Jarratt v John Fairfax Publications Pty Limited

Supreme Court of NSW|2001-07-26|Before: McClellan J, Clellan J

CITATION : Jarratt v John Fairfax Publications Pty Limited [2001] NSWSC 739 CURRENT JURISDICTION: Civil FILE NUMBER(S) : SC 20068/00 HEARING DATE(S) : 24 - 26 July 2001 JUDGMENT DATE : 7 September 2001

PARTIES : Jeffrey Jarratt (Plt) John Fairfax Publications (Def) JUDGMENT OF : McClellan J

COUNSEL : T K Tobin QC/D Campbell/J Castaldi (Plt) W H Nicholas QC/T D Blackburn (Def) SOLICITORS : Verekers (Plt) Freehills (Def) CATCHWORDS : DEFAMATION - damages - aggravated damages - publication of newspaper material on the internet Defamation Act 1974 ss 46(1)(2)(3), 46A(1)(2), 48 Motor Accidents Act 1988 LEGISLATION CITED : Motor Accidents Compensation Act 1999 Sporting Injuries Insurance Act 1978 Workers' Compensation Act 1987 Bickel v John Fairfax & Sons Ltd & Anor (1981) 2 NSWLR 474 Australian Consolidated Press v Ettinghausen, unreported, NSWSC, 13 October 1993 Broome v Cassell (1972) AC 1027 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 Crampton v Nugawela (1996) 41 NSWLR 176 Gray v Motor Accident Commission (1998) 196 CLR 1 Harrigan v Jones [2001] NSWSC 623 John Pfeiffer Pty Ltd v Rogerson (2000) 74 ALJR 1109 CASES CITED : Jones v TCN Channel Nine Pty Ltd (1992) 26 NSWLR 732 Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 Randwick Labor Club Limited v Amalgamated Television Services Pty Ltd [2000] NSWSC 906 Tingle & Anor v Harbour Radio Pty Ltd & Anor (No 4) [1999] NSWSC Trend Management Ltd v Borg (1996) 40 NSWLR 500 Triggell v Pheeney (1951) 82 CLR 497 Uren v John Fairfax & Sons Pty Ltd (1965-66) 117 CLR 118 XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 72 Vacik Distributors Pty Ltd & Anor v Australian Broadcasting Corporation & Anor (No 8) [2000] NSWSC 732 DECISION : See paras 168, 169

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20068/00 - JARRATT v JOHN FAIRFAX PUBLICATIONS PTY LIMITED

JUDGMENT Introduction 1 HIS HONOUR: The plaintiff, Jeffrey Jarratt, sues the defendant, John Fairfax & Sons Limited for damages for defamation. The defendant is the publisher of The Sydney Morning Herald, a newspaper circulating within New South Wales and the Australian Capital Territory and to a minor extent in all other states of Australia. 2 The proceedings arise from three publications in the newspaper. The first of those publications occurred on Wednesday, 8 September 1999, when three articles were published. Two of those articles were published on page 5 of the newspaper, the other on page 16. The major article on page 5 had the headline "Radio Giant Courted Our Police" with the subheading "Top-level police manipulated negotiations for a new radio network and were wined and dined at the successful company's expense." The breakout story on the same page was headed "Top Cop Jarratt's Highest Hurdle." 3 The articles were accompanied by a large cartoon drawing of the plaintiff on a golf cart with the police logo on it pushing a ball with the name "Motorola" on it, into a hole. 4 The third article was headlined "To Curry Favour" and was contained within the features section of the newspaper. The subheading stated "An Internal Police Investigation has raised serious questions over the awarding of a large communications contract." I have attached the full text of these articles as Annexure A to these reasons. (Annexure A is available in hard copy only.) 5 The second occasion on which material was published was 5 October 1999. On that occasion the article was included on the front page of the newspaper under the headline "Police Role for Man ICAC Accused." Within that article amongst other matters, it was stated "An Internal Police Report dated July 23 found that the contract had been "manipulated" in favour of the United States company Motorola. It named 15 officers, including Mr Ryan's deputy, Mr Jeff Jarratt, as having received thousands of dollars worth of meals, cruises, golf days and travel." The full text of the article is Annexure B to these reasons. (Annexure B is available in hard copy only.) 6 The third article was published on 7 February 2000 under the headline "Jarratt Back on Track for Top Job." Notwithstanding this headline, the article contained amongst other matters, the following: "The Motorola scandal surfaced in the Special Police Inquiry last July, which found that the contract had been 'manipulated' in favour of the American communications giant, which had spent thousands of dollars on cruises, golf days and travel for fifteen police, including Mr Jarratt." 7 The full text of this third article is Annexure C to these reasons. (Annexure C is available in hard copy only.) 8 The first two articles were written by Ben Hills, the third by David Humphries, described as the State Political Editor. 9 On 20 November 2000 a jury determined that the first set of articles conveyed the following imputations which it found to be defamatory of the plaintiff. "a. That the plaintiff so conducted himself in his dealings with Motorola that he deserved to be dismissed from the police service. b. That the plaintiff assisted Motorola to secure a lucrative contract with the police service because of the inducements given to him by Motorola." 10 With respect to the second article the jury found that it conveyed the following imputation which it also found to be defamatory of the plaintiff: "That the plaintiff having received thousands of dollars worth of inducements from Motorola, corruptly arranged for Motorola to be awarded a valuable police service contract." 11 With respect to the third matter the jury found the article conveyed the following imputation which it found to be defamatory of the plaintiff: "That the plaintiff was corrupt in accepting inducements from Motorola which was seeking to secure a lucrative contract with the police service." 12 The defendant has not raised any defences and the matter comes before me to determine the quantum of damages which should be awarded. The plaintiff claims damages, including aggravated damages, and exemplary damages. The plaintiff 13 The plaintiff grew up in Deniliquin and on completing his Leaving Certificate became a police cadet. He was sworn as a probationary constable on 14 October 1967 and was later confirmed as a constable. Having served in a metropolitan police station, in 1969 the plaintiff was posted to the Metropolitan Superintendent's office in Sydney. In that role he played a significant part in organising policing for major functions including the Bathurst car races, papal visits and similar events and carried out many other significant duties. 14 Upon the appointment of Commissioner Abbott, he was invited to become part of the Commissioner's staff and work with his personal assistant. In 1980 he was appointed to assist Mr Avery then the Executive Chief Superintendent personnel, in the implementation of the recommendations of the report by Mr Justice Lusher of the Commission to Inquire into New South Wales Police Administration. 15 In 1983 Mr Avery became the Commissioner and the plaintiff was appointed to his personal staff as a member of the Commissioner's policy unit. He remained with that unit until 1988 when he was appointed Chief Superintendent in charge of Policy Planning and Evaluation, a position which he held from November 1988 to November 1990. 16 He was then appointed as District Commander at Gosford, followed by an appointment to command the Southern Region. In 1993 the plaintiff was appointed as Assistant Commissioner with, inter alia, responsibility for the internal affairs branch of the police service. In that role, the plaintiff's primary function was to deal with corruption in the service. 17 In 1994 the Royal Commission into the New South Wales Police Service ("Wood Royal Commission") was established. Because of the role which the plaintiff was performing in the service at that time, he had significant dealings with the Commission, and worked closely with it in its early stages. In November 1994, the plaintiff was appointed Regional Commander for the Northwest Region, which extended from the Granville/Cabramatta area to the Queensland and South Australian borders. He was later moved from that role to Police Headquarters, where he was made responsible for implementing the Interim Report of the Wood Royal Commission in April 1996. 18 In all of his police roles, the plaintiff has had extensive contact with senior politicians and many public officials. He has been called upon to constantly participate with other senior administrators on a multitude of joint committees, and to liaise across the public sector when performing his duties. His activities have made him widely known at State and Federal levels, as well as making him reasonably well known to the wider public. 19 Following the Interim Report of the Wood Royal Commission, Mr Ryan was appointed Commissioner for Police for New South Wales in June 1996. In February 1997, the plaintiff was appointed Deputy Commissioner Specialist Operations. Another Deputy Commissioner, the late Beverley Lawson, was appointed at the same time. She had responsibility for field operations. When Deputy Commissioner Lawson died at the beginning of 1998, the plaintiff took over her functions as Deputy Commissioner for Field Operations, as well as continuing with his responsibilities for Specialist Operations. He held those two roles until July 1999. 20 The plaintiff is presently Deputy Commissioner for Field Operations and has responsibility for about 13,000 police officers and civilians within the Police Service. 21 The plaintiff has played a role at all levels in policing. In recent years he has attended at the Australian Police Minister's Council, which is a body made up of the police Ministers from each of the eight jurisdictions and the Commonwealth. That body is supported by the Senior Officers Group, which is comprised of the Police Commissioners from each of those jurisdictions, plus some heads of Federal and State Government Departments. The plaintiff also had responsibility for organising security for the Sydney Olympic Games, a responsibility which he took up on 5 February 1997 and continued right through until the conclusion of the Games. This brought him into contact with many people who had a major role in the organisation of the Olympic event. The plaintiff has also performed various roles in relation to national anti-terrorism. 22 The plaintiff has completed formal studies in a number of areas. He obtained a Diploma of Health and Building Surveying in 1977 and completed a Bachelor of Arts degree at Macquarie University in 1986. He has also completed a Master of Business Administration at the same University. He has been a member of the Army Reserve holding the rank of lieutenant. 23 The plaintiff has, since 1990, been an evaluator for the Australian Quality Awards. This is a significant appointment and requires him to participate with others in evaluating candidates for an award for business excellence. 24 The plaintiff has been for some time, the police appointment with respect to the State Emergency Service. His official designation is Controller for the State Emergency and Rescue Management Act. 25 The plaintiff has also had a long association with the Scouting movement, and has for many years been associated with the Salvation Army.

The Motorola Contract 26 While the plaintiff was the Regional Commander, Northwest Region, he was given charge of the body responsible for advising the Commissioner with respect to policy matters in relation to communications within the police service. He continued in that role until the time that he was appointed to implement the reforms of the Royal Commission. He had no operational role with regard to the awarding of contracts for communications systems when Regional Commander. It was during that time he was invited to, and did go on, a harbour cruise hosted by Motorola Australia ("Motorola"). This occurred in about May 1995, when the plaintiff was a guest together with somewhere between 100 and 200 other people. 27 The guests included many government officials and others who were complete strangers to the plaintiff. He did recognise persons from the Office of Information Technology within the State government. 28 This harbour cruise occurred well before any tendering process for a new police communication network which caused the difficulty in the present matter. 29 In his role of Deputy Commissioner, the plaintiff was responsible to the Commissioner for the work of the Commander of the communications group within the police service. In that role he was required to consider a memorandum, from the Commander, recommending the acquisition of communication equipment from Motorola. He considered that recommendation, which was favourable, endorsed it and passed it on to the Commissioner. The Commissioner also endorsed the recommendation and ultimately the Minister agreed to the purchase. 30 Although it is clear that the plaintiff, as line commander, had responsibility for the communications group, which recommended the acquisition of the communications equipment, he played no part in any negotiations in relation to it. His role was limited to the evaluation of the advice given to him by his subordinate officers. He did not engage in any activity of the kind suggested in the publications which, so far as they referred to the plaintiff, were devoid of truth. He did not receive any entertainment or other largesse. Indeed, apart from the harbour cruise, there was no suggestion he had any contact with Motorola at all.

The Sydney Morning Herald 31 The Sydney Morning Herald was described during the proceedings as the "paper of record" for Sydney and the State of New South Wales. Evidence was tendered which estimated both the sales and readership on the relevant days. Those estimates were as follows:

Net Sales of the SMH issue dated 8 September 1999 Net Sales Sydney 169 759 ACT 4559 Balance of NSW 43 143 Queensland 2910 Victoria 644 South Australia 277 West Australia 120 Tasmania 49 Northern Territory 49 Overseas 249 TOTAL 221 759

Estimated readership for the SMH issue dated 8 September 1999.

Sydney 695 000 ACT 21 000 Balance of NSW 127 000 Total 843 000

Net sales of the SMH issue dated 5 October 1999. Net Sales Sydney 161 495 ACT 4605 Balance of NSW 44 674 Queensland 3516 Victoria 719 South Australia 407 West Australia 207 Tasmania 62 Northern Territory 60 Overseas 175 TOTAL 215 920

Estimated readership for the SMH issue dated 5 October 1999.

Sydney 653 000 ACT 19 000 Balance of NSW 128 000 Total 800 000

Net Sales of the SMH issue dated 7 February 2000. Net Sales Sydney 201 385 ACT 5009 Balance of NSW 54 794 Queensland 3004 Victoria 529 South Australia 287 West Australia 124 Tasmania 36 Northern Territory 133 Overseas 203 TOTAL 265 504

Estimated readership for the SMH issue dated 7 February 2000.

Sydney 740 000 ACT 20 000 Balance of NSW 137 000 Total 898 000

32 The plaintiff gave evidence that he had received no approach from anyone from the defendant before the articles were published. Although the first article records that "neither Stanton, Jarratt, Ryan, or Motorola, returned telephone calls from the Herald" the plaintiff stated that he had never received such calls. 33 There was discussion about whether the plaintiff would have responded to a telephone call seeking information in relation to the subject matter of the proposed articles. He indicated that in the normal course he would go to the media unit and ask that the relevant journalist be contacted and invite questions in writing. He may respond to questions depending upon their nature. He was asked the following question: "Q. In the matter with which the Inquiry was concerned, we can take it, can't we, that it is unlikely that you would have commented or responded? A. If a number of issues dealt with on that page had been brought to my attention, I would have been quite comfortable to comment on them, because they do not relate specifically to the investigation, and they are wrong." 34 The defendant called no oral evidence. No one was called to suggest that a telephone call had been made seeking a response from the plaintiff in relation to any of the articles before they were published. I find that no such request was made. The matters of aggravated and exemplary damages must be approached on the basis that the plaintiff had never been provided with an opportunity to respond to the proposed articles before they were published. The matter of complaint 35 The plaintiff did not immediately complain to the defendant following the first publication. However, immediately after it was published he spoke to his solicitor. This occurred before he went overseas to attend a course in the United States of America. 36 The plaintiff indicated that he did not immediately ask his solicitor to write to the defendant. He said he did not do this because of his previous experience in writing to The Sydney Morning Herald. However, over the ensuing weeks he came to the view that the only way he would ever restore his reputation would be to take legal action. It was following the publication of the second article that the plaintiff's solicitors wrote to the defendant on 26 November 1999. 37 In that letter the plaintiff's solicitors complained about each of the articles which had been written. The letter stated that the allegations were false, without any foundation in fact, and that they constituted a great defamation of the "State's second most senior police officer." The letter pointed out gross factual errors in the publications and stated that the plaintiff had instructed his solicitors to commence proceedings for defamation and "requires you to publish a prominent retraction of the false statements and the false imputations as soon as possible in The Sydney Morning Herald in a position of at least equal prominence as that occupied by the articles complained of." 38 An apology was also sought. 39 The defendant did not respond to the substance of the letter until 11 December 1999. In that letter the author, a Mr Mark Polden, who describes himself as a member of the defendant's legal unit, says, "We are at odds as to whether the articles were capable of conveying or in fact convey any of those meanings" - a reference to the defamatory meanings identified by the plaintiff's solicitors. 40 The letter goes on to state: "They expressly refute any suggestion of corruption (including any suggestion that your client was so influenced by corporate largesse that he was derelict in his duties) - as opposed to that your client, as line commander with overall command of the efficient and effective operation of a Communications Group in an area where the potential for corruption is high, bore ultimate responsibility for serious management failures at both Senior Command and supervisory levels, such that his conduct had been referred to the Commissioner of Police." 41 It is not apparent to me how any person of ordinary intelligence could honestly make this statement. Apart from the subheading to the article "Top Level Police Manipulated Negotiations for a New Radio Network and Were Wined and Dined at the Successful Company's expense." The article is accompanied by a large cartoon showing the plaintiff driving a golf cart which the article makes plain the reader is to infer was provided as part of a golf day by Motorola. The plaintiff is shown sinking Motorola's ball. The article is clearly directed, amongst others, at the plaintiff who is spoken of in the very first sentence of the first paragraph. The article, purportedly drawing upon a report said to have been prepared by the Police General Manager of Courts and Legal Services, Mr Michael Holmes, states: "equipment ordering processes were manipulated by senior officers in favour of one supplier, namely Motorola Australia." No such report was tendered in evidence. 42 The article continues by stating "It [again, a reference to the alleged report] details a four-year campaign in which Motorola spent thousands of dollars and "targeted" members of the Police Service involved in the tendering process with expensive meals at fashionable restaurants, cruises on Sydney Harbour, golf days and overseas trips." 43 The article on page 16 of the newspaper said this: "Over a period of four years Stanton and his colleagues, including Assistant Commissioner Jeff Jarratt, the second most senior officer in the State, were entertained in lavish style - meals at restaurants such as Five Doors in Surry Hills and Fratelli's in Parramatta; $130-a-head golf days at Riverside Oaks, catered cruises on Sydney Harbour." 44 The article proceeds to indicate that "Jarratt also faces the sack." It infers that he is caught up in the "curry-for-contracts caper". 45 The second article refers to an internal police report which found that the contract with Motorola "had been manipulated". It stated that "it named fifteen officers including Mr Ryan's deputy, Mr Jeff Jarratt as having received thousands of dollars worth of meals, cruises, golf days and travel". The matter of an apology 46 Although the plaintiff 's solicitors had asked for The Sydney Morning Herald to withdraw the allegations, and apologise, in their letter of 26 November 1999, this did not occur. Instead the denial in the letter of ll December was made. That denial was followed by the third publication made on 7 February 2000. 47 In the meantime the plaintiff commenced these proceedings. They came before a jury which on 22 November 2000 found the pleaded imputations, to which I have referred, to be proved. 48 Many months later on 10 April 2001 the defendant's solicitors wrote to the plaintiff's solicitors expressing a preparedness by the defendant to publish an apology. A draft wording was provided and, with some modifications, was ultimately agreed and published on page 2 of The Sydney Morning Herald on 22 June 2001. A copy of that article is Annexure D to these reasons. (Annexure D is available in hard copy only.) 49 The plaintiff was asked whether he had a view as to the intention of the defendant in publishing the articles. The question was in this form: "Q. His Honour can take it, can't he, that you certainly accepted that The Sydney Morning Herald did not intend to convey the imputations of which you complained but obviously recognised in the light of the jury's finding that the articles did, in fact, convey them? A. I accepted that, yes." 50 The plaintiff also indicated that he accepted the text of the defendant's apology and withdrawal as appropriate. However, he made plain that he did not accept that it was appropriate for the defendant to have delayed publication of the apology until shortly before the present trial. Publication of the material on the internet 51 The Sydney Morning Herald routinely places its publications onto the internet where they may be accessed initially without fee, and then, once they are archived, they may be accessed by anyone upon a payment of a modest fee. All of the articles which defamed the plaintiff were included in files where they could be accessed by any person. Subsequently, after the apology had been published in the newspaper, a correction was placed onto all but one of the articles on the internet. Because, I assume, of an oversight, this was not done in relation to the break out article in the first publication. The impact of the publications - the evidence of the plaintiff

52 On the morning of 8 September 1999 the plaintiff arrived at work early in the morning without having read The Sydney Morning Herald. When he came to his office, staff were already present and were looking at a newspaper. He says the staff appeared to him to be embarrassed and awkward as he walked in. He went directly to his office. 53 Soon after his arrival, the Commissioner's media officer came into his office and indicated that the Commissioner wished to see him. The plaintiff immediately went to see Mr Ryan, who indicated to the plaintiff, who had still not read the articles, that notwithstanding what had been written, the plaintiff enjoyed the Commissioner's confidence. 54 After leaving the Commissioner's office, the plaintiff sought out the article and read it. The first thing he noticed was the caricature of him in a golf buggy. He said this "stunned me and when I read the article I couldn't believe it." When he observed the article which followed headlined "To curry favour" he found this "even more breathtaking." He said "I felt sick." 55 The plaintiff said he was stunned, and he doubted whether he absorbed the full content of the article on initial reading. He was due that morning to participate in a major police conference, being an Operational Crime Review Panel, conducted at the Sydney Police Centre in Goulburn Street, within walking distance of his own office. He went to the meeting and recalls entering the room. He said when he did this that he felt "pretty awful because it was apparent to me when I arrived that some people were not able to engage in eye contact which was plain to me." He said he "felt ill generally and the reactions that I saw made me feel worse. It was probably the worst day of my life." 56 When the meeting was completed the plaintiff walked back to Police Headquarters. As he was walking he was approached by a television reporter with a camera crew and was asked questions. He stated that the questions asked made him feel "like a common criminal." The reporter framed the questions so as to make it appear that the allegations were true and he was challenged as to whether he would resign from the force. 57 He was asked as to whether or not he turned his mind at this stage, ie after the first article was published, to commencing defamation proceedings. He answered by indicating that his initial response was not to consider defamation because it seemed contrary to everything he had stood for. 58 It would appear that arising from this interview the defendant published a further article on 9 September 1999. A complete copy of that article is Annexure E to these reasons. (Annexure E is available in hard copy only.) It was published with the headlines "Ryan 'unaware' of scandal report: I've done nothing wrong: deputy lashes out at leaks over botched police radio contract." The plaintiff described this headline as the "classic crim's defence" and although accepting that the story published his denial to the story, he offered the view that it was published in a way which would indicate to the reader "he would say that, wouldn't he." 59 On returning home on the evening of 8 September, the plaintiff spoke with his wife. Apparently, she had not read the newspaper. He assured his wife there was no truth in the article but realised that because it had been printed she would have to confront people who may well assume it was true. He said it was "the most difficult period of our lives". The plaintiff also spoke to his three children and explained the nature of the allegations which had been made. He assured them that the stories were untrue. The trauma occasioned to the plaintiff was obvious from the manner in which he gave his evidence and he said that when telling his children he felt "as low as one could get". He also rang his mother that evening and explained to her the nature of the articles which had been published telling her that there was no truth in any of the allegations. He described this conversation as "again one of the most difficult things I have ever done". 60 The plaintiff was in the United States of America when the article of 5 October 1999 was published. He was attending a course run by the FBI, and learned of the publication from the internal e-mail service of the NSW Police Service, which he was able to access. He did not see the complete article until he came home, which was about 10 October. 61 On reading the second article, the plaintiff assumed that it was part of an on-going campaign to discredit him. He said the article seemed to make the position worse and was "just adding fuel to a fire". 62 The plaintiff told the court of the support he had had from friends and colleagues throughout this period. He said that the number of phone calls he received following the first article was greater than after the publication of the second article. 63 Not all of his contacts were positive. The plaintiff habitually went to one of his children's cricket matches on a Saturday and told of a discussion he had with another parent. The other person was a senior government official who asked him what the stories were all about. Having been assured by the plaintiff that there was nothing in it the response he received was "it does not look too promising". 64 After publication of the second article, the plaintiff came to the view that it was necessary for him to commence litigation. He concluded that this was the only way he could stop the process which he believed was intended to "demolish his career". 65 The plaintiff also spoke to Commissioner Ryan after returning from the United States of America. The conversation this time occurred in the normal course of their contact and he told the Commissioner he was contemplating taking some legal action. 66 The plaintiff became aware of the third publication on the morning on which it was published. He recalls that he read it in his office in College Street. He said that "I was stunned that again those allegations would be repeated, despite the fact that I had asked my lawyers to write and seek an apology." He described his reaction on this occasion in these terms: "Well, on previous occasions I had my guts knocked in. On this occasion I became angry because it seemed to me that it was moving to a deliberate process of continuing to undermine my position and my integrity and things that I had fought for all my life." 67 The plaintiff also gave evidence of his concern about his employment prospects when he retires from the Police Service. He expressed an interest in working as an academic but was concerned that his prospects may be affected by the articles which have been published. He indicated that he had recently spoken with a senior academic, who was a member of the Police Service Education Advisory Council, who made the observation to him "I am surprised to see you still here in the light of what has been published about you." Renewal of the plaintiff's contract 68 As Deputy Commissioner of Police the plaintiff holds office pursuant to a contractual arrangement. His contract was up for renewal in February 2000. At that time, which was, of course, after publication of the first two articles, the plaintiff's contract was renewed. 69 The renewal occurred after a probity check, as required by the legislation, with the Police Integrity Commission. It reflects a complete affirmation by the State Government of his capacity and integrity, and, it also reflects the Commissioner's confidence in him. The evidence of others 70 Dr Gellatley is the Director-General of the Premier's Department of New South Wales. He has held that position for some years and has had significant dealings with the plaintiff. He first met Mr Jarratt in 1988 when he was an officer in the Premier's Department and the plaintiff was a more junior officer in the police service. The contact continued when Dr Gellatley was Director-General of the Department of Industrial Relations but has been almost daily in his role as Director-General of the Premier's Department. This is a reflection of the central role of the Police Service in the affairs of the State. 71 Dr Gellatley gave evidence that the plaintiff is well known throughout the public sector in New South Wales and by other heads of public sector agencies across Australia. Reform of the police service has become a major issue in recent years, particularly in New South Wales, where there has been the Wood Royal Commission. As a consequence, when discussions are held about reform of the public sector, it is common to refer to the police service. 72 Dr Gellatley stated that the plaintiff's reputation was one of a very professional police officer, of high integrity and whose advice could be relied upon. He stated that people relied upon the plaintiff's judgment in dealing with many issues. 73 He was referred to the imputations found by the jury and asked this question: "Q. Can you tell his Honour whether in the high political and government circles where you move imputations of the kind as those from the three articles in the four imputations in front of you, would be likely to have a particular impact among those people you move amongst? A. Yes, I think that the difficulty is that it is like any - mud sticks, so even if people know that it is not true the perception that these have been made public and into people's minds has an impact, even though people know them not to be true, but they are just a nagging doubt at the back of people's mind, there was something you know." 74 He was also asked whether the publication of the imputations could affect the plaintiff's chances of becoming Police Commissioner, if that position was to be available: "Q. Would a selection committee of the kind you have referred to be likely to take into account what the public perception might be of Mr Jarratt were he to be an applicant for Commissioner in the light of the imputations found by the jury to have been conveyed? A. I think in any position, and particularly a position as head of the Police Service, there has to be a public - there has to be confidence that the person is portrayed and seen and perceived as being totally above corruption. … So therefore I think it is an issue that would be taken into account in the consideration." 75 Mr John Avery, retired Police Commissioner, gave evidence. Mr Avery was the Police Commissioner from the period 1984 to 1991. He told of first noticing the plaintiff in the mid to late seventies when he identified him as "a bright young person" in the Metropolitan Superintendent's office. Later, when the opportunity presented, he gathered the plaintiff, with others, into his policy unit. 76 Mr Avery was asked his opinion as to the impact on the reputation of the plaintiff in government circles of the publications. He said they would be damaging to his prospects because people, even if they accepted that the imputations were not true, would consider the plaintiff to be accident prone. Even if the allegations were not accepted, he believed they would have deleterious effects upon the plaintiff's career unless they were effectively rebutted. He was asked this question: "Q. If the truth of it was rejected, would it still have an impact in your view on his career. A. Well, the mud sticks. Unfortunately people don't remember the details. They see articles in the paper which are damaging. They may or may not notice a retraction, depending upon where it was. But the original impact and the trust they had previously reposed in the man would be damaged." 77 Mr Avery accepted that the renewal of the plaintiff's contract, in February 2000, reflected a government belief in his integrity. However, he was asked this question in cross-examination: "Q. Of course, that conveyed to you, very clearly, the message not only as to Mr Jarratt's contract renewal but the fact that he had been cleared in relation to an inquiry concerning the Motorola matter? A. It conveyed that much to me but it didn't reassure me because much damage had been done and when it came under the - ultimately when the microscope is put upon the various applicant's for the role of Commissioner of Police all of these matters would be reflected upon. The article itself goes on to reiterate some of the things that would recall things to the mind of people who would be concerned with the process of selection. … I took from it some satisfaction that his ethical character had been in some way acknowledged, but I also had a concern, and still have a concern, that his ethical character had been diminished by the generality of the discussions about these issues since the publication." 78 Mr Lesley Tree, the Director-General of the Police Ministry, also gave evidence. He has responsibility for advising the Minister for Police and ensuring a smooth relationship between the police agencies and the Minister's office. He has played a part in the appointment of police commissioners, and is called upon to assist and advise the Minister in relation to appointments and other matters in the police service. 79 Mr Tree indicated that in the course of his duties, he had read each of the articles referring to the plaintiff. He said they were a topic of conversation amongst people in government and in the high levels of the Police Service. The articles came to mind when people were talking of the plaintiff. 80 Mr Tree stated that in appointing a Deputy Commissioner, or Commissioner of Police, one of the key attributes you are looking for is absolute integrity. It could hardly be otherwise. In relation to any possible appointment of the plaintiff as Commissioner he was asked this question: "Q. Are you able to tell his Honour in your view what impact publications of allegations of the kind set out in the list of imputations would have on Mr Jarratt were he to apply for the position of Commissioner of Police? A. Well I think it could cast doubt - and could cast doubt in the minds of people who are conducting the interview about the appropriateness of the appointment of someone who has had these sort of allegations made about them." 81 He was also asked: "Q. In your opinion did the publication of the three Sydney Morning Herald articles which you have identified have an impact on the chance of the plaintiff, Mr Jarratt, to be appointed at some stage as Police Commissioner in this State? A. I think so." Q. And what impact do you think it would have? A. Well, it goes to reputation for controversy and that would weigh in the minds of the selection panel of the Police Commissioner, a future Police Commissioner." 82 Mr Tree gave evidence that he saw the plaintiff shortly after the first publication. He said he was visibly angry and "the Jeff Jarratt I know is not someone who shows emotion regularly and he was quite distressed." He said he had never seen him in this state at any time in the past. 83 Donald Lloyd also gave evidence. He is the Administration Officer for Anglicare and has known the plaintiff since they were at school together. They have remained friends. He gave evidence that the plaintiff is a man with strong Christian beliefs who is renowned for his honesty and integrity and unfailing sense of justice and rightness. 84 Mr Lloyd said that following the publication of the articles he noticed a change in the plaintiff's demeanour. He said "Jeff became very reserved. He was usually enthusiastic and outgoing about his work. He appeared to be somewhat confused and demoralised by the contents of the articles." 85 John Murray gave evidence. He is now the Principal of a consulting business but was formerly the Director of Transport for the Sydney Olympic Games, after which he undertook the role of Director-General of the Department of Transport in New South Wales. He has worked for many years within the New South Wales public service. 86 He had come to know the plaintiff in their various government roles, having first met him in 1984. He has had various dealings with him since that time. He said of the plaintiff that as at September 1999: "He would have been regarded as the next Commissioner of the Police Service and the reason for that was that most people regarded - most of the senior executive level of the State Government thought that in keeping with precedent that an external appointment would be for the one contract period to bring about the reform processes and then the government would seek to appoint a local candidate beyond that and the opinion certainly at chief executive level was that Mr Jarratt was the stand out successor for that role". 87 Mr Murray found the articles incredible. He said that the one which "threw him the most" was the first one with the cartoon. He said the suggestion in the cartoon was completely out of character with the plaintiff and he was "particularly nonplussed". 88 He was asked about the effect of the impact of the articles upon the plaintiff's reputation within the public sector. He said: "My view is that there is no question that they would and the reason for that is that the prospect to serving chief executives in the public sector are seriously diminished by whisper and innuendo of a nature far less significant than this." 89 Mr Murray said that following the publication of the articles the plaintiff was not his "confident, bright self". When he asked the plaintiff about the effects of the articles he expressed particular concern about the impact upon his family saying "that is the hard part". 90 He said that the plaintiff's confidence was higher during or just before and leading up to the Olympic Games but he still was not his old self. He formed the impression that the plaintiff was putting all his effort into his job :"but there was a lack of spark." 91 Mr Lindsay Hay also gave evidence. He is a veterinary surgeon and has known the plaintiff through their mutual activities within the North Carlingford Scout group. He described the plaintiff as a leader in the group saying there was "a great deal of respect" for him. 92 Mr Hay read the articles and was surprised by their content. He said the subject matter of the articles was raised at barbecues and other functions toward the end of 1999 and it was clear to him that the plaintiff did not wish to talk about it. He said it was clear that both the plaintiff and his wife were "off guard and a little bit embarrassed". He said that from time to time "its - my observation that he has been less comfortable with the social group that he was very much a part of, there's no doubt about that at all." The evidence of Mrs Jarratt 93 Mrs Vivian Jarratt gave evidence. She is a work place trainer and also works part time teaching aqua aerobics. 94 She gave evidence that she had known the plaintiff since her late teens and they have three children together. They are obviously close and their children, the eldest being twenty-three and the youngest fourteen, live with them at home. 95 Mrs Jarratt normally reads the newspapers when they are brought home of an evening by her husband. On 8 September 1999, the date of the first defamation, the plaintiff came home and told her that there had been some articles in the newspaper about him. She described him as "clearly distressed". She said he was "very shaken by the articles. I could tell just from his normal routine. That was not what he did. He came in, he was very sort of slow and deliberate, his face was quite ashen - looking, he was obviously quite distressed, his hands were shaking." 96 The plaintiff apparently told Mrs Jarratt of his concern about the publication. He said "This is outrageous." She also said he: "Referred to it as he felt it was a personal and deliberate attack on him. He was concerned about the impact this might have on his career. His contract was up for renewal in the next couple of months, I think. We had both seen instances where these sorts of things can blow out." 97 The plaintiff also told Mrs Jarratt that he was worried about the impact of the articles on the family, including their children and his mother. He was worried that the children may receive adverse comments from their friends or workmates. 98 Mrs Jarratt says that her observations of the plaintiff since the defamation are that he is more withdrawn and has been a lot less motivated. She related the fact that at one point he actually broke down which she stated is not a usual occurrence for him. She says that she observed the plaintiff to be "really distressed." 99 Mrs Jarratt received a telephone call from her own mother shortly after the first publication. Mrs Jarratt's mother apparently asked "What is this about? What is going to happen to Jeff? Will he lose his job?" Mrs Jarratt told her husband of these questions and he became very distressed that his mother-in-law had been upset by the publications. 100 She observed the plaintiff when he spoke to their children about the publications. She said that when it came time to talk to the children the plaintiff was "clearly distressed that he had to sit down and speak to them in that manner. He was quite agitated. His hands were quite nervous. He was again very distressed. His face was quite coloured by having to sit down and say that." 101 Mrs Jarratt gave evidence about the impact of the second publication upon the plaintiff. As I have related the plaintiff was overseas when it was published and she did not learn of the publication until his return. The plaintiff showed her the article and she observed him to be "very distressed." She described his reaction as being "almost a controlled anger." 102 Mrs Jarratt learned of the third publication when her husband came home from work with the newspaper. They had a discussion about it which included the difficulties for the family. She said: "He was again outraged. He again said that he felt that it was a personal attack on him. That it was a rehash of things that had been said before; and he said that he felt that it just indicated to him that it would continue unless something was done to put a stop to it." 103 Mrs Jarratt described the plaintiff's conduct on social occasions as being quieter than he had been before. He was less outgoing and seemed guarded in his conversation with people. The relevant principles 104 Damages must be determined in accordance with Pt 4 of the Defamation Act 1974 ("the Act"). Section 46(2) of the Act provides that damages for defamation shall be the damages recoverable "in accordance with the common law" but limited to damages for "relevant harm". "Relevant harm" is defined as "harm suffered by the person defamed": s 46(1). 105 Section 46(3) provides that damages for defamation shall not include exemplary damages. However, the plaintiff submits that I should follow the decisions in Gray v Motor Accident Commission (1998) 196 CLR 1, Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 and Randwick Labor Club Limited v Amalgamated Television Services Pty Limited [2000] NSWSC 906 and award exemplary damages arising from the publication of the relevant articles in states other than New South Wales. 106 Section 46(3)(b) provides that damages for defamation 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." 107 Section 46A provides some guidance to the court in assessing damages for defamation. Section 46A(1) provides that the court "is to ensure that there is an appropriate and rational relationship between the relevant harm and the amount of damages awarded." 108 Section 46A(2) provides that in determining the amount of damages for non-economic loss to be awarded in any proceedings for defamation, "the court is to take into consideration the general range of damages for non-economic loss and personal injury awards in the state." (including awards made under any statute). The parties have provided me with a summary of available awards which may be applicable depending on the nature of the injury and the relevant statutes and I have had regard to them when reaching my conclusions. 109 However, as Mathews AJ pointed out in Harrigan v Jones [2001] NSWSC 623 at para 153, the court's task is to assess the appropriate amount of compensation in relation to the harm suffered by the plaintiff and "in making this assessment it is difficult to draw meaningful parallels with personal injury cases, given that the harm to be compensated is so different." 110 The relevant provisions of the Act have been comprehensively considered by Sperling J in Vacik Distributors Pty Ltd & Anor v Australian Broadcasting Corporation & Anor (No 8) [2000] NSWSC 732 and Kirby J in Tingle & Anor v Harbour Radio Pty Ltd & Anor (No 4) [1999] NSWSC 461 and by Levine J in Marsden.

Compensatory damages 111 There are three broad purposes served by an award of damages for defamation. In Carson v John Fairfax & Sons Limited (1993) 178 CLR 44 the High Court considered those purposes in the following passage from the joint judgment of Mason CJ, Deane, Dawson and Gaudron JJ at 60-61: "The three purposes no doubt overlap considerably in reality and ensure that 'the amount of the verdict is the product of a mixture of inextricable considerations'. The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant's personal and (if relevant) business reputation, and vindication of the appellant's reputation. The first two purposes are often considered together and constitute consolation for the wrong done to the appellant. Vindication looks to the attitude of others to the appellant: 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." See also Uren v John Fairfax & Sons Pty Limted (1966) 117 CLR 118 per Windeyer J at 150; John Fairfax & Sons Limited v Kelly (1987) 8 NSWLR 131 per McHugh J at 142-143.

112 There is no issue that the plaintiff is entitled to an award of compensatory damages for each publication and a separate award is appropriate in respect of each. However, care must be taken to ensure that the total award is appropriate and double compensation avoided (see Carson at 54). In Broome v Cassell (1972) AC 1027 Lord Diplock spoke of the element's involved in the award stressing the fact that the harm caused by the publication may continue long after the publication is made: "The harm caused to the plaintiff by the publication of a libel upon him often lies in his own feeling, what he thinks other people are thinking of him, than in any actual change made manifest in their attitude towards him. A solatium for injured feelings, however innocent the publication by the defendant may have been, forms a large element in the damages under head (1) [ie ordinary compensatory damages] ---- Again the harm done by the publication, for which damages are recoverable under head (1) does not come to an end when the publication is made. As Lord Aitken said in Ley v Hamilton, 153 L.T. 384, 386: 'It is impossible to track the scandal, to know what quarters the poison may reach.' So long as its withdrawal is not communicated to all those whom it has reached it may continue to spread." 113 The law recognises two elements of compensatory damages: ordinary and aggravated damages. In Bickel v John Fairfax & Sons Limited & Anor (1981) 2 NSWLR 474 at 496, Hunt J said: "Compensatory damages are given to compensate the plaintiff for the harm done to him by the publication of the matter complained of; aggravated compensatory damages (which are also known as merely 'aggravated damages') are given to compensate him when that harm has been aggravated by the defendant's conduct in publishing that matter or by his subsequent conduct." 114 It has also been stated that aggravated compensatory damages may be awarded if the defendant's conduct is "improper, unjustifiable or lacking in bona fides" (Vacik at 9; Triggell v Pheeney (1951) 82 CLR 497 at 514). 115 The correct approach to aggravated damages was explained by Higgins J in Costello and Abbot v Random House Pty Limited (1999) 137 ACTR 1 at 46 where his Honour said: "The concept of 'aggravated damages' is not, whether calculated separately or not, a different 'head' of damage. It focuses on the circumstances of the wrong doing which had made the impact of it worse for the plaintiff. It is not to go beyond compensation for the aggravation of the harm to repute or feelings. It is not a means of punishing a defendant."

116 The difference between ordinary and aggravated damages was examined by Levine J in Marsden (para 4732 and following) where he pointed out that factors sometimes thought relevant only to aggravated damages are in fact relevant to ordinary compensatory damages: See Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254 considered by Clarke JA in Australian Consolidated Press Ltd v Ettinghausen (Court of Appeal, unreported, 13 October 1993 at p 25) 117 As the High Court noted in Gray at 4; in Uren v John Fairfax & Sons Pty Ltd (1965-66) 117 CLR 118 at 149, Windeyer J observed that the distinction between aggravated and exemplary damages is "not easy to make in defamation, either historically or analytically and in practice is hard to preserve." The concept of aggravated damages serves as a reminder that there are different elements to the award of damages and the conduct of the defendant, when publishing or defending the publication, may, if unjustifiable, improper, or lacking in bona fides, be reflected in the award of damages if damage is by reason of that conduct suffered by the plaintiff: see Bickel at 497. 118 The sum which the court awards must be sufficient to vindicate the plaintiff's reputation. This was made plain in Carson (at 61) and must be particularly the case when the libel attacks the integrity of a person who relies on his reputation to be able to fulfil his professional role in the community. 119 As a consequence there is a critical role which vindication plays in any award of damages in the present case. The plaintiff submits that the appropriate principles were expressed in Broome v Cassell where Lord Hailsham said: "Not merely can he 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 by-stander of the baselessness of the charge." 120 There can be no question but that the award in the present case must be sufficient to indicate for all time that the libels published by the defendant were baseless.

Exemplary damages 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 and Marsden, this Court has held that in principle a defamation published in other states or territories may attract exemplary damages in New South Wales. 123 The defendant submits that in the present circumstances, although it accepts that the relevant newspapers were published in the other states and territories, "the mere act of publication is not the conduct for inquiry". It is submitted that the conduct deserving of an award occurs wholly in New South Wales. 124 I do not find this an attractive submission. Although many of the events preceding publication about which complaint is made occurred in New South Wales, without publication no cause of action would exist. As publication occurs in the other places exemplary damages are, in my opinion, available even though many of the acts of the defendant, about which complaint is made, occurred in New South Wales. I propose to follow the decisions in Randwick Labor Club and Marsden. 125 Awards of exemplary damages are rare. They recognise and punish fault and may be awarded in defamation cases: see Gray and Uren. Their purpose is to punish the wrongdoer and deter others from like conduct: see Gray at para 31. 126 In a libel case before an award could be made, there must be evidence of conscious wrongdoing. The relevant question is whether having recognised the plaintiff's entitlement to an award for compensatory damages, which may include aggravated damages, the defendant's conduct merits punishment by awarding a greater sum to the plaintiff: see Uren at 154. 127 The relevant principles and the punitive nature of an award for exemplary damages were referred to by Brennan J in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 72 at 471 where his Honour said: "As an award of exemplary damages is intended to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff's rights and to deter him from committing like conduct again, the considerations that enter into the assessment of exemplary damages are quite different from the considerations that govern the assessment of compensatory damages. There is no necessary proportionality between the assessment of the two categories. In Merest v Harvey substantial exemplary damages were awarded for a trespass of a high-handed kind which occasioned minimal damage, Gibbs CJ saying: 'I wish to know, in a case where a man disregards every principle which actuates the conduct of gentlemen, what is to restrain him except large damages?' The social purpose to be served by an award of exemplary damages is, as Lord Diplock said in Broome v Cassell & Co, 'to teach a wrong-doer that tort does not pay.' "

Submissions of the plaintiff 128 The plaintiff submits that there are a number of important elements of the harm occasioned by the publication. It is submitted that before the first publication the plaintiff enjoyed an unblemished reputation for honesty and integrity. He was widely known in police, community, business and senior government circles throughout Australia. He had direct command of thousands of police. He has also had direct involvement with police reform processes and was appointed Deputy Commissioner. 129 The plaintiff says that the imputations conveyed by all three publications were of corrupt conduct of the gravest kind. They carried the authority of The Sydney Morning Herald, a newspaper of record, and there was evidence of special injury to reputation in high government circles. The plaintiff particularly emphasised the evidence of the potential for the defamation to impact upon his prospects of being appointed to the position of Commissioner. However untrue may be the allegations, and whatever the denial, withdrawal or apology, the plaintiff's reputation has been damaged. 130 The plaintiff emphasised the injury to his feelings occasioned by the publication. The first publication had a significant effect which was exacerbated by the later publications. 131 The plaintiff seeks aggravated damages. On his behalf it was submitted that not only has the plaintiff sworn that the imputations are false, the defendant has not asserted their truth. It is submitted that the defendant did not check the story with the plaintiff, and furthermore, repeated the defamation following the recept of the solicitor's letter stating that the allegations were not true. 132 The plaintiff submits that the publications including the original cartoon, headlines and captions have a sensational tone and place the plaintiff at the centre of the allegations of corruption. Particular emphasis is placed on the cartoon showing the plaintiff sinking the putt for Motorola which conveys the message that he had an essential and active role in the wrongdoing. 133 The plaintiff also seeks an award for exemplary damages. It is submitted that the third publication was made in "contumelious disregard for the plaintiff's rights. The necessary elements of an act done in circumstances which the defendant must have known would be likely to cause harm to the plaintiff; where the defendant had it within its power to avoid the harm; where the plaintiff was in a position of powerlessness or relative weakness as against the defendant and there was no reasonable excuse for the defendants inflicting the harm are made out. It is submitted that "conscious wrongdoing" may be constituted by recklessness: see Trend Management Ltd v Borg (1996) 40 NSWLR 500; Lamb v Cotogno (1987) 164 CLR 1. In this respect it is submitted that the defendant could have "electronically tagged" the fact that the truth of the first two publications had been challenged and thereby avoided the third publication. Although such an electronic "tag" was placed on the file after the apology was published, it was not in place when the third publication was made.

Submissions of the defendant 134 The defendant emphasised the need for any award of damages to be based upon the evidence, and acknowledge the statutory obligation of ensuring an appropriate and rational relationship between the relevant harm and the compensatory award. It is submitted that the court must have regard, by way of guidance, to the statutes which provide for recovery of damages for personal injury and the amounts which may be recovered. The relevant statutes are said to include the Motor Accidents Act 1988 and the Motor Accidents Compensation Act 1999. Under the Motor Accidents Compensation Act 1999 (which applies to accidents after 5 October 1999) the maximum amount which can be awarded for non-economic loss is $284,000 indexed annually. 135 The Workers' Compensation Act 1987 provides a cap on general damages in any claim for common law damages. At the time of the first publication the maximum amount which could be awarded for non-economic loss was $236,450 which rose to $240,350 before the second and third publications. Provision is also made in the Sporting Injuries Insurance Act 1978 for a cap on recovery for sporting injuries, the "worst case" amount provided is $171,000. 136 The defendant submitted that when considering the appropriate compensation for the second and third publications, the court should have regard to the damages received by the plaintiff in respect of the first publication. The plaintiff should not be compensated twice: see s 48 of the Act, and the discussion in Vacik at para 95. 137 It is submitted that there is no evidence which supports a finding that the second or third publications caused significant harm to the plaintiff. It is accepted that each of the publications contained similar imputations and were published over a reasonably short period of time. Accordingly, the court must have regard to the "aggregate harm": see Carson at 55. 138 The defendant accepts that the plaintiff is entitled to damages by way of solatium to compensate him for his hurt feelings. However, it is submitted that the greater part of the injury was caused by the first publication. 139 With respect to compensation for injury to the plaintiff's reputation, it is submitted that there is little or no evidence that this occurred. There is no evidence that the plaintiff was shunned, avoided by friends or that anyone thought the less of him. 140 The plaintiff emphasised the need for any award of damages to be sufficient to vindicate the plaintiff in the eyes of the public. For its part the defendant accepts the principle, but submits that the appropriate award must not be the product of speculation or impression but must be related to the evidence. It is submitted that there is almost no direct evidence that any person needs to be convinced of the baselessness of the charge. The fact that the plaintiff was reappointed as Deputy Commissioner and the lack of evidence of any adverse affect on his professional or social life suggest that a modest sum by way of an award will be adequate to vindicate the plaintiff's reputation. 141 With respect to the issue relating to the plaintiff's prospect of becoming Commissioner, it is submitted that evidence was merely speculative and of negligible weight. Although accepting that the plaintiff is entitled to be compensated for the injury to his feelings, and because his reputation was damaged, it was submitted that it is no part of the award to compensate him for some vague, unparticularised "loss of chance". It is said that the evidence did not suggest that the publications had any effect on the plaintiff's reappointment as Deputy Commissioner. 142 In relation to the plaintiff's claim for aggravated damages, it was submitted that the plaintiff gave no evidence that his sense of hurt was increased by any knowledge of the falsity of the allegations. Furthermore, it was submitted that the plaintiff had not proved that the plaintiff knew that the defendant had published the imputations without caring whether they were true or false and that his hurt was increased on that account. These elements were submitted to be essential if the plaintiff is to recover aggravated damages. 143 With respect to the third publication, it was submitted that because there was no evidence that anyone who was involved in that publication was aware of the solicitor's letter of 26 November 1999, it could not be concluded that the publication was improper, unjustifiable or lacking in bona fides. Attention was drawn to the fact that the plaintiff in his evidence accepted that the publication of the imputation was unintended. 144 Accordingly, the submission seeking exemplary damages could not be sustained.

Findings 145 No significant challenge was made to any of the evidence given in the plaintiff's case. The plaintiff was an impressive witness. I am satisfied that he significantly understated the impact of the publications upon him. I have no doubt he was deeply injured by them. He is a man who has devoted his whole working life to the police service and has, notwithstanding the significant failings of others, including some quite senior police, maintained a reputation for absolute integrity. That reputation is reflected not only in his professional life, but more generally in the wider community. Some insight into his suffering was given by his wife. 146 The plaintiff gave evidence that he was stunned by the initial publication. He felt sick. It was probably the worst day of his life. When approached by the television reporter he said he felt "like a common criminal." Talking the matter over with his wife and children was the most difficult period of their lives. Telling his mother of the problems was, in his words, "one of the most difficult things I have ever done." 147 With respect to the second publication, the plaintiff said that to him it seemed to be worse than the first. He was questioned by others about the matter recounting conversations at his son's cricket game. The publication suggesting he was the direct recipient of bribes cut much deeper. 148 The third publication again stunned the plaintiff. Its impact was particularly severe having regard to the fact that he had requested an apology which had not been forthcoming. He formed the view that there was a deliberate process designed to destroy his career. 149 The plaintiff is entitled to damages by way of solatium for his injured feelings. That injury was great, ongoing and increased with each publication. Mrs Jarratt said that her husband is still affected today. By the time of the third publication the original distress experienced by the plaintiff upon the publication of the first article, turned to feelings of anger. 150 The plaintiff's personality has been affected by the publications. He has become more reserved, a lot quieter in company, and more guarded in what he says and does. The severe effect of the publication and trial process was apparent when the plaintiff broke down whilst giving evidence about the impact upon himself and his family members. 151 The plaintiff is also entitled to be compensated for the damage to his character and reputation. When considering the reputation of a person such as the Deputy Commissioner of Police it is appropriate to apply the words used by Mahoney ACJ in Crampton v Nugawela (1996) 41 NSWLR 176 at 193 - "[I]n some cases, a person's reputation is, in a relevant sense, his whole life." His Honour went on to instance the reputation of a clerk for financial honesty or a solicitor for integrity. There can be no doubt, that in the relevant sense, the integrity of Mr Jarratt is his whole life. Any attack upon that integrity is liable to occasion very significant harm and I believe it did so in this case. Without a reputation for absolute integrity, a senior police officer cannot function effectively, and will lose the respect of his colleagues, associates and subordinates. An allegation that such a person is corrupt could to destroy his whole career. And where, as in the present case, it is suggested that he might lose his job, the damage in the eyes of the average reader must increase. 152 It is plain that the publication of these defamations in The Sydney Morning Herald carried with it the authority of that journal. It ensured wide coverage, and was bound to provoke discussion and comment. It is inconceivable that the question of the integrity of the plaintiff was not raised in the minds of his colleagues and others with whom he dealt on a daily basis, as well as in the minds of those members of the general public who read the article and contemplated its consequences. 153 There is no novelty in the fact that no one was called to give direct evidence that because of the publications they thought less of the plaintiff. It would be rare for someone who believes the plaintiff is corrupt to tell him of that opinion. However, I do not believe it would be speculation to conclude that many readers of the publications would have formed the view that the plaintiff was corrupt. The evidence does enable me to find that because of the publications difficult considerations will arise if the plaintiff is again considered as a possible Commissioner of Police. Whether thought of as merely accident prone, or of questionable integrity, those charged with the responsibility of determining whether the plaintiff is suitable for appointment as Commissioner of Police, should this arise, must have regard to the publications. Whether a Government could entrust the running of the police service to a person about whom these grave allegations have been made, however lacking in substance, is a matter which would need to be carefully considered. The Commissioner must be someone in whom the general public can repose absolute confidence. His public reputation as a person of integrity is vital. 154 In the present case the damage to the plaintiff's reputation was occasioned initially by the first publication. However, the second publication, repeating as it did substantially the same allegations, no doubt made the first more memorable and likely to remain in the mind of the reader. The third publication, apart from seriously undermining the impact of the plaintiff's confirmation as Deputy Commissioner, again would have tended to confirm in the mind of the reader that the imputations in the first two articles were true. At the very least, in my opinion, the average reader would have come to the view that serious questions existed about the probity of the plaintiff. It is not difficult to understand that seeing the imputation repeated in the three publications without effective response or rebuttal by the plaintiff would have encouraged such a reader to conclude that there must be substance in the allegations or otherwise they would not have been repeated. 155 After the second publication the plaintiff's solicitor asked for a withdrawal of the allegations and an apology. The reply from the defendant rejected any suggestion that a defamation had occurred. This position was maintained and the matter defended at a hearing before a jury. Even when the jury found in favour of the plaintiff the defendant did not tender an apology and withdrawal until shortly before the present hearing. The damage to the plaintiff's feelings was undoubtedly increased because of the attitude adopted by the defendant, the necessity for the plaintiff to pursue litigation, and the failure to offer an apology and withdraw the allegation at an early date. 156 The circumstances and content of the third publication, in my opinion, inflicted a very significant injury on the plaintiff. Entitled to feelings of relief and comfort from the renewal of his appointment, the third publication directly challenged the wisdom of that appointment and imparted that, notwithstanding it, the plaintiff was corrupt. 157 In the present case, I have considerable doubt as to the capacity for an award of damages to completely restore the plaintiff's reputation. It cannot be overlooked that the publications were made at a time when many people must have held a cynical view about the integrity of many police because of the revelations of the Wood Royal Commission. Allegations of corruption by large and striking headlines, reinforced by a striking cartoon and repeated on two later occasions will not be easily rebutted. The evidence indicates that, notwithstanding the complete lack of substance to the allegations, questions will remain as to the plaintiff's suitability for the highest office in the police service. Only an award at the highest end of the appropriate scale could be expected to redress this situation. 158 I am satisfied that for each of the defamations the plaintiff is entitled to damages for solatium and injury to his reputation at the high end of the appropriate scale. However, to adequately vindicate his reputation that award must be toward the highest end of that scale. 159 In my opinion, the plaintiff is entitled to an award which includes aggravated damages. That entitlement flows from the failure of the defendant to provide the plaintiff an opportunity to rebut the allegations, their lack of truth, and the particular circumstances of the third publication. 160 The defendant must have known that each of the articles it proposed to publish had the potential to cause grave injury to the plaintiff. To label the Deputy Commissioner as corrupt and deserving of dismissal from the police service, was to raise the most serious allegations against a person in whom the government and the general public are entitled to repose absolute trust. 161 Before publishing, in my opinion, the defendant was obliged to give the plaintiff an adequate opportunity to explain why the allegations were not true. The explanation would have been simple. The Harbour Cruise was a general event years before the Motorola contract was even contemplated. Otherwise the plaintiff had never been entertained by Motorola or played any part in the negotiations with respect to the contract. While, perhaps not malicious, the defendant's conduct was at least improper and lacked any appreciation of the gravity of the allegation which it was making. If an opportunity for explanation had been affected, there can be little doubt the articles would not have been published at least in the form in which that occurred. 162 The imputations in the first publication were effectively repeated not once but twice. The plaintiff had not been given an opportunity to rebut the allegations before the second publication. Before the third publication was made, the defendant had received the plaintiff's solicitor's letter and responded to it. I have already commented upon the integrity of that response. 163 Accordingly, the third publication was made after the defendant had been told that the allegations had no substance and was published with the report of the plaintiff's reappointment as Deputy Commissioner. Notwithstanding that fact, which of itself would have operated to restore at least partially the plaintiff's reputation, the defendant chose to publish of the plaintiff that he was corrupt. 164 The plaintiff says that when he read the previous publication "I had my guts knocked in" but on reading the third publication "I became angry because it seemed to me that it was moving to a deliberate process of continuing to undermine my position and my integrity and things that I had fought for all my life". 165 In my opinion the aggravating behaviour of the defendant entitled the plaintiff to an enhanced compensatory award. 166 In my view this is not a case for exemplary damages. The defendant's action in publishing without seeking and carefully considering any response from the plaintiff is deserving of strong criticism. Its decision to publish the imputation that the plaintiff was corrupt in the same story which confirmed his reappointment may be interpreted as an attempt to negate the benefit to the plaintiff of public knowledge of his reappointment - the position made worse by the defendant's knowledge from the plaintiff's solicitor that the previous stories reflected a complete misunderstanding of the position. 167 Although the defendant's conduct in publishing the third article in these circumstances would be described by many as thoughtless, and by some as reckless, I do not believe there is a need to provide for punishment by way of exemplary damages. It is plain that the defendant, if it has not already done so, should ensure that stories which have been challenged by those mentioned in them are tagged so that any defamations are not repeated without careful thought. I do not believe it necessary to award exemplary damages to make this obvious point.

Conclusions 168 Having regard to all these matters, in my judgment the plaintiff is entitled to an award for the first publication in the sum of $180,000, the second in the sum of $100,000 and the third in the sum of $140,000, making a total award of $420,000. 169 I will not enter verdicts until matters of interest and costs have been considered. ******

Last Modified: 09/20/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

(2000) 174 ALJR 1109

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Judgment (28 paragraphs)

Parties

Cases Cited (19)