"Neither s 46A in terms, nor the second reading speech suggests that equivalence is possible, or that in every case of defamation, awards for other injuries provide a ceiling above which an award for defamation should not go."
37 In line with this thought, Mr McClintock submitted that what s 46A(2) "doesn't say is that defamation awards have to be higher or lower than personal injuries awards" and that as such there is nothing to stop the court from making an award in a defamation case which is larger than an award in a personal injury case. I accept this.
38 However, as was pointed out during argument, the duty of this Court is to obey the law and carry out the command of the Parliament in s 46A of the Act no matter what the difficulties.
39 The section is phrased in strong words of command, viz "the Court is to ensure" that certain things occur and when considering the general range of damages for economic loss in personal injury awards in the State it is to
take into account those capped under State legislation.
40 Section 46A of the Act has been in force for ten years. It does not appear to have been considered a substantial brake on large awards of damages.
41 In 1996, this Court consisting of Mahoney ACJ, Handley and Giles JJA noted the section and discussed the general relationship of damages in defamation and personal injury cases when dismissing an appeal in a case where a doctor had been awarded $500,000 for defamation. See Crampton v Nugawela (1996) 41 NSWLR 176 at p 192. This case was mentioned by Heydon J in Rogers with some approval.
42 As far as my researches have revealed, there have not been any reported cases since Rogers where s 46A of the Act has been considered in any meaningful way. However, I should note that Levine J remarked on its scope in Markovic v White [2004] NSWSC 37 and that in Konstantinidis v Foreign Media Pty Limited [2004] NSWSC 835, Buddin J said:
"… the current cap for general damages for non-economic loss in personal injury cases to which the Civil Liability Act 2002 applies, is $384,500 for a most extreme case … there is a statutory prohibition against the award of exemplary damages. - See Defamation Act s 46(3)(a). That being so, no punitive element can be allowed to intrude".
43 As to the respondent's reputation, her counsel points to the findings of the learned trial judge in paras [214], [215] and [217] of the judgment which I will now set out:
"[214] The plaintiff submitted, correctly, that she enjoyed a high public profile. After a teaching career in Queensland she studied and graduated in law. She was admitted to the Bar and practised her profession. This was a considerable achievement. She held a number of senior Government appointments culminating in her appointment as the permanent Head of the Ministry of Aboriginal Affairs under the Wran Government. In 1986 she was appointed a Local Court Magistrate and has continued in that office.
[215] She has been active in many areas of public life and held senior positions with various organisations and official bodies. She has been awarded an Honorary Doctorate of Law from three universities in New South Wales. She was Chancellor of the University of New England. She has worked hard for the advancement of Aboriginal communities and the rights of women. She has been a vigorous and outspoken campaigner. She received glowing references from Ms S Ryan, a former Federal Minister for Education and now President of Superannuation Trustees, Mr E G Whitlam, a former Prime Minister and Ms J Milledge, a magistrate since 1996 and Senior Deputy State Coroner. Prior to her appointment to the Local Court Ms Milledge had served as a police officer for 24 years, sixteen of those as a police prosecutor. She commonly appeared before the plaintiff and noticed nothing untoward about the plaintiff's treatment of police nor any untoward favour towards members of the Aboriginal community.
[217] I accept that the plaintiff's reputation was and is a very important part of her life. So also were her campaigns to improve the lot of Aborigines, to fight against police harassment of Aborigines and the misuse of police powers, to stop violence against women in all its forms and to redress the balance in what she regarded as a male dominated society. She was passionate and outspoken about the causes in which she believed. The advancement and success of the causes in which she believed were just as important to her as her reputation. Her reputation was important in the advancement of those causes. I have kept in mind the remarks of Mahoney ACJ in Crampton v Nugawela (1996) 41 NSWLR 176 at 193 as to the central importance of reputation."
44 The respondent's counsel puts that in view of this finding and in view of the fact that no case of bad or diminished reputation was ever put below, the respondent is entitled to have this Court approach assessment of damages on the basis that her reputation was of the highest and that she was a very well known public figure.
45 The respondent also puts that it would be quite wrong for this Court to take the attitude that because four of the eight imputations found by the jury have been found to be defensible as comment, that the trial judge's award of $220,000 should be substantially discounted. They put that the assessment of harm done by publication is not a crude exercise of multiplication or addition of imputation upon imputation nor as this case now stands, subtraction or division. Indeed, it could be said that the other statements added very little to the seriousness of the four imputations which in fact have been established. The Defamation Act, s 9(5) and (5A) requires damages for each matter complained of to be assessed in a single sum recognising that it is the overall impression, not the individual imputations that are important in assessing damages.
46 The appellant says that the trial judge considered the respondent's evidence concerning her hurt feelings and emphatically rejected most of it.
47 The learned Judge did say that he thought that any hurt that the respondent felt was as much engendered by her general behaviour and complaints made against her to the Judicial Commission as by the article the subject of these proceedings. The kernel of his finding is in para [227] where he said in the second half of the paragraph:
"The plaintiff has sought to lay too much at the door of the article of 16 December 1999. I do not accept that the plaintiff's distress and hurt was generated directly by her reading Ms Albrechsten's article of 16 December 1999 and nothing else at that time. I accept that Ms Albrechsten's article added to the plaintiff's hurt and distress."
48 He repeated this at [231]:
"I do not accept that the hurt and injury to the plaintiff's feelings from Ms Albrechsten's article was of the order she suggests. Her hurt was not solely due to the article of 16 December 1999 … . Nevertheless, I am of the view that Ms Albrechsten article did occasion the plaintiff hurt and injury to her feelings. The imputations of bias, knowingly acting contrary to law, incompetency, undermining the judicial system and allowing her extreme views to affect her judgment have a major sting."
49 It is appropriate to note that some of the matters that were particularly noted by the learned trial judge emphasize imputations (f), (g) and (h), which were found to be fair comment.
50 The appellant invited us to find that the respondent actually suffered little, if any, relevant harm as a result of the publication of the matter complained of.
51 This is not, with respect, what the trial judge found. His view, as I read it, was that the article had caused the plaintiff harm but he discounted the plaintiff's evidence on the matter because similar harm had been caused by other accusations against her and she had developed a degree of resilience.
52 The respondent's counsel say that imputations (a), (b), (d) and (e), which were found to be indefensible, are exceptionally grave allegations to make about a judicial officer. They say in fact, short of an allegation of actual corruption such as taking a bribe, nothing more serious could be said about such a person. She was accused of knowingly dismissing charges in quite a wrong way. The imputations, it is put, impute a deliberate and systematic improper approach to the task which the respondent had sworn to do without fear or favour.
53 Respondent's counsel say that the seriousness of the imputations and the large circulation of the appellant's newspaper call for damages in the range of $200,000 to $250,000.
54 The appellant says that other articles in newspapers, particularly that on page 1 of The Sydney Morning Herald of 16 December 1999, attack the respondent in a worse way, yet she did not sue and that this should operate as a factor discounting her damages.
55 I find it a little difficult to appreciate how past newspaper denunciation of the respondent can be relevant in view of what this Court said in Chappell v Mirror Newspapers Ltd [1984] Aust Torts Rep 80-691 and would not give any weight to this submission.
56 The fact that it would appear that the respondent was already highly respected by many members of the community and thought to be an unattractive person by others and that opinions do not appear to have changed much as a result of the article is a relevant matter. So, however, was the fact that the article was researched from secondary or weaker sources, was quite inaccurate in significant respects, it endeavoured to draw conclusions either from too sparse evidence or from non-disclosed material and that no apology was offered, tends the other way.
57 I consider that another relevant matter is the fact that at the end of the article it was emphasised in bold print that the author is described as studying for a doctorate of law, which would convey to the average person (though not to a practising lawyer) that she was speaking with some authority.
58 This is a relevant matter to the assessment of damages. As Higgins J said in Costello v Random House Australia Pty Ltd (1999) 137 ACTR 1 at 33 [285] in relation to compensatory damages:
"The court must bear in mind the extent of circulation, the gravity of the imputations, the apparent authority of the publication, its context and the circumstances of aggravation."
59 The respondent is a public figure: she is a local court magistrate. She is entitled to protect her reputation like any other citizen. Some of the cases to which I have referred carry the flavour that it may be wrong to compensate such a public figure for the loss of reputation of the office rather than that of the person who holds the office. However, this point was not argued and I will say no more about it.
60 The respondent points to comparable verdicts. There is still debate as to whether this is permissible (see Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 at 124-5; Carson's case (supra) at 59), or if it is permissible whether it is of any real value; Rogers at 350 per Hayne J. However, in Rogers, Callinan J at 370 and Heydon J at 386 appear to have taken some note of the range from other cases. As I have noted, the doctor in Rogers received $250,000 which the High Court thought was reasonable, even though he was not named. As noted earlier in Crampton v Nugawela, a doctor received $500,000 for defamation which was upheld on appeal. In Konstantinidis v Foreign Media Pty Ltd to which I referred earlier, $200,000 was awarded to a solicitor who was defamed in respect of two radio broadcasts, though that included aggravated damages. This gives some guidance as to the range.
61 I now turn to the question of aggravated damages.
62 The trial judge at [245] said that he awarded compensatory damages and also aggravated damages for the factors he mentioned earlier in his reasons, principally the falsity of the imputations and the appellant's knowledge that they were untrue, the failure of the appellant to apologise and the mode and extent of the publication.
63 No particular detail was given by his Honour as to the weight put on these factors, they were only mentioned as factors taken into account in assessing and ultimately awarding aggravated compensatory damages.
64 In the submissions made recently, counsel for the appellant put at para 13:
"The only evidence of the falsity of the imputations was that given by the respondent in her evidence in chief. The veracity of the respondent's evidence should be considered in light of … "