Holt v TCN Channel Nine Pty Ltd - [2012] NSWSC 770 - NSWSC 2012 case summary — Zoe

NSWNSWSC

Holt v TCN Channel Nine Pty Ltd

[2012] NSWSC 770

Supreme Court of NSW|2012-06-28|Before: Adamson J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2012-06-28

Before

Adamson J

Catchwords

53 NSWLR 430 -Ahmadi v Fairfax Media Publications [2010] NSWSC 702 -AK v Western Australia [2008] HCA 8
232 CLR 438 -Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 -Briginshaw v Briginshaw [1938] HCA 34
60 CLR 336 -Carson v John Fairfax & Sons Ltd [1993] HCA 31
178 CLR 44 -Cassell and Co Ltd v Broome [1972] AC 1027 -Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335

Source

Original judgment source is linked above.

Catchwords

53 NSWLR 430 -Ahmadi v Fairfax Media Publications [2010] NSWSC 702 -AK v Western Australia [2008] HCA 8232 CLR 438 -Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 -Briginshaw v Briginshaw [1938] HCA 3460 CLR 336 -Carson v John Fairfax & Sons Ltd [1993] HCA 31178 CLR 44 -Cassell and Co Ltd v Broome [1972] AC 1027 -Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335278 ALR 232 -Habib v Nationwide News Pty Ltd [2010] NSWSC 92453 NSWLR 89 -Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 -Rogers v Nationwide News Pty Limited [2003] HCA 52216 CLR 327 -Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40

Judgment (29 paragraphs)

[1]

Introduction 1The first and second defendants broadcast a programme on A Current Affair on 28 July 2009 (the Broadcast) about the plaintiff's conduct in connection with his now late wife Karen Holt, who died on 29 December 2009. The plaintiff, Mr Holt, brought an action for defamation and following a trial which was conducted over nine days, the jury found that the Broadcast carried the following imputations defamatory of the plaintiff, none of which was established to be true (the plaintiff's imputations): (a)The plaintiff abandoned his wife against her will to die in a hospital. (b)The plaintiff had behaved disgracefully, by refusing to allow his dying wife to return to her own home from a hospital. (c)The plaintiff had treated his wife like a dying animal, in that he had treated her in an appalling manner. (d)The plaintiff wanted his wife to die. 2There was a fifth imputation alleged, but the jury was not satisfied that it was carried. Accordingly, the jury did not need to consider whether it was defamatory of the plaintiff or whether it was true. The fifth imputation was: (e)The plaintiff physically abused his wife. 3The jury found that the Broadcast carried the following contextual imputations defamatory of the plaintiff: (i)The plaintiff misappropriated $156,000 from his dying wife. (ii)The plaintiff callously withheld money from his dying wife which had been paid out to her pursuant to an insurance policy in respect of her terminal cancer. (iii)The plaintiff is a cruel person, in that he failed to provide proper financial assistance to his wife who had terminal cancer and was destitute. (v)The plaintiff misused thousands of dollars which had been paid to his wife, Karen Holt, as part of an insurance payout in respect of her terminal cancer, by spending the money on his own personal needs and interests. 4The jury found that imputations (ii) and (v) were true. The jury was not satisfied that by reason of the combined effect of the substantial truth of the contextual imputations (ii) and (v), the plaintiff's imputations did not further injure the reputation of the plaintiff. 5A further contextual imputation was alleged, but withdrawn because it was subsumed in plaintiff's imputation (c). It was: (iv)The plaintiff treated his wife in an appalling manner. 6The defendants failed to make out the defence of honest opinion, which it relied upon in respect of plaintiff's imputations (b) and (c). The jury found that although plaintiff's imputations (b) were expressions of opinion rather than statements of fact, they were neither based on facts and matters contained in the Broadcast that were substantially true, nor had the defendants established that the opinions could reasonably have been based on facts that were substantially true. 7Accordingly there must be a verdict for the plaintiff. 8Pursuant to s 22(3) of the Defamation Act 2005 (the Act), it falls to me to determine the plaintiff's damages in light of the evidence adduced at the trial and my findings set out in these reasons.

[2]

The admitted, undisputed or incontrovertible facts 9The plaintiff and Karen Holt married on 15 June 1985 and had three sons: Luke, born 1988, Ben, born 1990, and Sam, born 1992. In 1994 Mrs Holt was diagnosed with a brain tumour, from which she apparently recovered after surgery and radiotherapy. The family moved to the Gold Coast from Sydney in 2002. The cancer recurred as breast cancer in late 2006 and subsequently spread to other parts of her body, including her brain. When the plaintiff and his wife appreciated that Mrs Holt was entitled to a benefit known as Total Permanent Disability (TPD), they made an application for the TPD benefit in June 2007. At the suggestion of the bank manager, Mrs Holt granted an Enduring Power of Attorney (EPOA) to the plaintiff on 24 July 2007. They both made wills at this time. 10The TPD benefit, which in total amounted to $370,000, was eventually paid in October 2007. 11From October 2007 until 19 March 2008, money was withdrawn from that account and various purchases were made, including a speedboat which was named "The Dog House" and a Holden Rodeo motor vehicle, which had sufficient capacity to tow The Dog House. On 19 March 2008, the plaintiff withdrew the whole of the remaining balance of $156,196.02 and deposited it into an account which he opened in his name only. He was the only signatory to this account. 12On 11 February 2009, Mrs Holt was admitted to the Gold Coast Palliative Care Unit to give respite to the plaintiff and their sons with whom she had been living up until that time. 13On 3 April 2009, while still a patient at the Gold Coast Palliative Care Unit, Mrs Holt told the plaintiff that she wanted a divorce. The plaintiff left the hospital and went to the bank where he withdrew almost the whole of the remaining funds from the account he had opened in March 2008. He withdrew $75,000 in cash, took it home and put it in a cupboard. At around this time, he and his three sons moved house. 14When Mrs Holt was discharged from the Gold Coast Hospital Palliative Care Unit she went to live with her sister-in-law Carol who lived in the area. Mrs Holt then had a fall and had to be re-admitted to hospital, after which she was discharged and taken back to Sydney by her mother and sisters. While in Sydney, she lived in a flat with her parents, Mr and Mrs Warner, who cared for her, with help from her sisters. 15When Mrs Holt was in Sydney she saw Mr Frank, a solicitor, and commenced Family Law proceedings against the plaintiff in the Federal Magistrates Court. She affirmed an affidavit in which she deposed: "From the little contact I have had in the community with funeral directors, I understand the average cost of a funeral is about $10,000.00." 16The plaintiff swore an affidavit which he filed in those proceedings in which he deposed that by 8 July 2009, the day he swore the affidavit, he had spent almost all of the remaining $75,000. The plaintiff's affidavit constituted the only evidence of how he had spent the $75,000. 17Mrs Holt received $10,000 and the Holden Rodeo in full and final settlement of her claims. She changed her will and left her property to two of her sisters. She also revoked the EPOA which she had given to the plaintiff in 2007. 18On 28 July 2009, the defendants broadcast a ten-minute segment on its television programme A Current Affair about the way the plaintiff had treated his wife. It contained interviews with the plaintiff, Mrs Holt and members of her family, as well as footage of the plaintiff together with family photographs including those taken on their wedding day and at other social functions. 19Approximately two million viewers watched the programme in Australia. 20Mrs Holt died on 29 December 2009, leaving an estate that comprised little more than her personal effects. The size of the estate did not warrant obtaining a grant of probate.

[3]

The plaintiff's case 21The plaintiff's case, as put to the jury, was in broad terms as follows. 22The plaintiff, his wife and their three sons were, at least until the end of 2006, a happy family. The plaintiff worked as a self-employed carpenter and Mrs Holt worked as a secretary. They pooled their incomes and spent money without regard to contribution. Their fortunes changed when Karen, the wife and mother of the family, became ill with cancer at the end of 2006. She was no longer able to work and no longer able to perform the household duties for which she had hitherto been principally if not solely responsible. The plaintiff stopped work to care for her and their sons. Because of the difficulties he had in coping with things, he began to drink heavily. 23The couple used the TPD benefit to repay debts. They also splurged on various purchases for the family. Mrs Holt encouraged the plaintiff to purchase a second boat and another car. By March 2008, he was alarmed to discover that about $200,000 of the money had already been spent. He decided to use the EPOA to transfer the remaining funds to an account in his sole name so that he could better safeguard it. He continued to spend it on family needs. 24At around this time, Mrs Holt became uncharacteristically aggressive, which was attributable to the impairment of her mental faculties. 25Although Mrs Holt was in hospital from February 2009, the plaintiff would have been happy to bring her home at any time and care for her there except for a relatively short period after she had sustained a brain bleed. At that time he considered that she was better off in hospital rather than at home. 26The plaintiff was both surprised and absolutely devastated when, in April 2009, "out of the blue", his wife told him that she was going to divorce him. However, he respected her decision and decided not to make any substantial further contact with her. In a state of shock, he withdrew the remaining money from his account, $75,000 and continued to spend it on family needs, although he did indulge himself in gambling, spending money on alcohol and cigarettes and partying with his sons and his friends. 27By the time his wife brought proceedings against him in late June 2009 for divorce and for a share of the remaining family assets there was so little left that the most he was able to pay her was $10,000 which he paid from a contingency fund. He also transferred the Holden Rodeo to her. 28The plaintiff's case at trial was that many of the things that Mrs Holt told the defendants, including in relation to the regularity with which her husband and her sons visited her and her knowledge of their whereabouts, were unreliable. The plaintiff contended that, in so far as Mrs Holt alleged that the plaintiff hit her, she was delusional as a result of her diminished mental capacity, which was a consequence of cancer and the medications she was taking. 29Mr Smark SC, who appeared on behalf of the plaintiff, told the jury: "It was just a very sad, complicated human story which Channel Nine chose to broadcast into a million living rooms around Australia."

[4]

The defendants' case 30The defendants' case, as put to the jury, was, in broad terms as follows. 31When Mrs Holt became ill with cancer at the end of 2006, the plaintiff's drinking increased. He did not stop his carpentry work to care for her. Rather, he continued to work, although he claimed a carer's pension from Centrelink. He often left her alone at home when he was working during the week or when he was fishing on the weekend. He worked on various jobs, including with his son, Luke, and continued to operate the business known as Holt's Building Services. He was paid in cash. 32The plaintiff spent a lot of time drinking, both with friends at home and also at various pubs, including the Miami Tavern, where he regularly withdrew money from the joint account which contained Karen's TPD benefit, and later, the account in his name into which he had transferred the balance of the account in March 2008. He continued to entertain friends at home even though Karen's health was deteriorating, which caused understandable friction between them. 33In March 2008, the plaintiff transferred the balance of the joint account, $156,000, into an account in his own name because he wanted to have control over the money so that he would be free to use it for his own purposes without regard to Mrs Holt's wishes. Despite his insistence that Mrs Holt was able to, and did, use this account, the fact that, when asked in cross-examination to do so, he was unable to identify a single transaction for which Mrs Holt was responsible, was telling. 34In so far as Mrs Holt became verbally aggressive from June 2008, that was an understandable reaction to her husband's excessive drinking and his failure to look after her as she wanted, and needed. He spent much of the money that was supposed to be for her benefit on himself, his own pleasure and satisfying his needs or wishes. 35The hospital records and other clinical notes established that Mrs Holt did not need to be in hospital for palliative care but rather she was there because her husband and sons were having difficulty caring for her. Indeed the plaintiff was no longer prepared to care for her. Eventually, the hospital effectively told Mrs Holt that she had to leave because, although she was dying, she was not yet in need of palliative care. At that time she cast around for somewhere to live and contacted the Salvation Army for that purpose, it being her wish to remain on the Gold Coast so that she could continue to see her three sons as much as possible. 36The plaintiff hit Mrs Holt twice. To the extent to which she either did not disclose, or denied, it to hospital staff and to the Domestic Violence Centre, that was a reflection of her sensitivity on the topic and the notorious disinclination of some victims of such assaults to disclose their occurrence. 37When Mrs Holt told the plaintiff she wanted a divorce, he effectively stole her last $75,000 by withdrawing it in cash, taking it home and hiding it in a cupboard. 38What Mrs Holt told the defendants was, in substance, reliable and that her statements ought be accepted.

[5]

The need for consistency with the jury's verdict 39In deciding the question of damages I am required to make such findings of fact as are necessary but I may not make any findings which are inconsistent with the verdict of the jury or any answers it has given to questions asked of it: Ahmadi v Fairfax Media Publications Pty Ltd [2010] NSWSC 702 at [12], per Rothman J. 40The plaintiff submitted that in determining the ambit of the jury's verdict and answers I ought not confine such ambit strictly to the answers themselves, because the answers might imply a certain view of the plaintiff which I would be obliged to adopt, even if it differed from my own. The plaintiff submitted further that the jury's answers showed that, by and large, they accepted the plaintiff's evidence where it conflicted with that of Mrs Holt. 41The plaintiff submitted that I was obliged, consistently with the verdict and the answers that the jury had given to various questions asked of them, to prefer the evidence of the plaintiff since the jury must have accepted the plaintiff as a witness of credit by not being satisfied of the truth of any of the plaintiff's imputations and by being satisfied of the truth of only those contextual imputations as the plaintiff effectively admitted in his evidence. 42I do not accept this submission. One cannot, and ought not, seek to hypothesise as to the jury's reasoning since it is beyond the province of the Court to know what transpired in the jury room. Such an inquiry has long been held to be impermissible: AK v Western Australia [2008] HCA 8; 232 CLR 438 at 475, per Heydon J. 43The plaintiff's submission can be tested in the following way. The jury was not satisfied of the truth of plaintiff's imputation (d): the plaintiff wanted his wife to die. Mrs Holt told the defendants that the plaintiff wanted her to die and indeed that he had told her as much. The jury might not have been satisfied of the truth of that imputation because it was not satisfied that, although the plaintiff had told his wife that he wanted her to die, he actually meant it. The jury might have considered that his statements were borne of grief and frustration and that, although Mrs Holt had genuinely believed that the plaintiff wanted her to die, he did not in fact want any such thing. 44The contextual imputations can be tested similarly. The jury was not satisfied of the truth of contextual imputation (i): that the plaintiff misappropriated $156,000 from his dying wife. The jury may, nonetheless, have considered that the plaintiff wanted to remove the funds from his wife's control and took steps to ensure that they were not used for her benefit. The jury might have baulked at the word "misappropriation" because it considered that the plaintiff was, as signatory to the joint account and the grantee of the EPOA, entitled to do as he did. Indeed, in his address on the truth of that contextual imputation, Mr Smark sought to persuade the jury that they ought not find it true because the plaintiff was entitled, because of the EPOA, to withdraw and spend the money. 45Had the jury found that plaintiff's imputation (v): "the plaintiff physically abused his wife" was carried by the Broadcast, its answer to the question whether the imputation was substantially true would have shed light on its view of the reliability of Mrs Holt's statements and the credibility of the plaintiff's denials. However, because the jury found that this imputation was not carried, it did not need to determine whether the defendants had proved it to be substantially true. 46It follows that, in my view, the jury's answers do not permit me to infer that the jury generally accepted the plaintiff's evidence and rejected the statements of Mrs Holt or that it entirely accepted or rejected either the plaintiff's or the defendants' construction of the facts as set out above and I would accordingly not proceed on that basis. 47Although the jury was not satisfied of the truth of any of the plaintiff's imputations, those of the contextual imputations which it found to be true contained a sting about the plaintiff's character which was at odds with his case. Contextual imputations (ii) and (v) are grave. They are at variance with the character the plaintiff claimed for himself. They would have dealt a serious blow to the plaintiff's reputation. In particular contextual imputation (ii) shows that the jury considered that the plaintiff's behaviour in withholding money from his dying wife was callous. 48The jury's answer that contextual imputation (v) had been proved to be true does not indicate that it formed a favourable view of the plaintiff's credibility. The plaintiff could hardly deny it, given that he had sworn an affidavit in the Federal Magistrates Court proceedings, the purpose of which was to demonstrate that there was nothing left of the $75,000 he had withdrawn in cash on 3 April 2009 since he had largely frittered it away.

[7]

The factual findings for which the defendants contend as the basis for the assessment of damages 53The defendants submitted they have proved a number of facts, matters and circumstances in the course of the justification and contextual truth defences which must have a bearing upon the plaintiff's reputation and the damages that ought to be awarded to him in respect of the matter complained of. They submitted that, having regard to the circumstances in which the defamatory publication was made, and the truth of matters of grave seriousness contained in the Broadcast and revealed in the course of the trial, the damages to which the plaintiff is entitled are reduced, in the words of Neill LJ in Pamplin at 120, "perhaps almost to vanishing point". 54The defendants contended that I should find the following facts and that each was germane to the assessment of damages: (1)The plaintiff took $75,000 and used it in a morally despicable way. (2)The plaintiff left his wife without financial support, notwithstanding that he had the means to give her such support, and left her to the charity of others. (3)The plaintiff hit his wife twice when she was dying of cancer. (4)The plaintiff forced his wife against her will to sleep on the sofa. (5)The plaintiff committed social security fraud and also failed to disclose his contingency fund in the affidavit he swore in the Federal Magistrates Court proceedings. (6)During the period from February 2007 until May 2009, the plaintiff collected a carer's pension on the basis that he was caring for Mrs Holt and was not working when he was actually working for cash. (7)The plaintiff used Mrs Holt's TPD benefit to buy The Dog House and the Holden Rodeo, a vehicle of sufficient power to tow The Dog House. (8)The plaintiff dishonestly denied in his evidence having extra-marital relationships with three women during the period of Mrs Holt's terminal cancer. (9)The plaintiff was callous about the circumstances of his dying wife. (10)The content of the two contextual imputations found to be true, namely: (ii)the plaintiff callously withheld money from his dying wife which had been paid out to her pursuant to an insurance policy in respect of her terminal cancer; and (v)the plaintiff misused thousands of dollars which had been paid to his wife, Karen Holt, as part of an insurance payout in respect of her terminal cancer, by spending money on his own personal needs and interests.

[9]

The plaintiff's credibility 56My findings of fact are largely dependent on the view I have formed of the plaintiff's credibility in the course of the hearing, both as a result of seeing him give evidence and also viewing the films that he tendered of interviews the defendants had conducted with him, both on the street and in his home. I found him to be prone to self-serving statements. He endeavoured to portray himself both as hero and victim. His failure to appreciate that his wife's predicament wholly overshadowed his own, both in gravity and urgency, was self-centred. What his counsel described as his "frankness" amounted, in my view, to no more than his bowing to the inevitable. 57His self-serving statements were belied by contemporaneous documents. For example, he gave evidence that he had stopped work. When cross-examined about business records which showed transactions by Holt's Building Services with material suppliers, he said that he still kept the accounts with suppliers going under the name of his business Holt's Building Services and that this explained the activity of this account. He said that such purchases were made on behalf of friends to whom he wished to give the benefit of the trade discount. When it was put to him that he was working, he said that he was helping out a friend with the friend's own home and that he could not recall what hours or days he worked. However his son, Luke, gave evidence to the effect that he had done his apprenticeship with his father during the period when the plaintiff was allegedly off work looking after his sick wife. 58The plaintiff sought refuge in a lack of recollection when difficult questions were being asked, and frequently answered questions: "Wouldn't have a clue". Although he made concessions when shown documents, such as the affidavit he swore in the Federal Magistrates Court proceedings, he did so when he had little effective choice because the documents were unequivocal. 59The plaintiff showed a degree of cunning in his responses in cross-examination. For example when it was put to him that the withdrawals of cash he made from the Miami Tavern were probably associated with purchases of alcohol, cigarettes and gambling, he volunteered that he often withdrew money there because it was easier to get a park there than outside the ATM on the main highway. 60The plaintiff sought to portray himself as obliging. His most fanciful attempt was to suggest that all Mrs Holt needed to do to have her money restored to her was to ask for it and that this is what happened in June 2009 when she commenced proceedings in the Federal Magistrates Court. 61The plaintiff submitted that it would be inappropriate for me to rely on adverse credit findings in relation to mitigation of damage. I shall address this submission later in these reasons in the context of the facts for which the defendants contend.

[13]

(2) The plaintiff left his wife without financial support notwithstanding that he had the means to give her such support and left her to the charity of others 69As to (2), the plaintiff submitted that Mrs Holt was free to return home at any time, apart from the immediate period surrounding the brain bleed and that it was her choice to end the marriage and go elsewhere. The plaintiff also submitted that this finding was, in substance, indistinguishable from contextual imputation (iii), namely that the plaintiff is a cruel person in that he failed to provide proper financial assistance to his wife who had terminal cancer and was destitute. The jury was not satisfied as to the truth of this imputation. The plaintiff submitted that it was, accordingly, not open to me to make the finding sought since it would be inconsistent with the jury's answers. 70I do not accept this submission. The sting in the contextual imputation is contained in the words "cruel" and "failed". The fact for which the defendants contended in mitigation of damages is a statement of objective fact and does not contain the same element of judgment. Accordingly I do not consider that I am precluded by the jury's answers from making the finding as sought. 71The plaintiff submitted, relevantly: "The only safe conclusion to draw on the evidence (not that the onus is on the plaintiff) is that had Mrs Holt requested financial assistance, for example, by telephoning the plaintiff in April or May 2009, he would have provided it." 72I reject the plaintiff's submission, since it is, in my view at odds with the evidence. 73From the time Mrs Holt was admitted to the Gold Coast Palliative Care Unit on 11 February 2009, the plaintiff had exclusive control of, and access to, what remained of Mrs Holt's TPD benefit. On and from 3 April 2009, the plaintiff had converted what remained of the benefit, $75,000, into cash. Only he knew the whereabouts of the cash. The plaintiff admitted, in an answer to an interrogatory, that during the period from the time of Mrs Holt's admission to the Gold Coast Palliative Care Unit until her ultimate discharge on 21 May 2009, he neither offered nor made any effort to arrange for Mrs Holt to move out of the unit and return to live with him and their sons. 74The plaintiff admitted, in an answer to an interrogatory, that, after having moved from Seahawk Crescent (where he had lived with Mrs Holt) to Aruma Avenue in April 2009, he did not provide the new address to Mrs Holt. 75The Gold Coast Palliative Care Unit was not an appropriate place for Mrs Holt to stay since she did not yet qualify for palliative care. The clinical notes establish that by at least mid-April 2009, if not before, she was under considerable pressure to leave. In late April 2009 she was contacting the Salvation Army by telephone from the unit to see if she could be admitted to hostel accommodation. At about that time, her sister-in-law offered her accommodation until mid-May, but she was re-admitted to hospital following a fall. 76On 21 May 2009, Mrs Holt was collected from the unit by her mother and two of her sisters. I accept Mrs Warner's evidence that at the time of discharge she had virtually no clothing or personal possessions. She lived on the second floor of her parents' two-bedroom Westmead unit until a few days before she was transferred to hospital, where she died in December 2009. 77I do not accept the plaintiff's protestations that he did not take Mrs Holt home because it was preferable for her to stay in hospital. The fact that her elderly parents could look after her in their unit in Sydney is a powerful indication that the plaintiff and their three sons could have looked after her at home had they been willing to do so. 78Mrs Holt was unwilling, at least at first, to go and live in Sydney because she did not want to move away from her sons. She expressed a wish to move into a rental unit with one or more of her sons. By 17 April 2009 the plaintiff and their sons had moved into a four-bedroom house. Mrs Holt was unable to move into a rental unit at the Gold Coast with her sons unless the plaintiff restored to her at least some of the $75,000 of which he had deprived her. 79I am satisfied that (2) has been established.

[14]

(3) The plaintiff hit his wife twice when she was dying of cancer 80I accept the plaintiff's submission that I should not find the allegation has been made out unless I am comfortably satisfied, having regard to its gravity: Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336. 81I found Mrs Holt's statements that the plaintiff struck her twice to be credible. She was restrained in her disclosure and did not seek to generalise a course of conduct. She told the defendants: "He's a liar. Yeah, I don't remember a lot of things and I can't help that, but, there's a lot of things I remember. There's a lot of... and he has hit me twice. And he can't deny that. He can't." 82In the course of another interview, when asked whether the plaintiff had ever been violent towards her, Mrs Holt said: "Twice. Yeah twice he hit me in the back and another time he got my arm and flung it right back, yeah." 83That Mrs Holt confined the allegation to two occasions leads me to consider that she actually recalled the two assaults and that they had made a deep impression on her. 84Mr Frank, Mrs Holt's solicitor, gave evidence of seeing Mrs Holt on five occasions to obtain instructions to act on her behalf. He prepared the affidavit which she affirmed and which was filed in the Federal Magistrates Court. Mr Frank impressed me as a careful and experienced solicitor. 85Mrs Holt also deposed, in her affidavit, affirmed on 25 June 2009 in the Federal Magistrates Court proceedings, at [16]: "During the marriage, I suffered some violence at the hands of Andrew Holt." 86I do not consider that Mr Frank would have included [16] in the draft affidavit for Mrs Holt to affirm unless he had obtained clear instructions from her to that effect and unless he had been satisfied that her mental capacity was sufficient for her to give clear instructions and to affirm the affidavit. 87Mrs Holt was also relevantly corroborated by her sister, Mrs McKennell, whom I found to be credible. 88Mrs McKennell gave the following evidence of the plaintiff's ringing her before Christmas 2008 on her mobile when she was at home: "Q.And what did he say to you on that occasion? A.Sorry. He told me that he just he just hit my sister and and I said, 'Oh my God, why?', and he said he was he was upset himself but he he told me that he had hit her and I said, 'Was she all right?', and he said I'm sorry. McCLINTOCK: Officer, could we have some water? Q.Just don't worry, Mrs McKennell. Just take a bit of time. A.I will be fine. I am fine, thank you. Thank you. Sorry. Q.That is okay. There is nothing to be concerned about. A.And yeah, and he told me that, yeah, he had hit Karen and I asked was she all right and he said she was all right and I said, 'Why?', and he said, 'I just can't cope any more, I can't take it any more. I can't handle it any more'." 89Mrs McKennell was emotional when giving the evidence. I formed the impression that she was not only upset at recalling the conversation but also that she found it difficult to reveal something as serious as she was disclosing. She also showed a degree of restraint in her evidence and, in my view, resisted the opportunity to criticise or demonise the plaintiff, as a less reliable witness might have been inclined to do. Although Mr Smark sought to cast doubt on her recollection, she was resolute about the salient features of the conversation. Her evidence became, in my view, even more credible in the course of cross-examination. She was affronted that she was being challenged about something which had obviously made a deep impression on her at the time and the disclosure of which had caused her some distress. 90The defendants also relied on an entry in the Blue Care notes which record a communication from the plaintiff's sister in which she referred to verbal and physical violence between the plaintiff and Mrs Holt and said she herself feared the plaintiff. Although this is consistent with Mrs Holt's statements and Mrs McKennell's evidence I do not regard this entry as being of much weight. 91The plaintiff relied on three matters: (1)his evidence denying that he ever hit Mrs Holt, or indeed any woman; (2)the evidence of Luke Holt that he had never seen his father hit his mother; and (3)the record of the Crisis Phone Counseling section of the Domestic Violence Prevention Centre, dated 5 May 2009, which records Mrs Holt giving a history that excluded physical violence in the following terms: "Karen said that there was never any physical violence in the marriage however he restrict [sic] her activity and denied her access to money and he has now taken a disability pay out she received, and bought 2 cars and a boat." 92As I have said above, I do not accept the plaintiff's evidence except where it is an admission or corroborated. Luke Holt's evidence does not corroborate the plaintiff's although it is consistent with it, since Mrs Holt did not say that the assaults were perpetrated in the presence of Luke. Indeed, as a matter of objective probability, it would be unlikely if they were. Luke Holt said that he would not have allowed his father to hit his mother. 93As to Mrs Holt's denial of physical violence on 5 May 2009, I do not accept it. As Simpson J (Hoeben and Price JJ agreeing) said in Monteiro v R [2011] NSWCCA 113 (a case involving very different facts), at [125]: "[It] is well known to those who take an interest in issues concerning domestic violence. It is all too common to see victims, most commonly women, overlook and forgive abusive treatment, and accept apologies, protestations of regret, declarations of love and promises to reform." 94I accept Mrs Holt's statements that the assaults occurred and Mrs McKennell's evidence of the plaintiff's admission of one of them. I reject the plaintiff's denials of the assaults. I am comfortably satisfied that the plaintiff physically assaulted Mrs Holt on two occasions and that there was a third altercation involving car keys in the course of which there was a tussle between them.

[15]

(4) The plaintiff forced his wife against her will to sleep on the sofa 95It was common ground that Mrs Holt did not sleep in the matrimonial bed with the plaintiff, at least during the period from her diagnosis until she was admitted to the Gold Coast Palliative Care Unit in February 2009. She slept either on the sofa in the living room or sometimes in Luke's bedroom, which had been converted from a garage. She spent time there during the day and also slept there while Luke was in Canada from September 2008 until January 2009. 96Mrs Holt deposed to the sleeping arrangements in the affidavit prepared by Mr Frank for the Federal Magistrates Court proceedings: "From at least when I was further diagnosed with cancer, I had to sleep on the lounge as Andrew would not tolerate me sleeping in the bed because I snored." 97Consistently with my findings above, I consider that Mr Frank took care to ensure that Mrs Holt's affidavit accurately reflected the instructions which she gave to him. Unlike the defendants, Mr Frank had no interest either in dramatising the conflict between Mrs Holt and the plaintiff, or in demonising the plaintiff. 98The plaintiff's evidence as to sleeping arrangements was: "Q.By this time, up until this time, what had the sleeping arrangements been with you and Karen? You shared a bedroom? A.Yeah, our whole marriage we obviously shared a bed but when she way back near the beginning of her starting the chemo, we would come home from chemo, and we would make her comfy on the lounge, and she would sleep on the lounge. And after a while she didn't come to bed anymore, and I said to her one day, 'How come you won't come to bed?' And she said, 'I don't want to die in my bed, I don't want to die by myself in the bedroom.' And from that day on she slept in the lounge or in my son's room." 99The plaintiff endeavoured to explain this evidence in the following way: "What she meant was she wanted to be out in the family room where the family was instead of just in the bedroom with me." 100I do not accept the plaintiff's evidence that Mrs Holt slept on the couch because she did not want to die by herself in the bedroom. First, it does not make sense because she would not be by herself if the plaintiff was there during the night. Secondly, she was even more removed from the house when she was in Luke's room while he was in Canada. Thirdly, the plaintiff's evidence on this topic was self-serving and I do not accept him as a witness of truth. 101The plaintiff submitted that his wife chose to sleep on the couch because she did not wish to die in bed and that I ought not accept that she was there because he forced her to sleep there because she snored, particularly since his evidence was that she had snored for the whole of the marriage. I do not accept the plaintiff's evidence. 102I am satisfied that the plaintiff forced his wife against her will to sleep on the sofa.

[16]

(5) The plaintiff committed social security fraud and also failed to disclose his contingency fund in the affidavit he swore in the Federal Magistrates Court proceedings 103On 12 May 2009, the plaintiff applied for a "Newstart Allowance". He represented that he had no previous occupation and had not been previously employed. He disclosed that his bank account balance was $50, he had household and personal effects which were worth $5,000 and that he had a Holden Rodeo which was worth $15,000, which together totalled $20,000 of "other assets". 104The plaintiff failed to disclose: (1)his two boats, at least one of which, The Dog House, he owned outright; (2)the cash remaining of the $75,000 which he had withdrawn on 3 April 2009; and (3)the contingency fund from which he paid Mrs Holt $10,000 as part of the settlement of the Federal Magistrates Court proceedings. 105The plaintiff admitted in cross-examination that he deliberately and dishonestly concealed from the Commonwealth Government the money and assets that he had in order to get the benefit and that he had thereby committed social security fraud. There is accordingly no dispute about the underlying facts or that the plaintiff committed fraud. 106The affidavit the plaintiff swore in the Federal Magistrates Court proceedings purported to disclose all of the plaintiff's assets. He admitted that he did not disclose the contingency fund of $10,000 which he used to pay Mrs Holt to settle the proceedings. 107Mr Smark submitted that neither Social Security fraud nor the failure to disclose an asset in an affidavit ought mitigate the plaintiff's damages. He said: "One talks about whether there are different sectors of dishonesty for lying and dishonesty for theft and so on. But there is all the difference in the world, one might think, between a reputation, for example, for abandoning a member of your family and a reputation for obtaining a financial benefit by deception, for example. They are just completely different areas of your reputation and this is a case where Mr Holt has been wrongly defamed in respect of the first and is entitled to compensation for it." 108The plaintiff submitted that any matters to be relied upon in mitigation must be directly relevant to the subject matter of the defamation or the relevant sector of the plaintiff's reputation. It is not enough that such evidence may tend to show the plaintiff in a discreditable light, in some general sense: it must bear upon the plaintiff's reputation in the relevant area, for otherwise, it could not reduce the harm which he suffered from the indefensible publication by the defendant. 109In particular, the plaintiff took exception to the reliance by the defendants on the evidence that the plaintiff had committed social security fraud on the basis that it was not directly relevant to the subject matter of the defamation. 110The principles that govern so-called "sector identification" are usefully collected in Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; 278 ALR 232 (Mahommed) at [162]-[185]. In that case, the Court of Appeal considered ABC v McBride [2001] NSWCA 322; 53 NSWLR 430, where the Court dismissed an appeal by the ABC against the striking out of its particulars of bad reputation on the basis that the particulars which had been struck out related to the respondent's reputation for falsifying results of scientific experiences. The Court found that the relevant sector of the plaintiff's reputation for the purposes of the proceedings was his reputation as a medical practitioner dedicated to the well-being of his patients. Ipp AJA, Beazley JA agreeing, held further that the rule that evidence of bad reputation must be confined to the relevant sector of the plaintiff's reputation means merely that the evidence, to be admissible, must be relevant to that part of the plaintiff's reputation capable of being harmed by the defamatory material. 111In O'Hagan v Nationwide News Pty Ltd [2001] NSWCA 302; 53 NSWLR 89, Meagher JA explained the rule that the evidence (of good reputation or in mitigation) must relate to the relevant sector of the plaintiff's reputation in the following way, at [5]: "Thus if a plaintiff sues on a libel that he is a dishonest solicitor, it is not to the point that he has a reputation as a good golfer. Similarly if the libel is that he is dishonest, it is not to the point for the defendant to demonstrate that he is a reckless motorist. (See Plato Films ([1961] AC 1090), per Lord Denning)." 112The authorities establish that the sector is not to be limited to the precise ambit of the plaintiff's imputations. In my view, the relevant sector of the plaintiff's reputation for the purposes of these proceedings was his reputation as a husband who was loving, responsible and considerate towards his wife. Social security fraud is, in my view, outside the relevant sector. 113Accordingly, I consider that I ought, consistently with the authorities referred to above, disregard the social security fraud on mitigation of damages, although not on credibility. 114The second fact relied upon in this context is the plaintiff's non-disclosure of the $10,000 contingency fund in his affidavit, sworn in the Federal Magistrates Court proceedings. I am not satisfied that the defendants have established the existence of such a fund, notwithstanding the plaintiff's admission to that effect. I am not persuaded that the plaintiff's evidence in his affidavit in the Federal Magistrates Court as to how he spent the $75,000 is true. At the time he swore the affidavit, 8 July 2009, he had an interest in establishing that he had no available cash and that the whole of the TPD benefit had been spent. 115It is, in my view, more likely that the plaintiff still retained some of the $75,000 at that time. I am not persuaded that the monetary component of the settlement came from a separate contingency fund. I consider that the amount of $10,000 was offered, not because it represented the amount of any contingency fund, but rather because it was the amount that Mrs Holt had stipulated in her affidavit to which he was responding would be required to cover the costs of her funeral. It was, in my view, a cynical offer which took advantage of Mrs Holt's imminent demise and her desire not to burden her parents with the costs associated with her funeral, which they, as pensioners, could presumably ill afford. 116Accordingly, I do not consider that the fact that the plaintiff failed to disclose the contingency fund in his affidavit has been established. It is therefore unnecessary to determine whether it pertained to the relevant sector of the plaintiff's reputation. However, I consider his conduct otherwise as set out above to be relevant in mitigation and to fall squarely within the relevant sector.

[17]

(6) During the period from February 2007 until May 2009 the plaintiff collected a carer's pension on the basis that he was caring for Mrs Holt and was not working when he was actually working for cash 117The plaintiff admitted that he had received a carer's pension for the period from February 2007 until May 2009 and that he understood that the purpose of the pension was to enable him to stay at home, not work and look after Mrs Holt. In his answers to interrogatories, the plaintiff admitted that the pension was paid into a joint account at the ANZ Bank and that it was a term of eligibility for that pension that he not receive income from other sources. 118The plaintiff's sworn evidence was that he did not work after the end of 2006. He said, in chief: "I still had a responsibility, I was doing a job for a client, and the day after we got Karen's diagnosis, my best friend, Bruce flew up from Newcastle to Queensland. He said, 'You go and look after your wife, for the next 10 days I'm here, I'll finish your job out' because he knew how important it was not to let the customer down, and I didn't work after that because I knew Karen would become a fulltime job." 119Bruce Hadler was called but was not asked to corroborate that evidence. Luke Holt gave evidence that he and Mr Hadler had worked on a job together while the plaintiff took Mrs Holt for her treatments. In cross-examination the plaintiff did, however, admit that he had performed work for Alexander Arripoff and Sarah Jane McDowell although he said that he was not being paid. He said that his sons performed work on the house, too, but they were paid. 120I do not accept the plaintiff's evidence either that he was not working or that when he was working he was not being paid for it. 121There is a wealth of evidence that establishes that the plaintiff was working while he was in receipt of the carer's pension and that he was likely to have been paid for it. The histories given by Mrs Holt recorded in clinical notes indicate that he was working. She also told the defendants in a filmed interview: "He was supposed to be home with me. But he worked." 122The plaintiff continued to operate the bank account of Holt's Building Services during the relevant period. I do not accept the plaintiff's explanation that this account was merely used to obtain trade discounts for friends. 123Although Luke Holt's evidence was not precise about timing, the effect of it was that after he had completed his apprenticeship with his father in 2007, there was a period of six months during which he did not work with his father but that thereafter he had done work with his father "in the next few years after that". When he worked with his father, his father paid him wages. He described the work his father was doing as carpentry work. Had Luke Holt been able to corroborate his father's evidence that he effectively did not work from the end of 2006 until mid 2009, then I would have expected that he would give that evidence. I infer accordingly that his failure to do so would not have assisted the plaintiff's case. 124I find that this fact has been established. The plaintiff did not contend that it did not fall within the relevant sector and accordingly I take it into account in mitigation.

[18]

(7) The plaintiff used Mrs Holt's TPD benefit to buy The Dog House and the Holden Rodeo, a vehicle of sufficient power to tow The Dog House 125There is no dispute about either of these matters. The plaintiff sought to justify his purchase of The Dog House on the basis that Mrs Holt had suggested that he purchase it since she knew he wanted it. 126He gave evidence of various statements that he said his wife had made to him, including that he should purchase the boat and that she agreed with his idea that he could run a business with their sons to take tourist on weekend camping trips to Jumpinpin. The plaintiff said that: "Karen thought it was a great idea because it would keep me and the boys together in a business." 127I do not accept his evidence. Apart from the fact that it is self-serving, the boat itself had a capacity only for six people. The plaintiff and his three sons would occupy four out of the six seats. Furthermore, Luke, their eldest son, was already doing a carpentry apprenticeship with his father and there was no apparent need to embark on another family business. 128Mrs Holt, whom the plaintiff described as not being "a real boat person" could not tolerate sunlight, because of the treatment she was receiving and the medication she was obliged to take. The plaintiff already owned a leisure boat which could accommodate five people and which he had financed through a personal loan. The plaintiff admitted that he never took her out on The Dog House. 129The plaintiff, whose nickname was "Big Dog", admitted that his boat, The Dog House, was named after him. I accept that nothing substantial can be drawn from the name of the boat that could not equally be drawn from its nature and the circumstances surrounding, and timing of, its purchase. In my view, the plaintiff's purchase of another, larger and more powerful, boat, which then necessitated the purchase of a powerful car to tow it, was both selfish and insensitive. Even if I accepted, which I do not, that Mrs Holt condoned, or even encouraged, the purchase, his conduct would, in any event, mitigate his damages.

[19]

(8) The plaintiff dishonestly denied in his evidence having extra-marital relationships with three women during the period of Mrs Holt's terminal cancer 130The defendants submitted that telephone records establish that the plaintiff was having extra-marital relationships with three women at the time Mrs Holt was diagnosed with cancer and before their separation on 3 April 2009. They submitted that these relationships made it more probable that the plaintiff was not caring for Mrs Holt as he asserted he was and that he was also probably using Mrs Holt's money to further these relationships. They also submitted that he dishonestly denied these relationships in evidence. 131I accept and find that the plaintiff had intimate relationships with Michelle Potter and Tamielle Winters at times during the period from 2007 until his separation from Mrs Holt on 3 April 2009. 132I am not satisfied on the balance of probabilities that he spent Mrs Holt's TPD benefit on furthering those relationships since there is no direct evidence and insufficient circumstantial evidence that he spent any money on these women to enable me to make such a finding. 133I find that the plaintiff's denial in Court of such relationships was dishonest. I accept that the area of intimate relationships is one which is particularly susceptible to half-truths, misstatements and lying. However, when a litigant comes to Court to claim damage to his reputation and is prepared to lie about matters germane to that, his preparedness to lie to the Court is a matter that can be taken into account, at least in assessing his credibility. 134I can accept that a man whose wife of many years has been diagnosed with terminal cancer might seek intimacy elsewhere with other women. In such circumstances, such a man might neither attract, nor deserve, criticism as long as such liaisons were secret and as long as the man did not thereby deplete monies which might otherwise be used for his wife's benefit. Accordingly the fact of intimate relationships per se does not, in my view, mitigate the plaintiff's damages. 135However, the plaintiff's denial of such relationships on oath when their existence has been established by powerful circumstantial evidence of telephone records impugned his credibility. 136As referred to above, the plaintiff submitted that it would be inappropriate for me to rely on adverse credit findings in relation to mitigation of damage. He referred to Habib v Nationwide News Pty Ltd [2010] NSWSC 924; 78 NSWLR 619 (Habib) where McClellan CJ at CL specifically declined to rely on adverse credit findings in mitigation of damage in light of the remarks made by the Court of Appeal in Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 (Marsden), including the following, at [1407]-[1408]: "...Courts act on evidence, and the court's findings are not themselves evidence in the proceedings - they are, of course, not known until judgment is delivered. The Goody v Odhams Press Ltd [(1967) 1 QB 333] public knowledge cannot apply, and the notoriety of the unknown findings and their effect in fact on the plaintiff's reputation cannot be an issue in the proceedings. Thus there is not true incongruity in a court awarding damages on the basis of a good reputation but making findings actual or notional publication of which may (or may not) be detrimental to the plaintiff's reputation, since the court cannot properly pay regard to the effect of its findings on the plaintiff's reputation. That courts act on evidence, and not otherwise, is fundamental to our legal system. It would be undesirable that a plaintiff claiming damages for defamation should have taken into account against him findings which are not known until judgment is given, without the opportunity to address whether or to what extent the findings do affect his reputation..." 137Habib and Marsden were considered by McColl JA in Mahommed at [250]-[251]. Her Honour appeared to conclude, at [254], that adverse findings might be admissible without specifically holding that McClellan CJ at CL was wrong to take the course he did in Habib. However, in Mahommed, the relevant findings as to the appellant's credit were made in other proceedings (the Steele-Smith proceedings), which were decided after publication of the matter complained of but before the hearing of defamation trial commenced by the appellant. McColl JA considered that the so-called Steele-Smith adverse findings were admissible on the assessment of the appellant's damages in mitigation. There was therefore no question of a potential denial of natural justice because the appellant knew what the Steele-Smith adverse findings were and knew that the respondent relied on them in mitigation of damages. 138In Habib, McClellan CJ at CL had to determine whether adverse credit findings made against the plaintiff in the defamation proceedings could be used against the plaintiff in mitigation of his damages in those proceedings. His Honour decided that because of what was said in Marsden, they ought not be. I do not consider that Mahommed advances the resolution of this question because of the different circumstances that arose in that case. 139Accordingly, I shall confine my use of the adverse credibility findings I have made in respect of the plaintiff to my fact-finding. I shall not use them as a separate matter in mitigation of damages. I consider that this approach is appropriate because of what the Court of Appeal said in Marsden and the way its remarks have been considered and applied in Habib. 140For the reasons given above by reference to Habib, I do not consider that it is open to me to take into account what I have found to be the plaintiff's dishonest denial of intimate relationships in mitigation of damages.

[22]

Further findings of fact 145In the reasons given above I have made the findings of fact for which the defendants contended. I propose to make the following further findings since they also comprise the facts on which I have assessed damages. 146Shortly after the plaintiff's wife was diagnosed with a recurrence of cancer in late 2006, she stopped work because she was unable to continue. As the cancer metastasised and she underwent chemotherapy, she was unable to continue to perform the domestic tasks which had been her principal responsibility up until that time. 147The plaintiff did not stop work to care for his wife. He continued to work as a carpenter during the week and was paid in cash. At the same time he was paid a carer's pension. 148On weekends, the plaintiff continued to go out on his boat. Often Mrs Holt was left alone in the house. Her in-laws came from time to time to see how she was. She was alienated from her own family, who lived in Sydney, because of the plaintiff's conduct towards them. 149The plaintiff did, however, take Mrs Holt to chemotherapy sessions in the first half of 2007 and waited with her during the sessions, which would take a couple of hours. While she was recovering from chemotherapy he and his sons did the domestic chores around the house. The plaintiff would keep track of which weeks she was due to have chemotherapy and when she was due to have a week off. 150The plaintiff's consumption of alcohol increased following his wife's diagnosis. He drank at home as well as at the Miami Tavern and other public houses in the area. He dealt with the adversity that had befallen him by self-medication with alcohol. 151In my view, the plaintiff saw the TPD benefit as a way of compensating himself for his misfortune in losing his wife, who was also the mother of his three sons, together with the income and services she provided for the benefit of the family. He behaved in a self-indulgent way with the money. 152The evidence goes some way to establishing how the TPD benefit was spent. The plaintiff was keen to emphasise the extent to which Mrs Holt had spent money on herself and the boys. I consider it to be closer to the truth that he went on a spending spree with the money and she was either reluctant, or unable, to stop him. 153The plaintiff sought to portray himself as financially responsible and taking control of finances when he thought that they had got out of hand. In his evidence in chief, he said that in March 2008 he had seen a bank statement "because my son had been to Sea World at that time". His evidence was that, eventually, he found out that they had spent $800 at Sea World in one day. This, he said, was what motivated him to cut up Mrs Holt's ATM card and seek advice from the bank manager. He said that the bank manager told him to transfer the money to an account in his name pursuant to the EPOA. 154I do not accept his version of events. I consider that the plaintiff wanted to be the sole arbiter of how his wife's money was spent. In so far as he spent the money on his wife, he wanted it to reflect his own largesse. This explains why he bought her a lounge suite, a flat screen television and a large fish tank and had it all installed when she was away one weekend. 155The plaintiff continued to entertain his friends at home and serve them beer, sometimes from 4.00 in the afternoon, notwithstanding his wife's indisposition. When she responded aggressively, as she had not done previously, he attributed it to her mental deterioration. It did not seem to occur to him that his increased alcohol consumption and willingness to ask his friends around to drink was, at best, highly insensitive in the circumstances. 156The plaintiff attributed physical aggression to his wife in connection with at least one event involving car keys. I am, however, satisfied that in so far as there was as tussle between them, it arose because she wanted to prevent his driving while intoxicated and he resisted her intervention. Far from reflecting, as the plaintiff would have it, "chemo brain", I consider that such conduct exhibited her continuing sense of responsibility both for the plaintiff himself and for those who could be harmed by his recklessness.

[24]

Heads of damages: principles 158I am obliged 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." 159A plaintiff will ordinarily be entitled to recover damages for the damage suffered under two broad heads of damage: injury to reputation and injury to feelings: Carson v John Fairfax & Sons Ltd [1993] HCA 31; 178 CLR 44 at 60, per Mason CJ, Deane, Dawson and Gaudron JJ; Rogers v Nationwide News Pty Limited [2003] HCA 52; 216 CLR 327 (Rogers) at 347-348; John Fairfax and Sons v Kelly (1987) 8 NSWLR 131 (Kelly) at 142D-142F; Amalgamated Television Services Pty Limited v Marsden [2002] NSWCA 419 at [1315]. 160Since the purpose of the action is to vindicate the plaintiff's reputation, the sum awarded under these two heads must be sufficient to "vindicate" the plaintiff. "Vindication" is not a separate head of general damages, entitling the plaintiff as of right to a sum of money over and above that awarded for injury to feelings and injury to reputation. Rather, vindication is a function of the award of damages: Kelly at 142E; Cassell and Co Ltd v Broome [1972] AC 1027 at 1071. 161McColl JA (with whom Spigelman CJ and Beazley JA relevantly agreed) said in Mahommed, at [271]: "When considering the issue of a rational relationship between the relevant harm and the amount of damages (s 46A) it must be recalled that a person's reputation is accorded high value. '[M]urdering a man's reputation by a scandalous libel may be compared to murdering his person': Webb v Bloch (1928) 41 CLR 331 at 364; [1928] HCA 50 per Isaacs J. As Mahoney ACJ (Handley JA concurring) said (at 193) in Crampton v Nugawela (1996) 41 NSWLR 176, '[i]n some cases, a person's reputation is, in a relevant sense, his whole life'." 162As at the time of this decision the maximum amount of damages that could be awarded for non-economic loss in defamation proceedings is $339,000. It was not suggested that this cap compresses an award of damages less than the maximum amount. Accordingly, unless I were minded (which I am not) to award damages in excess of the maximum, damages are at large.

[25]

The plaintiff's claim for aggravated damages 163The plaintiff claimed aggravated damages on the basis of what was said to be selective editing and in particular the failure to include what the plaintiff told the defendants in the course of an interview. There is no suggestion of misleading editing so as to create a false impression by taking questions and answers out of context (Cf. Haertsch v Channel Nine Pty Ltd & Ors [2010] NSWSC 182 at [35], [57]-[62]). 164The relevant portion, the omission of which was said to give rise to the claim, was as follows: "Ben Fordham: What do you want to happen now? Andrew Holt: Well I would like to see her come home with her children, where she should be with her children, in her final moments, her boys would love that. Ben Fordham: Well, why don't you take this opportunity to tell her, to tell her that? Andrew Holt: Well, that's what I'm trying to tell her. Like Kaz, you're a great woman, like I don't have any animosity at all towards her you know. The boys would love to be able to see her up here. I'd love to see her up here, like she was my wife for 22 years. And I don't even get a chance to say goodbye. Ben Fordham: So you genuinely want her back? Andrew Holt: I would get her back tomorrow if I could. I would love to see her, absolutely love to see her. But like I said she was getting too upset in the hospital and I don't want to affect her health. If she says that she doesn't want to see me then I can't see the benefit she gets out of getting upset over it all you know." 165The plaintiff's evidence germane to the aggravated damages claim was: "I thought it was totally biased and the biggest thing they heard of me was at the end there, I said Karen was more than welcome to be in her home with her children where she should be, where she spent the majority of her life, and to say it had been such a good TV show, they decided to leave it off." 166I accept the defendants' submission that these passages do not give rise to a claim for aggravated damages because the plaintiff's statement, as at July 2009, that he wanted Mrs Holt at home and would have welcomed her home was false. For a significant period of time until approximately late June 2009 the plaintiff concealed his address from his wife. Furthermore at the time he was interviewed, he had already either spent the last $75,000, as he swore in his Financial Statement dated 8 July 2009 which was prepared for the Federal Magistrates Court proceedings, or secreted it such that Mrs Holt could not obtain access to it. 167A further reason for disbelieving that the plaintiff would have welcomed Mrs Holt home had she wanted to return was that, at the time he was interviewed in July 2009, the plaintiff's relationship with Michelle Potter, his girlfriend, was public. His son Luke was aware of the relationship, at least from about that time if not before. 168In these circumstances I am not persuaded that the omission of this material from the Broadcast was improper, unjustifiable or lacking in bona fides. Had it been broadcast, an ordinary reasonable viewer would have been more likely to consider the plaintiff to be a hypocrite, rather than to consider him to be sincere. I reject the plaintiff's claim for aggravated damages.

[26]

Assessment of damages 169The plaintiff did not adduce any evidence of his good reputation. It is generally unnecessary to lead evidence that the plaintiff has a reputation for such is presumed: Gatley on Libel and Slander (11th ed, 2008) at [34.24]. Nonetheless the defendant submitted that I can and should draw an inference that the plaintiff did not call any reputation witnesses because none existed and that in fact he did not have a good reputation that could be established. 170The relevant principle was stated by Windeyer J in Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; 117 CLR 118 (Uren) at 150: "When it is said that in an action for defamation damages are given for an injury to the plaintiff's reputation, what is meant? A man's reputation, his good name, the estimation in which he is held in the opinion of others, is not a possession of his as a chattel is. Damage to it cannot be measured as harm to a tangible thing is measured... money and reputation are not commensurables. It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed." 171On the basis of Uren, I consider that, as the plaintiff was publicly defamed, he is entitled to damages without proof of his good reputation. 172The defendants' primary submission was that derisory damages of $100 ought be awarded. The plaintiff contended that $250,000 was appropriate. 173The plaintiff gave evidence that following the Broadcast he had been shunned during casual encounters and now sensed that others no longer wished to associate with him. He said he had received threatening emails and telephone calls and that he is recognised as "the guy off A Current Affair". 174The plaintiff also gave evidence of the hurt he felt as a result of the Broadcast and said that he felt "devastated" when he saw it with his sons. He said: "I felt in ten minutes of drama on a TV show, 40 odd years of my life building friendships and getting respect in the community and that, in ten minutes of crap TV, lies, just ruined my life as though I was a bit of dog shit on the ground, excuse the language." 175He said that in the six weeks following the Broadcast he did not really go out and that he is still paranoid and thinks that people are looking over his shoulder. He said: "Like I find it hard like I said going anywhere in public. Even as recent as last week, I assume people are trying to film me. Like it's made me extremely paranoid. Sometimes I meet people like, for example, meet somebody at night and I will be talking to them for half and hour and then all of a sudden somebody says, 'Oh, you're that guy off A Current Affair' and all of a sudden they don't talk any more. Like people recognise my boat, if I go fishing not everybody but every now and again. Like this is three, four years later now. I thought it would have all been forgotten but it is still, still present till today." 176Luke Holt and Bruce Hadler gave corroborative evidence that the plaintiff was withdrawn and depressed as a result of the Broadcast. 177The plaintiff was not a public figure. However, he submitted that he was distinguished by his considerable height and his nickname, "Big Dog", which meant that he was more likely to be recognised by the viewers of the Broadcast, although most of them would have hitherto been unaware of his existence. He also continues to own and use The Dog House which may also serve to remind viewers he encounters of the Broadcast, ephemeral as it may have seemed at the time. 178In my view, the plaintiff overestimated the effect of the Broadcast. For example, he is inclined to attribute to the Broadcast the disinclination of some of his former schoolmates to talk to him on Facebook, when numerous other hypotheses would seem to be available. I also consider that the plaintiff may have an unrealistic view of the extent to which people in fact recognise him from the Broadcast, or indeed shunned him because of it. However, I accept that there is a number of people who recall the Broadcast and associate the plaintiff with the man depicted in it. I accept that publication of the Broadcast continues to affect the plaintiff's reputation and continues to hurt his feelings.

Holt v TCN Channel Nine Pty Ltd

At a glance

Court

Decision date

Before

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Source

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Judgment (29 paragraphs)

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Cases Cited (18)