(h) the maintenance upon the record by the defendant until the day of the trial of pleas of qualified privilege which pleaded the reasonableness, bona fides, and public benefit of the defendant's conduct in publishing the imputations."
159 At the conclusion of the proceedings, the plaintiff, through his senior counsel, abandoned reliance on particular (b), but maintained reliance on all other particulars.
160 In Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225, Glass JA quoted from the speech of Lord Reid in Cassell & Co Ltd v Broome [1972] AC 1027 at 1085, in which his Lordship said:
"It has long been recognised that in determining what sum within that bracket should be awarded, a jury, or other tribunal, is entitled to have regard to the conduct of the defendant. He may have behaved in a high-handed, malicious, insulting or oppressive manner in committing the tort or he or his counsel may at the trial have aggravated the injury by what they there said. That would justify going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation."
161 Glass JA added:
"Conduct of the kind there impugned could add to the compensatory damages because it aggravated the injury and increased the harm done to the plaintiff. Since compensatory damages could, ex hypothesi, only be given for harm done to the plaintiff, the common law regarded such matters of aggravation as falling within the relevant harm proved."
162 His Honour considered that the effect of any such conduct upon the plaintiff could be demonstrated by inference without the need for direct evidence. Failure to make inquiries and failure to recant prior to trial were two matters which, his Honour considered, were available so to be taken into account.
163 Hutley JA also regarded the failure of a defendant to retract or apologise as a matter proper to be taken into account in the calculation of damages. However, he considered that recklessness in the publication must be shown to have affected the plaintiff in order to be relevant harm and thereby to have aggravated the damages.
164 In Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at [66], Mason CJ, Deane, Dawson and Gaudron JJ wrote:
"… we have difficulty in understanding how the mere absence of an apology can aggravate damages. Whereas publication of an apology may mitigate damage, thereby reducing the harm suffered by a plaintiff in a defamation case, and so reduce the damages awarded, the failure to publish an apology does not increase the plaintiff's hurt or widen the area of publication. No doubt want of an apology may be a relevant factor in establishing that a defendant is motivated by a desire to injure the plaintiff but that does not mean that the want of an apology itself aggravates the plaintiff's injury. Furthermore, it is of the utmost importance that juries should be instructed that any award of aggravated damages must be confined to what is truly compensation for relevant harm and must not include any element of punitive damages. Otherwise an invitation to award aggravated damages by reference to the defendant's conduct before and at the trial may be understood as an invitation to award punitive damages."
165 This statement of the High Court, however, can no longer be taken at face value. In Clark v Ainsworth (1996) 40 NSWLR 463 Sheller JA and Abadee AJA scrutinised the basis on which the absence of an apology might be used in the assessment of damages, including aggravated damages. Sheller JA noted:
"Only unjustifiable or improper conduct by the defendant can be taken into account in giving aggravated damages."
166 His Honour rejected a submission there made on behalf of the defendant that a failure to apologise could increase the damages only if it was shown that that was improper or unjustifiable or demonstrated lack of bona fides. Ultimately, his Honour identified a distinction between a defendant's failure to apologise as a factor in a claim for aggravated damages, which would require a plaintiff to particularise and prove that the failure involved or was part of a course of unjustifiable or improper conduct by the defendant, and the failure to apologise as contributing to the plaintiff's hurt caused by the persistence in and continued spread of the matter published.
167 It seems to me that what this means is that the failure to apologise may be taken into account in aggravation of damages, but only where the failure is accompanied by, or part of, a course of unjustifiable and improper conduct on the part of the defendant. The failure to apologise is relevant in a more general sense to the assessment of non-aggravated compensatory damages as part of the distress caused to the plaintiff as a result of the persistence of the defendant in maintaining the imputations.
168 Abadee AJA wrote:
"In my opinion a mere refusal or failure to apologise is relevant to general compensatory damages, and is capable of being included as a component of such damages."
169 Simos AJA agreed with both Sheller JA and Abadee AJA.
170 I am plainly bound by the decision in Clark v Ainsworth and must apply it in the consideration of the plaintiff's claim for aggravated damages, especially in relation to that aspect of the defendant's conduct which forms the basis of the first particular.
171 In considering all particulars, I bear in mind the observation of Sheller JA to the effect that only unjustifiable or improper conduct of the defendant can be taken into account in an award of aggravated damages. That means it is necessary individually to consider each of the instances of conduct asserted by the plaintiff as giving rise to aggravation of the damage caused by the publication of the defamatory imputations.
172 The first question is whether or not the defendant's failure to apologise did amount to unjustifiable or improper conduct. The plaintiff's solicitor wrote to the defendant promptly, on the day of publication (exhibit D). He asserted that the article contained "a number of untruths" of which Mr Wainwright was clearly aware and had chosen to ignore despite being informed by the plaintiff of the facts. He detailed errors he asserted to be contained in the article, these being the suggestion that the plaintiff's business dealings over a period of ten years were being investigated; the deliberate and (it was suggested) malicious omission to report that it was the plaintiff who had requested Mr Mills to refer his business interests to the Director General of the Department of Local Government; and the statement that four political opponents of the plaintiff had detailed a decade of property and business transactions.
173 A reply to this letter was not written until 22 April (exhibit K). A detailed response was then provided to the assertions made on behalf of the plaintiff. One thing that cannot here be overlooked is imputation (d) - the imputation that there are reasonable grounds to suspect that as a member of Marrickville Council the plaintiff had engaged in business deals which conflicted with his duties as a member of the Council. The defendant made no attempt to justify this imputation. Another relevant matter emerges from the answers to interrogatories administered by the plaintiff to the defendant. The defendant said that it did not intend to convey any of the imputations; it did not believe in the truth of any of the imputations; it had no belief as to whether any of its readers might understand the article to convey any of the imputations; that, relevantly, in relation to imputations (b) and (f), Mr Wainwright had given consideration to whether any of the readers of The Sydney Morning Herald might have understood the article to convey those imputations of the plaintiff but that the defendant had given no consideration to that question in relation (relevantly) to imputation (d).
174 It seems to me that what the defendant recognised it could not justify was the imputation that the misconduct it attributed to the plaintiff had continued over a period of ten years. That this was incorrect was drawn to the attention of the defendant by the plaintiff's solicitor in the letter of 11 April. He advised the defendant that questions raised of the plaintiff's non-disclosures related only to the period between 1 July 1995 and 30 June 1996. (It is true that subsequent investigations by the Pecuniary Interests Tribunal found non-disclosures over a period of three years, but this was not known at the time of this correspondence.) Counsel for the defendant argued that the absence of any belief in the truth of the imputations evidenced by the answers to interrogatories, could not be used in aggravation of damages because, that being unknown to the plaintiff at the time, it could not have increased his distress. But that is to overlook the effect of the passage from Sheller JA's judgment in Ainsworth. His Honour does not suggest that knowledge by the plaintiff of the impropriety or unjustifiability of the defendant's conduct is a pre-requisite of the award of aggravated damages. It is clear that conduct of the defendant post-dating publication may be found, and this, too, would not necessarily be known to the plaintiff.
175 I have concluded that the failure to apologise in relation to imputation (d) was unjustifiable. The defendant had the opportunity to make its own inquiries and these would (or should) have brought to its attention the untruth of the imputation. In this respect, at least, the failure of the defendant to accede to the plaintiff's request for an apology was unjustified. I have concluded that this should be taken into account in aggravation of damages.
176 The failure to apologise in relation to imputations (b) and (f) is in a different category. It is plain enough that the defendant's position has changed in relation to these imputations during the preparation for trial. At the time the interrogatories were answered (the date of which is not clear from exhibit S which, however, bears a notation with a date of 15 November 2001) the defendant did not believe that either of those imputations was true. Some time later, obviously, its investigations gave it cause to believe those imputations were true and, for that reason, it set out to justify them. Although I have rejected the defence in relation to each of those imputations, I am not of the view that the defence was plainly untenable nor that the defendant's conduct in attempting to establish their truth was improper or unjustifiable. An apology would have been plainly inconsistent with the position ultimately adopted by the defendant. I do not think that the failure to apologise in relation to those imputations should be treated as a matter aggravating damages.
177 The next matters on which the plaintiff relied in aggravation of damages was the publication of the successive news items on 16 and 17 April, arising from the Council meeting of 15 April. I have already alluded to the evidence given by the plaintiff as to his perception of the imbalance of each of these items. A principal complaint made on his behalf appears to be that in neither of those news items was it made plain that the questions that had been raised concerning the plaintiff's "business interests" and pecuniary interest disclosures was, at that time, limited to the 1995/1996 year. In written submissions it was suggested that each article exaggerated and overstated the controversy. Senior counsel also pointed to what were said to be some factual inaccuracies in the reports - for example, in the 17 April item, a member of State Parliament was quoted as saying that the plaintiff had failed to declare his directorship in Evbaca although this was wrong and, so it was said, known to the defendant to be wrong. That reference was contained in the report in a quotation directly attributed to the member of Parliament. I do not think the defendant should be criticised for not correcting a factual inaccuracy in those circumstances.
178 Even on the plaintiff's own account of the meeting of 15 April, a great deal of hostility and controversy was displayed. So far as I can judge, it could not be said that the news item of 16 April was seriously inaccurate in its description of the meeting: it may have had a slant unfavourable to the plaintiff but it is not such as could be described as distorting the facts, either deliberately or otherwise. Nor, so far as the evidence goes, could the item of 17 April, which was principally a report of proceedings in Parliament, although it also made reference to the meeting of 15 April. I do not perceive the publication of either of these items as being unjustifiable or improper and they are therefore not available to be used in aggravation of damages.
179 The next matter on which the plaintiff relies in support of his claim for aggravated damages concerns the pleas of justification to imputations (b) and (f), and of contextual truth. However, in written submissions, it was explicitly stated that it was not asserted that the plea of truth to imputation (b) was improper, nor the plea of truth of contextual imputation 1. What was put was that the pleas of justification to imputation (f) and contextual imputation 2 were improper because neither carried the defendant's case further than the attempt to justify the earlier imputation. (That is, the attempt to justify imputation (f) went no further than the attempt to justify imputation (b); and the attempt to justify contextual imputation 2 went no further than the attempt to justify contextual imputation 1). This is certainly not so in relation to imputations (b) and (f): the defendant adduced considerably more evidence in its attempt to press the truth of imputation (f) than it did to prove the truth of imputation (b).
180 I have already indicated that I do not think the attempt to prove the truth of the imputations was unjustifiable or improper and I accordingly do not consider that this basis for aggravated damages is made out.
181 No further argument was addressed to particulars (g) or (h), that is, the plaintiff's knowledge of the falsity of the imputations, and the maintenance upon the record by the defendant of pleas of qualified privilege. In my opinion they are not sufficient to justify aggravation of damages: the falsity of the imputations is a matter to be taken into account in relation to damages generally but does not, at least in this instance, in my opinion, aggravate the harm done to the plaintiff. Nor, in my opinion, can reliance on a plea of qualified privilege aggravate the damages in the context of a defence which was ultimately conducted on the basis of the asserted truth of the imputation.
182 I have already mentioned the provisions of s46A of the Defamation Act, directing me to take into consideration "the general range of damages for non-economic loss in personal injury awards in" NSW. Included in that are the provisions of the statutes regulating the award of any such damages. Pursuant to s134 of the Motor Accidents Compensation Act 1999, the maximum amount that may be awarded in respect of non-economic loss arising from a motor vehicle accident to which that Act applies is $284,000.
183 I do not find it easy to comply with the directive otherwise contained in s46A(2). I find it impossible to compare the damage done by injury to reputation with the damage done by any physical injury. No material was put before me by either party from which I could gauge "the general range of damages for non-economic loss" in claims for damages for personal injury. The assessment of damages for non-economic loss for personal injury is, within appropriate ranges, a discretionary matter, subject to the evaluation of the determining judge. It depends upon an understanding of the evidence on which the claim is based and which is put before the judge. Notwithstanding this, I have done my best, in what is undoubtedly an inadequate way, to do as I am directed.
184 What was put before me on behalf of the plaintiff was a schedule containing sums awarded by judges in defamation cases since the introduction of s46A. The information contained in this document included, in each case, the imputation found to have defamed the plaintiff, the nature of the publication, the extent of the audience, and the sum awarded. Given the paucity of the information conveyed in the document (necessarily so) and the discretionary nature of an award of damages, the schedule is of limited assistance.
185 In the present case, the answers to interrogatories have established that 220,533 copies of The Sydney Morning Herald of 11 April 1997 were sold in NSW, and relatively small numbers in the other States and Territories of Australia; that the total estimated number of readers of The Sydney Morning Herald at that date in NSW was approximately 898,000 and in the Australian Capital Territory approximately 51,000. The newspaper was also available on the internet but there was no information as to the extent of access to that service. It is relevant to the assessment of damages that the item complained of was placed in a relatively prominent position on page 3 of the newspaper and in such a fashion as to attract the eye of even a casual reader. The pithy headline would undoubtedly also have attracted attention (as it was, no doubt, designed to do) of casual as well as more committed readers.
186 Some of the damages awards to which I was referred were published by way of electronic media, either television or radio. I take into account that a newspaper publication is more enduring than a publication of that kind, and is, unlike an electronic broadcast, susceptible readily of rereading, and of passing on to others.
187 The case itemised on the schedule most nearly comparable to the present is that of Jarratt v John Fairfax Publications Pty Ltd [2001] NSWSC 739; unreported, 7 September 2001. In that case, the plaintiff, a former Assistant Commissioner of Police, sued on three separate publications, contained in three separate editions of The Sydney Morning Herald, conveying, in all, four defamatory imputations. The estimated readership was, in each case, of an order broadly similar to the present. The imputations were also relevantly similar, in that they suggested that the plaintiff acted improperly or corruptly in the performance of his duties as Assistant Police Commissioner. In respect of the two imputations conveyed by the first publication, McClellan J awarded the plaintiff a total of $180,000; in respect of the single imputation conveyed by the second publication, $100,000; and in respect of the single imputation conveyed by the third, $104,000. I do not treat the award of damages in Jarratt as a precedent; rather, it helps to solidify a view of the quantification of damages at which I had independently arrived.
188 Although each imputation constitutes a separate cause of action, and it may sometimes be appropriate to make a separate award of damages in respect of each (as, for example, before the introduction of the 7A procedure, where a defence of qualified privilege, which had to be decided by a judge after jury verdict, was pleaded), that is not the case here. One single award of damages including such aggravation as has been established, will suffice. I have come to the view that the sum proper to compensate the plaintiff for the damage done to his reputation, including aggravated damages to the extent that I have held they may properly be awarded, is $100,000. That is the sum I propose to award.