JACKSON & 9 ORS v TCN CHANNEL 9 PTY LTD

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

1 HIS HONOUR: This defamation action arises out of the foolishness of the plaintiffs in accepting undertakings made to them on behalf of the defendant, TCN 9 Channel 9 Pty Ltd (TCN) about the use that would be made of footage recorded as part of a television series broadcast by TCN called Weddings, which was shown in the latter part of 1995. The footage in question was shown on the programme A Current Affair (ACA) produced and broadcast by TCN at about 6.30 pm on 1 January 1996 and on the Today programme at about 7.45 am on 2 July 1996. A jury has determined under s7A of the Defamation Act 1974 that the following imputations were made against the plaintiffs: in respect of Kellie Jackson, that she willingly associates with people that she knows to be knowingly involved in the distribution of illegal drugs, illegal arms traffic, willing to murder, who do not value life, and who are willing to rape; and against each of Glen Jackson, Robert Fielding, Colin Budd, James Elliott, Gregory Hinvest, Brian Rodney, Peter Russell, Steven Shuttleworth and Dennis Wheeler, that he is knowingly involved in the manufacture of illegal drugs, the distribution of illegal drugs, in illegal arms traffic, is willing to murder, does not value life, is willing to rape and, in addition, willingly associates with people whom he knows to be knowingly involved in these activities or having these attitudes. Not surprisingly, the jury also found that these imputations were defamatory. These defamations are obviously extremely serious. The ordinary person would likely think that they would not be made without great care and with the benefit of convincing evidence. It is no simple matter to put together a documentary television programme. It is done by a team of experienced professionals. Its content must be created consciously and intentionally. It purports to tell the truth. It is not a careless word spoken in anger or a careless letter written in the heat of a moment. This programme was produced with care and broadcast deliberately. Yet, so far as the imputations against the plaintiffs were concerned, the programme was completely false as TCN later admitted during the trial. 2 The following summary is taken from the judgment of Handley JA in the Court of Appeal in Jackson v TCN Channel 9 [2001] NSWCA 108, allowing the plaintiffs' appeal from the judgment of Hulme J in favour of TCN notwithstanding the verdicts, in respect of certain imputations - "[TCN] broadcast on ACA a story said to be about Australia's biggest criminal investigation of this or any other year. The programme asserted that the investigation would target the 'outlaw motor cycle gangs' that were actively involved in the illegal drug trade in amphetamines and in gun running. These gangs were said to be very dangerous. To hold life quite cheaply, and to be just as big as the Triads and Mafia 'except they don't sneak around behind disguises using weapons from a distance. They front people and blatantly slay them, dispose of them, rape them and traffic drugs and weapons to their advantage for power'. A reporter said 'Their jackets often carry secret insignias indicating that the wearer has committed a murder or a rape or uses drugs.' Midway through the programme there was a film sequence showing motorbikes being ridden along an open road in formation. While this was being shown the commentator said of the bikie gangs: 'According to the National Crime Authority about thirty of the bikie gangs are now preparing for an all out war to reduce the number of gangs and therefore carve up a greater share of the illegal profits…It's a continuation of the effort to get total control of the market…' The ride was led by the second plaintiff who had a Rebel's gauntlet visible on his left wrist. The commentator referred to the Rebels as 'Australia's biggest and most feared gang'." 3 The statement of claim was filed on 18 September 1996 and amended on 10 February 1997. The defence to the amended statement of claim, filed 15 May 1997, denied that the ACA broadcast bore or was capable of bearing the imputations ultimately found to have been conveyed. The defence also denied that the broadcast was or was capable of being defamatory of Mr and Mrs Jackson and, generally, denied that the ACA programme concerned the plaintiffs, that they had been defamed and that they should have damages. The defendant also pleaded that the broadcast was made in the exercise of free speech as guaranteed by the Constitution and the defence of qualified privilege, contending that the matter complained of was published in the public interest and that those responsible for its publication believed upon reasonable grounds that the viewers of ACA had an interest in receiving information of this kind and had "reasonably formed a belief in the defendant's sources and in the accuracy and authenticity of the information the defendant had received from such sources in relation to the subject and its presentation in the matters complained of prior to the publication". All these defences were abandoned at the outset of that part of the trial conducted before me. 4 The defendant was asked whether at the time of the broadcast it had a belief as to the purpose for which the inserted footage had originally been recorded and, if so, what that purpose was. The answer was - "The defendant believed at the time of publication that the images had been originally recorded for the purpose of broadcast on the Weddings programme." 5 Quite apart from the circumstances themselves, which establish the overwhelming likelihood of this inference, I do not see how this answer can be read otherwise but as an admission that when the ACA programme was broadcast it was believed by the defendant that the footage had been recorded for another purpose. That other purpose must, therefore, have been known, together with the circumstances in which the footage came to be filmed. In the context, the reference to "the defendant" must be a reference to those responsible for the production and broadcast of the ACA programme in question. 6 TCN has not ever suggested, since the ACA and Today broadcasts that the imputations were true of the plaintiffs. Its case, in substance, was that no reasonable person would suppose that the imputations were aimed at the plaintiffs. Not surprisingly, the jury rejected this defence. Before me, the defendant argued that the imputations would not have been taken seriously by those who knew them well, that only a small circle of other persons would have actually thought less of them and this only for a short time. 7 The path that ultimately led to the gross defamations in this case started when Kellie Fielding and Glen Jackson decided to get married and fixed their wedding day on 6 May 1995. At this time, Mrs Jackson (as she duly became) was living in Lemon Grove, a suburb of Penrith on the western fringes of Sydney. Mrs Jackson, who was thirty years of age as at December 2001, was working (and still works) as a senior accounts clerk at the head office of a very large Australian retailer. She had been working in this position since 1993, having earlier worked as a receptionist on the front counter of a business "Panthers Motoring" at the Penrith Leagues Club for two years. Before that, Mrs Jackson worked in reception at the Penrith TAFE College for a year, having briefly worked with a bank at the Parramatta Card Centre when she left school in 1987. When the Jacksons decided to get married, not surprisingly, Mrs Jackson invited the members of her family to take part in the celebrations. Until she was sixteen, she had lived with her paternal grandparents who had raised her and, naturally, she wished them to come. However, her grandfather refused because he had suffered badly from skin cancer, was embarrassed about eating in public and did not wish to be photographed. A little after this, Mrs Jackson saw an article in Woman's Day magazine advertising for persons who might like to have their wedding conducted on television. Mrs Jackson thought that this was one way by which her grandfather could participate, albeit at a distance, in her wedding day. Accordingly, she telephoned someone at TCN and informed them that she was marrying Glen, who was a member of the Rebels' motorcycle club, that the theme for the wedding was "a Gone with the Wind theme" with appropriate costumes. Mrs Jackson spoke to the programme's producer's assistant and, shortly after, Glen and Kellie (with the her father, Robert Fielding) visited TCN and spoke to Mr Stephen Peters and his administrative assistant about the prospect of their wedding being televised. During the lengthy discussion that ensued Mrs Jackson said that she "wanted to make sure that we'd look like we were normal people and that they wouldn't sort of try and catch me doing something silly". She said that Mr Peters (who was not called by the defendant) responded, "It's a feel-good programme, we want to make Australia love you". Mr Fielding told Mr Peters that he did not want anything that was filmed to be used on any other programme. Mrs Jackson said that Mr Peters said words to the effect that he could guarantee that the footage "was never to be used for any other programme". This evidence was confirmed by Mr Fielding but it is evident from the omission to cross-examine Mrs Jackson about the matter that this matter is not disputed. Such undertakings about the use of footage obtained for a particular reason are, I should think, quite common although no evidence was tendered on this point. Even if uncommon (perhaps, especially, if uncommon) the ordinary course of reasonable management would involve a record being made of the agreement in such a way that it would be obvious to any subsequent would-be user of the material, in order to ensure that the undertaking was honoured. If no record were made, one would readily infer that it was not intended to honour the undertaking: this conclusion would scarcely assist the defendant. The inference that a record was made in a way that ensured the undertaking would be made known to any other producer who might like to use the film is a commonsense and reasonable one. It is strengthened by the failure of the defendant to call any evidence suggesting the contrary: Jones v Dunkel (1959) 101 CLR 298. 8 Wedding preparations continued and, with about three months to go, TCN started to record things for their programme, starting with the catering arrangements. In due course, the person appointed by TCN to co-ordinate the production, Ms Lauren Rudd, contacted Mrs Jackson and said that the producer, Mr Peters, wanted a bike ride to be pictured in the programme as a lead into the wedding. Hitherto, no such ride was proposed, as (no doubt, amongst other things) Mrs Jackson could not have participated in her wedding dress. Mrs Jackson discussed the request with her fiancé and they decided to agree with the producer's request. As it happened, Mr Fielding and a number of his friends who were devoted motor cycle riders made themselves available to escort students to school formals and brides' cars to wedding venues and the like. Mr Fielding asked them if they would do a ride for his daughter's wedding and told them that the film would not be used for any purpose other than the Weddings programme. They agreed to do so, obviously as an act of friendship. Mr Shuttleworth was invited to participate by Mr Jackson, whose friend he was. It all, twelve motorbikes were involved, some with pillion passengers. The ride was filmed at a relatively remote location in Orchard Hills. 9 Most aspects of the wedding arrangements as well as the wedding and reception were included in the programme, which had been widely publicised. The Jacksons did not attempt to conceal Mr Jackson's membership of the Rebels' motorcycle club, with which he had been associated for many years. In Woman's Day magazine of 4 September 1995 the fact of Mr Jackson's membership with the Rebels, described as "Australia's largest biker club" and that his three groomsmen escorted him "resplendent in their Rebel leathers" were mentioned and a photograph of the couple with Mr Jackson wearing his jacket with insignia, sitting on his motor cycle, featured prominently. The article reminded readers that the Jacksons' wedding had featured in the 30 August 1995 episode of Weddings. In the 11 September 1995 issue of New Weekly magazine, an article appeared about the Jacksons' weddings but without any photograph showing a link to the Rebel motorcycle club. However, the article referred to the Club's banner "hanging in the background" though, where it was is not mentioned. As it happened, and as the televised episode made clear, the reception was held in the premises of the Rebel motorcycle club. 10 Not surprisingly, the plaintiffs had told their friends and relations about the Weddings programme in which they starred. All said that, following the broadcast, the response from these people as well as acquaintances and, indeed, strangers (who recognised them or who otherwise knew of their involvement) was very positive. Of course, the numbers of persons falling into these classes varied with each plaintiff and it will be necessary, at least in general terms, to relate the evidence in this regard as it concerned each plaintiff. The additional publicity, however, given to the Jacksons arising out of the articles in the magazines to which I have referred which contained their photographs meant that many more strangers would have been likely to have recognised them and associated them with the Weddings episode even though they were otherwise complete strangers. Mr Jackson was clearly identifiable in the bike ride sequence and, although his wife wore a helmet, it was very obvious who she was. So far as the Jacksons were concerned, there was additional publicity by a photograph and a brief paragraph about the catering at their reception in a publication, Weddings, which is a practical guide to wedding arrangements and the usual accompanying celebrations, amongst other things. Its subtitle is "How to plan the perfect day" and TCN logo is on the front. It is reasonable to infer that this publication had a wide distribution. In the Sun-Herald newspaper of 21 April 1996 a photograph of the Jacksons was featured in conjunction with an article referring to their appearance on Weddings and referred to "rival bikie gangs, incensed at seeing the Rebels receive free publicity" and the apparent circumstance that "the segment also attracted the attention of the NSW Police organised crime branch, which was conducting investigations into other members of the Rebel Outlaws". Photographs of the Jacksons also appeared in the Complete Wedding Guide of Sydney published, as I understand it, within some months of the Weddings programme, not mentioning their names but featuring the floral arrangements supplied by a local florist Chez Fleur, which appeared in the body of the publication as well as a large advertisement. The photograph (printed twice) shows the Jacksons sitting on Mr Jackson's Harley Davidson motor bike and would, I have no doubt, have reminded persons who saw the Weddings episode concerning them of Mr Jackson's connection with the Rebels' motor bike club. The same photograph was hung in Chez Fleur's shop in Penrith where a number of people commented on it favourably before the ACA programme and most unfavourably after it. I will refer later to the extent to which the plaintiffs' became personally aware of the effects on their reputations. Of course, the extent of that effect is significantly dependent on the extent to which each was identified with the defamatory material either directly by persons who knew them or indirectly by persons to whom the defamatory material was to a greater or lesser extent communicated in a way that identified them. At this stage, it is sufficient to state that the Weddings programme was broadcast on Nine Network stations in Sydney, Melbourne, Brisbane, Adelaide and Perth on 30 August 1995 and 6 September 1995 with audiences above 1.6 million persons on each occasion. The 1 January 1996 ACA was broadcast in the same cities with an audience in excess of 1.8 million. 11 It is not necessary for present purposes to set out in full a transcript of the ACA voiceover. The substance of the programme, so far as the plaintiffs are concerned is sufficiently set out in the imputations which the jury determined were conveyed by the programme of each plaintiff. It is true that some of the plaintiffs are less easily recognized than others and, I think, would only have been recognized by persons who knew them well. However, this is obviously not the end of the matter. This is an issue which I will need to deal with later as the defendant relied strongly on this consideration. 12 Reaction by the plaintiffs' relations, friends and acquaintances who were aware of their involvement in the Weddings programme was, I am satisfied, overwhelmingly positive and it is unnecessary to set out the details of this evidence. So far as the Jacksons were concerned, a significant number of persons who were strangers to them recognised and complimented them one way and another. A number of examples were given in evidence, the thrust of which is in the following passage in Mrs Jackson's evidence - "Q You said people at work mentioned it to you? A Yes. Q Did anyone you did not know mention it to you? A Oh, definitely. I had people coming up to me in the street, in restaurants, everywhere we went, the post office. It was amazing. I had this woman come running up to me in the shopping centre when I was out with Julie [a friend]. She was screaming, "It's you, it's you, I've always wanted to get to meet you." She must have thought I was a local person. She was with her kids. She was a bit nutty. These sorts of incidents happened all the time. Q Were there any other incidents of such a nature? A Well, when we went to a restaurant in Orange we had people coming up to us…after the Weddings programme, three or four months afterwards…definitely before the Current Affair programme. … Q Were there any other occasions when people you did not know reacted to you in some way? A Everywhere. Well, up at Rockhampton. We went up to Rockhampton and people in the street came up to us. Just everywhere we went. Q What did the people in Rockhampton say to you? A It felt like everybody in the world had seen the show. It was just ridiculous." 13 Mrs Jackson's father, Mr Robert Fielding, had lived in the Emu Plains area - adjacent to Penrith - for almost thirty years. He had been an electrical contractor for almost all that period, working in the district but up as far as the Central Coast of New South Wales. Many people knew him through his business, which undertook contracting work with many shops, factories and new large homes. Mr Fielding estimated that he might talk to at least a thousand people over a full year in the course of business, one way or another. Not only, of course, would he speak with his customers but also other contractors working on the same jobs in various trades, plumbers, carpenters, tilers and so on. In addition, as I have mentioned, he and a group of friends organised bike rides for special occasions such as school formals and weddings and other public occasions when the group might ride in front of a substantial crowd of people, perhaps five hundred to a thousand. He recalled one school formal which was held at Rooty Hill RSL with all the parents and children from the various schools lined up to watch people arrive and, of course, particular notice would have been taken of those who arrived, unusually, as pillion passengers on the motor bike of Mr Fielding and his friends or in vehicles escorted by them. They attended special occasions at Nepean Hospital a few years ago and were seen and photographed by many members of the public and parents and friends of the children who were at the hospital over Christmas and whom they were visiting. Photographs of occasions like these were tendered. 14 Mr Colin Budd also lived in the Penrith area at Cranebrook, about eight kilometres from Penrith itself. Mr Budd had, for about twelve years, been a supervisor for a housing contracting firm having worked for the same company before that for about sixteen years as a sub-contractor/carpenter. His business, although mainly around the Penrith area, also took him towards Parramatta and in recent years, mostly in the Ryde area. Again, his work responsibilities meant that he had contact with workers, tradespersons and sub-contractors on building sites. He thought that he would run across, though not necessarily talk to, over a hundred people a day in the various sites, visiting, on average, about twenty sites a week. He had known Mr Fielding since the mid-sixties but only met Mr Jackson a few weeks before the wedding. He confirmed Mr Fielding's evidence and that of his daughter, that the main motive for approaching TCN was so that there would be a programme about the wedding which Mr Fielding's father could watch, since he was, as I have already explained, embarrassed about going. Mr Fielding, in effect, asked him as a friend to take part in the bike ride and assured him that it would not be used for any other purpose but the Weddings show. For all these reasons, Mr Budd agreed to take part as requested. Not surprisingly, Mr Budd also told his friends about the programme and received positive reactions from them when it was eventually shown. He had not told people with whom he worked about the programme and accepted that he would not have been recognised from the show itself. 15 Mr James Elliott had lived in the Penrith area for over thirty years. During this time he had worked for a large automotive spare parts business as a counter salesman, casually for a number of years at the Penrith Leagues Club, operating a milk run in the south Penrith area for four and a half years, owning and managing a general store for four years then working as a mechanic at a smash repairs business, eventually being promoted into the office, doing quotations and dealing with the public and then since 1996 (having had a serious accident) he started working at a fencing factory where he still works. He also had told people he knew at work and, I take it, other friends and acquaintances, that he was going to be on the Weddings programme and was given a great deal of positive feedback after it was broadcast. He said - "Q Did you get any bad comments from anyone about the Weddings show? A Not one. Everybody said how good it was. People commented that it was probably the best show of the series…and they enjoyed it. It made us out to be like film stars, you know." 16 Mr Elliott also said that, with Mr Fielding and the others, he was part of the group that participated in formals and weddings. He said that Mr Fielding had approached him about being in the bike ride for the Weddings programme and assured Mr Elliott that it would not be used for anything else, saying that he had an agreement with TCN. He said that on the day that the bike ride was recorded, furthermore, a few of the other plaintiffs asked the camera man whether he was sure that this was not going to be used for anything else and was told, in effect, that it was not. 17 Mr Gregory Hinvest was, in January 1996, the secretary/manager or chief executive officer, of the Nepean Rowing Club (a licensed club) which position he had held for about five years. Before that he had been employed for just under ten years at the Panthers' Leagues Club in Penrith. He had lived in the Penrith area for about forty-six years. It is obvious that, having regard to his employment, he was known to a very large number of people who visited the clubs. By way of example, the Panthers' Club had a membership, during the last few years that he worked there, of about fifty thousand. He also said that he had been told by Mr Fielding that TCN had assured him that the footage of the bike ride would be used only for the particular Weddings episode. He could not recall a great deal of the feedback that he got from people about Weddings but recalled favourable (and no unfavourable) comment from family and members of the club. He had told them that he was on the Weddings programme but, as I take it, did not think that he had been recognised from the footage itself. 18 Mr Brian Rodney, who was just over forty years old at the time of the defamatory broadcast, had lived in the Penrith-Emu Plains area since he was about five years old, except for a couple of years some time ago. Since about 1984, he worked as a plasterer, ranging from the Sydney metropolitan area up to Katoomba in the Blue Mountains with quite a lot of work in Penrith-Emu Plains. In the late 1970s he worked for something over three years in the Panthers' Club as a barman where, of course, he got to know many people. He has known Mr Fielding and Mr Hinvest since childhood. He also was involved with riding for weddings and formals with the same group which I have already mentioned. He also was approached by Mr Fielding to be part of the bike ride for the Jacksons' Weddings episode and, having known Mrs Jackson for some time as well, agreed to participate. He was informed by Mr Fielding that TCN had agreed that the footage would not be used in any other programme. He informed everyone he knew that he was appearing in the Weddings episode and later responses were all positive. 19 Mr Peter Russell has lived in the Emu Plains area for over thirty years. He was an automotive engineer running his own business in Emu Plains for the last twenty-one years. He was also involved in a number of activities in the local community, including being the manager in 1993 and the coach in 1994 of the Emu Plains A grade rugby league team. For twenty-five years he has played competition squash as a member of the Panthers' squash club and his wife was in charge of the girls' netball at Emu Plains for twenty-two years. They have two daughters who play netball. Not surprisingly, part of the their circle of acquaintances are the other girls who play netball and their parents. Amongst his other activities, Mr Russell is a licensed helicopter pilot and from 1994 to 1999 played an active role in a flying school in which he had some equity. Amongst other activities undertaken in this business he offered a "ride and fly service" which involved picking up people on his motor bike, taking them to the airport and then for a ride in the helicopter as well as doing general charter work including sightseeing. He also designed and built a boat and was very well known in the boating community. His business sponsors a number of charities and community related institutions, such as schools, in the area. He was approached by Mr Fielding, whom he had known for many years, to participate in the bike ride for Mrs Jackson's wedding and agreed, as I understand it, when he was told that TCN had agreed that the footage would not be used in any other programme or for any other purpose than the Jacksons' episode on Weddings. He had told all his acquaintances and customers that he was going to be on the show and received a lot of very positive feedback after it was shown and no negative response. 20 Mr Steven Shuttleworth, who was thirty-four at the time of the defamatory broadcast, grew up in Mt Druitt, in western Sydney and, since 1987, was in partnership with a Mr Dykyj (whom he had known for many years) in a wrecking yard business in St Marys. As it happened, this business adjoined that run by Mr Glen Jackson and his brother and Mr Shuttleworth and Mr Jackson became good friends. In the late 1980s and early 1990s, Mr Shuttleworth was enthusiastically involved in a number of sports. He played indoor cricket and was captain and coach of a baseball team. He played touch football and coached football for a time. His business was a sponsor of football games. These activities occurred generally in the Penrith district. He also refereed football games and was part of the coaching team. Naturally, these wide ranging sporting activities brought him into contact with many people who knew him well. Mr Shuttleworth, together with Mr Dykyj and a Mr Dunn commenced in 1995 an automotive paints business next to his wrecking yards which was an additional contact point for members of the public. Mr Shuttleworth said that he was asked to go on the bike ride for the Weddings episode by Mr Fielding and was informed of the agreement with TCN that the footage would not be used in any other programme. As it happened, he lent his helmet to the cameraman, who filmed the ride from the back of Mr Fielding's motorbike, and rode without one. Mr Shuttleworth said that he told many of his acquaintances, at work, at sporting events and any occasion upon which he met people he knew, that he was going to be in a sequence on the programme. After it was broadcast people who he had contact with through work (who were the only ones he could recall spoke to him about it) commented that they had seen him and that it was a good programme. 21 Mr Dennis Wheeler was born in Penrith, where he went to school and where he began his career as an apprentice electrician. He has been in business in Penrith with a showroom and factory, selling and servicing air conditioning and doing other electrical work. His showroom is very prominent on the main street in a small industrial area in Penrith. Although he installs air-conditioning, mostly in homes, he also does so in commercial and industrial premises. His firm is involved in an Australia-wide dealer network and he attends conferences and other meetings both within Australia and overseas to demonstrate products. Amongst other things, Mr Wheeler worked at the Penrith Leagues' Club and was involved in maintenance and similar work at the Club for two to three years before he started his own business. From the late 70s through to the mid-80s he was involved in speedboat racing throughout Australia, attending many exhibitions and different shows. He was secretary of the Upper Hawkesbury Power Boat Club for three or four years in the mid 1980s when, because he thought it was getting too dangerous (he had young children) he stopped racing and took on indoor cricket as an alternative sporting activity. He was sponsor as well as captain and coach of the A-grade team of the Penrith indoor cricket centre for probably nine or ten competitions of which only one was lost and which he thought (and I agree) gave the team a "pretty high profile". This was from about 1985 to about 1992. Mr Wheeler also played representative indoor cricket very widely in the Sydney region as well as some outdoor cricket. In the course of these activities he met and came to know large numbers of people. As it happens, Mr Wheeler has had a full beard for at least the last six to seven years. Such beards are unusual and means that he is easily recognised. He was wearing the beard at the time he participated in the Weddings bike ride. He had owned a motorbike since about 1992 and he, with the other plaintiffs, was part of a group attending weddings, formals and other occasions of that kind. Mr Fielding and he have been close friends since they were in their early teens. He told Mr Wheeler that TCN wanted to do a motorbike sequence, that Rebel members had declined because they felt that they would be exploited and, as the group had participated in wedding functions as motor bike riders he asked if Mr Wheeler would be prepared to join a group "depicting Kelly and Glen on a weekend ride with friends". Mr Wheeler had known Kelly Fielding since she was a baby. He recalled that Mr Fielding told him that TCN had given the assurance that the footage was to be used only for the particular episode on Weddings and nothing else. Mr Wheeler said that, "I was sort of pretty proud of the fact that I was going to be on TV" and told most people whom he met about it. He said that people who spoke to him after the programme were positive about it and he did not get any bad response. 22 Contrary to its undertaking, TCN included in a popular magazine-style programme ACA the motorbike ride sequence from the Weddings programme. The programme commenced with its presenter, Mr Munro, saying - "First up though, Australia's biggest criminal investigation of this or any other year. Every major law enforcement agency you can think of is involved from State and Federal police to the Tax Department, Customs and Immigration. Their target is not one organisation but many. Outlaw bikie groups who control a huge slice of our illegal drug trade as well as gun running." 23 There could be no doubt what and whom the programme was about. Immediately after Mr Munro's opening words, Mr Cleland MHR, a member of the Parliamentary Committee briefed by the National Crime Authority said - "They are involved in club type activities which are international in character, are, and which are very dangerous groups…very dangerous, they hold life quite cheaply, as any organised criminal group does." 24 After references to other allegedly criminal motorcycle clubs and serious criminal behaviour, the programme depicted Mr Alex Vella, identified by Mr Munro as "president of Australia's biggest and most feared gang, the Rebels", and went on to discuss weapons obtained by "motorcycle gangs" which, it was said, imported and exported them, then showing the Weddings footage, with Mr Munro and Mr Cleland having the following interchange - "[Munro, speaking whilst part of the excerpt is shown] According to the National Crime Authority, about thirty of the bikie gangs are now preparing for an all out war to reduce the number of gangs and therefore carve up a greater share of the illegal profits. [Cleland] It will happen. I don't think that's something new, I think it's a continuation of the effort to get total control of the market so the only way you can get domination is to take away your competitor and they do that. [Munro, speaking whilst part of the excerpt is shown] And certainly authorities do fear another war. [Cleland] Oh, constantly fear that war, yes. In my view in Australia there's probably only room for two or three gangs." 25 At this point, when there is no footage of any motorcycles of bike ride showing, only Mr Munro speaking to camera. He says - "And of course the great majority of Australians who ride motorcycles are bikers, law abiding citizens, not bikies. Its only outlaw gangs who have anything to fear from that investigation…" 26 During the discussion of criminal activities, including murder, organized crime, drug and gun dealing, there is vision of various club insignia: Odin's Warriors, Renegades Queensland, Phoenix, Fourth Reich, Outcasts, Bandidos, the so-called Milperra bikie massacre. The text, combined with these images could only be interpreted as intending to convey that the persons and clubs mentioned were examples of the criminals who were the subject of the report. The footage of the plaintiffs unmistakably and unambiguously placed them in this category. Not only was it shown when motorcycle club crimes were the subject of discussion, it was not shown during Mr Munro's closing emollient remarks. Indeed, no vision of motorbikes or riders was shown at that point. 27 The effect of the programme was manifestly that found by the jury and summarised above. 28 On 29 December 1995, TCN broadcast a promotion for the episode of ACA which included part of the bike ride. This promotion was broadcast seven times on this day, twelve times on 30 December 1995 and seventeen times on 31 December 1995, all advertising the programme as intending to be broadcast on 31 December 1995. The promotions stated, starting with the bike ride footage - "Monday [or Tonight], on A Current Affair, inside the bikie gangs…"

Then followed parts of Mr Cleland's remarks about the amphetamine trade, the gangs' holding human life cheaply and references to a massive police undercover operation. On 1 January 1996, the date of the broadcast itself, the promotion was shown eight times. 29 Mrs Jackson said that she became aware that the bike ride footage was going to be shown on ACA on the Friday before the broadcast when a friend, Mr Donald Baird, telephoned late in the afternoon to inform the Jacksons of the promotional broadcast. Mrs Jackson telephoned her father after Mr Baird's call. He told her that her uncle Peter had just telephoned with the same information. They thought it was too late to telephone anyone at TCN and Mrs Jackson called on the morning of the programme, namely Monday 1 January 1996. She asked to speak to someone from ACA. Mrs Jackson said that she was hysterical and the person to whom she spoke told her to calm down, informing her that there was no one available at the moment and commenting, "Look, I know where you're coming from, it does sound really horrible, I'll get someone to call you back". Some hours later, the person did call Mrs Jackson back but said she had not been able to get anyone (I take it, associated with the programme) to call her but saying, "It has been authorised and there's nothing you can do to stop the programme". 30 Mrs Jackson was uncertain about whether or not she had actually seen the promotion before ACA was broadcast but she was at home when she watched the programme itself, together with her husband, his son and a girlfriend (who had been her bridesmaid), Ms Julie Economou. She said that when she saw the programme, she became hysterical - "It was the most horrible thing I'd ever seen. To be - it was just damn horrible. That's all I can really say about it. I just felt - I felt ashamed, like, because I knew - I realised there were people outside my lounge room that saw it. Like, at the time you see it and you think. Then you are horrified, and then it occurs to you everyone else saw that too. Like, it was just awful…I thought it said I was a low life, that I was connected - like, people on that programme were just foul. Like, I mean it just had thugs and murderers, and then they talked about rape and it was just - I thought it was horrible." 31 Part of the distress of this - as well as the other - plaintiff was that the programme ACA was popular and broadcast to a very wide audience and that it had been shown in breach of TCN's unconditional undertaking. Mrs Jackson naturally also reflected on the likelihood that her mother and grandparents had watched it. Indeed, when Mrs Jackson telephoned her grandmother, she would not take the call, because (she said) she and her grandfather were so ashamed that they wanted to move away from where they lived, in Brighton-le-Sands. Mrs Jackson's mother lived in Queensland and she telephoned her about the programme. Her mother said to her that it was disgusting. A number of Mrs Jackson's friends also telephoned her on the night of the broadcast. On the following day Mrs Jackson spoke to her father about what they should do. Mr Fielding told her that he was sure that TCN would apologise and retract the programme and attempted to comfort his daughter by assuring her that "it'll be fine" and that everyone would know that neither she nor her family were involved in or sympathetic to the crimes that had been imputed to them. Mr Fielding's view was regrettably naive and his supposition that TCN would act decently and attempt to make amends was completely wrong. I will deal with this matter in due course but I mention now that, far from apologising, TCN, in substance, repeated the imputations on national television after the plaintiffs had protested about the initial broadcast. 32 Mrs Jackson was due to return to work in a few days and was reluctant to do so because she thought it likely that most of those with whom she worked would have seen the programme. Indeed, she said, "Everyone was talking about it". She thought that the only person who had not seen the programme was her supervisor and she felt she had to explain to her "what everyone was going on about". Mrs Jackson said that she was asked whether Glen was involved in guns and drugs. She said she was teased and ridiculed, that comments were made about her husband such as, "Oh well, we knew he'd be like that". A newspaper clipping concerning the interest of the authorities in the TCN programme was slipped into a drawer in her desk. Mrs Jackson said that very few people would sit with her at lunch and she sat outside. When she did so, "everybody got up, and they left when I sat down". She said, "Nobody seemed to want to have much to do with me" and described standing in a canteen line when people turned around to look at her and then looked away. 33 Mrs Jackson said that she went to the Parklea Markets with her girlfriend and three women came up to her and said, "Are you the bride of the Rebel bikie?". One of the women asked, "Do you have to sleep with them all to be in the club?" and another said "You people should be ashamed of yourself, your drugs kill children". Mrs Jackson said that she felt afraid and intimidated, left the markets and went home. 34 Mrs Jackson continued her employment with the negative reactions gradually abating; so far as her perception of them went, the worst period being probably the first two weeks. Some of her co-workers were supportive after she explained herself and (as I understand her evidence though this is not entirely clear) especially after she informed them that she had commenced legal proceedings. Even so, the facetious comments continued, and continue to be made. A particular cause of embarrassment for Mrs Jackson was that, despite her assurances (on reasonable grounds in my view) that an apology would be forthcoming it was not and this seemed to give some credence to the imputations and keep them alive. When the bike ride was repeated on the Today programme on 2 July 1996, the response of some of Mrs Jackson's co-workers was that TCN obviously would not retract the imputations, despite the legal proceedings, and thus implicitly maintained that they were true and neither apology nor retraction would be forthcoming. 35 Since the correspondence with TCN concerning the programme affects all plaintiffs, it is probably useful to deal with it at this point. Letters were written on behalf of Mr and Mrs Jackson and Messrs Russell, Elliott, Shuttleworth, Budd, Fielding and Rodney, the first on 12 January 1996 and the rest on 22 January 1996. The letters were in identical terms, identifying the imputations, broadly speaking as found by the jury, pointing out that the bike ride was recorded for the Weddings programme and the adverse effects on their reputations by the broadcast. The letters demanded an immediate and full retraction and apology to be broadcast on Channel 9 at the beginning of ACA in the following form - "Mike Munro on camera, with an image of Glen and Kellie Jackson's wedding ceremony from the "Weddings" program - 'In August last year Channel 9 broadcast a program in our series, "Weddings" in which we featured the biker wedding of Glen and Kellie Jackson". Then over motorbike footage from "A Current Affair" - "We showed Glen and Kellie, Kellie's father and many of their friends, all fellow motorbike enthusiasts, riding together". Mike Munro to camera - "On the first of January this year we broadcast an item on illegal activities of bikie gangs, and we mistakenly used some of the images of Glen and Kellie and their friends as part of it. Channel 9 and I apologise to Glen and Kellie and their family and friends. We accept that they are in no way connected with the activities we were discussing on the first of January, and that the images of them should never have been used in that program."

36 In my view, the letters accurately identified the imputations made by the programme and the demand for retraction and apology were no more than reasonable. TCN replied to the plaintiffs' letters on 6 February 1996. The letter made the following points - "Nine does not accept that the imputations that you allege to have been conveyed by the footage in question were conveyed at all. The story raised a number of serious issues and made allegations in respect of certain individuals. It does not follow, however, that every frame of the story carried an allegation or that every person depicted in the story can be imputed to have been involved in the criminal activities discussed."

It is obvious from what I have set out above that this statement was preposterous. The plaintiffs did not complain about every frame or the depiction of every person. All the other footage showed allegedly criminal clubs or the aftermath of criminal activities, with no distinction made of the plaintiffs. Indeed, the Rebels' gauntlet worn by Mr Jackson was highlighted. The suggestion that the programme made a meaningful distinction between the depicted groups, including the plaintiffs, and "certain individuals" is bizarre. I do not see how it could reasonably, let alone conscientiously be maintained, so far as the substance of the alleged imputations was concerned. "Footage such as that complained can be used in an illustrative way. I would suggest that the obviously staged footage in which your clients participated would be seen by the overwhelming majority of viewers in this way."

This is a tendentious non sequitur . Of course the footage was illustrative. That was the complaint. The real question was: what did it illustrate? The riders depicted identified the criminals who were the subject of the programme. Whether it was obviously staged is immaterial, though perhaps of technical interest: this did not, and could not, qualify the unmistakeable sense that these were exemplars of the criminal motorcyclists about whom the programme warned the public. Why not show the footage as illustrative of the lawful citizens who had nothing to fear from the police? "Your clients at most make up 10 people out of a much larger group of motorcyclists depicted in the footage. It is impossible on the information which you have provided to me to identify any of your clients individually in the footage. It may be that at least some - if not all - of your clients are not identified at all in the footage."

As the letter seeking an apology pointed out that the footage complained about was filmed for the Weddings programme, their identities were sufficiently known to TCN for the purposes of the apology and the retraction that were sought. Furthermore, as that letter also made clear - though this also is obvious from what TCN itself knew, had it given the matter the slightest real consideration - the source of the footage would cause considerable identification of the plaintiffs in their communities and amongst their friends and acquaintances. "Having reviewed the footage, it appears to me that the connection of the group and the Rebels is at most fleeting and somewhat tenuous. Nine does not accept that any imputation is conveyed by association with the Rebel gang."

Even if this point was a good one - which is doubtful - the real issue was not whether the plaintiffs were identified as Rebels but whether they were identified as members of a motor cyclist gang which were involved the activities described in the programme. This is the clear thrust of the plaintiffs' letters, which mentions the Rebels' membership only as reinforcing the general identification made in the programme. 37 It was submitted by Mr McClintock SC for the defendant that this letter was a reasonable response to the letters of complaint. I do not agree. The defendants' letter not only lacked common sense, it lacked common decency. I cannot think that it was honestly written. It was cast in terms which, in effect, said "Sue if you dare" and put the plaintiffs in the position where they were forced to take the unpleasant, risky and expensive course of suing TCN if they wished to vindicate their reputations. In short, it was the discreditable tactic of a bully. Furthermore, although the plaintiffs' letters did not refer to the undertaking, any cursory inquiry by those responsible for the TCN response would have discovered its existence: there must have been some factual investigation of the course of events. This underlines the impudence of the response. All the plaintiffs were justifiably upset and indignant by the cursory dismissal of their request for correction. The failure of the defendant to respond reasonably and fairly at this juncture also had the effect, I infer, of strengthening the defamatory effect of the original broadcast, since the expectations of the plaintiffs (that they would be able to reinforce their explanations of innocence to those of their friends and acquaintances to whom they were proffered) were disappointed and it is reasonable to conclude that a number of those persons would entertain a degree of strong suspicion that TCN was standing by its allegations, smoke indeed produced by a fire. 38 The plaintiffs' request for an apology and retraction was not only spurned. TCN actually repeated, in substance, the ACA defamations by a further broadcast of the Weddings footage on the Today programme of 2 July 1996. That programme commenced with Mr Liebman saying - "News and weather is next and then allegations of a new link between motorcycle gangs and organized crime ." 39 Immediately following this announcement was a brief but immediately recognizeable shot from the Weddings bike ride, showing Mr Jackson and a number of the plaintiffs. Except for Mr Jackson, the three or four plaintiffs whose faces could be fleetingly observed could only have been recognized, if at all, by persons who knew them well. However, anyone who was aware of the plaintiffs' involvement in the Weddings programme and had seen this particular - and memorable shot - would have inferred their presence. Anyone who was aware of the use of the shot in ACA would likewise have inferred their presence. In short, those persons would have had communicated to them the fact that Nine considered the plaintiffs to be in the class of persons to whom Mr Liebman and the ensuing programme referred. Moreover, there can be no doubt, not only from the broadcast itself, but from the earlier communication of the plaintiffs' protests, that this information was intended to be conveyed, not only to the public but also to the plaintiffs. The arrogance of this behaviour and the contemptuous disregard for the plaintiff's feelings that it demonstrated is breathtaking. Following the news and weather Ms Hayes said - "Coming up after the break, fears of a trans-Tasman pact between motorcycle gangs."

Immediately following this announcement was footage of Bandidos members and a shot of Mr Jackson's Rebels' arm gauntlet taken from the Weddings footage and further vision of motorbikes being ridden along the road, also from Weddings , but because it shows only riders' backs, no one is identified. This was also memorable footage. There was no evidence from the defendant as to how or why this came about. The excerpts did not just find themselves accidentally in the programme. The plaintiffs had been given by TCN the status of generic motorcycle club criminals. The reasonable and commonsense inference that the footage was deliberately selected despite the undertaking not to do so and the plaintiffs' protests is strengthened by the failure of the defendant to call any evidence to suggest otherwise (see Jones v Dunkel (1959) 101 CLR 298). 40 To return to Mrs Jackson and the aftermath of the broadcast. Mr Fielding reported to his daughter that many of the other plaintiffs had mentioned to him insulting comments and questions to which they had been subjected. Mrs Jackson was distressed by this also because she felt responsible for what had happened. About ten days or so after ACA was broadcast, Mrs Jackson telephoned TCN and spoke to Mr Peters who was, as I have mentioned, the producer of Weddings. She asked him how it came about that the footage was made available to the producers of ACA in light of his promise that it was never to be used on any other programme. Mr Peters told Mrs Jackson that he was not responsible for what had happened but that the National Crime Authority, which had obtained the Weddings film for its purposes, had returned it to TCN and that is how ACA had obtained access to it. Before Mrs Jackson's attempt to get an explanation, which I think arose from her emotional reaction to the broadcast and the difficulty that she had in understanding how this appalling thing occurred, her father, Mr Fielding had on the day or so after the broadcast, spoken to Mr Peters by telephone. Mr Fielding's evidence was to the effect that he was told that Mike Munro, the presenter of ACA, had telephoned Mr Peters and asked who were the people on the Weddings tape and that Mr Peters told him that they "were only ordinary people", adding "you have been told not to use that tape, I had an agreement with those people". Mr McClintock SC for the defendant objected to any use of this evidence as an admission, submitting that Mr Peters was not authorised to make any admission on behalf of the defendant. Section 87 of the Evidence Act 1995 provides, in substance (so far as is presently relevant) that the test of admissibility of a previous representation contended to be an admission by a party is whether "when the representation was made, the person [making the representation] was an employee of the party…and the representation related to a matter within the scope of the person's employment…" s87(1)(b). Section 87(2) excludes the application of the hearsay rule to a previous representation that "tends to prove" employment and the scope of that employment. It seems to me that the phrase "reasonably open" has been deliberately chosen to distinguish the standard of proof from that which applies to the ultimate issue and it is an adaptation of the phrase "reasonable evidence" adopted in Ahern v The Queen 1988 (165) CLR 87 as required where it is sought to tender evidence of prior representations made by an alleged co-conspirator against an accused charged with conspiracy and is virtually equivalent to "a prima facie case". At the time of the representation in question here, Mr Peters was an employee of TCN who had produced the Weddings programme. As I have already mentioned, the Jacksons and Mr Fielding negotiated with him in connection with their participation in the programme and he undertook, on behalf of TCN, to limit the use of the bike ride footage. Mr Peters was still working for TCN at the time ACA was broadcast since both Mrs Jackson and (I infer) Mr Fielding telephoned him there. The original agreement made by Mr Peters was plainly within the scope of his employment and it is reasonable to infer that any negotiations arising out of the failure to honour it were also within the scope of his employment. Indeed, it is overwhelmingly probable that this was the case. Furthermore, Mr Peters' explanations to Mrs Jackson and Mr Fielding, in all the circumstances, themselves implied that he was acting within the scope of his employment in so doing. This may not matter very much, since it is at all events inescapable that the producer of ACA knew of the source of the bike ride footage and hence the reason for which it was obtained and the likelihood that most, if not all, of the persons depicted were merely friends or acquaintances of the bride or groom or their families rather than being members of any motor cycle club (let alone an "outlaw motorcycle club"), even if Mr Munro did not. I think it appropriate however, that I should state my finding, made with greater confidence having regard to the failure of TCN to call any evidence on the point, that it was known to the producer of ACA not only that the bike ride footage came from the Weddings programme but also that an undertaking had been given by Mr Peters on behalf of TCN that it would not be used for any other purpose. The possibility, even the likelihood, that the footage only came to the attention of ACA's producers because of the intervention of the NCA is neither here nor there. Its provenance as part of the Weddings programme must have been obvious, the more so since the overwhelming probability is that the whole of the Weddings vision (even that not broadcast) would have been passed on and returned. Be this as it may, Mr Peters' statement, in substance, that Mr Munro (or ACA's producers) were told, one way or another, that there was an agreement not to use the material is, having regard to the whole of the circumstances overwhelmingly probable. 41 To return to the narrative of events, Mrs Jackson said that her husband's son, Clint aged twelve, had been living with them for some time and would often play with the neighbours' children but that after the broadcast the neighbours did not permit their children to play with Clint for about a month until Mr Jackson explained to them the truth about how the bike ride came to be included in the ACA programme. I mentioned that a photograph of the Jacksons was displayed in a florist shop in Penrith to publicise the floral arrangements featured in the Weddings programme, in addition to being used in a press advertisement and the Weddings magazine. The proprietor reported to Mrs Jackson that many of her customers made favourable remarks about Mrs Jackson's dress and the flowers. After the broadcast, however, the proprietor complained to Mrs Jackson and her father that the advertising had to be removed because customers coming into the shop constantly remarked of the photograph that the Jacksons were the criminals depicted in ACA. One of Mrs Jackson's bridesmaids told her that she had been teased at work by people saying that she was an associate of criminals. She told Mrs Jackson that their friendship had also caused significant family ructions. Not surprisingly, Mrs Jackson was very upset by this. Another bridesmaid told Mrs Jackson that her employer discussed ACA with her, expressing reservations about her employment. Other friends of Mrs Jackson told her that their families had criticised their friendship and believed that the Jacksons were "druggies [sic] and murderers", an allegation which must be true because it was shown on television. Mrs Jackson said that strangers had come up to her when she was with her husband and asked him for drugs. She said that for the first few months after the ACA broadcast she avoided going out to clubs and other public venues because she felt uncomfortable and embarrassed. After a couple of months, "I got some courage up…and started going out again". Mrs Jackson was asked to describe the overall effect on her of the broadcast and said - "When I said I got the courage up to go out again, it doesn't mean that I dealt with it very well. I still feel really uncomfortable. Like I feel - how do I put this? I've always been a very proud person, I've always felt that - not that I'd be the type of person that you could look up to, but I always thought that I did the right thing. I always like appreciated other people's points of view and had empathy for other people. I - like I knew that my grandparents were proud of me. I was a good person and I ended up feeling like there were a hell of a lot of people out there that no longer felt that way. Like they would see my face and they would know that I wasn't a nice person, that the - it was just - it made me fee like I'd been dragged down to a level where people could pick on me, like I could - yeah, it just made me feel very vulnerable. Q. How do you feel in relation to that today still? A. I still feel the same way. I feel like my - sorry. I - I feel that I don't have the courage that I used to have, the self-worth that I used to have. I don't think I'll - just - I don't think - I don't know whether it will get better. I don't know." 42 Mrs Jackson said that she believed that she was well thought of by her employers, who were "sensible enough" not to believe that she was (for example) either a drug dealer or a person who associates with drug dealers. Her marriage has been unsettled and, indeed, for a time she and her husband separated due in large part, Mrs Jackson thought, to the problems caused by the Current Affair programme. 43 In cross-examination Mr McClintock SC put it to Mrs Jackson that, for whatever reason, misconceived or not, many people in the community disapprove of what they regard as motor cycle gangs and she agreed that some people might think that the Rebels were violent. She said that she had no reservations about her wedding to a Rebel being shown on national television. She said that she had not come across persons who thought adversely of her because of that association with the Rebels, prior to the programme. Amongst other things, the Weddings programme showed Mr Vella's presence at the reception. He was identified in the ACA programme as having a leading role in illegal activities allegedly undertaken by members of the Rebel motorcycle club. Mrs Jackson was asked - "Q There was publicity about Mr Vella [on ACA programme] and the fact that the clear implication of the programme was that the Rebels were involved in the kind of criminal activity which the programme was about? A But no one believed that of me. … Q What is your belief - what would have been the result for you had that bike ride not been included in the Current Affair programme? A Well I don't think I would have known - no one would have connected it directly with me due to the instance that people were actually saying to me, 'We saw you on ACA ' people at my work were saying, 'We saw you'. They didn't say anything about Alex Vella so I don't see - well I can't - I don't know. No, I don't think many people would talk to me about it. He's got nothing to do with me I don't think."

44 When the bike ride sequence was shown again on the Today programme in July 1996, Mrs Jackson said that she was "heartbroken". She added "I thought they were just going to keep on doing it…I thought it would never stop". 45 Mrs Jackson had a very close relationship with her father, speaking with him frequently on the telephone as well as seeing him at her home. She said that she had noticed significant changes in him since the ACA broadcast which, not surprisingly, upset her very much. She described the changes as follows - "A. My dad was really laid back - sort of really relaxed person, like he - nothing was a problem. He would be, you know, very calm person. Like he - and he just - just after each knock back and every problem we had trying to - after ACA trying to get our reputation back. I guess he just he has become obsessed with it. He is a very nervous person now. Like, he constantly talks about it and he -- Q. Talks about what? A. About A Current Affair and how they ruined our lives and that they should pay for it. I agree with him but I just wish it would go away. My grandmother is really worried about it. We talk about that all the time. He doesn't sleep at night and his blood pressure is up and he's just a totally different person. Like he frustrates me. Like, sorry, but he is really - he is driving me crazy. He is just a very nervous person. That is how I would describe it to being - so not a problem it's okay. It's like his whole world has sped up. I can't explain it properly. He has just changed so much. Q. Is that the same today? A. Yeah, he seems to be getting worse. Q. Was he ever like that before the Current Affair show as broadcast? A. No way. He was like laid back everyone would describe him. He was just - just a real calm person. Just it's like someone else. Like he has been replaced by a different personality. I just want him back. I hope when this is all over he is back the way he was again". 46 Mr Glen Jackson lived in Fairfield and Cabramatta up to the age of about fifteen years and after that in Yennora, Penrith and Mt Druitt. At the time of the ACA broadcast, he was in partnership with his brother in a chrome plating shop at Kingswood. He had started the business about nine years earlier in a small factory at St Mary's and, as it became successful, he and his brother bought larger premises at Kingswood. The brothers had been at those premises for something over five years in mid 1996. Mr Jackson said that his role in the business was to speak with the customers about the jobs they wanted done and to give them prices. He said that from fifty to one hundred customers would visit the shop weekly. As well as working at these premises, Mr Jackson visited bike shows, car, engineering and agricultural shows on weekends to demonstrate the sort of work that his shop undertook and he travelled widely all over Australia for this purpose. For several years, Mr Jackson coached the under-7 football team for St Mary's Leagues Club. Naturally, this gave him continuous contact with the parents of the children as well as the large number of persons involved in the competition. Mr Jackson had been a member of the Rebels motor cycle club since 1991, first as a nominee and then in 1992 as a member, having been associated with it for some time before then through his brother who had joined many years earlier. Mr Jackson, who is now 44 years old, has owned a motor cycle since his late teens but had ridden one from an early age; indeed, he started rodeo riding when he was twelve years old and continued this activity for twenty years, riding at a large number of rodeos which were attended by a many persons interested in motorcycles. 47 It is unnecessary to set out in detail the responses communicated to Mr Jackson arising out of the Weddings programme. They were frequent and positive, often from strangers who recognised him. 48 Mr Jackson was angered by the ACA broadcast, both because of the broken undertaking and the untruthful imputations that it conveyed about him. Mr Jackson was also angered and (I infer) humiliated by the need to explain to his neighbours that the imputations made in the programme against him were not truthful and had been "twisted around". He said that people came to his shop and asked for drugs and that, indeed, this had occurred when he was walking down the main street of Penrith. He said that this frequently happened. Other people "backed away from you and wouldn't talk to you". Whilst before, when he went into a hotel in Penrith (where he was well known), people would earlier come and have a drink with him, he found that they started to avoid him. Closer to home, his two sisters asked Mr Jackson whether he was a murderer and a drug dealer as serious issues. His two children, Clint (12 years) and Shay (13 years) were ridiculed at school with the allegation that their father was a drug dealer and a murderer. Not surprisingly, Mr Jackson became very angry and upset as a result. He became obviously upset in the witness box whilst giving this evidence. Mr Jackson was a qualified scuba diver and had purchased a boat for that purpose some years before 1996. Because the ACA programme alleged that a boat had been used to effect a murder Mr Jackson found that he had to sell the boat, which was kept in the front of his house, because people "were saying because I had the boat there, I had something to do with it". Since then he has stopped scuba diving as he no longer had a boat. To avoid being recognised, Mr Jackson shaved his moustache off and changed the colour of his motorbike but this was ineffectual and people still recognised him. Summing up the situation as he saw it, Mr Jackson said - "Q. I have asked you questions about a lot of individual things that happened, things since the program. Overall what have you felt as a result of that program over the time space that's passed between then and now as you are sitting here today? A. I have actually changed my job and changed a lot of things in my life and the way - I was going out a lot. I don't do that much now. I feel I have - sort of like been - sort of like - I don't know the exact words for it - sort of like - it's just wrong that people can do this thing to you. I mean, if one can -- HIS HONOUR: Q. Do what to you? A. Say you are a criminal and all that, a murderer, rapist and so forth and then you have got to try to verify it to the public, the people that you meet, see and all that to try to say, you know, it's a matter of feeling - it's like it's wrong. It's really - how do you express - I don't know who you express it, it's just, you know, it hurts, it's wrong." 49 In cross-examination, Mr Jackson conceded that many members of the public, for whatever reason, would think of the Rebels motorcycle club as a bikie gang. Indeed, in the Weddings programme he had commented that "most people think that bikies are lowlife" but said that this was only because of the way in which they were represented in the media. He also agreed - and at all events it is unarguable - that, quite apart from the Current Affair programme the media have frequently represented motorcycle clubs as undesirable, as engaging in violence, in drug dealing and using and in other criminal activities. Mr Jackson that he was proud of being a Rebel and that, as at the date of trial he was still a member. He never made any secret of his membership and, indeed, held an office in the club as vice-president of the Sydney West chapter in 1995 and, indeed, up to the date of trial. Mr Jackson said that his acquaintances were all aware of his membership of the club, except those whom he met in the course of his business. He also conceded - and again this is plainly unarguable - that everyone who saw the Weddings programme would have known that he was a Rebel. When he was asked whether he thought that the reputation that being a member of the Rebels gave him was good or bad he replied, "I didn't think there was anything wrong with being a Rebel." 50 Mr Fielding who, it will be recalled, is Mrs Jackson's father, said that he was very upset when he discovered that the bike ride footage was shown on ACA. He was not only very angry for himself but because of the way in which it portrayed his daughter. He also was very concerned with his own reputation since he (reasonably) thought that most people who watched the broadcast would simply assume that the imputations conveyed in it were true. Mr Fielding described the negative and concerned responses of his own family. He became estranged from his uncle and aunt, to whom he had been much attached and a reconciliation was only effected at the end of 1999, following his brother's funeral. Snide remarks were made by business acquaintances for six months or so after the broadcast. He was also very upset by the way in which, not only his daughter was affected but other friends whom he had induced to take part in the bike ride, and who told him of the devastation which had been wrought in their lives by it. He and several of his friends, Mr Wheeler, Mr Budd, Mr Russell, Mr Elliott and Mr Rodney who, in varying combinations would ride their bikes to the Nepean Rowing Club every Friday night, stopped doing so because (as I understand it) it identified them more readily with the broadcast. Mr Fielding described himself as being very upset and angry about what had happened. My perception of him as he gave his evidence was that these descriptions considerably understate the depth of his feelings, which had been seriously aggravated by the repetition of the bike ride on the Today programme in July 1996. (Indeed, I think that all of the plaintiffs, except Mrs Jackson, found it difficult to express or describe their emotions and were somewhat embarrassed by the need to disclose them: it was clear from their demeanour that there was a tendency to understate them.) I accept Mr Fielding's evidence that, since the programme and because of it, he has felt continuous anxiety to a greater or lesser extent and for a time was depressed. These symptoms, together with considerable but controlled rage, were evident when he gave evidence. He said - "It's in my mind every day. Some days you mightn't come about, but I just been - always been waiting for the next thing to happen that we would get to this day [that is, the trial]". 51 Mr Fielding conceded that, having regard to the way in which he was pictured in the bike ride, no one who did not already know that he was in the ride could have recognised him. 52 Mr Budd met Mr Jackson for the first time only a few weeks before the wedding. As I mentioned, he agreed to be part of the bike ride because Mr Fielding asked him to do so as a favour. He saw the ACA programme when he was, as it happened, in Hervey Bay, Queensland where he was staying with a friend. Shortly before, he had seen the preview which shocked him so much that he described his behaviour as "berserk". Present at the time were his wife, two children and some friends. Mr Budd described his feelings as "shocked" and "sickened". A few hours later, he watched the programme itself with his family and friends. He said - "I was sick, shocked, hurt and wondering why or how they got it mixed up. Many feelings are going around at once, wondering what people would think if they seen it…[It] gave me the impression that these bikies were going to have a big war, that there are drugs, rape and murder, all the things that was said we were involved in, importing and exporting guns and they are saying about us that are on there." 53 Amongst others, Mr Budd discussed the programme with his parents-in-law, with his father-in-law saying that "they wouldn't have put it on unless they were able to put it on" (although he had, as it happened, not recognised Mr Budd). People with whom he worked made remarks, when there was any publicity about motorcycle gangs, suggesting that he was associated with them. These, and other remarks, implying criminal propensities and activities are still being made. Not surprisingly, he was upset once more when he was told that TCN used the bike ride again in another programme about motorcycle gangs. Mr Budd did not watch the programme himself. In the course of the proceedings, Mr Budd was interrogated about whether any person had spoken to him or behaved towards him in a way which indicated that he or she had seen the programmes or otherwise learnt of their contents and, as a result of having done so, thought less of him. His answer to that question was, "No". In his evidence, he said that the answer was "What I felt at that time". Mr Budd was wearing sunglasses and conceded that he was only seen on the programme for a fleeting moment and, I think, that it was unlikely that he would have been recognised by any person. 54 Mr James Elliott, who had told many of his friends and associates that he was on the Weddings programme and received positive feedback, said that when he watched ACA he became shocked and angry. He felt betrayed. He said that the story was "about criminals, you know, and I am not a criminal and it portrayed us as criminals. But I knew it was the footage from the Weddings shows but all the people that there were watching didn't. I just could not believe it." He said that he thought that the programme said about him that he sold drugs and made drugs, that he was willing to murder and, generally, that he was a criminal. Mr Elliott's daughter, then twenty-one years of age, telephoned him, following the programme and was crying and upset. Mr Elliott tried to explain what had happened but she did not accept the explanation until, as I understand it, some time later. Mr Elliott, of course, was upset by this and by what he thought would be the attitude of his other children. He found out later that his then twelve-year-old daughter, who was living with her mother, had not seen the programme, to his relief. However, his other children and stepchildren were upset by it. A day or so after the programme, he felt it necessary to attend a social gathering attended by one of his daughters as well as other friends and explain how the programme came about and that the imputations contained in it were not being made of him, despite appearances. Insulting comments were made to him at work which Mr Elliott attempted to deal with but he was not certain whether his explanation was accepted. When he discovered that the excerpt was shown again on the Today programme he was upset by it again and relieved that because it was broadcast during the day, most people that he knew were at work and so, hopefully, it was not seen by them. The substance of his evidence was that he was embarrassed and inconvenienced by the need to make explanations to family and friends and that he was distressed by being portrayed as a criminal. Mr Elliott conceded that, as it happened, although he was shown as participating in the bike ride on ACA, he did not appear in the excerpt used on the Today programme. His concern arose from the fact that his friends and family knew that he was in the ride which was featured on the second occasion. He also agreed that he was shown on the Current Affair segment for a fleeting moment and that any person who did not know him could not have identified him from it. 55 Mr Hinvest said that Brian Rodney had told him that previews were being shown early in the weekend of the ACA broadcast and he thought that he may have seen part of two or three of these. He said that he "couldn't believe it" but that he "didn't understand the nature or the gravity of the show until he saw it". At the time, he was with his then fiancée (now wife). He said that they were horrified, that he could not believe the programme would impute of him that - "I was a member of the Rebels, a criminal bikie gang and that I was capable of…murder, rape."

He said that he was overwhelmed and, as he discussed the matter for some hours with his fiancée they became more and more concerned as the implications began to sink in. He said that they were concerned about the response of people at the clubs which they attended; in particular, Mr Hinvest's fiancée was still employed at Panthers in a high profile position. The following day, Mr Hinvest's mother telephoned him, very upset, though her anger was not directed at him but at TCN 9. His grandmother was also very upset. The following night, when Mr Hinvest attended the club, he was subjected to what he described as "a barrage of comments" from members, visitors and members of the board of directors. Some remarks indicated that the programme was not believed in so far as it imputed anything adverse of the plaintiff, but others made unpleasant comments, possibly some of them meant humorously, which did suggest that some of Mr Hinvest's true character had been revealed. Not surprisingly, this caused him great concern. Even the jokes, he felt, demeaned him. Three members of the board made negative comments to him, having said that they had seen him on the ACA broadcast in circumstances where it was obvious that they had been discussing the matter. He said that these three directors from then on "were negative toward me" and it deteriorated to the extent that "it was obvious they wanted me out of the job". He was unable to attribute this attitude directly to the broadcast but he could think of no other reason that may have explained these events. It may have been, he thought, that these directors had already formed a negative view of him and that the broadcast simply provided further justification for their attitude. At all events, it was obvious that it was very unpleasant. In 1998, two of these persons ceased to be members of the board. He felt unable to explain how he came to appear on the broadcast, feeling that the less said about it the better and, at all events, his explanations might simply be taken as unconvincing excuses. Mr Hinvest said that he had suffered a great deal of stress and anxiety flowing from the broadcast. The third board member who had been critical of him now, he said, takes any opportunity to speak ill of him although he no longer "calls me a bikie". 56 Mr Hinvest sold his motorcycle about twelve months after the broadcast to try to dispel the stigma of being a "bikie". He continued to be the subject of "bikie" comment at the club for about two years. Other negative remarks have been made to Mr Hinvest in both the social and work context. Mr Hinvest said that the response of TCN to the solicitor's letter seeking apology and retraction was insulting. I think that this is a perfectly accurate description of its tone and effect. When the footage was again used in the Today programme he said - "I thought - once again I couldn't believe - I thought it was outrageous they had reused that and after we advised them of our concerns and I felt, I suppose, despair where it was going to end, how often they would use it, what problems may arise and I thought it reinforced the Current Affair story." 57 Mr Hinvest said that the litigation was itself productive of anxiety for him and, of course, newspaper reports of the proceedings have added to this. A report inaccurately described the programme which was the subject of this case as having showed "the Jacksons and eight other members of the Rebels cruising down a country road". It was suggested by Mr McClintock SC in cross-examination of Mr Hinvest that in fact this report was confined to the Weddings programme. He rejected this interpretation. I think it is completely unreal. 58 Amongst Mr Hinvest's answers to interrogatories was a statement that negative remarks had been made to him by probably twenty or thirty patrons of the Nepean Rowing Club but he did not mention two of the three directors to whom I have referred, although to do so would have been an apt answer to the question. Mr Hinvest explained that he did not understand that it was necessary that he should mention each event in which he was criticised. I accept Mr Hinvest's evidence on this point as truthful. During his evidence in the proceedings before the jury, he again was asked a general question to which an appropriate answer would have revealed the events involving the three directors and did not do so. In substance, he gave the same explanation. Again, I believe his evidence is truthful. Mr Hinvest did not actually appear on the Today programme footage. However, I do not regard this as significantly reducing the aggravating character of the broadcast. His association with the group depicted, if known, was the crucial question. I have no doubt that many of the persons - whose number is necessarily unknown, but which I do not think was insignificant - who had identified him by a combination of the Weddings programme and ACA would have recalled that association from the footage shown on Today. 59 Mr Brian Rodney watched the ACA programme with his girlfriend and a friend. He said that when he saw it he felt - "Shocked. I was speechless. I couldn't say anything. I was upset. I felt betrayed. I suppose, I don't know what I could say. I suppose I couldn't take it in. You know, I couldn't understand it." 60 His girlfriend at the time (who had political aspirations) was very upset and his friend who was present laughingly called him a drug dealer. He said that he felt as though he had been in a car accident "and everything was happening around you, you know, and there is nothing you can do about it". 61 He said that the programme said about him that he was "a drug dealer, a tax evader, a warmonger, a rapist, you know, or willing to do those things." He said that he was shocked and horrified and did not sleep much that night. When the TCN reply to the letter seeking an apology and retraction was received, he said that he felt that "like the world was on my shoulders". He had "lifted myself up a bit, you know, and just got pushed back down again". Negative remarks were made by a neighbour and at the rowing club. He felt that it had caused his girlfriend to lose respect for him and their relationship began to deteriorate. They are no longer together. He had to try to explain what happened to his mother and this embarrassed him. When the footage of the bike ride was shown again on the Today programme it renewed all the emotions and anxiety that he had suffered when ACA was broadcast. During the trial he needed to explain matters to a client since he was taking time off to attend and he felt obliged to explain what the proceedings were about and deny that he was a Rebel. This denial seemed to be undermined by the press report of the trial and he was concerned whether the client had read it. In cross-examination, Mr Rodney agreed that he had stated in answer to an interrogatory, in substance, that no person had spoken to him or behaved towards him in a way which indicated that the person had seen the programme or otherwise learnt of it and, as a result, had thought less of him. Mr Rodney said, in effect, that he did not think the question concerned his girlfriend since she had not said anything to him but, rather, he inferred from her behaviour that the programme had affected her. He conceded, however, that no one would have recognised him from the Today programme. For the same reasons that I mentioned when considering the effect that Mr Hinvest was not shown, I do not think that it follows that there was no aggravation caused by the re-broadcast. 62 Mr Peter Russell was on holidays in the United States from 23 December 1995 to 13 January 1996 and, as a result, did not see the ACA programme. On the day after his return he went to work. As he opened up his workshop, a customer came into the premises and asked him, "Did you spend all your drug money?" Mr Russell asked him for an explanation and was told of the ACA show. Mr Russell said, in effect, that he was very angry about it. Mr Russell then spoke to Mr Fielding and, later on that evening, with his wife and daughter, watched a tape of the programme. He was asked what he felt about it - "Oh, I couldn't believe it. It was bad enough what Bob said to me, but once I seen the - the video, and like - Bob had told me that we had this agreement with Channel 9 that they wouldn't show it for anything else. The Current Affair show I watched with all the guns and the drugs and the prostitution and the outlaw bikers were walking around with their Bandido jackets on and all this sort of stuff and then for our ride to come over whilst there's sort of talking about all this and blokes being eaten by sharks, I was absolutely devastated, I was so cranky. I'd been betrayed by a major company that I would never have thought they'd have any reason to do that to me." 63 His daughter had been very upset about it. Mr Russell said that, over the ensuing weeks, many customers made comments about the ACA show and he felt obliged to explain to each of them what had happened, that he had nothing to do with any motor cycle club, guns, drugs or anything at all like that. He said that he was still defending himself "in a lot of ways today to people who still keep asking me about it", although, as I understand it, not so much making allegations as simply making enquiries about the litigation. Even so, Mr Russell said that he feels as though he needs to defend himself all the time, a not unreasonable feeling. He resented also the need for his daughters to defend him to persons who made statements to them about it. He was told by Mr Fielding of the re-broadcast of the footage of the bike ride on the Today show and said of his feelings - "Well, it's the same thing that - like, they've done it again. I mean, you've heard that many times. It's going on. They've got to stop, you know, like where is it going to stop? That's the question I ask myself. Where is it going to stop?"

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. … [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."

His Honour then dealt with the speeches of Lord Hailsham of St Marylebone LC and Lord Reid in Broome v Cassell & Co ( infra ), the judgments of Windeyer and Taylor JJ in Uren (infra) and noted the statement of Lord Devlin in Rookes v Barnard [1964] AC 1129 at 1230 that "aggravated damages can do most if not all the work which can be done by exemplary damages". McHugh J considered (178 CLR at 108) - "[that these cases] have made clear…that punishment of the defendant can be a factory in an award of aggravated compensatory damages if it is necessary to provide a fair solatium to the plaintiff but that no sum additional to the compensatory damages can be added as a penalty to punish or deter the defendant unless the case is one calling for an award of exemplary damages. Hence, it should now be regarded as established at common law that, in awarding aggravated damages, the jury can 'inflect an added burden on the defendant proportionate to his conduct' Broome v Cassell [1972] AC at 1071, per Lord Hailsham LC by way of punishment when such award is necessary to provide a proper consolation to the plaintiff. Moreover, in awarding aggravated damages, the anger or indignation which the jury feels at the way the defendant has treated the plaintiff is a proper reason for making a large rather than a small award to compensate the plaintiff. Lord Hailsham said that the reason a jury could increase compensatory damages because of its indignation at the defendant's conduct was that (ibid at 1073) "the injury to the plaintiff is actually greater and, as the result of the conduct exciting the indignation, demands a more generous solatium." 84 Dealing with the position in New South Wales, McHugh J noted that exemplary damages cannot be awarded in an action for defamation, but said that "this does not mean that punishment or deterrence is no longer a legitimate element in an award of aggravated damages in that State…and nothing in s46 [of the Defamation Act] affects the common law rule that in assessing aggravated damages the award may include an amount for punishment or deterrence in a proper case" (178 CLR at 108,109). Pointing to the use of the term "harm" in s46 as "curious", his Honour went on to observe - "It is not a term of art in the law of defamation or the law of torts. But in the context of a section which provides that damages are recoverable in accordance with the common law, it must include such matters as effect on reputation, hurt to feelings, distress, worry, humiliation, fear, anger and resentment as the result of defamation. The purpose of the section is to prevent the plaintiff from receiving damages which do not have a restorative effect. Thus damages to vindicate the plaintiff's reputation are damages for relevant harm, and so are damages for the failure to apologize. And, in some case, aggravated compensatory damages which include an amount for punishment or deterrence are 'damages recoverable in accordance with the common law…for relevant harm' (s46(2))." 85 I note, of course, that McHugh J's discussion of the role of punishment in the law of defamation was, as his Honour said, "academic", since the jury in the case under appeal were directed not to award damages by way of punishment (178 CLR at 110). With respect, however, I wish to state that I have found it very helpful and especially so in relation to the appropriate character of the notion of solatium for the plaintiffs' hurt feelings. 86 In Crampton v Nugawela (1996) 41 NSWLR 176 Mahoney CJ said (at 188) - "It is not in contest that what the defendants did warranted the award of aggravated damages. The principles relevant to the assessment of aggravated damages have a deceptive simplicity. It has been said that, in awarding aggravated damages, the court remains restricted to compensating the plaintiff for loss actually suffered by him as a result of the defamation but, in assessing those damages, the court may adopt the highest level of damages open as compensatory damages." 87 In order that conduct of the defendant after publication may attract an award of aggravated damages, the plaintiff must show that it was lacking in bona fides, or is improper or unjustifiable: Herald & Weekly Times Limited v McGregor (1928) 41 CLR 254; Triggell v Pheeney (1951) 82 CLR 497. TCN's gross breach of trust; its wicked recklessness as to the inevitable and potential effect of the broadcast on plaintiffs' reputations; the extremely serious character of the imputations; the contemptuous rejection of the plaintiffs' reasonable request for apology and retraction; the repetition or refreshment of the substance of the defamatory matter despite their protests; the maintenance of spurious defences until the last moment, when they were discarded; and the tardy apology, less than wholehearted and larded with self-serving excuses, demonstrate, for the reasons that I have already given, that aggravated damages must, in justice, be awarded. 88 In Hill v Church of Scientology of Toronto [1995] 2 SCR 1130, the Supreme Court of Canada said, in the context of freedom of expression and the Canadian Charter of Rights and Freedoms, (L'Heureux-Dube J giving separate but agreeing reasons) - "[107] The other value to be balanced in a defamation action is the protection of the reputation of the individual. Although much has been very properly said and written about the importance of freedom of expression, little has been written of the importance of reputation. Yet, to most people, their good reputation is to be cherished above all. A good reputation is closely related to the innate worthiness and dignity of the individual. It is an attribute that must, just as much as freedom of expression, be protected by society's laws. In order to undertake the balancing required by this case, something must be said about the value of reputation. [108] Democracy has always recognized and cherished the fundamental importance of an individual. That importance must, in turn, be based upon the good repute of a person. It is that good repute which enhances an individual's sense of worth and value. False allegations can so very quickly and completely destroy a good reputation. A reputation tarnished by libel can seldom regain its former lustre. A democratic society, therefore, has an interest in ensuring that its members can enjoy and protect their good reputation so long as it is merited. [117] Though the law of defamation no longer serves as a bulwark against the duel and the blood feud, the protection of reputation remains of vital importance. As David Lepofsky suggests in Making Sense of the Libel Chill Debate: Do Libel Laws 'Chill' the Exercise of Freedom of Expression? (1994) 4 NJCL 169 at 197, reputation is the 'fundamental foundation on which people are able to interact with each other in social environments'. At the same time, it serves the equally or perhaps fundamentally more important purpose of fostering our self-image and sense of self-worth…" 89 In the circumstances of this case, I have considerable doubts whether an award of damages can restore the plaintiffs' reputations and the amounts required to vindicate them must be substantial. There is in this case no claim for damages for economic loss and in arriving at an assessment of damages for non economic loss, the Court must "take into consideration the general range of damages for non economic loss in personal injury awards" s46A(2). It is obvious that this provision cannot be applied in any arithmetical way, given that the range of personal injury awards will change, according to whether common law principles apply or, as in a motor car accident case or in the course of employment, different statutory regimes. "Recognition of these differing bases for assessment does not facilitate the task which s46A(2) requires": Lam v Nationwide News Pty Ltd [2000] NSWSC 792 (Studdert J) at [47]; see also Mathews AJ, Harrigan v Jones [2001] NSWSC 623 at [153]; McClellan J, Jarratt v John Fairfax Publications Pty Limited [2001] NSWSC 739 at [109]. At the same time, the legislative injunction must be obeyed and damages for non-economic loss conscientiously measured in a universe of discourse in which such damages in personal injuries cases form, with damages in defamation cases, a system of justice which should reflect coherence and a reasonable measure of consistency. In the context of this case, I must and do consider that the injury suffered by the plaintiffs does not approach in pain and disability that which would require compensation at the upper end of the scale of damages for personal injury. At the same time, the imputations conveyed were horrendously, almost uniquely, damning. To borrow language from another field of legal discourse, whilst a worse case can be imagined, the imputations broadcast by TCN of the plaintiffs fall into the worst class of case. 90 It will be obvious that there are some differences in the situations of the various plaintiffs. I do not propose to rehearse them in detail at this point. A review of my earlier remarks will identify a number of important distinctions but a brief mention of some significant points is desirable. Mr Fielding still suffers severe emotional problems resulting from the broadcasts and the ensuing strain of litigation, in part from the instigating role he played in influencing most of the other plaintiffs to participate in the bike ride. I accept Mr McClintock's submission that he has also been adversely affected by the tragic death of his brother, but I am satisfied that a substantial cause of his emotional trauma has been the defamation. I award Mr Fielding compensatory damages of $200,000. Mr Budd has young children and is still the subject of comments. But he would not have been recognized from the excerpt. I award Mr Budd compensatory damages of $155,000. Mr Elliott and Mr Rodney are, overall, in much the same situation and I award each of them compensatory damages of $155,000. Mr Hinvest was particularly troubled at his place of employment for a lengthy period. I award Mr Hinvest compensatory damages of $170,000. Mr Russell also has had significant issues with work contacts. I award Mr Russell $160,000. Mr Wheeler also had problems with work contacts and his young daughter was upset by teasing at school about him. He was readily recognizeable by virtue of his beard. He seemed to me also still to be suffering emotionally somewhat more than the others (except for Mr Fielding). I award Mr Wheeler $180,000. The imputations against Mrs Jackson were somewhat less serious than those conveyed about the other plaintiffs but extremely injurious nonetheless. She is still very hurt and, I think, feels guilty over her role in instigating, through her father - though with the best of intentions - the bike ride. The circle of identification was significantly wider in her case than the other plaintiffs. I think that Mrs Jackson's employment also made her more vulnerable to the effects of such a serious slur on her reputation, although it appears that she has weathered the storm without observable problems. I award Mrs Jackson the sum of $185,000. It was submitted by the defendant that Mr Jackson's damages must be reduced by the circumstance that, at the relevant time, he was an officeholder of the Rebels Motorcycle Club and widely known as such. Thus, it was argued, it is impossible to know (for example) whether the persons who approached him for drugs did so because they recognized him from the ACA programme or because they were aware from the programme that Rebels were said to be involved in drug dealing or because, recognizing him from Weddings as a Rebel, they approached him because of the reputation of the Club otherwise than influenced by ACA. The defendant submits that any award of damages to Mr Jackson - and, for that matter - to Mr Shuttleworth - should not compensate them for adverse reactions, and the hurt to feelings caused by such reactions, which would have occurred whether or not the matter complained of was broadcast. Mr McClintock SC concedes, of course, that the defendant has not pleaded and makes no case alleging bad reputation on the part of any of the plaintiffs but submits, nevertheless, that voluntary membership by Mr Jackson and Mr Shuttleworth of a group subject to social disapproval should be taken into account in mitigation of damages, since (it is argued) the issue is the impact of the matter complained of and if a plaintiff's experiences can be attributed to some other source then the plaintiff is not entitled to compensation for those experiences. I understand this argument is not directed to suggesting that the adverse effect on reputation is lessened because Mr Jackson's and Mr Shuttleworth's reputation is already compromised by their membership of the Rebels: cf Chappell v Mirror Newspapers (1984) Aust Torts Reports 80-691; Hunt J, Singleton v John Fairfax & Sons Ltd (1983) NSWLR 722. Such a case, would have to be pleaded and it was not. Changing the focus of attack is somewhat unreal in the circumstances of this case. Mr McClintock's suggestions in cross-examination that the reputation of clubs such as the Rebels was undesirable because it was believed they engaged in violence and other criminal activities were accepted, in substance, by both Mr Jackson and Mr Shuttleworth. But such generalities are very different from the criminal activities imputed to them by ACA. Moreover, people who did not know Mr Jackson but for his appearance on Weddings and who thought the less of him because of ACA, had probably identified him from his depiction in the latter programme. The fact that responses to Weddings were favourable and that there was a change after ACA supports this inference. Had Mr Jackson not been depicted on ACA, it is doubtful that he would have been in a position to sue for defamation merely because that programme made adverse imputations about members of the Rebels Motorcycle Club and his membership of that club was widely known by virtue of his voluntarily appearing in Weddings as such a member. However, that is not this case. Here, the matter complained of is his identification as a particular person about whom the specified imputations were conveyed. I think that the causal link between Mr Jackson's and Mr Shuttleworth's identification in ACA and the adverse reactions which came to their attention is sufficiently established to render the defendant liable for their hurt feelings deriving from that knowledge. At the same time, I think that, although Mr Jackson was angry and ashamed at being publicly pilloried, he was considerably less upset than any of the other plaintiffs. This must reduce his damages. On the other hand, the circle of those who identified him as being the subject of the imputations conveyed by ACA was very wide, significantly wider that that suffered by the other plaintiffs. This factor must increase his damages. His young children also reported being teased at school because, I conclude, of the imputations conveyed by ACA about him. I suspect that some people might be baffled by my awarding a large sum in damages for the defamation - even a serious one - to a person in Mr Jackson's position. However, the law permitted the defendant to place his reputation into the scales had it wished to do so. The courts are obliged to act according to the evidence which is set before them and determine cases according to the issues presented for trial. I do not say, of course, that had the defendant undertaken the course of attempting to prove as a defence that Mr Jackson's reputation was seriously compromised at all events by his membership in and status of the Rebels Motorcycle Club, it would have succeeded. The defendant, no doubt for reasons that seemed proper to it, did not try to do so. Accordingly, I award Mr Jackson the sum of $165,000. Mr Shuttleworth had young children; his long-standing business partnership with a good friend was destroyed; his later membership of the Rebels is, I think irrelevant, having regard to the manner in which the defendant conducted its case. I award Mr Shuttleworth the sum of $160,000. The plaintiffs also seek exemplary damages. The position in New South Wales has been usefully summarised by McClellan J in Jarratt (infra), who concluded that exemplary damages were available in certain circumstances - "[121] Exemplary damages are not recoverable for publications within New South Wales. The parties are at issue as to whether they may be recovered in New South Wales for publications in other states and territories. In Jones v TCN Channel Nine Pty Ltd (1992) 26 NSWLR 732, it was held that s 46 prevented a claim for exemplary damages being made for a publication of defamatory matter which occurred outside New South Wales. This position must be reconsidered having regard to the decision of the High Court in John Pfeiffer Pty Ltd v Rogerson (2000) 174 ALJR 1109 where it was held that Australian courts must apply the substantive law of the place of the tort when considering liability for events which took place in another State. [122] In both Randwick Labor Club Ltd [ v Amalgamated Television Services Pty Limited [2000] NSWC 906] and Marsden [ v Amalgamated Television Services Pty Ltd [2001] NSWSC 510] , this Court has held that in principle a defamation published in other states or territories may attract exemplary damages in New South Wales." 91 Although the defendant has submitted to the contrary, I propose to follow the other judges of this Court in applying Pfeiffer. The crucial issue in this regard is whether there was publication outside New South Wales in States allowing exemplary damages to be awarded. It is submitted by the plaintiff that the Weddings and ACA broadcasts were of a character as to render identification of the plaintiffs inevitable by one or more persons in each of the States and Territories of Australia. In the circumstances of this case, I do not think that this can be accepted as a reasonable inference. However, there is evidence of recognition by Mr Budd of Mr and Mrs Jackson, Mr Wheeler, Mr Elliott, Mr Rodney, Mr Hinvest and Mr Shuttleworth in Hervey Bay, Queensland; Mr Budd was himself identified by Mr Uwe Vaak. The defendant submits that, as Mr Budd did not say that he recognized Mr Wheeler or Mr Fielding, there was no identification of them on that occasion. I think that this is a non sequitur. I have no doubt that Mr Budd must have identified the occasion and the presence of Mr Fielding and Mr Wheeler, even if he did not actually recognize them at the time. Accordingly, I conclude that there was publication of the specified imputations in Queensland of all the plaintiffs. 92 The defendant submits that any award of exemplary damages should reflect the minimal level of interstate publication and, hence, must be a trivial sum. Mr Molomby SC submits, however, that exemplary damages are quantified by reference to the defendant's contumelious conduct. Even so, but the conduct is that which led to the publication. The wrongful behaviour includes, crucially, the nature and extent of the relevant publication. If exemplary damages had been available in New South Wales, then (subject to the matter referred to below) for the reasons that I have identified as giving rise to aggravated damages, I would have awarded exemplary damages to punish the defendant for what I regard as its outrageous conduct. It was submitted by the defendant that it was necessary that the factual basis for this characterisation must be established beyond reasonable doubt. I do not agree. The infliction of exemplary damages, though a penalty, is not criminal either as a matter of form or substance and the judgment remains a civil judgment subject to civil modes of execution. However, the facts to which I have adverted are proved to overwhelming probability and certainly to the standard of certainty which is appropriate, having regard to the gravity of the conclusion concerning the defendant's behaviour. It was rightly conceded by the plaintiff that, where exemplary damages are appropriate in the circumstances to be paid, nevertheless an award will not be made unless the compensatory damages otherwise awarded is insufficient adequately to punish the defendant: Rookes v Barnard [1964] AC 1129, per Lord Devlin at 1228; Broome v Cassell & Co [1972] AC per Lord Diplock at 1121-2; Henry v TVW Enterprises (1990) 3 WAR 474 at 483; TVNZ v Quinn [1996] 3 NZLR 24 at 27; John v MGN [1997] QB 586 at 626. The question arises whether the relevant comparison, where there is a number of plaintiffs, is with the total sum awarded as compensatory damages or with each verdict. Having regard to the purpose of awarding exemplary damages and the focus on the defendant's behaviour, it seems to me that, in a case such as the present, the question is whether the total of the damages awarded is sufficient punishment, adequate to punish the defendant's misconduct and deter it from repeating the wrongdoing. Here, that sum is $1,675,000. I think that it is punishment enough. On the other hand, if I am wrong about this and each verdict should be taken individually, then I would have awarded each plaintiff the sum of $50,000 in exemplary damages. 93 In the result, however, I do not think that, as wickedly irresponsible as was the behaviour of the defendant, the very slight publication in Queensland is a sufficient basis for the award of exemplary damages and, accordingly, this aspect of the plaintiffs' claim must be rejected. 94 Judgment and verdict for the plaintiffs in the sums specified plus interest. I will receive submissions on interest and the question of costs. **********

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