It is obvious that Mr Russell was very upset when he gave this evidence.
64 In December 1996, the Penrith Press newspaper published an article headlined "We are not criminals" concerning the bike ride excerpt shown on ACA. Mr Fielding, who co-operated with the reporter, in effect denied the imputations in the ACA programme and disclosed that the ten plaintiffs had sued TCN for defamation. TCN was reported as having refused the plaintiffs' demand for an onscreen apology, saying it did not accept the group had been portrayed as criminals, that it was not appropriate to go into details "but I can say that [the proceedings] are being and will continue to be vigorously defended". A photograph of the Jacksons and Messrs Budd, Rodney, Fielding, Elliott and Wheeler was also published. Mr Russell declined to participate because he was frightened of further publicity. He preferred to try to explain to everyone "who I had to explain to" what had happened rather than do it through a newspaper. As had all the other plaintiffs, Mr Russell experienced considerable anxiety and stress arising from the proceedings themselves. He was also upset at the Daily Telegraph publication identifying him and his friends as Rebels. Mr Russell's general feelings are described in the following passage -
"I'm devastated. Like I said before, I'm devastated that this has gone on as far as it's gone. All I did was, in my eyes, did a favour for a friend which was a favour for Channel 9 and they've turned the whole thing into a total mockery and I just can't believe it's happened. I just cannot believe, like I said before, a major company can do this and not have enough gumption to realise what they've done and give us an apology or an explanation to say why they did it. They've given us absolutely nothing, so we've had to go to all the expense, the loss of time, the loss of income, and when I say loss of income, you're actually - you're upsetting your clientele because they rely on me to be there. They don't want to talk to people that work for me, they want to talk to me. It's upset a lot of things and it's not just coming to court, it's the upsetting parts of phone calls, the whole lot. I'm not stating for one minute I think that any of my people that I know actually think that I'm an outlaw biker, but I shouldn't have had to explain any of this to anybody."
65 Following the evidence of Mr Russell, on the fourth day of the trial, 6 December 2001, the defendant made the following statement through its counsel, Mr McClintock SC, in open court -
"On 1 January 1996 my client TCN Channel 9 broadcast a segment of the programme A Current Affair . The footage shown on the Current Affair programme showed the
plaintiffs in these proceedings each for short periods. The footage in question was originally filmed, as your Honour knows, for a programme broadcast in 1995, the Weddings programme. In using the footage to illustrate the A Current Affair programme my client breached, and accepts that it breached, an undertaking given by the producer in relation to the Weddings programme to each of the plaintiffs. It accepts that that was wrong and indeed inexcusable to do so.
Having heard the evidence of the plaintiffs, I have informed my client that each of the plaintiffs who has given evidence so far has suffered a genuine sense of anger and hurt both because of the breach of the undertaking to which I have referred and because of the fact that the film of them was used to illustrate a programme about criminal bikie gangs. My instructions are and have been not to cross-examine to suggest otherwise, nor to address your Honour to the contrary.
As a result of what I have communicated to my client, it has instructed me specifically to apologise in open Court to each of the plaintiffs for the broadcast on ACA and for breach of the agreement. It goes without saying that while my client disputed that the plaintiffs were identified by the programme and disputed the imputations were conveyed to people who saw the programme, it has never suggested that the imputations were true. Indeed, it accepts, and has always accepted, that the imputations were untrue. It has never suggested to the contrary.
I am instructed to say something specifically about Mrs Jackson, the first plaintiff. The marriage of any woman is and should be a joyous occasion for her. Channel 9 believes that the Weddings programme portrayed her wedding in a favourable light and that Mrs Jackson overall was happy with that portrayal. It accepts and regrets that the Current Affair programme must necessarily have detracted from the joy that Mrs Jackson would have felt in recalling her wedding. That applies whether or not I accept the programme was defamatory or not, whether it had anything defamatory about it. I apologise on behalf of my client to Mrs Jackson for that.
Part of the footage was repeated on the Today programme in July 1996. I am unable to say why that occurred. Once again it would have reminded the plaintiffs - and my client accepts it would - of the Current Affair programme and no doubt added to their hurt. Once again I want to apologise to each of the plaintiffs not just for the Today programme but for everything, specifically the three matters that I mentioned, the breach of the agreement, the use of the footage on ACA programme and the repetition on the Today programme in July 1996.
On my own observation - and this is a matter that has been communicated to my client although I believe representatives of my client have witnessed it themselves - each of the plaintiffs appears to be a fundamentally decent person.
It has to be said that this should not have been done to them and my client accepts that. When I say this it's obvious to that which I am referring.
I wish to say one last thing and it is this: The reason why no apology has previously been given was because of a decision made by me that an apology so long after the broadcast - and one has to say that something Mr Russell said, in a sense, may confirm the fears I had - might be thought arguably to aggravate the damages and to be counterproductive and insincere. It is not insincere, not on my part and not on the part of my client. My client has been willing to apologise for some time and it is fair to say that once I recommended the course which I have just taken which I did this morning, I received instructions to engage in that course within less than an hour.
Other than repeating to the plaintiffs and to each of them my regrets and my client's regrets and apology for what occurred, there is nothing further I wish to say."
66 An apology and retraction are not a pleading device but an attempt to make amends, so far as words can do so, for the infliction of a wrong, in this case, a grievous wrong. An apology may mitigate the plaintiff's loss by mollifying, to a greater or lesser extent, hurt feelings and vindicating injured reputation. Whether it does so will depend upon many considerations: the nature and circumstances of the defamation; the consequences for the plaintiff; the lapse of time; the language of the apology; and circumstances in which it is made. In some cases the apology may be of little utility and there may be cases where its terms are so qualified as to add to hurt and indignation.
67 With these considerations in mind, I turn to the terms of Mr McClintock's statement. The first matter to note, having regard to the reasons given for refusing the apology and retraction when it was sought, is that it contains no explanation of substance as to why a statement in terms similar to that now made was not then given. The asserted difficulties (in the written submissions) with identification and imputations are no different now than they were then. Even if these were obstacles, they were demolished by the jury's verdict on 17 May 2001 and certainly by the judgment of the Court of Appeal on 10 May 2002. The objection that Hulme J entered verdicts for the defendant on the imputations alleging involvement in criminal activities as distinct from willing association with criminals is without substance: it certainly did not prevent a general apology and retraction for any imputations attacking the reputations of the plaintiffs, let alone one that dealt specifically with the remaining imputations. The defendant's written submissions argue that, as only some of the plaintiffs could be recognized from the footage, an apology limited to them alone would have increased the potential defamation to the other plaintiffs. An apology and retraction could have been crafted that would have avoided this problem. At all events, the form of the apology and retraction proposed by the plaintiffs dealt fairly with both the issues of imputation and identification. The explanation given by Mr McClintock SC cannot be regarded as evidence of the reason for the omission to apologise and retract: it refers only to late apology and retraction; the apology and retraction that was requested and which should have been given were not Mr McClintock's but his client's (counsel only gives advice, the responsibility for decision belongs to the client); and, as to TCN's suggested sincerity, a statement from the Bar table is no substitute for evidence, there is no evidence of TCN's sincerity (and ample indications of the opposite). Mr McClintock's expression of his own feelings is irrelevant. The next matter concerns Mr McClintock's statement that TCN has "never suggested that the imputations were true". That is correct in the sense that it has not maintained, since the Today programme, that the imputations were true: however, that its programme conveyed - and, I am convinced, recklessly or intentionally conveyed - that the imputations were true of the plaintiffs lies at the very centre of this case and it would have been better had TCN acknowledged this frankly. Thirdly, Mr McClintock said that TCN had been willing to apologise for some time. Maybe so. It kept that willingness well concealed behind fortifications bristling with forensic menace, somewhat breached by the jury's verdict but leaving for my determination Constitutional right and qualified privilege. These defences were not abandoned until after Mr Molomby SC (as he now is) had virtually completed his opening, when Mr McClintock said that none of the affirmative defences was relied on. He gave no hint at that time that making an apology and retraction was envisaged. It is difficult to avoid the inference that the apology was withheld in the Micawberish hope that something would turn up and that course could be avoided. Mr McClintock SC said that it might be thought that an apology at a late stage might aggravate the damages, I take it, because a broadcast apology and retraction might be interpreted as a refreshment of the defamation and thus be counterproductive. However, there was nothing to stop the defendant from indicating that it was prepared to give an apology and asking the plaintiffs what form they wanted it to take and whether and how they wished it to be broadcast. The implication that this was not done out of concern for the plaintiffs is difficult to accept. Mr McClintock SC said that one of the reasons for not apologizing earlier was that it might be thought insincere. Of course, this makes sense only on the assumption that it was hoped that an apology might never be necessary since the level of perceived insincerity could only be increased by delay. Although the candour of the admission that TCN considered its own embarrassment more important than the feelings of the plaintiffs is somewhat refreshing, it reveals a somewhat discreditable self-interest. Lastly, TCN did not even acknowledge unambiguously that it had been guilty of wrongdoing - only that it was wrong for it to have acted in breach of an agreement. Of course "this should not have been done to them" but to say that TCN "accepts that", with the comment, "When I say 'this' it's obvious to that which I am referring" is something less than a frank acceptance of wrongdoing: the use of the passive voice and the general reference is little more than an expression of regret; and the apology "for the broadcast on ACA" (as distinct from the breach of the agreement) does not appear to be wholehearted. Indeed, despite the verdict of the jury, Mr McClintock persisted with the suggestion, in respect of Mrs Jackson, that no defamation had actually occurred. There was no express promise not to use the footage again. What was given was far less than the plaintiffs asked for and it was far too late to count. So far from assuaging their hurt, this apology and the occasion upon which it was made must have been galling.
68 The defendant submitted that the absence of a timely apology cannot affect the position of Mr Hinvest and Mr Wheeler, who did not, as it happened, request an apology and retraction. It is clear that, had they done so, they would have wasted their time and the legal fees. The defendant knew enough, as I have already explained, to know that they had been defamed. It had taken the position that it was not going to attempt to make amends, indeed, that no amends were necessary. It must have expected that it was at least highly probable that its refusal to correct the imputations conveyed by the broadcast would be communicated to other persons in the position of the plaintiffs who sought amends. In the particular circumstances here, the fact that Messrs Hinvest and Wheeler did not seek and apology is irrelevant and does not materially lessen their entitlement to aggravated damages of the same order of the other plaintiffs. Even if their omission to seek an apology comprises a distinction between their position and that of the other plaintiffs, it is slight and does not make any significant difference to the damages to which they are entitled.
69 To resume the narrative of events. Mr Shuttleworth said that he was at home with his wife and his three children (aged between four and fourteen), together with his mother-in-law and sister-in-law. He said that when he saw the programme, he felt "shattered…stunned, disappointed". He added, "It's hard to describe your feelings like back then but it was unbelievable". He needed to explain to his fourteen years old daughter that not everyone who rode a Harley Davidson was a drug dealer or a murderer. He and his wife argued about his having a Harley Davidson and she cited the programme as a reason why he should give it up. His workmates and customers the next day commented to him about the programme. His partner in the wrecking yard business, Mr Dykyj, told Mr Shuttleworth that his parents, who had watched the programme, had expressed concerns about his association with Mr Shuttleworth because of the imputations conveyed in it. He told Mr Shuttleworth that the partnership would have to be dissolved. Mr Shuttleworth said that, after nine years of friendship, this was heartbreaking. Shortly afterwards, the partnership was dissolved although Mr Dykyj and Mr Shuttleworth remained friends. It was obvious from Mr Shuttleworth's demeanour in the witness box that he was still upset by what had happened.
70 Mr Shuttleworth said that customers frequently came to the counter of the shop and asked if they could buy drugs although he thought the questions were intended as jokes. His partner in the paint shop, Mr Dunn, asked him not to work behind the counter for a while because of this. Mr Shuttleworth said that he found this was humiliating and annoying. Joking remarks were made to him at baseball and touch football. When he was told of the Today programme he said that, "I just gave up caring; I didn't want to see it, I just didn't want to go through it again". Mr Shuttleworth had moved to Western Australia in 1997. He summarised the effect on him in the following way -
"It's actually pretty nerve-wracking. I didn't even know the full extent of what's happened…I'm confused. I don't know - I know at the time it did some damage and the comments and all that affected me and the way it sort of changed my life but I've moved to Western Australia. I've tried to forget about it. Every time I come back to court, it's like I'm going through it again, the memories, and trying to remember everything and trying to get exactly what feelings you have out so that it's known what it's done to me. But it's just so hard."
71 Mr Shuttleworth said that he earns his income from leasing out two tow trucks. He said that he had joined the Rebels in 1996, well after the ACA programme, and was still a member. He had been nominated for membership by Mr Jackson's elder brother. After he became a nominee (which, although there is some uncertainty about it, I think occurred also in 1996 but before the broadcast) he wore a Rebel patch identifying himself as a member of the club on the jacket he wore when riding his bike, which he continued to do in the Penrith area. He said that he did not think that what had been said about the Rebels on the ACA programme was sufficiently serious to stop him from joining the club because he "knew that wasn't true". He conceded that the Rebels were identified as a criminal group on the ACA programme, that his joining the club obliged him to wear the club's colours when riding his motorcycle and that this (inevitably) informs anyone who saw him that he was a Rebel. Mr Shuttleworth said that it was his choice to join the Rebels, even though he knew that to do so would have an adverse impact on his reputation. He said, however, that people with whom he associated would not think the less of him because of that, once they knew what kind of person he really was. Mr Shuttleworth agreed that, as far as he was concerned, what people who do not know him think about his membership of the Rebels is a matter for them and did not bother him and that he was only concerned about those people he did know. He said -
"I'd just like to say like people who judge people on what they wear or what they see and not on the person, like when I joined the Rebels it was my choice, I wear them colours, I'm responsible for how people treat me, whereas Channel 9 sort of took that out of my hands, they just made me look bad, which wasn't my choice. I've joined The Rebels Motorcycle Club. Now it's my choice."
72 The plaintiffs also called Mr Jerome Dykyj who, as I have already mentioned, was a business partner and very good friend of Mr Shuttleworth. He also knew Mr Jackson whose business premises adjoined his very well. Mr Dykyj saw the Weddings programme, with his parents, with whom he lived at the time and liked the programme. He said that people at work commented favourably on it as well. He did not hear any unfavourable comments. He also saw the ACA programme, again with his parents. He father, Mr Dykyj said, "got really angry …because he didn't want me to associate with people like that…a hit man, drug dealer etc and he wanted me to do something about it". Against his own wishes in the matter, he felt he had to give way to his father's strong views and his partnership with Mr Shuttleworth was terminated. He said that, "Had ACA published a retraction of what appeared which explained that the bike ride footage was taken from another programme without intending to suggest that the participants were associated with the gangs discussed in ACA", he said, in substance, that his parents would not have felt as they did and he would have been able to continue with his partnership. Mr Dykyj said that many customers made snide and joking remarks which were difficult to interpret correctly, whether they were serious or not. Mr Dykyj, in cross-examination, agreed that the programme did not make him think any the less of Mr Shuttleworth, whom he continued to hold in high regard.
73 Mr Dennis Wheeler had just returned from a holiday when he was informed by his neighbour that he was on television that night on ACA and suggested that he should watch the show. When he watched it, he described his feelings in the following way -
"I was in shock at first. I couldn't understand why we were on a show that depicted these criminal activities when they were nothing to do with us. We did footage for a wedding show. Also, we had an agreement that it would never be used for anything else. So I couldn't see why we were even on the show. I was sort of shocked at the time and sort of dumbfounded. I couldn't believe it…I sort of felt seriously violated…the fact that they did this, put this image of us on there [as involved] in things…such as murders and sharks eating people and guns, the drug bit, of…making the drugs and selling, distribution…all the things they implied, I was just so totally shocked by it."
74 Mr Wheeler's ex-wife telephoned him shortly after the broadcast and asked him to explain how he came to figure in a programme about serious crime. He said he was at a loss to explain it to her and that the only thing he felt he could say was that the excerpt had come from the Weddings footage. Mr Wheeler said that he was devastated by this call because (as I understand his evidence) it led him to think in a more focused way about how the broadcast was going to affect him, particularly his children and family. He said that his younger daughter came home in tears one afternoon saying that the children at her school had accused her of having a criminal for a father. At this point, Mr Wheeler became upset and took a little time to recover his composure. He said that persons whom he dealt with in business had made many comments about the programme, some of them trivial but all with a sting. An electrical wholesaler with whom he worked, a Mr Turner, greeted him with the remark "Here's Wheeler the drug dealer", perhaps attempting to be funny but Mr Wheeler did not think it was. A car salesman in Penrith, who had earlier bought an air conditioning system from Mr Wheeler's firm, but with whom he had no other dealings, said that he had seen him on the ACA programme and it looked as though he had been involved in the criminal activities which it portrayed. Mr Wheeler said that he did not think that this person really believed that he was involved, but it obviously concerned him. His face was very obvious in the programme, because he wore a distinctive beard, and it would have been easy for anyone to have identified him. One of his clients, who gave him probably 90% of his income at the time, stopped giving him work towards the end of 1995 and it took Mr Wheeler some time to convince him to start contracting with him again. Mr Wheeler could not think of any explanation for this change in a long-standing business relationship and attributed it to the TCN broadcast. The work never fully returned, perhaps because the client's son-in-law did not like Mr Wheeler. In the circumstances, Mr Wheeler did not feel able to discuss how the broadcast came about. When asked about the apology proffered by TCN, which I have set out above, Mr Wheeler described it as a "Clayton's apology". In cross-examination, Mr Wheeler conceded that his face did not appear on the Today programme footage.
75 It will be seen from my description of the imputations found by the jury that they fell into two classes: firstly, imputing a knowing involvement in the specified crimes; and secondly, imputing a willing association with persons known to be knowingly involved in the specified crimes. Hulme J entered judgment in favour of TCN, despite the jury's verdicts, in respect of the first class of imputations but refused it in relation to the second class. Appeals and cross-appeals were brought in respect of his Honour's judgments. The learned trial Judge held that, although the defamatory statements concerned the identified gangs and could be properly understood as applying to each member of such a gang, nevertheless they cannot be regarded as applying to the plaintiffs" upon the ground, applied by Willes J in Eastwood v Holmes (1958) 1 F & F 347, 349 [175 ER 758, 759] that the statement 'all lawyers are thieves' would not be actionable at the suit of all lawyers or any particular lawyer. The defendant sought to maintain his Honour's judgment on the basis that this was such a case. However, as Handley JA pointed out Willes J said that the principle applying to group or class defamations did not apply where 'there is something to point to the particular individual' (see also Knupffer v London Express Newspaper Limited [1944] AC 116 per Viscount Simon at 119, cf Lord Porter at 124-125, Lord Russell at 123. In a passage upon which the defendant relied in respect of the plaintiffs' claim for aggravated damages, Handley JA concluded as follows -
"[27] There can be no doubt that there was something in this programme which pointed to these plaintiffs as individuals. They were identifiable in the film and each of them was identified by witnesses.
[28] The significance of this was a matter for the jury. The ordinary reasonable viewer may have thought that the film sequence had simply been used as background and had nothing to do with the rest of the programme. However, the jury could 'read between the lines' and found that the use of the film footage, without any disclaimer, at that point in the programme implied that the riders were members of the one of the outlaw bikie gangs. The jury could also find that the ordinary reasonable viewer would have inferred this. (Italics added).
[29] In my judgment, therefore, it was open to the jury to find that the programme conveyed the imputations pleaded in respect of the plaintiffs who were identified from the film footage, and the trial Judge should not have entered judgment for TCN on [the imputations alleging involvement in the specified crimes]."
76 Mr McClintock SC relied on the passage in italics to demonstrate that there was a basis for the view expressed in the letter refusing an apology, and for the case made before the jury, that the imputations conveyed in the programme, whatever they were, were not referable to the plaintiffs and, accordingly, it was not possible to find that the defendant had acted without bona fides or improperly or unjustifiably. However, the purpose for which Handley JA made the observation was entirely different to that which the defendant wishes to put it. The existence of the theoretical possibility to which Handley JA adverted provides a most inadequate basis for the defendants' submission. In my view, the overwhelming probabilities were that one set or other of the imputations were indeed conveyed of the plaintiffs as they complained and I am unable to see how anyone in the position of the defendant could, bona fide, hold a different view. Indeed, coming to this matter as a fact finder and, hence, in a very different position to that of Hulme J, I feel constrained to say (with unfeigned respect) that I have formed the view that the defendant could not bona fide have possessed the opinion that the imputations to the effect alleged by the plaintiffs in their letter were not conveyed of them. This is especially so having regard to the promotions that identified the plaintiffs as illustrating the point to be made by the report. Furthermore, I note that that there was no evidence from the defendant upon this - or, indeed, upon any other matter: nothing is placed in the scale capable of outweighing the commonsense conclusion contended for by the plaintiffs.
77 It was also submitted by the defendant that only one or two of the plaintiffs were recognisable from their depiction in the broadcast. However, there was abundant evidence that they were all identified, no doubt initially by friends and relations but, in due course, by others (with the Jacksons more readily recognized by strangers). No doubt the process of identification came about in a number of ways, principally, I think, because the plaintiffs had all communicated to many of their acquaintances, friends and relations the fact that they had participated in the bike ride shown on the Weddings programme and, accordingly, when persons who knew this fact saw the bike ride on ACA they would almost certainly have realised who one or more of the persons were. I have no doubt that, by virtue of the extensive social and business connections of the plaintiffs, they would ultimately have been identified as having been depicted in the ACA programme by a not insubstantial number of persons. Having regard to the wide publicity connected with the Weddings programme, which identified Mr and Mrs Jackson, the extent of identification of them with the group depicted in ACA by strangers and passing acquaintances was considerably greater than for the other plaintiffs. It is also obvious, and a number of the plaintiffs gave evidence to this effect, that many persons who saw ACA came to later identify one or more of the plaintiffs by being informed by others of the fact of their depiction and another wider circle of people who had not seen ACA were informed by those who had of the imputations that were conveyed. Overall, I accept as very likely - as indeed the plaintiffs fear - that many persons unknown to the plaintiffs were aware of, and gave significant credit to, the imputations that were broadcast of them. At the same time, except for the Jacksons, Mr Shuttleworth and Mr Wheeler (because of his full beard), the plaintiffs would not have been identified by members of the general public falling outside the groups which I have mentioned, since their faces were seen only fleetingly, if at all, and they were never identified by name. As is already obvious, I reject the defendant's submission that the plaintiffs could only have been identified by persons who knew them and knew them well: this is to confuse identification with recognition.
78 Mr McClintock SC also submitted that persons who identified the plaintiffs by knowing their connections with the Weddings programme would have known that the imputations were not true about them and, since the footage had been filmed for the Weddings programme "and misused to illustrate ACA…it would defy common sense" to conclude that they thought anything adverse of the plaintiffs. I reject these submissions also. Many who knew the plaintiffs, certainly many who identified them, especially in the wider circle of connection, would not have known them well enough to be able to dismiss the imputations that were conveyed in ACA or, having regard to the Weddings programme as a whole, would persons be likely to consider that the footage was "misused" as distinct from deliberately selected. The most reasonable inference is the opposite of the defendant's contention. Furthermore, the only reasonable inference that could be drawn from the ACA programme is that TCN was asserting that the persons depicted in the bike ride were, for one reason or another, persons with whom the programme was concerned and of whom it intended to warn the public. The programme was not about motorbike riders in general but about particular motorcycle groups, namely those that undertook serious criminal activities. As I have mentioned, the inference that the group comprising the plaintiffs was one such group is strengthened, if more were needed, by the fact that TCN used the bike ride sequence to advertise and promote the ACA programme.
79 The defendant submitted that no harm or no significant harm was done to the plaintiffs' reputations. I have set out the evidence, such as it is, of harm. It is fair to say that not a great deal of harm to their reputations has been proved although what has been disclosed is, to my mind, far from trivial. However, in the nature of things, this matter is difficult to demonstrate by evidence. In the immediate communities in which the plaintiffs lived and worked there could be little doubt that a significant number of persons would have given considerable credit to the imputations conveyed by ACA against the plaintiff or plaintiffs who they identified as having been subjected to those imputations although those to whom the plaintiffs were well known would have been very likely to dismiss them, at least when the particular plaintiffs had explained how it came about that they were traduced. Even amongst such persons, lingering doubts might well remain, especially when no apology or retraction was forthcoming and the imputations were, in substance, repeated on the Today programme. It is difficult to assess how long the imputations continued to cause ripples but, I think, once an adverse opinion is formed, it is most unlikely, in the nature of things, to disappear and its malign influence will tend to remain although, perhaps, becoming more general and less specific. The rate at which adverse opinions are communicated will gradually diminish, though where the ripples stop, it is, of course, impossible to say. It was contended that the apparently joking references to drug dealing and the like that were made to numbers of the plaintiffs demonstrated that few persons, if any, really thought less of them. The plaintiffs were hurt by the comments. Who can tell if there was no sting intended and what suspicions lay behind the grin? Certainly, the evidence shows identification of the plaintiffs. I have concluded that the reputation of each plaintiff was significantly affected in the communities in which they lived and worked, where their children played and went to school, where they spent their leisure time, wherever they were known. The notion that behind the apparently polite, even bantering, exchanges of any person that you met where you habitually went might lurk the suspicion of gross criminality or criminal associations, the feeling that, "where there's smoke, there's fire" is a painful one, all the worse because it was completely undeserved and affected family and friends who might be associated with you.
80 The purposes to be served by the 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 reputation and vindication of that reputation. No doubt these purposes "overlap considerably in reality" and ensure that "the amount of the verdict is the product of a mixture of inextricable considerations" (Carson v John Fairfax & Sons Limited (1993) 178 CLR 44, per Mason CJ, Deane, Dawson & Gaudron JJ at [32], quoting Uren v John Fairfax & Sons Pty Limited (1996) 117 CLR 118 at 150). In the same paragraph, their Honours went on to say (omitting some references) -
"The first two purposes are frequently considered together and constitute consolation for the wrong done to [the plaintiff]. Vindication looks to the attitude of others to the [plaintiff]: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant's reputation. 'The gravity of the libel, the social standing of the parties and the availability of alternative remedies' are all relevant to assessing the quantum of damages necessary to vindicate the appellant (Fleming, The Law of Torts , 8th ed (1992) at 595)."
81 The plaintiffs here also claim aggravated and exemplary damages. Leaving aside the question of exemplary damages, aggravated damages are available in New South Wales to the extent that they are compensatory in nature, a result of the language of s46 of the Defamation Act 1974 which provides, in effect, that damages are only recoverable for "relevant harm", a term relevantly defined as "harm suffered by the person defamed" (subs (1)(a)) and "shall not be affected by the malice or other state of mind of the publisher at the time of the publication complained of, or at any other time, except so far as that malice or other state of mind affects the relevant harm" (subs(3)(b)). That is not to say, however, that aggravated damages cannot be awarded where, for example, publication of the matter complained of is reckless or the defendants maintain the defence of qualified privilege on the record until commencement of the hearing: Andrews v John Fairfax & Sons Pty Limited [1980] 2 NSWLR 225. In Carson, the majority did not find it necessary to consider the significance of s46 except to emphasise "that damages for defamation are confined to what can be justified as compensatory for harm actually suffered" (178 CLR at 55). Dealing generally with the elements of damages for defamation, Brennan J said (178 CLR at 69 ff, omitting most references) -
"The chief purpose of the law in creating a cause of action for defamation is to provide vindication to counter the injury done to the plaintiff in his or her reputation…The sufficiency of the amount awarded is not to be determined by reference solely to circumstances past and present; the amount must be sufficient to vindicate the plaintiff's reputation in the relevant respect in the future. Thus, Lord Hailsham in Broome v Cassell & Co [1972] AC 1027 at 1071 said:
'Not merely can [the plaintiff] recover the estimated sum of his past and future losses, but in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge.'
…
Although damages are awarded to vindicate the plaintiff's reputation, damages are not awarded as compensation for the loss in value of a plaintiff's reputation as though that reputation were itself a tangible asset or a physical attribute to which, once damaged, is worth less than it was before. In order to achieve the purpose of vindicating reputation, damages for defamation are quantified by reference, inter alia, to what is needed to achieve that purpose: those damages are not quantified by reference to a depreciation in the value of a plaintiff's reputation. Other heads of damage are compensation for the external consequences produced by the publication of the defamation and 'a solatium' for the plaintiff's internal hurt that is, for the complex of reactions that the plaintiff has experienced as a result of the publication and its external consequences…
The consequences of publication include not only the insult publicly inflicted on the plaintiff but also the effect of the defamation on those to whom it is published, any diminution in the regard in which the plaintiff is held by others, any isolation produced (causing the plaintiff to be 'shunned or avoided' is the traditional formula) and any conduct adverse to the plaintiff engaged in by others because of the publication of the defamatory matters. Damages are awarded also for the plaintiff's injured feelings, including the hurt, anxiety, loss of self-esteem, the sense of indignity and a sense of outrage felt by the plaintiff. Indeed, all those objective consequences and those subjective reactions which follow naturally from the publication of the defamatory matter are relevant factors. Of course, the subjective reactions are often produced by the objective consequences of the publication. The two categories are not accumulative heads of damage but descriptions of kinds of intangible factors which must be taken into account in assessing damages.
Damages may be aggravated or mitigated by the manner in which the defamatory matter was published and by the subsequent conduct of the defendant. Conduct of the defendant from the time of publication to the eventual verdict…is relevant. In Broome v Cassell & Co , Lord Reid, speaking of the bracket within which any sum could be regarded as not unreasonable compensation, said ([1972] AC at 1085:
'It has long been recognised that in determining what sum within that bracket should be awarded, a jury or other tribunal is entitled to have regard to the conduct of the defendant. He may have behaved in a high handed, malicious, insulting or oppressive manner in committing the tort…that would justify going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation.'
Evidence of the defendant's conduct is admissible also in proof of malice. But s46(3)(b) of the Defamation Act provides that, in New South Wales, damages -
'Shall not be affected by the malice or other state of mind of the publisher at the time of the publication complained of or at any other time, except so far as that malice or other state of mind affects the relevant harm.'
Evidence of the defendant's conduct is therefore relevant and admissible on the issue of compensatory damages, whether or not it tends to prove malice, but only so far as that conduct exacerbates or ameliorates the consequences of the original publication or the plaintiff's injured feelings.
Damages by way of vindication of reputation are not added to the damages assessed under the other heads. Although an award of damages operates 'as a vindication of the plaintiff to the public' and as consolation to him for a wrong done." As Windeyer J said in Uren v John Fairfax & Sons Pty Limited (1966) 117 CLR 185 fn 74) the dual operation of an award does not require cumulative components of damages …"
82 McHugh J dealt at some length with the significance of the prohibition in para46(3)(a) of the Defamation Act 1974 of any award of exemplary damages in a defamation action, concluding that this did not mean that damages cannot reflect some element of punishment. His Honour said (178 CLR at 102ff) -
"In my opinion, the element of punishment is often a legitimate factor in an award of aggravated damages even in New South Wales…a jury which increases its award of damages in a defamation action commits no error if it thinks that the plaintiff cannot properly be compensated for the harm done to him or her unless the damages contain an amount to punish the defendant for the hurt which he or she has inflicted on the plaintiff or to deter the defendant from further defaming the plaintiff. Nor does the jury commit any error if it increases the damages because the conduct of the defendant towards the plaintiff arouses its anger or indignation.
… Damages [at common law] in a defamation action are 'the product of a mixture of inextricable considerations" ( Uren 117 CLR at 50; see also Broome v Cassell & Co [1972] AC at 1072). It can also be said that they are a mixture of conflicting considerations which are the result of defamation being both a tort and a crime. One consideration is the state of mind and the conduct of the defendant which the common law has always regarded as being of great importance on the question of damages even though damage to reputation is the gist of a defamation action."
83 Dealing briefly with the action of defamation at the common law and prosecutions for criminal libels in the Star Chamber, which latter jurisdiction eventually passed to the common law courts, McHugh J continued (178 CLR at 104-105) -
"The damage which a defamation produces is ordinarily psychological rather than material. It affects the feelings, sense of security, sense of esteem and self-perceptions of the person defamed. As a natural consequence, a defamation excites the anger and resentment of the victim and often enough generates a desire for retribution. Judge Posner has pointed out ( The Federal Courts: Crisis and Reform (1985), pp 5-6) that:
'Part of our biological inheritance is the sense of indignation, and its complement the desire for retribution (by violent means if necessary), that is arouses when someone invades an interest that we value highly…the courts provide a substitute for the costly self help methods that people would otherwise resort to.'
If an award of damages in a defamation action is to fulfil its social purpose, it must be high enough to assuage the hurt, indignation and desire for retribution which the plaintiff feels. Moreover, in many cases, the feelings of a person who has been maliciously defamed will only be assuaged if he or she is satisfied that the award of damages hurts the defendant as much as the defendant has hurt the plaintiff. 'What the plaintiff is really demanding by way of solace to himself' Professor Julius Stone has said ("Double Count and Double Talk: The End of Exemplary Damages?" The Australian Law Journal Vol 46(1972) 311 at p 319) "is that there be inflicted on the defendant pain and humiliation comparable to that which the defendant has inflicted on the plaintiff". Thus the anger of the plaintiff is placated only when he or she knows that the defendant has been punished for the wrong…an award of compensatory damages in such a case will not achieve its restorative effect unless the defendant is made to suffer for the wrong.
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[178 CLR at 106] To say that no element of punishment enters into the assessment of [aggravated] compensatory damages and that the effect of such an award is merely to compensate the plaintiff for the increased harm which that person suffers is to resort to fiction in many cases. In many, perhaps the majority of cases, for example, the plaintiff only becomes aware of the defendant's malice long after publication, perhaps at the trial of the action…The truth is that, in many cases calling for an award of aggravated damages, the real reason that the defendant is called upon to pay additional damages is that that person has been guilty of malice or some other improper state of mind or conduct. It is not simply because of the effect of the defendant's conduct on the plaintiff. However much judges and juries may seek to rationalise the right of the jury to increase damages by reason of the conduct of the defendant as being purely compensatory, compensation to the plaintiff is only achieved in many cases of awards of aggravated damages by punishing or deterring the defendant. Eminent judges have accepted that this is so."