(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: