John Fairfax & Sons Ltd & Anor v Vilo

COUNSEL : Mr W H Nicholas QC/Mr J S Wheelhouse (Appellants) Mr C A Evatt/Mr T Molomby/Mr G Hansen (Respondent) SOLICITORS : Mallesons Stephen Jaques (Appellants) Leitch Hasson & Dent (Respondent) CATCHWORDS : Torts - Defamation - Appeal against decision of jury - Damages - Defence re contextual imputations - Whether quantum of damages manifestly excessive - Whether jury's finding that contextual imputation was untrue was perverse and led to miscarriage of justice justifying re-trial - Defamation Act 1974 (NSW), s 16 - Supreme Court Rules 1970 (NSW), Pt 51 r 23(1) - Torts - Defamation - Appeal against decision and directions of trial judge - Whether statutory and common law defences of qualified privilege made out - Whether publishers' actions were "reasonable" - Whether trial judge should have directed jury to consider range of damages in personal injury verdicts - Whether trial judge should have ordered separate verdicts for the various imputations - Defamation Act 1974 (NSW), ss 9(5), 22(1)(c), 46A(2), 48(b) - Evidence - Relevance - Representations - Form - Discretion - Evidence Act 1995 ss 55, 57, 65 and 135 - D Defamation Act 1974 Evidence Act 1898 LEGISLATION CITED : Evidence Act 1995 Human Rights Act 1998 (UK) Motor Accidents Act 1988 Workers Compensation Act 1987 Browne v Dunn (1893) 6 R 67 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 Coyne v Citizen Finance Ltd (1991) 172 CLR 211 Crampton v Nugawela (1996) 41 NSWLR 176 Holford v Melbourne Tramway and Omnibus Co Ltd [1909] VLR 497 Hughes v Mirror Newspapers Ltd (1985) 3 NSWLR 504 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Midalco Pty Ltd v Rabendt [1989] VR 461 CASES CITED: Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 Plato Films Ltd v Speidel [1961] AC 1090 Reynolds v Times Newspapers Ltd [2001] 2 AC 127; [1999] 3 WLR 1010 Ritz Hotel Ltd v Charles of the Ritz Ltd (Nos 15 and 16) (1988) 14 NSWLR 107 Singleton v Ffrench (1986) 5 NSWLR 425 Singleton v John Fairfax & Sons Ltd (No 1) [1983] 2 NSWLR 722 TCN Channel 9 Pty Ltd v Antoniadis (1998) 44 NSWLR 682 Tobias v Allen (No 2) [1957] VR 21 Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 DECISION : Appeal dismissed. Appellants to pay the respondent's costs of the appeal.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40869/00 SC 17027/83

JOHN FAIRFAX & SONS LTD and DAVID SYME & CO LMITED v ENN VILO

Torts - Defamation - Appeal against decision of jury - Damages - Defence re contextual imputations - Whether quantum of damages manifestly excessive - Whether jury's finding that contextual imputation was untrue was perverse and led to miscarriage of justice justifying re-trial - Defamation Act 1974 (NSW), s 16 - Supreme Court Rules 1970 (NSW), Pt 51 r 23(1) Torts - Defamation - Appeal against decision and directions of trial judge - Whether statutory and common law defences of qualified privilege made out - Whether publishers' actions were "reasonable" - Whether trial judge should have directed jury to consider range of damages in personal injury verdicts - Whether trial judge should have ordered separate verdicts for the various imputations - Defamation Act 1974 (NSW), ss 9(5), 22(1)(c), 46A(2), 48(b)

Evidence - Relevance - Representations - Form - Discretion - Evidence Act 1995 ss 55, 57, 65 and 135

The respondent ("the plaintiff") was one of two executive directors and a principal shareholder of Bishopsgate Insurance Australia Ltd. On 9 August 1983 a provisional liquidator was appointed to Bishopsgate Insurance Australia Ltd. Funds belonging to Bishopsgate Insurance Australia Ltd disappeared. The other executive director and shareholder, Mr Stathopoulos, went missing and was believed to be overseas. The plaintiff left Australia on 5 August and returned on 3 September. John Fairfax & Sons Ltd (the "first defendant") published an article mentioning the plaintiff in the Sun-Herald on 14 August. The first defendant and David Syme & Co Ltd (the "second defendant") jointly published an article mentioning the plaintiff in the Business Review Weekly ("BRW") in an edition dated 13-19 August 1983.

The plaintiff brought a claim for damages against the defendants on the basis that the articles were defamatory. The jury decided that three defamatory imputations were contained within each article, and rejected the defence of substantial truth. The jury accepted the defence of comment in relation to imputations (ii) and (iii) in the Sun-Herald article, but not in relation to any of the BRW imputations. The jury rejected the defence regarding contextual imputations (under s 16 of the Defamation Act 1974 (NSW)) in relation to the four remaining imputations. The jury awarded a total of $520,000 in damages. In relation to the Su- Herald article, the jury awarded $20,000 for imputation (i). In relation to the BRW article the jury awarded $200,000 for imputation (i), $250,000 for imputation (ii), and $50,000 for imputation (iii). The judge rejected the defences of qualified privilege. The defendants appealed.

Held by Heydon JA (Handley JA and Giles JA concurring), dismissing the appeal:

1. None of the appellants' complaints about the trial judge's directions to the jury should be upheld. A heavy burden falls upon a party who complains on appeal that a particular jury direction ought to have been given by the trial judge, when that party was familiar with the tactics of the trial and did not request such a direction at trial. This applies generally where there are no errors in directions about material areas of law. Singleton v Ffrench (1986) 5 NSWLR 425, referred to.

2. The quantum of damages awarded for the BRW imputations was not manifestly excessive. (a) The jury were entitled to presume that the plaintiff had a high reputation, and there was specific evidence of his high reputation. There was direct and indirect evidence capable of being accepted by the jury that the plaintiff's reputation was damaged by the imputations. Crampton v Nugawela (1996) 41 NSWLR 176, applied. (b) The jury were entitled to accept the plaintiff's evidence that his feelings had been gravely injured.

(c) The disparity between damages awarded for imputation (i) in the BRW article and for imputation (i) in the Sun Herald article can be explained by the difference in timing of publication, the difference in content, the difference in readership, and the mitigatory reduction in the damages for the latter because of damages awarded for the former. (d) Any mishandling by the jury of contextual truth issues was irrelevant because these issues were unconnected to the damages issue. (e) It was not shown that the jury failed to give appropriate weight to the plaintiff's delay in prosecuting the case. It was for the jury to decide the relevance of any delay. (f) The judge did not err by failing specifically to direct the jury to consider in mitigation of the awards for the BRW imputations, the amount awarded for the Sun-Herald imputation. In any event, she did direct the jury to ensure that the total sum of damages awarded was appropriate. Section 48(b) of the Defamation Act does not apply, because it relates to proceedings for damages other than those under consideration by the jury. 3. The trial judge did not err in relation to the admission of evidence. (a) It was reasonably open to the trial judge to make a finding that Exhibits A and B were relevant under ss 55 and 57(1)(a) of the Evidence Act . Hughes v Mirror Newspapers Ltd (1985) 3 NSWLR 504, discussed. (b) The trial judge's failure to exclude Exhibits A and B under s 135 of the Evidence Act was not erroneous. Through her directions, the trial judge removed the risk of the evidence being confusing, misleading or prejudicial.

(c) The trial judge did not err by admitting Exhibit H under s 65 of the Evidence Act . Exhibit H impliedly made a representation about the plaintiff's reputation. The Evidence Act does not require "representations" to be in a form that can, over objection, be given as direct oral evidence by their makers if called as witnesses. 4. The trial judge did not err by failing to direct the jury to consider personal injury verdicts.

(a) The trial juge was entitled in her discretion to refuse to direct the jury to consider personal injury verdicts. Coyne v Citizen Finance Ltd (1991) 172 CLR 211 and Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, discussed. (b) (Obiter): Section 46A(2) of the Defamation Act did not codify the pre-existing common law. 5. The trial judge did not err by exercising her discretion to order separate verdicts in relation to each defamatory imputation, under s 9(5) of the Defamation Act . (c) Special circumstances or rare cases are not necessary for the s 9(5)(a) discretion to be exercised. (d) The submission that separate verdicts might lead to artificiality, overlapping and double counting was not put to the trial judge, and any such danger was avoided by the trial judge's directions.

(e) The ordering of separate verdicts was supportable because it minimised the risk of a re-trial being ordered on appeal, considering the many permutations and combinations available to the jury. TCN Channel 9 Pty Ltd v Antoniadis (1998) 44 NSWLR 682, referred to. 6. The trial judge did not err by rejecting the common law defence of qualified privilege. (a) If the House of Lords in Reynolds v Times Newspapers Ltd ; [2001] 2 AC 127; [1999] 3 WLR 1010 extended the traditional law in relation to qualified privilege (as modified in Lange v Australian Broadcasting Commission (1997) 189 CLR 520), that extension is not part of the common law of New South Wales. (f) Information about fleeing company directors is neither governmental nor political. Neither the defendant publishers nor the recipients of the information had a relevant duty or interest in relation to the publication of the information. Lange v Australian Broadcasting Commission (1997) 189 CLR 520, distinguished. 7. The trial judge did not err by rejecting the statutory defence of qualified privilege under s 22 of the Defamation Act . (a) In relation to the Sun-Herald article, the first defendant's conduct regarding the publication of the imputation was not "reasonable". (i) The publication of the imputation that the plaintiff was a fugitive from justice without sufficient knowledge of the factual position was not objectively reasonable. (ii) Checking the accuracy of existing sources and the unproductiveness or impossibility of further factual inquiries does not render an unreasonable publication of an imputation reasonable. 8. Even if the jury's finding that the contextual imputation (about police suspicion) was untrue was perverse, this did not result in a substantial miscarriage of justice that would justify a re-trial under the Supreme Court Rules, Pt 51 rule 23(1). In relation to both articles, even if the jury had found that the contextual imputations were true, it is likely that they would have found that the contextual imputation was not capable of damaging the plaintiff's reputation to such an extent that the imputations did not further injure it. Therefore, it is likely that the jury would have come to the same final conclusion (that no defence regarding contextual imputations existed under s 16 of the Defamation Act). O R D E R S

1. Appeal dismissed.

2. The appellants are to pay the respondent's costs of the appeal.

JOHN FAIRFAX & SONS LIMITED and DAVID SYME & CO LIMITED v ENN VILO

1 HANDLEY JA: I agree for the reasons given at length by Heydon JA that this appeal should be dismissed with costs. 2 GILES JA: I agree with Heydon JA. 3 HEYDON JA: Background

On 22 November 1999, after a sixteen day defamation trial before Simpson J and a jury, the jury returned verdicts for the plaintiff and awarded a total of $520,000 in damages. On 6 October 2000, after receiving lengthy written submissions and hearing oral argument on 1 May 2000, the trial judge rejected defences of qualified privilege. The defendants appeal against the orders made. 4 The first defendant was the publisher of the Sun-Herald, a Sunday newspaper distributed principally in New South Wales, but also in the other States and Territories. The defendants jointly were the publishers of the Business Review Weekly, a weekly journal covering business and financial affairs and distributed nationally. 5 On 9 August 1983 Bishopsgate Insurance Australia Ltd collapsed in the sense that a provisional liquidator was appointed. The plaintiff was a registered medical practitioner. He was also one of two executive directors and a principal shareholder in that company. The other executive director and shareholder was Mr Andrew Stathopoulos, also known as Andy Stathis. When Bishopsgate Insurance Australia Ltd collapsed, Mr Stathopoulos disappeared and was believed to have left the country. Funds belonging to Bishopsgate Insurance Australia Ltd also disappeared. The plaintiff left Australia on 5 August and returned to Australia on 3 September. 6 The defendants published an article in the Business Review Weekly in the edition bearing the date 13-19 August 1983: it was in fact published on the morning of Friday, 12 August 1983. The first defendant published an article in the Sun-Herald on 14 August 1983. 7 On 16 November 1999 the jury decided that each of the articles conveyed three imputations which the plaintiff had pleaded, and decided that each imputation was defamatory. The imputations were as follows: "(i) The Plaintiff was a fugitive from Justice; (ii) The Plaintiff had misappropriated funds from Bishopsgate Insurance Australia, of which he was a Director; (iii) The Plaintiff was party with Andrew Stathopoulos to the misappropriation of some $19 million from Bishopsgate Insurance Australia, of which both of them were Directors." 8 On 22 November 1999 the jury rejected a defence of substantial truth raised under the Defamation Act 1974, s 15(2), in relation to imputations (i) and (ii). No such defence was relied on in relation to imputation (iii). 9 The jury accepted the defence of comment pursuant to Part 3 Division 7 of the Act in relation to imputations (ii) and (iii) in the Sun-Herald article but not in relation to imputation (i) in the Sun-Herald article or any of the imputations in the Business Review Weekly article. 10 The jury rejected the defence relating to contextual imputations under s 16 of the Act pleaded in answer to the four imputations in relation to which the comment defence failed. 11 The jury awarded $20,000 damages in relation to imputation (i) in the Sun-Herald article. In relation to the three imputations in the Business Review Weekly article, it awarded $200,000 for imputation (i), $250,000 for imputation (ii) and $50,000 for imputation (iii). 12 On 6 October 2000 the trial judge rejected the defences of qualified privilege at common law and qualified privilege under s 22 of the Act. 13 The trial was hard-fought. It was understandably complex and difficult for all concerned in it. Each of the two counsel who appeared at the trial also appeared on the appeal, though each was led on the appeal by counsel who had not appeared at the trial, and one appeared with a junior who had not appeared at the trial. 14 Some of the grounds in the Notice of Appeal as filed were abandoned at the start of oral argument. Amendments changing two grounds and adding a further ground were made by consent at the start of the second day of oral argument. It is convenient to take the surviving and added grounds in the order they appear in the Notice of Appeal, save that the grounds relating to contextual imputations are considered last, and the added ground, Ground 21, which complains about the trial judge's decision to admit three exhibits, is considered with other grounds relevant to damages. 15 Before turning to Ground 1, it is to be noted that the defendants made many complaints about the manner in which the trial judge directed the jury. Very few of these complaints were matched by an appropriate application to the trial judge (even though she afforded the parties many opportunities to make submissions about what directions should be given, or what directions should be corrected, before, during and after the summing up). And very few of these complaints were matched by a relevant ground of appeal. The defendants referred to authorities like Holford v Melbourne Tramway and Omnibus Co Ltd [1909] VLR 497 and Midalco Pty Ltd v Rabendt [1989] VR 461, in which there are statements to the effect that a new trial may be granted because of an erroneous direction even though no redirection had been sought. In general, except where there are errors in giving directions about material questions of law, a failure by those who appeared at a trial for a particular party and who were fully familiar with the tactical environment and atmosphere of that trial to seek a particular direction before, during or at the end of the summing up on matters other than matters of substantive law places a heavy burden on that party if it complains on appeal that that direction should have been given. See Singleton v Ffrench (1986) 5 NSWLR 425 at 440 per Samuels JA. None of the complaints made on appeal about directions not sought at the trial or referred to in the Notice of Appeal fell outside that general category. As will be seen, none of the complaints should be upheld.

Ground 1: Damages Manifestly Excessive 16 This ground was: "The jury's determination of the amount of damages to be awarded in respect of the BRW imputations, either taken individually or collectively, was manifestly excessive." 17 The defendants submitted that the excessiveness arose at least in part because of the errors complained of in Grounds 2-6 and 21. However, Ground 1 is capable of standing by itself even if Grounds 2-6 and 21 had not been advanced. It is therefore appropriate to consider it by itself, before proceeding to Ground 21, Grounds 2-4 and Grounds 5-6.

The defendants' submissions 18 The defendants submitted that the awards of $200,000, $250,000 and $50,000 for imputations (i)-(iii) in the Business Review Weekly were "manifestly excessive when the purpose of the award was compensatory" and "outside the range of any reasonable award that might have been made to compensate the [plaintiff] for injury to his reputation and feelings". 19 The defendants opened by making two uncontroversial points. First, they pointed out that the damages had to be considered in the light of the fact that they were entirely compensatory. The plaintiff said on the second day of the trial that he was "not running a special damages claim or general economic loss claim". There was no claim for aggravated damages, other than for the plaintiff's "increased upset due to his knowledge [that] the imputations are false". Secondly, the defendants pointed out that s 46(2) of the Act limited the damages recoverable to damages for "relevant harm", i.e. harm suffered by the plaintiff. 20 The defendants then submitted that the amount awarded should not be the product of speculation or impression, but should be based on evidence which proved that the publication had in fact caused harm to the plaintiff's reputation and hurt to his feelings. 21 The defendants pointed out that the circulation of the Sun-Herald in New South Wales was 593,907, with an estimated readership of 1,942,000. The defendants did not identify evidence of the circulation of the Business Review Weekly, or its New South Wales readership, but there was evidence that its national readership was approximately 186,000. The defendants contrasted the award of $20,000 for imputation (i) in the Sun-Herald with the award of $200,000 for imputation (i) in the Business Review Weekly. 22 The defendants then submitted that the soundness of the awards had to be judged against the particular evidence capable of supporting them. They submitted that that evidence was scanty. They summarised it thus: "The Respondent gave evidence of hurt to feelings and subjective reaction to the publications. He did not distinguish between the publications to prove that one was the cause of greater or less damage than the other. The only evidence for the Respondent from readers affected by the publication was that of Mr Hasson and Mr Sheringham. Each referred to his reaction upon reading The Sun-Herald. Neither said he had read BRW. There was no evidence as to actual harm to reputation caused by the publication of BRW. There was no evidence which proved that the damaging effect caused by the publication of one imputation was different to that caused by another. There was thus no rational basis for separate assessments with regard to the relevant harm suffered by the respondent by the publication of each imputation." 23 The defendants submitted that the jury's answers to questions about contextual truth and comment indicated that the jury's reasoning generally was unsafe and unsound, and thus its reasoning on damages was unsafe and unsound. The defendants in fact abandoned the grounds of appeal relating to comment and did not repeat the written submissions relating to comment in support of Ground 1. The defendants submitted that the jury finding that the defendants had not established the substantial truth of the contextual imputations was perverse, for reasons to be examined when Grounds 11 and 12 are considered. In essence those grounds were that the jury's conclusion involved the rejection of the evidence of two police officers, Detective Sergeant Whittaker and Detective Constable Morgan, as they were in 1983, and the inferences to be drawn from an exhibit, in circumstances where the police officers had not been cross-examined to suggest that their evidence was false, where the plaintiff accepted the correctness of their evidence in final address, and where there was no rational basis to reject their evidence. 24 The defendants also submitted that the amount of the award of damages indicated the failure of the jury to give any, or any adequate, weight to the plaintiff's delay in prosecuting the action. The proceedings were commenced in November 1983 and did not come on for trial until November 1999. According to the defendants, the substantial portion of the delay was directly attributable to the plaintiff. 25 The defendants submitted that the jury awards were erroneously inflated by the inclusion of a component for punishment of the defendants. 26 The defendants submitted that the jury apparently failed to take into account in mitigation of the awards for the Business Review Weekly imputations the award of $20,000 made for the Sun-Herald imputation. 27 The defendants submitted: "The jury did not make an award of damages that bore a rational relationship to the harm suffered in the context of statutory awards for non-economic loss. The most severe case of motor vehicle personal injury is entitled to a sum of approximately half the amount awarded by the jury to the [plaintiff] to compensate him for the injury caused by the publication of the second matter complained of." 28 The defendants submitted that the admission into evidence of certain Exhibits, namely Exhibit A, Exhibit B and Exhibit H, caused the jury erroneously to take into account economic loss as a component of compensation. 29 Finally, the defendants submitted that the amount of the award for each imputation led to the conclusion that the jury had failed to consider an amount appropriate as total compensation for the harm done by the publication taken as a whole. The sum of the parts exceeded relevant compensation for the relevant harm suffered by the plaintiff. 30 The defendants carefully avoided any direct denial of the seriousness of the imputations. Indeed throughout their long written and oral submissions they showed considerable skill in keeping attention engaged on other subjects: they sensibly favoured a variety of indirect approaches over frontal assault. These tactics were sound, because it is beyond argument that the imputations were very grave.

The plaintiff's submissions 31 The first major submission of the plaintiff was that the disparity between the $20,000 awarded for imputation (i) in the Sun-Herald and the $200,000 for imputation (i) in the Business Review Weekly was rationally explicable on several bases. 32 First, the plaintiff was referred to in only two non-prominent parts of the Sun-Herald article: "His fellow director, Dr Enn Vilo, a medical practitioner and race horse owner, is also missing. The Fraud Squad has also asked Interpol to look out for Vilo."

On the other hand, a substantial part of the Business Review Weekly article was devoted to the plaintiff. The language employed in the Business Review Weekly was much more openly condemnatory of him, and was likely to destroy his credibility, particularly in business, completely. After a heading "$19 million is missing and the insurance and property industry are in shock", the first sentence called him "one of the two $19 million bolters from Bishopsgate Insurance Australia Ltd". The first sentence also said that the company's office "looked like it had just been done over by the Beagle Boys". It said that the plaintiff "had fled the country" in its first column. 33 Secondly, the Sun-Herald is directed to a family audience and is read by a large cross-section of the population. On the other hand, the Business Review Weekly, though its readership was much less than that of the Sun-Herald, had quite a large readership, and was read by most of the managers with whom the plaintiff had dealt or was dealing with in business in relation to occupational health, such as Alcan, Myers and Commonwealth Industrial Gases. It was circulated within their companies. Further, the Business Review Weekly circulated in real estate circles, and the plaintiff was a small developer of real estate. The Business Review Weekly was read by intelligent persons involved in business activities generally. 34 Thirdly, it was a reasonable inference that the jury might have thought that imputation (i) in the Sun-Herald article by itself justified a higher award than $20,000, but that they followed the trial judge's instructions and reduced it to $20,000 by reason of their award for the Business Review Weekly article. 35 Finally, the Business Review Weekly article was not only published on 12 August 1983, before the Sun-Herald article on 14 August 1983, but it was only the second of a group of articles tendered in evidence about the Bishopsgate collapse, and it was the first which was critical of the plaintiff. The first article tendered was in The Australian on 11 August 1983. It mentioned the plaintiff, but only in stating the neutral fact that he was a non-executive director. The Business Review Weekly article on 12 August 1983 was followed by an article in the Sydney Morning Herald on 13 August 1983: it was largely devoted to Mr Stathopoulos or to the company, and said of the plaintiff only the following: "The fraud squad has also asked Interpol to look out for the collapsed company's other executive director, the Sydney doctor and race horse owner, Dr Enn Vilo. It was thought Dr Vilo was staying in Hong Kong, but now Sydney detectives are unsure of his whereabouts. Detectives visited Dr Vilo's Vaucluse home yesterday and interviewed his wife. Mrs Vilo said on Monday that her husband was staying in the Hong Kong Regent Hotel, and that she would shortly be going there to join him. A spokesman from the Regent Hotel in Hong Kong said last night he could find no record of Dr Vilo on the booking list. Last night, Mrs Vilo would not comment on her husband's whereabouts."

Then there came a long article in the National Times on 19 August 1983. That was largely about Mr Stathopoulos; it contained eleven passing references to the plaintiff, but only in relation to events long pre-dating the collapse. On 19 August 1983 an article appeared in The Australian : it mentioned the plaintiff only once, as part of the report of what the Supreme Court of Victoria was told. On 20 August 1983 an article appeared in The Australian : it mentioned the plaintiff only three times. 36 The plaintiff's second major submission turned on the evidence which the plaintiff had given about the Business Review Weekly article. From that evidence, it was open to the jury to infer that the article had had the following consequences: "The [plaintiff] suffered the hurt and humiliation of having the specialist medical work in which he had invested his efforts for the previous 15 years taken away from him. His major contracts were cancelled. He stopped receiving the approaches for work which he used to receive …. Thirty to forty patients withdrew their records from his general practice, local real estate agents asked him if he was going to put his house on the market, he was abused in front of his surgery by passers by, other parents avoided him at his children's weekly sporting activities, he gave up swimming at the top North Bondi Surf Club, which he had attended regularly for about ten years, he ceased playing regular cricket, which he had done since the age of 12, he withdrew from socialising generally and became withdrawn and hypersensitive."

While the plaintiff was not claiming damages for economic loss, the jury were entitled to include an amount for the plaintiff's distress at the termination of his major industrial contracts with Alcan Australia Ltd and Lincoln Electric Co (Australia) Pty Ltd if they thought the Business Review Weekly article had caused it. The jury were entitled to infer that the reason why the plaintiff had been shunned, avoided and abused was the Business Review Weekly article, even though there was no direct evidence from the persons who had procured the cancellation of the plaintiff's major contracts that they did so because of the Business Review Weekly article. 37 Thirdly, the plaintiff drew attention to Crampton v Nugawela (1996) 41 NSWLR 176 at 194D, where Mahoney ACJ said that $500,000 as an award for damage to the reputation of a professional man was not "beyond the range of a sound and sensible jury". The plaintiff also drew attention to 197B, where Handley JA expressed agreement with Mahoney ACJ. In reply the defendants pointed out that the actual award in that case (which was higher than the award in this) was probably influenced by the jury's perception of the defendant's malice and contained a significant component for special damages in consequence of probable economic loss, but neither of those circumstances affect the observations just referred to. 38 Fourthly, the plaintiff pointed out that not only was he entitled to recover damages for loss of reputation and for hurt feelings, but he was entitled to recover a figure which would vindicate his reputation against the potential future emergence of the imputations from some place where they had lurked underground: Crampton v Nugawela (1996) 41 NSWLR 176 at 193-195. The plaintiff gave evidence which the jury could accept that the Business Review Weekly "was still circulating somewhere around" even weeks after his return from overseas on 3 September 1983. 39 Fifthly, the plaintiff submitted that imputation (i) was a serious imputation, justifying a high award. He submitted that the relatively low figure of $50,000 for imputation (iii) in the Business Review Weekly (or the relatively high figure of $250,000 for imputation (ii)) could be explained on the basis that, while those imputations were distinct, they overlapped, and that the jury had allowed for the overlap by discounting the figure for imputation (iii) because of what they had already awarded for imputation (ii). To misappropriate funds (which the headline identified as amounting to $19 million) is to be guilty of a crime as principal: to be party to the misappropriation of $19 million is to be guilty of a crime, but not necessarily as the principal, potentially only as a secondary party. It was possible that the jury took the legitimate course (which, in another part of their arguments, the defendants said it should have been directed to do) of arriving at a total figure for the Business Review Weekly imputations, and then apportioning the total over the three imputations. The plaintiff submitted that the apportionment was not irrational, and the overall figure of $0.5 million was moderate. He submitted that to have imputations of the extremely serious kind found by the jury circulated to persons who knew of and had business dealings with him would be ruinous to him, to any other professional, and indeed to any person. Alternatively, even if the figure was not thought to be moderate, it was not so excessive that an appellate court should intervene.

The plaintiff's evidence 40 In assessing these arguments it is convenient to summarise parts of the plaintiff's evidence which it was open to the jury to accept. 41 The plaintiff came to Australia from Estonia in 1949 at the age of seven with his family. He received secondary education at North Sydney Technical Boys High School, finishing in 1959. In 1966 he graduated in medicine from the University of Sydney. He worked in Canberra Hospital for two years as a junior and senior medical officer. He then commenced a career in occupational and industrial medicine in Sydney and Newcastle. For six years he worked in partnership with a Dr Croll, each visiting ten or twelve companies per day and examining employees to see if they had any illnesses. After 1975 his association with Dr Croll ceased, and he began to service companies in a more intense manner. In particular, he established a medical centre at Granville to service Alcan. He would arrive early in the morning as the night shift was leaving. He would see employees finishing the night shift and those commencing the morning shift. He would carry out full examinations on persons starting at Alcan. He would review the condition of those off work because of injury. He would inspect the factory. He also serviced three other Alcan factories and the Alcan head office. From 1978 he brought in Dr Brasier as his partner. They also serviced at various times Coles-Myer, Commonwealth Industrial Gases, Borg Warner, Tubemakers, Cottees General Foods and Lincoln Electrics. He contracted with these companies through a corporate vehicle, Industricare Pty Ltd. By 1982 the companies he and Dr Brasier were servicing were Alcan and Lincoln Electrics. 42 By 1982 the plaintiff had also become involved in small scale real estate development. Through that activity he met Mr Stathopoulos. Early the following year they acquired Bishopsgate, an insurance company which had experienced a history of losses. 43 In 1983 the plaintiff decided to go overseas, with the intention of visiting his brother in Estonia, who had recently been released from a gulag, and whom his mother was planning to stay with just before the arrival of the plaintiff. The plaintiff intended also to attend to some business commitments in Hong Kong, South Africa, London and Canada with persons he knew in each place, which he had visited before. Originally he planned to leave on 8 August 1983, but changed his booking to 5 August 1983 because of difficulties in booking hotel accommodation in Hong Kong. On 4 August 1983 he rang his partner Dr Brasier, who was having a skiing holiday, to inform him about the change of plans. He left on 5 August 1983 having no knowledge that anything was wrong with Bishopsgate, that Mr Stathopoulos was about to leave the country or that he had misappropriated any funds of Bishopsgate. The plaintiff then gave evidence about his journeys which it is not necessary to describe but which relates to Grounds 11 and 12. 44 The plaintiff returned to Australia on Saturday 3 September 1983. He met Dr Brasier after Monday morning surgery on 5 September 1983. Dr Brasier told him that Alcan and Lincoln Electrics had terminated their contracts with Industricare Pty Ltd through which the plaintiff's medical services to them had been provided, and that those corporations had offered new contracts to Dr Brasier. Dr Brasier gave him a document revealing that Alcan had indeed terminated its arrangements with Industricare Pty Ltd on 22 August 1983, and had entered an agreement the next day with Dr Brasier to provide those services. The plaintiff later had a telephone call from Mr Stuart of Alcan confirming that Industricare Pty Ltd's services were terminated. He also received a letter from Alcan to that effect, since lost. Dr Cook of Lincoln Electrics also called the plaintiff, apparently on 12 September 1983, and sent him a letter of 13 September 1983 indicating that Industricare Pty Ltd's contract with the Lincoln Electrics was cancelled with effect from 30 September 1983. 45 The plaintiff first saw the Business Review Weekly article two or three days after he returned to Australia on 3 September 1983. After receiving comments from his patients about some "articles", his attention was drawn to the Business Review Weekly article by his solicitor. He realised that this explained the comments of his patients, and became "angry and furious". He then spent three or four days perusing the back issues of newspapers at the New South Wales newspaper archives. He said "The only article that resembled the one that caused me so much mental anguish was the one in the Sun-Herald." He said it "really infuriated" him. This reaction was in part because of the fact that the articles connected him with all of Mr Stathopoulos' activities, including a history of illicit drug dealing, of which the plaintiff knew nothing. The plaintiff described his mental state in the ensuing days thus: "as the facts and the material that I read sunk in, I realised that I had left Australia on a trip and I came back as a suspected criminal involved in drugs, fraud by association and I became, over a period of days, furious, frustrated. I suppose you can use every word in the thesaurus to cover frustration, anger, irritability, being withdrawn. The English language does not describe it. I was just infuriated. That is all I can say. I mean, I had no outlook, there was no-one I could talk to. I could not give my side of the story and I was locked in a maze. I expected to be arrested for whatever these articles referred to, I anticipated having been issued with a search warrant so the withdrawal, I could not sort of go out and associate with people any more, because most people seemed to be aware of these articles and drew their own conclusions, whether I said anything or not and I preferred not to, to be subjected to what I considered humiliating articles." 46 A succession of unpleasant events then took place.

(a) Thirty or forty patients rang his surgery, spoke to him or his secretary, and removed their records over a period of six to eight weeks. This had only happened before at the rate of two or three times a year when patients moved from the area of his medical practice to a new area.

(b) The plaintiff received calls from local real estate agents for two or three weeks asking if he was going to put his house on the market. In the five years he had lived in the house he had only received calls like that "on invitation".

(c) In the first few days after his return he was abused in front of his surgery by passers-by in words to the effect: "What have you done to the poor innocent people? They were insured by Bishopsgate, you are a scoundrel."

(d) When he took his children, aged ten, eleven and twelve, to sporting events in which they played on Saturdays, as he habitually did, other parents whom he had known for years either became more reticent with him or walked to the other side of the field, "which was a bit disconcerting after knowing them for so many years".

(e) For ten years it had been his practice early every morning to attend the North Bondi Surf Club to jog, swim and take a sauna. In the first week after his return to Australia some of the twenty or thirty regulars who exercised with him said: "What did you do with the money? We're surprised that you came back. Have you been speaking to Stathis?"

As a result he ceased attending the North Bondi Surf Club.

(f) For about the previous five years he had been a member of the Icebergs, a club at the south end of Bondi the members of which swam in winter and played cricket in summer. Many members of the North Bondi Surf Club were also members of the Icebergs, and in consequence he stopped going to the Icebergs and stopped playing cricket, a game he had played from the age of twelve.

(g) He terminated his practice of attending annual secondary school reunions and decennial medical student reunions.

(h) He ceased his practices of meeting every Friday night at the Royal Oak Hotel with persons from all walks of life and of dining at Double Bay restaurants on Saturday with his family.

(i) After queries from his Estonian friends, he reduced his weekly visits on Sunday to the Estonian Club and his monthly meetings with Estonian university graduates. 47 Evidence relevant to the plaintiff's reputation before the Sun-Herald article and after it was given by two witnesses whom the jury was entitled to accept. 48 The first was Mr Hasson. He was a management consultant. He knew the plaintiff through the game of cricket in the late 1970's. On occasions he played against the plaintiff, but for one season he played in the same team, meeting once or twice a week for twenty weeks. He understood that the plaintiff was a doctor. He said that the plaintiff's reputation was that he "was always a quiet guy, … reliable, very likeable and just a good bloke to have in the team". Mr Hasson left Sydney in 1978. He said that after reading the Sun-Herald article: "I was surprised and I suppose disappointed … . Certainly my opinion of him as a result of reading that was that things I had thought about him in the past had changed dramatically to the extent where I, well I certainly wasn't impressed."

He was asked: "Q. Did your opinion of him change for the better or for the worst as a result of reading the article? A. For the worst. Q. As a result of reading the article, would you have gone out of your way to meet him again? A. No." 49 The second reputation witness was Mr Sheringham. He was an employee of Alcan working in the smelter. He wanted to leave because he had developed bad dermatitis and eczema. He was sent to be examined by the plaintiff. If he left without working out a week's notice, he would have forfeited his first week's pay which the employer had retained. He said of the plaintiff: "He had an excellent reputation, which is why the foreman told me to go and see him. 'He's a good bloke and an excellent doctor; (a) he can fix you up and (b) he is a sufficiently compassionate person, if anybody can get you out of here without working the week's notice, it will be him'."

He was shown the Sun-Herald article and asked: "Q. And as a result of reading that article, was there any change in your opinion about Enn Vilo? A. At the time yes, I was disgusted. I thought it was a terrible thing that a physician who had so much to offer the community, could sell himself out for a fast buck."

It is not unreasonable to infer that others, who had read the Business Review Weekly and not the Sun-Herald , would have had similar reactions. 50 The plaintiff was asked the following questions about the Business Review Weekly article: "Q. What it says about you there, was there anything about that, that you had some particular reflection on? You see it says you had 'fled the company, Interpol was trying to check.' A. The word 'fled' was very perturbing, because I could not understand what this 'fled' was referring to. I had a wife, my children went to school here, everyone was here, my house was half finished, that was still being renovated. I have organised my business so that my absence was covered, I had matters that I had to come back to. I think if memory serves me correct, I had two subpoenas that I had to attend to worker's compensation matters. I mean, I could not understand if reporters write this, they must see someone that is obviously not fleeing. I mean, how could you flee under these circumstances and leave everything under control? To me, if somebody flees, they pack up their bags and that's it, gone. They don't organise their life and leave everything, suddenly in abeyance and disappear. It was bizarre. Q. Moving on through the article, are there any other -- A. Oh the Estonian thing, because it sort of highlighted, there seems to be, to my reading 'Estonian' may be of some significance. I'm a naturalised Australian, I've lived here since 1949, I was seven when I arrived here, but all of a sudden I'm an Estonian again. It seems to make us two types of citizens, the ones born overseas and come here are still called by the country of their birth if the press find it highly attractive to put it in the paper and it was an offence to the Estonian community. I mean, there was no necessity to say I'm Estonian. This exclusive 'Woollahra', I mean, my practice was like a little dog box on a corner. It was behind a roller blade shop and next to a firm that did concrete constructions. I had two windows in the middle opposite a hotel. I mean, the suburb in its areas may have been exclusive, but my bolt holt was just, that was it, it was a bolt hole. It was just an ordinary, unpretentious surgery . … Q. Any other features of the article that struck you? A. The racehorse ownership I think was a bit over the top. I mean, I had a racehorse, but this 'racehorse owner', I mean, it could have said I was a greyhound owner, which I once had a greyhound. The whole article, when you boil down to it, is offensive from beginning to end. I mean, once you start putting bits and pieces into an article, it is very difficult to highlight and bring things out that blend into the matrix of the background. I have just highlighted a few things, but the 'Beagle Boys', as far as I can remember, they were one of the Micky Mouse robberies; 'Bears' I think they were with black masks on and loot bags over their shoulders. I thought if this is reporting accurately, there is something rather bizarre with the system that can allow this to be disseminated without any controls. We can go and pick bits and pieces out of it, but the whole thing is just, I group the whole thing as totally out of order. Q. To you, what was that article saying about you? A. That I was involved in illegal behaviour, fraud, deceit, my personality and my reputation as such were just destroyed in this article. Q. I'm asking you now what, as you understood it, the article was saying about you to other people. That is what I'm asking? A. I was a rogue, a person of dubious character that fled a country, most likely somehow involved in the stealing of $19 million, that's it."

The jury were entitled to regard these reactions as reasonable. The plaintiff gave similar but briefer evidence about the Sun-Herald article which it is not necessary to refer to in view of the fact that the defendants do not challenge the quantum of damages awarded for it. 51 The plaintiff gave the following evidence in chief about the termination of the contracts with Alcan and Lincoln Electrics: "Q. Coming back to things that happened after your return to Australia, you have given evidence about the termination of the contracts with Alcan and Lincoln Electrics? A. Yes. Q. At that time did you have any other contracts in the occupational health industrial medicine area? A. No. Q. Had you had any approaches over the previous years from people to take up that sort of work for them? A. Yes. Q. With what sort of frequency? A. Well, in medicine we are not allowed to tout. In other words, we cannot advertise for business, it has to come from a referral, it's usually personnel managers recognise you, or one of the executives of a firm that is asked whether I would be available to work for somebody else. There always had to be a middle man to introduce me to a different company and generally there would be three or four queries a year. Some were just not suitable. I tended to be very keen on companies that were prepared to expend money into a health centre, rather than just have a token doctor coming and going for appearance sake who did very well and many companies made the approaches purely and simply to keep it's unions happy without too much financial input. Thirty per cent were of that nature, the rest were interesting propositions, some I took up, some I did not. Q. Now, over what period of years had you had approaches of that nature? A. Fifteen. Q. After you returned to Australia in September 1983, did you have any approaches of that nature? A. No. Q. I want to ask you about the effect on you in the latter part of 1983, after you returned to Australia, of the loss of those two contracts with Alcan and Lincoln Electrics, understand? A. Yes. Q. Firstly, if we could look at it under the, if you like under the label of what it meant professionally, how did you see things professionally after you lost those contracts? A. Having been involved, especially with Alcan for so many years and the nature of the termination in the middle of this publicity and being aware of the fact that throughout the company structures in New South Wales and Victoria, the major cities there is a networking process that is never ending between various stratas of management and they interlock as management levels go up and it was like a domino effect. If one starts, the ripples go right through, so I was under the impression that the Alcan matter especially, Lincoln not to that same degree, had probably caused me irreparable damage in the occupational field, that for 20 years I had been efficient, this was my career, the career in medicine I selected and I was very, very worried that this was the end of it, and the fact that the Business Review Weekly was still circulating somewhere around, I became paranoid to the extent that I thought everyone was aware in the business community what the articles were, that they were open-ended, nobody knew what to do, the best thing to do, 'Let's just keep away from him, wait and see what happens'. Q. And emotionally, did you have some impact from this emotionally? A. I became withdrawn, I mentioned this before, I became hypercritical, I analysed everything, I was hypersensitive, I was, I had this feeling that I'm heading for ruin somewhere. It was a terrible position to be put into. I started thinking economically what this all meant to me. I realised that because of what had happened, that a certain significant part of my income was no longer helping me to survive. Q. In terms of looking to the future, at that time, placing yourself in say September, October 1983 and looking ahead, did you have any sort of apprehension about the economic future? A. Well I did, but I took a bit of an optimistic view in a sense that I realised that as sad as it was at that time that my occupational health career was almost terminal, I, the only option I had was to, in the short to medium term, to sell some of the assets. Q. I don't want to talk so much about your detailed financial circumstances and what you did, if you understand, I want to ask about your own, I used the word 'apprehensions', but your state of mind as to what the financial future might hold for you, as you saw it, putting yourself around in that last part of 1983, after the dust had settled a bit and you had had your, if you like, your final reflection on these articles and so on and the degree of the feedback you have spoken about from people, just how did you feel about the future? A. Grim, grim. I, it was just a day to day proposition. I had no knowledge of what I was going to do. I knew I worked at the surgery, which I did everything to build up, but the rest of it was just living from day to day."

The jury were entitled to accept this evidence. If they did, they were also entitled to consider that the plaintiff had not been guilty of an over-reaction.

The submissions considered 52 In Crampton v Nugawela (1996) 41 NSWLR 176 at 193 Mahoney ACJ said: "In some cases, a person's reputation is, in a relevant sense, his whole life. The reputation of a clerk for financial honesty and of a solicitor for integrity are illustrations of this. The reputation of a doctor is, I think, of this character: at least, it is so where a substantial part of his work is in an area where he acts on reference from or with the recommendation of other doctors. If Dr Crampton's allegations were true, Dr Nugawela would have no future in informatics or in any matter related to his dealings with other doctors. What he could do as a general practitioner in his relations with his patients might well be affected His relations with consultants or with hospitals to which he might wish to send his patients might well be seen to be affected. In this regard it is relevant that, as the plaintiff said, Dr Crampton did not ever apologise to him. This, he said, 'makes me angry because it's a continuing endorsement of his original comments'. And there was, he said, no apology from the College in respect of the letter. In addition to the positive evidence in this regard, the jury might, in my opinion, have inferred that in a professional grouping such as medicine, allegations made formally suggesting lying and untrustworthiness of a known member of the profession would receive significant coverage. It is a matter in which, gossip apart, professional colleagues have an interest: the trustworthiness, actual or reputed of a professional colleague is a matter of a legitimate and ongoing interest." 53 Those words have application to the plaintiff in this case. On the evening of 11 August 1983, after half a lifetime of effort and the development of an outstandingly successful career, the plaintiff can be presumed to have had a high professional, business and personal reputation. Indeed, the matter goes beyond presumption. There was specific evidence of his professional reputation from Mr Sheringham. There was specific evidence of his personal reputation from Mr Hasson. He could not have enjoyed the successful career he had without its progress being assisted by a high professional, business and personal reputation, and without its success in turn enhancing that reputation. By the time the Business Review Weekly article had been published and circulated on and after 12 August 1983, he was a ruined man. The three imputations were unquestionably grave. The plaintiff's general reputation for honesty among doctors must have been seriously damaged. His general reputation for honesty among businesses who had enjoyed his services in occupational health, or were enjoying them, or might in future seek to enjoy them, was very likely to have been damaged. His reputation among patients apart from the employees of Alcan and Lincoln Electrics was lowered. His reputation among private patients was reduced. His reputation amongst the circle in which he moved was adversely affected. Indeed, there was specific evidence - emanating from the plaintiff, but capable of being accepted by the jury - of the collapse of the plaintiff's reputation among his circle and among his patients, and the independent evidence of Mr Hasson and Mr Sheringham respectively illustrated this. The jury could legitimately conclude as a matter of practical circumstantial inference well within their province that the termination of the Alcan and Lincoln Electrics contracts was because of the Business Review Weekly article even though no witness said this was so. Indeed it would have been surprising if those contracts had not been terminated, at least in the absence of a detailed explanation from the plaintiff justifying his position. Neither Alcan nor Lincoln Electrics appeared interested in hearing any such explanation or even in giving the plaintiff an opportunity for one to be supplied. Further, the jury were entitled to accept the plaintiff's evidence that his feelings had been very gravely injured. 54 These considerations, with which the defendants' submissions did not directly grapple, suggest that the total figure of $0.5 million was not appellably excessive. The arguments of the plaintiff to this Court afford rational explanations for how the particular components of that total figure could have been arrived at. Different minds might have arrived at different figures, including figures bearing a different proportion from those actually awarded, as is inevitable when an imprecise process such as assessing general damages in defamation proceedings is embarked on. But neither the total of $0.5 million nor each of the individual awards considered separately either suggests by itself some error in the process which led to it or indicates excessiveness on its face. 55 It was a central part of the defendants' submissions that the absence of evidence called by the plaintiff as to the specific impact of the imputations meant that the jury had no rational bases on which they could have arrived at each of the elements of the verdict complained of or at the total verdict of $0.5 million. However, the state of the evidence is not a bar to the plaintiff's defence of the outcome at trial. The three imputations were published in one article. It might well be difficult either for the plaintiff or for any other person to separate out the impact of each imputation compared to the other two imputations, particularly since they were overlapping. The jury were entitled to attempt to assess the inherent seriousness of each imputation even though there was no evidence from any witness other than the plaintiff about the Business Review Weekly article. The plaintiff did isolate imputation (i), that he was a fugitive from justice, when he gave evidence, set out above, that he found the word "fled" very perturbing for the reasons he described. However, the central premise of the defendants' argument lacked support. The defendants cited no authority for the proposition that large awards are not available for separate imputations even though there is no or little evidence specifically linking the reactions of the plaintiff or other witnesses with each particular imputation considered separately. Indeed the defendants cited no authority even for the proposition that there had to be specific evidence linking the imputations in a publication as a whole with the alleged harm to the plaintiff's reputation and feelings. Their failure to do so is not surprising. 56 The defendants' submissions which fasten on the disparity between the award of $20,000 for imputation (i) in the Sun-Herald and $200,000 for imputation (i) in the Business Review Weekly are unsound for the reasons advanced by the plaintiff. The Business Review Weekly article was the first one critical of the plaintiff. The Sun-Herald was later, much briefer, and much milder. The Business Review Weekly was directed to classes of person whose esteem the plaintiff depended on, and even though the plaintiff did not seek special damages, he was entitled to recover for injury to his reputation within that class and for injury to feelings resulting from the loss of that reputation. If anything the Sun-Herald award shows that the jury took the Business Review Weekly award on imputation (i) into account and reduced the Sun-Herald imputation (i) award accordingly. That last factor also means that the defendants' submission that the jury apparently failed to take into account in mitigation of the awards for the Business Review Weekly imputations the award of $20,000 for imputation (i) in the Sun-Herald must fail. In any event, if that was their only error, it would be an error affecting a relatively miniscule part of the total award. 57 The defendants' submission that the jury's answers to questions about contextual truth reveal that its reasoning on damages was unsafe and unsound must be rejected. There is nothing explicit in the trial record pointing to any such connection. For reasons given in relation to Grounds 11 and 12, the contextual truth issues were difficult, in both a legal and a practical sense. But whether the jury or any other participant in the trial mishandled them is beside the point, because they were wholly severable from and unconnected with the damages issues. The rather distracted and perfunctory manner in which the parties dealt with them indicates that they were treated as a complete sideshow, having no significant relationship to the damages part of the case at all. 58 The defendants' submission that the award revealed that the jury had failed to give any or any adequate weight to delay in prosecuting the case is baseless. The jury heard the plaintiff cross-examined on this subject. He gave various explanations for delay, including difficulties resulting from changes of solicitor. The trial judge directed the jury about delay. There is no reason to suppose that the jury failed to give delay whatever weight they thought proper. In particular, it was for the jury to decide whether the delay revealed that in truth the plaintiff was not greatly troubled about any injury to reputation or feelings caused by the imputations. Nothing suggests that they failed to carry out that part of their task properly. 59 The defendants' submission that the jury awards were erroneously inflated by a punitive element is also baseless. The trial judge directed the jury not to do that. There is no reason to suppose that they disobeyed. 60 The defendants' submission that the jury awards bore no rational relationship to the harm suffered on the ground that the most severe case of motor vehicle personal injury is entitled to a sum of approximately half the amount awarded by the jury to the plaintiff to compensate him for the injury caused by publication of the Business Review Weekly article must fail. That is not an appropriate comparison to make, because, as explained in relation to Grounds 2-4, awards of general damages to plaintiffs not subject to statutory capping can be much higher. Those awards are not appellably disproportionate to the figures at which the jury arrived for the plaintiff. 61 Finally, it is necessary to deal with the defendants' submission that the admission into evidence of Exhibits A, B and H misled the jury into thinking that they could take into account economic loss as a component of compensation. This submission was advanced separately from the defendants' challenge to the trial judge's decision to admit these Exhibits, which was propounded in Ground 21.1-.3 and is considered next. Exhibit A is the document apparently emanating from Alcan which Dr Brasier showed the plaintiff on 5 September 1983 revealing that Alcan had terminated its contract with the plaintiff on 22 August 1983. Exhibit B is the letter of 13 September 1983 from Lincoln Electrics terminating its contract with Industricare Pty Ltd. Exhibit H is a document dated 19 October 1983 signed by Mr E R Green, who had dealings with the plaintiff during the currency of the Alcan contract, speaking highly of the plaintiff's performance. The defendants' submission was that the amount of the verdict indicated that the jury ignored the direction which the trial judge gave them to put out of mind any financial loss being incurred as a result of the loss of those two contracts. However, there is simply no basis for concluding that the jury did ignore that direction or that Exhibits A, B and H misled them into doing so. 62 The defendants submitted that the trial judge erred in failing to give any directions to the jury as to the need for them to take into account in mitigation of the awards for the Business Review Weekly imputations the award of $20,000 made for the Sun-Herald imputation. This criticism was said to rest on s 48 of the Act which provides: "In proceedings for damages for defamation in respect of the publication of any matter, evidence is admissible on behalf of the defendant, in mitigation of damages, that the plaintiff: (a) has already recovered damages, (b) has brought proceedings for damages, or (c) has received or agreed to receive compensation, for defamation in respect of any other publication of matter to the same purport or effect as the matter complained of in the proceedings."

However, s 48 does not apply. The case is obviously outside paragraphs (a) and (c). It is also outside paragraph (b), because paragraph (b) refers to proceedings for damages other than those under consideration by the jury. Even if paragraph (b) did apply, it was plainly apparent to the jury while they were considering the Business Review Weekly imputations that the plaintiff had also brought proceedings for damages in relation to the Sun-Herald imputation. There is no basis whatever for thinking that the jury failed to take that into account. Even if the trial judge had failed to give directions about it, that would not have been an error. No specific request for such a direction was made by the defendants before the summing up and no complaint about a failure to give the directions was made during or after the summing up. In any event, there is no ground of appeal corresponding to this submission and for that reason alone it should be rejected. But the fundamental difficulty with the submission is that in substance the trial judge did give the direction which it is said she failed to give: she warned that the jury must consider whether the total sum for all imputations considered together was appropriate. 63 Ground 1 should be rejected.

Ground 21: Admissibility of Evidence 64 Ground 21 was as follows: "21.1 The trial judge erred in admitting into evidence exhibits A, B and H. 21.2 The trial judge should have refused to Admit Exhibits A and B on the grounds: (a) each document was irrelevant to an issue in the proceedings because the Respondent failed to adduce evidence to establish that the authors of the respective exhibits had read either the first matter complained of or the second matter complained of [and] wrote the letters comprising exhibits A and B in response to: (i) their reading of either of the matters complained of; and (ii) their understanding that the relevant matter complained of carried the imputations alleged; and

(b) provided in section 135 of the Evidence Act 1995. 21.3 Her Honour should have refused to admit exhibit H on the ground that it was irrelevant to any matter in issue because it was evidence as to the Respondent's 'character' and not reputation. 21.4 Having admitted exhibit H Her Honour misdirected the jury on how they should use the document. The trial judge's directions erroneously permitted the jury to use the document to come to a finding as to the manner in which the Respondent conducted himself as a medical practitioner." 65 Ground 21.1, being a rolled-up ground, does not call for separate examination. 66 In examining Ground 21.2(a), it is necessary to bear in mind s 55(1) of the Evidence Act 1995, which provides: "The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding."

Section 57(1) provides: "If the determination of the question whether evidence adduced by a party is relevant depends on the court making another finding (including a finding that the evidence is what the party claims it to be), the court may find that the evidence is relevant: (a) if it is reasonably open to make that finding; or (b) subject to further evidence being admitted at a later stage of the proceeding that will make it reasonably open to make that finding." 67 It was open to the jury to infer that relevant executives of Alcan (in relation to Exhibit A) and Lincoln Electrics (in relation to Exhibit B) had read or been informed of either the Business Review Weekly article or the Sun-Herald article; had formed the understanding that the articles carried the imputations complained of; and had decided in consequence that the relevant contracts should be ended. Of course the jury could reject the inferences, but they were, in the light of all the evidence, open. At the time when the trial judge admitted Exhibit A and Exhibit B, which was on the second day of the trial, the trial judge was entitled to treat the evidence as relevant if it was reasonably open for findings along those lines to be made. The plaintiff gave evidence that Business Review Weekly circulated within Alcan. It was open to the jury to infer that by similar means or by some other means someone at Lincoln Electrics saw the article. It would be a coincidence if, immediately after the two articles, Alcan and Lincoln Electrics would choose to terminate their contracts for some reason other than the imputations. It would be a coincidence if they terminated the contracts despite the fact that no relevant executive had read the articles or spoken to someone who had. If any relevant executive had read the articles, it would be a coincidence if the contracts were terminated merely because the plaintiff had been the executive director of a company which crashed notwithstanding the much graver imputations against the plaintiff appearing in the articles. At all events, these were issues fairly open for the jury's consideration. The defendants very properly put to the plaintiff in cross-examination various possible grounds other than the imputations on which Alcan and Lincoln Electrics might have terminated the contracts. These possible grounds were the crash of Bishopsgate itself; the other publicity about the crash and the plaintiff's connection with the company; and the plaintiff's alleged failure to perform services during August 1983 without making proper alternative arrangements. The plaintiff denied these suggestions, and the merits of that contest were a matter for the jury. The jury were entitled to conclude that termination of the contracts after publication of the imputations was no coincidence. 68 The defendants submitted that there had to be direct evidence that executives from Alcan and Lincoln Electrics had read the matter complained of and identified the imputations conveyed. They submitted that that proposition was supported by statements in Hughes v Mirror Newspapers Ltd (1985) 3 NSWLR 504 at 510 and 512. The statements in that case do not enunciate that proposition. That case does not exclude the legitimacy of establishing that the executives had read the articles and identified the imputations by a process of circumstantial inference. Even if Hughes v Mirror Newspapers Ltd did support the contentions of the defendants, it is questionable whether it could stand after the enactment of the Evidence Act. 69 The argument that the documents were irrelevant fails. 70 The issue raised by Ground 21.2(b) is whether the trial judge ought to have excluded Exhibits A and B on one of the grounds specified in s 135 of the Evidence Act. It provides: "The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party; or (b) be misleading or confusing; or (c) cause or result in undue waste of time."

The evidence itself, once admitted, wasted very little time, though argument about whether it should be admitted certainly took a long time at the trial. The defendants submitted that the admission of the evidence misled the jury, but no argument additional to those considered in relation to Ground 21.2(a) was advanced. If there was a risk of the Exhibits operating in a potentially prejudicial, misleading or confusing way, the trial judge removed that risk by her directions. She reminded the jury of the defendants' submissions about how there might be other explanations for the ending of the two contracts and about how there was no "direct explanation" from Alcan or Lincoln Electrics about the reason for terminating the contracts. She also reminded them that there was no claim for special damages to compensate the plaintiff for financial loss from the termination of the contracts. The defendants submitted that the jury should have been told not only that there was "no direct explanation" from Alcan and Lincoln Electrics for the termination, but that there was no other type of explanation either. That submission does not demonstrate that the trial judge's directions were unsatisfactory. In any event, the defendants did not establish that the probative value of the Exhibits, which was capable of being considerable when taken with other circumstances, was outweighed by any of the dangers described in s 135. Accordingly the trial judge did not err in admitting Exhibits A and B near the start of the trial, and did not err, once they had been admitted, in leaving them to the jury at the end of the trial as a basis for inferring that the contracts were terminated because of the imputations. 71 Ground 21.3 related to Exhibit H. Exhibit H was a statement composed by Mr E R Green on 19 October 1983. He was an Alcan executive who dealt with the plaintiff until April 1983. By the time of the trial he had died. On its face the document was written in response to a request from solicitors formerly acting for the plaintiff. 72 The defendants said that Ground 21.3 rested on a principle of the law of defamation as distinct from the law of evidence. The principle was said to have been illustrated in Plato Films Ltd v Speidel [1961] AC 1090. In that case the House of Lords held that evidence of particular acts of misconduct on the part of a plaintiff could not be given in mitigation of damages where a plea of justification had failed. See also Singleton v John Fairfax & Sons Ltd (No 1) [1983] 2 NSWLR 722. More specifically, in Plato Films Ltd v Speidel [1961] AC 1090 at 1139 Lord Denning said that a reputation witness called by the plaintiff "cannot be asked questions in examination-in-chief about particular facts so as to illustrate the plaintiff's good behaviour on particular occasions". The trial judge said, in a judgment giving reasons for her ruling that Exhibit H was admissible: "a central issue in a defamation proceeding is the reputation of the plaintiff. Evidence that can throw light on the plaintiff's reputation, either before or after the publication, is therefore relevant and, subject to exclusory provisions, admissible. While the plaintiff's character is to be distinguished from reputation, evidence of character may, in my opinion, sometimes illuminate the question of reputation. In the document Mr Green identified himself as having been employed for more than eight years by one of the two companies against whom the plaintiff had commenced proceedings, in the personnel and industrial relations areas, in which role he had responsibility for overseeing the services provided by the plaintiff. He acknowledged that he lacked medical qualifications to supervise the services from a medical point of view; his role was to monitor the provision of the services in accordance with company objectives. Mr Green appeared to state the purpose of the document in the following sentence: 'Therefore I feel qualified to comment on the benefit and performance from a corporate viewpoint of the occupational health activities in various organisations.' However, what follows goes well beyond that rather limited and specific purpose. After identifying himself and his experience, Mr Green wrote that he had had ample opportunity to observe the plaintiff's professionalism and administrative expertise and: 'I can categorically state that Dr Vilo as the principal officer of Industricare Pty Limited established and maintained an occupational health centre which was recognised by many outside organisations including the Division of Occupational Health as one of the most professionally well organised and modern in Sydney … I feel I should also add that Dr Vilo established a rapport with the trade union members and certain officials with whom he was required to deal with and [to] the best of my knowledge they valued his credibility. Perhaps I should also add that for many years because of the occupational health centre to which Dr Vilo was responsible for having such a high reputation in that community that the occupational health centre was regularly visited by the students of the Occupational Health Nursing Certificate Course as an example of how such centres should be set up and furthermore on a number of occasions Company representatives were asked to attend various seminars, some run in conjunction with the trade union movement to explain the occupational health centre's activities again as an example to the community …' All of this is plainly relevant to the plaintiff's reputation and is capable of assisting the jury to a resolution of the issues they have to decide, and is therefore relevant. It is not so in relation to the contents of the paragraph numbered 3. That paragraph opens with the observation that the author had been asked to comment on the terms and conditions of the plaintiff's contract with the company and this is what he did. That can provide no enlightenment on issues relating to the plaintiff's reputation or on any other presently identified issue."

She then said that for those reasons she had ruled that the document was relevant (apart from paragraph 3). 73 Exhibit H, in particular that part of it which the trial judge quoted, can be read as stating that the occupational health centre for which the plaintiff was responsible had a very high reputation. To state that an occupational health centre run by a corporation has a very high reputation is to say something about that corporation's reputation. In turn, to state that a corporation run in large measure by one person has a high reputation is to say something about that person's reputation at least in a particular circle of society. This is particularly so where, as here, the excellence of the occupational health centre's reputation is explicitly attributed to the person. Here the excellence of the reputation enjoyed by the centre, the corporation and the person existed in the world of occupational health centres - those who wanted them and those who supplied them. 74 It is true that if Mr Green had survived and had been giving evidence in the witness box in the language of Exhibit H, the form of his evidence might have been objectionable, and from one point of view this was the basis of the defendants' complaint. But in due course the process of objection and ruling would have hammered out a series of questions which would have elicited his evidence in admissible form. Exhibit H, though falling within the hearsay rule set out in s 59(1), was admitted under the exception to it which is created by s 63. Section 63 makes admissible "a document so far as it contains [a previous representation], or another representation to which it is reasonably necessary to refer in order to understand the reputation". "Representation" is defined in Part 1 of the Dictionary as including "an express or implied representation …". Exhibit H at least impliedly made a representation about the plaintiff's reputation. There is no provision in the Evidence Act requiring "representations" to be in a form which could, over objection, properly be given as direct oral evidence by their makers if called as a witness. There is no reason to read that requirement into the legislation, any more than McLelland J read it into corresponding provisions in the Evidence Act 1898, s 14B: Ritz Hotel Ltd v Charles of the Ritz Ltd (Nos 15 and 16) (1988) 14 NSWLR 107 at 111-112; cf Tobias v Allen (No 2) [1957] VR 21. 75 Ground 21.3 is not made out. 76 As to Ground 21.4, the defendants' submission did not identify how the trial judge's directions permitted the jury to use Exhibit H in the manner complained of, unless Ground 21.4 was intended to be supported by the following submission, which was the only submission made about Exhibit H apart from those already considered. 77 The defendants submitted that when debate about the admissibility of Exhibit H was taking place counsel for the plaintiff said he disclaimed reliance on it to found an inference about the reasons why the contracts were terminated: he relied on it only to establish the plaintiff's reputation. They also submitted that the trial judge erred in not limiting the tender to that disclaimer. She said, when speaking of Exhibit A and Exhibit B: "The plaintiff invited you to infer from the content of the documents, and from their timing, that the decisions to terminate the contracts came as a result of the publication of these defamatory imputations. In that context he would remind you of Exhibit H. It is probably a long time since you looked at this but it is a memorandum from Mr Green who worked with Alcan and who was very complimentary about Mr Vilo's work with Alcan."

Soon afterwards, the jury retired. Counsel for the defendants raised two problems about the summing up in the absence of the jury, and the jury was recalled to receive further directions as requested. Counsel for the defendants made no complaint about what the trial judge said or did not say about Exhibit H, and advanced no contention that the plaintiff should be held to the disclaimer, even assuming that the trial judge and the jury could be bound by it. Ground 21.4 fails. 78 The Notice of Appeal was amended by consent on the second day of the hearing when Ground 21 was added, though most of the argument in support of Ground 21 was put on the first day. Part of the argument advanced on the first day complained of a failure by the trial judge to make it very plain what issue Exhibits A and B went to, and to make it very plain there was no economic loss claim. In fact the trial judge did that, and quite apart from the absence of any relevant ground of appeal, this argument must be rejected.

Grounds 2-4: Comparison With Personal Injury Verdicts 79 These grounds were: "2. Her Honour erred in not directing the jury that the jury was entitled to take into account: (a) the range of awards typically made in personal injury cases in New South Wales (b) the range of awards typically made under statutes in respect of personal injury cases in New south Wales; (c) the value of money; in determining the amount of damages that it should award the plaintiff. 3. Her Honour erred in not directing the jury as to the range of awards typically made in personal injury cases in New South Wales and as to the range of awards typically made under statutes in respect of personal injury in New South Wales. 4. Her Honour should have: (a) directed the jury that they were entitled to take into account the range of awards typically made in personal injury cases in New South Wales, in determining the amount of damages that it should award the plaintiff; (b) directed the jury that they were entitled to take into account the range of awards typically made under statutes in respect of personal injury in New South Wales, in determining the amount of damages that it should award the plaintiff; (c) directed the jury as to the range of awards typically made in personal injury cases in New South Wales; (d) directed the jury as to the range of awards typically made under statutes in respect of personal injury in New South Wales." 80 At the trial counsel for the defendants, after the addresses of counsel had been completed but before the summing up, requested the trial judge to advise the jury on the levels of awards which plaintiffs complaining of serious personal injuries might obtain under legislation creating statutory maxima such as the Workers Compensation Act 1987 and the Motor Accidents Act 1988. The trial judge pointed out that what is now s 46A(2) of the Act did not apply to the case being heard. It provides: "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 in personal injury awards in the State (including awards made under, or in accordance with, any statute regulating the award of any such damages)."

The defendants submitted that s 46A(2) codified the pre-existing position following Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at 235 per Toohey J. Counsel for the defendants submitted that the direction he sought "is all about … giving to the jury some concept of how the State … puts a value on pain and suffering and how it does that by enacting legislative boundaries to it. I do not make a strong point of it." 81 Whether the point was strong or not, it was strenuously argued on the appeal that the trial judge erred in failing to give the requested direction. 82 On appeal the defendants first pointed to Toohey J's judgment in Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at 235. After pointing out that on occasion appellate courts have referred to awards of damages in serious personal injury cases as a means of testing the correctness of jury awards in defamation, Toohey J said: "so long as civil juries are available in defamation actions, there is much to be said for the judge offering guidance on damages, for instance by inviting the jury to consider the investment or buying power of any sum it is minded to award. Such comparisons are not directly relevant but they serve to remind the jury of the implications of money awards and of the need to maintain some proportion between the hurt to the plaintiff and the amount of damages. … Indeed, since appellate courts do review jury awards, there is much to be said also for the judge indicating to the jury the range of damages he or she thinks appropriate in the particular case, so long as it is made clear that the decision is one for the jury."

Pausing here, it is to be noted that Toohey J did not give specific support to the direction requested. He spoke of "guidance", but gave only two examples, neither of which goes as far as the defendants wanted, namely referring to the buying power of awards and indicating the range of damages appropriate in a particular case. 83 The defendants then referred to Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44. At 57 Mason CJ, Deane, Dawson and Gaudron JJ treated Coyne v Citizen Finance Ltd not as being an authority for the direction proposed, but as a case containing dicta by Toohey J, concurred in by Dawson and McHugh JJ, against it. They pointed out at 57-58 that in Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at 219-221 Mason CJ and Deane J "considered that it is legitimate for an appellate court considering an appeal against the quantum of damages in a defamation case to bear in mind 'the scale of values' applied in dealing with appeals in cases of serious physical injury". They also pointed out at 58 that Mason CJ and Deane J said in Coyne v Citizen Finance Ltd at 221 that it was wrong for an appellate court to be indifferent to the need to ensure a rational relationship between the scale of values applied in personal injury cases and in defamation cases. 84 The majority in Carson v John Fairfax & Sons Ltd then said at 59-60: "Such an approach, of course, raises the issue whether trial judges, in summing up to the jury, may draw such comparisons and, further, whether counsel may refer to such comparisons in their addresses. As a matter of logic and principle, there is nothing perverse in permitting - even encouraging - appellate courts to draw comparisons with personal injury verdicts while prohibiting such an approach at the trial stage. Appellate courts would have regard to personal injury awards to assist in resolving the question whether 'the amount awarded is so high or so low that it is outside the range of what could reasonably be regarded as appropriate to the circumstances of the case. Juries are charged with the more exacting task of deciding upon a precise figure, and thus will derive less assistance in accomplishing their duty from the rough comparison provided by personal injury awards. Having said this, we see no significant danger in permitting trial judges to provide to the jury an indication of the ordinary level of the general damages component of personal injury awards for comparative purposes, nor in counsel being permitted to make a similar reference. Although there is authority in this Court to the effect that the quantum of damages is not to be resolved by reference to a norm or standard supposedly to be derived from a consideration of amounts awarded in a number of other specific cases [ Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 at pp 124-125], there is much to be said for trial judges offering some guidance on damages - such as inviting the jury to consider the investment or buying power of the amount it might award [ Coyne (1991) 172 CLR at p 235; Carson (1991) 24 NSWLR at p 301] or perhaps even indicating a range of damages which might be considered appropriate - while ensuring that the jury knows that they are to reach their own decision [ Coyne (1991) 172 CLR at p 235]. Providing basic information on the general damages component of personal injury awards might even be more helpful than these other examples. There is a distinct possibility that jurors in defamation cases, drawing on their own values and experiences, would call to mind the information provided to them in the media concerning very large personal injury awards. Such large claims often gain prominent media attention. Jurors who might call to mind such instances, however, will almost certainly be unable to recall - if indeed they ever knew - what portion of those very large verdicts represented general damages. Unassisted by the provision of information of the kind which we have suggested, the jurors may well make their own comparisons in a manner which is totally inaccurate and misleading. A defamation verdict for $250,000 may, in the mind of such jurors, bear a rational relationship to an award of $2.5 million dollars to a person suffering quadriplegia as a result of an accident, even though, unbeknown to the jurors, that person was awarded only $150,000 in general damages."

The majority concluded that the approach of the majority of the Court of Appeal in Carson v John Fairfax & Sons Ltd in comparing the awards in that case with personal injury awards was not wrong. 85 Toohey J said at 93: "it is appropriate for the trial judge in a defamation action to indicate to the jury a range of figures which might be awarded. The range would have regard to the judge's experience in and knowledge of awards in other defamation actions." 86 The words of the majority and of Toohey J in Carson v John Fairfax & Sons Ltd were strictly speaking dicta. The issue before the court was whether the procedure of comparing personal injury awards with defamation awards in which the Court of Appeal had engaged was correct. The trial judge in that case had not directed the jury about comparative awards, and the High Court was not confronted with any concrete issue for decision about the correctness or otherwise of that course. It is relevant that Brennan J (at 72-75) disagreed in relation to whether appellate courts in defamation cases should consider personal injury verdicts. It is also relevant that McHugh J disagreed in relation to comparisons with personal injury verdicts both in appeals and at trials (at 111-113). In these circumstances, the submission that s 46A(2) of the Act codified the common law must be rejected. Section 46A(2) adopted the opinions of four High Court justices stated, when it was not necessary for them to be stated, about jury trials and applied them to trials by judge alone. That is a legitimate process for the legislature to adopt, but it cannot be described as codification of the common law. 87 There are numerous questions which the tentatively expressed language of the majority raise. What should the jury be told about personal injury awards? Should they be told only about awards not subject to statutory caps (e.g. awards in occupier's liability cases, or school negligence cases, or medical negligence cases)? Should they be told only about awards which are subject to statutory caps? Should they be told about both? If both, what, if anything should they be told of the reasons for the differences? What should they be told about the notorious differences between levels of awards in different jurisdictions in Australia? How much should they be told of the facts relating to each particular award? Related questions arise under s 46A(2), but some of them have been answered by it, and the peculiar difficulties of jury direction do not arise under s 46A(2), since the assessment of damages in this State is now a matter only for the judge. 88 Brennan J and McHugh J pointed out the differences between defamation and personal injury cases. Similar points were made by Sir Michael Davies, who had considerable experience of defamation work in England, in a note in (1995) 69 ALJ 161: "the comparison between defamation and personal injury damages used often to be drawn in England. The instinctive reaction to a perceived imbalance is understandable. But the parallel is far from exact and upon examination is unconvincing. A truck driver who knocks down and kills or seriously injures a pedestrian is unlikely to have done so deliberately, intending to do grievous bodily harm. Neither is such a negligent driver likely to have been motivated by the prospect of personal financial gain nor, having damaged the pedestrian, to reverse and then run over the prostrate form a second time. If he does any of these things, he will be faced with grave criminal charges. Yet in England certainly, in the high damage cases, the defendant newspaper will have acted deliberately, will have published in order to sell copies and to make money and in most cases will have repeated the defamatory matter. And when it comes to court, the cross-examination of a personal injury plaintiff is usually mild compared with the vicious attack which a defamation plaintiff will have to endure." 89 It is doubtful whether this Court should choose between the dicta of a majority of the High Court and the dicta of a minority unless it is essential to do so. The matter is now only of significance, at least in New South Wales, to a closed class of relatively ancient cases. However, in some cases this Court might have to choose. That case is not this case, because the trial judge was entitled to refuse the requested direction in her discretion, whatever the appropriateness of the direction in other cases. The requested direction would have had a dampening effect on the damages. A direction which included reference to awards not subject to statutory caps would have been fairer to both parties. Grounds 2(a), 3 (first part), 4(a) and 4(c) complain that that broader direction was not given, but that was not a direction which the defendants asked for at the trial. It is not permissible to complain on appeal about the failure to give so novel a direction for which there is no binding authority and which, in the vast experience of counsel appearing in this appeal, has never been given in this State, when the direction actually asked for was different. Indeed, not only was a direction about damages awards uncapped by legislation not asked for, it was specifically spurned by the defendants on the ground that "it makes the exercise harder". That is unquestionably correct, but it points against the wisdom of giving such a direction. Further, if the defendants were correct in submitting that s 46A(2) codified the common law, the trial judge was entitled to decline to give the narrow direction actually asked for, because it was narrower than that which the reasoning process which s 46A(2) now mandates calls for. In addition, the basis on which a narrow direction was asked for - to give "the jury some concept of how the State … puts a value on pain and suffering" - is not a correct account of why some awards are capped. The State in its judicial branch, unaffected by legislation, arrives at much higher figures for general damages, in non-jury and jury trials, than the State in its legislative branch permits the judicial branch to award in other areas. The difference is not to be explained by reason of a different perception of "value": it is to be explained on the basis of a perception by the legislature that some classes of compensation have become too substantial and have gone beyond the capacity of those bodies which have to fund them to do so. Motor accident awards lead to what are regarded as insupportably high registration fees. Workers compensation awards are perceived to lead to excessive premiums or an unacceptable rise in unfunded liabilities. 90 Paragraph 2(c) of the Notice of Appeal also complains that the trial judge failed to direct the jury that they were "entitled to take into account … the value of money". No argument was directed to this ground. No specific request was made for a direction to this effect beyond the request of a direction about personal injury awards. No complaint about the failure to give the direction was made to the trial judge. This ground is rejected.

Ground 5 and 6: Separate Or Combined Verdicts 91 Section 9(2) of the Act provides that publication of each defamatory imputation creates a separate cause of action. Section 9(5)(a) of the Act provides: "Notwithstanding subsection (2), where proceedings for defamation in respect of the publication of any matter are tried before a jury, the jury shall, unless the court otherwise directs: (a) give a single verdict in respect of all the causes of action on which the plaintiff relies."

Section 9(5)(a) thus creates a discretion in the trial judge. 92 At the trial, after the close of the evidence and before counsel addressed, argument took place about the form of the series of written questions which the trial judge proposed to hand to the jury. Counsel for the defendants was asked a question about the s 9(5)(a) discretion by the trial judge which led to the following debate: "HER HONOUR: What do you say if we do it on the six separate documents, which I am very much inclined to do? Do you say there should be, and the authorities say there should be, a damages question at the end of each one? WHEELHOUSE: The latest in Antoniadis would suggest that is the case, but that comes in light of numerous other cases where there is a single verdict brought down. Our submission is there should be a single verdict brought down. HER HONOUR: I will certainly give them a direction, if we do it, damages question at the end of each and I would say they still have to regard to the total. I will say when they bring in a final verdict, look at the total and make sure it is a proper compensation for the whole of the damage they find proved. Would you have any problem with that? WHEELHOUSE: No, I don't. My submission is that it should be a single verdict but in the face of Antoniadis I can't do otherwise. HER HONOUR: What I think I will do is put together something substantially along the lines drafted with the amendment to the contextual imputations and comment questions and if somebody has say any more to say, you can say it on Monday morning. I will see if we can get another draft ready. There will be some variation in relation to the different imputations, for example, 3. WHEELHOUSE: No, your Honour. HER HONOUR: If you want to argue having six different sets of questions? WHEELHOUSE: Can I give some thought to that. On the face of it, I should not say until I get instructions."

The matter was left there. 93 Counsel was referring to TCN Channel 9 Pty Ltd v Antoniadis (1998) 44 NSWLR 682, where at 688C-D Handley, Beazley and Stein JJA said: "The jury returned a single verdict on the three causes of action based on the second telecast, a course sanctioned by s 9(5) of the Defamation Act 1974. However the trial judge could have directed the jury to return separate verdicts. Where the jury return a general verdict on more than one cause of action which cannot be supported on all causes of action, there must be a new trial: see Cutts v Buckley (1933) 49 CLR 189. The Court is not entitled in a defamation case to speculate that the jury would or might have awarded the same damages on the other causes of action: see Bray v Ford [1896] AC 44 at 48, 53. In such circumstances, a trial judge should consider exercising the power conferred by s 9(5) to require the jury to return separate verdicts. The taking of separate verdicts could avoid the necessity for a new trial if an appellate court should conclude that one or more of the disputed imputations was not capable of being conveyed." 94 The defendants submitted that the discretion conferred by s 9(5): "should not be exercised unless some special circumstances warrant departure from the requirements of s 9(5), which is the general rule …. The occasion to depart from the general rule would be rare indeed, and only where the evidence proves that the relevant harm caused by one imputation is distinguishable from that caused by the other(s) thus providing a basis for the separate assessment of damages. There was no such evidence in this case."

The defendants further submitted: "The exercise which the jury was required to do in this case was artificial, and involved the real danger that overlapping or double counting could occur." 95 These arguments should be rejected for the following reasons. 96 First, s 9(5)(a) does not use words suggesting that the discretion should only be exercised in "special circumstances" or "rare" cases. It certainly does not suggest that the discretion is only to be exercised in the case of harm caused by one imputation being distinguishable from that caused by another. Nor was any submission along these lines put to the trial judge. Accordingly the defendants have not demonstrated any error of statutory construction in relation to the trial judge's exercise of her discretion. 97 Secondly, the submission put on appeal that the request for separate awards led to artificiality and to the danger of overlapping and double counting was not put to the trial judge. In any event, the risk of artificiality and of the danger could be overcome by a jury direction warning about it, and this was given. 98 Thirdly, on this appeal the defendants did not contend that any other type of error beyond the errors just discussed had been committed. They did not point to any error of fact, any relevant matter that was overlooked or given insufficient weight, or any irrelevant matter that was taken into account. They did not contend that the result was so unjust as to indicate that some error of the kinds just mentioned must have occurred. 99 Fourthly, though the trial judge did not give reasons for her rejection of the defendants' submission, her decision is readily supportable. The last sentence quoted from TCN Channel 9 Pty Ltd v Antoniadis (1998) 44 NSWLR 682 at 688 might be expanded and amplified thus: "The taking of separate verdicts could avoid the necessity for a new trial if an appellate court should conclude that one or more of the disputed imputations was not capable of being conveyed, or if for any other reason judgment might be given for the defendant on appeal on one, but not another, of the causes of action, for example that an imputation, though conveyed, was not defamatory, or that a qualified privilege defence should have been found."

This was a case in which there were many permutations and combinations available to the jury, and significant possibilities that an appellate court might agree with some outcomes but not others. The jury considered their verdicts in two stages - first, they considered what imputations were conveyed and whether they were defamatory; secondly, a little later, they considered other issues including damages. At the time when they were considering damages pursuant to the trial judge's direction to return separate awards, the defendants had not indicated that they would not appeal against the jury findings on the imputations, or any rulings of the trial judge relating to them. In those circumstances the taking of separate awards was wise. 100 Grounds 5 and 6 should be rejected. 101 From time to time in presenting its arguments about Grounds 5 and 6 the defendants contended that the jury were not given sufficiently clear guidance to enable them to distinguish the harm caused by one imputation from that caused by another. No ground of appeal takes this point. The court on several occasions drew attention to what grounds did and did not exist and what arguments appeared to go beyond the grounds which did exist. The defendants responded by amending the Notice of Appeal in the respects to be found in paragraph 21 of the Notice of Appeal. The defendants did not amend in this respect. In any event, the trial judge's summing up was sound. The jury were told to look at the totality of the harm done, but also to take account of what harm each imputation did. She warned against double counting. It is not surprising that counsel for the defendants saw no harm in these directions and did not ask for any redirection. These criticisms of the trial judge should be rejected.

Grounds 1-6 and 21 Considered As A Whole 102 Though the grounds of appeal relating to damages have been to some degree separately analysed in particular groups above, in argument they were presented in an overlapping way. This course was not irrational, because the defendants took the view that the primary submission - that the damages were excessive - could be assisted by a demonstration of possible reasons based on errors by the trial judge which might account for the excess in the damages. However, even when Grounds 1-6 and 21 are considered as a whole, they do not demonstrate that the damages were excessive or that there was any error in the manner in which the issues were left to the jury.

Grounds 14-16: Qualified Privilege at Common Law 103 These grounds were: "14. Her Honour was in error in holding that the decision of the House of Lords in Reynolds v Times Newspapers Limited [[2001] 2 AC 127] [1999] 3 WLR 1010 was in conflict with the decision of the High Court of Australia in Lange v Australian Broadcasting Commission (1997) 189 CLR 520. 15. Her Honour was in error in holding that the decision of the High Court of Australia in Lange v Australian Broadcasting Commission (1997) 189 CLR 520 required her to hold that the defence of qualified privilege at common law was generally not available in respect of a mass media publication. 16. Her Honour should have held that the defence of qualified privilege was available in respect of both the Sun-Herald publication and the BRW publication in the present proceedings." 104 The passages in the trial judge's judgment to which grounds 14 and 15 relate are: "The conventional statement of the requirements of the defence of qualified privilege at common law encompasses what has come to be known as the 'duty/interest' test. The occasion of qualified privilege arises where a person who makes a communication has an interest or duty (whether legal, social or moral) to make it, and the person to whom it is made has a corresponding duty or interest in receiving it: Adam v Ward [1917] AC 309. In Watt v Longsdon [1930] 1 KB 130 at 147-8, [Scrutton LJ] re-stated the principle in this way: '… the principle is that either there must be interest in the recipient and a duty to communicate in the speaker, or an interest to be protected in the speaker and a duty to protect it in the recipient. … [There must be] 'either (1) a duty to communicate information believed to be true to a person who has a material interest in receiving the information, or (2) an interest in the speaker to be protected by communicating information, if true, relevant to that interest, to a person honestly believed to have a duty to protect that interest, or (3) a common interest in and reciprocal duty in respect of the subject matter of the communication between speaker and recipient' In the ninth edition of Gatley: On Libel and Slander (1998, Sweet and Maxwell, at paragraph 14.3), the following summation appears (internal references omitted): 'To gain protection, the statement must be fairly warranted by the occasion, that is to say it must be reasonably necessary for the performance of the duty or the protection of the interest which underlies the privilege. This may exclude the publication of some irrelevant matter, but it also means that the court may have to balance the relative harm to the defendant if the statement is not published and to the plaintiff's reputation if it is.' For NSW, the law of common law qualified privilege was comprehensively reviewed by the Court of Appeal in Morosi v Mirror Newspapers Limited [1977] 2 NSWLR 749. The Court did not depart from these statements of principle. More recently, the High Court has directed its attention to the defence: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. The common law defence of qualified privilege is available to protect publications to large audiences or to the general public only in exceptional cases: Adam v Ward ; Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448; and Lange pp 570, 572; Morosi , p 775. The High Court in Lange gave no indication that the authorities supporting this proposition should no longer be regarded as the law, or should be considered as requiring review. In my opinion they must, for NSW, be regarded as good law. The defendants relied heavily upon the decision of the House of Lords in England in Reynolds v Times Newspapers Limited [[2001] 2 AC 127] [1999] 3 WLR 1010. That decision is said to mark a significant development in the common law in England, and the defendants urged that that development should be taken to represent the current law of NSW also. In Reynolds , the House of Lords placed heavy emphasis on the importance of freedom of expression. Indeed, Lord Nicholls of Birkenhead, with whose analysis Lord Cooke of Thorndon and Lord Hobhouse of Woodborough expressly agreed, took (at p 1022) freedom of expression as his starting point, and proceeded to expound upon the importance of the media in the expression and communication of information and comment on political matters. His Lordship acknowledged the conventionally recognised need to balance that against the protection of individuals (including public figures) from unwarranted damage to their reputations. It is the defendants' argument that the effect of the House of Lords' decision is to alter that traditional balance so that greater emphasis is placed on freedom of speech at the expense of reputation protection. The defendants' proposition is a composite one. It involves, firstly, acceptance that Reynolds marks a significant shift in the approach to a defence of qualified privilege in the United Kingdom; and secondly, that, to the extent that it does so, that shift should be taken as incorporated into the law of NSW. For the first proposition there is a modicum of support in Lord Nicholls' speech. For example, at p 1020 his Lordship reformulated the duty/interest test for the defence as: 'whether the public was entitled to know the particular information'. He did this in the context of rejecting an alternative approach earlier adopted by the English Court of Appeal in the same case, in which the Court of Appeal proposed a third limb to the traditional duty/interest test, which it identified as 'the circumstantial test'. Further, at p 1027 his Lordship referred to the 'elasticity of the common law principle' which enables the court to give appropriate weight, in contemporary conditions, to the importance of freedom of expression by the media on matters of public concern. His Lordship noted that the common law solution had been for the court to have regard to all the circumstances when deciding whether the publication of particular material was privileged because of its value to the public, but observed that the value of such material to the public depended upon quality as well as subject matter. Lord Nicholls listed ten matters as relevant to the balancing exercise. These are: 1. the seriousness of the allegation; 2. the nature of the information; 3. the source of the information; 4. the steps taken to verify the information; 5. the status of the information; 6. the urgency of the matter (having regard to the perishability of news as a commodity); 7. whether comment was sought from the plaintiff; 8. whether the article contained the gist of the plaintiff's side of the story; 9. the tone of the article; 10. the circumstances of the publication, including the timing. This list was not intended to be exhaustive. When the passages to which I have referred, and the judgments as a whole, are read in their proper context it seems to me that any change in emphasis is rather less dramatic than has been suggested. The test formulated by Lord Nicholls (whether the public was entitled to know the particular information) was described by him as 'a simpler and more direct way' of expressing the conventional duty/interest test. This view is reinforced by his Lordship's view, expressed in his 'Conclusion' (p 1027) that: 'The established common law approach to misstatements of fact remains essentially sound.' Specifically, he rejected as unsound in principle the notion (endorsed for Australia by the High Court in Lange ) of a separate and independent category of the defence related to political information. In my view the greatest significance of the decision in Reynolds was that it opened in principle the defence of qualified privilege to mass media outlets and defendants. Having regard to the (non-exhaustive) list of relevant considerations mentioned by Lord Nicholls, it remains to be seen what practical effect this decision will have upon the law in the United Kingdom. It is unnecessary (and inappropriate) to reach any firm conclusions about the extent to which the decision in Reynolds has altered the law for the United Kingdom. I am satisfied that, whatever changes have been wrought in that jurisdiction, Reynolds does not change the law for NSW. For a start, each of their Lordships (except Lord Hobhouse, who did, however, adopt the reasoning of Lord Nicholls) expressly emphasised the significance to the decision of the provisions of the Human Rights Act 1998 (expected to come into force on 2 October 2000), which will require courts in the United Kingdom to have particular regard to the importance of the right to freedom of expression; and most also referred to the requirements of the European Convention for the Protection of Human Rights and Fundamental Freedoms. No such statutory or convention provisions operate to guide the determination, by NSW courts, of claims to qualified privilege at common law. Nor has there been any dramatic change, such as the introduction of the Human Rights Act in the UK, in the direction given to courts in the manner in which they are to exercise pre-existing discretions, or effect pre-existing matters for judgment or evaluation. The High Court of Australia has recently considered the law of qualified privilege, in Lange , and has reached a conclusion different from that stated by the House of Lords in relation to the availability of a particular category of qualified privilege defence where government and political matters are concerned. Although the focus of that case was the interaction between Australian constitutional requirements and the elements of the defence of qualified privilege, and the impact any 'undue burden' on freedom of expression may cast upon the need for freedom of communication in order to give effect to the constitutional prescription for representative government, the Court considered the defence in more general terms. The rejection by the House of Lords of the particular category of the defence recognised by the High Court in Lange does not of itself require a conclusion that the principle adopted for the United Kingdom is inapplicable in NSW. That is because the present case is not concerned with a public figure or political comment. However, the fact that the House of Lords saw fit to reject the approach adopted by the High Court, together with its need to conform to its own particular statutory and convention requirements, is indicative that the two jurisdictions are taking different paths in respect to this defence. The decisions in Reynolds and Lange show that the House of Lords and the High Court of Australia have, in two respects, taken divergent paths in relation to the law of qualified privilege at common law. The first, whether there exists a particular branch of the law relevant to political and government matters, results from Australian constitutional arrangements, and is not directly relevant to the question I have to decide. It is relevant only as signifying a divergence of approach and signalling caution in following UK authority on this subject. The second, however, is of direct relevance to the present question. The House of Lords has signified that the defence, in principle at least, is available to organs of the mass media. The High Court, by contrast, has endorsed the traditional view taken in Australia that, generally at least, it is not. That the House of Lords view was significantly affected by relevant statutory and convention provisions inapplicable in this jurisdiction only strengthens the conclusion that that decision does not bind, and provides at best limited guidance, to this Court. I have therefore come to the firm view that the common law defence of qualified privilege, as raised in the present case, should be determined in the light of the relevant passages in Lange , and pre-existing consistent decisions of the High Court, the Court of Appeal, and this Court." 105 The only submission in writing advanced in support of these grounds was: "Generally, the defence of qualified privilege is applicable to publications to large audiences, and Lord Nicholls was correct when he held in Reynolds v Times Newspapers Ltd [[2001] 2 AC 127 at 205] [1999] 3 WLR 1010 at 1027 that the question of whether or not there is a duty to publish material to a wide audience depends on the nature, status and source of the information held by the publisher."

In oral address the defendants submitted that it would be wrong to conclude that Lange's case precludes a finding of qualified privilege for a mass publication on a non-political matter. Though Reynolds' case involved a political figure, the House of Lords was declaring the law generally. The defendants submitted that it was open to this Court to treat the key passage in Reynolds v Times Newspapers Ltd as part of the law of New South Wales. 106 The plaintiff argued that if the High Court in Lange's case had thought the law corresponded to that stated in Reynolds' case, it would not have enunciated a limited and special extension of common law privilege to cover political comment, but would have stated the matter more broadly. 107 Either Reynolds' case extended the law beyond the traditional law as modified in Lange's case or it did not. If it did not, it is not necessary to consider the detail of the formulation in Reynolds' case, because there are many Australian cases (e.g. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749) stating the received common law principles, and Lange's case is a unanimous decision of seven justices stating a modification of them. If, on the other hand, Reynolds' case did move English law beyond the traditional law as modified in Lange's case, this Court should not adopt the change in preference to the perceived law stated in cases directly binding this Court. This is so for five reasons. 108 First, as the trial judge noted, Reynolds' case turned in some degree on the provisions of the Human Rights Act 1998 (UK) and the requirements of the European Convention for the Protection of Human Rights and Fundamental Freedoms. There is no equivalent statute in force in New South Wales, and there is no equivalent treaty binding or otherwise affecting the approach of New South Wales courts. 109 Secondly, the law of defamation turns on a complex set of mechanisms which are intended to balance many competing interests. Though the present issue relates to common law privilege, the field as a whole is one which for over forty years has depended heavily on statutory regulation in New South Wales and which has attracted repeated attention in legislative amendments and in the reports of Federal and State Law Reform Commissions. It is not a field lightly to be altered by intermediate appellate courts in a fundamental respect. 110 Thirdly, where the High Court as recently as 1997 restated the traditional rules of common law privilege while adding a limited modification for information on governmental and political matters, it is at least highly questionable whether this Court should either modify the traditional rules or extend the modification. The proposition that the High Court in Lange's case did not state the law exhaustively is a proposition best left to the High Court to enunciate in the future. 111 Fourthly, it is scarcely consistent with the relative positions of this Court and the High Court in the judicial hierarchy of this country to adopt as part of New South Wales law principles enunciated by the House of Lords in a case in which neither side requested the House to adopt the Lange privilege and in which the House refused to do so (at 1022, 1025, 1033 and 1040-1046). 112 Fifthly, even if it were as a practical matter open to this Court to change the law on this topic, it would be potentially productive of confusion, and it ought not to be done without some strong reason of principle or policy justifying that step. The defendants did not point to any principle or policy of that kind. 113 The modification of the traditional law in Lange's case does not apply here: information about fleeing company directors is not governmental or political. What the High Court said about the traditional law at (1997) 189 CLR 520 at 572 bears repetition: "No doubt it is arguable that, because qualified privilege applies only when the communication is for the common convenience and welfare of society, a person publishing to tens of thousands should be able to do so under the same conditions as those that apply to any person publishing on an occasion of qualified privilege. But the damage that can be done when there are thousands of recipients of a communication is obviously so much greater than where there are only a few recipients. Because the damage from the former class of publication is likely to be so much greater than from the latter class, a requirement of reasonableness as contained in s 22 of the Defamation Act , which goes beyond mere honesty, is properly to be seen as reasonably appropriate and adapted to the protection of reputation and, thus, not inconsistent with the freedom of communication which the Constitution requires. Reasonableness of conduct is the basic criterion in s 22 of the Defamation Act which gives a statutory defence of qualified privilege."

However, the High Court declined to accept that argument had changed the law in the non-government and non-political area. 114 For the above reasons Grounds 14 and 15 fail. Ground 16 also fails. The Sun-Herald article was published to a huge audience, and the Business Review Weekly article to a large one. There are present none of the features which have, exceptionally, caused courts to recognise privilege in those circumstances. In addition, here the publishers had no duty to communicate the information, and the recipients had no material interest in receiving it. The publishers had no interest to be protected by communicating information relevant to that interest to persons believed to have a duty to protect it. The publishers and the recipients had no common interest in and no reciprocal duty in respect of the subject matter of the communication. 115 The argument in support of Grounds 14-16 contended that the trial judge failed to make various findings, and took into account irrelevant matters. These submissions were made on the basis that Grounds 14 and 15 succeeded. Since these grounds do not succeed, it is not necessary to consider the detail of the defendants' criticisms.

Grounds 17 and 18: Statutory Qualified Privilege: Sun-Herald Article 116 These grounds were: "17. Her Honour was in error in finding that the conduct of the defendant in publishing the Sun-Herald article was not reasonable in the circumstances, especially in circumstances where no suggestion was made in cross-examination to the principal author of the Sun-Herald article (Mr Payne) as to steps he should have taken in connection with the publication, but had failed to take. Her Honour should have found that the conduct of the first defendant in publishing the Sun-Herald article was reasonable in the circumstances, and that the first defendant had accordingly established a defence of qualified privilege under s 22 of the Defamation Act 1974 in respect of that publication." 117 Section 22 of the Act provides: "(1) Where, in respect of matter published to any person: (a) the recipient has an interest or apparent interest in having information on some subject,

(b) the matter is published to the recipient in the course of giving to him information on that subject; and

(c) the conduct of the publisher in publishing that matter is reasonable in the circumstances,

there is a defence of qualified privilege for that publication.

(2) For the purposes of subsection (1), a person has an apparent interest in having information on some subject if, but only if, at the time of the publication in question, the publisher believes on reasonable grounds that that person has that interest. (3) Where matter is published for reward in circumstances in which there would be a qualified privilege under subsection (1) for the publication if it were not for reward, there is a defence of qualified privilege for that publication notwithstanding that it is for reward." 118 The trial judge found that s 22(1)(c) was not satisfied. The above grounds of appeal complain about the following passage in which the trial judge gives reasons for that conclusion: "The only mention of the plaintiff appears in the closing paragraphs of the main story. These read: 'His fellow director, Dr Enn Vilo, a medical practitioner and racehorse owner, is also missing. The Fraud Squad has also asked Interpol to look out for Vilo.' Mr Joe Payne, one of the three journalists who together wrote the stories, and the only one to give evidence, acknowledged that he had been responsible for writing the two final paragraphs extracted above. He said he did this on the basis of information given to him by Detective Sergeant Whittaker, of the Fraud Squad of the NSW Police, who was involved in the investigation into the Bishopsgate matters. The information given to Mr Payne was that the plaintiff was missing and Interpol had been alerted to try to find him. On that basis Mr Payne formed the belief that the plaintiff was a fugitive from justice and that he had gone overseas to avoid investigation into the [mis]appropriation of the missing funds. Mr Payne believed that it was likely that the plaintiff was involved in the misappropriation. This belief arose, at least in part, from his having been told that the plaintiff was a suspect, and from his awareness that the plaintiff was a director of Bishopsgate. I accept what Mr Payne said in this respect but it is one matter only relevant to the issue and is not conclusive. Mr Payne also said that he made further inquiries in relation to the plaintiff, but that these yielded no information. Counsel for the defendants has argued that, in the circumstances, their conduct was reasonable. In particular he pointed to four factual matters, each of which he contended was otherwise shown to be objectively correct, which formed the basis for Mr Payne's belief that the plaintiff was a fugitive from justice. These were: (i) that the plaintiff was a director of Bishopsgate; (ii) that a large sum of money was missing from Bishopsgate; (iii) that the plaintiff 'went missing'; (iv) that Interpol had been alerted to find the plaintiff. Except for the third, these facts are, as contended by counsel, uncontroversial. It is true that the plaintiff was out of the country, and apparently uncontactable, but the expression 'went missing' is rather loaded. There was a great deal of evidence from the plaintiff about the circumstances in which he went overseas, and the timing of his travel, that, if accepted, would show that his travel was innocent and coincidental. I do not think it is necessary to reach a firm conclusion on whether the plaintiff's overseas travel, or its timing, were suspicious to such an extent as to warrant a conclusion that he was a fugitive from justice. That issue was disposed of by the jury's rejection of the contention that the imputation was substantially true. The present question is whether, in 1983, Mr Payne made appropriate, and sufficiently extensive and comprehensive, inquiries in that regard. This matter came to trial sixteen years after the publications. Mr Payne's evidence of the inquiries he made was largely based upon what his usual procedure had been. His evidence that he would, in the normal course, have made other inquiries but that he had concluded that further inquiries would be fruitless, is quite unsatisfactory. This is an issue on which the defendants bear the onus. Mr Payne said that he had not retained any of his notes or records and had no recollection of such inquiries and was relying on his 'normal procedure' to support the evidence he gave. His recollection, unsurprisingly after sixteen years, was very limited. What is more surprising is that Mr Payne said that he had only learned of the hearing of these matters a few weeks before being called to give evidence. He had no recollection that he had previously been made aware of the commencement of proceedings by the plaintiff. I infer from this, and from the absence of any statement made by Mr Payne in 1983 or shortly thereafter, that he was not asked, at a time when his recollection could have been expected to be better, to record the inquiries he had made, or even to preserve his contemporaneous notes and records. The statement of claim was filed in 1983, and, presumably, served shortly thereafter. The absence of detailed evidence as to inquiries made by Mr Payne cannot assist the defendants in the discharge of the onus of proof they bear on this matter. The strongest point in their favour in this regard lies in the absence of evidence adduced by the plaintiff as to what information might have been revealed if appropriate inquiries had been made. But that merely balances the absence of evidence from the defendants as to what inquiries were in fact made, and it does not affect the discharge of the burden of proof. I am unable to conclude that the first defendant did act reasonably in the circumstances. In reaching this conclusion I do not overlook the realities of life facing the news media (especially weekly publications) and the limited lifespan of news. But these are commercial considerations and do not override the need for mass media publications to take reasonable care to avoid damage to the reputations of those of whom they publish. I am of the view that here, the story about Stathopoulos and his personal history was of great interest, and the main focus, of the article; and that suspicion of his guilt was so great that assumptions about the plaintiff were made without adequate consideration being given to the evidence that supported the imputations against the plaintiff. Instead, the plaintiff was swept up in the wave of compelling and dramatic information about Stathopoulos, and was not given the separate and independent consideration to which he was entitled." 119 The defendants analysed the evidence in close detail. In particular, they set out the inquiries which Mr Payne made of Detective Sergeant Whittaker and referred to the fact that inquiries of the plaintiff's family and associates had not produced any information of his whereabouts. 120 The defendants advanced two types of criticism of the trial judge's reasoning. The first contended that so far as her conclusion rested on the proposition that Mr Payne had behaved unreasonably by not carrying out further inquiries, there were no further inquiries which he could or should have made. They said that the words published were exactly what Mr Payne was told by Detective Sergeant Whittaker, namely "Dr Vilo was missing and … Interpol had been alerted to try to find him". They said that there was no evidence that the information supplied by Detective Sergeant Whittaker, given his standing and means of knowledge, was untrue or so doubtful that further inquiries should be made; and in particular that Mr Payne was not cross-examined to suggest this. They said that the evidence did not support the statement: "His evidence that he would, in the normal course, have made other inquiries but that he had concluded that further inquiries would be fruitless, is quite unsatisfactory." 121 The second type of criticism was that the trial judge erred in finding that suspicion of Mr Stathopoulos' guilt was so great that assumptions about the plaintiff were made without adequate consideration being given to the evidence to support those assumptions. The defendants submitted: "This finding was not open, it not having been put to Mr Payne that he suspected guilt and/or failed to adequately consider the information in respect of the imputation or made any (unfounded) assumption about the [plaintiff's] conduct as described in the imputation." 122 The plaintiff's response to the first type of criticism was to accept that the defendants' stress on the honesty of Mr Payne's belief in the truth of the imputation, the nature of his source, and the inability to take further steps to verify it was appropriate as far as it went, but to say that these matters alone were insufficient to establish reasonableness. The plaintiff in effect submitted that the trial judge did not find against the defendants because of inadequate inquiries. The plaintiff concentrated on the second criticism, and on the trial judge's finding that Mr Payne gave inadequate consideration to the evidence. He said that the trial judge's approach was: "patently correct when the information obtained by Mr Payne was so limited, and when there were many other aspects of the respondent's situation which could have reflected upon Mr Payne's conclusion that the respondent was a fugitive from justice, but which he did not know, for example: · when the respondent had left for overseas · why the respondent had gone overseas · whether he had any business interests (or other interest) overseas · whether he had any regular practice of going overseas · his role in Bishopsgate beyond the fact that he was a director · his relationship with Mr Stathis · whether he knew, or might reasonably be supposed to know, about Mr Stathis' absconding · whether there was any possible reason why he might wish to avoid enquiries · his ties to Australia · whether there was anything to suggest his involvement in Mr Stathis' criminal activity in relation to Bishopsgate · whether he knew of Mr Stathis' other dubious activities (his large gambling and the outstanding criminal charge)." 123 The plaintiff also pointed out that what mattered was not the mere transmission of the very words used by Detective Sergeant Whittaker and Mr Payne's belief in those words. Mr Payne had a rather wider belief, which corresponded in part with imputation (i): "I believed he was a fugitive from justice, that he had gone overseas so that he would not be investigated in relation to the misappropriation of funds." That went beyond a mere belief that the plaintiff was "missing". The imputation came into existence because of the publication of the fact that he was missing in a broader and more damaging context - an article containing many references to the wrongs of Mr Stathopoulos, to the fact that $19 million was missing, and to the fact that Mr Stathopoulos was missing. 124 Attention must be paid to the reasonableness of the defendants' conduct in relation to the publication of the matter carrying the imputation: Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 at 705; Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 at 383. In Morgan's case, Hunt AJA (Samuels JA concurring) set out various propositions about reasonableness under s 22(1)(c), of which the following are relevant (at 387-388): "(1) The conduct must have been reasonable in the circumstances to publish each imputation found to have been in fact conveyed by the matter complained of. The more serious the imputation conveyed, the greater the obligation upon the defendant to ensure that his conduct in relation to it was reasonable. Of course, if any other defence (such as truth or comment) has already been established in relation to any particular imputation found to have been so conveyed, it is unnecessary to consider the reasonableness of the defendant's conduct in relation to the publication of that particular imputation. … (4) The defendant must also establish: (a) that, before publishing the matter complained of, he exercised reasonable care to ensure that he got his conclusions right, (where appropriate) by making proper inquiries and checking on the accuracy of his sources; (b) that his conclusions (whether statements of fact or expressions of opinion) followed logically, fairly and reasonably from the information which he had obtained; (c) that the manner and extent of the publication did not exceed what was reasonably required in the circumstances; and (d) that each imputation intended to be conveyed was relevant to the subject about which he is giving information to his readers." 125 Read as a whole, the reasons of the trial judge do not suggest that she found against the defendants because of a failure on their part to make further inquiries which might have been very difficult or impossible for them to make. Whether Mr Payne's evidence on that subject was satisfactory was not a decisive part of her reasoning. Rather, the heart of her reasoning was the proposition that there was insufficient consideration of whether the published words, and hence imputation (i), had reasonable support in the material to hand. The fact that a man is "missing" in the sense of absent, and the fact that the Fraud Squad has asked Interpol to look out for him, do not support a conclusion that he is a fugitive from justice. To conclude that he is would depend on knowing whether he had departed before any suspicion of the imminent collapse of Bishopsgate arose or in ignorance of any such suspicion; whether he had reasons for leaving the country independently of a desire to flee justice, such as seeing his brother in Estonia and assisting his aged mother during that visit, and pursuing business activities in other places; whether the places to which he was going were places he had been to before; whether the persons he was intending to see were persons he had had contacts with before; whether his ties with Australia were likely to cause an early return; whether his position in Bishopsgate was one which would enable him to foresee the collapse, or learn of any criminal activity by Mr Stathopoulos; and whether his relationship with Mr Stathopoulos enabled him to know of his criminal activities and gambling. If the facts impliedly found by the jury when it rejected the substantial truth defence had been known to Mr Payne, he would not have published the imputation. The fact that he published the imputation without knowing what the factual position was one way or the other was not reasonable. If Mr Payne was not cross-examined in terms to suggest that it was not reasonable that would not matter, since reasonableness is an objective question; in fact Mr Payne was cross-examined to show how little he knew about the plaintiff and how all of what he did know came from Detective Sergeant Whittaker and all of that was placed in the article. 126 It was implicit in the first defendant's position that it was lawful for it to publish a serious imputation supported by an ambiguous phrase emanating from a police officer even though it had been wholly unable to verify the imputation. The imputation did not arise from the phrase alone, but from the surrounding circumstances about Mr Stathopoulos described in the article. Whatever basis Mr Payne had for what was said about Mr Stathopoulos, it did not afford a reasonable basis for the imputation, which arose in large part from a suggestion of guilt by association. 127 If publishing the imputation about the plaintiff on the basis of the limited material on which it was based was not in itself reasonable, the publication was not rendered reasonable by the unproductiveness of further inquiries and the impossibility or difficulty of making other inquiries. Compliance by a defendant with the duty to check the accuracy of sources as described in paragraph (4)(a) of Hunt AJA's propositions in Morgan v John Fairfax & Sons Ltd (No 2) at 388 is not necessarily to comply with the duty of a defendant to ensure that his conclusion follows logically, fairly and reasonably from the information obtained as described in proposition (4)(b). 128 While Mr Payne made many inquiries about Bishopsgate, in truth all he learned about the plaintiff (as distinct from what he learned about the company and Mr Stathopoulos) was that he was away and that the Fraud Squad had asked Interpol to look out for him. That alone did not make it reasonable to impute that he was a fugitive from justice. 129 Grounds 17 and 18 fail.

Grounds 19 and 20: Statutory Qualified Privilege: Business Review Weekly Article 130 These grounds were: "19. Her Honour was in error in finding that the conduct of the defendants in publishing the BRW article was not reasonable in the circumstances, especially in circumstances where the only suggestion made in cross-examination to the principal author of the Sun-Herald [sic: scil BRW] article (Mr Penberthy) as to steps he should have taken in connection with the publication, but had failed to take, related to checking whether or not the plaintiff was the owner of a racehorse (T594/15-45). 20. Her Honour should have found that the conduct of the defendants in publishing the BRW article was reasonable in the circumstances, and that the defendants had accordingly established a defence of qualified privilege under s 22 of the Defamation Act 1974 in respect of that publication." 131 These grounds relate to the following part of the trial judge's judgment: "The BRW article was headed, simply, 'Bishopsgate!', and had a sub heading '$19 million is missing and the insurance and property industries are in shock'. Authorship was attributed to Jefferson Penberthy, Ross Greenwood and Ivor Ries. Mr Penberthy was also the editor of BRW at the time of publication. Mr Ries and Mr Penberthy gave evidence. Mr Penberthy took primary responsibility as the main author of the article, and also, as editor, responsibility for co-ordination of the various contributions. The article opened with the following sentence: 'On Tuesday the Sydney office of Andrew Stathis, one of the two $19 million bolters from Bishopsgate Insurance Australia Limited, looked like it had just been done over by the Beagle Boys.' The following (non consecutive) passages are also material: 'They stopped work immediately they heard that Bishopsgate had been put into provisional liquidation on Monday, and that the Greek, former exclusive Cranbrook public schoolboy Stathis, and his partner, medical practitioner and racehorse owner Dr Enn Vilo, had fled the country. Interpol was trying to check reports that they had flown, separately, last week to Japan. … Vilo, an Estonian general practitioner of exclusive Woollahra, had also called his medical partner of ten years, Dr Kilner Brazier (sic), back from the NSW snowfields on Thursday evening, calmly telling him that he had to 'go overseas on business'. … By last Monday, when it became clear that both Vilo and Stathis had left the country, the two-non executive directors of Bishopsgate Insurance, chairman Ken Doyle, an executive of the Reed Stenhouse insurance brokers group, and Campbell Gorrie, a partner of commodity brokers Richardson Mann Corporation - 25 percent owned by Stathis - went to the NSW Corporate Affairs Commission to lodge a complaint about Bishopsgate's affairs. … The deputy commissioner in charge of investigations at the Victorian CAC, Patrick Whitehouse, said on Wednesday morning: 'I got a rumour on Monday, after a complaint had been lodged in NSW. I do not know the nature of the securities that are missing, but I can only assume at this stage that they can be readily cashed. On the [face] of it, it looks like a straight case of company assets being taken. … Dr Vilo is also in his mid thirties. His medical partner said that he ran his practice quietly. 'He was conservative, not flamboyant at all, and thoroughly honourable in all his business dealings', Dr Brazier (sic) said. Dr Vilo has a wife and three children. His partner said that he never talked about horse racing, but owned an interest in the racehorse Chief Executive. Dr Brazier (sic) said he did not have much social contact with Dr Vilo, and their relationship was purely professional.' No other defence having succeeded in relation to this publication it is necessary to consider the s 22 question of reasonableness in respect to each of the three imputations. Mr Penberthy, who was then newly appointed as editor of BRW, and who had previously been engaged for the journal as a writer, received the first information about the Bishopsgate collapse. This occurred at a time close to the deadline for the next issue of the journal. For that reason, he organised the team of journalists mentioned, and allocated the tasks to each of them. Mr Penberthy believed that he had written the first 95 percent of the article but he thought that the last five or six paragraphs were not his style and that they were probably written by Mr Ries. None of the passages extracted above is contained in the last five or six paragraphs. It may therefore be taken that Mr Penberthy was most likely the author of all of the relevant passages in the publication. Mr Penberthy said that, on his recollection, Mr Greenwood had attempted to contact the plaintiff, through his wife at his home number and also at his medical practice. He said they were unsuccessful in that, but were able to speak to the plaintiff's medical partner, Dr Brasier. Mr Penberthy said that he himself attempted to ascertain the plaintiff's whereabouts and became aware that he was out of the country. Some of the information on which he based the article was derived from reports of court proceedings that took place in the Victorian Supreme Court on August 9; some was conveyed to him by Mr Whitehouse, who was employed at the Victorian Corporate Affairs Commission. Mr Ries was despatched to search records of the NSW Corporate Affairs Commission; Mr Greenwood to Bishopsgate's offices. Mr Penberthy said that Dr Brasier had told one of the team of journalists that the plaintiff had 'left the country at short notice to go overseas on business'. In his attempt to trace the plaintiff Mr Penberthy and his associates contacted the NSW Corporate Affairs Commission, the Victorian Corporate Affairs Commission, the Victorian Fraud Squad, the Australian Federal Police and Interpol. Having heard that the plaintiff was in Hong Kong, Mr Penberthy phoned two major hotels, both of which advised that they had no booking in the plaintiff's name. Mr Penberthy was asked, in his examination in chief, if he held any belief, at the time of publication, as to whether the plaintiff was a fugitive from justice. He said that he did. When asked what that belief was, he gave a lengthy answer which I reproduce from the transcript: 'I believed that he had left the country unexpectedly in circumstances that were remarkably coincidental with the departure of Mr Stathis, in circumstances that took his partner in the medical practice by surprise, that Dr Brasier had said to us that he didn't know, he had said that he was, had called Dr Brasier back from the snow fields unexpectedly to deal with business overseas and that it was unknown that he had business interests overseas, that there was a degree of disruption in the office at the medical practice, staff were upset. Then, there was the fact that Interpol had been alerted to look for both, to watch for both Dr Vilo and Mr Stathis and in this period it also became stated that Dr Vilo's wife, I think Mrs Carol Vilo, had said that he was in Hong Kong and I believe at the Regent Hotel and he was not there, not in places where he was expected to be.' (T 540) He added that he believed that any reasonable person in the plaintiff's position, if he were abroad innocently, would, in the circumstances, have returned immediately to Australia. Following these rather lengthy answers, and in response to a repeated question about his belief as to the plaintiff's status, Mr Penberthy said explicitly that he did believe that the plaintiff was a fugitive from justice and that this was a conclusion from the facts he had outlined. Mr Penberthy also said that he believed that the plaintiff had been a party to the misappropriation of funds. He referred to the same factual matters, and the plaintiff's role as one of two executive directors, both of whom were missing, as the basis for this belief. Mr Ries also gave evidence that he believed that the plaintiff and Stathis were fugitives from justice. His reason for this belief was that $19 million was missing from the company's funds, and the two directors who were in control of the funds were also missing. Mr Ries also believed that the plaintiff had appropriated funds from Bishopsgate, and this was for essentially the same reasons. The effect of the evidence given by Messrs Penberthy and Ries was that the information about what had happened in Bishopsgate came at a time shortly before the deadline for the publication of BRW. I have no doubt that they compiled the story under considerable pressure. I accept that a journal such as BRW would have expected, and would have been expected by its readers, to publish a report of the collapse of an insurance company. They had very limited time, if they were to publish anything about these events, to marshal the information. I accept both as truthful witnesses, and I accept that they and Mr Greenwood made as many inquiries, and gathered as much information, as they could, in the time available to them. But the question is not whether they acted with due diligence in the time available to them between learning of the Bishopsgate collapse and their deadline for publication; the question is whether, the time available having been so limited, and their inquiries having been constrained in that way, it was reasonable to publish what they published; further, the question is not as broad as whether it was reasonable to publish an article about the collapse of Bishopsgate; it is whether their conduct in publishing the particular imputations was reasonable in the circumstances. It is apparent that Mr Penberthy in particular drew inferences which seemed to him at the time to be reasonable, from the factual information that he had. On those limited facts, the inferences he drew are hardy surprising. But did he have enough facts to justify drawing any inferences? The reasonableness of the defendants' conduct cannot be evaluated in isolation from the gravity of the imputations which they published. To publish of an otherwise respected member of the community that he is a fugitive from justice is to publish a very serious accusation. So also is to publish the accusations of misappropriation of Bishopsgate's funds. Mr Penberthy agreed that, because of the time constraints, he had 'cut a few corners'. He agreed that he had not included in the article certain material available to him which cast a more favourable light upon the plaintiff. For example, he agreed that Dr Brasier had expressed confidence that the plaintiff would return to Australia, and he agreed that it would have been better if that had been included, and that it would have gone some way to ameliorating the impact of the defamatory imputations contained in the article. It was also suggested to him that the inclusion of seemingly irrelevant information, such as the fact that the plaintiff was of Estonian origin, and was (in fact, had been) a race horse owner were subtle ways of creating additional prejudice against the plaintiff and strengthening the adverse inferences a reader might draw, and that this goes to the assessment of reasonableness. There had been references earlier in the article to Stathopoulos' gambling habits; he was described as 'an unnamed big time punter' and it was asserted that he had failed to turn up to meet a Sydney bookmaker to settle gambling debts, or to attend 'his usual high stakes Friday night poker game'. In these circumstances the description of the plaintiff as a race horse owner had the capacity to link the plaintiff more closely with the aspersions the article cast upon Stathopoulos. It was a gratuitous piece of information, and indeed, it was inaccurate, the plaintiff having formerly had an interest in a racehorse. No doubt this piece of information was included for the purpose of adding some colour and human interest to the story, which was relatively sparse in detail about the plaintiff. In a subtle way, it was likely to have coloured the impression of the plaintiff created by the article. Other than that, it added nothing. I think it is less clear that the description of the plaintiff as of Estonian origin could be said to have coloured the article in such a way as to create prejudice against the plaintiff, but that fact, too was of little relevance. The shortness of the time available to the defendants to marshal their fact is not, in the present circumstances, a relevant consideration. While I appreciate the commercial desirability, or even perceived need, to publish a news item whilst it remains of current interest, shortness of time to establish relevant facts does not justify the publication of defamatory untrue statements. The defendants had available to them an option; they could have withheld publication until they were in a position to make all appropriate inquiries. Another alternative was to delete those passages which contained the defamatory imputations, and of which they had insufficient concrete supporting information. I have earlier mentioned that the result of the s 22 defence may be different in relation to different imputations; that is, it may be that a defendant is able to establish reasonableness of conduct in relation to the publication of one imputation, but not others. I have considered whether there is any difference in relation to the different … imputations published in BRW, and the reasonableness of the defendants' conduct, and I do not discern any. I am not satisfied that the defendants have established that their conduct was reasonable in the circumstances. I reject the defence of qualified privilege." 132 Again the defendants relied on an exhaustive analysis of the evidence revealing what Mr Penberthy knew at the time of the publication. They submitted that attempts had been made to contact the plaintiff at home and at overseas hotels, and attempts had been made to contact overseas hotels and Interpol headquarters with a view to ascertaining his whereabouts. The defendants submitted that the trial judge erred in saying that the defendants could have withheld publication until they were in a position to make all appropriate inquiries, or delete the passages conveying the imputations in respect of which they had insufficient concrete supporting information. They said she failed to give appropriate weight to the sources used by the reporters and to identify any additional source, and that her description of their sources was "superficial and inaccurate". She revealed "a failure to appreciate the importance of sources when determining the question of whether it was reasonable for Mr Penberthy to come to his belief in the truth of each of the imputations." They said she: "should have given separate consideration to the information and the sources of the information held by the [defendants] in relation to each imputation. The failure to do so demonstrates that [her] approach to the determination of whether the defence provided by section 22 … was available … was wrong in principle. "

They said: "It was not suggested in cross-examination of either Mr Penberthy or Mr Ries that any of the sources used by them was not reliable or appropriate. Nor was it suggested to Mr Penberthy or Mr Ries that either of them should not have accepted the information he received as true and accurate. Further, it was not put to either Mr Penberthy or Mr Ries that there was a further inquiry which he should have made or recognised prior to coming to his belief and prior to publishing." 133 The plaintiff again acknowledged the importance of sources and the importance of the reporters' belief in the truth of the imputations, but said that those circumstances alone were not sufficient to establish reasonableness. The plaintiff pointed out that the many items of evidence concerning the defendants' sources of information referred to by the defendants had in considerable measure nothing to do with the plaintiff at all. The plaintiff submitted that the trial judge correctly relied on the inclusion of irrelevant prejudicial material (primarily the racing aspects, but also, to the limited extent that she did, on the Estonian origins of the plaintiff). He submitted that the trial judge rightly relied on the inclusion of irrelevant prejudicial material which was substantially incorrect (the statement that the plaintiff was a race horse owner, the truth being that he had once owned two weanlings and once leased a race horse with others). The plaintiff also submitted that the trial judge was right to rely on the omission of relevant material which could have led to another conclusion, namely what Dr Brasier told the journalist to whom he spoke. The plaintiff submitted: "26. The omission of the material from Dr Brasier is of particular significance, because in the absence of the respondent, Dr Brasier was the only source who really knew the respondent. … Dr Brasier told the journalist to whom he spoke that he was sure the respondent would return, which indicated to Mr Penberthy that Dr Brasier did not believe that he had fled … . ' He made it clear that he believed he would return ' … . Mr Penberthy committed himself to the opposite conclusion, boldly proclaimed in the article - one of the two $19 million bolters', 'fled the country' . Mr Penberthy not only proceeded in the face of Dr Brasier's view, but while using information obtained from Dr Brasier to support the conclusion of flight, omitted entirely his contrary view that the respondent had not fled. In evidence he acknowledged ' It would have been better if it was there, I think ' … . His claim that the omission was not deliberate or conscious is not convincing when considered with his simultaneous statement ' I don't remember the circumstances' … . 27. Mr Penberthy justified his omission of Dr Brasier's view by saying 'I thought Dr Brasier was being loyal, perhaps naïve ' … . This is an astounding, and arrogant, rationalisation, when account is taken of the fact that Mr Penberthy had not even spoken directly to Dr Brasier, and that Dr Brasier necessarily knew rather more about the circumstances of the respondent's departure than Mr Penberthy did. Dr Brasier also, of course, had a much sounder basis, from his relationship with the respondent over several years, for judging the respondent and his behaviour." 134 The plaintiff pointed out that the article was written, and the relevant judgments made, within no more than a day and a half. Again, the plaintiff submitted that even if no further inquiries could have been made, that would not make reasonable what was otherwise unreasonable, and the totality of what was available to the defendants' journalists was not sufficient to justify publication of such serious accusations. 135 The reasoning of the trial judge has not been shaken by the defendants' criticisms. The stress placed by those criticisms on an analysis of the journalists' sources is misplaced because it is a partial inquiry. Even if the trial judge had set out the evidence on sources as fully as the defendants did in their submissions to her and to this Court, and even if she had given it the fullest weight, that would not avail the defendants. Questions about the analysis of sources overlook the real essence of the trial judge's reasoning, which fastened on a concentration by the defendants on the irrelevant and sometimes incorrect matters of prejudice and on a failure to set out Dr Brasier's opinion that the plaintiff would return. Mr Penberthy, who in one breath called Dr Brasier loyal and perhaps naive, three questions later admitted that he had no reason to disbelieve or doubt him. He admitted that, particularly since Dr Brasier was the only source he had who really knew the plaintiff, the article should have contained a statement of Dr Brasier's view that he was sure that the plaintiff would return. The omission of a report of what Dr Brasier said is hard to square with criteria of reason, particularly since the article included some material from Dr Brasier which suited the apparent purpose of its authors, namely Dr Brasier's account of being recalled by the plaintiff "back from the NSW snowfields on Thursday evening, calmly telling him that he had to 'go overseas on business'." 136 Grounds 19 and 20 fail.

Grounds 11 and 12: Contextual Imputations 137 These grounds, which were amended on the second morning of the appeal, were: "11. The jury's finding that the defendant had not proved the truth of the contextual imputation namely: the plaintiff was suspected by Officers of the Fraud Squad of fleeing from Australia because the plaintiff was involved in the defrauding of Bishopsgate Insurance Australia Limited by Andrew Stathopoulos, was perverse because: (a) the jury had heard the evidence of Commander Morgan (T672/50-60) and Mr Whittaker (T438/5-45) each of whom gave unequivocal evidence of having held the relevant suspicion; and (b) there was no matter which might have cast doubt on that testimony; and (c) it was not suggested to either Commander Morgan or Mr Whittaker in cross-examination that he (or they) had not held the relevant suspicion. 12. The only finding a reasonable jury properly instructed could make in respect of the said contextual imputation was that that imputation was a matter of substantial truth." 138 Section 16 of the Act provides: "(1) Where an imputation complained of is made by the publication of any report, article, letter, note, picture, oral utterance or other thing and another imputation is made by the same publication, the latter imputation is, for the purposes of this section, contextual to the imputations complained of. (2) It is a defence to any imputation complained of that: (a) the imputation relates to a matter of public interest or is published under qualified privilege, (b) one or more imputations contextual to the imputation complained of: (i) relate to a matter of public interest or are published under qualified privilege, and

(ii) are matters of substantial truth, and (c) by reason that those contextual imputations are matters of substantial truth, the imputation complained of does not further injure the reputation of the plaintiff."

Since it was common ground at the trial that both the imputations and the contextual imputations related to a matter of public interest, this defence remained available whatever the view of the trial judge on qualified privilege. 139 At the trial there were two relevant contextual imputations for the jury to consider. One was: "That the plaintiff was so derelict in his duties as an Executive Director of Bishopsgate that he fled Australia to avoid inquiries into the collapse and defrauding of Bishopsgate."

The other was: "That the plaintiff was suspected by officers of the Fraud Squad of fleeing from Australia because the plaintiff was involved in the defrauding of Bishopsgate Insurance Australia Limited by Andrew Stathopoulos." 140 These contextual imputations had a somewhat untidy history at the trial. 141 On 9 November 1999 Detective Sergeant Whittaker gave evidence that in 1983 he liaised between the Fraud Squad and Corporate Affairs Commission personnel; that in August 1983 he contacted Interpol in order to have the plaintiff placed on the Interpol watch list; and that he had a suspicion that the plaintiff "could have been responsible with Stathis as being the perpetrator of the fraud involving Bishopsgate". He also referred to the plaintiff as having "absconded". He was not cross-examined on that evidence. 142 On 11 November 1999 Detective Constable Morgan, who was assisting Detective Sergeant Whittaker, said that from 8 August 1983 he had suspicions that the plaintiff "was in some way involved in events which had resulted in the stripping of the insurance company of its assets". He was not cross-examined on that evidence. 143 The defendants also tendered business records constituting communications from the Australian Federal Police, apparently at Detective Sergeant Whittaker's instigation, and also the defendants would have it, with Interpol in relation to placing the plaintiff on a watch list, though since the dates of the communications are either unclear or post-date the articles they do not afford distinct corroboration for the evidence of the police officers as to their beliefs just before the articles were published. 144 Though the police officers had not been cross-examined to suggest that they did not hold the relevant suspicion, Detective Sergeant Whittaker was cross-examined about telephone calls which the plaintiff said had occurred between himself and Detective Sergeant Whittaker while the plaintiff was overseas. The plaintiff's evidence did not enable these calls to be dated with precision. Detective Sergeant Whittaker denied them. 145 The defendants addressed first. All they said on this subject was that they had proved the contextual imputation about suspicion to be substantially true because of the police officers' evidence, and they noted that there had not been cross-examination on that evidence. 146 Then the plaintiff addressed. The plaintiff advanced submissions to the jury, which the defendants identified by degrees on the first day of the appeal, about whether the phone calls had taken place and whether Detective Sergeant Whittaker's evidence about them should be rejected. Early on the second day of the appeal, however, the defendants took the court to a passage late in the plaintiff's address to the jury in which he made the point that the contextual imputation about being suspected by the police did not arise because in truth the articles said more. He then said: "I should say, don't confuse that with one point. It is quite obviously true that at one point the police suspected Mr Vilo. It is true as a fact. I do not argue with that at all. The police suspected him. But what I am saying is, that is not what the reader would take the article to be saying. They have to establish two things: First, that the reader would take the article to be saying that, and second that is true. I don't argue about the suspicion not being true, of course it is. At that period, yes it was. But, it is quite a separate question as to whether the ordinary reader would take the article to mean that and my simple point is this, the messages of the article, both articles, were far bigger bolder ones than these and these are not the things that people would go away, or among the things that people would go away thinking that the article meant."

The emphasis appearing in that passage is added, and corresponds with the volume with which those words were read to this Court by counsel for the defendants. Counsel for the plaintiff who had appeared at the trial, with characteristic candour, drew the court's attention to another, earlier, passage capable of being read as a concession that the police officers had the relevant suspicion. 147 The trial judge said the following about contextual imputations in her summing up: "The defendants also argue that each publication conveyed the additional imputation that the plaintiff was so derelict in his duties as executive director of Bishopsgate that he fled Australia to avoid enquiries into its collapse and defrauding; and they allege a further imputation, that he was suspected by officers of the Fraud Squad of fleeing Australia because he was involved in that defrauding. It is a matter for you whether you consider that either of those imputations was conveyed and, if so, whether it was defamatory. I would suggest that if you find that those imputations were conveyed you would have little difficulty in finding that each of them was defamatory but, as I say, that is a matter for you. Then you have to decide whether either of those or both of them were substantially true and again you put that into the equation and balance whether the publication of the imputation that the plaintiff had been a party with Stathopoulos to the misappropriation of $19 million did any further damage to his reputation. You will remember Mr Wheelhouse did not advance a strong argument in relation to the first imputation that he put forward, that is the imputation that the plaintiff was derelict in his duties as an executive director. As I understand it, he did not suggest that if you considered that that imputation was conveyed and was defamatory and was substantially true, that you would consider that it was so serious as to outweigh the damage done by the third imputation about stealing $19 million. However, he did argue, and strongly, that if you find any of the other imputations made out and proved true, or any combination of them, then they together would outweigh the harm done by the third imputation. I don't think there is a great deal more I can say to you about this question. It depends upon looking at the articles themselves in the same way you previously did when considering the imputations contended for by the plaintiff and weighing up the relative seriousness of those that you find to have been true, against the imputation that you are considering which necessarily you will have found not to be true. Mr Molomby put an argument to you about the two imputations which the defendants say arise additionally to the plaintiff's imputation, that is that he was derelict in his duties as director and that he was suspected by the Fraud Squad of being guilty of misappropriation. He said you would not draw those imputations from the articles because the articles go, in each case, further than that. They say more than that. They do not say he was suspected by the Fraud Squad of being guilty, they convey the imputation that he was guilty; and they do not say that he was neglectful or derelict in his duties as director, they concentrate on the fraud. It is a matter for you and, as I say, you will have to look at each article. You might find one of the articles conveys the imputations contended for by the defendants or one of them and one does not. It is very much, as before, a case of looking at the whole of the context of the articles and determining what they would mean to the ordinary reasonable reader. I have dealt with all I can in relation to that. You will remember the arguments put to you on the one hand, that these, this is the collection of imputations that were conveyed and were true, against any imputation you find conveyed was not true." 148 On the appeal the defendants complained that these directions were inadequate. They did not put that complaint to the trial judge at the time; they did not ask for any direction about the plaintiff's breach of the rule in Browne v Dunn (1893) 6 R 67 (if that rule fully survives s 46 of the Evidence Act) by reason of having not cross-examined the police officers on their suspicions; they did not ask for any direction about the plaintiff's concessions near the end of his address that the police officers had the suspicions; they did not ask for leave to serve a Notice to Admit Facts to be responded to instantly which would have reduced those concessions to written form; and they did not seek to agree a relevant fact pursuant to s 191 of the Evidence Act. Further, the defendants' complaint about the trial judge's summing up is not matched by any ground of appeal. In those circumstances that complaint should not be entertained. But that conclusion is independent of the merits of Grounds 11 and 12. 149 The jury found that both contextual imputations were not substantially true. The finding as to the first contextual imputation was not the subject of appeal. Grounds 11 and 12 were concerned with the second contextual imputation. Much time was taken up on the appeal in debate about such questions as whether the trial judge could have made it plainer to the jury that they did not have to worry greatly about the truth of the relevant contextual imputation about police suspicion in view of the plaintiff's concession near the end of address; whether the jury could legitimately have decided that the defendants had failed to discharge their burden of proof on that issue, notwithstanding the plaintiff's concession, given that the issue had to be left to the jury, on the basis that the police officers were giving evidence about events sixteen years ago without the benefit of contemporary notes and were not, contrary to one suggestion in the defendants' written submissions, directly corroborated by the Interpol documents; whether the jury could legitimately have decided that the defendants had failed to discharge their burden despite the plaintiff's failure to cross-examine the police officers and his failure directly to submit that their evidence on suspicion should be rejected; whether the telephone conversations between the plaintiff and Detective Sergeant Whittaker, if they occurred, and if they occurred at the appropriate time, constituted circumstantial evidence, taken with the fact that the plaintiff's solicitor was in touch with the police, negating his claim to have suspicions; whether, since though Detective Sergeant Whittaker had been partially attacked in address on the telephone conversations, Detective Constable Morgan had not been attacked at all, it was open to the jury to find that the latter had suspicions even though they were not satisfied that the former did, and whether that would make the contextual imputation, which referred to "officers" in the plural, something which was not a matter of "substantial truth"; whether what the plaintiff said by way of apparent concession could be read as either being a statement meaning something else, or as an attempt to say something else; whether what the plaintiff said by way of apparent concession was a concession of some suspicion other than the relevant suspicion; and whether light was cast on the last two issues by the lack of reference to the supposed concession by the defendants' failure to seek any direction about it from the trial judge and by the trial judge's failure to refer to it in her summing up. Indeed, there are other possible issues: for example, there might be a question whether the jury answers could be defended on the ground that while the police officers' evidence in chief was that they suspected the plaintiff of wrongdoing, they did not say in terms that they suspected that he had fled because of the wrongdoing. 150 However, it is not necessary to decide these points which arise out of a wholly unsatisfactory evidentiary and procedural matrix. Let it be assumed that for some reason the jury's conclusion that second the imputation was not substantially true was, as Ground 11 said, perverse. What follows? 151 So far as the Business Review Weekly article is concerned, if the jury had found that both contextual imputations had been conveyed, and that both were substantially true, it would have been a jury question whether imputations (i)-(iii) did not further injure the plaintiff's reputation. Obviously no-one at the trial could foresee what the jury findings would be until they were announced. Once they were announced, it became clear that the jury findings that the first contextual imputation was not conveyed but that the second was opened up a weakness in the defendants' position which until then had only been potential. That weakness would have existed even if the jury had found not only that the second contextual imputation was conveyed but also that it was true. The weakness would have been exposed when the jury moved to consider whether the substantial truth of the surviving contextual imputation meant that imputations (i)-(iii) did not further injure the plaintiff's reputation. Bearing in mind the terms of imputations (i)-(iii), it can be seen that the surviving contextual imputation was in substance an imputation that the plaintiff was "suspected" of carrying out the conduct alleged in imputation (i) (fleeing from justice) because of the conduct alleged in imputations (ii) and (iii) (misappropriating and being a party with Mr Stathopoulos to the misappropriation of $19 million from Bishopsgate). As a matter of logic an imputation that one is merely suspected of conduct must be less serious than an imputation of being suspected of that conduct on reasonable grounds, and must in turn be much less serious than an imputation of having in fact carried that conduct out. The contextual imputation of being suspected, since it is less serious than the imputations of having carried out the conduct suspected, was such that the latter imputations must inevitably have further injured the plaintiff's reputation. If the contextual imputation about suspicion had been the only contextual imputation pleaded, it would have been open to the plaintiff to have had it struck out of the Defence, at an early stage of the proceedings, or to have had its merits determined as a separate question under Part 31 rule 2 of the Supreme Court Rules, or to have had it withheld from the jury. However, those courses were not available to the plaintiff, because until the jury returned their verdict, the contextual imputation about suspicion was not the only contextual imputation. The other contextual imputation was a very serious one capable, if it was conveyed and if it was substantially true, of causing imputations (i)-(iii) not to have the effect of further injuring the plaintiff's reputation. 152 These grounds of appeal arise when the contextual imputation about suspicion is the only contextual imputation. In deciding whether the trial miscarried by reason of the finding of the jury which is to be assumed to be perverse, and which led to a verdict for the plaintiff, it is relevant to consider whether they could have arrived at any outcome other than a verdict for the plaintiff even if they had made a contrary finding as to the truth of that imputation. 153 In relation to the Business Review Weekly article, it was not reasonably open for them to do so. For the reasons just explained, the contextual imputation by itself was not capable of damaging the plaintiff's reputation to such an extent that imputations (i)-(iii) did not further injure it. 154 Alternatively, the court's discretion should be exercised against ordering a new trial in relation to the Business Review Weekly article. Part 51 rule 23(1) of the Supreme Court Rules provides: "(1) The Court of Appeal shall not order a new trial: (a) on the ground of misdirection, non-direction or other error of law; (b) on the ground of the improper admission or rejection of evidence; (c) where there has been a trial before a jury, on the ground that the verdict of the jury was not taken upon a question which the trial judge was not asked to leave to the jury; or (d) on any other ground, unless it appears to the Court of Appeal that some substantial wrong or miscarriage has been thereby occasioned."

The reasons why a new trial should not be ordered are as follows. The assumed error of the jury did not occasion any wrong or miscarriage because it is extremely likely that they would have reached the same conclusion even if they had not made it. Alternatively, the risk of any wrong or miscarriage having been occasioned is so slight that the wrong or miscarriage could not be described as substantial. 155 What is the position in relation to the Sun-Herald article? Here the jury only found a verdict on imputation (i), because they accepted defences of comment on imputations (ii) and (iii). The question is whether by reason of the fact that a contextual imputation that the plaintiff was suspected by officers of the Fraud Squad of fleeing from Australia because the plaintiff was involved in the defrauding of Bishopsgate by Mr Stathopoulos was substantially true, the jury could reasonably conclude that imputation (i) did not further injure the reputation of the plaintiff. There is less formal congruity between the generalised imputation of being a fugitive from justice and the imputation of being suspected of fleeing for a particular discreditable reason than there is between that generalised imputation taken with imputations (ii) and (iii) and the contextual imputation. It may be less clear that the jury must inevitably have concluded that imputation (i) did not further injure the reputation of the plaintiff. But the better view is that the contextual imputation by itself was not capable of damaging the plaintiff's reputation to such an extent that imputation (i) did not further injure it. Hence the jury could not reasonably have concluded that imputation (i) did not further injure the plaintiff's reputation. 156 But let it be postulated that that conclusion is wrong. In that event, the position would be that the defendants, assuming the jury finding on the substantial truth of the contextual imputation was perverse, have established an error which may have affected the outcome of the trial. However, the likelihood that it would have done so is so low that it cannot be said that any substantial wrong or miscarriage occurred. The court ought to exercise its discretion under Part 51 rule 23(1)(d) against ordering a new trial on imputation (i) appearing in the Sun-Herald article. 157 Grounds 11 and 12 fail.

2. The appellants are to pay the respondent's costs of the appeal.

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