth Employment Service addressed to a social worker in the Department of Social Security on 21 June 1998 concerning the plaintiff (who is also known as Lawrence Rawcliff) records: As requested I interviewed Mr Rawcliff today, he has been registered with the CES since 16.3.82. Mr Rawcliff lives in a relatively isolated area and has no private transport, which greatly inhibits his chances of securing work. He appears to be particularly interested in youth and welfare work, which he has a lot of voluntary experience in. He is only able to work in fairly sedentary occupations due to his back injury he incurred in 1972 and osteoarthritis in his right shoulder. Mr Rawcliff is a qualified metallurgist but has not worked in that area since 1981, and states his skills would be outdated. I discussed ATP courses, the Community Volunteer Program and wage subsidy programs with him, but until he can sort out his transport problems it would be difficult for him to attend (exhibit T). 71 Katherine Martin, a clinical neuro psychologist, in a report dated 8 May 2001 expressed the opinion that the plaintiff has rather unrealistic and grandiose ideas about his career prospects, which predated the October 1997 accident. Her comments in this respect appear to be a reference to the history that he gave of his work as a skydiving cameraman. 72 Mr McClintock submitted that skydiving is a sport requiring the exercise of skill and judgment. It was a sport at which the plaintiff appeared to have excelled. In his submission, the plaintiff's ability to engage in skydiving and martial arts training in the years between 1982 and 1997 demonstrated that he was fit. In Mr McClintock's submission, "if he can't get a job no one could" T 220). To my mind this submission failed to take into account the features of the plaintiff's personality and psychiatric or psychological condition that might cause him difficulty in obtaining employment. The plaintiff said that he had endeavoured to obtain employment and that he had been unsuccessful. Mr McClintock submitted that this evidence was inherently improbable. I did not find it to be so. 73 The defendant has failed to establish the substantial truth of imputation (a).

Contextual truth - s 16 74 It is necessary for the defendant to establish both that its contextual imputation relates to a matter of public interest and that it is substantially true. Mr Evatt did not take issue with the characterisation of the contextual imputation as relating to a matter of public interest. I turn to a consideration of whether the defendant has established the substantial truth of the imputation that the plaintiff brought a ridiculous liability claim. 75 The proceedings commenced by the plaintiff in the District Court claimed damages for personal injury against the Hunter Valley Tandem & Skydiving Club Incorporated and four other defendants. The claim was pleaded in negligence, breach of statutory duty and pursuant to s 75AD of the Trade Practices Act and/or under the Civil Aviation (Carriers Liability) Act 1959. 76 The plaintiff's ordinary statement of claim was filed by solicitors acting on his behalf. His solicitors sought and obtained a grant of Legal Aid on his behalf. Counsel's opinion was obtained in support of the application. The opinion forms part of exhibit O. Counsel advised that the plaintiff had reasonable grounds to commence proceedings against the five defendants and that he had reasonable prospects of success. 77 The plaintiff was represented by counsel at the trial before Ainslie-Wallace DCJ. On the fifth day of the trial the proceedings were settled upon terms that included, without admission of liability, the first defendant paying to the plaintiff the sum of $25,000.00, together with costs. 78 Taking into account these matters, I had difficulty in seeing how the defendant might establish the substantial truth of the imputation that the plaintiff brought a ridiculous liability claim. Mr McClintock submitted that it was apparent from a passage in the transcript in the District Court proceedings that "Judge Ainslie-Wallace took a pretty dim view of the plaintiff here" (T 224.18-19). He referred to a passage in the transcript at T 181: HER HONOUR: Just have a seat in the back of the court if you will Mr Dent. I just made some remarks to counsel which would bear repeating. The outcome of litigation is never a foregone conclusion and nobody can ever say how a case will turn out especially not the lawyer, I haven't heard enough of this case to have formed a view one way or the other but one thing I'm absolutely certain of that attempts should be made to settle this matter if possible without taking the risk that the litigation may not turn out the way everybody expects, I'm not directing that at you particularly Mr Dent but you are in court, I direct that all the lawyers, they know that no one can ever predict how litigation is going to end so I urge everybody to make a serious attempt to reach a compromise that may not be what everybody wants but it is better the outcome you know than the outcome you don't (exhibit D, at T 181.6-23). 79 I do not draw from her Honour's remarks the inference that Mr McClintock invited me to draw. Had her Honour expressed a view consistent with the submission, it would not serve to establish that the plaintiff had brought a ridiculous liability claim. 80 The second matter that Mr McClintock relied on as tending to establish the substantial truth of the imputation was that the case had been fixed to run for a lengthy period. He put that there had been probably another couple of weeks in it and that the sum for which the plaintiff settled it was minimal. This does not serve to establish that it was a ridiculous liability claim. It was also submitted that the bringing of the claim was ridiculous because of the contrast between the plaintiff's evidence of what had happened and the video evidence (T 224.35-50). I have dealt with this contention earlier in these reasons. I note that exhibit G includes a three-paged typewritten document that appears to be a proof of evidence of a proposed witness named Jason Clark. For present purposes it seems to me open to draw the inference that the plaintiff had available to him some evidence, independent of his own evidence, concerning the circumstances of the accident. 81 The final matter identified as tending to establish the truth of the contextual imputation was that the claim brought by the plaintiff included a claim for economic loss that was ultimately not pressed. The imputation is that the plaintiff brought a ridiculous liability claim. The circumstance that he may have abandoned a claim for economic loss does not impress me as capable of establishing that the bringing of the liability claim was ridiculous. 82 The plaintiff has not established the substantial truth of the contextual imputation upon which it relies.

Qualified privilege 83 The defendant pleaded the defence of qualified privilege at common law and pursuant to s 22 of the Act. On the hearing Mr McClintock disavowed any reliance on the defence of qualified privilege at common law (T 203.33-34). 84 Section 22(1) provides: 22(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,

(b) the matter is published to the recipient in the course of giving 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. (2) For the purposes of subsection (1), a person has an apparent interest in having information on some subject if, but only if, at the time of the publication in question, the publisher believes on reasonable grounds that that person has that interest. 85 In Mr McClintock's submission, the subject or subjects of the matter published: liability claims; reform of the law of negligence and proceedings in court were matters of public interest. Listeners to the Ray Hadley Morning Program, or a substantial number of them, were said to have had an interest in receiving information on these subjects. A broad construction has been placed on the words "an interest" for the purposes of s 22(1)(a): Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 358-9. Mr Evatt did not contend to the contrary. In his submission, the defence failed because the conduct of the defendant in publishing the matter was not reasonable in the circumstances. The considerations bearing on reasonableness for the purposes of subsection (1)(c) are discussed in Morgan v John Fairfax & Sons Ltd (1990) 20 NSWLR 511 per Hunt AJA. They include taking reasonable care before publishing to ensure that the conclusion is correct and, where appropriate, by making proper enquiries and checking on the accuracy of sources. 86 Ray Hadley gave evidence that as at June 2002 his morning program was broadcast between 9:00 am and noon. He commenced his day by reading the Sydney Morning Herald, The Telegraph, the Australian Financial Review and then by consulting a news wire service and the Internet. A production meeting was held at around 8:15 am. 87 Mr Hadley recalled reading the Herald article on the morning of 12 June. He considered that Ms Lamont had a reputation as an accurate journalist and he believed the article to be accurate. He did not make any attempt to contact Ms Lamont or any other person at the Sydney Morning Herald in order to check the accuracy of the article. Mr Hadley did not make any attempt to contact Mr Dent in order to give him the opportunity of giving his version of events. He said that it would stand to reason that his production staff would try to check the source of the story and try to find Mr Dent. He had no knowledge that any member of the production team had in fact done so. No evidence was led to establish that any such enquiry had been made. 88 Mr McClintock acknowledged that generally a defendant may only discharge the burden of establishing the reasonableness of its conduct, for the purposes of the s 22(1) defence, if it is able to establish that it had made enquiries of the person defamed (T 214.48-52). In his submission, the circumstances of this case were unusual and were broadly analogous to those in Barbaro v Amalgamated Television Services Pty Ltd (1989) 20 NSWLR 493. Taking into account the demands of conducting a morning radio program, involving discussion of issues of the day, in his submission it was reasonable for Mr Hadley to take the Herald article at face value and repeat it without enquiry of either Ms Lamont or the plaintiff. The Sydney Morning Herald is a reputable newspaper and Ms Lamont enjoys a reputation for accuracy as a journalist. She was reporting proceedings in open court and there was no reason to think that her report of court proceedings would be other than accurate. 89 The imputations conveyed by the broadcast were serious. 90 In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 the High Court said this in the context of the requirement of s 22(1)(c) of the Act: Whether the making of a publication was reasonable must depend upon all the circumstances of the case. But, as a general rule, a defendant's conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. Furthermore, the defendant's conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond. 91 It does not seem to me that the exigencies of conducting an open-line morning radio program made the conduct of the defendant in publishing the matter complained of, without checking the accuracy of the material or seeking a response from the plaintiff, to be reasonable in the circumstances. 92 The defence under s 22 of the Act fails.

Protected Report - section 24 93 The defendant relies on the defences of fair report contained in s 24 of the Act. It pleaded its reliance on s 24 in this way (paragraph 9): In further and alternative answer to the whole of the statement of claim, the defendant says that the matter complained of comprised a fair report of proceedings in public of a court, or, alternatively, was a later publication of a fair protected report or of material purporting to be such or of a fair extract, abstract or summary thereof, as to which the defendant had no knowledge that should have made it aware that the protected report was not fair. 94 A protected report, for the purposes of s 24 of the Act, is a report of proceedings specified in cl 2 of Sch 2. Proceedings in public of a court are specified in cl 2 of Sch 2. 95 Section 24 provides three defences: (2) There is a defence for the publication of a fair protected report. (3) Where a protected report is published by any person, there is a defence for a later publication by another person of the protected report or a copy of the protected report, or of a fair extract or fair abstract from, or fair summary of, the protected report, if the second person does not, at the time of the later publication, have knowledge which should make him or her aware that the protected report is not fair. (4) Where material purporting to be a protected report is published by any person, there is a defence for a later publication by another person of the material or a copy of the material or of a fair extract or fair abstract from, or fair summary of, the material, if the second person does not, at the time of the later publication, have knowledge which should make him or her aware that the material is not a protected report or is not fair. 96 Where a defence is established under s 24 it is defeated if, but only if, it is shown that the publication complained of was not in good faith for public information or the advancement of education (s 25). 97 The passages in the matter complained of, on which reliance was placed under s 24, were particularised in a letter written by the defendant's solicitors, dated 23 November 2005 (exhibit U): 72-74; 76-77; 81-82; 199-204; 207-209; 498-501; 503. Mr McClintock also relied on line 362 in support of this defence. I will refer to this material as the particularised lines.

98 Subsection (2) provides a defence for the publication of a fair protected report. To my mind the particularised lines, in the context of this broadcast, do not constitute the publication of a report of proceedings in a court (as distinct from whether they are the later publication by another of a fair extract or fair abstract from or fair summary of such a report). In the event that I am wrong in coming to this view, I record my reasons for concluding that the particularised lines are not a fair protected report. 99 A fair protected report is one that conveys a substantially accurate account of what took place in that part of the proceedings of which it purports to be a report: Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 per Hunt J at 63: The issue will be whether the report of which the plaintiff complains substantially altered the impression which the reader would have received if he had been in court; if there is in the report a substantial misrepresentation of a material fact prejudicial to the plaintiff's reputation, the matter complained of is not a fair protected report; Thom v Associated Newspapers Ltd (1964) 64 SR (NSW) 376 at 380; 393. A fair report is a substantially accurate summary of the proceedings, neither more nor less. The question is not whether it is fair or unfair to any particular person; the question is whether it substantially records what was said and done: ibid (at 383; 396). 100 In Mr McClintock's submission, the particularised lines were a fair protected report in that the Herald article was a substantially accurate account of the proceedings before Ainslie-Wallace DCJ and the particularised lines were accurately taken from it. 101 Mr Evatt did not submit that the Herald article is not a protected report for the purposes of s 24. I approach the matter upon the basis that it is.

102 On 11 June 2002 the plaintiff gave evidence before Ainslie-Wallace DCJ. He said that he had been involved in two motorcycle accidents in 1972. In the first accident he had suffered injuries to his lower back (T 7.17). He said that he had been parachuting since September 1969 and that he had done about ten thousand jumps (T 8.35). In the course of cross-examination he gave evidence of having brought a claim in respect of the accident in 1972 (T 31). The cross-examination continued as follows: Q. You'd been receiving had you not or obtaining medical certificates for many years to provide to the Department of Social Security? A. I did two Commonwealth medical examinations and both of them said that I was Okay. Q. Were you in receipt of social security benefits? A. Yes. Q. Have you been in receipt of social security benefits since early - the early '80's? A. Yes. Q. Right through? A. Yes. Q. And is that because you are not able to work? A. It was because of the employment, my metallurgy career had come to an abrupt halt with the crash to the metal industry and I was unable to gain gainful employment in the '80's during the worst period of unemployment … … Q. The question is why didn't you go to work between 1980 and 1997? A. 1980's was because of the depressed metal industry and manufacturing industry, my skills were metallurgy and engineering. The Department of Social Security investigators told me that there was no hope for me to get employment because of my age and my over-education basically. Q. How old were you in 1980 Mr Dent? A. 1980 I was - I was born in - I would have been thirty something. Q. You were twenty-nine were you not? A. Yeah, well if you're being specific like a specific year twenty-nine. And the last unemployment period, last time I was retrenched, I was retrenched three times during the metal industry. Q. And you tell us during that time you've done ten thousand jumps from an aeroplane? A. That's from 1969. Q. From 1969, how many jumps have you done from 1980? A. From 1980 probably about 3,000 or 4,000. … Q. Were you not examined by a mental/psychological consultants, a Ms Kay Martin? A. Kay Martin. Q. Ms Kay Martin? A. I have no recollection of a Kay Martin. Q. Would you remember mental or psychological consultants who you saw in February 2001? A. In relation to this accident probably, what was the name of that doctor? Q. Ms Kay Martin? A. I - no, that - I have no recollection of that name whatsoever. Q. Did you not tell Ms Kay Martin that you had suffered brain damage as a child? A. I was jaundiced. I had dyslexia, that's it. Q. Did you also tell her that you'd been on a disability pension due to back problems from the 1972 motorbike accident? A. I don't remember talking to her. I don't remember. Q. But that is the case? A. That is the case. 103 The only evidence given in the proceedings before Ainslie-Wallace DCJ concerning the plaintiff's receipt of a disability pension is that set out above. 104 Mr Evatt's starting point is that the Herald article is not a fair protected report and, necessarily, it follows that the publication of parts of it by the defendant could not be a fair protected report. The vice in the Herald article identified by Mr Evatt is the concluding sentence: The court heard Mr Dent had been on a disability pension since 1972 after a motorcycle accident.

Mr Evatt acknowledged that a member of the public sitting in court and hearing the plaintiff answer, "that is the case" [the concluding answer in [102] above], may have understood him to be acknowledging that he had been on a disability pension from the 1972 motorbike accident. In his submission, the substitution of the word "since" for the word "from" in the Herald article was a serious misrepresentation of the proposition to which the plaintiff may be thought to have assented. 105 Mr Evatt pointed to the plaintiff's evidence on the topic of his receipt of social security benefits. The plaintiff said he had been a recipient of benefits since the early '80's. In Mr Evatt's submission, it was apparent that the social security payments in the early '80's were related to the plaintiff's inability to find employment. It had been put to him that he had obtained medical certificates to provide to the Department of Social Security and he had given evidence of undergoing Commonwealth medical examinations, which had both reported that he was "okay". 106 The use of the word "since" in the Herald article conveys that the plaintiff commenced receipt of the disability pension after the motorcycle accident in 1972 and that he has been in continuous receipt of it from that time. An acceptance that his answer, "that is the case" amounted to his agreement that he had told the psychological consultant, Ms Martin, that he had been on a disability pension due to back problems from the 1972 motorbike accident would not, in the context of the evidence that I have set out at [102] above, fairly convey that the plaintiff had been in continuous receipt of a disability pension from 1972 after a motorcycle accident. I consider that the concluding sentence of the Herald article contained a substantial misrepresentation of the evidence given before Ainslie-Wallace DCJ. Mr Hadley's statements at lines 77 and 207 of exhibit F, to the extent that they may be said to be a report of proceedings in the District Court, contain the same substantial misrepresentation of the evidence and are not a fair protected report. 107 Section 24 creates three defences. The defence as pleaded raised the publication of a fair protected report in subsection (2) and an amalgam of the defences in subsections (3) and (4). In his opening, Mr McClintock explained the defendant's reliance on the s 24 defence was based on subsections (2) and (4). The latter defence is available for the later publication by another person of material that purports to be a protected report. As I have said, the matter was argued upon the basis that the Herald article constituted a protected report for the purposes of s 24. In closing submissions Mr McClintock relied on the defence provided by subsection (3). In his submission, the particularised lines were a fair summary of the Herald article and at the time of the publication Mr Hadley did not have knowledge that should have made him aware that the protected report was not fair. 108 Mr Hadley's evidence of Ms Lamont's reputation for accuracy and his belief that there was no reason to think that her report of court proceedings published in the Sydney Morning Herald, a reputable newspaper, was other than accurate, was not the subject of challenge. 109 The plaintiff did not submit that any defence under s 24 was defeated by it being shown that the publication complained of was not in good faith for public information for the purposes of s 26 of the Act. 110 In the plaintiff's submission the defence under s 24(3) does not arise since the publication complained of could not be characterised as a copy of the protected report or a fair extract or fair abstract from or fair summary of it. This is because although it drew on some material identified as appearing in the Herald report there was a deal of extraneous material intermingled with it. 111 In Mr McClintock's submission, it was open to the defendant to defend the particularised lines under s 24(3) and to defend the balance of the publication as comment. Mr McClintock referred to the decision of the Privy Council in Thompson v Truth and Sportsman Limited (1932) 32 SR (NSW) 21 at 34: In their Lordships' opinion the learned judge misdirected the jury on the plea of fair comment. The general plea of absence of guilt includes a plea of fair comment, and, if the article contains comment, which is separable from the report of the proceedings, their Lordships entertain no doubt that the part which contains the report may be defended under the statutory plea and the part which consists of fair comment may be defended under the general plea. 112 Mr McClintock drew attention to the definition of "Proper material for comment" in s 30(1) which includes "material which, if this Division had not been enacted, would, by reason that it consists of statements of fact, or by reason that it is a protected report within the meaning of section 24" and s 35 (which deals with the defences of comment) and provides that where the matter complained of includes comment and includes material upon which the comment is based, a defence under the Division as to the comment is not a defence as to the material upon which the comment is based. In his submission these provisions made clear that the defences arising out of the publication of a protected report and comment may be relied upon in conjunction with each other. This did not seem to me to meet the criticism that Mr Evatt made of the availability of the defence in the circumstances of this publication. 113 The Herald report relevantly contained the following statements: s The plaintiff has done about ten thousand jumps; s He was on the plane in October 1997 to video parachutists; s He had been on a disability pension since 1972 after a motorcycle accident.

114 Mr Hadley stated at lines 79 - 82: [H]ow does someone on a disability pension who is unable to work, because I would imagine he is not able-bodied. You see it is not stress or some sort of mental problem. He's been on a disability pension because he had a motorcycle accident. 115 The assertions made by Mr Hadley that (i) the plaintiff was unable to work; (ii) was to be imagined to be not able-bodied; (iii) it is not stress or some sort of mental problem and (iv) was on the disability pension because he had a motorcycle accident are not taken from the Herald report. These are statements added by Mr Hadley. They are not distinguished from the lines particularised. The ordinary reasonable listener would have understood the assertions that the plaintiff is not suffering from stress or some sort of mental problem and that he had been on the disability pension because of the motorcycle accident to have formed part of the Herald report. It is the material added by Mr Hadley that in combination with the assertion that the plaintiff has done ten thousand parachute jumps gives rise to the imputations.

116 Attention was not focused on the meaning of a fair extract or fair abstract from or fair summary of a protected report for the purpose of subsection (3). I do not consider the lines particularised to constitute a fair extract or fair abstract from the Herald report. In my opinion the lines particularised are not a fair summary of the Herald report because the listener does not know that some of the statements that are attributed to it are Mr Hadley's additions. I note the observations of Gleeson CJ in Rogers v Nationwide News Pty Limited [2003] HCA 52; 216 CLR 277 at 336-337; [18] and [19]. 117 In the event that I am wrong in my view that the lines particularised do not constitute a fair summary of a protected report for the purposes of s 24(3) I turn to a consideration of the defences of comment provided by Division 7 of the Act. The Act creates the defences of comment of the defendant under s 32, comment of a servant or agent of the defendant under s 33 and comment of a stranger under s 34. Comment 118 Each of the defences of comment is subject to ss 30 and 31. 30 Proper material (1) For the purposes of this section, but subject to subsection (2), proper material for comment means material which, if this Division had not been enacted, would, by reason that it consists of statements of fact, or by reason that it is a protected report within the meaning of section 24, or for some other reason, be material on which comment might be based for the purposes of the defence or exclusion of liability in cases of fair comment on a matter of public interest. (2) A statement of fact which is a matter of substantial truth is proper material for comment for the purposes of this section, whether or not the statement relates to a matter of public interest. (3) The defences under this Division are available as to any comment if, but only if: (a) The comment is based on proper material for comment, or (b) the material on which the comment is based is to some extent proper material for comment and the comment represents an opinion which might reasonably be based on that material to the extent to which it is proper material for comment. (4) There is no special rule governing the nature of the material which may be the basis of comment imputing a dishonourable motive or governing the degree of foundation or justification which comment imputing a dishonourable motive must have in the material on which the comment is based. 31 Public interest The defences under this Division are not available to any comment unless the comment relates to a matter of public interest. 119 The defendant particularised that each of the imputations related to a matter of public interest by reason of the following: (a) Personal injury liability litigation, including the proceedings brought by the plaintiff; (b) how the courts deal with personal injury claims, including the claim brought by the plaintiff; (c) the payment of social security benefits, including the benefits paid to the plaintiff; (d) the reform of the laws governing personal injury liability and the impact of such reform on the insurance industry; and (e) the reform of the laws governing personal injury liability where dangerous activities are involved. 120 Mr Evatt did not submit that the defence was defeated by reason that the comment did not relate to a matter of public interest for the purposes of s 31 (T 253.45-48). 121 The defendant pleaded each of the defences in ss 32, 33 and 34. Mr Hadley gave evidence that he is a broadcaster for Radio Station 2GB and that he had been a broadcaster with that station for four years. There was no other evidence touching on the nature of his relationship with the defendant. The matter was conducted on the basis that the imputations arose from the statements of Mr Hadley, who was a servant or agent of the defendant and, to the extent that they arose from any statement made by Irene, reliance was placed on the defence of comment of a stranger. (It was not contended that Matt's statements gave rise to any of the imputations). 122 In Mr Evatt's submission, the defence of comment must fail since the imputations were conveyed as statements of fact.

123 In John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164 Giles JA, observed at [27]: There cannot be a clear line between comment and statement of fact. Many defamatory words have elements of fact, conclusion from facts and expression of opinion. A characterisation must nonetheless be made, and the context and circumstances of the use of the words will be important.

After extracting Priestley JA's summary of the position in Perkins at 345 and 346 and Meagher JA's observations at 349, his Honour said at [40]: These principles must be adapted to the defence of comment under the Act being directed to the imputation rather than the words of the published matter, as was established in New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340. Under s 9 of the Act, the plaintiff has a cause of action in respect of the imputation made by the publication of the matter. The imputation is a pleader's construct from that matter, as found by the jury. The question being whether the imputation would be regarded by the ordinary reasonable reader as comment or statement of fact, rather than the words of the published matter, what regard is to be had to the published matter?

His Honour set out Priestley JA's summary of the position in Perkins at 345 and 346 and Meagher JA's observations at 349. His Honour then observed at [40]: That the defence of comment is directed to the imputation does not mean that, in characterising the imputation, there is no reference to the published matter carrying the imputations. Nor in my view does New South Wales Aboriginal Land Council v Perkins mean that there is reference to the published matter only if it is thought that the imputation is not clearly of one character or the other. Clarity without context is a mirage, and when the imputation is found in the published matter its character must take colour from that matter. To put aside the published matter would be artificial, and as pointed out by Levine J in Sutherland v ACP Publishing Pty Ltd [2000] NSWSC 1139 at [21] it is not required "as a matter of construction [of the Act] let alone as a matter of common sense and reality"; see also Harrigan v Jones (2001) Aust Tort Rep 81-621 at [78]. 124 None of the imputations are to be found as an express assertion in the matter complained of. Each is a conclusion derived from it. While on its face each appears to be a statement of fact, in Mr McClintock's submission each would have been understood by the ordinary reasonable listener as a conclusion based on the Herald report. 125 In Mr Evatt's submission, each of the assertions made by Mr Hadley and Irene were conveyed as a statement of fact. Mr Evatt drew attention to the statements made by Irene: Ray, how on earth can this person on a disability allowance afford to jump out of planes? … Ray, I mean you just barely live on a disability allowance so how can you afford to jump out of planes? There's something very fishy about this whole thing.

It does not seem to me that the statements made by Irene give rise to the imputations that the jury found to have been conveyed. They are directed to the plaintiff's capacity to afford to engage in frequent skydiving when his source of income is the invalid pension. 126 The imputations are each closely related and appear to arise in each case from the assertions made in lines 72 - 86, 199 - 211 and 498 - 501. 127 I do not accept Mr Evatt's submission that all the statements made by Mr Hadley would have been understood by the ordinary reasonable listener as statements of fact. I accept that Mr Hadley's language is, in places, suggestive of the expression of a conclusion or inference based on the contents of the Herald article. The material that I refer to in this respect includes:

· The characterisation of the proceedings as a "ridiculous liability" claim; · "now call me stupid, call me naïve, call me whatever you like"; · "now if you can't work and you're on a disability pension, how do you keep skydiving? One would imagine a fair bit of effort's involved in skydiving. Perhaps not as much effort as is required to work five days a week"; · "I get depressed about it. The Court heard Mr Dent - and this is the remarkable part of it. I don't quite, I don't understand the claim but I more particularly don't understand this…"; · "I mean it's by its very nature once you get off the ground in a plane with a parachute on I would imagine every time you jump of the plane you are taking you know exactly your life in your hands". 128 Mr Hadley gave evidence that he intended to convey his opinion based on his reading of the Herald article that the plaintiff was a malingerer. He said this: I did a bit of calculating and it appeared that Mr Dent was roughly the same age, or a bit older than me, and having had the first accident in 1972, and then it was reported that he had ten thousand parachute jumps up to the time of 1997, and that he was either unemployed or on some sort of benefit, I thought it would have been difficult to convince Centrelink, or the equivalent thereof that you were unable to work, but you could jump out of a plane ten thousand times (T 174.43-51).

Mr Hadley also gave evidence that he understood the plaintiff had been on a disability pension, or some sort of pension, and that he would have expected a person with a disability not to be able to jump out of an aeroplane. 129 The opinion that Mr Hadley said he intended to convey was that the plaintiff is a malingerer. Elsewhere he put his opinion as that the plaintiff was "a malingerer trying to rort the system". Given Mr Hadley's use of the term, I considered his evidence was that he held, and intended to convey, the opinions contained in imputations (a) and (c). He did not give evidence of holding the opinion in imputation (b). A defence of comment by a servant or agent of the defendant will be defeated if, but only if, it is shown that, at the time when the comment was made, the person whose comment it was, being the servant or agent of the defendant, did not have the opinion represented by the comment. The plaintiff pleaded in his Reply that the defence was defeated by reason that Mr Hadley did not hold the opinion represented by the comment. The case was not conducted on this basis. It was not put to Mr Hadley that he did not possess the opinions to which I have referred. Although Mr Hadley did not, in terms, give evidence of having held the opinion in imputation (b), I am not of the opinion that any defence under s 33 is defeated by reason of it being shown that at the time of the broadcast he did not have the opinion represented by the imputation. 130 The defence of comment of a servant or agent of the defendant (like the other defences of comment provided by Division 7) is only available as to any comment if it is based on proper material for comment or if it falls within s 30(3)(b). 131 In the defendant's submission, the particularised lines are proper material for comment because they are a protected report within the meaning of s 24 and, thus, fall within the definition for the purposes of s 30(1). Mr Evatt submitted that for the purposes of the defence of comment it was necessary for the defendant to establish that the protected report was fair. Section 30(1) includes as proper material for comment material "that is a protected report within the meaning of s 24". A copy of the protected report, or a fair extract or fair abstract from or fair summary of the protected report within the meaning of s 24(3) may be thought to fall within the definition of proper material for comment in s 30(1). In Mr McClintock's submission this is consistent with the policy of the Act and in this respect he referred to the Report of the Law Reform Commission on Defamation (LRC 11, 1971), p 117 [127] - [128] which recommended the enactment of s 24(3), which is extracted in the judgment of Heydon J in Rogers at 372; [149]. A fair summary of a protected report for the purposes of s 24(3) need not be a substantially accurate account of the proceedings provided it is a fair summary of the protected report. I accept that it may constitute proper material for comment.

132 In O'Shane Giles JA noted that it has often been said that in order to be comment the reader should have the opportunity to judge for himself whether the opinion is well founded. His Honour considered that indicating the facts relied upon may assist in characterising the words as comment and went on to say (at [32]): "but not because the reader can judge for himself whether the opinion is well-founded; rather because the reader can see that the author is expressing an opinion on the facts. Saying that the reader has the opportunity expresses the result, not a necessary purpose, and does not exclude the words being comment in other circumstances".

133 If one accepts Mr McClintock's submission that the language to which I have referred in [127] is suggestive of the expression of an opinion, and that each of the imputations was conveyed as comment, it remains necessary that the defendant establish that in each case the comment was based on proper material for comment. The lines particularised as a fair summary of the Herald report do not include the assertions at [114] above. This material was not conveyed as comment but rather it was identified as part of the basis for it. It was not proper material for comment.

134 Mr McClintock referred to s 30(3)(b) which provides that it is a defence to any comment if the material on which the comment is based is to some extent proper material for comment and the comment represents an opinion which might reasonably be based on that material to the extent to which it is proper material for comment. This provision is discussed by Giles JA in O'Shane at [64]. To the extent that the comment in each of imputations (a), (b) and (c) was based on the particularised lines (upon an acceptance for present purposes that they are proper material for comment) it seems to me that the comments in the imputations did not represent opinions that might reasonably be held. The proper material for comment upon which the defendant relies is the summary of the Herald report that the plaintiff had given evidence of making ten thousand parachute jumps and that he had been on a disability pension since 1972 after a motorcycle accident. 135 Turning firstly to imputation (a), the plaintiff is a malingerer. The circumstance that a person has been in receipt of a disability pension since 1972 after a motorcycle accident and that he has executed ten thousand parachute jumps is not capable of reasonably supporting the conclusion that he or she has feigned physical or psychological symptoms in order to avoid work and/or receive the disability pension. A person may able to skydive and yet be entitled to a disability pension based upon a true report of physical or psychological symptoms. 136 Turning to imputation (b), the plaintiff fraudulently obtained a disability pension to which he was not entitled because he was able to make ten thousand parachute jumps. This imputation may be thought to fasten on the circumstances in which the plaintiff applied for and was granted the disability pension. Submissions were not directed to the significance of the use of the word "obtaining" (as distinct from continuing to receive). The imputation links the obtaining of the pension (and the absence of entitlement to it) to the plaintiff's ability to make ten thousand parachute jumps and, to this extent, conveys that the fraud was in continuing to receive the pension to which he was not entitled because of his ability to engage in skydiving. Again, the circumstance that the plaintiff was in receipt of a disability pension since 1972 after a motorcycle accident does not provide a reasonable basis for the opinion in the imputation. The ability to engage in skydiving is not necessarily inconsistent with some incapacity that entitles a person to obtain and remain a recipient of the disability pension. 137 Finally, turning to imputation (c), the plaintiff received a disability pension even though he was well enough to work. The circumstance that a person is in receipt of a disability pension and engages in skydiving does not reasonably support the imputation that the recipient is well enough to work.

138 Upon an acceptance of the defendant's submission that each imputation was conveyed as comment I consider that the defence must in each case fail since the comment was not based on proper material for comment and to the extent that it was to some extent based on proper material for comment the comment does not represent an opinion that might reasonably be based on the material to the extent that it was proper material for comment.

Damages 139 The plaintiff has succeeded on each of the three imputations. Provision is made in s 9(5A) of the Act notwithstanding subsection (2), which provides that the person defamed has a cause of action in respect of each imputation, that if the court finds for the plaintiff as to more than one cause of action it may assess damages in a single sum. I consider that this is the appropriate course to take in the present case. 140 Section 46A of the Act deals with the factors relevant to the assessment of damages. It provides: 46A(1) In determining the amount of damages to be awarded in any proceedings for defamation, the court is to ensure that there is an appropriate and rational relationship between the relevant harm and the amount of damages awarded. (2) In determining the amount of damages for non-economic loss to be awarded in any proceedings for defamation, the court is to take into consideration the general range of damages for non-economic loss in personal injury awards in the State (including awards made under, or in accordance with, any statute regulating the award of any such damages). 141 "Relevant harm" is defined in s 46(1) to mean the harm suffered by the person defamed. 142 The purposes for which damages are awarded for defamation are (i) consolation for the personal distress and hurt caused to the plaintiff by the publication; (ii) reparation for the harm done to the plaintiff's reputation and (iii) vindication of the plaintiff's reputation. The first two purposes address consolation for the wrong done to the plaintiff and the third looks to the attitude of others to the plaintiff: Carson v John Fairfax & Sons Ltd (1992) 178 CLR 44 per Mason CJ, Deane, Dawson, and Gaudron JJ at 60-61.

143 The application of s 46A of the Act was discussed by Hayne J in Rogers v Nationwide News Pty Ltd [2003] HCA 52; 216 CLR 327 at 351; [71] - [77]. His Honour observed that the section does not prescribe a particular, let alone a mathematical, relationship between the damages to be awarded for defamation and the damages for non-economic loss in personal injury awards. He emphasised the fundamental principle that the damages for defamation compensate for the effect of the defamation on the particular plaintiff (at [73]) and went on to observe that s 46A(2) should be understood as having two particular consequences: [75] First, it invites attention to the nature of the injury done by defamation compared with the consequences of physical injury. The injury done by defamation, even if serious, is often evanescent. By contrast, some personal injuries are permanent and devastatingly disabling. One of the principal purposes of an award of damages for defamation is to vindicate the wrong that was done. By contrast, damages for personal injury can compensate, but cannot right the wrong that was done. Yet, in neither defamation nor in personal injuries is there any measure by which the compensation for the non-pecuniary loss which the particular plaintiff has suffered can be assessed except what is "reasonable". [76] The second effect of s 46A(2) flows from both the reference to the "general range" of damages allowed in personal injury cases and the inclusion, within the class of personal injury cases to be considered, of cases where the damages are allowed to be regulated by statute. Treating cases where the damages allowable are capped by statute as included within the "general range" to be considered shows that those statutory limits imposed in cases of motor or workplace accident are not to be taken as being indirectly imposed as limits on the amount to be allowed in defamation. But the reference to the general range of damages does identify the highest sums awarded for the non-economic consequences of personal injury as what might be called a presumptive outer limit for awards for defamation. So much follows from the fact that rarely, if ever, will the harm done by a defamation be greater than the most serious form of physical injury which leads to permanent and serious disabilities. And if that represents the presumptive outer limit to awards for defamation, each particular award that is made must find a place within a range which is marked out in that way. 144 In assessing the damages in this case it is necessary to reflect that the imputations were of a serious character. This is particularly so of imputation (b). 145 The evidence does not establish the extent of the listening audience to the Ray Hadley morning show as at 12 June 2002. Mr Hadley acknowledged in cross-examination that radio station 2GB has a large listening audience and that he is a popular announcer with a wide audience in Sydney (T 176). 146 The defendant submitted that any damages are mitigated by the delay in the commencement of these proceedings. The proceedings were commenced by the filing of the statement of claim on 24 January 2003. The plaintiff was made aware that he had been the subject of comments on the Ray Hadley Morning Program on the day of the broadcast. As the result of this information, he sought to obtain a transcript of the broadcast and then he applied for a tape-recording of it. I do not draw the inference from the delay of six months or thereabouts (which period includes the Christmas vacation) that the plaintiff did not regard the defamation as a serious matter.

147 Mr McClintock referred to the judgment of May LJ in Burstein v Times Newspapers Ltd [2001] 1 WLR 579 at 587; [18] and 589; [924] in support of a submission that in assessing damages for defamation it is open to take into account evidence that is otherwise before the court bearing on the plaintiff's reputation. He also referred to the decision of the House of Lords in Grobbelaar v News Group Newspapers Ltd [2002] UKHL 40; [2002] 1 WLR 3024. The recourse to the latter decision was explicitly advanced on the assumption that the defendant had proved the substantial truth of imputation (a) (T 228.57-229.4). I understood the submissions that Mr McClintock advanced generally in reliance on both these decisions (and Maling v S Bennett Ltd (1928) 29 SR (NSW) 280 per Ferguson J at 290) to depend on the justification of imputation (a). If I am wrong in so understanding the submission, I record that I do accept the submission that the actual damage to the plaintiff's reputation is "very, very thin" (T 229.42). 148 The plaintiff pleaded a claim for aggravated damages. This was not developed in the course of submissions nor did Mr Evatt submit that the conduct of the litigation, including by maintaining the defence of justification and the associated attack on the plaintiff's credit, was unjustifiable so as to entitle the plaintiff to an award of aggravated damages (T.258.35-46). 149 The plaintiff gave evidence that he had come to learn of the broadcast on the day it was made. He had received telephone calls from at least two persons to tell him of it. He recalled being told that it had been said in the course of the radio program that he had been on a disability pension since 1972. The plaintiff said he was very upset on hearing of the broadcast because it was not true (T 55). He had been mortified when he heard a recording of the broadcast. He understood that the Ray Hadley morning program had a wide audience. He was very upset at the thought that thousands of people who probably knew him would hear it and that there would be no opportunity for him to explain that it was not true (T 57). 150 The plaintiff said that apart from the two phone calls he had received on the day of the broadcast, "a few" other people had made comments on it. He was asked what had been said to him and he responded: Derogative comments, laughed at me "you've been on the dole since 1972". You know, like, "you're just a bludger" basically and it was said to me by someone who had an axe to grind, you know (T 82.25-28).

151 The plaintiff gave evidence that he had not been invited to social functions since the broadcast. I have referred earlier to the plaintiff's evidence that he has always been socially inept. He agreed that he had been black banned by the Australian Parachute Federation over an incident arising out of a complaint that he made about the conduct of another member of the Federation. This event no doubt contributed to him being isolated from a number of persons associated with the skydiving community. The evidence did not establish that the plaintiff has, in fact, suffered any curtailment in his social life as the result of the publication. 152 The plaintiff called two witnesses to his good reputation. Ray Webster had been the chief parachute instructor for the Australian Parachute Federation. He had frequent contact with the plaintiff in the period from 1973 until 1990. Since that time he has seen him from time to time and maintained telephone contact. Mr Webster gave evidence of the plaintiff's reputation for reliability and honesty. 153 Craig Williams is a computer systems engineer. He has known the plaintiff since about 1994 or 1995. Mr Williams was working at a computer shop in Mittagong when the plaintiff came to the shop to hire a computer. Mr Williams set up the computer for the plaintiff and from that time on had regular contact with him, until he moved to Sydney in 1997. From 1997 he had maintained contact with the plaintiff, seeing him every three to four weeks. Mr Williams described the plaintiff as a person held in high regard as a skydiver and as a "very moral and ethical person, hardworking, honest" (T 164.35-37). 154 The law presumes that a person who has been defamed suffers injury to his reputation: Bickel v John Fairfax & Sons [1981] 2 NSWLR 474 at 483. I accept that the plaintiff suffered considerable hurt and distress on hearing the broadcast particularly taking into account the strength and sustained nature of the attack. Taking into account these considerations and the vindication of the plaintiff's reputation consistently with the provisions of s 46A(2) as explained by Hayne J, I assess the plaintiff's damages at $65,000. There will be a verdict and judgment for the plaintiff. 155 The Act makes provision for costs in proceedings for defamation under s 48A. The matter may be listed by arrangement with my Associate for the determination of interest and costs.

ORDERS 1. Verdict and judgment for the plaintiff in the sum of $65,000;

2. The proceedings may be re-listed by arrangement with my Associate on three days' notice for submissions on interest and costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.