Oliver v Nine Network Australia Pty Ltd

la Pty Ltd [1999] FCA 1584; (1999) 96 FCR 1 Hughes v Mirror Newspapers (1985) 3 NSWLR 504 John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 Jones v Dunkel (1959) 101 CLR 298 Lewis v Daily Telegraph Ltd [1964] AC 234 LNC Industries Limited v BMW (Australia) Limited (1983) 151 CLR 575 McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; (2001) 208 CLR 388 Rana v Google Inc [2017] FCAFC 156; (2017) 254 FCR 1 Re Culleton [2017] HCA 3; (2017) 91 ALJR 302 Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511 Reckitt Benckiser (Australia) Pty Limited v Procter & Gamble Australia Pty Limited [2018] FCA 378 Triggell v Pheeney (1951) 82 CLR 497 Trkulja v Google LLC [2018] HCA 25; (2018) 92 ALJR 619 Umoona Tjutagku Health Service Aboriginal Corporation v Walsh [2019] FCAFC 32 Webb v Bloch (1928) 41 CLR 331 Amalgamated Television Services Pty Ltd v Marsden [1998] NSWSC 4; (1998) 43 NSWLR 158 Andrews v John Fairfax & Sons [1980] 2 NSWLR 225 Baboolal v Fairfax Digital Australia and New Zealand Pty Ltd [2015] QSC 196 Bleyer v Google [2014] NSWSC 897; (2014) 88 NSWLR 670 Bristow v Adams [2012] NSWCA 166 Cassar v Network Ten Pty Ltd [2014] NSWSC 1576 Klason v Australian Capital Territory [2003] ACTSC 104; (2003) 177 FLR 216 Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418(n) Nationwide News Pty Ltd v Moodie [2003] WASCA 273; (2003) 28 WAR 314 Rayney v The State of Western Australia [No 9] [2017] WASAC 367 Wagner v Harbour Radio Pty Ltd [2018] QSC 201 Allsop, J, Federal Jurisdiction and the Jurisdiction of the Federal Court of Australia in 2002 (2002) 23 Aust Bar Rev 29 Milmo QC, P and Rogers, W V H (eds), Gatley on Libel and Slander (Thomson Reuters, 11th ed, 2008)

National Practice Area: Other Federal Jurisdiction

Counsel for the Applicant: Mr S Littlemore QC with Mr M A Polden

Solicitor for the Applicant: Watsons Solicitors & Barristers

Counsel for the Respondents: Mr B McClintock SC with Mr T Senior

AND: NINE NETWORK AUSTRALIA PTY LIMITED ACN 008 685 407 First Respondent

TCN CHANNEL NINE PTY LIMITED ACN 001 549 560 Second Respondent

NBN PTY LIMITED ACN 136 533 741 Third Respondent

JUDGE: LEE J DATE OF ORDER: 26 APRIL 2019

1. The proceeding be adjourned for the hearing of any argument as to costs and for the making of final orders at 9am on 29 April 2019.
2. Prior to 5.00pm today, the parties provide to the Associate to Justice Lee an agreed minute of order reflecting these reasons and an agreed position as to costs of the proceeding or their competing minutes of order indicating the order for costs for which they contend. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

A Introduction and the Matter Complained Of 1 Nothing good happens after two o'clock in the morning. 2 This saw reflects the wisdom that the combination of men, drink and the wee hours often occasions trouble. In a moment of apparent candour and self-reflection, Mr Oliver, the applicant in this proceeding for defamation, gave voice to this aphorism following his acquittal on charges he recklessly caused grievous bodily harm and committed an assault occasioning actual bodily harm during an altercation outside the Coogee Bay Hotel. The other participant in the scuffle was a representative rugby footballer, Mr Stannard. Lamentably, Mr Stannard was hurt to such an extent his injuries necessitated his retirement from his career as a sportsman. Presumably as a result of the involvement of Mr Stannard and the consequences of his injuries, the trial of Mr Oliver was attended by some publicity in New South Wales, including a television broadcast by the second respondent (TCN) and the third respondent (NBN) of the programme, "Nine News" commencing at 6pm on 12 September 2018. The publication was then made available on the 9Now.com.au and Facebook.com websites. 3 The publication (matter complained of or Exhibit A) was constituted by the following images and words (the following has been corrected from the transcript included in the amended statement of claim (ASOC)): IMAGES WORDS

1. Newsreader in studio with background photo of James Stannard and the caption: NO PENALTY It was a coward punch which ended the career of Rugby Sevens captain James Stannard and today he suffered another blow as the man who threw it was cleared of all charges. UK tourist Sam Oliver claimed he acted in self-defence and the magistrate agreed. The victim hit him first.
2. Reporter voice over film of James Stannard James Stannard leaves court sore and sorry.
3. James Stannard speaking I'm very disappointed in the decision today. I feel like the truth didn't come out in the hearing.
4. Reporter voice over film of Applicant at Court He just watched the man accused of coward punching him, UK tourist Sam Oliver, walk free cleared of all charges.

4 I will return to various aspects of the matter complained of below. But before dealing with this and other aspects of the case, it is useful by way of background to record that it was common ground between the parties that: (a) the charges preferred against Mr Oliver were heard in the Local Court of New South Wales before Magistrate Richard Funston from 10 to 12 September 2018; (b) Mr Stannard gave evidence at the trial that he had no recollection of the incident the subject of the charges; (c) Magistrate Funston found that Mr Stannard had struck Mr Oliver first; and (d) having found that Mr Oliver had acted in self-defence, this necessarily led to his Honour acquitting Mr Oliver. 5 The balance of these reasons will be divided into the following headings: B Jurisdiction C Principles as to Natural and Ordinary Meaning D Defamatory Meaning E Defences F Damages G Conclusion and an Observation about Costs

B Jurisdiction 6 At the commencement of the hearing it became evident, for the first time, that the contention of the respondents was that the matter complained of was broadcast solely within New South Wales. This was despite an allegation having been made by Mr Oliver that the broadcast extended to other places within the Commonwealth including the Australian Capital Territory and the Northern Territory (see ASOC at [1(b)]). 7 The significance of this allegation was that as the Full Court (Bennett, Perram and Robertson JJ) explained in Crosby v Kelly [2012] FCAFC 96; (2012) 203 FCR 451, s 9(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) has the effect of conferring upon this Court original jurisdiction over a proceeding that would be within the jurisdiction of the Australian Capital Territory or Northern Territory Supreme Courts. 8 As another Full Court (Allsop CJ, Besanko and White JJ) put it in Rana v Google Inc [2017] FCAFC 156; (2017) 254 FCR 1 at 8 [24]: … s 9(3) confers on the [Federal] Court the jurisdiction of those Territory Supreme Courts to hear and determine defamation matters that would be within their jurisdiction: Crosby v Kelly [2012] FCAFC 96; 203 FCR 451 at 458 [35] per Robertson J. As Perram J also explained at 203 FCR 452 [2], the provision creates a surrogate Commonwealth law by reference to the jurisdiction of those Territory Supreme Courts which then acts as a law of the Commonwealth under which matters may then arise. 9 Notwithstanding any controversy as to the geographical extent of publication, the respondents did not dispute that the Federal Court has jurisdiction. But this is not the end of the issue; it is trite that jurisdiction cannot be conferred by agreement and the views of the parties are not determinative of a jurisdictional question. As Griffith CJ explained in Federated Engine-Drivers and Firemen's Association of Australasia v The Broken Hill Proprietary Company Limited (1911) 12 CLR 398 at 415, the "first duty of every judicial officer is to satisfy himself that he has jurisdiction". This duty was referred to by Gageler J in Re Culleton [2017] HCA 3; (2017) 91 ALJR 302 at 306-307 [23]-[24], where his Honour regarded it of the "utmost importance" that a jurisdictional issue be raised at the earliest opportunity and for it to be considered and determined. For my part, in the light of the issue being raised, I consider it necessary that jurisdiction be established, regardless of the pragmatic approach adopted by the parties. 10 I will come back to how federal jurisdiction is indubitably attracted in relation to this matter below, but before doing so, it is worth observing that it is now somewhat unusual for there to be any issue as to the jurisdiction of this Court where the complaint arises in relation to a mass media or social media publication. Apart from the obvious point that most such publications would, one expects, be published to persons within the Territories, there are other bases upon which jurisdiction may be attracted. Without seeking to delimit these circumstances, for the purposes of illustration, I will mention a few. 11 The first merits mentioning notwithstanding it requires a short explanation of how federal jurisdiction works. For those interested (and everyone practising in courts exercising federal jurisdiction should be), the principles are explained in detail by Allsop J (as the Chief Justice then was) writing extracurially in the article Federal Jurisdiction and the Jurisdiction of the Federal Court of Australia in 2002 (2002) 23 Aust Bar Rev 29). The starting point is s 39B(1A)(c) of the Judiciary Act 1903 (Cth) (JA) which provides: The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter: ... (c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter. (emphasis added) 12 The "matter" is the justiciable controversy between the actors involved, comprised of the substratum of facts representing or amounting to the dispute or controversy between them. It is not the cause of action and is identifiable independently of a proceeding or proceedings brought for its determination: Fencott v Muller (1983) 152 CLR 570 at 603-608; Australian Securities and Investments Commission v Edensor Nominees Pty Limited [2001] HCA 1; (2001) 204 CLR 559 at 584-585 [50]. 13 When s 39B(1A)(c) of the JA was introduced in 1997, Parliament changed this Court from being a court of specific federal jurisdiction into a court of more general federal jurisdiction, extending its reach to all controversies or "matters" across all areas with respect to which the Parliament of the Commonwealth has made laws. So long as a "matter" can be said to "arise under" a law of the Parliament, then the Federal Court is vested with jurisdiction to hear the whole of the dispute. It follows that once the jurisdiction of the Court has been invoked by reference to a justiciable issue within federal jurisdiction (say, a related claim under a federal statute), the Court has "accrued" jurisdiction to determine the whole "matter" or controversy between the parties: Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511 at 584-588 [136]-[147]. Accordingly, as a matter of impression and practical judgment, if a claim for defamation not otherwise within federal jurisdiction arises out of the same "matter" which is within federal jurisdiction, then it will form part of the one justiciable controversy and, if the jurisdiction of this Court is invoked, it will be the duty of this Court, exercising Chapter III judicial power, to quell the whole controversy. It is, of course, heterodox to speak of any notion of concurrent state and federal jurisdiction. 14 Secondly, the Federal Court has original jurisdiction to hear a "pure" defamation action (that is, without the addition of any other cause of action or defence arising under a federal statute) where the publication somehow involves the consideration of the implied constitutional freedom of communication on governmental and political matters even if, as will commonly be the case, it is contended that the implied constitutional freedom will be raised by a respondent by way of defence. I have already made reference above to s 39B(1A) of the JA. Subsection (b) of that section provides that the original jurisdiction of the Court also includes jurisdiction in any matter "arising under the Constitution, or involving its interpretation". 15 Thirdly, again focussing on s 39B(1A)(b) of the JA, where there is a publication in more than one "Australian jurisdictional area" being a State (see ss 11(1) and (5) of the Defamation Act 2005 (NSW) (Act) and its cognates), the full faith and credit provision of the Constitution (s 118) is engaged so as to enable courts to recognise and apply the provisions of the various uniform Defamation Acts as modifications of the laws of each Australian jurisdictional area and the common law of Australia. This is because where publications in more than one Australian jurisdictional area are sued upon, the law of each place of publication will create a substantive right to sue on that publication in that jurisdiction: see Dow Jones & Co Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575. 16 Fourthly, and more broadly, as Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ explained in LNC Industries Limited v BMW (Australia) Limited (1983) 151 CLR 575 at 581, a federal matter arises if a right, duty or obligation in issue in the matter "owes its existence to federal law or depends upon federal law for its enforcement" including where the right claimed is in respect of a right or property that is the creation of federal law. Whether or not a matter arises does not depend upon the form of the relief sought: LNC Industries at 581. This would involve when a right or duty based on a Commonwealth statute in issue arises (even where it has not been pleaded by the parties, or a federal issue is unnecessary to decide). A common example illustrates the potential breadth of this concept. It seems to me arguable that if a respondent is a corporation, the relevant matter arises under a law made by the Parliament within the meaning of s 39B(1A)(c) of the JA. Chapter 2B of the Corporations Act 2001 (Cth) provides for the basic features of a company. As is explained in Ford, Austin & Ramsay's Principles of Corporations Law (Lexis) at [4,050], the capacity of a company created under the Corporations Act, including its ability to be sued, is to be found in s 119 when it provides that a company on registration comes into existence as a body corporate. It is s 124(1) which gives the entity powers of a body corporate (as to a company registered before the commencement of the relevant Commonwealth law, being the Corporations Act, s 1378 provides that registration under earlier state law has effect as if it were registration under Pt 2A.2 of the Corporations Act). The ability to sue the respondent as an entity now arises under and depends upon a law of the Commonwealth. 17 This and other recondite ways that jurisdiction is attracted can be put to one side for present purposes, however, because the invocation of federal jurisdiction in the present case is quite straightforward. Even if I were to find, contrary to Mr Oliver's assertion in the initial statement of claim, that upon consideration of the evidence there was no proof of publication outside New South Wales, that does not mean the matter has not always been within federal jurisdiction since the assertion was made: Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219. As the now Chief Justice noted in (2002) 23 Aust Bar Rev 29 at 45: Once a non-colourable assertion is made, that clothes the court with federal jurisdiction, which, once gained, is never lost. Owen Dixon KC's testimony to the Royal Commission on the Constitution in 1927 put the matter in pungent practical terms: So, if a tramp about to cross the bridge at Swan Hill is arrested for vagrancy and is intelligent enough to object that he is engaged in interstate commerce and cannot be obstructed, a matter arises under the Constitution. His objection may be constitutional nonsense, but his case is at once one of Federal jurisdiction. 'Colourable' imports improper purpose, or a lack of bona fides. It is not judged by reference to the strength and weakness of the case alone. Improper purpose or lack of bona fides carries with it the notion of an abuse of process. 18 There is no suggestion here that that the relevant assertion as to publication in the Territories made in the initial statement of claim was colourable. Federal jurisdiction was thereby attracted and once federal, the matter is always federal: Hooper v Kirella Pty Ltd [1999] FCA 1584; (1999) 96 FCR 1 at 13-16 [45]-[55]. If an allegation of publication in the Territories is made bona fide, the Court is properly seized with jurisdiction to deal with the controversy and always will be even if the non-colourable allegation was unnecessary to decide, abandoned, struck out, or otherwise rejected on the evidence adduced at trial. As it turns out in this case, no evidence was adduced by Mr Oliver to prove publication in the Territories being a material fact pleaded and upon which issue was joined. As a consequence, the allegation fails for want of proof, but this does not mean that federal jurisdiction, properly invoked upon the bona fide making of the allegation, somehow disappeared like a will-o'-the-wisp.

C Principles as to Natural and Ordinary Meaning 19 The relevant principles to be applied are well known and are not attended by any doubt. They are summarised, with respect helpfully and comprehensively, by White J in Hockey v Fairfax Media Publications Pty Limited [2015] FCA 652; (2015) 237 FCR 33 at 49-51 [63]-[73]. More recently, as the High Court (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ) relevantly explained in Trkulja v Google LLC [2018] HCA 25; (2018) 92 ALJR 619 at 627 [31]-[32]: The test for whether a published matter is capable of being defamatory is what ordinary reasonable people would understand by the matter complained of. In making that assessment, it is necessary to bear in mind that ordinary men and women have different temperaments and outlooks, degrees of education and life experience. As Lord Reid observed in Lewis v Daily Telegraph Ltd, "[s]ome are unusually suspicious and some are unusually naïve". So also are some unusually well educated and sophisticated while others are deprived of the benefits of those advantages. The exercise is, therefore, one of attempting to envisage a mean or midpoint of temperaments and abilities and on that basis to decide the most damaging meaning that ordinary reasonable people at the midpoint could put on the impugned words or images considering the publication as a whole. … it is often a matter of first impression. The ordinary reasonable person is not a lawyer who examines the impugned publication over-zealously but someone who views the publication casually and is prone to a degree of loose thinking. He or she may be taken to "read between the lines in the light of his general knowledge and experience of worldly affairs", but such a person also draws implications much more freely than a lawyer, especially derogatory implications, and takes into account emphasis given by conspicuous headlines or captions. Hence, as Kirby J observed in Chakravarti v Advertiser Newspapers Ltd, "[w]here words have been used which are imprecise, ambiguous or loose, a very wide latitude will be ascribed to the ordinary person to draw imputations adverse to the subject". (Citations and footnotes omitted) 20 Hence my task, as the tribunal of fact, is addressing the question as to whether the ordinary reasonable viewer would have understood the matters complained of in the defamatory sense pleaded: Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716 at 1720 [11], 1721 [17]. Meaning is to be determined objectively, by reference to the hypothetical construct of the ordinary reasonable viewer, who is taken to glean the ordinary meaning conveyed by the broadcast. It necessarily follows that the meaning the respondents intended to convey is irrelevant, as is any evidence as to how the publication was actually understood: Wagner v Harbour Radio Pty Ltd [2018] QSC 201 at [33] (Flanagan J). 21 At the risk of supererogation in setting out a passage which has been oft-cited, the summary by Hunt CJ at CL in Amalgamated Television Services Pty Ltd v Marsden [1998] NSWSC 4; (1998) 43 NSWLR 158 at 165-167 is a useful reminder: (a) the ordinary reasonable reader is a person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for a scandal; (b) that person does not live in an ivory tower but can and does read between the lines in the light of that person's general knowledge and experience of worldly affairs; (c) the mode or manner of publication is a material matter in determining whether the imputation is conveyed; (d) the more sensational a publication, the less likely it is that the ordinary reasonable person will read it with the degree of analytical care which may otherwise have been given to a less sensational publication; (e) the ordinary reasonable person considering such a publication is understandably prone to engage in a certain amount of loose thinking; (f) a wide degree of latitude is given to the capacity of the matter complained of to convey particular imputations where the words published are imprecise, ambiguous, loose, fanciful or unusual; (g) these considerations, and more, apply to matter published in a transient form, particularly in the electronic media; the reader of a written document has the opportunity to consider or to re-read the whole document at leisure and to check back on something, and in doing so change the first impression, but the listener or viewer has no such opportunity; and (h) the ordinary listener must be assumed to have heard and seen the whole of the program, but he or she may not have devoted the same degree of concentration to each part of the program as would have been given to a written article… 22 Additionally, in the circumstances of the present case, it is relevant to touch upon a further matter of emphasis which featured prominently in the arguments advanced on behalf of Mr Oliver. As McHugh J observed in John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 at 1661-1662 [26]: A reasonable reader considers the publication as a whole. Such a reader tries to strike a balance between the most extreme meaning that the words could have and the most innocent meaning. The reasonable reader considers the context as well as the words alleged to be defamatory. If "[i]n one part of [the] publication, something disreputable to the plaintiff is stated, but that is removed by the conclusion; the bane and antidote must be taken together." But this does not mean that the reasonable reader does or must give equal weight to every part of the publication. The emphasis that the publisher supplies by inserting conspicuous headlines, headings and captions is a legitimate matter that readers do and are entitled to take into account. Contrary statements in an article do not automatically negate the effect of other defamatory statements in the article. (Citations omitted) 23 As noted above, the broadcast must be taken as a whole thus reflecting that the defamatory sting of part of the broadcast may be qualified by other parts of the material. However, as Samuels JA explained in Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418(n) at 419: I do not doubt that there are occasions when a publication which seeks to refute a calumny which it expressly states may be held incapable of conveying any defamatory meaning… In the ordinary case, the material to be examined consists of the words of the publication in their natural and ordinary meaning (I leave aside any question of innuendos in the true sense) which may or may not support an imputation of a defamatory kind. But in a case such as this the material already contains a defamatory imputation; and the enquiry is whether that effect is overcome by contextual matter of an emollient kind so as to eradicate the hurt and render the whole publication harmless. (Citations omitted) 24 Put in terms of well-known jargon, it is sufficient that upon an ordinary and natural reading of the publication a defamatory imputation arises and it will be a question in each case whether the "antidote" is sufficient to off-set the "bane". The mere presence of a denial of a defamatory charge does not necessarily prevent the publication being defamatory, for the viewer may be left in the position of having to choose between inconsistent assertions: see P Milmo QC and W V H Rogers (eds), Gatley on Libel and Slander (Thomson Reuters, 11th ed, 2008) 131-132 [3.31], citing, for example, Klason v Australian Capital Territory [2003] ACTSC 104; (2003) 177 FLR 216; Baboolal v Fairfax Digital Australia and New Zealand Pty Ltd [2015] QSC 196 at [22] (Flanagan J). 25 I have viewed the matter complained of, being Exhibit A, twice. It was first viewed by me upon its tender. Following this initial viewing, the transcript of Exhibit A, (reproduced above) was repeatedly referred to by counsel and almost poured over like it was a haiku. There is a danger in this intense scrutiny distracting the tribunal of fact from its essential task. Like an advertisement I described in the different context of a comparative advertising case (Reckitt Benckiser (Australia) Pty Limited v Procter & Gamble Australia Pty Limited [2018] FCA 378 at [8]), the matter complained of here "is neither subtle nor multi-layered and deconstructing it like it was an early work of Ingmar Bergman would be as unproductive as it would be misconceived". 26 In forming conclusions as to what was conveyed to the hypothetical construct, I have also had regard to the caution expressed by Chaney J in Rayney v The State of Western Australia [No 9] [2017] WASAC 367 at [87]: I am mindful that that process of analysis creates a real danger of departing from the task of assessing the meaning of the words in a way that a reasonable person, receiving the information for the first time, would understand them according to their ordinary and natural meaning. It also tends to lead to the risk of analysis as a lawyer and of overlooking the 'important reminder for judges' that ordinary readers and listeners draw implications much more freely, especially when they are derogatory. (Citations omitted) 27 With these principles in mind, I turn to what was conveyed.

D.1 The Ambit of the Issue as to Meaning 28 In relation to each imputation that has been pleaded (as set out in D.3 below), the only controversy between the parties is whether Mr Oliver has established that the imputations were conveyed. This is because the respondents accepted that if any one of the pleaded imputations is found to have been conveyed, it is defamatory of Mr Oliver. Before considering the imputations, however, something should be said about the matter complained of as a whole.

D.2 Exhibit A Generally 29 The opening words of the broadcast, "it was a coward punch that ended the career of Rugby Sevens captain James Stannard", are spoken over two pictures of Mr Stannard over the shoulder of the newsreader: in the background, the sportsman in Australian colours; in the foreground, and more clearly, a crestfallen and diminished figure. A caption also appears, "no penalty". I do not think there can be any real doubt that the first and striking impression is that a wrongful action of another had caused a misfortune to be visited upon a sporting hero. 30 A "coward punch", as Senior Counsel for the respondents Mr McClintock SC accepted, is synonymous with a type of punch commonly known as a "king-hit". In the Macquarie Dictionary (4th ed, Macquarie, 2005), there is no entry describing a "coward punch", but the following definition appears: king-hit noun Colloquial 1. a knock-out blow. 2. any sudden misfortune king-hit verb Colloquial to punch forcibly and without warning: * Like something … had loomed up out of nowhere and king-hit him. - DAVID MALOUF 1990 31 Of course, language is dynamic, and by 2017, when the seventh edition of the Macquarie Dictionary was published, there was a definition of "coward's punch" and the definition of "king-hit" had changed. These 2017 definitions are set out below: coward's punch n. king hit (def. 1). *** king hit n. 1. A savage blow, usually to the head and often delivered without warning, which fells the opponent. 2. Colloq. any sudden, serious misfortune. king-hit v.t. (king-hit, king-hitting) Colloq. to punch forcibly and without warning; coward's punch 32 The Australian National University School of Literature, Languages and Linguistics maintains a useful and contemporary database of Australian words and idioms (http://slll.cass.anu.edu.au/centres/andc/meanings-origins/all). Consistently with the current Macquarie Dictionary definition, in relation to "king-hit", the following is recorded: A sudden, damaging blow; a knock-out punch; an unfair punch. This term is recorded from the late 19th century. In more recent years the term has been mentioned in relation to 'one-punch' assaults in Australian cities. These assaults are usually carried out by intoxicated young men in the vicinity of nightclub and hotel venues. This type of assault often takes the form of a single unprovoked and unexpected hit to the victim's head, sometimes resulting in serious head injuries or death. In this context there have been calls to replace the term king-hit with 'coward punch'. King-hit is also used as a verb. 1898 Evening News (Sydney) 2 September: He would not hit a man on the cheek. He would give him the 'King hit' - on the point - which would knock him out. 2014 Courier-Mail (Brisbane) 26 January: There is no trace of a fair go in a king hit or coward punch, as it should be known. 33 This definition accords with current and common understanding. It seems to me tolerably clear that an ordinary reasonable viewer of fair average intelligence at the time of the publication would understand the reference to a "coward punch" to be a description of a sudden, unprovoked and unanticipated attack which could also be described as a "king-hit". 34 During the course of argument, I was referred by the respondents to a decision of McCallum J (as her Honour then was) in Cassar v Network Ten Pty Ltd [2014] NSWSC 1576, being an interlocutory judgment which dealt with the provision of particulars and an issue as to whether pleaded imputations differed in substance. At [11] her Honour said: The term "king hit", as I would understand it, without having consulted a dictionary or its etymology, traditionally was used to refer to an assault in which the assailant hit the victim from behind, or in such circumstances as to afford the victim no opportunity to see the attack coming. In current parlance, however, I think it is a term which has taken on the meaning of a powerful or forceful punch. (emphasis added) 35 I will come back to Cassar in the context of considering whether it was possible to discern the discrete meaning that Mr Oliver was a coward below. For present purposes, it suffices to note, that although I accept a king-hit means "a powerful or forceful punch", that is not all the term conveys. It would be a truly bizarre comment to say that James "Buster" Douglas, who surprisingly knocked out Mike Tyson with an unexpectedly powerful or forceful punch in Tokyo in 1990, landed a king-hit or a coward punch. Nowadays the expression "coward punch" plainly conveys to an ordinary reasonable viewer of a broadcast such as Nine News, the notion that the punch amounted to an unprovoked and unexpected hit on someone who was not expecting it. 36 Returning to Exhibit A, attention is then immediately directed to the fact that Mr Stannard has "suffered another blow". Thus reinforcing the notion that he has suffered some misfortune at the hands of another and then identifying the fact that the man who occasioned the misfortune, and who threw the coward punch, was "cleared of all charges". Mr Oliver's name is then introduced, as is his claim that he acted in self-defence and the agreement of the Magistrate with this claim. It is further noted that the agreement of the Magistrate was with the contention that the "victim hit him first". 37 Pausing here, it is convenient to deal with two matters raised by Mr Oliver. The first is the notion that "claim" in this context is somehow used pejoratively; and secondly, the use and the significance of the term "victim". It seems to me the ordinary reasonable viewer would note that although Mr Oliver was the accused, he was providing some explanation for his conduct and in that sense he made a claim. Although Mr Stannard is referred to as the "victim", for an ordinary reasonable viewer, I do not consider that the use of this term has importance contextually, save for communicating the notion that it is Mr Stannard who has suffered a misfortune. This is reinforced by Mr Stannard being referred to as leaving the court "sore and sorry" and the later expression of his disappointment. 38 Mr Stannard's disappointment is then given content by the reference to the fact that he had seen the man accused of coward punching him walk free and being cleared of charges. After referring to the consequence of the actions of Mr Oliver, the end of Mr Stannard's career caused by his physical injury, there is a further reference to a claim that Mr Oliver had acted in "self-defence" after Mr Stannard had used an expletive and given him a black eye. 39 There is then a return to the notion that Mr Oliver has been cleared of all charges with added emphasis being given to what was said to be the critical finding of the Magistrate, that Mr Oliver must have been a victim of initial aggression by Mr Stannard and the difficulty in sustaining any charge against Mr Oliver because most witnesses had blurred memories. 40 Mr Stannard then gives a short statement noting that he does not condone violence and Mr Stannard's father is recorded as observing the unfortunate nature of the incident. The piece concludes with the self-realisation of Mr Oliver to which I have already made reference. 41 Viewed through the prism of the ordinary reasonable viewer, my initial, impressionistic reaction on viewing Exhibit A was entirely consistent with the impression left after a more detailed review of the transcript and a second viewing. To adopt the jargon, and leaving aside for a moment the precise imputations conveyed, the hypothetical viewer seems to me to have received the "bane" that Mr Oliver had engaged in a coward punch being a form of unprovoked attack which caused both physical injury and had the consequence for Mr Stannard of ending his rugby career; and the "antidote" that Mr Oliver was vindicated following a hearing in front of a Local Court magistrate who, after conducting a trial, affirmatively accepted Mr Oliver's contention that he had acted in self-defence after having been struck initially by Mr Stannard. 42 Although these messages are contradictory, I do not consider that the ordinary viewer of a transient broadcast receiving the messages impressionistically, would have given close thought to any logical inconsistency or tension between them. 43 More than once, Senior Counsel for Mr Oliver made reference to the "shop worn but subtle" techniques of tabloid journalism evident in the publication. That submission is correct up to a point, but I consider a number of other submissions made by Mr Oliver as to the matter do not accord with my assessment. 44 Although Mr Oliver was correct to emphasise that the viewer forms a broad impression from the whole construct of the matter, in closing submissions reference was made to the following "outstanding and effectual elements" of the broadcast: (a) The dominant graphic: NO PENALTY (i.e. for the unpunished foul play); (b) The gravity of the tone of the newsreader's assertive introduction, in which he states that "It was the coward punch that ended the career of … Stannard…". Indeed, therein is the essential impression conveyed by the entire matter, and all that follows is adversely tendentious or ineffectual lip service to Court's decision. (c) The tendentious word choices are reinforced by their tone and the manipulation of the simultaneous images: (i) it was a coward punch [spoken in a stentorian tone; by a formally-dressed newsreader, stentorian alongside the graphic: NO PENALTY, and a portrait of the melancholy 'victim'; shadowed by his former glory as a sporting hero; (ii) that ended the career (three detailed references); (ii) he suffered another blow (doubly a victim - and now of the justice system); (iii) as the man who threw the coward punch was cleared (repetition and paradox); (iv) having "claimed" he acted in self-defence (not "gave evidence that"); (v) the magistrate found the victim hit him first (victim of the man who threw the coward punch); (v) sore and sorry (doubly a victim, again); (vi) disappointed that the truth did not come out at the hearing (victim of injustice, seen in corroborative melancholy closeup with caption - Olympian); (vii) "walked free", very relieved (repetition of the acquittal paradox - he got away with it; image of the coward leaving court); (viii) the injury ruled Stannard out of the Commonwealth games (words spoken over film of Stannard the champion, diving over the tryline in triumph - this is what he's never going to do again); (viii) ending his career (the camera is pointed at a stain on a footpath - implying spilt blood); (ix) Yet Oliver "claimed" self defence (his victim suffered a catastrophic head injury, yet, but, incredibly, paradoxically, Oliver the coward-puncher claimed not self-defence, but "self-defence" (i.e. unbelievable) and that Stannard (immediately to be proved to be anti violence by his own self-serving statement) aggressively used offensive and obscene language to him: claimed he was called a "Pommy cunt" (inverted commas mean - our rugby captain would never say that); and these pejoratives are spoken over film of Oliver in police custody, evidencing corroborative shame - and trying to hide his face); (viii) Stannard solemnly declares that he does not condone violence; (repetition of his victimhood and Oliver's false claims); (ix) the reporter zips the story up: [Mr Oliver] has learnt an important lesson (NB it was he who needed correction, not his victim, who did no wrong). 45 Although it is correct that the specific imputations must be considered having regard to Exhibit A in its entirety, with particular reference to the tone, images, juxtaposition, rhetorical devices, repetitions and emphases, I have already said enough at [29]-[41] to explain why I consider that Mr Oliver's summary of the "outstanding and effectual elements" puts the matter too highly. That being said, given the context, the overall impression an ordinary viewer would receive from this transient broadcast was that Mr Oliver behaved in a way that was to be deprecated. The broadcast was pregnant with the notion that Mr Oliver had done something wrong which caused a sporting hero to suffer a misfortune. Although it is made clear that Mr Oliver was cleared of breaching the criminal norms he was accused of contravening, one is left with the overall impression that what occurred is highly unfortunate from the perspective of a prominent sportsman, and that Mr Stannard has every reason to feel sore and sorry. 46 I now turn to a consideration of the pleaded meanings.

D.3 The Pleaded Meaning 47 Mr Oliver contends in the ASOC that the publication conveyed the following defamatory imputations: (a) that he is a coward who punched a defenceless man causing him grievous injury (Imputation A); (b) that he is a coward who punched a defenceless man, ruining his career as a professional athlete (Imputation B); (c) that, despite his acquittal on a charge of cowardly criminal assault, he was guilty of that crime (Imputation C); (d) that he is a coward who would have been found guilty of a criminal assault, had the truth come out in his trial (Imputation D); (e) that he is a coward who suffered no penalty although he committed a criminal assault that ruined the career of a professional athlete (Imputation E); and (f) that he is a coward who committed inexcusable violence, ruining the career of a professional athlete (Imputation F).

D.4 Consideration of the Pleaded Imputations 48 As I noted during the course of argument (T76.31-T76.43), it seems to me that although there are some individualised differences, Imputations A, B and F fall into one broad category; and Imputations C, D and E fall into another. Consistently with this, it is convenient to consider Imputations A and B together, the only difference between them being the consequences that are said to have flowed from the coward punch. Belatedly, Mr Oliver accepted that Imputation F is not materially different from Imputation B, and hence can be put to one side. 49 As to Imputations C, D and E, these are said by Mr Oliver, to be the "he got away with it" meanings. It is convenient to deal with each of the five pleaded imputations that are pressed separately, but under these two groupings.

D.4.1 Imputation A and B 50 Dealing first with Imputations A and B, Mr Oliver submits that they are both conveyed and says that they are materially different. Imputation B is graver because it draws attention to what is described as the catastrophic consequences of the coward punch. It is said that the notion of cowardice has been linked directly with the attack. 51 The respondents contend that while it may be accepted that reference is made to a coward punch, the ordinary reasonable viewer would have understood this expression as describing a type of punch only. The respondents assert there can be no suggestion that Mr Oliver was a coward or somehow acted in a cowardly way. Taken as a whole, it was Mr Stannard who became aggressive and Mr Oliver acted in self-defence. Hence rather than Mr Oliver being a coward, he is portrayed as someone who stands up to aggression and fights back in defence. In this regard, the respondents point out the similarity between this case and that of Cassar to which I have already made reference. In that case McCallum J concluded at [12] that it was not possible to discern from the matter complained of in that case the discrete meaning that the plaintiff was a coward and nothing but a coward. Further, it is said that there is nothing in the matter complained of in this case which would lead an ordinary reasonable viewer to conclude that Mr Oliver had punched a "defenceless man". It is both explicit and implicit in what was communicated that Mr Stannard was somebody who struck first. 52 In my view, the respondents' argument that the ordinary reasonable viewer would have understood the matter as only describing a type of punch and conveying nothing about a condition or characteristic of Mr Oliver is unpersuasive. It is necessary to explain this conclusion in a little detail. 53 It seems to me there is force in the notion that an ordinary reasonable viewer would consider the reference to a coward punch, in a similar but subtly different way as the ordinary reasonable viewer would have understood a reference to a king-hit. On balance, I think each label conveys something slightly different, although they have the common thread that each describes a type of punch being an unprovoked and unexpected hit to the victim's head, likely to result in serious harm. 54 It is beyond the scope of these reasons (and the task in which I am engaged) to explore how linguistic labels alter perception (something commonly explored in the disciplines of lexical semantics, political science and the psychology of advertising). It is hardly novel that one label for an action or set of beliefs might be employed deliberately to seek to convey a message slightly different to that conveyed by a less pejorative label for the same action or beliefs. 55 The term coward punch now has a distinct meaning to an ordinary person in 2018. The expression has no doubt latterly come into common parlance for a reason. That reason, it seems to me, is that it conveys to an ordinary recipient something different about the perpetrator of the act as is conveyed by the more benign, historical term. No doubt the expression coward punch has come to be used as a way of signalling a deprecation of a violent act which is thought (by those employing the more contemporary term) not to be sufficiently brought home by the use of a term such as king-hit or, to use an Americanism, a "sucker punch". That is because it describes a characteristic of the perpetrator of such an act: that in hitting a defenceless person in an unprovoked manner, the actor is not only committing a violent act but also, distinctly, is contemptibly lacking the courage to act in a proper or fair way. 56 Of course, in making reference to why somebody might employ the term coward punch, rather than some other term, I am not losing sight of the fact that the intention of the maker of the statement has no relevance whatsoever to the assessment of what is actually conveyed to the ordinary reasonable reader. My assessment, however, is that the ordinary reasonable viewer in 2018 would understand the term coward punch as conveying something more than a mere description of a type of punch. 57 I also reject the balance of the respondents' submissions. Whatever else may be unclear, there is no doubt that taking the matter as a whole, Mr Oliver is not portrayed as someone who stands up to aggression and fights back in defence. 58 It follows that I accept that Mr Oliver is portrayed as someone who is a coward, in that he engaged in the serious act of punching a defenceless man causing him significant injury ending his career as a professional athlete. I consider Imputation A and Imputation B were each conveyed as alleged. 59 As to Imputation F, as I noted above, Mr Oliver conceded that this imputation is not materially different from Imputation B. Notwithstanding this, for the sake of completeness, it is worthwhile dealing with the respondents' assertion that Mr Oliver was excused for having hit Mr Stannard as it was found, following a trial, he was acting in self-defence. Viewed from the perspective of the ordinary reasonable viewer, however, the meaning was conveyed plainly that Mr Oliver had committed a violent unprovoked attack being behaviour for which, in a societal sense, there is no excuse. To equate, as the respondents do, a legal answer or excuse with what was conveyed to an ordinary viewer as to a lack of moral justification of Mr Oliver's actions, is artificial.

D.4.2 Imputations C, D & E 60 As noted above, Mr Oliver submits that these are the "he got away with it" meanings. It is said that the contention that there was no suggestion that Mr Oliver was guilty of the charges cannot survive scrutiny when appropriate principles are applied. 61 The material differences between the three related imputations are that Imputation C states the acquittal to be wrong; while Imputation D accepts the fact of acquittal, but says it would not have happened had the truth come out; and Imputation E covers both concepts and is graver because it includes the catastrophic consequence of Mr Oliver's "guilty" act. 62 As to Imputations C and D, the respondents contend: (a) the matter complained of says nothing about the nature of the charges Mr Oliver faced, merely that it involved a coward punch and certainly not that Mr Oliver was charged with a "cowardly criminal assault"; (b) when viewed contextually and completely, there can be no suggestion that Mr Oliver was guilty of the relevant charges despite his acquittal; in this regard there is the reference to Mr Oliver being "cleared of all charges", that there was no penalty imposed and that he was entitled to "walk free", the Magistrate having accepted Mr Oliver's account. 63 As to this submission, Mr Oliver responds by asserting that the reference to "cowardly criminal assault" conflates the issue of meaning with the precise nature of the charges laid. Because the respondents simplistically misstated the criminal charge, it is contended that they are the authors of their own misfortune. It is further submitted that there is a wide degree of latitude given to the capacity of the matter complained of to convey particular imputations where the words published are imprecise or ambiguous. 64 The respondents further submit that to the extent that Mr Oliver relies on the words attributed to Mr Stannard as conveying this imputation, the ordinary reasonable viewer would appreciate that Mr Stannard was expressing his opinion on the trial and its outcome and that inevitably he would have been disappointed and feeling the truth had not come out in circumstances where there had been a contest at trial as to who had thrown the first punch. It does not follow from these comments, it is submitted, that the ordinary reasonable viewer would understand that Mr Oliver was guilty. 65 The submissions of the respondents ought to be generally accepted. More specifically, it seems to me that it is plain beyond peradventure that viewed as a whole, the impression is gained that a judge (the Magistrate) had formed the view, after hearing all the facts at a trial, that Mr Oliver had not committed a criminal offence. Although for reasons I have expressed, one is left with the view that Mr Oliver acted in a morally blameworthy and cowardly way, I do not consider that an ordinary reasonable viewer would regard it being suggested that the Magistrate was somehow duped or that it was being suggested Mr Oliver was guilty of a crime despite the acquittal or that he somehow "got away with it". Although there is a certain tension in this conclusion with my finding that Imputations A and B were conveyed, this is hardly surprising when: (a) one is considering what was conveyed by a transient broadcast to a non-legally trained audience prone to a degree of loose thinking; and (b) the broadcast clearly contains defamatory imputations and also some emollient meanings which go some way to reduce (but not eradicate) the harm of the matter. 66 Again, as to Imputation E, this imputation suffers from the same vice in that I do not believe that the matter complained of conveyed the imputation that Mr Oliver had suffered "no penalty" although he committed a criminal assault in the sense that he had gotten way with something. I accept the respondents' submission that when taken as a whole, the matter complained of makes it clear that Mr Oliver was found not to have committed a criminal assault and that he was cleared of the charges preferred against him, it was in this sense that it would be understood by the viewer that he received "no penalty".

D.5 An Alternative Imputation? 67 Prior to receipt of submissions, I enquired of the parties as to whether an imputation in the following terms: "That [Mr Oliver] coward punched James Stannard causing serious injury and ending his career as a professional athlete", would be an imputation not substantially different from any or all of Imputations A, B and/or F. Although Mr Oliver acknowledged that this formulation "synthesised" the defamatory elements, given that Mr Oliver pressed only the five pleaded imputations considered above, any alternative imputation need not be considered further.

D.6 Conclusions on Meaning 68 Only two of the meanings pleaded, Imputation A and Imputation B, were conveyed. As noted above, given the respondents accepted that if those imputations were found to have been conveyed they would be defamatory, it is necessary to proceed further to consider any defences and relief.

E Defences 69 Two defences were raised and then persisted in by the respondents. The first was the statutory defence pursuant to s 31(3) of the Act that the matter complained of was an expression of the opinion of Mr Stannard, it related to a matter of public interest, and it was based on true facts. The second was that the matter was, or was contained in, a fair report of proceedings of public concern. 70 It was accepted, however (T100), that it was only necessary for me to deal with these defences in the event that as a matter of fact Imputations C, D or E were conveyed. Given that I have rejected the notion that those imputations were conveyed but that Mr Oliver was nonetheless defamed, the only further issue that arises is the question of relief.

F.1 Principles Relevant to Damages 71 The starting point is that s 34 of the Act provides that "[i]n determining the amount of damages to be awarded in any defamation proceeding, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded". 72 Additionally, s 35 of the Act specifies a cap for non-economic loss which is currently $398,500: Government Gazette (NSW), No 66, 29 June 2018 at 3970. Section 35(2) provides that the cap may be exceeded "if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages". 73 As Wigney J recently noted in Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185 at [338]ff, past authorities shed some light on what might be considered to be the "appropriate and rational relationship" for the purposes of s 34 including Carson v John Fairfax & Sons Limited (1993) 178 CLR 44 at 60, where a majority of the High Court noted that there are three purposes to be served by damages awarded for defamation: first, consolation for the personal distress and hurt caused to the applicant by the publication; secondly, reparation for the harm done to the applicant's reputation, and thirdly, vindication of the applicant's reputation. The first two purposes are frequently considered together, whereas "[v]indication looks to the attitude of others to the [applicant]: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the [applicant's] reputation": Carson at 61. Further, the parties agree that a convenient summary of the principles is set out in Hockey v Fairfax at 113 [446]; those statements of principle said to be relevant are referred to below, in the context of summarising the submissions of Mr Oliver. 74 Before turning to an assessment in accordance with these principles, it is appropriate to summarise the evidence as to damages.

F.2 Mr Oliver's No Show 75 The evidence going to the question of damages was left in a somewhat unusual state. At the first case management hearing, an order was made (without objection from either party) that affidavit evidence be filed and served. In doing so, my intention was to reserve to the trial the issue of what parts of the affidavit evidence would be read at the hearing, and the parts of the evidence in chief of each witness I would require to be adduced orally. 76 As it happened, the expedient of using affidavits (rather than outlines of evidence) turned out to be fortuitous in one respect. Sensibly, a number of non-contentious reputation witnesses were not required for cross-examination. This meant that the expense of those witnesses travelling from overseas was obviated, consistently with that part of the overarching purpose which is directed to minimising the expense of conduct of proceedings. 77 An unforeseen event then occurred relevant to the adduction of other evidence in Mr Oliver's case. When the applicant's case was opened, Mr Littlemore QC, who appeared on behalf of Mr Oliver, informed the court that Mr Oliver was a no-show - the hearing was to be "Hamlet without the prince". Mr Littlemore QC explained that Mr Oliver was refused a visa when he presented himself at Newcastle Airport in the United Kingdom because, apparently, he had applied for an incorrect type of visa. Unsurprisingly, Mr McClintock SC referred to this as a "bolt out of the blue" (the development only having come to the attention of the respondents the previous day). 78 After I indicated to the parties that I was quite content to sit outside of court hours to accommodate any video link evidence from the United Kingdom (T9), Mr McClintock advised that he was prepared to conduct the case on the basis that he did not need to cross-examine Mr Oliver, and Mr Littlemore noted that he did not intend to lead any further evidence from Mr Oliver beyond his affidavit and that the affidavit would be read, in his case, following the conclusion of his opening. It was further agreed between the parties that no inference would be drawn, favourable or unfavourable to either party, by reason of Mr Oliver's absence or a lack of challenge to his affidavit evidence by cross-examination. 79 If I may say so, with respect, the approach taken by the parties was both pragmatic and sensible, as one would expect from highly experienced Senior Counsel, but it inevitably resulted in a suboptimal state of affairs. I would have required (and I have no doubt that I would have been assisted in) observing Mr Oliver give evidence in chief orally as to his hurt feelings. Consistently with the agreement between the parties, however, I draw no adverse inference in oral evidence not being adduced. Nor do I approach the assessment of his evidence through application of the "rule" in Browne v Dunn (1893) 6 R 67. 80 It is worth explaining this last point in some more detail. 81 As the Full Court explained in Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 322 at 347 [74]-[78], the "rule" in Browne v Dunn has two aspects: First, it is a rule … that a party or cross-examiner who intends to invite the court to disbelieve an opposing witness put to the witness in cross-examination the grounds upon which the evidence is to be disbelieved. … The second aspect, [which has some relevance here], relates to the weight or cogency of the evidence: that is, as a general proposition, evidence, which is not inherently incredible and which is unchallenged, ought to be accepted: Precision Plastics Pty Limited v Demir [1975] HCA 27; (1975) 132 CLR 362 at 370-371 (per Gibbs J, Stephen J agreeing, Murphy J generally agreeing). The evidence may of course be rejected if it is contradicted by facts otherwise established by the evidence or the particular circumstances point to its rejection. As Samuels JA observed in Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 588 … there is no rule of law in this country that a court must accept unchallenged evidence. (emphasis added) 82 In this case, of course, the agreement between the parties means that it would be erroneous to attach significance, when assessing the weight or cogency of Mr Oliver's evidence, to the fact that it was not the subject of challenge by cross-examination. 83 The task for me is assessing Mr Oliver's case as to damages, in these circumstances, in accordance with s 140(1) of the Evidence Act 1995 (Cth) (EA). In a civil case, the court is to take into account: (a) the nature of the cause of action or defence; (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged. The mandatory considerations which s 140(2) of the EA specifies reflect a legislative intention that a court must be mindful of the forensic context in forming an opinion as to its satisfaction about matters in evidence. These concepts usually assume importance in giving effect to the notion that ordinarily the more serious the allegation or the consequences of what is contested, the more a court will have regard to the strength and weakness of evidence in coming to a conclusion: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; (2007) 162 FCR 466 at 480 [30] (Weinberg, Bennett and Rares JJ). But as Sir Owen Dixon emphasised in a number of cases, when the law requires proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found (Briginshaw v Briginshaw (1938) 60 CLR 336); a party bearing the onus will not succeed unless the whole of the evidence establishes a "reasonable satisfaction" on the preponderance of probabilities such as to sustain the relevant issue (Axon v Axon (1937) 59 CLR 395 at 403); and the "facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied": Jones v Dunkel (1959) 101 CLR 298 at 305. The nature of the fact in issue is relevant to this issue of actual persuasion. Given the wholly subjective nature of hurt to feelings, a static and clinical mode of adduction of evidence is less useful than observing a witness explain his feelings in person. 84 For reasons I have explained, it would be inappropriate to draw any adverse inferences against Mr Oliver by reason of his failure to be present or in Mr Littlemore not taking up the invitation of the Court to arrange video link evidence. However, this is not the same thing as saying that the deprivation of my ability to assess Mr Oliver giving evidence as to his subjective feelings in person is irrelevant when it comes to a consideration as to whether I have reached the required level of reasonable satisfaction or actual persuasion as to his assertions as to the extent of his hurt and distress.

F.3 Evidence Relevant to Damages 85 What might be described as the "high point" of Mr Oliver's affidavit evidence (affidavit of S Oliver, 21 February 2019 [20]-[30]) as to his injured feelings was as follows: … I was eating dinner in a hotel with my father in Sydney after the court case had been resolved. My first reaction was disgust at the biased report and how it made me look - the man who ruined a sporting hero's career… … I was upset from the start, when they said the punch I threw was a coward punch. That is totally false. They were saying I was the aggressor and made a cowardly attack on this Aussie hero. … As the item went on to the end, it meant - to me - that I made a cowardly attack on an Aussie sports hero, and ruined his life, and got away with it by lying and saying that I acted in self-defence. I find it hard to describe how hurtful that was. My first reaction was shock, then anger, then frustration … Since the broadcast, I have had to explain myself repeatedly to friends, family members, acquaintances and even strangers and potential employers. It is as if the article has put a question mark next to my acquittal. People ask me "So what really happened?", "Did he really hit you?" When my Australian family, friends and acquaintances contacted me about the Channel Nine broadcast, I felt a need to explain myself to all of them, which I found very upsetting. It was shared in a group chat I was in with my friends and I saw it. I applied for a job … when I returned to England. Obviously, the person interviewing me had been made aware of my name, because I was questioned by him about the incident in the interview. He mentioned the Australian news item and asked what had actually happened in the incident in Australia. I felt that he had doubts about me and my character. I found that very embarrassing and thought: am I going to have to go through this every time I apply for a job? 86 Mr Oliver's father gave evidence (affidavit of C Oliver, 26 February 2019 at [5]-[6]) as follows: Sam [that is, Mr Oliver] said words to this effect: "I'm speechless. Dad, I've spent months looking over my shoulder and wondering what people are saying about me and now this. What do I have to do to prove I'm innocent? It's as if Stannard is a celebrity and untouchable to the press here, and I'm always going to be guilty in their eyes." At first Sam showed no reaction other than agitation. He then became very morose and had tears in his eyes. When we were back in our hotel room, he wept and had a very sleepless night despite my attempts to counsel him through it. For the rest of our stay in Sydney, Sam was very down ... His mental state was such that all I wanted to do was get him home as soon as possible for the family to look after and care for him. 87 Additionally, Mr Oliver's mother gave evidence (affidavit of J Carter, 21 February 2019 at [6]) of having spoken to Mr Oliver, and that he sounded very upset when she told him that the matter complained of was online. Mr Oliver's girlfriend, Miss Farrar, gave evidence (affidavit of L Farrar, 21 February 2019 at [2]), that she watched the matter complained of with him and saw how upset it made him. 88 Turning to the additional witnesses called to give reputation evidence, Mr Oliver's superior, Mr Croft, saw the matter complained of and was moved to question Mr Oliver about it when he applied for a job (affidavit of M Croft, 21 February 2019 at [6]-[8], [10]). Mr Oliver's former colleague, Mr Black, saw the broadcast and, as a result, phoned Mr Oliver to discuss the broadcast with him (affidavit of R Black, 21 February 2019 at [7], [9]). 89 The sum of the evidence is that prior to publication, Mr Oliver previously enjoyed a reputation as: a decent, gentlemanly and unaggressive person (affidavit of L Farrar, 21 February 2019 at 2 [3]); a gentle, caring and hardworking man (affidavit of J Carter, 21 February 2019 at [3]); and as decent, not at all aggressive in speech or actions, reasonable and fun-loving (affidavit of R Black, 21 February 2019 at [5]). Evidence was also given of the serious nature of the suggestion that a person had thrown a coward punch in the circles in which Mr Oliver moves (affidavit of R Black, 21 February 2019 [11]-[12]). 90 A further issue relevant to damages which was the subject of evidence, was the extent of publication. The evidence discloses that TCN and NBN broadcast the matter complained of in the Sydney Metropolitan licence area and the Newcastle licence area respectively with the following estimated viewing audience: TCN Nine News (6.00pm): 280,601 Nine news (6.30pm): 271,705 Average: 276,177

NBN Nine News (6.00pm): 21,964 Nine news (6.30pm): 25,506 Average: 23,725

91 The respondents do not contest that the respondents made available for publication the matter complained of on: (a) the 9Now.com.au website and admit that there were an estimated 3,080 viewers; and (b) the Facebook.com website and admit that an estimated 6,300 persons viewed at least three seconds of the matter. 92 Finally, there was an absence of evidence of any promotional material broadcast, disseminated or distributed by the respondents in relation to the broadcast.

F.4 Mr Oliver's Submissions on Damages 93 By reference to the principles referred to by White J in Hockey, particular emphasis is placed by Mr Oliver on the following: (1) Damage to reputation need not be proved as it is presumed: Bristow v Adams at [20]-[31]; (2) damages for injured feelings form a large element in the assessment; the harm often lies more in the person's own feelings about what others are thinking of them than in any actual reputational injury, even where there are no grounds for aggravated damages: Broome v Cassell & Co Ltd [1972] AC 1027 at 1125; (3) the lack of apology: Herald and Weekly Times Limited v McGregor (1928) 41 CLR 254 at 263; Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643; (4) aggravated damages may be awarded if a respondent has acted in a manner demonstrating a lack of bona fides or improperly or unjustifiably: Triggell v Pheeney (1951) 82 CLR 497 at 514; (5) the applicant is entitled to be compensated for the natural grief and distress which he may have felt at being spoken of in defamatory terms: McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 at 104; (6) the meaning the applicant attributes to the matter complained of is admissible on damages: Hughes v Mirror Newspapers (1985) 3 NSWLR 504 at 509-510; (7) the gravity of the imputations; and (8) mass circulation. 94 Further, Mr Oliver drew attention to the evidence given as to Mr Oliver's belief as to the meanings conveyed and as to their falsity, both of which sound in damages, on the basis that the first goes to hurt to feelings, and the second goes to hurt to feelings and vindication: Hughes v Mirror Newspapers at 509; Rigby v Associated Newspapers Ltd [1969] 1 NSWR 729; Australian Consolidated Press v Uren (1966) 117 CLR 185 at 205. 95 Given the defamation was published to more than 300,000 viewers; "conveyed very serious imputations of violent crime, well above the middle of the range"; caused serious reputational damage and subjective hurt; was indefensible and untrue; and has not been the subject of any apology, it was submitted that the Mr Oliver should be awarded in excess of $250,000 plus aggravated damages.

F.5 The Respondents' Submissions on Damages 96 By way of contrast, the respondents submitted, that on any view, this is not the case for a large award of ordinary compensatory damages. Four broad reasons were advanced as to why this should be the case. 97 First, the evidence of hurt feelings consists of no more than a couple of references in the affidavit evidence and the Court was deprived of the ability to assess the extent of Mr Oliver's subjective feelings by reason of the fact that he did not give viva voce evidence. 98 Secondly, there is no or at least highly unsatisfactory evidence that Mr Oliver had any reputation in the viewing area. Mr Oliver's affidavit refers to having family in Melbourne and Ipswich (at [4]), both locations outside the viewing area. He otherwise refers to his Australian family, friends and acquaintances contacting him about the "Channel Nine broadcast" and finding it upsetting to explain himself to them (at [28]). As to the Australian family members referred to in that paragraph, no explanation is given as to how they apparently viewed a programme broadcast outside their viewing area, nor is any kind of detail provided about what was said about the broadcast, why Mr Oliver had to "explain himself", or why he found that process upsetting. 99 Thirdly, the evidence of publication in the United Kingdom was unsatisfactory in the sense that it did not come back to the respondents. There are references in the affidavit material to people in England having seen the matter complained of on Twitter (C Oliver's affidavit at [8], L Farrar's affidavit at [2]; and M Croft's affidavit at [7]). However, Mr Oliver makes no claim for publication on Twitter (as opposed to publication on the 9Now and Facebook websites). Mr Oliver's mother refers to having seen "the Channel 9 News on-line" (at [6]) but does not specify on which website or platform she viewed it; and as to promotion on Twitter (pleaded in the ASOC at [7(c)] in support of an award of aggravated damages), there is no evidence adduced as to such promotion on Twitter or other social media. 100 Fourthly, while the imputations are not trivial, they are not at the most serious end of the spectrum. 101 As to aggravated damages, the respondents draw attention to how the case for aggravated damages was put in the ASOC. This was based on assertions as to the respondents' conduct in: (a) publishing the story in a sensationalised manner, indicating an intention to injure Mr Oliver; (b) expressing or implying disrespect for the judgment of the Magistrate and that Mr Oliver was indeed guilty; (c) promoting the proposed publication of the story on social media, repeating the defamatory imputations to viewers throughout the world; (d) disingenuously asserting that the story was a fair and accurate report of the trial; (e) disingenuously denying that the story contained any direct or indirect reference to Mr Oliver being a coward; (f) disingenuously denying that Mr Oliver has any right to damages; (g) disingenuously denying that it should apologise for the story and retract it; and (h) disingenuously denying defamation, but removing the story from social media. 102 Further, during the course of the hearing on 25 March 2019, counsel for Mr Oliver advanced as a further ground for aggravated damages the evidence in Mr Oliver's affidavit at [21] and his father's affidavit at [5] (T108.24-T110.7) as to hurt feelings. 103 After identifying the way the case was put, the respondents noted that while an award of aggravated damages may be made if a respondent has acted in a manner which demonstrates a lack of bona fides or in a manner which is improper or unjustifiable, this is a limiting principle, without which every unsuccessful respondent would face the risk of an award of aggravated damages simply by defending the action. As Isaacs J put it in Herald and Weekly Times Limited v McGregor (1928) 41 CLR 254 at 267: If the defence be conducted in good faith for the proper purpose, that is to say, for the purpose for which the law has devised it, it cannot be the groundwork of retributive damages, no matter how signally the defence falls short of success. It is impossible that the law at once permits and forbids, invites and punishes, the identical behaviour. 104 As to the grounds of aggravated damages set out in the ASOC noted at [101] above, they are either not made out or are merely matters in the conduct of the case. More specifically, the respondents contend that there was nothing disingenuous in the letter of response sent to Mr Oliver's solicitors (being Exhibit C) and certainly nothing improper or unjustifiable in that response warranting an award of aggravated damages. In relation to the evidence of hurt feelings, paragraph 5 of Mr Oliver's father's affidavit is evidence of hurt feelings only and cannot be relied upon in aggravation of damage. 105 Moreover, as in Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185, there is no evidence or sound reason that the alleged conduct relied on by Mr Oliver increased the subjective hurt he suffered (at [367]; T83.36). In all the circumstances, it is said there is no basis to award Mr Oliver aggravated compensatory damages.

F.6 The Position of the First Respondent 106 Before coming to an assessment of damages, it is necessary to deal with a discrete matter in respect of which I invited submissions: the issue as to whether the first respondent (Nine Network) resisted judgment against it in the event that Mr Oliver was successful in establishing that any of the imputations were conveyed and the respondents were unsuccessful in defending the claim on the basis of the pleaded defences (an eventuality that has now occurred). 107 In response, Mr Oliver submits that Nine Network is liable for judgment to be entered and damages awarded against it because it has long been the law that liability for a libellous publication arises from participation or authorisation (see Webb v Bloch (1928) 41 CLR 331 at 364 (Isaacs J)) such that everyone is liable who has taken part in publishing the defamation or in procuring its publication. Mr Oliver submits that Nine Network "admits that it supplied the matter complained of" to TCN and NBN and that is enough: Thiess v TCN Channel Nine Pty Limited (1994) 1 Qd R 156 at 194-195. This admission is contained, it is contended, in Exhibit C. Moreover, Nine Network is also liable on the basis that publication via television broadcast was the natural and probable consequence of its actions in supplying the matter complained of to TCN and NBN. 108 The respondents point to the pleading and note it is alleged in the ASOC at [3] that Nine Network published the matter complained of by television broadcast. This allegation is denied, and no evidence was adduced by Mr Oliver to prove otherwise. Notwithstanding this, the respondents have admitted making Exhibit A available for upload to the 9Now and Facebook websites (see paragraphs 3 and 4 of Exhibit J). In the circumstances, Nine Network would resist an entry of judgment against it in respect of the publication by television broadcast, but accepts that it is jointly and severally liable with each of the other respondents for making the matter complained of available for upload to the 9Now and Facebook websites. 109 No case as now advanced in final submissions was pleaded by Mr Oliver against Nine Network. Unsurprisingly, no evidence was adduced to make out the case that was pleaded, because Nine Network was not the broadcaster. No attempt was made to amend to plead out the material facts relied upon to allege participation or authorisation by supply of Exhibit A to TCN and NBN, notwithstanding that at the case management hearing prior to the trial, I indicated that I would be disposed to grant leave to amend. 110 Moreover, even if, which I do not accept, some different case was now available to be run, no evidence was adduced that Nine Network "supplied" Exhibit A to TCN and NBN (which was the extent of the "participation or authorisation" identified) save as to one matter: that is, what Mr Oliver seeks to draw by way of admission out of Exhibit C. This is a business record of what appears to be another entity "Nine Entertainment Co", which makes reference generally to "Nine". It is unclear to me, on the state of the evidence, how it is said that Exhibit C forms part of the records belonging to or kept by Nine Network (as opposed to any other "Nine" entity and, in particular, the holding company) in the course of, or for the purposes of, the business of Nine Network, and also why it is said it contains a previous representation said to be admissible against the distinct entity, Nine Network, for the purposes of Part 3.4 of the EA. There were ways of proving participation and authorisation other than by reliance on the so-called admission; there were also ways of proving that the alleged admission was made by or on behalf of the relevant entity. But these steps were not undertaken. I would reject any liability of Nine Network for the broadcast by reference to the way the case was pleaded but, in any event, it fails on the evidence that was adduced. 111 Although it will not have any practical effect on the overall amount able to be recovered by Mr Oliver against all respondents, any individual liability of Nine Network should be restricted to publication on the 9Now and Facebook websites.

F.7 Assessment 112 Consistently with the mandates of Part VB of the Federal Court of Australia Act 1976 (Cth), this proceeding has been conducted in an efficient way with a minimum of delay between the time of commencement and determination of all issues. Given that it was not suggested that any capacity determinations would impact upon the ability of the respondents to defend the case efficiently, all issues were determined at a final hearing which was able to be conducted within one (extended) sitting day. 113 A necessary consequence of this, of course, was that submissions made by Mr Oliver as to damages were made in a context where it had not yet been determined which meanings had been found to be conveyed. As a consequence, a number of the contentions made by Mr Oliver as to the serious nature of the "he got away with it" meanings (that is, that very serious imputations of violent crime were conveyed), must now be put to one side except to the extent Mr Oliver's belief as to the meanings conveyed goes to hurt to feelings. Having said that, as to the two meanings that were conveyed, Mr Oliver should have damages assessed so as "to convince a bystander of the baselessness of the charge": Broome v Cassell [1972] AC 1027 at 1071. 114 As I have explained above, when assessing general compensatory damages, the exercise is essentially one of assessing an appropriate solatium amount for hurt to feelings, damage to reputation and vindication: Carson at 60. All three of these components must be included in one lump sum for compensatory damages, and the amount to be assessed is essentially one of impression rather than aggregating specific amounts for specific components: Broome v Cassell at 1072. This assessment must reflect the s 34 requirement to ensure an appropriate and rational relationship between the harm sustained and the award. 115 Recognising the impressionistic nature of the exercise, and at the same time identifying a fair and rational amount to salve the hurt feelings of Mr Oliver, injury to his reputation and for vindication, I reach the following conclusions. 116 The defamatory imputations are of some seriousness, particularly the notion that Mr Oliver contemptibly lacked courage by engaging in a coward punch with the consequences his actions entailed; but having said that, as noted above, the emollient message that he was legally vindicated and had his version of events accepted by a judge, go some way to reducing the overall seriousness of the matter. 117 Although, understandably in these circumstances, I accept that Mr Oliver did suffer injured feelings as a result of the publication, on the evidence as it was presented, I do not feel an actual persuasion or reasonable state of satisfaction that the hurt was anything like a grave one. Although I accept Mr Oliver made representations to his father about the extent of his upset and looked morose, I have some reservations in accepting that he was as disconsolate as was contended in final submissions. I also accept, however, the evidence that he had suffered injured feelings and was upset including by having to explain himself to those who raised the issue and this hurt was contributed to by the lack of any apology. Further, I consider it more likely than not that Mr Oliver did subjectively feel the publication impugned the full vindication he was otherwise entitled to enjoy by reason of having been acquitted and that this aspect would have been hurtful. 118 In making the required assessment, I have not reached a level of satisfaction that the sting of each of the publications still continues to have any significant adverse effect on Mr Oliver, causing him any prolonged upset. Having said that, the evidence of hurt feelings and upset is real and takes the matter well beyond a nominal or a modest award of damages. 119 The picture as to reputation is somewhat complex. Mr Oliver had family in Melbourne and Ipswich and I accept that his Australian family, friends and acquaintances relevantly contacted him. As the respondents submit, it is somewhat opaque on the evidence as to how persons outside New South Wales viewed the matter. The absence of any corroborative detail about how the matter was viewed by these family and friends and what was said about it to Mr Oliver means this evidence lacks a degree of persuasive force. The same may be said of the curious evidence, referred to above, of persons in the United Kingdom having seen the matter on Twitter. As the respondents point out, no claim for publication by the respondents on Twitter is advanced and no evidence was adduced as to publication or promotion on Twitter (notwithstanding that at one stage it expressly formed part of the case on aggravated damages). 120 Having said this, Mr Oliver had some contact with Australia and no doubt among those with whom he dealt in Australia, the fact that the imputations were conveyed had adverse reputational effect. As to the evidence of persons within the United Kingdom, although it is difficult to be conclusive as to how those persons obtained information concerning the incident that occurred at the Coogee Bay Hotel, I am satisfied persons outside Australia viewed some form of the publication, and that in turn diminished his reputation: Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; (2001) 208 CLR 388 at 416 [88]. 121 As to publication, the publication was widespread, insofar as the imputations were conveyed by the television broadcast. The relatively small number of persons who viewed the matter complained of by accessing the 9Now.com.au or Facebook.com websites indicates that this was a significantly less effective mode by which the defamatory imputations were conveyed. 122 As to aggravated damages, I do not consider that there has been a lack of bona fides in the respondents' conduct, nor do I find there has been conduct which is improper or unjustifiable in the sense explained in Triggell v Pheeney (1951) 82 CLR 497 at 514. It follows that there has been no conduct increasing or aggravating the harm the defamation caused or may reasonably be supposed to have caused. 123 Dealing more specifically with the matters persisted in in final submissions as justifying an award, although I accept that the failure to apologise may make an award of aggravated damages appropriate, there is no reason for me to conclude that the response to the concerns notice contained in Exhibit C did not reflect a bona fide (albeit partly mistaken) view, and there is no basis for concluding that the lack of an apology was motivated by anything improper or, in this case, amounted to a continuing assertion of the defamatory imputations. I reject the submission that the respondents acted disingenuously. 124 Although it is true publication of the defamatory matter, to use the expression adopted by Senior Counsel for Mr Oliver, reflected a shop worn, tabloid style characteristic of commercial news broadcasts, it would be going much too far to find that it was conveyed in an extravagant, excessive or sensationalist manner. I am also affirmatively satisfied that the respondents did not: (a) broadcast the matter with an intention to injure Mr Oliver; or (b) express or imply disrespect for the judgment of the Magistrate. 125 Finally, although the conduct of the litigation can in some circumstances justify aggravated damages, the defence of the respondents was in part successful (in resisting the "he got away with it" imputation case) and the persistence in the balance of the defence could not, in any way, be considered as somehow improper or unjustifiable. 126 In all the circumstances, I consider that an appropriate award of compensatory damages is a total amount of $100,000 as against TCN and NBN jointly for all publications of the matter and judgment for the more modest sum of $15,000 against Nine Network (referable only to publication via the websites). Although I am cognisant that this reflects a lack of direct proportionality by reference to viewership of the different modes of publication, it would be erroneous to approach this impressionistic task by reference to mathematical exactitude. For the sake of clarity, it is worth making clear that given the joint and several nature of the liability for the publications, the total sum recoverable by Mr Oliver against all respondents is $100,000.

G Conclusions AND AN OBSERVATION ABOUT COSTS 127 At the first case management conference Senior Counsel for Mr Oliver took the novel step of making what was described as an "open offer" to resolve the proceeding on the basis of a payment to Mr Oliver of $150,000 together with his party/party costs to that time. Subsequently, I ordered, by consent, that a mediation take place. It seems to me there is a real possibility that there may be communications between the parties made in connexion with an attempt to negotiate a settlement of the dispute that may be admissible pursuant to s 131(2)(h) of the EA as being relevant to the determination of the appropriate costs order to be made. Accordingly, I will hear from the parties as to costs. 128 Before passing from this topic, I should make two further observations: one specific, and one that is general. 129 The first is a comment about the "open offer". In the course of Senior Counsel for Mr Oliver's attractive final submissions, the beguiling suggestion was made that this amount should operate as some sort of benchmark to which a tariff for subsequent aggravating conduct by the respondents should be added in order to divine an overall figure for compensatory damages. No doubt it is already apparent that I have resisted the lure of adopting such a flawed approach. 130 The second is not presently relevant because, wholly unconnected with any consideration of possible costs consequences attendant upon a proper quantification of damages, the total amount recoverable by Mr Oliver is $100,000. 131 I commenced this judgment by making reference to the jurisdiction of this Court in relation to defamation matters. The increased appreciation of this jurisdiction has led to a growth of this aspect of the Court's work. The nature of defamation proceedings are as various as the publication of defamatory matters that lead to a controversy arising: at one end of the continuum of cases, a proceeding might involve consideration of the triviality defence (see s 33 of the Act) or proportionality being examined in accordance with the principles explained by McCallum J in Bleyer v Google [2014] NSWSC 897; (2014) 88 NSWLR 670; at the other end of the continuum, there may be a mass media allegation of conduct ranking high in the calendar of human depravity. And there will be very many cases between these two extremes. 132 This Court is a superior court of record. To guard against proceedings being brought in this Court which ought more properly to have been brought elsewhere (including in state courts exercising federal jurisdiction with a fixed monetary jurisdiction) FCR 40.08 provides: 40.08 Reduction in costs otherwise payable A party other than in a proceeding under the Admiralty Act 1988 may apply to the Court for an order that any costs and disbursements payable to another party in the proceeding be reduced by an amount to be specified by the Court if: (a) the applicant has claimed a money sum or damages and has been awarded a sum of less than $100,000; or (b) the proceeding (including a cross-claim) could more suitably have been brought in another court or tribunal. 133 FCR 40.08 was considered by the Full Court (White, Perry and Banks-Smith JJ) in Umoona Tjutagku Health Service Aboriginal Corporation v Walsh [2019] FCAFC 32. At [57], the Court observed that the rule: ...enlivens a discretion in the Court… and does not establish a prima facie rule that a specified reduction should be made where the damages are less than $100,000. In this regard, it may be contrasted with its predecessor, O 62 r 36A(1) of the Federal Court Rules 1979 (Cth). Order 62 r 36A(1) and (2) provided for a one-third reduction in costs where damages were less than $100,000 unless the Court or a Judge otherwise ordered or where the Court considered the claim could more suitably have been brought in another court. Nonetheless, Perram and Besanko JJ observed in Loyola v Cryeng Pty Ltd (No 2) [2012] FCAFC 98 that: ... Plainly, the purpose of the two costs rules is to penalise parties who, through oversight or incompetence, bring and continue proceedings in an inappropriate Court in the judicial hierarchy. The qualifying factor for the operation of the rules is the decision to bring and maintain a case in a particular Court… 134 I mention this rule not because the decision to bring this proceeding in this Court was anything other than appropriate, but to draw general attention to the fact that the potential consequences of the operation of FCR 40.08 ought to be borne in mind by those acting for applicants in determining whether a proposed defamation action (which if successful, is unlikely to attract compensatory damages of substance) should be commenced in the Federal Court, rather than another court of limited monetary jurisdiction. This is not to say that the anticipated quantum of damages is the sole consideration in assessing whether the proceeding should be commenced in this Court, but it is clearly a highly relevant one. 135 In the circumstances, I propose to adjourn the matter until 9am on 29 April 2019 at which time I will hear any argument and make final orders disposing of the proceeding. Prior to 5.00pm today, the parties should provide to my Associate an agreed minute of order reflecting these reasons and an agreed position as to costs. Failing which, they should provide their competing minutes of order indicating the order for costs for which they contend. I certify that the preceding one hundred and thirty-five (135) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.