Federal Court of Australia|1993-12-03|Before: Doussa JJ

Gary John Humphries v Twt Limited [1993] FCA 577; (1993) 120 ALR 693 (3 December 1993)

Defamation - appeal against assessment of damages - whether error in principle by the trial judge on issues concerning vindication, hurt feelings, and publication of retraction and apology - whether error in principle in not awarding aggravated damages - whether award manifestly inadequate.

Counsel for the Appellant: Mr J. Neil QC with Mr S. Wilcox

Solicitor for the Appellant: Macphillamy Cummins and Gibson

Solicitor for the Respondent: Gallens Crowley and Chamberlain

2. The judgment in the Court below be set aside and in lieu thereof that judgment be entered for the appellant in the sum of $28,000.

3. The order made on 13 May 1993 in respect of the costs of the trial be set aside.

4. The respondent pay the appellant's costs of the action including the costs of the trial on a party and party basis on the Supreme Court scale, and that there be a certificate for Senior Counsel in respect of the trial.

5. The respondent pay the appellant's costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

GALLOP, DAVIES AND VON DOUSSA JJ This is an appeal from a single judge of the Supreme Court of the Australian Capital Territory. The appellant, the plaintiff at trial, sued for damages for defamation arising out of a television broadcast in a news programme at about 6.10 p.m. on 11 October 1990. The respondent is the proprietor of the WIN Television Network which made the broadcast to viewers in the Australian Capital Territory and nearby areas of New South Wales.

2. An award was made in the appellant's favour by the trial judge of $9,000 being $8,000 damages and $1,000 in lieu of interest. The trial judge ordered that the defendant pay the plaintiff's costs on a party and party basis on the Supreme Court scale up to 8 December 1992 (a date, approximately two months before the trial commenced, when a "Calderbank Letter" offer by the respondent of $11,000 plus costs was rejected), that each party pay his and its costs incurred after that date, and that a certificate for senior counsel be refused. The appellant appeals against the award of damages, and the orders as to costs. There is no cross-appeal against the findings that the publication contained material defamatory of the plaintiff.

3. The findings of primary fact made at trial are not in dispute. The appellant was elected as a member of the Legislative Assembly of the Australian Capital Territory on 4 March 1989. He is presently the Deputy Leader of the Opposition, and Opposition spokesperson for various portfolios including that of Attorney-General. For the period from 5 December 1989 to 6 June 1991 he held a ministerial position in the Alliance Government then in power in the Australian Capital Territory. On 11 October 1990, the day of the broadcast, the appellant was Minister for Health, Education and Arts. The trial judge held that that combined portfolio was undoubtedly a very demanding one. There was at the time a climate of reducing government expenditure and the appellant was faced with implementing government policy to close certain schools and the Royal Canberra Hospital. This policy was opposed by various people and community groups who targeted criticism at the appellant.

4. Prior to his election to the Legislative Assembly the appellant had practised as a legal practitioner in the Commonwealth Attorney-General's Department. He had been admitted as a solicitor in New South Wales in 1983. He had also worked for a short time as an adviser to a Senator.

5. On 11 October 1990 the Estimates Committee of the Legislative Assembly had been questioning the Chief Minister, Mr Kaine. Members of the Opposition asked questions concerning ministerial travelling expenses, and it is apparent that the Opposition was pressing an attack against the Government for unnecessary travel expenditure by Ministers. The attack was aimed in particular at the expenses incurred by two Ministers Mr Duby, and Mr Collaery, not by the appellant.

6. The words spoken in the news broadcast complained of were as follows:

"Newsreader: In Assembly politics, the Alliance Government has

been attacked for its ministerial travel expenses. Opposition

Leader Rosemary Follett has condemned the cost as wasteful

during a time when the Government is closing schools to save

money.

Reporter: The Opposition says it's having a field day at this

week's Assembly estimates sitting. The latest attack is on

travel expense figures. For the six and a half months the

Alliance Government has been in office, it's spent $40,000.00

on interstate travel for ministers and staff. The minority

Labor Government only spent $6,000.00 during its five months in

office.

Rosemary They can't justify it. I think it's simply Follett:

Ministers taking advantage of money that they believe is

available, but at the same time they're closing schools,

closing Royal Canberra Hospital, and that's just not the kind

of priority that I think the Canberra community deserves.

Reporter: The Minister bitten the most by the travel bug was

Finance and Urban Services Minister, Craig Duby. His conference

hop totalled around $18,000.00 closely followed by Health

Education and Arts Minister, Gary Humphries. He and his staff

spent just over 17,000.00. Meanwhile, Chief Minister, Trevor

Kaine before Estimates this morning considered his plans for

two new ACT Ministers would cost the Government money.

Rosemary It's the first time he has admitted that. He's

Follett: previously said that it wouldn't cost any extra, which

I don't think anyone would have believed, and what he has said

that to pay for those extra Ministers, he'll have to find

additional savings.

Reporter: Meanwhile the Opposition was also in the attack over

school closures. Education spokesperson, Bill Wood, says he's

been leaked a National Capital Planning Authority submission to

the Commonwealth Grants Commission.

Bill Wood: Closing down in its terms the infrastructure will

make it less safe, make the suburban roads less safe, because

we'll be putting our children out of that very comfortable

environment."

7. Ms. Rosemary Follett was the leader of the Opposition at the time. Mr. Bill Wood was Opposition spokesperson on Education.

8. The statement that the plaintiff and his staff 'spent just over 17,000.00' was wrong. The correct sum was $4,978. Immediately after the broadcast, a personal assistant to the appellant, Mr. Rohan Greenland, telephoned the WIN studio and advised that the sum spent by the appellant and his personal staff on travel during the period in question was about $5,000. At about 6.30 p.m., just before the end of the news program, a newsreader read an announcement in the following words:

"Just before we go tonight, a correction to an earlier story.

The Education Minister's Department spent five thousand dollars

not seventeen thousand dollars on travel as reported."

9. The news programme ran over one half-hour and contained local news, weather and sport reports, interspersed with advertisements. In the material complained of the words spoken by the newsreader were accompanied by visual footage of the newsreader. During the first passage spoken by the reporter, various ACT politicians (not including the appellant) were shown together around a table at a meeting, which may or may not have been the Assembly estimates sitting. Ms. Follett was shown speaking in a street or park. The second passage spoken by the reporter was against a background showing in turn Mr. Duby, the appellant and Mr. Kaine. Mr. Wood was shown speaking outside a school. The part in which the appellant appeared was shown at the time of the mention of his name and the expenditure of $17,000. It was a clear close-up visual image of the appellant, apparently at a Legislative Assembly sitting.

10. On the following Monday, 15 October 1990, the appellant issued proceedings claiming damages for defamation against the respondent in the Supreme Court, and issued a press release advising that he had done so. There is no evidence that the content of the press release was published by the respondent or by any other media outlet. However, on 16 October 1990 the respondent proffered a draft of an apology to the appellant's solicitors which it proposed to publish. The appellant considered the apology to be inadequate and added a further paragraph so that the draft read:

"APOLOGY SOUGHT

On the eleventh of October we broadcast a story on estimates

committee hearings into Alliance government expenditure.

In that story it was reported that Health, Education and Arts

Minister Gary Humphries and his staff had spent just over

seventeen thousand dollars on travel expenses.

WIN has since been informed that the sum is incorrect - and

that the actual sum spent was four thousand nine hundred and

seventy eight dollars.

WIN Television unreservedly apologise to Mr. Humphries and his

staff for the error.

WIN Television did not intend to suggest that Mr. Humphries'

travel expenditure was in any way excessive or that he

travelled more often that (sic) his ministerial duties

warranted. If viewers did interpret the story in that way, WIN

withdraws any such suggestions, acknowledges that they are

completely unfounded and expresses its regret that the story

should have been understood in that unintended way."

11. On 18 October 1990 in the same news programme as that in which the broadcast complained of had been made one week earlier, the respondent read an apology in slightly different words. The respondent said:

"On the Eleventh of October we broadcast a story on estimates

committee hearings into Alliance Government expenditure.

In the story it was reported that Health, Education and Arts

Minister Gary Humphries and his staff had spent just over

seventeen thousand dollars on travel expenses.

WIN has since been informed that the sum is incorrect - and

that the actual sum spent was four thousand nine hundred and

seventy eight dollars.

WIN accepts that the travel undertaken by the Minister and his

travel expenditure were not excessive and should not be

construed so.

WIN television unreservedly apologise to Mr. Humphries and his

staff for the error."

12. At no stage, even at trial, did the respondent communicate to the appellant the reason why the erroneous information as to the travel expenses of the appellant and his staff came to be broadcast.

13. The appellant alleged that the following three imputations arose out of the broadcast complained of in its natural and ordinary meaning:

"(a) The plaintiff was prepared to use for the purposes of

travel public funds that could otherwise have been employed to

prevent the closure of schools and hospitals.

(b) The plaintiff was wasteful in his use of public funds for

travel by himself and his staff.

(c) The plaintiff was more extravagant than almost all of his

ministerial colleagues in his expenditure of public funds on

travel for himself and his staff."

14. The respondent in its pleadings and at trial denied the imputations, and denied that such imputations were defamatory. The trial judge however held that imputations (a) and (b) were clearly made out. In the case of alleged imputation (c) the trial judge held that the term "almost all" was inexact as there were only four Ministers in the Government, but that the imputation nevertheless contained the "sting" of the libel namely that the appellant was more extravagant than his ministerial colleagues not named in the broadcast, and to that extent the imputation was made out. Each of the imputations was held to be defamatory. These findings are not now challenged by the respondent.

15. The statement of claim alleged that the publication of the defamatory material took place in New South Wales as well as in the Australian Capital Territory. In the defence, the respondent pleaded that insofar as the publication occurred in New South Wales, the matter complained of was published under qualified privilege at common law as it had a social and moral duty to inform the public and taxpayers of the level of ministerial travel expenses, and under s.22 of the Defamation Act 1974 (NSW). Further, the respondent also relied on s.13 of that Act, pleading that in the circumstances of the publication the appellant was unlikely to suffer harm. These pleas were withdrawn at the commencement of the trial. That these defences had been pleaded, then abandoned at the last moment, was relied on by the appellant, in addition to other matters, as supporting a claim for aggravated damages.

16. The issue of damages was hotly contested at trial. The contentions of the appellant that his reputation had been damaged, and that his feelings had been severely hurt by the published material and by the later conduct of the respondent were disputed. In cross-examination it was suggested to the appellant that he was exaggerating, even fabricating the extent of the hurt he suffered to bolster his claim. The trial judge, however, appears to have accepted, almost without exception, the evidence adduced in the appellant's case, and in particular his Honour expressly accepted the evidence of the appellant.

17. The appellant was informed of the broadcast complained of within minutes of it going to air by Mr Greenland, and saw the correction either when it was broadcast, or on replay of a video tape, within minutes of it being broadcast. The trial judge held that the matter complained of did not include the correction which was to be treated as a discrete publication. His Honour contrasted the situation where a correction is published in one part of a written publication to a defamatory error in another part, where the publication as a whole should be regarded as including the correction. The broadcast at 6.10 p.m. was made without indication that it would be subject to later correction. The opening remarks in the material complained of by the newsreader had an arresting quality that made it likely that most viewers who heard the beginning of it would have lasted through to the end. However, the nature of the full news broadcast was such that his Honour concluded that there would have been numerous viewers who saw the matter complained of, but who did not see the correction, but it was impossible to determine what proportion of viewers would have been in this category. Moreover, there would have been many people who saw the matter complained of, with or without the correction, who would not have seen the apology put to air one week later. The appellant led no evidence of the likely number of viewers of the WIN evening local news broadcast on a Thursday, nor of the potential number of viewers in either the Australian Capital Territory or in New South Wales. The trial judge, no doubt relying on local knowledge, held that the matter complained of would have been seen by some thousands of viewers. These findings are not challenged.

18. The trial judge accepted the evidence of the appellant that as a Minister he had determined to be frugal with the use of money in his ministerial office and to set an example to others. He said he was cautious about where and when he travelled, and when he did so, he attempted to travel economy class. Sometimes when he arranged to travel economy class, the airline would upgrade his seat, and he would hear disparaging remarks from other passengers making their way to the economy class seats. He attempted to avoid that sort of criticism by a "lean office administration" and refraining from expenditure which might be the subject of criticism. He decided not to attend a meeting of Ministers of the Arts in New Zealand in 1990 because he felt he could not justify overseas travel in the midst of "stringent belt-tightening".

19. When the appellant viewed the video tape of the broadcast on 11 October 1990, he said he was very angry and upset about what he saw as an attack on his personal integrity. He was upset about the implications he felt that the broadcast would have in relation to his reputation both personally and politically and felt that it would deprive him of what he called "moral authority". When he saw the correction he was not much mollified by it, if at all, and felt that it gave the impression that he was still in some way implicated because the reference was to the Education Department and not to himself and his staff.

20. The appellant said that he noticed the reactions of people towards him were different after the broadcast. He mentioned particular incidents in which people displayed animosity towards him which he claims would not have been displayed except for the broadcast. At a meeting at a primary school (date unspecified), a parent referred to "millions spent on travel, on lurks and perks for Ministers." A colleague, a friend, and his secretary made hurtful comments to him.

21. The trial judge also accepted the evidence of Mr Greenland, of the Secretary of the Department of Health, Education and Arts at the time, and of two of the appellant's political opponents Mr Wood and Mr Whalan, who spoke of the appellant's reputation immediately before the broadcast complained of for integrity, hardwork and commitment to fiscal responsibility. His Honour said:

"I have no doubt that the plaintiff had a high reputation for

honesty, hard work and thrift. At the time of the initial

broadcast, at about 6.10 p.m., the plaintiff's reputation in

that regard stood to be severely damaged."

22. The evidence of these witnesses just referred to, and also of another member of the Legislative Assembly established that after the broadcast there were people in the Public Service, who probably knew the true situation, who were jokingly referring to the appellant as "Minister for travel", and others who did not know the true status in whose eyes the reputation of the appellant had been lowered.

23. Reference has already been made to the appellant's evidence of the hurt felt by him when he first learned of the broadcast. He said that the publication was "the most distressing thing that has ever been said about me in my life".

24. The appellant said that he was further hurt by the apology that was broadcast as the respondent, by the terms of the apology, seemed reluctant to correct fully the original impression erroneously given. He felt the apology was tight lipped, terse, and the bare minimum needed for a technical correction. As the litigation continued he said his hurt feelings were continued by certain correspondence over the adequacy of his discovery, over interrogatories, and by the defence of qualified privilege pleaded in respect of the publications in New South Wales. The appellant said that he felt the respondent was playing games with him, using his reputation and feelings as a tactical weapon, deliberately prolonging the proceedings and making them complex and costly so as to punish him for having the audacity to sue.

25. As to the appellant's evidence about the hurt to his feelings the trial judge said:

"From my observation of the plaintiff in this case and from a

consideration of the evidence, I formed the view that he is a

person of sensitivity, with a particular consciousness of his

own sense of morality, so that he was likely to be particularly

hurt if he thought that his own propriety was questioned or

under attack. Hence I have no difficulty at all in accepting

his account of his own hurt and outrage when he saw the tape of

the original defamatory broadcast. I find it somewhat

difficult, however, to appreciate his attitude to the

correction and the apology. I do not doubt his genuineness in

rejecting the correction and the apology. Indeed, I do not

doubt that the very lack of completeness as he saw it in both

the correction and the apology was something which caused him

subjective hurt. I take a similar approach to the evidence of

the effect of the conduct of the litigation, the occasions on

which he read correspondence and considered answers to

interrogatories, on which occasions, as he said, the hurt was

revived or increased, and similar occasions."

26. The purpose of an award for damages for defamation is to provide consolation for the plaintiff's personal distress, reparation for the harm done to his reputation, and vindication of that reputation: Carson v John Fairfax and Sons Ltd [1993] HCA 31; (1993) 113 ALR 577 at 589. To make the imputations proved against a Minister whose reputation is as it was found to be in this case would, in the absence of correction and apology to mitigate the harmful effects of the defamation, attract a high award of damages. That would be so even in the absence of circumstances of aggravation. The imputations involved assertions of impropriety by a Minister in the proper allocation of public funds. The award made in the present case was, however, a low one. The trial judge said that he intended it to be a "modest" one, because of the correction and apology, and because he considered that the claims for aggravated and punitive damages had not been made out.

27. Counsel for the appellant contends that the damages awarded are so low as to indicate that the trial judge gave undue weight to the effect of the correction and apology; that the award is so far below the level necessary to vindicate the appellant's reputation as to indicate error; that an entitlement to aggravated damages was established on the evidence; and that the trial judge erred in finding that the injury to the appellant's reputation in New South Wales was "extremely small, almost minimal".

28. As the damages award under appeal was made by a judge sitting without a jury, the award does not enjoy the peculiar historical sanctity accorded to the verdicts of juries in libel actions: Dingle v Associated Newspapers Ltd (1964) AC 371 at 393, and Carson v John Fairfax and Sons Ltd [1993] HCA 31; (1993) 113 ALR 577 at 595. Damages in a defamation case are essentially matters of impression and common sense: Dingle v Associated Newspapers Ltd at 393. The assessment of damages by a judge is more like the exercise of a judicial discretion than an ordinary act of decision. An appeal from an exercise of discretion is to be determined according to established principles: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505, Miller v Jennings [1954] HCA 65; (1954) 92 CLR 190. In the application of those principles to an appeal against damages assessed by a judge in a defamation action, Dixon J in Smiths Newspapers Ltd and Another v Becker [1932] HCA 39; (1932) 47 CLR 279 at 300 described the role to be performed by the appellate court:

"If it appeared that his Honor had proceeded upon any wrong

principle in fixing the amount of damages, there can be no

doubt that we ought to interfere. But I am unable to see that

he took anything into account in enhancement of damages which

he ought not, or disregarded any element which he should have

considered in mitigation. We are not in the same position as

the Judge at the trial for assessing damages for defamation. He

has an opportunity denied to us of judging the true character

of the plaintiff whose sensibility, refinement and feelings of

honour are, where they exist, of no little importance when he

is held up to public obloquy and infamy. So far as the conduct

of the trial forms an aid in estimating the degree of

impropriety involved in the publication complained of, the

trial Judge has peculiar advantages. The question what amount

awarded to the victim of a public outrage is enough to serve at

once as a solatium, vindication and compensation to him and a

requital to the wrongdoer can only be solved by an exercise of

a discretionary judgment, and a Court of appeal should not, in

my opinion, interfere and review the sum fixed unless it is

able to infer from the amount adopted by the trial Judge, or

otherwise, that in some way his discretion must have

miscarried."

29. Where it is not shown that the trial judge acted upon a wrong principle of law or misapprehended the facts, the court will infer that the judge's discretion miscarried only where it is satisfied that the amount is so high or so low as to be a wholly erroneous estimate of the damages to which the party is entitled. Where specific error in principle or fact cannot be identified Fox J in Mirror Newspapers Ltd v Jools [1985] FCA 153; 65 ALR 174 at 176 said:

"It then becomes a question of what matters his Honour could

properly have taken into account in arriving at this amount,

and whether, bearing these matters in mind, the award should be

disturbed."

30. The submissions of counsel for the appellant for the most part catalogue many features of the evidence which it is argued must have been given inadequate weight. However, the submissions also seek to identify a number of errors in principle in the reasons for judgment, and it is convenient first to refer to them.

31. It is contended that the trial judge failed to appreciate the importance of vindication as an element of damage and the importance of assessing damages at a level sufficient to nail the defamatory statement as a lie: Rigby v Associated Newspapers Ltd (1969) 1 NSWLR 729 at 743. This contention cannot be sustained. The trial judge quoted from Broome v Cassell and Co Ltd [1972] UKHL 3; (1972) AC 1027 at 1071 that the award should be sufficient for the plaintiff to be able to point to it in order to convince a bystander of the "baselessness of the charge". Moreover, his Honour recognised that where a serious libel has been published about a person, it is unlikely that a substantial correction or apology will completely eradicate the effect on reputation of the person in the community. That the damages must achieve the purpose of vindication was recognised. Whether in the end sufficient weight was given to that consideration, and whether the award is sufficient to achieve that purpose are different questions. His Honour said in dealing with this aspect:

"...when there has been a substantial retraction of the libel,

by way of correction and apology, the hypothetical bystander

may not need much convincing in terms of dollars and cents that

the allegations against the plaintiff are true."

32. Whether that is so in a particular case depends on matters of degree; the seriousness of the defamation, the extent of its publication, the fulsomeness of the correction and apology, and the extent to which the correction and apology would come to the attention of those to whom the defamation was published.

33. It is further contended that the trial judge fell into error when considering compensation for the appellant's hurt to his feelings. First, it is submitted that his Honour erroneously held that the power to award damages for hurt feelings is "much in the nature of a discretion". The assessment of damages for injury to feelings is akin to the assessment of damages for bodily injury where it has long been recognised that the assessment is in the nature of the exercise of a judicial discretion: Davies and Anor. v Powell Duffryn Associated Collieries Ltd (1942) AC 601 at 616-617, Miller v Jennings at 195-196. In this respect the approach of the trial judge was correct.

34. Secondly, it is submitted that his Honour erroneously took into account the conduct of the respondent when he said that "if the respondent has taken prompt and effective steps to reduce the harm to reputation by publishing a retraction, then I think the tribunal of fact is quite entitled to consider that the award for hurt to feelings should be modest". It is submitted that the conduct of the respondent was irrelevant when assessing damages for hurt feelings; the only relevant question was whether, in fact, the respondent's actions resulted in hurt to the appellant's feelings. It is said that a right to recover damages for hurt feelings exists independently of whether or not the defendant's actions were unjustified, improper or lacking in bona fides. On a fair reading of the reasons for judgment the trial judge was not suggesting that any such requirement existed before damages for hurt feelings could be otherwise than modest. His Honour was merely making an observation about the facts, appropriate in the circumstances of this case, that where steps which are both prompt and effective have been taken by publishing a retraction to reduce the harm to reputation, then hurt to feelings, as a matter of ordinary human experience, may not be great. But again, whilst error in principle is not demonstrated, there remains the separate question whether sufficient weight was given in the assessment of damages to the findings of fact that the appellant was a person of sensitivity who felt greatly distressed when he learned of the broadcast which attacked the propriety of his conduct as a Minister, and that he continued to feel hurt by reason of the attitude of others to him even after the correction and apology were published.

35. Among the many submissions made on the appellant's behalf that in one way or another the trial judge over-estimated the ameliorative effect of the correction and of the apology, there are submissions that his Honour failed altogether to take into account particular facts, for example that the correction did not refer to the appellant by name, did not show a visual image of the appellant as it was read, did not contain an apology and was garbled, and that even a prompt and fulsome apology would not completely eradicate the damage done to a plaintiff's reputation. A full reading of the judgment however, shows that the trial judge did not make the factual errors alleged. He mentioned each of the matters about which complaint of omission is made in the submissions. In particular he was alive to the fact that even with viewers who saw the correction "there was likely to remain in the mind of the ordinary viewer ... a suspicion or lurking doubt as to the propriety of the plaintiff's conduct", that there would be viewers who saw the matter complained of but saw only one, or neither of the correction or apology, and that there could be some viewers who saw all three broadcasts who would nevertheless come away with the impression that the appellant "was somehow at fault". Again, the complaints made on the appellant's behalf are in substance not that demonstrable errors of fact or principle were made, but that insufficient weight must have been given to these factual matters in the assessment of damages.

36. The notice of appeal contends that the claims for punitive damages and aggravated damages were wrongly rejected. On the hearing of the appeal the claim for punitive damages was not pursued, but it was argued that this was a case for aggravated damages. A number of reasons for such an award had been advanced at trial.

37. Reliance was placed on the respondent's conduct in the litigation. It was submitted that by pleading qualified privilege and that the appellant was unlikely to suffer harm by the publication in New South Wales and then abandoning those defences at trial, by the nature of the cross-examination of the appellant, and by raising the matter of truth in interrogatories and correspondence over discovery, the respondent had conducted itself in a way that aggravated the hurt done to the appellant's feelings.

38. It is convenient to deal with these matters in reverse order. The correspondence was a routine exchange between solicitors in the course of litigation where the respondent's solicitors pointed out that the appellant's affidavit of documents discovered no documents relating to the truth or falsity of the imputations alleged, a matter relevant to an issue of aggravation pleaded by the appellant in the statement of claim. In this respect the respondent's solicitors were correct, and documents in this category were later discovered by the appellant. The interrogatory answer relied on is an answer by the respondent's representative that the imputations alleged were intended. As the trial judge pointed out, this answer may be seen as frankness on the part of the respondent in acknowledging that on the footing that the amount of the relevant expenditure was as stated, the imputations were intended. Nothing arises from this answer or from the correspondence that warrants aggravated damages.

39. The remaining matters, the persistence in defences dropped at trial, and the suggestions in cross-examination that the appellant had fabricated his evidence as to his hurt feelings, are more serious ones that on a possible view constituted matters of aggravation. However the trial judge took a different view. He said:

"The withdrawal of defences can, I think, be adequately covered

by a costs order. The conduct of counsel for the defendant did

not seem to me to be extraordinary or improper and again I am

unable to conclude that counsel was acting on instructions

which were motivated by ill-will or other improper motives. The

plaintiff's claims were in many ways unusual. The defendant was

entitled to test them. Ultimately, whilst the attack on the

plaintiff's genuineness failed, the plaintiff's claims were not

all entirely successful."

40. The trial judge had the undoubted advantage over this Court of being present throughout the trial to judge whether the conduct of the proceedings by the respondent and its counsel should be treated as unjustifiable, improper, or lacking in bona fides. Although the question is perhaps close to borderline, it cannot be said that the trial judge was wrong in taking the view which he did.

41. It was submitted that the trial judge misunderstood the case for aggravated damages put at trial, and failed to consider the relevance of the plea in the statement of claim that the injury to the appellant was aggravated by "the falsity of the imputations to the knowledge of the plaintiff" (emphasis added). Falsity of the imputations to the knowledge of the plaintiff is a matter which may aggravate the injury done to the plaintiff: Rigby v Associated Newspapers Ltd (1969) 1 NSWLR 729 at 738-739; Aldridge v John Fairfax and Sons Ltd (1984) 2 NSWLR 544 at 549. Early in his reasons for judgment the trial judge, when summarising the issues raised at trial, said that the basis for the claim for aggravated damages was the alleged knowledge "on the part of the defendant that the imputations were false", and failed to refer to the knowledge of the plaintiff. At trial there had been a quite separate allegation, apart from the one based on the appellant's knowledge of the falsity, that aggravated damages should be awarded because the respondent had had a representative at the Estimates Committee hearing, and either knew the material complained of was false or published it with reckless indifference to the truth or falsity of the material. Perhaps his Honour was referring in his summary to this allegation, but whether this is so or not, when his Honour came to deal with the several matters said to support the claim for aggravated damages, no mention was made of the allegation that the injury to the appellant was the greater because he knew the falsity of the imputations. Elsewhere in the judgment it is plainly held that the magnitude of the appellant's initial hurt and distress arose from the fact that he knew the falsity of the material published, and it is difficult to conclude that this feature of the case was overlooked as an important one in the assessment process. However it would seem that it was not considered as one that could found a claim for aggravated damages.

42. Further, it was submitted that aggravated damages should have been awarded on the ground that the respondent published the imputations knowing they were false, or was recklessly indifferent to their truth or falsity. The trial judge dealt with this allegation and rejected it. His Honour noted that no explanation for the error in the amount of the travelling expenses had been given by the respondent, and canvassed evidence which showed not only that there was no ready explanation for it, but that it was one that should not have occurred had the information in the possession of the respondent been properly checked. His Honour said that he could not conclude that the correction was published otherwise than in good faith, and concluded:

"However, whatever be the explanation for the error, there is

the plain fact of the correction at the end of the program,

followed by the apology a week later. On the face of that, I am

not convinced that it has been shown that there was malice on

the part of the defendant, or even recklessness, with regard to

publication."

43. This conclusion also embodied his Honour's reason for rejecting the related allegation that aggravated damages should be awarded because of the respondent's failure to enquire from the appellant as to the truth of the material to be published before it went to air. Failure to enquire in circumstances where the matter complained of is, or is found to be, substantially inaccurate can support an award of aggravated damages but only if the failure was unjustifiable, improper or lacking in bona fides: Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 76-77; Bickel v John Fairfax and Sons Ltd and Anor (1981) 2 NSWLR 474 at 497. It is implicit in the reasons for judgment, and from the express findings that the material complained of was published without malice or recklessness, and that the correction was published in good faith as soon as could reasonably be expected, that no award of aggravated damages was made because his Honour found that the failure to enquire was not the product of conduct which was unjustifiable, improper or lacking in bona fides. If these findings are to stand, they dispose of these grounds for aggravated damages.

44. There was no direct evidence at trial as to the state of mind of the respondent, and the error remains unexplained. The findings are matters of inference from the primary facts established by the evidence, and this Court is in as good a position as the trial judge to decide on the proper inferences to be drawn from those facts, although an appellate court will give respect and weight to the conclusions of the trial judge: Warren v Coombes and Anor. [1979] HCA 9; (1979) 142 CLR 531 at 551. The inferences drawn by the trial judge were clearly open on the primary facts. The fact of the correction, published as soon as it was, and the apology point against the inferences which the appellant asks this Court to draw. We do not think this Court should differ from the conclusions of the trial judge on this aspect of the case.

45. The final topic where counsel for the appellant contends that identifiable error occurred is in relation to the finding that "the damage to the plaintiff's reputation in New South Wales was extremely small, almost minimal". It is argued that this finding cannot be sustained. The difficulty for the appellant with this submission is that no evidence was led about the geographical spread of the broadcast into New South Wales, or about the potential or likely number of viewers in New South Wales. Even so, the observations by the trial judge that he did not think "the proportion of viewers in New South Wales was more than very small", and that those viewers "were not likely to have much interest in the ACT politics" seem to us to underestimate the impact which the broadcast was likely to have on viewers in the city of Queanbeyan just across the Australian Capital Territory border, many of whom work in the Australian Capital Territory and utilise Australian Capital Territory hospitals and schools. However, given the absence of evidence, it could not be said that the trial judge fell into error on this topic such that an appellate court should interfere with the verdict.

46. Except in respect of a failure to consider the appellant's knowledge of the falsity of the imputations as a ground for aggravated damages, the appellant has not shown error in principle of law or fact in the assessment of damages. Whether this error is sufficient in itself to require that this Court should review the trial judge's assessment and substitute its own is not a question that need be decided, for even if it is not, there remains the question whether, in the absence of discoverable error, this Court considers that the assessment is so low that it should interfere. Here we consider the submissions on the appellant's behalf have been made good.

47. The imputations published of the appellant undoubtedly constituted a serious attack on his reputation both as a Minister and as a legal practitioner. The audience, including those in New South Wales, amounted to some thousands of people, many, if not most of whom would have had a lively interest in the proposed closure of schools in the Australian Capital Territory and the Royal Canberra Hospital, and therefore in the subject matter of the broadcast.

48. The correction, although published as soon as could reasonably be expected, was published some 20 minutes after the defamation. It was in terms that did not identify the appellant by name or by visual image so that those who heard it may not have connected the correction to that part of the news item which related to the appellant. Moreover, the correction did not contain an apology or a withdrawal of the imputations. Even amongst those viewers who saw the correction, and related it to the earlier publication about the appellant, the sting in the imputations may well have remained.

49. The apology came a week later. Although the terms of the apology have been criticised by counsel for the appellant it was, in substance, in the terms requested by the appellant and withdrew the imputations. But it is likely that there were many people who saw the offending broadcast, and by reason of its arresting introduction concentrated on it, who did not see the apology. Even without actual evidence from witnesses that the damaging effects of the publication on the appellant's reputation continued in the minds of some, that fact would be inferred. This is a case therefore where, even though there was a correction and apology which would have substantially rectified the damage to the appellant's reputation in the minds of many, probably most, of the viewers, an award of a sum sufficient to clearly vindicate his reputation was required.

50. In assessing that sum, it is true, as counsel for the respondent emphasised, a television broadcast is transitory and qualitatively different from written material which may be read and re-read. But it is important to recognise the power of television, especially in a news programme many of whose viewers are intently interested in the events of the day, to convey the broadcast message. Moreover, the transitory nature of the broadcast works both ways. The correction and the apology were not in hard copy in the community to be read and re-read.

51. This is a case where, on the findings made by the trial judge, the initial hurt to the feelings of the applicant was considerable. He is a person of sensitivity who was outraged by the knowledge that a wholly false allegation of impropriety in the allocation of public funds had been made against him. Cause for the degree of hurt and outrage initially experienced was lessened to a considerable extent by the correction and apology, but not entirely removed. The failure of the respondent to offer any explanation for the error which was published allowed the hurt associated with the appellant's uncertainty as to the reason for the attack upon him to continue. Had the respondent in the hours which followed the publication of the material complained of given an explanation for the error, that may well have lessened the cause for ongoing hurt feelings to a substantial degree.

52. The injury to the appellant's feelings which attracts compensation includes the anxiety and uncertainty undergone in litigation, for it was reasonable that proceedings should be taken to vindicate his damaged reputation. There was cause for anxiety and uncertainty in this case as the respondent relied on defences that may have defeated the claim in part until trial. Whilst the appellant said in his evidence that his feelings were hurt by certain answers to interrogatories and the content of correspondence between the solicitors, like the trial judge we have difficulty understanding the basis for those feelings. But that is a matter of small moment; there must have been feelings of anxiety and uncertainty about the litigation which are properly to be reflected in compensating damages.

53. Damages are to be awarded sufficient to console the appellant's personal hurt and distress, to make reparation for the harm done to his reputation, and to vindicate his reputation. As the majority of the High Court pointed out in Carson v John Fairfax and Sons Ltd at 589:

"The three purposes no doubt overlap considerably in reality

and ensure that the amount of a verdict is the product of a

mixture of inextricable considerations, (Uren v John Fairfax

and Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118 at 150)."

54. In our opinion, the award made by the trial judge was so low that it failed to provide compensation appropriate to the injury to the appellant's feelings as found by him, and failed to provide a sum that, even in conjunction with the correction and apology, was sufficient to nail the falsity of the imputations. We consider this Court should interfere with the trial judge's assessment. We consider that an award of $25,000 damages should be substituted. To these damages there should be added a lump sum in lieu of interest of $3,000, giving an overall award of $28,000.

55. In light of this conclusion, the basis on which the orders as to costs were made by the trial judge disappears. The trial judge held that notwithstanding O.65, r.7A of the Supreme Court Rules, the appellant was justified in bringing his proceedings in the Supreme Court and prosecuting them in that jurisdiction up to 8 December 1992. On the award which this Court proposes to substitute, the offer in settlement made by the respondent in December 1992 was not a reasonable offer. The complexity of the litigation, created in no small part by the defences on liability raised by the respondent, continued until the commencement of the trial. By that stage, senior counsel was briefed and in Court. The engagement of senior counsel was not unreasonable whilst the defences raised by the respondent remained live issues. In these circumstances there should be orders that the respondent pay to the appellant party and party costs of the trial on the Supreme Court scale, and that there be a certificate for senior counsel in respect of the trial. The appellant is also entitled to his costs of this appeal.

Gary John Humphries v Twt Limited [1993] FCA 577;

At a glance

Court

Decision date

Before

Source

Judgment (79 paragraphs)

Gary John Humphries v Twt Limited [1993] FCA 577; (1993) 120 ALR 693 (3 December 1993)

Parties

Cases Cited (11)