Holt v TCN Channel Nine Pty Ltd - [2014] NSWCA 90 - NSWCA 2013 case summary — Zoe

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Holt v TCN Channel Nine Pty Ltd

[2014] NSWCA 90

Court of Appeal (NSW)|2013-11-05|Before: Macfarlan JA, Gleeson JA

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Court

Court of Appeal (NSW)

Decision date

2013-11-05

Before

Macfarlan JA, Gleeson JA

Source

Original judgment source is linked above.

Judgment (29 paragraphs)

[1]

WLR 116 Rogers v Nationwide News Pty Ltd [2003] HCA 52; 216 CLR 327 SS Hontestroom v SS Sagaporack [1927] AC 37 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; 73 ALJR 306 Trad v Harbour Radio Pty Ltd (No 2) [2013] NSWCA 477 Turner v News Group Newspapers Ltd [2006] 1 WLR 3469 Texts Cited: Gatley on Libel and Slander (11th ed 2008, Sweet & Maxwell) Category: Principal judgment Parties: Andrew Holt (Appellant) TCN Channel Nine Pty Ltd (First Respondent) Nine Network Australia Pty Ltd (Second Respondent) Ben Fordham (Third Respondent) Representation: Counsel: K P Smark SC/S Chrysanthou (Appellant) B R McClintock SC/M F Richardson (Respondents) Solicitors: Fitzpatrick Solicitors (Appellant) Johnson Winter & Slattery (Respondents) File Number(s): CA 2012/236611 Decision under appeal Jurisdiction: 9111 Citation: Holt v TCN Channel Nine Pty Ltd [2012] NSWSC 770 - 13 July 2012 Holt v TCN Channel Nine Pty Ltd (No 2) [2012] NSWSC 968 - 23 August 2012 Before: Adamson J File Number(s): SC 2010/114155

[2]

HEADNOTE [This Headnote is not to be read as part of the judgment] In late 2006 Mr Holt, the appellant, lived with his wife Mrs Karen Holt and their three sons on the Gold Coast in Queensland. Following the discovery of a cancerous tumour in her breast, which subsequently spread to her lung, Mrs Holt commenced chemotherapy in about February 2007 and her health declined progressively until her death on 29 December 2009. In July of that year, Mrs Holt had obtained a divorce from Mr Holt. On 28 July 2009 the first and second respondents broadcast a segment concerning Mr and Mrs Holt on TCN Channel Nine's A Current Affair television programme featuring interviews conducted with each of them by Mr Ben Fordham, the third respondent. The broadcast was highly critical of Mr Holt's conduct in connection with Mrs Holt during the period of her illness. As a result Mr Holt commenced the present defamation proceedings. After a nine-day trial before Adamson J and a jury of four, a verdict was entered for Mr Holt. The jury found that the broadcast carried four imputations defamatory of Mr Holt, none of which the respondents had established to be true. While the jury found that the respondents had established the truth of two of the four contextual imputations pleaded in accordance with s 26 of the Defamation Act 2005 (NSW), it also found that this did not result in Mr Holt suffering no further injury than that sustained by reason of his own pleaded imputations. Having found that, by reason of the mitigatory evidence led by the respondents, Mr Holt suffered relatively slight harm, Adamson J awarded Mr Holt $4,500 in damages plus $400 interest. Held by the Court, dismissing the appeal: (1) Mr Holt failed to establish that the primary judge's assessment of his credibility was contrary to "incontrovertible facts or uncontested testimony", "glaringly improbable" or "contrary to compelling inferences" such as to justify appellate intervention ([33], [37]-[38], [44], [46], [53], [71]). Nor did he identify any errors of principle in the reasoning of the primary judge, her Honour's findings of fact or her use of those findings warranting the reassessment of damages ([15]-[19], [21], [25]-[26], [32], [40], [42]-[45], [51]-[52], [54], [56], [59], [61]-[63], [66], [69]). (2) In assessing damages, the primary judge was entitled to take into account the mitigatory effect of evidence that was properly led before her in relation to other issues including failed justification and contextual truth defences. Contrary to Mr Holt's submissions, her Honour did not engage in an impermissible "roving inquiry" concerning his character. Pamplin v Express Newspapers Ltd [1988] 1 WLR 1116 and other authorities considered (3) The principles stated in House v The King (1936) 55 CLR 499 concerning appellate review of an exercise of discretion are applicable to a challenge on the basis of manifest excess or inadequacy to an award of damages for defamation ([75]). The award of damages was not manifestly inadequate as Mr Holt failed to establish that it was outside the range of what could reasonably be regarded as appropriate in the circumstances of the case. The matters that the primary judge took into account by way of mitigation justified the conclusion that Mr Holt suffered little, if any, damage by reason of the untrue imputations upon which he relied ([77]). (4) The primary judge did not err in declining to award costs on an indemnity basis. When considering the costs order to be made pursuant to s 40(2)(a) of the Defamation Act, there is no reason why the court cannot take into account what it concludes would have been a reasonable view for the defendant to take about its prospects of success in the proceedings in deciding whether it was unreasonable for the defendant not to have made an offer at all ([84]). (5) Nor did the primary judge err in ordering the defendant to pay half of the plaintiff's costs on a party/party basis. Her Honour was entitled to consider the plaintiff's conduct in the proceedings and the circumstance that the award of damages was slightly, but not substantially, more than derisory in making a differential costs order ([88]).

[3]

Judgment 1MACFARLAN JA: In late 2006 Mrs Karen Holt lived with her husband (the present appellant) and their three sons on the Gold Coast in Queensland. After an earlier diagnosis of breast cancer, cancer was found in Mrs Holt's lungs in early 2007. Her health declined progressively until her death on 29 December 2009. 2Following interviews with Mrs Holt, the first and second respondents broadcast on 28 July 2009 on TCN Channel Nine's A Current Affair programme a segment concerning Mr and Mrs Holt. Mr Ben Fordham, the third respondent, was the presenter. 3The broadcast was highly critical of Mr Holt's conduct in relation to Mrs Holt during the period of her illness, with the result that Mr Holt commenced the present proceedings seeking damages for defamation. 4The hearing of the proceedings took place over nine days before Adamson J and a jury of four. The jury found that the broadcast carried the following imputations defamatory of Mr Holt (the plaintiff), none of which the respondents had established to be true: "(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". These imputations are referred to below as the plaintiff's or appellant's imputations. 5The jury was not satisfied that a further imputation, that the plaintiff physically abused his wife, was carried by the broadcast. 6The respondents had pleaded in accordance with s 26 of the Defamation Act 2005 that the broadcast also carried various substantially true imputations which shared "a common sting" with those pleaded by Mr Holt, with the result that any of the plaintiff's imputations not found to be substantially true did not further harm his reputation ("the contextual imputations"). Of the following four pleaded contextual imputations, the jury found that the respondents had established the truth of (ii) and (v) but also found that that did not result in Mr Holt not being injured by the imputations which he had pleaded: "(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." 7Adamson J subsequently assessed the damages to which Mr Holt was entitled at $4,500 plus $400 interest (Judgment of 13 July 2012: [2012] NSWSC 770). Her Honour found that, "far from vindicating the plaintiff's reputation", the proceedings had "brought to light weighty evidence in mitigation, in ... the relevant sector" and that, although Mr Holt had suffered some harm by reason of the publication, the harm was relatively slight (Judgment [179] - [180]). Mr Holt appealed to this Court against that assessment. 8In assessing damages, her Honour stated that she took into account the following factual findings: "(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) [Mr Holt made a cynical offer to Mrs Holt of $10,000, being the amount Mrs Holt had specified in an affidavit as required to cover the costs of her funeral] 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. (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 selfishly and insensitively used Mrs Holt's TPD [Total Permanent Disability] benefit to buy The Dog House [a power boat] and the Holden Rodeo, a vehicle of sufficient power to tow The Dog House. ... (10) The content of the two contextual imputations found [by the jury] 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." (See Judgment [54] and the subsequent findings in [68] to [144]). 9The primary judge also took into account further findings of fact which Mr Holt summarised in his submissions on appeal as follows: "(a) Mrs Holt was alienated from her own family because of the plaintiff's conduct towards them ([148]); (b) The plaintiff had gone on a spending spree with the insurance money and Mrs Holt was either reluctant, or unable, to stop him ([152]); (c) In so far as the plaintiff spent money on Mrs Holt, he wanted to reflect his own largesse ([154]); (d) The plaintiff had behaved highly insensitively by entertaining his friends at home, including serving them beer, while his wife was indisposed ([155])" (Appellant's written submissions dated 25 March 2013). 10On his appeal, Mr Holt contends that the primary judge erred in making many of the findings of fact referred to in [8] and [9] above and that the award of damages was in any event manifestly inadequate. 11He also challenges the order that her Honour made by a judgment of 23 August 2012 ([2012] NSWSC 968) that the defendants pay half of Mr Holt's costs of the proceedings on a party/party basis. He contends that the defendants (now the respondents) should have been ordered to pay the whole of his costs, on the indemnity basis or, at least, on the party/party basis.

[5]

Alleged error in relation to hurt to feelings evidence 13The primary judge found in this context: "178 In 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." 14On appeal, Mr Holt submitted that the "tenor" of this and the preceding paragraph of the judgment was "not that her Honour disbelieved [Mr Holt's] evidence, but that she considered it was not objectively warranted". He emphasised her Honour's use of the word "unrealistic" in relation to his view of the impact on him of the broadcast. He submitted that this involved error because the extent to which there was hurt to a plaintiff's feelings was a subjective question which was not to be assessed objectively. 15I do not accept that her Honour erred in this respect. Clearly, her Honour was of the view that, considered objectively, Mr Holt's description of the consequences to him of the broadcast was not fully warranted. Her Honour was entitled to take this objective assessment into account. However, there is no reason to conclude that her Honour did not also take Mr Holt's subjective reactions into account, even though her Honour thought they were not fully justified. That she did take Mr Holt's hurt feelings into account is clear from the last phrase in the quote in [13] above. Her Honour's approach accorded with the following remarks of Brennan J in Carson v John Fairfax & Sons Ltd [1993] HCA 31; 178 CLR 44 at 71: "All those objective consequences and those subjective reactions which flow naturally from the publication of the defamatory matter are relevant factors ... the two categories are not cumulative heads of damage but descriptions of kinds of intangible factors which must be taken into account in assessing damages".

[11]

Alleged error in making factual findings 26Mr Holt submitted that the primary judge engaged in an impermissible "roving inquiry" in which she "proceeded to wring from the evidence before her virtually every conceivable adverse finding or inference available against the appellant ... " (submissions dated 25 February 2013 [50]). This emotive submission does not fairly describe her Honour's approach which involved her carefully considering the evidence in the case to determine what inferences should be drawn concerning Mr Holt's behaviour towards his wife. This approach was sanctioned by the following statement of principle in Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 at 120, the authority of which Mr Holt did not challenge: "So much for evidence which is directed solely to establishing the plaintiff's previous bad reputation. But a defendant is also entitled to rely in mitigation of damages on any other evidence which is properly before the court and jury. This other evidence can include evidence which has been primarily directed to, for example, a plea of justification or fair comment". 27To similar effect was the statement of Keene LJ in Turner v News Group Newspapers Ltd [2006] 1 WLR 3469 at [43] that: "It has long been established that evidence of specific acts properly admitted on [a plea of justification or fair comment] may ... be taken into account by the jury when assessing damages even though the plea has failed". 28By reference to Jones v Pollard [1997] EMLR 233, Keene LJ noted that to be used for this purpose, the evidence must relate to "the relevant sector of the plaintiff's life" (at [45]). The respondents contended, necessarily contrary to Turner, that that qualification did not apply in the case of "Pamplin evidence" but as the evidence in question on appeal did in my view all relate to the relevant sector it is unnecessary to address the submission. The respondents did not dispute that this was so. 29The qualification referred to by Keene LJ reflects the requirement that evidence led by a defendant of a plaintiff's bad character must relate to the sector of the plaintiff's reputation with which the imputations relied upon by the plaintiff were concerned (Australian Broadcasting Corporation v McBride [2001] NSWCA 322; 53 NSWLR 430 at [16] - [23]; Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; 278 ALR 232 at [162]). 30In John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227, Handley JA (with whom Spigelman CJ and McColl JA agreed) applied the principle referred to in Pamplin, noting that there was no reason why the same use should not be made in assessing damages of evidence led in support of a failed defence based on the truth of contextual imputations (at [51]). 31Mr Holt did not suggest that the evidence that the primary judge relied upon to support her findings of fact was not properly before her in relation to one or more of the issues litigated at trial. These included the respondents' justification and contextual truth defences. Her Honour was conscious of the need to confine her use of the relevant evidence to that relating to the sector of Mr Holt's life with which the imputations of which he complained were concerned. Indeed she found that the fact, revealed by the evidence, that he had committed social security fraud in applying for and obtaining a carer's pension could not be taken into account in the assessment of damages because it was outside the "relevant sector". That is, it did not relate to the part of Mr Holt's reputation with which the imputations of which he complained were concerned. In her Honour's view, the relevant sector was Mr Holt's reputation "as a husband who was loving, responsible and considerate towards his wife" (Judgment [112]). She held social security fraud to be outside that sector. 32The law is undoubtedly concerned "to prevent [defamation] trials from becoming roving inquiries into the plaintiff's reputation, character or disposition" (Burstein v Times Newspapers Ltd [2001] 1 WLR 579 at [35]; McBride at [16]) but that policy was not infringed in the present case. The policy is manifested by the rule that, in general, evidence of "particular acts of misconduct on the part of the plaintiff tending to show his character and disposition", as distinct from evidence of general bad reputation, is inadmissible in mitigation of damages (Gatley on Libel and Slander (11th ed 2008, Sweet & Maxwell) at [35.30]). This rule does not apply to evidence, such as led in Burstein, of particular facts which are directly relevant to the contextual background in which a defamatory publication came to be made. Nor is it applicable where, as described in Pamplin and as was the case here, the evidence is properly before the Court on another issue.

[13]

General findings as to credit 33The primary judge formed an adverse view of Mr Holt's credibility (Judgment [56] - [61]). He challenged this conclusion but to succeed in that challenge he needed to satisfy the Court that it was contrary to "incontrovertible facts or uncontested testimony", "glaringly improbable" or "contrary to compelling inferences" (Fox v Percy [2003] HCA 22; 214 CLR 118 at [28] - [29]). 34Mr Holt's principal argument was that her Honour erred in accepting the statements of Mrs Holt as generally reliable (Judgment [65]) and that that error infected her Honour's conclusions concerning his credit because their evidence and statements related to many of the same topics. Subject to that argument (to which I turn in the next paragraph), Mr Holt raised no arguable basis for concluding that any of the tests stated in Fox v Percy have been satisfied. He relied upon State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; 73 ALJR 306 at [63] but he was unable to point to anything in the present case comparable to the documents and accountants' analysis which there contradicted the primary judge's conclusions on credit. 35As noted earlier, Mrs Holt died before the hearing at first instance. The evidence of her recollections, assertions and views was not therefore sworn testimony given in the present proceedings. It was in video footage on which interviews with her appear, documents of hers, an affidavit sworn in other proceedings and documents which record matters attributed to her. I do not accept Mr Holt's submission that in these circumstances the primary judge enjoyed no particular advantage over this Court in assessing Mrs Holt's veracity and reliability. 36First, the primary judge had the advantage of consideration of the whole of the evidence during the course of a lengthy (nine day) trial, in contrast to this Court's more limited engagement with the evidence through reference by counsel to particular aspects of it and its own reading of portions of it (see Fox v Percy at [23]). Secondly, the primary judge could not, and did not, consider the veracity and reliability of Mrs Holt's statements in isolation from Mr Holt's evidence. Consideration of Mrs Holt's statements was inextricably intertwined with the primary judge's assessment of Mr Holt's evidence which her Honour had the advantage over this Court of seeing and hearing being given. 37These matters are sufficient to render the principles referred to in Fox v Percy applicable to the primary judge's finding concerning the reliability of Mrs Holt's statements. In Abalos v Australian Postal Commission [1990] HCA 47; 171 CLR 167 at 178, McHugh J (with whom the other members of the Court agreed) cited with approval the statement of Lord Sumner in SS Hontestroom v SS Sagaporack [1927] AC 37 at 47 to the effect that the relevant principles are applicable wherever the judge's assessment of demeanour forms any substantial part of the judge's reasoning. It is clear that the primary judge's assessment here of Mr Holt's evidence was a significant factor in her assessment of the reliability of Mrs Holt's statements, and vice versa. 38In his written submissions, Mr Holt listed a number of matters said to indicate the unreliability of Mrs Holt's statements. These related principally to the impact of Mrs Holt's deteriorating health. This was a fact of which the primary judge was undoubtedly fully cognisant. Mr Holt's submissions in this context amounted to no more than an attempt to have this Court reassess the reliability of Mrs Holt's statements. They did not raise an arguable case that any of the Fox v Percy tests were satisfied.

[18]

Finding 5: Finding re offer of $10,000 48The circumstances giving rise to this finding were described by the primary judge as follows: "15 When Mrs Holt was in Sydney [in mid 2009] 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.' 16 The 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. 17 Mrs 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." 49The respondents requested the primary judge to find that Mr Holt "committed social security fraud and also failed to disclose his contingency fund in the affidavit he swore in the Federal Magistrates Court proceedings". However her Honour found that social security fraud was outside the relevant sector and should be disregarded on the issue of mitigation of damages (Judgment [112] - [113]). Her Honour also found that the respondents had not established the existence of a $10,000 contingency fund and therefore had not established that Mr Holt failed to disclose such a fund in the affidavit referred to (Judgment [114]). 50However her Honour did take into account on mitigation Mr Holt's conduct described as follows: "115 It 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." 51Her Honour's comment that the offer was a cynical one was presumably intended to indicate a view that Mr Holt took advantage of the circumstances to keep what he had to pay to a minimum. This was a comment that was fairly open to her Honour on the evidence and not one which, as Mr Holt contended, needed to have been specifically raised with him in cross-examination. In any event it could not be regarded as of any particular significance by way of mitigation bearing in mind the other far more derogatory findings made by her Honour and the jury. 52This view accords with Mr Holt's submission that her Honour's findings "do not seem to add anything of substance to the mitigating effect of contextual imputation (ii)". Whilst I do not consider that they added nothing of substance, I agree that they added little. There is no reason to think that her Honour thought otherwise. As a result, any error made by her Honour in relation to this finding was not material.

[22]

Further findings of fact 59At [145] to [156] of her Judgment the primary judge made further findings of fact (see [9] above) which she took into account on the assessment of damages. These were largely, although not wholly, adverse to Mr Holt. They related to different aspects of his relationship with his wife. Contrary to his submission, it is not in my view of significance that the respondents did not specifically ask for these findings to be made. They were ones fairly open to her Honour to make bearing in mind that this was a case in which the nature of the relationship between Mr Holt and his wife was in issue and a wealth of evidence was presented on that topic. 60Mr Holt's specific objections to these findings are addressed as follows. 61Contrary to Mr Holt's submission, there was evidence from which the primary judge was entitled to conclude that Mrs Holt was alienated from her own family because of Mr Holt's conduct towards them: see for example the evidence of Mrs Holt's mother at transcript p 280 and that of her sister at transcript p 270 (see also the Hospital Progress Notes for 12 February 2009, although note the primary judge's comment at Judgment [55] that she did not regard the medical records in evidence as "particularly reliable"). 62As to the second finding, there was ample evidence that Mr Holt, in effect, went on a spending spree with Mrs Holt's money (see the evidence referred to in the respondents' written submissions dated 25 September 2013 at [3], [8] - [14] and [33] - [38]). 63Mr Holt's criticism of the third finding also cannot be accepted. As the respondents submitted, the primary judge's point was essentially that Mr Holt wanted to control how his wife's money was spent, her Honour saying: " ... 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" (Judgment [154]). 64Her Honour's comment concerning largesse was in my view a fair inference from what was proved concerning Mr Holt's control of the money and his purchase of various items for Mrs Holt's benefit. 65The fourth finding related to Mr Holt's entertainment of his friends. The primary judge's comment that he acted insensitively was well open in light of the evidence that, whilst Mrs Holt was seriously ill, he had regular drinking sessions with friends at the family home starting at 4.00 pm, and that these upset Mrs Holt (see transcript pp 64 - 5, 180 - 1 and 201). 66Mr Holt further submitted that the four identified additional findings of fact were "substantially irrelevant to the plaintiff's reputation, did not have any, or only little, mitigating effect and were to a significant extent repetitive of other matters taken into account on mitigation". However each of the matters, including that concerning alienation of Mrs Holt from her family, related to the relationship between Mr Holt and his wife. Whilst the matters were of varying importance, each was of some significance in relation to mitigation and added in a not insubstantial way to the other matters the primary judge took into account. 67Mr Holt submitted, in particular, that her Honour made a finding about drink driving and that that was "plainly in a different sector of the plaintiff's reputation", rendering it irrelevant to the issue of mitigation. 68The finding was in fact in the following terms: "156 The 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 [a] 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, [a] '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". 69It is apparent that the finding of "drink driving" was incidental to an examination of the reason for Mr Holt's physical aggression towards his wife in connection with at least one event that involved car keys. What was relevant to the issue of mitigation was Mr Holt's physical aggression and that it arose out of unreasonable behaviour on his part. These findings thus related to the relevant sector of his reputation.

[24]

WHETHER AWARD OF DAMAGES MANIFESTLY INADEQUATE 73The three purposes of an award of damages for defamation are "consolation for the personal distress and hurt caused to the [plaintiff] by the publication, reparation for the harm done to the [plaintiff's] personal and (if relevant) business reputation and vindication of the [plaintiff's] reputation" (Carson v John Fairfax at 60). These three purposes overlap, with the result that a verdict "is the product of a mixture of inextricable considerations" (ibid). 74In determining the amount of damages to be awarded, the Court is to ensure that "there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded" (Defamation Act, s 34). In the assessment of damages, "a person's reputation is accorded high value" (Mahommed at [271]). 75The principles stated in House v The King [1936] HCA 40; 55 CLR 499 at 504 - 5 concerning appellate review of an exercise of discretion are applicable to a challenge on the basis of manifest excess or inadequacy to an award of damages for defamation (Rogers v Nationwide News Pty Ltd [2003] HCA 52; 216 CLR 327 at [62] per Hayne J with whom Gleeson CJ and Gummow J relevantly agreed). Thus, unless a specific error can be established, it must be shown that the award is so high or so low (as the case may be) that the appellate court may infer that error has occurred in the assessment process (see House at 505). An award will only be set aside if it is "outside the range of what could reasonably be regarded as appropriate in the circumstances of the case" (Carson v John Fairfax at [61] - [62]; Mahommed at [269]). The question for the appellate court is "whether the result at which the trial judge arrived bespeaks error" (Rogers at [64]). 76The sum of $4,500 plus $400 interest that the primary judge awarded was undoubtedly small when considered solely in the context of the untrue imputations concerning the plaintiff that were made in the broadcast. However, as her Honour made clear, her conclusion was largely driven by her view of the evidence relied upon in mitigation. She concluded that by reason of this the harm suffered by Mr Holt should be regarded as "relatively slight" (Judgment [179] - [180]). The possibility of such an outcome was contemplated in Pamplin where Neill LJ spoke of a defendant's ability to rely on acts in mitigation to reduce damages "perhaps almost to vanishing point" (at [120]). 77Mr Holt has not established any specific error on the part of the primary judge and in my view the size of the award does not itself "bespeak error". On the contrary, I consider that the matters that the primary judge took into account by way of mitigation justified the conclusion reached by her Honour that Mr Holt suffered little, if any, damage by reason of the untrue imputations upon which he relied. The factual findings that her Honour made, together with the two contextual imputations found by the jury to be true, reflected conduct of Mr Holt in the context of his relationship with his wife that was, to a greater or lesser extent, disgraceful. The mitigatory effect of these findings almost wholly negated the impact of the untrue imputations upon which Mr Holt relied. 78I should note at this point that counsel for Mr Holt did not contend that as a matter of principle (rather than by reason of the alleged specific errors addressed in this judgment) the primary judge was not entitled to take into account in assessing damages the various findings of fact that she made (see [8] and [9] above). When the Court raised this issue, counsel confirmed that it was not contended that because the findings of fact (apart from those as to the truth of two of the contextual imputations) related to matters of which viewers of the broadcast were not aware or informed and could not otherwise be said necessarily to go to Mr Holt's reputation rather than his character, the findings could not be taken into account by way of mitigation (Transcript pp 29 - 30). The basis for this approach was presumably the authority that evidence led in support of a failed defence of justification may be relied upon in mitigation of damages by way of partial justification (see for example Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174; 81 NSWLR 157 at [47], [59] and [86] and the references there given). 79In these circumstances, it is unnecessary to consider whether Grobbelaar v News Group Newspapers Ltd [2002] 1 WLR 3024 is, as Mr Holt contended, simply an example of evidence in partial justification being taken into account in the assessment of damages or whether it is authority for a wider proposition that is arguably in conflict with the well-established principle that defamation law is concerned with a person's reputation, not his or her character (see for example Mahommed at [152]).

[26]

The indemnity costs issue 82Section 40 the Defamation Act relevantly provides: "40 Costs in defamation proceedings ... (2) Without limiting subsection (1), a court must (unless the interests of justice require otherwise): (a) if defamation proceedings are successfully brought by a plaintiff and costs in the proceedings are to be awarded to the plaintiff-order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the defendant unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff, or ... (3) In this section: settlement offer means any offer to settle the proceedings made before the proceedings are determined, and includes an offer to make amends (whether made before or after the proceedings are commenced), that was a reasonable offer at the time it was made." 83Having earlier referred to an offer made by Mr Holt to settle the proceedings, the primary judge summarised her conclusions as follows: "62 In my view it was not unreasonable in the instant case for the defendants to fail to accept the plaintiff's offer to settle the proceedings for $90,000 plus costs. A payment of $90,000 plus costs to resolve the proceedings would have amounted to a substantial vindication of the plaintiff's reputation. For the reasons given above, the defendants had a reasonably arguable defence, truth, which could have defeated the plaintiff's claim. They also had substantial evidence in mitigation which they had reason to believe would reduce the damages which the plaintiff might be awarded either to a derisory, or a relatively modest, amount. In these circumstances it was also not unreasonable for the defendants not to make any settlement offer at all." 84Mr Holt submitted that the reference in s 40(2)(a) to unreasonable failure of a defendant to make a settlement offer "is not directed to an assessment of prospects by the defendant" but to "matters which go to the reasonableness of making or not making an offer at all" (Amended Written Submissions dated 13 October 2013, [78]). The effect of this submission appears to be a contention that in considering the costs order to be made, the judge cannot take into account what the judge concludes would have been a reasonable view for the defendant to take about its prospects of success in the proceedings. I can see no basis for so restricting the court's discretion. There is no reason why the court cannot, as her Honour did here, take that matter into account in deciding whether it was unreasonable for the defendant not to have made an offer at all. 85Accordingly, the challenge to her Honour's decision not to award indemnity costs fails. It was not contended on appeal that her Honour erred in not finding that the respondents acted unreasonably in failing to accept Mr Holt's offer of a judgment for $95,000 plus costs.

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ORDERS 89For the reasons I have given, the appeal should be dismissed with costs. 90GLEESON JA: I agree with Macfarlan JA. 91SACKVILLE AJA: The appellant criticised the primary judge's reasoning on damages on the ground, among others, that her Honour discounted the award of damages for hurt feelings because the distress the appellant experienced as a result of the broadcast reflected an "unrealistic" assessment of the extent to which the broadcast truly affected his reputation (primary judgment, at [178]). This was said to constitute an error because damages for hurt feelings in defamation are to be assessed by reference to the plaintiff's subjective response to the defamatory publication, rather than an objective assessment of the hurt that the plaintiff should reasonably have experienced by reason of the publication. 92If her Honour had done what the appellant attributed to her, she might have well have fallen into error. In Ali v Nationwide News Pty Ltd [2008] NSWCA 183, Tobias and McColl JJA endorsed (at [77]) the observation of Miles CJ in Humphries v TWT Ltd [1993] ACTSC 24; 113 FLR 402 at 418 - 19, that the defendant in a defamation action must take the plaintiff as it finds him or her, including any particular sensitivities the plaintiff may possess. Tobias and McColl JJA also noted (at [78]) that, although Miles CJ's decision was reversed on appeal (by increasing the award of damages), his Honour's reasoning on this point was not disturbed by the Full Federal Court: Humphries v TWT Ltd [1993] FCA 577; 120 ALR 693. 93In Humphries, Miles CJ quoted (at 416 - 17) observations made by Lord Diplock in Broome v Cassell [1972] AC 1027, at 1125: "the harm caused to the plaintiff by the publication of a libel upon him often lies more in his own feelings, what he thinks other people are thinking of him, than in actual change made manifest in their attitude towards him." Miles CJ went on to say (at 15) that the damage to a plaintiff's feelings can be more important than the observable damage to his or her reputation or to the need for vindication. His Honour also recognised (at 17) that it is not every case in which substantial damages must be awarded for hurt to the plaintiff's feelings. 94Because of the importance that is often attached to the hurt feelings experienced by a plaintiff in defamation proceedings, the remarks of Brennan J in Carson v John Fairfax & Sons Ltd [1993] HCA 31; 178 CLR 44, at 71, cited by Macfarlan JA (at [15]), may not be a complete answer to the appellant's complaint. However, when the primary judgment is read as a whole, it can be seen that the primary judge did accept that publication of the broadcast continued to affect both the plaintiff's reputation and his subjective feelings. It was the evidence adduced by the respondent in mitigation of the appellant's damages, that persuaded her Honour to award only a very modest sum as damages. For the reasons given by Macfarlan JA, there was no error in her Honour taking this course. 95I agree with the orders proposed by Macfarlan JA.