Davis v Nationwide News Pty Ltd

PARTIES : Judy Davis (Pltf) Nationwide News (Def)

COUNSEL : T K Tobin QC/R Glasson (Pltf) T D Blackburn SC/J O Hmelnistky (Def)

SOLICITORS : Brophy Bridge & Mirow Solicitors (Pltf) Blake Dawson (Def)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

JUDGMENT 1 HIS HONOUR: The plaintiff, Ms Judy Davis, claims damages in respect of two publications by the defendant. They relate to a controversy with respect to a proposal to upgrade the lighting of Birchgrove Oval, which is part of a parkland near to where she lives. There was a meeting of the local council to discuss the proposal which Ms Davis attended and at which she spoke. The first article was published in The Daily Telegraph on 23 February 2006. The second is a similar, but not identical article, published in The Sunday Mail on 26 February 2006 in Queensland. The first article is annexure "A" to these reasons and the second is annexure "B". 2 These two articles were part of a series. The first was published in The Daily Telegraph on 22 February 2006 (annexure "C" to these reasons) and re-published on that day in The Courier Mail in Queensland and The Sunday Times in Perth. An editorial was also published in The Daily Telegraph on 23 February 2006 (annexure "D" to these reasons). A further article was published in the Saturday Opinion section of The Daily Telegraph on 25 February 2006 (annexure "E" to these reasons). 3 Pursuant to the relevant provisions of the Defamation Act 2005 (s 22) the jury has found two defamatory imputations in The Daily Telegraph article being as follows:

a. The plaintiff acted in an unreasonable and selfish manner in opposing developments at Birchgrove Oval designed to protect children from physical injury;

b. The plaintiff was a heartless person in being indifferent to the risk of injury to hundreds of young children due to the poor lighting at Birchgrove Oval. 4 With respect to the article in The Sunday Mail the jury found the following defamatory imputation was published: The plaintiff acted in an unreasonable and selfish manner in opposing developments at Birchgrove Oval designed to protect children from physical injury. 5 My present task is to determine the amount of damages which should be awarded to Ms Davis. 6 At the relevant time The Daily Telegraph had an estimated readership of 1.164 million persons. The Sunday Mail had an estimated readership of 1.469 million persons.

The legislative provisions 7 The Act makes provision for the remedies available in defamation proceedings. They are to be found in Division 3 where the relevant sections are as follows: 34 Damages to bear rational relationship to harm

In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded. 35 Damages for non-economic loss limited (1) Unless the court orders otherwise under subsection (2), the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings is $250,000 or any other amount adjusted in accordance with this section from time to time (the maximum damages amount ) that is applicable at the time damages are awarded. (2) A court may order a defendant in defamation proceedings to pay damages for non-economic loss that exceed the maximum damages amount applicable at the time the order is made if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages. (3) The Minister is, on or before 1 July 2006 and on or before 1 July in each succeeding year, to declare, by order published in the Gazette, the amount that is to apply, as from the date specified in the order, for the purposes of subsection (1). Editorial note. For orders under this subsection, see Gazettes No 84 of 30.6.2006, p 5043 (amount declared: $259,500); No 80 of 15.6.2007, p 3793 (amount declared: $267,500) and No 72 of 20.6.2008, p 5482 (amount declared $280,500). (4) The amount declared is to be the amount applicable under subsection (1) (or that amount as last adjusted under this section) adjusted by the percentage change in the amount estimated by the Australian Statistician of the average weekly total earnings of full-time adults in Australia over the 4 quarters preceding the date of the declaration for which those estimates are, at that date, available. (5) An amount declared for the time being under this section applies to the exclusion of the amount of $250,000 or an amount previously adjusted under this section. (6) If the Australian Statistician fails or ceases to estimate the amount referred to in subsection (4), the amount declared is to be determined in accordance with the regulations. (7) In adjusting an amount to be declared for the purposes of subsection (1), the amount determined in accordance with subsection (4) is to be rounded to the nearest $500. (8) A declaration made or published in the Gazette after 1 July in a year and specifying a date that is before the date it is made or published as the date from which the amount declared by the order is to apply has effect as from that specified date. 36 State of mind of defendant generally not relevant to awarding damages In awarding damages for defamation, the court is to disregard the malice or other state of mind of the defendant at the time of the publication of the defamatory matter to which the proceedings relate or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff. 37 Exemplary or punitive damages cannot be awarded A plaintiff cannot be awarded exemplary or punitive damages for defamation.

One proceeding and the statutory "cap" 8 The plaintiff has been successful in relation to the causes of action arising from the two separate publications. Accordingly, in the plaintiff's submission, the statutory "cap" provided by s 35(1), now adjusted to $280,500, is applicable to each cause of action making a combined "cap" of $561,000. I do not believe this to be the correct understanding of the provisions. 9 Section 22(4) of the Act provides that proceedings for defamation may relate to more than one cause of action. Section 23 has the purpose of generally confining the plaintiff to a single "defamation proceeding" and provides that a plaintiff may only bring further defamation proceedings against the same defendant "in relation to the same or any other publication of the same or like matter", with the leave of the court. Both sections 34 and 35 refer to "the damages to be awarded in (any) defamation proceedings." In my opinion the consequence must be that the monetary maximum limits the damages which can be awarded in the proceedings, even if those proceedings involve multiple causes of action. 10 Accordingly, the maximum sum of damages which may be awarded in the present proceedings is that provided by s 35(1), as adjusted.

Evidence of damage 11 Ms Davis gave evidence of her involvement in the controversy with respect to Birchgrove Oval. As my present obligation is confined to the determination of the award for damages for the publications which the jury found to be defamatory, much of her evidence is no longer relevant. I have had regard only to the evidence of harm arising from those two publications. The plaintiff was a convincing witness and I have no hesitation in accepting her evidence. 12 Ms Davis is an actor who is widely accepted as having extraordinary talent. She has been nominated for two Academy Awards and has appeared in many films. She has an international reputation as an actor of the highest quality. Notwithstanding her professional career, Ms Davis gave evidence that she is a private person who has shunned publicity. Many actors seek out personal publicity. Ms Davis said that she had never pursued this course and, although recognising and accepting that her work would be viewed by many people, she said that she had always endeavoured to protect her own privacy and that of her family. The defendant was aware of her desire to maintain her privacy. 13 The plaintiff said that she was distressed by the publication and was "dumbfounded" as to why The Daily Telegraph would have "done that to" her. She became particularly upset when she realised that the publication might have an effect on her daughter, Charlotte, who plays soccer on Birchgrove Oval. The plaintiff came to the realisation that other parents might believe that she was opposed to children playing soccer and accordingly may not want Charlotte to play with their children. Although Charlotte continued to play, Ms Davis concluded that it would be better if she did not accompany her to soccer matches. In fact she has only attended two of Charlotte's matches since 2006. 14 Ms Davis' reaction to the publication was not challenged by the defendant in cross-examination. The plaintiff also said that she was frightened of The Daily Telegraph because she believed it had attacked her before. Although this evidence was challenged I accept that Ms Davis had a genuine fear of her treatment by the newspaper. Ms Davis was entirely unable to protect herself against the publication of defamatory imputations. I have no doubt that her reputation as an actor ensured that many people who may not otherwise have noticed the stories, either read them or became aware of some parts of them. 15 Four witnesses, Mr Brophy, Mr Kaplan, Ms Snow and Mrs Hunt gave evidence of Ms Davis' distress after the publication. Mr Brophy observed that the plaintiff was "completely dumbfounded" and "extremely upset". He believed that the article contributed to Ms Davis' increased determination to maintain a private life. Mr Kaplan recalled Ms Davis telling him shortly after the publication that she was considering taking her daughter out of the soccer team because of her embarrassment, as well as selling her house and moving from Birchgrove. Although Ms Davis did not take either of these actions I am completely satisfied that the publications which the jury found to be defamatory were the source of profound and significant hurt to Ms Davis. 16 The defendant never suggested that Ms Davis did not have a good reputation or was not well regarded in the community. Mr Coombs, the associate editor of The Daily Telegraph, accepted that Ms Davis "was very highly regarded" in the community as a "woman of extraordinary talent … as a member of the arts community." 17 Although highly regarded for her acting, Ms Davis' personal qualities are unknown to the general public. Publication of an imputation that she acted in an unreasonable and selfish manner in opposing developments at Birchgrove Oval designed to protect children from physical injury and the further imputation that she was a heartless person in being indifferent to the risk of injury to hundreds of children, would inevitably diminish her reputation in the eyes of many people. Although it may not have affected their appreciation of her talents as an actor, the damage to her reputation and personal standing would be significant. Any award of damages must adequately compensate her for this injury.

The operation of s 35(2) 18 Section 35(2) provides that damages for non-economic loss may exceed the statutory cap. However, the exceedence is permissible "if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages." The plaintiff contends (inter alia) that by reason of the conduct of the defence during the course of the trial she is entitled to an award of aggravated damages. I shall relate the relevant facts below. If not excluded by the statute, an award of aggravated damages is available at general law. I discussed the principles relevant to aggravated damages in Jarratt v John Fairfax Publications Pty Limited [2001] NSWSC 739 where I said: "113 The law recognises two elements of compensatory damages: ordinary and aggravated damages. In Bickel v John Fairfax & Sons Limited & Anor [1981] 2 NSWLR 474 at 496, Hunt J said: 'Compensatory damages are given to compensate the plaintiff for the harm done to him by the publication of the matter complained of; aggravated compensatory damages (which are also known as merely 'aggravated damages') are given to compensate him when that harm has been aggravated by the defendant's conduct in publishing that matter or by his subsequent conduct.' 114 It has also been stated that aggravated compensatory damages may be awarded if the defendant's conduct is "improper, unjustifiable or lacking in bona fides" ( Vacik at [17]; Triggell v Pheeney (1951) 82 CLR 497 at 514). 115 The correct approach to aggravated damages was explained by Higgins J in Costello and Abbott v Random House Pty Limited (1999) 137 ACTR 1 at 46 where his Honour said: 'The concept of 'aggravated damages' is not, whether calculated separately or not, a different 'head' of damage. It focuses on the circumstances of the wrong doing which had made the impact of it worse for the plaintiff. It is not to go beyond compensation for the aggravation of the harm to repute or feelings. It is not a means of punishing a defendant.' 116 The difference between ordinary and aggravated damages was examined by Levine J in Marsden (para 4732 and following) where he pointed out that factors sometimes thought relevant only to aggravated damages are in fact relevant to ordinary compensatory damages: See Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254 considered by Clarke JA in Australian Consolidated Press Ltd v Ettinghausen (Court of Appeal, unreported, 13 October 1993 at p 25). 117 As the High Court noted in Gray at 4 ; in Uren v John Fairfax & Sons Pty Ltd (1965-66) 117 CLR 118 at 149, Windeyer J observed that the distinction between aggravated and exemplary damages is "not easy to make in defamation, either historically or analytically; and in practice is hard to preserve." The concept of aggravated damages serves as a reminder that there are different elements to the award of damages and the conduct of the defendant, when publishing or defending the publication, may, if unjustifiable, improper, or lacking in bona fides, be reflected in the award of damages if damage is by reason of that conduct suffered by the plaintiff: see Bickel at 497." 19 It was submitted by the defendant that s 35(2) had the consequence that unless the entitlement to aggravated damages arises from "the circumstances of the publication of the defamatory matter", they could not be awarded. The conduct of the trial is not such a circumstance and accordingly could not justify an award of aggravated damages. 20 I do not accept the submission. Subsection (2) does not purport to deal in any general sense with a plaintiff's entitlement to aggravated damages. The subsection is only concerned with the circumstances in which an award of damages for non-economic loss may exceed the statutory cap. Provided the award, including any component for aggravated damages by reason of the conduct of the defence or for other relevant reasons, does not exceed the statutory maximum, I am satisfied that an award of aggravated damages is available.

Malice 21 Section 36 of the Act provides that the court is to disregard the malice or other state of mind of the defendant at the time of publication "except to the extent that [it] affects the harm sustained by the plaintiff." The jury found that the defendant was actuated by malice in publishing the article in The Daily Telegraph and made the same finding with respect to the article in The Sunday Mail. The jury also found that the defendant had failed to prove that Mr Massoud believed the imputations to be true at the time they were published. This involved a rejection of his evidence to the contrary. 22 The Daily Telegraph story of present relevance was published on the day following the publication of the story about the Leichhardt Council meeting at which Ms Davis was present and spoke (annexure "C"). That article, although distressing to Ms Davis, was not found by the jury to contain defamatory imputations as Ms Davis alleged. When approached the following morning by Josh Massoud, the journalist from The Daily Telegraph who wrote the article which the jury found to be defamatory, Ms Davis refused to talk to him. She took this course because she did not believe that Mr Massoud had a genuine interest in publishing her side of the story. Her evidence was: "… A: So, anyway, so I was out in the garden and I could hear that somebody had knocked, and so I went to the gate and asked, 'Who is it?', and he said he was a reporter from the Daily Telegraph and that he thought that I had been very badly treated in the paper that morning and would I give him an interview. Q: What did you say to him? A: I told him to fuck off. Q: Why did you do that? A: Because I didn't believe that what he was saying was true. I believe that he had come to further the attack on me and I didn't want to speak to the Daily Telegraph." 23 Mr Massoud denied Ms Davis' account and said their exchange was in the following terms: "Q: Now, what happened? You said she was, she began to walk down the path, what happened then? A: She, about a third of the way down the path she asked who it was and I said, 'It's Josh Massoud here from the Daily Telegraph. I'm doing a follow-up story on last night's council meeting. I'd like to get your views on why you are opposed to these light towers.' Q: Did you say to her that you thought she'd been very badly treated in the paper that morning? A: No. Q: What did she say in response to what you have just said? A: She said 'Fuck off'. Q: And did she, what did she do then? A: She turned and left, walked back up the path. Q: And where did she go? A: Back into what I gather was her house." 24 The jury rejected Mr Massoud's account and in my view was right to do so. Mr Massoud did not impress me as a witness of truth. 25 Ms Davis believed that The Daily Telegraph would not be fair to her in any article it wrote. She had this view before the first publication on 22 February 2006. That publication confirmed her view that the newspaper "would isolate her and use her in some way." When the article was published the following day Ms Davis' sense of grievance was significantly enhanced by her belief that the newspaper was setting out to humiliate her, using her name and reputation to excite reader interest in the story. She believed, and her belief was borne out by the article that the newspaper would not fairly represent her position on the issue. 26 I am entirely satisfied that Ms Davis was not opposed to young children playing sport or using Birchgrove Oval for that purpose. Her concern was to ensure that it was used in a manner which was compatible with the safety of other users of the parkland. Her views were seriously misrepresented by the article in The Daily Telegraph which included both the headline, "Meet the kids movie star Judy's dark about" and the photograph of young soccer players. 27 Apart from the misrepresentation to Ms Davis, Mr Massoud also misled the President of the Balmain and District Football Club, Mr Thomson. In order to pursue the story which he had in mind he arranged with Mr Thomson for a group of young children dressed in soccer uniforms to be present at Birchgrove Oval that afternoon so that they could be photographed. Mr Massoud falsely represented to Mr Thomson that he was intending to write a story in which the main theme would be the shortage of facilities for youngsters playing sport in Sydney. He did not suggest that the article would concentrate on Ms Davis. Mr Thomson gave evidence that if this had been suggested to him he would not have cooperated. Mr Massoud then wrote the story intending to convey the defamatory imputations with respect to Ms Davis. Although I am satisfied that Mr Massoud was aware prior to publication that Ms Davis' daughter played soccer and had spoken about that matter and the use of Birchgrove Oval at the council meeting, the article made no reference to these matters. 28 In these circumstances I am satisfied that the malice of the defendant increased the harm sustained by Ms Davis and this should be reflected in the award of damages.

Exemplary damages 29 Section 37 provides that the plaintiff cannot be awarded exemplary or punitive damages.

Aggravated damages 30 The plaintiff claims aggravated damages and contends that both damage to her reputation and injury to her feelings justify such an award. She emphasised that by reason of the publication of The Daily Telegraph in New South Wales and The Sunday Mail in Queensland, the defamatory imputations were read by a wide audience. 31 The plaintiff further submitted that the defendant's conduct at the trial justified an award of aggravated damages. During the course of her cross-examination counsel said to Ms Davis: "Q: You did, Miss Davis, storm out of that meeting? A: No, I didn't. Q: You were angry, weren't you, when you left the meeting? A: No, I wasn't angry. Q: Do you often get angry? A: No. Q: Do you have a problem with anger management? A: No. Q: Did your spouse once take out an apprehended violence order against you? A: No. TOBIN: I object to that. HIS HONOUR: Was there an objection? TOBIN: She has answered it. WITNESS: No." 32 At common law there is no doubt that the conduct of the trial by the defendant may aggravate the plaintiff's damages. In Harbour Radio Pty Limited v John Tingle [2001] NSWCA 194 the plaintiff was awarded additional damages by way of aggravation because, in particular, of an assertion by defence counsel that the plaintiff was lying to the court. In the present case the assertion in defence counsel's question was that Ms Davis was unable to control her anger to the point where her husband felt it necessary to obtain an apprehended violence order to restrain her. That the allegation was made without any foundation was ultimately admitted by senior counsel during the course of submissions many days after the assertion was first made. Although the allegation was at that point withdrawn it had nevertheless been given very considerable publicity both in Australia and abroad. Evidence from internet searches makes this plain. 33 Although she did not give evidence on the issue I have no doubt that the implication in the question was very hurtful to Ms Davis and justifies an award of aggravated damages. 34 The falsity of imputations may also justify an award of aggravated damages at common law: see Australian Consolidated Press Limited v Uren (1965-1966) 117 CLR 185 at 205; Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 75. For the reasons I have previously given in my opinion the statute does not operate to remove this limb of aggravated damages. 35 Ms Davis gave evidence that the imputations which the jury found to be defamatory were false. Her evidence was not challenged and the defendant made no attempt to prove them to be true. These circumstances justify an award which includes aggravated damages. 36 Although Ms Davis at an early stage sought an apology from the defendant it was not forthcoming. The defendant has never apologised for or retracted the defamatory imputations, a matter relevant to ordinary compensatory damages: Clark v Ainsworth (1996) 40 NSWLR 463. It is also relevant to aggravated compensatory damages Herald and Weekly Times Ltd v McGregor (1928) 41 CLR 254 at 263. 37 The plaintiff further submitted that I should conclude that The Daily Telegraph was running a campaign against Ms Davis by publishing untruths about her. It is apparent that the article which contained the two defamatory imputations was one of a number of articles published in the newspaper referring to Ms Davis' concerns about the proposal to upgrade the lighting in Birchgrove Oval. Ms Davis came to the view that she was being targeted by The Daily Telegraph and "situations were being manipulated by the newspaper to paint a particular picture of me." The plaintiff's submission emphasised the fact that on the same day as the article containing these imputations was published, an editorial was written and published in the newspaper. It was written by the associate editor, Mr Coombs, who admitted that in writing the story he intended to "mock and ridicule" the position that Ms Davis amongst others, had taken in the matter. He admitted that "his riding instruction" from his editor was "to take the mickey out of Judy Davis with respect to her position on the Birchgrove Oval issue." There was a later article (annexure "E") written by Mr Massoud which, in my opinion, falsely asserted that Ms Davis was against or sour on sport and wanted all sport stopped at Birchgrove Oval. This article omitted any reference to Ms Davis' daughter playing soccer at the oval. 38 The sequence of publications, although referring to the issue of upgrading the lighting at the Birchgrove Oval sporting facility, were centred upon Ms Davis. Although Mr Coombs said that he did not intend to mock Ms Davis but merely ridicule her position I do not accept his evidence. When the articles are framed in such a personal manner the distinction Mr Coombs sought to draw is illusory. I am in no doubt that the defendant saw an opportunity to use the fact that Ms Davis was well known to ridicule her in order to attract readership interest to the story. The article about which Ms Davis complains was attended with extravagant and sensational language. This is reflected in the headline "Meet the kids movie star Judy's dark about", reference to "gloom" and her "R-rated role". There are references to her wealth, storming, simmering, vehement opposition and hijacked. (see para [23]). The attacks upon Ms Davis, especially in para 1-2, 4-7, 11 and 23-24, did not relate to the subject matter of the article or of the alleged occasion of qualified privilege. 39 Notwithstanding these findings I would not conclude that the series of articles constituted a campaign against Ms Davis. Ms Davis believed that The Daily Telegraph was running "a bit of a campaign against" her but did not give evidence that the hurt to her feelings was thereby increased. The jury did not find defamatory imputations in the original article (annexure "C") or the editorial (annexure "D"). There is no doubt that The Daily Telegraph mounted a campaign in relation to Birchgrove Oval and used Ms Davis to attract attention to its stories. However, I am not persuaded that she was further injured by the other publications so as to justify, for that reason, an award of aggravated damages.

Quantification of damages 40 In my opinion this was a serious defamation of Ms Davis. The accusations that she was unreasonable and selfish and heartless with respect to risks to young children inevitably caused her great anguish. It could hardly be otherwise. She is a mother of two children, one of whom, a young adolescent, is actively engaged in sport at Birchgrove Oval. 41 I am also satisfied that the defamatory imputations would have lessened her reputation in the minds of many right-thinking people. A great many people in the community would know of Ms Davis and would have enjoyed her work as an actor. However, because she has remained a private person they would have little, if any, knowledge of her personal qualities. The defamatory articles would be one of the few sources of information by which the public could gain an impression as to her reputation. That reputation would inevitably be damaged by the defamatory imputations. 42 As I have already indicated Ms Davis is entitled to an award which includes a component for aggravated damages. 43 In determining the appropriate award for damages I am required by s 34 of the Act to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded. In my judgment the appropriate award is $140,000. 44 I will not enter verdicts until matters of interest and costs have been considered. **********

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