Nationwide News Pty Ltd v Christopher Michael Rogers

COUNSEL : S D Rares SC/R A Campbell (Appellant) A S Martin SC/A A Henskens (Respondent) SOLICITORS : Gallagher De Reszke (Appellant) Harrington Maguire O'Brien (Respondent) CATCHWORDS : DEFAMATION - publication of newspaper article - imputation of defamation - defences - fair protected report - common law qualified privilege - statutory qualified privilege - LIABILITY - whether article was substantially accurate - Defamation Act 1974, ss 22, 24, 26 - knowledge - whether corporate knowledge of the appellant has to be taken into account - DAMAGES - whether manifestly excessive - D LEGISLATION CITED : Defamation Act 1974 (NSW) Supreme Court Act 1970 (NSW) Anderson v Nationwide News Pty Ltd (1970) 72 SR (NSW) 313; [1970] 1 NSWLR 317 Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 Bainton v John Fairfax & Sons Ltd (1991) ATR 81-143 Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 Brent Walker Group plc v Time Out Ltd [1991] 2 QB 33 Burchett v Kane (1980) 2 NSWLR 266 Calwell v Ipec Australia Ltd (1975) 135 CLR 321 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 Chakravarti v Advertiser Newspapers (1998) 193 CLR 519 Comalco Ltd v ABC (1985-1986) 64 ACR 1 Dameron v Washington Magazine Inc 779 F 2d 736, 739 (1985) Grech v Odhams Press Ltd (1958) 2 QB 275 CASES CITED: Hughes v Washington Daily News Co 193 F 2d 922, 923 Jones v John Fairfax & Sons Ltd (1986) 4 NSWLR 466 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Macdougal v Knight [1886] 17 QBD 636 Mangena v Wright [1909] 2 KB 958 Medico v Time Inc DC Pa, 509 F Supp 268 Morgan v John Fairfax & Sons Ltd (1991) 23 NSWLR 374 Palmer v John Fairfax & Sons Ltd (1986) 5 NSWLR 727 Pervan v North Queensland Land Newspaper Co Ltd (1992-1993) 178 CLR 309 Pittman v Gannett River States Publishing Corporation 836 F Supp 377 Risk Allah Bey v Whitehurst (1868) 18 LT 615 Rogers v Whitaker (1992) 175 CLR 479 Thom v Associated Newspapers Ltd (1964) 64 SR (NSW) 376 Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 DECISION : 1. Appeal allowed with costs, the respondent to have a certificate under the Suitors' Fund Act if otherwise entitled; 2. Verdict and judgment of her Honour set aside and verdict entered for the appellant; 3. Respondent to pay appellant's costs of the trial.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40868/00 DC 4067/99 MASON P STEIN JA GROVE J

Friday, 15 March 2002 NATIONWIDE NEWS PTY LIMITED v Christopher Michael ROGERS On 5 October 2000 Tupman DCJ awarded Christopher Michael Rogers ('Rogers') damages against the appellant, the publisher of the Daily Telegraph, in the sum of $250,000. Rogers sought damages for defamation following the publication of an article in the Daily Telegraph on Thursday, 22 August 1996. The appellant, Nationwide Newspapers Pty Ltd, appeals on liability and damages.

The article arose out of and was written about a judgment published by Hill J in the Federal Court on 21 August 1996. His Honour delivered judgment between Maree Lynette Whitaker, as applicant, and the Commissioner of Taxation, as respondent. The case was newsworthy because Mrs Whitaker stood to lose a significantly large proportion of the damages she had been awarded in earlier court proceedings.

The published article appeared on the front page of the newspaper and carried a banner headline 'Blind Justice'. Above it was a further headline, referred to as a 'kicker', containing the following words: Scrooge taxman wins legal battle to take $168,000 from a woman robbed of sight by a surgeon's negligence.

In addition, the body of the article also contained a 'break-out box' and featured a photograph of a woman with a cane accompanied by the caption, 'Mrs Whitaker leaves court yesterday'.

In the District Court the single imputation claimed by the plaintiff to be defamatory of him was that: The plaintiff blinded Mrs Whitaker by negligently and carelessly carrying out an eye operation on her.

He relied on a number of portions of the article as specifically supporting this meaning.

The appellant conceded that the material complained of was capable of bearing the imputation alleged and that it was defamatory. However, it raised the following defences: common law qualified privilege; statutory qualified privilege (under s 22 of the Defamation Act 1974 (the Act)); and fair protected report (under s 24 of the Act). These defences concern the basis of the appeal to the court by the appellant.

At trial, Tupman DCJ rejected each of the defences claimed by the defendant. In dismissing the defence of fair report, her Honour found that there were four identifiable mistakes or inaccuracies in the article. She concluded that the impression that the reader gained from those parts of Hill J's judgment referring to the plaintiff were substantially altered from that which would be gained simply by reading the judgment itself. In relation to the defence of common law qualified privilege, her Honour found that the publication of the article could not be said to have arisen on an occasion of qualified privilege at common law. Her Honour further found that the defendant had failed to meet the threshold of statutory qualified privilege under s 22 of the Act because the defamatory material in the article was 'unnecessary'. In conclusion her Honour held that the article had a 'sensationalist and excessive quality about it' which aggravated the damages.

On appeal the appellant argues that no sum should have been awarded for aggravated damages and that, in any event, the award was excessive. In support of its appeal on liability, the appellant contends that it established the defence of fair protected report. The report was substantially accurate and did not depart materially from the events it purported to report. The appellant further submits that:

(1) The implied constitutional freedom of communication on government and political matters as expounded by the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 571 should apply to the publication of the matter complained of;

(2) Her Honour's findings of four mistakes or inaccuracies was erroneous; and

(3) The defences of common law and statutory qualified privilege were established.

(1) The defence of qualified privilege based on Lange was not raised nor pleaded before the trial judge. The appellant ought not be permitted to raise the defence on the appeal and it should be rejected.

Held: per Stein JA (Grove J agreeing; Mason P dissenting)

(1) The defence of fair protected report under s 24(2) of the Act is established. To be a fair and accurate report, the report need not be a complete report of the judgment, nor need it be accurate in every respect. It must, however, be substantially accurate. That question is one of fact. - Chakravarti v Advertiser Newspapers (1998) 193 CLR 519 applied

(2) The fairness of the report is ascertained by applying an objective test by reference to the accuracy with which it records or summarises the event in which it purports to report. In this case the report complained of was substantially an accurate one and the inaccuracies were not such as would substantially alter the impression which a reader would have gained from reading Hill J's judgment.

(3) Each of the findings of fact of the four 'mistakes' or 'inaccuracies' were not open to be made by Tupman DCJ.

(4) Direct attribution of a judgment is not required for the defence of fair protected report to succeed. It is sufficient if it is clear on its face that the report is of a decision or judgment given in court.

(5) Knowledge under s 24 of the Act refers to the knowledge of the servants or agents of the company. The collective knowledge of the company is irrelevant to the determination of this issue.

• Waterhouse v Broadcasting Station 2GB Pty Limited (1985) 1 NSWLR 58 applied

(6) The defence of fair protected report is not defeated by s 26 of the Act. The respondent has not established an absence of good faith by the appellant and the article was for 'public information'.

(7) In the event that the court had concluded that the appellant was not entitled to the benefit of the defence of fair protected report under s 24(2) of the Act, then the court would find that the damages of $250,000 were excessive and should be substituted by a verdict of between $75,000 and $100,000.

(2) Respondent to have a certificate under the Suitors' Fund Act if otherwise entitled;

(3) Verdict and judgment of her Honour set aside and verdict entered for the appellant;

(4) Respondent to pay appellant's costs of the trial. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40868/00 DC 4067/99 MASON P STEIN JA GROVE J

Friday, 15 March 2002 NATIONWIDE NEWS PTY LIMITED v Christopher Michael ROGERS

1 MASON P: I have had the advantage of reading the judgment of Stein JA. 2 I agree with Stein JA's reasons for rejecting the defences based upon Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, common law qualified privilege and statutory qualified privilege. And I agree that damages should be reassessed, for the reasons given, but (in my view) at the figure of $75,000. 3 I would however reject the defence of fair protected report. 4 The defamatory imputation was that Dr Rogers blinded Mrs Whitaker by negligently carrying out an eye operation on her. 5 Hill J would not have intended to convey this imputation by the references he made to the litigation that culminated in the landmark decision in Rogers v Whitaker (1992) 175 CLR 479. His Honour would have been well aware that Dr Rogers' liability had turned upon what was held to be a negligent failure to advise as to the risks of the particular procedure even if performed in a competent manner by the surgeon. Unfortunately, the language used in the judgment to describe a background event may have conveyed something different to the uninformed lay reader. Hill J's references to Ms Whitaker having been "operated on by him and ultimately lost her sight in both eyes", to a "claim … for damages for personal injury" and to "damages for a personal injury [Mrs Whitaker] had suffered at the hands of Dr Rogers" unfortunately conveyed the idea that a woman with sight in both eyes had been blinded by negligently performed surgery performed by Dr Rogers. This information was not an essential part of the narrative in a judgment about a tax issue, but the judge had included it in these terms and if a fair report had been based upon those portions of the judgment it would not be actionable. 6 Did the particular article fairly report the judgment insofar as it conveyed the defamatory imputation? 7 The article did not publish the judgment or a copy of the judgment. To qualify for the defence the appellant therefore had to show that the article conveying the defamatory imputation was "a fair extract or fair abstract from, or fair summary of, the protected report" (ie the judgment of Hill J) (see Defamation Act 1974, s24(3)). 8 In my opinion the defamatory portions of the publication that gave rise to the actionable imputation did not satisfy this requirement because they were not expressly or impliedly attributed to the judgment. 9 I shall endeavour to explain why such attribution is a necessary part of the defence. 10 The essential point is that a requirement of attribution places the onus on the reporter to differentiate between the event reported (here court proceedings) upon which the reporter's privilege is derivative, on the one hand; and background information, statements of fact or the reporter's own commentary, on the other hand. The reader is thus enabled to assess and weigh the information by recognising its various sources. Since, ex hypothesi one is dealing with defamatory material it is not unreasonable to require such discrimination. 11 The entirety of a publication may purport (expressly or impliedly) to be a report, in which event the privilege may descend on the entirety if otherwise available. The matter presently complained of does not fall into this category. 12 For court proceedings, the privilege is an adjunct to the open justice principle and serves the ends of that principle. Fair reporting enlarges the court's audience and exposes those involved in the judicial drama to a wider and better informed scrutiny. The capacity of an observer or reporter to perform this critical function is not dependent upon him or her being a lawyer. It follows that the law affords a degree of latitude to the reporter. Fairness and substantial accuracy are required (Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 540, 588). But the report does not have to be a photographic reproduction and it is not to be scrutinised as though it were a legal document. 13 Fairness and accuracy have many aspects, but it is critical to recall that the issue is whether the report "faithfully reflects the events which it purports to report" (per Mason JA in Anderson v Nationwide News Pty Ltd (1970) 72 SR(NSW) 313 at 324). Even objectively false accusations are capable of being fairly reported. "The question is not whether it is fair or unfair to any particular person; the question is whether it substantially records what was said and done" (Waterhouse v Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 63 per Hunt J). 14 In the present context the relevant events capable of being reported were the culmination of the judicial proceedings in the Federal Court, represented by the orders and reasons for judgment issued by Hill J. 15 Fair comment may itself be based upon a fair report (see Defamation Act 1974, s30(1), Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 and 320-2, 335-6). But the caselaw requires a clear differentiation between that which is (fairly) reported and the (fair) comment based thereon. Proper differentiation requires that the publication purport to record the statement made on the privileged occasion (Grech v Odhams Press Ltd [1958] 2 QB 275 at 285, Burchett v Kane [1980] 2 NSWLR 266n at 267, Comalco Ltd v Australian Broadcasting Corporation (1985) 64 ACTR 1 at 62, Pervan at 321). 16 A leading English case dealing with fair comment based upon fair reportage is Mangena v Wright [1909] 2 KB 958. There, Phillimore J said (at 977): If by some unfortunate error a vote in Parliament recites, or a judge in giving the reasons of his judgment states, that which is derogatory to some person, and the charge is mistaken and ill-founded, and a newspaper reports such vote or judgment, and proceeds in another part of its issue to comment upon the character of the person affected in terms which would be fair if the charge were well founded, the newspaper which so reports and comments should be entitled to the protection of fair comment. 17 In Comalco Blackburn CJ explained why it is essential that the statement grounding the fair comment must itself purport to be, or to be a report of, a statement made on a privileged occasion. He said (at 62): I do not accept that the Mangena v Wright principle can be applied to a statement which does not purport to be, or to be a report of, a statement made on a privileged occasion. The statements in question in Mangena's and Grech's cases both did so appear. If the law were as counsel contended, a statement made twice, once on a privileged and once on an unprivileged occasion, and quoted by a defendant without specifying the occasion on which it was made, would be subject to the Mangena rule even if the defendant had quoted the statement in ignorance that it had been made on the privileged occasion. The rationale of the Mangena rule is surely that the person to whom the comment is published should know the status of the factual statement (ie that it was made on a privileged occasion) just as he is expected to be able to judge for himself the soundness of the comment. 18 I see no reason why similar principles should not apply to fair reportage simpliciter. In each case the reader is entitled to know the status of that which poses as a factual statement, in order to assess its weight and veracity. 19 Principle explains why the reasoning in this line of cases is not confined to the capacity of fair comment to be based upon fair reportage. 20 Imagine an article that stated no more than that "a prominent barrister, Mr Rumpole, was accused yesterday of deceiving the court". Surely the reader should be informed that this occurred in the privileged context of a passage of arms in court. Indeed, more specific attribution is vital to the fairness of the report. If the accusation had been made by the presiding judge, this should be reported along with a fair summary of any audible response from Rumpole. But what if the accusation came out of the mouth of a disreputable witness being pressed by Rumpole in cross-examination, or even by Rumpole's opponent? To report the accusation verbatim, without identification of source or context, would be quite unfair because the reader would be left to speculate that it might come from an authoritative and/or disinterested source. 21 Context is always vital. And the context in which literally defamatory words are uttered is critical. There are worlds of difference between an accusation of cheating made in a formal indictment, one by way of judicial reproof, and one out of the mouth of a witness who himself stands accused of some disreputable conduct. In the case of the formal indictment and the judicial reproof there would have been particulars giving context and it is hard to think of circumstances in which a fair report would not include reference to them. 22 These examples are a little away from the present case, but they serve to emphasise why attribution of context and source will be of the essence of a fair report. 23 In Burchett Samuels JA said at 273: It follows that for the purpose of s14(1), a report, as Asprey JA observed in Anderson v Nationwide News Pty Ltd , is a factual recounting of an event or situation. It is essentially descriptive of an event or a series of events and, since it is limited to an account of events which have happened, it cannot properly include the independent comments or opinions of the reporter. In Anderson's case Mason JA repeated with approval the terms of Brereton J's charge to the jury in Thom v Associated Newspapers Ltd [Brereton J, 26th April, 1963, unreported] that is, that a fair report is a substantially accurate summary of the proceedings, neither more nor less, and that the question is whether it substantially records what was said and done. And his Honour emphasized the descriptive character of a report when he spoke of "the proceedings which are the subject of the report". Herron CJ and Ferguson J spoke to the same effect in Thom's case [(1964) 64 SR(NSW) 376 at 380, 383] when they said, of a fair summary of court proceedings: "Errors may occur, but if they are such as not substantially to alter the impression that the reader would have received had he been present at the trial, the protection is not lost." 24 A reporter's commentary cannot be passed off as reportage of the proceedings. In Risk Allah Bey v Whitehurst (1868) 18 LT 615 at 618 Cockburn CJ said: A paper may give a report of the proceedings of courts of justice properly condensed and fair, but it is not entitled, under pretence of giving a report, to add comments of its own, or to display facts not brought forward in the proceedings, but coming out of the reporter's own head. 25 In that case the report insinuated the guilt of a person who had been tried for an offence and acquitted. It was therefore not a fair report of the actual proceedings. But even if the verdict had not been reached by the time of the report, the reporter could not fairly report accusations or evidence as fact (even if in a position to prove their accuracy) (see Gatley on Libel and Slander 9th ed s13.39). A publisher may be in a position to prove the accuracy of its published statement that "X is a murderer", but that will not suffice for this particular privilege unless and until such a verdict is delivered. If the assertion is made in address by prosecuting counsel or in the evidence of a witness such attribution and context would be vital to the fairness of the report. See also Halsbury's Laws of England 4th ed vol 28 (Libel and Slander), par 129. 26 Fairmindedness of the reporter does not ensure a fair report. The report must be based in fact upon the privileged event reported and the reporter bears the onus of proving this. Section 24(3) confirms that the report need not be verbatim. 27 As Hunt J demonstrated in Waterhouse at 63 (citations omitted): … to be a fair report the matter complained of must with substantial accuracy express what took place in that part of the proceedings of which it purports to be a report …. The issue will be whether the report of which the plaintiff complains substantially altered the impression which the reader would have received if he had been in court; if there is in the report a substantial misrepresentation of a material fact prejudicial to the plaintiff's reputation, the matter complained of is not a fair protected report …. A fair report is a substantially accurate summary of the proceedings, neither more nor less. The question is not whether it is fair or unfair to any particular person; the question is whether it substantially records what was said and done ….

28 The presently relevant event capable of attracting the defence of fair protected report is "proceedings in public of a court" (Defamation Act, s24 and Schedule 2 cl 2(5)). 29 The reporter cannot take the occasion of reporting proceedings as the opportunity to insert information that is not disclosed in the proceedings or to make comment that is not fairly based upon such information. To do so would not be reporting the proceedings in public, but something else. 30 United States law requires attribution in the sense that the report of privileged proceedings must specifically purport to be such. Thus, 53 Corpus Juris Secundum "Libel and Slander" s99 states: In order to render a report of an official or public proceeding privileged, the publication must contain only that which happened in the due course of the proceeding, and any matter added thereto by the publisher defamatory of plaintiff is not privileged, but it has also been held that background information may be supplied. The report must specifically purport to be a report of statements made by others rather than merely adopt such statements as the publisher's own without attribution.

The authority cited for the concluding sentence is Medico v Time Inc DC Pa, 509 F Supp 268, affirmed 643 F 2d 134, cert denied 454 US 836. 31 In 50 American Jurisprudence 2d "Libel and Slander" s316 the following appears: A threshold requirement for application of the privilege for reports of official proceedings or records has been said to be that the reported information be attributable to a proceeding or record which is official in nature, and information which has failed to meet this requirement has not gained protection of the privilege. This does not mean that each quote or statement must be specifically attributed to an official document or proceeding. Rather, it is necessary only that, when considered in context, it is clear that the article is quoting, paraphrasing or otherwise drawing upon official documents or proceedings. 32 See also Dameron v Washington Magazine Inc 779 F 2d 736, 739 (1985). In Pittman v Gannett River States Publishing Corporation 836 F Supp 377, which is the authority cited in support of the last sentence quoted from American Jurisprudence, it is stated (at 382-3): To be protected by the privilege, the statements must be attributable to an official document or proceeding. This does not mean that each quote or statement must be specifically attributed to an official document or proceeding. Rather, it is necessary only that, when considered in context, it is clear that the article is quoting, paraphrasing or otherwise drawing upon official documents or proceedings.

33 I agree with the United States cases which place the onus of attribution upon the reported. Absence of attribution means that "the publication constitutes a charge by the person uttering it, and he is responsible therefor" (Medico at 280, citing Hughes v Washington Daily News Co 193 F 2d 922, 923). 34 Canadian law appears to be to similar effect (see Brown, The Law of Defamation in Canada 2d ed, vol 1, pp920, 927) although the authorities cited are English or American. 35 Stein JA addresses the submission that the report was not substantially accurate because it contained four mistakes. I agree that the four matters are capable of being tracked to portions of the judgment and treated as substantially accurate, though not verbatim, representations of those portions. I would agree with his Honour's conclusions if the article as a whole and the defamatory portions in particular were expressly or impliedly attributable to Hill J's judgment in accordance with the principles I have stated. 36 But that is not the case. Maree Whitaker is described as "robbed of sight by a surgeon's negligence" in the bold "kicker" headline; as "blinded by a surgeon's negligence" in the opening sentence; and as "blinded during an eye operation" in the "break-out box". None of these statements purport to represent the judgment. Each of them precedes reference to it. None of them are in quotation marks or otherwise attributable to the judgment. 37 The article purports to be more than reportage of the judgment. There is additional factual content, such as the photograph of Mrs Whitaker leaving the court. There is also commentary, such as the banner headline "BLIND JUSTICE". 38 In light of the circumstances mentioned in the preceding two paragraphs, I do not see why the court should examine for signs of substantial accuracy without first identifying the areas where the reporter was purporting to report the judgment. 39 The defence of fair report therefore fails. It is unnecessary to consider the additional arguments addressing issues of knowledge and lack of good faith. 40 I would therefore allow the appeal, in part, by reducing the verdict to $75,000. I would make no orders as to the costs of the appeal. Interest to date of judgment in the court below will need recalculation. 41 STEIN JA: Introduction 42 On 5 October 2000 Tupman DCJ awarded Christopher Michael Rogers damages against the appellant, the publisher of the Daily Telegraph, in the sum of $250,000. The defamation concerned an article published in the Daily Telegraph on Thursday, 22 August 1996. The appellant appeals on liability and damages. The published article 43 The article was on the front page of the newspaper and carried a banner headline 'Blind Justice' in very large bold print. Above it was a further headline, apparently referred to in the trade as a 'kicker', in bold but much smaller type, containing the following words: Scrooge taxman wins legal battle to take $168,000 from a woman robbed of sight by a surgeon's negligence. 44 The complete text of the article, which continued from the front page onto another page of the newspaper, is as follows: Maree Whitaker, blinded by a surgeon's negligence, walked from a Sydney court yesterday the first victim of a tax department assault on compensation payouts that could reap it billions of dollars. The test case, fought in the Federal Court, means the right of the tax office to treat as income interest accrued on compensation payouts has been upheld in law.

The decision has cost Mrs Whitaker $168,000, and other people awarded compensation for injuries and other trauma face similar moves against their money. The litigation leading to the landmark ruling, which could raise billions of dollars for the government coffers from those who have been crippled in car accidents, lost limbs or suffered nervous shock, was immediately attacked as heartless. Mrs Whitaker who was awarded more than $1 million, including interest, for her lost sight labelled the tax office pursuit of her money as "barbaric". "Its discrimination at its worst," Mrs Whittaker said. Following established legal precedent, Federal Court Justice Donald Hill upheld the ATO ruling that pre-judgment interest on personal injury compensation payouts is taxable income. Justice Hill said the interest paid recompenses the plaintiff for being deprived of the use of the money awarded to them in damages. "If instead of litigation a defendant in a personal accident case had immediately paid the amount claimed then presumably the plaintiff could have invested that money and if it had been invested would have received interest upon it which would have been taxable," Justice Hill said. Mrs Whittaker was the first person to have her interest taxed and appealed to the Federal Court to overturn the decision. The decision means the ATO will keep $168,000 she had to pay in income tax on her interest. Outside the court, Mrs Whitaker said those who are awarded compensation "only get one bite of the cherry". "I realise that [the ATO] have to bring in revenue but I think they are going the wrong way about it," Mrs Whitaker said. "They are basically giving it to them with one hand and taking it away with the other". "It's like they are waiting outside the courts for compensation people to come out, give them 12 months with the money and at the end of that time say, 'don't forget half of that is ours'." In 1984, Mrs Whitaker lost sight in both eyes after an operation involving corneal grafts performed by a prominent eye surgeon. She sued for negligence in the NSW Supreme Court and was awarded $808,564, plus $64,514 in interest. Mrs Whitaker was later awarded a further $287,671 in interest after the surgeon failed in his appeal to the High Court. But the ATO determined the $353,185 in interest was subject to income tax and billed Mrs Whitaker $168,000. President of the National Tax and Accountants' Association Ltd Ray Regan said it was a devastating decision. Mr Regan said about 300,000 people who had received payouts would be affected because the ATO could apply the law retrospectively for the past four years. "Should our tax system take advantage of Maree Whitaker?" Mr Regan asked. "Should it take advantage of up to 300,000 people affected right now who clearly have got no additional amount for any provision for tax?" "Do we want our tax system to sink to such a low level where it takes advantage of compensation victims?" Mr Regan said that more than 65,000 people received this sort of compensation each year and the Government would get at least $2.5 billion a year. A press release issued by the ATO said it had paid for the cost of Mrs Whitaker's appeal. It said: "The Federal Court had confirmed today that interest income is subject to tax.

"This is not a surprising outcome. "Interest income derived from any source including investing lump sum compensation payments has always been considered assessable." Mrs Whitaker's lawyers said they would consider appealing against the decision. 45 The body of the article also contained a box, referred to as a 'break-out box', as follows:

THE CASE OF MAREE LYNETTE WHITAKER 1984: Blinded during an eye operation 1990: Successfully sues surgeon in NSW Supreme Court Awarded $808,564 in damages and $65,514 in interest 1992: Awarded a further $287,671 in interest after surgeon fails in appeal to High Court. 1996: Federal Court upholds Australian Tax Office decision to tax Mrs Whitaker $168,000 on her total interest payment of $353,185.

46 Also on the front page was a photograph of a woman with a cane accompanied by the caption, 'Mrs Whitaker leaves court yesterday'. The imputation 47 The single imputation claimed by the plaintiff in the District Court to be defamatory of him was that: The plaintiff blinded Mrs Whitaker by negligently and carelessly carrying out an eye operation on her. 48 The following portions of the article were relied on by the plaintiff as specifically supporting this meaning:

. Maree Whitaker, blinded by a surgeon's negligence

. 1984: blinded during an eye operation. 49 Also:

. In 1984, Mrs Whitaker lost sight in both eyes after an operation involving corneal grafts performed by a prominent eye surgeon. 50 The appellant publisher conceded that the material complained of was capable of bearing the imputation alleged and that it was defamatory. 51 The defences raised, with which the court is concerned on the appeal, are common law qualified privilege, statutory qualified privilege under s 22 of the Defamation Act 1974 (the Act) and fair protected report under s 24 of the Act. The judgment of Hill J in the Federal Court 52 The article arose out of and was written about a judgment published by Hill J in the Federal Court on 21 August 1996 when his Honour delivered judgment between Maree Lynette Whitaker, as applicant, and the Commissioner of Taxation, as respondent. Mrs Whitaker was challenging the decision of the Commissioner to tax her on the interest component in an award of damages she had received against Mr Rogers, the plaintiff before Tupman DCJ and respondent to the appeal. 53 The Federal Court case was noteworthy because, at that time, there had been no case in Australia which directly dealt with the issue. The decision had the potential to affect those persons who had brought proceedings for damages for personal injury arising out of negligence. 54 It was also newsworthy because Mrs Whitaker, the applicant, was blind and stood to lose a significantly large proportion of the damages she had been awarded in earlier court proceedings. 55 Hill J's judgment in the Federal Court was 25 pages long. Regard should be had to the judgment as a whole but I will set out some portions which were seen as relevant to the article published. The added emphasis is mine. In 1984 Ms Whitaker sought the services of Mr Rogers, a prominent eye surgeon, in connection with a proposed corneal graft. She was operated on by him and ultimately lost her sight in both eyes. Subsequently, she brought proceedings against Mr Rogers in the Supreme Court of New South Wales. In those proceedings she claimed damages against Mr Rogers, either for breach of contract or in negligence. In addition, she claimed in the statement of claim "Interest pursuant to s94 of the Supreme Court Act". … At the heart of the submission for the applicant is the proposition that the true character of the interest, whether determined under ss94 or 95, is to be found in the nature of the claim brought, initially, by the plaintiff. In the present case that claim was one for damages for personal injury. The award of damages in a personal negligence suit is not in any way analogous to the calculation of compensation. … Much the same can be said of the damages payable to any person injured. If instead of litigation a defendant in a personal accident case had immediately paid the amount claimed, then presumably the plaintiff could have invested that money and if it had been invested would have received interest upon it which would have been taxable. … So it is said that the amount of interest under s94 was no more than a component in the calculation of a lump sum compensation for injury designed, so far as money can do so, to put the plaintiff in the same position as he would have been if the tort had not been committed. … It is a case where the basis of calculation of the ultimate award for damage is known. It comprised, relevantly, two amounts. The first was damages for the personal injury suffered by the plaintiff; the second was the interest component under s94. …

… I differ from Davies J in concluding that pre-judgment interest is assessable income in respect of a personal injury damages claim. … In the present case Ms Whitaker claimed two separate amounts in the proceedings she commenced. The first, which was an affair of capital was damages for a personal injury she had suffered at the hands of Mr Rogers. 56 The judgment of Hill J also recounted some aspects of the earlier litigation between Mrs Whitaker and Mr Rogers. That it was initially heard by Campbell J in the NSW Supreme Court (and where that decision was reported in the law reports). His Honour also referred to the result, a judgment for Mrs Whitaker in the sum of $808,564.38 including $65,814.38 interest. The judgment further noted that Mr Rogers appealed to the NSW Court of Appeal but that his appeal was unsuccessful. Also that Mr Rogers further appealed to the High Court, which dismissed his appeal. Hill J mentioned that the High Court decision was reported as Rogers v Whitaker (1992) 175 CLR 479. The judgment in the District Court 57 Her Honour noted that the defendant conceded that the material complained of was capable of bearing the imputation alleged and that this was defamatory. Tupman DCJ then referred to some of the facts of Rogers v Whitaker litigation, no doubt gleaned from the reported decisions. Mrs Whitaker had been virtually blind in her right eye from the age of nine years. In 1984 she consulted the plaintiff, a leading ophthalmic surgeon, who had a special interest and expertise in anterior eye surgery, including corneal transplants. Mr Rogers suggested an operation to her right eye to remove scar tissue which would restore some sight to that eye, as well as having other beneficial effects. While the surgeon gave his patient information about some risks of the proposed surgery, he did not tell her of the remote possibility that she would develop a rare condition in her left eye called sympathetic ophthalmia, which if it took its full course would render her blind in that eye, making her totally blind. 58 Mr Rogers operated on Mrs Whitaker's right eye in August 1984 with the ultimate result that she suffered sympathetic ophthalmia in her left eye, discovered some weeks after the surgery. She ultimately lost the sight in her left eye and became totally blind at the beginning of 1986. 59 In the proceedings against the surgeon brought by Mrs Whitaker in the Supreme Court, Mr Rogers was found liable in negligence on the basis of a failure to warn her of the risk of developing sympathetic ophthalmia, even though that risk was small. As Hill J mentioned in the Federal Court, Mr Rogers' appeal to the Court of Appeal was unsuccessful. Further, the High Court unanimously dismissed his appeal to it. It ought be noted that there was no question that Mr Rogers conducted the operation with the required skill and care and the surgeon lost the litigation only on his failure to warn Mrs Whitaker of the risk of developing sympathetic ophthalmia. 60 Tupman DCJ noted that the litigation had received widespread publicity, including a number of articles in the Daily Telegraph and other newspapers. 61 Her Honour noted that the article complained of by the plaintiff Mr Rogers, did not refer to him by name. However, her Honour found that there was likely to be a large number of readers who were able to identify the plaintiff as the surgeon referred to. 62 Further, by the time that they read the offending article, they would not have remembered the basis upon which Mr Rogers was found to be liable in negligence. 63 The trial judge then dealt with the defences. She commenced by rejecting a defence of unlikelihood of the plaintiff suffering harm under s 13 of the Act. No appeal is made against that conclusion. 64 Her Honour then turned to the appellant's defence of a fair protected report under s 24 of the Act. As required by authority she undertook a comparison of the published article with the Federal Court judgment. 65 Her Honour found that there were four identifiable mistakes or inaccuracies in the article which deprived it of the defence of a fair report. These were:

(a) The first item in the 'breakout box' stated that in 1984 Mrs Whitaker was 'blinded during an eye operation' whereas this did not appear in Hill J's judgment.

(b) The statement that 'In 1984, Mrs Whitaker lost sight in both eyes after an operation involving corneal grafts performed by a prominent eye surgeon' did not appear in the Federal Court judgment.

(c) The headline '… women robbed of sight by a surgeon's negligence' and the first sentence of the article, 'Maree Whitaker, blinded by a surgeon's negligence … ' were not statements of fact to be found in Hill J's judgment.

(d) These same references as in (c) above were claimed in the article to have arisen as a result of personal injuries sustained by the surgeon's negligence. But this statement did not appear in Hill J's judgment. 66 In dismissing the defence the trial judge concluded that: Each of these preceding statements I accept, as a matter of fact, amount to mistaken or inaccurate reports of Justice Hill's judgment. I further accept that from reading these inaccurate reports of the judgment as part of the article as a whole, the impression that the reader gains of those parts of Justice Hill's judgment referring to the Plaintiff is substantially altered from that which would be gained simply by reading the judgment itself. In particular the article claiming to be an accurate report of the judgment leaves the reader with the impression that Mrs. Whitaker became blind during the course of corneal transplant surgery performed on both her eyes in 1984 by her eye surgeon and that this occurred because the surgeon negligently or carelessly carryout of this surgery. That is not the impression which is gained from reading Justice Hill's judgment where there is no impression gained that Mrs. Whitaker went blind during an operation on both eyes but rather ultimately, at some stage afterwards, and nor is there a clear impression left that her blindness was caused as a result of the negligent or careless surgery of the Plaintiff. 67 Turning to the defence of common law qualified privilege, her Honour said that the publication of the article could not be said to have arisen on an occasion of qualified privilege at common law. Her Honour also said that if there was a duty on the appellant to publish a story about taxation on the interest component of personal injury damages, it did not extend to publicising material defamatory of Mr Rogers in the course of fulfilling that duty. She said that the defamatory material was in fact irrelevant to the story of the conduct of the Australian Taxation Office. 68 Turning to the defence of statutory qualified privilege under s 22 of the Act, her Honour found that it failed at the threshold because the defamatory material in the article was 'unnecessary as part of passing on this information to the general public regarding the taxation issue'. The appellant failed to satisfy s 22(1)(b) because the imputation had no connection with or relevance to the provision of information on the taxation issue to the general public. Further, her Honour found that the appellant's conduct in publishing the defamatory material was not reasonable in the circumstances (s 22(1)(c)). Thus, the defence of statutory qualified privilege failed. 69 Her Honour then addressed the issue of damages. She found that Mr Rogers' reputation was damaged and he was entitled to damages for his hurt feelings. The award of damages had to be sufficient to prevent the 'grapevine' effect or the 'rumour mill' from allowing the defamation to re-emerge in the future. 70 The plaintiff did not seek damages for economic loss and, as I mentioned earlier, he was not named in the published article. 71 The plaintiff claimed aggravated damages relying on malice, and the appellant's recklessness in publishing the material. Both these contentions were rejected by her Honour. 72 However, her Honour found that the article had 'a sensationalist and excessive quality about it' which aggravated the damages. Moreover, the timing and manner of an apology published by the appellant constituted an aggravation of the plaintiff's hurt feelings. 73 Regarding aggravated damages her Honour said: Thus I accept that the Plaintiff has to some extent made out his case for aggravated damages based only on the issues of manner and extent of publishing, timing and nature of apology, sensationalist nature of the publication and falsity of the defamatory imputation. It seems to me that the most significant of these is the timing and nature of the apology and whilst I propose to incorporate an amount into the overall award of damages to take these findings into account it does not seem to me appropriate that the award of aggravated general damages should to any large extent inflate what would otherwise be the appropriate award of general damages in the same way that I accept would be appropriate if, for example, I had been satisfied that the Defendant had acted maliciously in publishing the defamatory material. 74 Tupman DCJ concluded that she should award the plaintiff the sum of $250,000 as damages. The appellant contends that no sum should have been awarded for aggravated damages and that, in any event, the award was excessive. The submissions on liability 75 Briefly summarised the appellant's submissions are as follows. The report was substantially accurate and did not depart materially from the events it purported to report. A fair minded lay reader would understand that Mr Rogers was an eye surgeon whom Mrs Whitaker had consulted in connection with a proposed corneal graft. The surgeon operated on her and ultimately she lost the sight in both eyes. Particular reliance was placed on the description by Hill J of Mrs Whitaker succeeding in recovering 'damages for a personal injury she had suffered at the hands of Dr Rogers'. [emphasis added] 76 In the submission of Mr Rares SC, on behalf of the appellant, the words used by Hill J conveyed but one meaning, that Mrs Whitaker lost her sight in both eyes after Mr Rogers operated on her and that the courts had found him liable to her in negligence for that injury. 77 Hill J's judgment did not mention that Mrs Whitaker was already blind in one eye when she consulted Mr Rogers. Nor did his Honour say that Mr Rogers was held liable for a failure to warn of the risk of sympathetic ophthalmia. 78 The appellant challenges her Honour's findings of four mistakes or inaccuracies in the matter complained of. Each is sought to be refuted. While it was conceded that Hill J did not use the exact words referred to by her Honour in the article, the report was a substantially accurate summary. 79 The respondent submits that the defence of fair protected report was not established because the defamatory statements were made as statements of fact and not attributed. Reliance is placed on Grech v Odhams Press Ltd (1958) 2 QB 275. The respondent submitted that while a report of findings in a judgment may be a fair protected report although subsequently established as wrong, it is not privileged unless it is attributed to the judge and not made as statements of fact. The respondent submits that there were four statements of fact which gave rise to the imputation, but none were attributed to Hill J. On behalf of the respondent, Mr Martin SC seeks to uphold her Honour's judgment that the matter complained of, including the mistakes and inaccuracies, substantially altered the impression a reader would gain from reading Hill J's judgment. 80 The respondent further submits that the appellant had knowledge of the true facts of the Rogers v Whitaker litigation and therefore should have been aware that the matter complained of was not fair. Also, it is contended that the matter complained of was not published in good faith for public information or the advancement of education (s 26 of the Act). 81 As to qualified privilege, the appellant seeks to raise the implied constitutional freedom of communication on government and political matters expounded by the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 571. It submits that this principle applied to the publication of the matter complained of. The respondent opposes the appellant raising this issue, in my view correctly. As Mr Martin SC pointed out, the particular reliance was not pleaded nor raised before the trial judge. 82 I do not accept that the defence based on Lange was somehow included in a general claim of qualified privilege in the pleading. Further, it does not appear that the defence was raised specifically at the hearing. If it had been, it is conceivable that the respondent may have conducted his case in a different way. Moreover, this court is deprived of the trial judge's reasons on the matter. 83 I do not know why the appellant did not raise it below. Whether it was an oversight or a deliberate forensic decision, the appellant ought not in my view be permitted to now raise this defence on appeal. 84 The appellant contends that everything of relevance was in Hill J's judgment and it was reasonable for the appellant to rely on that. The defence of common law and statutory qualified privilege was established. 85 The respondent supports her Honour's finding that the matter complained of did not fall within s 22(1)(b) of the Act in that the defamatory material was irrelevant to the giving of information to the general public regarding the taxation issue before the Federal Court. Further, the appellant had not established that it exercised reasonable care under s 22(1)(c) before publishing the matter complained of. Its conduct was, as found, unreasonable and the defamatory imputation was irrelevant to the giving of information about the taxation issue to the public. 86 By a notice of contention, the respondent seeks to overcome her Honour's finding regarding lack of malice in publishing the matter complained of. If malice is established, the defence of common law or statutory qualified privilege will be defeated (Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30). The appellant supports her Honour's finding negativing malice as based upon her assessment of the witnesses and their evidence. Her finding on malice was said to be open. 87 The respondent also submits that the publication complained of was not made in good faith (s 26 of the Act). The appellant says that the respondent did not discharge the onus of proof on him to prove the absence of good faith by the appellant. Reliance is placed on Waterhouse v Broadcasting Station 2 GB Pty Limited (1985) 1 NSWLR 58 per Hunt J. A fair protected report? 88 A 'protected report' includes a report of proceedings in public of a court (cl 2(5) Schedule 2 to the Act). Section 24(2) of the Act provides a defence for the publication of a fair protected report. 89 Subsections (3) and (4) of s 24 are in substantially similar terms and provide: (3) Where a protected report is published by any person, there is a defence for a later publication by another person of the protected report or a copy of the protected report, or of a fair extract or fair abstract from, or fair summary of, the protected report, if the second person does not, at the time of the later publication, have knowledge which should make him aware that the protected report is not fair. (4) Where material purporting to be a protected report is published by any person, there is a defence for a later publication by another person of the material or a copy of the material or of a fair extract or fair abstract from, or fair summary of, the material, if the second person does not, at the time of the later publication, have knowledge which should make him aware that the material is not a protected report or is not fair. 90 Where a defence of a fair protected report is established under s 24, it is defeated by s 26 if 'it is shown that the publication complained of was not in good faith for public information or the advancement of education'. 91 When considering a defence of a fair protected report a preliminary observation may be made which is particularly apposite in this case. What the court has to consider is what a fair minded reasonable member of the public, unversed in and unimbued with the legal niceties of the Rogers v Whitaker litigation, would ordinarily and reasonably have understood when reading Hill J's judgment. 92 The fairness of the report must be ascertained objectively by reference to the accuracy with which it records or summarises the event, which in this case is a judgment. This is achieved by comparing the report and the judgment (Anderson v Nationwide News Pty Ltd (1970) 72 SR (NSW) 313; [1970] 1 NSWR 317). It will not be a fair report if it departs considerably and materially from the judgment. 93 To be a fair and accurate report, a report need not be a complete report of the judgment, nor need it be accurate in every respect. It must, however, be substantially accurate. That question is a question of fact (Chakravarti v Advertiser Newspapers (1998) 193 CLR 519 at 540 [42] per Gaudron and Gummow JJ). 94 In Chakravarti Kirby J said at 588: Where there is a dispute as to whether a report is fair and accurate, that dispute must be resolved as a factual question by comparing the relevant record of the proceedings with the matter complained of. The test has been expressed in terms of whether the report substantially alters the impression which its recipient would have gained had he or she been present during the proceedings. The issue is not what a trained lawyer would make of the comparison. Nor is it what a particular person with particular knowledge would think. 95 It is central to her Honour's judgment on this defence that the report was not a substantially accurate one because it contained four 'mistakes' and 'inaccuracies' in reporting on the Federal Court judgment. 96 The first mistake or inaccuracy was said to be the statement in the 'break-out box' that in 1984 Mrs Whitaker was 'blinded during an eye operation'. Her Honour said that this was a statement of fact which did not appear in Hill J's judgment. In my opinion, however, this statement was a substantially accurate report of the judgment. Upon reading the whole of the judgment and, in particular portions which refer to Mrs Whitaker being 'operated on by him [the surgeon] and ultimately lost her sight in both eyes' and that she recovered damages 'for a personal injury she had suffered at the hands of Mr Rogers', an ordinary reasonable reader would obtain the impression that Mrs Whitaker had lost the sight in both eyes as a result of the surgeon's negligence. Thus 'blinded during an eye operation' did not misrepresent or distort Hill J's reasons for judgment. The summary or inference would, to the ordinary reader, be a substantially accurate one. 97 The second mistake or inaccuracy in the report which the trial judge referred to was that 'In 1984, Mrs Whitaker lost sight in both eyes after an operation involving corneal grafts performed by a prominent eye surgeon'. Her Honour said that this was a statement of fact not appearing in Hill J's judgment. Again, I have difficulty in seeing that it was a substantially inaccurate report. To me it is not a substantial misrepresentation of the judgment. Although Hill J said that Mrs Whitaker had sought the services of Mr Rogers in connection with a proposed corneal graft, the fact that he did not say that the operation which she had involved corneal grafts does not detract from its substantial accuracy. From what his Honour said a journalist, reading the judgment fairly, would be entitled to conclude that Mr Rogers performed the operation described by Hill J for the purpose for which he had found that Mrs Whitaker had sought Mr Rogers' services. Suffering her injury 'at his hands' reasonably indicated that it occurred during an operative procedure carried out by the surgeon. 98 The third inaccuracy her Honour found was in the headline '…woman robbed of sight by a surgeon's negligence' and in the opening sentence of the article 'Maree Whitaker, blinded by a surgeon's negligence …'. Her Honour said that these excerpts amounted to a defamatory imputation that Mrs Whitaker was blinded by the negligent and careless carrying out of an operation on her eyes. She held that this was a statement of fact not to be found in Hill J's judgment. 99 However, it seems to me that the impression an ordinary fair minded reader would obtain from reading Hill J's judgment is that Mrs Whitaker lost her sight as a result of Mr Rogers negligent operation on her eyes. 100 The fourth and last inaccuracy, according to her Honour, related to the same references as the third - that Mrs Whitaker's claim arose as a result of personal injuries sustained by the negligence of the surgeon. This, so her Honour said, was also a statement of fact which did not appear in Hill J's judgment. However, a fair reading by an ordinary reader of the whole of the Federal Court judgment would lead inexorably to the conclusion that Mrs Whitaker's claim arose as a result of personal injuries sustained by reason of negligence by the surgeon. There were repeated references in Hill J's judgment which would lead to this conclusion. The statements made were, in my opinion, a substantially accurate report of the judgment. The inaccuracies were, in truth, not such as would substantially alter the impression which a reader would have gained from reading Hill J's judgment. 101 Each of the findings of fact of the four 'mistakes' or 'inaccuracies' were not open to her Honour. There were in fact no such mistakes or inaccuracies and the report was a substantially accurate one. 102 However, as mentioned earlier, the respondent submits that the protection of the defence of fair protected report is not obtained where the wrong findings are not attributed to the judge but are made as statements of fact. 103 The basis of the common law and statutory defence of a fair protected report is the public's right to enter the courts of justice and see and hear what is there done, Hunt J in Waterhouse at 62. His Honour added that the publication of reports of what takes place in courts enlarges their area and communicates to the whole public what it has the right to see and hear. See also Macdougal v Knight (1889) 14 App Cas 194 at 200. 104 The authorities stand for a number of propositions, some of which have already been mentioned. They include:

. A fair protected report is a factual recording of an event and is essentially descriptive, Asprey JA in Anderson v Nationwide News Pty Ltd [1970] 1 NSWR 317, Samuels JA in Burchett v Kane (1980) 2 NSWLR 266 at 273.

. A fair and accurate report of a judgment is privileged at common law and by statute, Chakravarti at 526. It must, however, report what was said with substantial accuracy.

. A fair protected report need not be a verbatim one and can be a fair summary, Anderson at 320 - 321, Thom v Associated Newspapers Ltd (1964) 64 SR (NSW) 376 at 380, 383, 393 and Jones v John Fairfax & Sons Ltd (1986) 4 NSWLR 466 at 471.

. The test of fairness is an objective one, Mason JA in Anderson at 325.

. The report (to be a fair protected report) must convey to the reader an impression of the proceedings (or judgment) which is not substantially different from the impression the person would have obtained if present in court, Thom at 380, 393, Waterhouse at 62 - 63.

. The defence may be made out even if the protected report contains irrelevant or false facts, Waterhouse at 63 and Macdougal v Knight [1886] 17 QBD 636 at 640.

. The defendant has no obligation to verify the truth, Waterhouse at 64 - 65.

. Slight inaccuracies are immaterial if they do not substantially alter the impression of the reader, Thom at 380.

. The report does not have to be a report of the whole of the proceedings, Bainton v John Fairfax & Sons Ltd (1991) ATR 81 - 143 at 69,373. 105 It is with these general principles in mind that one must approach the submission of the respondent that, while the report does not need to be verbatim, it must be directly attributable to the judge's judgment. Care must be taken with many of the authorities relied on because a number are fair comment cases rather than fair protected reports. 106 In Mangena v Wright [1909] 2 KB 958 at 977 it was said that: If by some unfortunate error … a judge in giving the reasons of his judgment states, that which is derogatory to some person, and the charge is mistaken and ill-founded, and a newspaper reports such … judgment, and proceeds in another part of its issue to comment upon the character of the person affected in terms which would be fair if the charge were well founded, the newspaper … should be entitled to the protection of fair comment. 107 Mangena was referred to in Grech v Odhams Press Ltd [1958] 2 QB 275, relied upon by the respondent. 108 In Grech Jenkins LJ said (at 285): The so-called fair and accurate report does not attribute the statement that "Jasper Addis, an ex-solicitor …" helped Grech to draw up the petition, to Page, but gives it as a statement of fact. In this it differs from the rest of the article which, taken as a whole, attributes the various statements to the various persons who made them. No doubt the reason for this omission is that no witness did so say. The writer jumped to the conclusion that …

and If a statement made by a witness is fairly and accurately reported, and attributed to the witness who made it, then, no doubt, although the evidence given by the witness is afterwards shown to be false, the statement reported can be made the subject of fair comment. But that is not this case. 109 The above reference by Jenkins LJ to the need for attribution to a witness was seized upon by the respondent to support his contention that, for the defence to succeed, there needs to be some direct attribution to the judge or judgment. I do not understand it this way. The facts of Grech make it understandable why Jenkins LJ would say what he did about a report of a witness' evidence in court. It may also be noted that Bingham LJ did not directly address or necessarily endorse that aspect of Grech in Brent Walker Group plc v Time Out Ltd [1991] 2 QB 33. 110 Nor do I see that the respondent derives any real support for his submission from Comalco Ltd v ABC (1985 - 1986) 64 ACTR 1, a fair comment case. 111 Pervan v North Queensland Land Newspaper Co Ltd (1992 - 1993) 178 CLR 309, also a fair comment case, is more useful and includes references to Mangena, Grech and Brent Walker. From Pervan the following propositions may be obtained. The common law recognises that the making of a statement of facts on a privileged occasion entitles a commentator to make a fair and honest comment on the facts so stated as long as it is accurate (320 - 321). The defendant does not have to prove or satisfy itself of the truth of the facts but the report must be fair and accurate (325 and 333). 112 In my opinion, direct attribution of a judgment is not required for the defence of fair protected report to succeed. It is sufficient if it is clear on its face that the report is of a decision or judgment given in court. In this case it is plain that the subject matter of the article is a judgment handed down by Hill J in the Federal Court in Sydney on the preceding day. There are numerous references in the article to the Federal Court, the 'test case', the 'landmark ruling' as well as three references to Hill J, including one verbatim quote. 113 In my view, the trial judge erred and the article, in so far as it summarises the judgment, is a substantially accurate report of it. It does not distort the judgment and conveys essentially what the judge was saying. It does not convey an impression that is substantially different from the impression which would be gained if present in the court when the judgment was given. Any inaccuracies are such as to be immaterial and do not substantially alter the reader's impression. Knowledge under s 24 114 Nonetheless, it is submitted that the defence of fair protected report must fail because the appellant had knowledge, at the time of publication, that should have made it aware that the protected report was unfair. The respondent says that at the relevant time the appellant did have knowledge of the true situation, in its library and from earlier articles in the Daily Telegraph and other newspapers. 115 The evidence is clear that neither the journalist Ms Toy, nor Mr Campbell Reid, the assistant editor, who together were responsible for the article, had any knowledge of the true facts of Rogers v Whitaker. They were the persons who had input into the publication of the article and they were the relevant servants or agents of the appellant whose state of mind the appellant is responsible. The question raised by the respondent is whether the corporate knowledge of the appellant can be taken into account. 116 In Waterhouse Hunt J (at 72) said that: It should not be overlooked that what the plaintiff has to prove is a state of mind on the part of the defendant when it broadcast the report of which complaint is made in these proceedings. The defendant is a company and as such has no mind of its own; its mind must consequently be found in the servants or agents who were responsible for that broadcast. Whatever may have been the state of mind of other servants and agents of the defendant, or of the servants and agents of an associated company, is wholly irrelevant to that issue. 117 See also Palmer v John Fairfax & Sons Ltd (1986) 5 NSWLR 727 and Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354. 118 While most of the cases concern malice, it seems to me that the same principle should apply to knowledge of unfairness under s 24(3) and (4). Certainly when approaching the issue of malice in publishing her Honour accepted that the relevant knowledge was that of the journalist, Ms Toy, and Mr Reid. The same finding would have been appropriate to have been made should her Honour have had to address the knowledge issue under s 24. Section 26 119 Her Honour did not need to address s 26 of the Act because she found that the defence of fair protected report had not been satisfied. It is, of course, now necessary to address s 26. The provision states that the defence of fair protected report is defeated 'if, but only if it is shown that the publication complained of was not in good faith for public information or the advancement of education'. 120 As I mentioned earlier, her Honour found that the appellant had not been malicious or reckless. 121 Of s 26 Hunt J said in Waterhouse (at 63 - 64) that: The purpose of the publisher must be, according to s 26, to publish the report for public information or for the advancement of education. Such a purpose usually appears from the terms of the matter complained of and from the nature of the vehicle in which it is published: Calwell v Ipec Australia Ltd (1975) 135 CLR 321 at 331. Where the matter complained of purports to be a court report and it appears in a newspaper for general sale in the community, the required purpose is established. … Each such purpose looks not to the result which the defendant seeks to achieve by his publication so much as the effect which the defendant intended his publication to have upon the minds of its recipients. A plaintiff may be able to demonstrate that the defendant's purpose was otherwise in such circumstances, but it is difficult to imagine how he would go about discharging his onus to do so in those particular circumstances. The 1974 Act does, however (as did the common law and the earlier statutes), require the defendant to effect that purpose in good faith. This is where questions may arise as to the result which the defendant sought to achieve by his publication. A proprietor of a newspaper may publish a report of court proceedings in order to inform the public of what happened in those proceedings, but he does so because he bears ill-will towards the plaintiff and wishes in injure him by that publication. If the plaintiff can establish that motive , he would have discharged his onus of showing that the publication was not in good faith notwithstanding that its purpose was to inform the public. [Emphasis in report]

and The absence of good faith which the plaintiff must establish in order to defeat the defence of fair protected report is not the same as express malice, the term of art which is used to describe what a plaintiff must establish in order to defeat the defence of qualified privilege. I recently examined that concept of express malice in some detail in Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 50-54. I pointed out that if the plaintiff shows either that the defendant has used the occasion to publish the matter complained of for a purpose other than that for which the privilege is given (which is usually described as an indirect or an improper or a foreign motive) or that the defendant did not have an honest belief in the truth of what he published, the defence of qualified privilege is defeated. It is important to emphasize that this is not what the plaintiff must (or may) prove in order to demonstrate that the defendant published a fair protected report with an absence of good faith. In particular, it is not evidence of the absence of good faith which defeats the defence of fair protected report if it be shown that the defendant knew that statements made in the course of the proceedings and included in the report were false. There is no requirement that the defendant have an honest belief in the truth of what is reported. No doubt he should have an honest belief in the substantial accuracy of the report, but if the report turns out to be substantially inaccurate then no question of good faith or of the defendant's state of mind arises. There is no absence of good faith if the defendant knows that what is reported is in fact untrue. Principle demands that that be so. [Again, Hunt J's emphasis] 122 Hunt J acknowledged that he could not find any express authority exactly on the point but the proposition was clear. The respondent seeks to call his Honour's test in Waterhouse into question. Mr Martin suggests that Hunt J stated the test too broadly. However, Waterhouse has stood for 16 years and seems, with respect of Hunt J, to be a perfectly proper and appropriate statement of the law which I would be happy to endorse. 123 In the circumstances it has not been shown that the article was not published in good faith for the purpose of public information. This conclusion is supported by the evidence of the journalist and Mr Reid. The respondent has not established an absence of good faith by the appellant. I should add that it seems obvious that the article was for 'public information'. Qualified Privilege at Common Law and Statute 124 Because of my conclusion that the appellant succeeds in its defence of a fair protected report under s 24, it is unnecessary to consider the defences of common law qualified privilege and statutory qualified privilege under Division 4 of Part 3 of the Act. I will content myself to say that her Honour was entitled to reject the defences generally for the reasons she gave. 125 In particular, it was open to her to find that the appellant, who bore the onus of proving, that in publishing the matter, its conduct was reasonable, had not established the defence (s 22(1)(c)). In my opinion, Judge Tupman was entitled to find that, for the combination of reasons which she mentioned, the conduct of the appellant in publishing the material was not reasonable. I do not see that her Honour failed to follow the propositions enunciated by Hunt AJA in Morgan v John Fairfax & Sons Ltd (1991) 23 NSWLR 374 at 387 - 388. Damages 126 Because my conclusion on fair protected report leads to a verdict for the defendant, I will only briefly state my conclusions on the damages appeal. I conclude that her Honour's award of $250,000 is, in all the circumstances, a manifestly excessive one. To my thinking it is quite outside the reasonable range and is such that the court should intervene, Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 62. 127 It must be kept steadily in mind that Mr Rogers (although named in Hill J's judgment) was not named in the newspaper article. This meant that only those who knew of his earlier connection with Mrs Whitaker could identify him. It is also likely that some of those who had recall of the earlier circumstances and the litigation would have recalled the true position. Some, of course, would not have had such recall. 128 Her Honour found that there was likely to be a large number of readers who would have been able to identify Mr Rogers as the surgeon. Indeed, she said 'some hundreds'. Her Honour also found that it was likely to be many other readers who had formed the same view. 129 The plaintiff was entitled to damages for injury to his hurt feelings, to his reputation and to the vindication of his reputation. However, he did not seek to claim any economic loss. There was no evidence of any loss of income or loss of patients or referrals. 130 In addressing s 46A of the Act, her Honour seems to have used $500,000 as a starting point for non-economic loss in personal injury litigation. This may be too high a figure and $300,000 may be closer to the top of the range of general damages for personal injury. Be that as it may, whatever else ss 46 and 46A mean, they point to the need for courts to confine defamation damages to reflect the harm done by the libel. Section 46A seems to be a legislative attempt at containment of defamation damages, although perhaps not expressed in a very helpful way. 131 Whilst this was a serious libel, given the necessarily limited number of readers who would recognise the plaintiff, damages of $250,000 is excessive. Further, I cannot see that it is a case for aggravated damages. Her Honour found that the article bore a sensationalist and excessive quality and this is correct. She was also of the view that the apology was an aggravating factor. It is true that the apology was late, five days after the plaintiff commenced proceedings, and that is an aggravating factor. 132 While an apology can aggravate the damages, I do not see that this particular one did. However, it probably does not matter a great deal since her Honour made it plain that whatever she factored into the verdict for aggravation, it was not a large amount. 133 The respondent, by its contention, seeks to support her Honour's award of aggravated damages on the basis of malice and reckless indifference to the falsity or truth of the imputation. However, her Honour's findings negativing malice and recklessness were open to her and ought not be re-agitated. 134 While the defamation was a serious one and the plaintiff was entitled to be compensated for his distress and hurt feelings, and for the damage to his reputation, bearing in mind that he was not named and those who recognised him would be modest in number, $250,000 is quite excessive and liable to be set aside. If it were necessary to re-assess damages, my view would be that the sum of $100,000 would be appropriate.

1. Appeal allowed with costs, the respondent to have a certificate under the Suitors' Fund Act if otherwise entitled.

2. Verdict and judgment of her Honour set aside and verdict entered for the appellant.

3. Respondent to pay appellant's costs of the trial. 135 GROVE J: I have the advantage of reading in draft form the judgment of Mason P and Stein JA. I join the agreement with Stein JA's rejection of the defences based upon Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 and qualified privilege, either at common law or pursuant to statute. I further agree that the assessment of damages by the learned trial judge was manifestly excessive. It was observed that the respondent was not named in the article (although he was named in the judgment of Hill J) and readers who would have identified him must be limited in number. Included in those would be persons who knew that the relevant negligence pertained exclusively to failure to advise of an appreciable if remote risk. This is not an appropriate vehicle to dissert upon ss 46 and 46A of the Defamation Act 1974 (the Act) but giving full weight to the respondent's claim of damage which did not include any claim for economic loss, I would regard the assessment by Mason P of $75,000 as proportionate damages. 136 The remaining issue is the defence of fair protected report made available in terms of s24 of the Act with reference, if necessary, to s26. On this issue I am in general agreement with the judgment of Stein JA. It does not seem to me that in this case, the essence of fair report required attribution and context beyond what appeared, namely that what was being reported was the content of the judgment in the Federal Court. 137 The protection offered by the statute is not lost if a publisher chooses language which is sensational, or even lacking in good taste, provided the report retains substantial accuracy. As Asprey JA epitomized (in relation to a provision in a predecessor statute) what is required is "a fair abstract, a fair analysis, a fair summary …………..": Anderson v Nationwide News 1970 1 NSWR 317. Like Stein JA, I am unable to discern the four "mistakes" or "inaccuracies" in the reporting of the judgment of Hill J nor would I sustain the further arguments advanced on behalf of the respondent for the reasons which his Honour has given. 138 Section 24 is an important provision in enabling the proper dissemination to a wider audience of the activities of the various bodies nominated in the schedule to the Act. The content of that list evidences a common quality that the public interest in respect of each would not be well served by undue restriction upon the means of knowledge of their activities. 139 In my opinion, the appeal should be allowed.

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