Plaintiff v Defendants

Supreme Court of Victoria|2017-06-29|Before: JOHN DIXON J

DEFAMATION - DAMAGES - Trial by jury - Publications stating barrister negligently stated facts to Racing Stewards Tribunal - Defence of justification not established - Other defences withdrawn during trial - Damages - Serious Imputation - Mass media distribution - Reputation not put in issue - Mitigating factors - Aggravating factors - Defamation Act 2005 (Vic), ss 22, 34, 35.

2 Fairfax Digital Australia and New Zealand Pty Ltd, the second defendant, first published the article online, on its webpages on 2 August 2015. The first defendant, The Age Company Pty Ltd, is the owner and publisher of The Age newspaper, where the article, with some small differences was then published on 3 August 2015.

3 By the publications, Mr Sheales alleged that he had suffered injury to his professional reputation and feelings, had been humiliated, embarrassed or held up to ridicule and contempt, and had suffered loss and damage. The defendants denied his claims.

4 The proceeding was tried before a jury. The defendants did not contest publication. Verdicts were sought from the jury in relation to two alternate imputations.

(a) That acting in his capacity as a lawyer appearing before a Racing Victoria stewards hearing, the plaintiff deliberately misled the stewards about the effects of cobalt on racehorses (imputation A); or

(b) That in making submissions to a Racing Victoria stewards hearing in his capacity as a lawyer, the plaintiff acted negligently in misstating facts about whether cobalt is performance-enhancing in horses and whether it is harmful (imputation B).

5 The defendants disputed that the publications carried the alleged imputations, but did not contest that, if they did, the articles were in that meaning defamatory of the plaintiff. The defendants also contended that imputation B was substantially true.

6 By its verdict the jury found that both the online and print articles in their ordinary and natural meaning only conveyed imputation B and rejected the defence of substantial truth.

7 The verdict established that the defendants' publications defamed Mr Sheales requiring that I determine the quantum of his damages.[1]

8 Section 34 of the Defamation Act 2005 (Vic) provides:

In determining the amount of damages to be awarded in any defamation proceedings, 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.

9 Section 35 relevantly provides:

(1) Unless the court orders otherwise under subsection (2), the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings is $250 000 or any other amount adjusted in accordance with this section from time to time (the maximum damages amount) that is applicable at the time damages are awarded.

(2) A court may order a defendant in defamation proceedings to pay damages for non-economic loss that exceed the maximum damages amount applicable at the time the order is made 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.

10 The current maximum amount that may be awarded for non-economic loss is $381,000.[2]

11 The purpose of a damages award in a defamation action is to compensate the plaintiff for the consequences of the attitude adopted towards him by other persons as a result of the diminution of the esteem in which they hold him because of the defamatory statement, the grief or annoyance caused to the plaintiff himself by the defamatory statement,[3] and to vindicate his reputation.

12 The three principal functions of an award of damages in defamation were recently restated by Kaye J in Belbin v Lower Murray Urban and Rural Water Corporation,[4] and by Bell J in Dods v McDonald.[5]

In general, an award of damages for defamation has three principal functions, namely, reparation for the harm done to the plaintiff's reputation, solatium for the distress and embarrassment occasioned to the plaintiff by reason of the publication, and vindication of the plaintiff's reputation. In Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44, Mason CJ, Deane, Dawson and Gaudron JJ, in their joint judgment, stated:

Specific economic loss and exemplary or punitive damages aside, there are three specific purposes to be served by damages, awarded for defamation. The three purposes no doubt overlap considerably in reality and ensure that 'the amount of the verdict is the product of a mixture of inextricable considerations'. The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant's personal and (if relevant) business reputation and vindication of the appellant's reputation. The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant. Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the plaintiffs reputation. 'The gravity of the libel, the social standing of the parties and the availability of alternative remedies' are all relevant to assessing the quantum of damages necessary to vindicate the appellant'.

That description of damages, in an action for defamation, reflects the earlier statement of Windeyer J in Uren v John Fairfax & Sons Pty Ltd:

It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways - as a vindication of the plaintiff to the public and as a consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money. The variety of the matters which, it has been held, may be considered in assessing damages for defamation must in many cases mean that the amount of a verdict is the product of a mixture of inextricable considerations".

15 In Barrow v Bolt,[8] Kaye JA (with whom Ashley and McLeish JJA agreed) stated:

However, the harm, that is recompensed by an award of damages, extends beyond compensation for the damaged reputation.

16 After referring to part of the passage set out above from Uren, Kaye JA continued:[9]

It is for that reason that it has been long recognised that an important component of an award of damages in an action for defamation consists of compensation for the distress, embarrassment and humiliation occasioned to a plaintiff as a result of the publication to other people of the defamatory material about that plaintiff.

17 The plaintiff is 53 years old, born in January 1964. He grew up in East Bentleigh, went to school at St Bede's Mentone, and graduated with a combined Arts/Law degree from Monash University. He was articled to Frank Galbally at the law firm of Galbally & O'Bryan and he commenced practising as a solicitor in criminal law.

18 Called to the Bar in 1993, he accepted briefs in criminal law and after 10 years or so, he began to be offered briefs in sports law. He has since appeared in all courts and many tribunals, including, from the mid 1990's, interstate work. He was twice Secretary of the Criminal Law Bar Association.

19 The plaintiff is presumed to have a good reputation. The defendants did not challenge his reputation at trial. Three professional colleagues and a long standing friend gave evidence of his reputation.

20 David Grace QC, who has known the plaintiff for approximately 25 years, described the plaintiff's reputation for competence and diligence as a barrister at the time of the publications. Mr Grace said the plaintiff had a high level of competence as a barrister and a high level of diligence as far as he was concerned. Mr Grace had spoken to others who knew the plaintiff and considered that in July 2015 he had an excellent reputation for propriety in the way he conducted himself in court.

21 Lachlan Wraith, also a barrister, who has known Mr Sheales since 1996 or 1997, described the plaintiff's reputation for competence and diligence in his work as a barrister in July 2015 as extremely high. Mr Wraith said: 'I think he had an impeccable reputation of someone who respected the law and the institutions of the law'.

22 There can be no doubt that, had the jury found imputation A to have been conveyed, the defamation would have been very serious. An imputation that a practising barrister had deliberately misled a tribunal would go to the core of his or her professional integrity. But the jury rejected imputation A and the plaintiff succeeded in respect of the lesser of the two imputations on which he sued.

23 The defendants submitted that imputation B was considerably less serious than imputation A. That can be accepted. Imputation B was pleaded as a false innuendo and neither party contended that the word 'negligently' carried its legal meaning. The defendants submitted to the jury that 'negligent' meant 'careless'. Senior Counsel for the plaintiff said:

Negligence, I suggest to you, members of the jury, conveys to the ordinary reader something more serious than saying someone was careless.

The jury could not permissibly have returned a verdict based upon an imputation that was more serious than that contended for by the plaintiff.[10]

24 The defendants submitted that there was no foundation for assessing the seriousness of imputation B by reference to matters such as barristers' professional standards obligations. Rather, I ought to assess the seriousness of the defamatory character of the publications on the basis that the jury, at most, concluded that the articles meant that the plaintiff negligently misstated facts about whether cobalt is performance-enhancing in horses and whether it is harmful to the stewards in a manner that conveyed about his professional conduct something more than mere carelessness.

25 Viewed in that way, the defendants submitted that the imputation was not at the serious end of the spectrum. All barristers have lapses from time to time that can be characterised in terms of being negligent in the sense comprehended by imputation B. The imputation was mild.

26 The plaintiff submitted, and I agree, that the imputation found by the jury to have been conveyed was serious in nature, not mild. It was a serious matter to publish to the readers of The Age that a barrister acted negligently in misstating facts about whether cobalt is performance enhancing in horses and whether it is harmful.

27 The defendants' answers to interrogatories gave the circulation of the print edition and the number of hits on the various webpages where the online article appeared. The national print circulation of The Age newspaper on 3 August 2015 containing the print article was 102,552.[11] The defendants submitted that, as a matter of common sense, only a small fraction of the total readership of The Age was likely to have reached page 37 where the print article appeared. Page 37 was part of the section of the paper devoted to horse racing and I consider that the 'small fraction' of the readership would have mostly comprised readers with an interest in horse racing and in the particular controversy into which the article fell.

28 The unique page views of the online articles had 2,254 total page views,[12] which the defendants submitted was very low by mainstream media standards. However, the online articles remained online until shortly after the jury returned its verdict.

29 The plaintiff described suffering significant distress, embarrassment and humiliation from the publication of the articles.

30 The plaintiff first saw the print edition article and read it in a café on the morning of 3 August 2015. Reading the headline 'Cobalt defence misses facts', he anticipated a direct personal attack. When the article compared his appearance before the stewards to 'a theatrical performance reminiscent of Rumpole of the Bailey', Mr Sheales explained why the comment was not complementary.

I just thought it was a personal attack. I thought it was unfair ... He didn't behave like a lawyer. He behaved like a pretender, an actor in a fiction. That, this had nothing to do with facts. This was a story he was telling and he did it in a way theatrical - this was no compliment. He did it in a theatrical way with the intention of distracting.

31 Mr Sheales described his reaction when Mr Bartley wrote 'Sheales also said that there was no evidence that cobalt was harmful', saying: 'I was headless when I read that. I was so angry. I was incensed and I knew it had to be deliberate.'

32 Mr Sheales described his reaction after reading the whole of the article.

What I understood him to be saying about me was I went down there and I set out to present false issues to the issues and he was onto me for presenting false issues and he was going to tell everyone that I'd presented false issues to try to distract and deflect but I didn't fool Bartley because he was a truth teller... The only alternative was I'm so hopeless and incompetent that I couldn't read things that Pat Bartley had read.

33 He rang the newspaper switchboard and asked to be put through to the sports editor. He left a message for the then sports editor, Chloe Saltau, but his call was never returned.

34 Later in the day on 3 August 2015, Mr Sheales read the article that appeared on the Age website. The headline was personalised to 'Lawyer's cobalt defence misses the facts' and Mr Sheales responded:

Any mistake this was directed at me and not the argument put was to my eye crystal clear, cause the word, 'Lawyer's', now has been put in. So it was my creation, my invention, on the part of my trainers, my clients.

35 In the online article, the statement again appeared that Mr Sheales had told the stewards there was no evidence of cobalt being harmful, about which the plaintiff said:

I was just headless. Now, one, it's just a lie. It's completely untrue; I said the opposite. And, secondly, now not only readers in The Age would believe this, with the internet everyone round the world reads this. I understand we're only [suing] a number of organisations, but this is all around the world for ever and it's false.

36 On 6 August 2015, after sending a concerns notice, the plaintiff rang Nick McKenzie, an investigative editor for The Age, and told him that he was not interested in money but wanted the story corrected.

37 The plaintiff said he did not wish to burden his wife or parents with the stress he was experiencing and did not discuss the matter with them in detail. He said:

[L]ike all barristers, what you do is often at a higher level. Very stressful, it involves other people's lives. And accordingly you don't take it home. You don't burden your family with it... if barristers took their work home, no relationships would survive.

38 Another barrister, Tim Purdey, said that the plaintiff had told him on 4 August 2015 that he was angry about the publication of the articles and was going to sue The Age. The plaintiff was particularly angry that Mr Bartley had misreported statements he'd made in relation to the possible effect of cobalt on the welfare of horses. Michael O'Shaughnessy, a human resources manager, who has been an acquaintance of the plaintiff for over 25 years also spoke to the plaintiff at the time about the online article and said:

His concerns were that he was made out to be, I suppose, by the caricature of Rumpole as lazy, incompetent, you know ... no research, and that that would have a very unflattering - I suppose an unflattering sort of caricature of him as a barrister ...

[H]e was quite distressed because we both know a number of people that who would have followed the case literally only by media reports and he was very, ... concerned and distressed to the extent that people who only followed the matter through that - that vehicle would gain their opinion of him, solely on what was written in that article ...

[S]ubsequent to that particular date ... we spoke and he asked were people talking, . .. about the case? Were people making reference to him and to his qualities and abilities and again he maintained a concern to the extent to which his reputation and feel like his whole credibility had been damaged by what was written and again, what had been stated in that article.

39 The defendants invited me to conclude that the plaintiff presented in the witness box as a combative person who likes a fight. The defendants submitted that the evidence of the plaintiff's grief and annoyance must be weighed against what the court observed of the plaintiff during the course of the tribunal hearing and the trial.

40 From the transcript of the plaintiff's appearance before the racing stewards the defendants invited me to find that Mr Sheales cast serious slurs on a number of third parties, including Dr Brian Stewart, the chief veterinarian of Racing Victoria, who he said had adopted a position that was embarrassing for a man of science; and another vet, Dr Tom Brennan, who he branded a liar.

41 In his evidence at trial, the defendants submitted that Mr Sheales also articulated seriously defamatory slurs under the protection of absolute privilege. The plaintiff said, for example, that an academic commentator about cobalt, Professor Mobasheri, 'doesn't know anything' and speculated that his motive was personal financial gain. He asserted, without qualification, that Professor Mobasheri had published 'not one' peer reviewed research paper about cobalt chloride in racehorses. When asked why he did not consider Professor Mobasheri's report to be a 'scientific paper' the plaintiff responded:

It's like the difference between a factual report and an editorial. It's someone's opinion that roves around. It doesn't purport in any way to be rigorous. He might as well be standing in the front row of a pub saying it.

In fact, the plaintiff was aware that Professor Mobasheri had co-authored important and relevant scientific research on equine cell cultures, including on the effect of cobalt chloride on an incurable hoof injury and osteoarthritis in articular cartilage.

42 In evidence, the plaintiff, so the defendants submitted, also attacked Mr Bartley, accusing him of matters far worse than those implicit in imputation B. Mr Sheales accused Mr Bartley of a 'complete fabrication' and 'making things up' in the penultimate paragraph of another article published later in June 2015. The relevant subject matter of Mr Bartley's article had appeared in materially identical terms in an article in an American publication, The Horse, on 28 October 2014 and was arguably a fair summary of the judgment on an administrative complaint determined by the Indiana Horse Racing Commission on 23 October 2013. When challenged in cross-examination about this attack, the plaintiff incorrectly accused senior counsel for the defendants of mischaracterising his earlier evidence, before again asserting that Mr Bartley was 'a liar and a fabricator'.

43 Each of these matters, the defendants submitted, suggested that the plaintiff had a robust character and was more than capable of 'giving as good as he gets'. His own conduct at both the stewards hearing and in the course of the trial were matters supporting the view that any damages awarded to the plaintiff should be at the low end of the scale.

44 I accept that I may take account of the plaintiff's performance in the witness box and before the tribunal in assessing his professional reputation, but care is needed not to draw adverse conclusions that were not distinctly put to the plaintiff in cross-examination. In respect of his attack on Mr Bartley from the witness box I formed the impression that there may have been a robust competitive relationship between the two men. Mr Bartley did not give evidence. I am satisfied that Mr Sheales not only presented as a robust character but he strongly felt the hurt and distress that he suffered from the publications.

45 Mr Sheales described the reactions expressed to him by colleagues, friends and others after reading the article.

(a) A Supreme Court judge mentioned the article and said to him it doesn't look good.

(b) A magistrate who he ran into outside court commented that it was really not too good.

(c) A County Court judge who the plaintiff saw in a café said, 'How's your war with Bartley going?'

(d) A Crown Prosecutor commented to him that it just read terribly.

(e) Shortly after the article was published a friend sent a text message to himself and a couple of other people that said 'Wilson (our pet lab) is crook - I need a vet - anyone seen Sheales?', which the plaintiff interpreted as:

[W]hat he'd taken away from the article was, if you have a sick animal and you let Sheales anywhere near it, no matter how well intentioned he might be, he might accidentally kill it. He certainly wouldn't be to any beneficiary to it.

46 The defendants submitted that only a small number of those who read the article either in its print or online forms was likely to have known the plaintiff or to have altered their views about him as a result of having read the articles. Each of Messrs Grace, Wraith, Purdy, and O'Shaughnessy did not think less of the plaintiff from what they had read. The plaintiff did not suggest that any of the people, referred to above, that he spoke to thought less of him and no witness was called who thought less of him as a result of having read the articles.

47 The plaintiff did not suggest that his practice as a barrister was in any way affected by publication of the articles. There was no claim for special damages.

48 The defendants submitted that while some damage to the plaintiff's reputation will be presumed, for all of these reasons it is likely to have been modest.

49 Further, the defendants submitted that there were a number of important matters going to mitigation of damages.

50 First, they pointed to the contradiction inherent in the plaintiff seeking damages for articles imputing that he made negligent misstatements in the course of submissions to a stewards hearing when, as the defendants' submitted, the plaintiff revealed himself in the course of the trial, albeit from the witness box, as a person prone to making serious misstatements that were, at least, negligent. The defendants contended that, under the protection of absolute privilege, Mr Sheales' ferocious attacks on Professor Mobasheri and Mr Bartley well outweighed the defamatory sting of the articles. He did not retreat from them when challenged. He also speculated, from the witness box, about the motives and character of both Professor Mobasheri and Mr Bartley. The defendants submitted that these attacks were unbecoming of an experienced barrister who must be taken to understand the limits of privileged statements in courtrooms.

51 Secondly, the court is entitled to take account, in mitigation of damages, matters that were properly admitted in support of the rejected truth defence. The court must assess what level of damages bears an appropriate and rational relationship to the harm in fact suffered by the plaintiff in the context of an imputation going to the plaintiff's reputation for making statements in the course of his profession. Their verdict means the jury was not satisfied that the plaintiff's submissions to the stewards involved negligently misstating facts about whether cobalt is performance enhancing in horses and whether it is harmful.

52 The plaintiff's submissions to the stewards hearing were not immune from legitimate and serious criticism, and the defendants specifically pointed to examples of misstatements made before the stewards hearing that were not caught by the imputation found by the jury,[13] inviting me to take those statements into account when assessing the proportionality of a damages assessment to the harm caused.

53 Finally, it emerged at trial that the plaintiff had sworn incorrect answers to interrogatories. Interrogatories 5(c) to (e) interrogated the plaintiff about the allegation in his statement of claim that he had left a message on about 3 August 2015 for Jon Pierek, a journalist employed by the first defendant, that had not been returned. In his answers, the plaintiff deposed that he could not recall the time or day on which he left the message, the number he had called in order to leave the message, or the substance of the message that had been left. At trial, the plaintiff admitted that he had left no message for Mr Pierek in respect of the articles. The defendants invited the inference that the plaintiff did not apply due care and attention to ensuring that there was a proper basis for each allegation in the statement of claim or in preparing his sworn answers to interrogatories.

54 The defendants submitted that each of these mitigating factors was directly relevant the nature of the plaintiff's compensable reputation as a barrister and that these mitigating factors deserved such weight that no injustice would be done by awarding the plaintiff only nominal damages.[14]

55 Concerning vindication, the plaintiff cited Bell J in Dods,[15] where his Honour stated:

The third purpose - vindication - is of fundamental importance in the present case. In Carson, Brennan J said that the' chief purpose of the law in creating a cause of action for defamation is to provide vindication to counter the injury done to the plaintiff in his or her reputation'. His Honour approved of the statement made by Lord Radcliffe in Dingle v Associated Newspapers Ltd that, in a defamation action, 'the damages awarded have to be regarded as the demonstrative mark of ... vindication'. Brennan J went on to emphasise that the amount awarded must be sufficient once and for all and for demonstrating convincingly that the defamation was false:

The sufficiency of the amount awarded is not to be determined by reference solely to circumstances past and present; the amount must be sufficient to vindicate the plaintiff's reputation in the relevant respect in the future. Thus Lord Hailsham in Broome v Cassell and Co said:

Not merely can (the plaintiff) recover the estimated sum of his past and future losses, but, in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge.

The purpose of vindication has been described as' nailing the lie'.

As a consideration relevant in the assessment of damages, vindication of the plaintiff's reputation might count for much more than other considerations, such as the relatively narrow scope of the publication. Beach J so held in French v Herald & Weekly Times Pty Ltd (No 2):

In my view, the most relevant consideration when assessing the plaintiff's damages in this case is vindication. That is, whatever view one takes of the actual damage to reputation and hurt feelings, the amount must be sufficient (in the words of some authorities) to 'nail the lie'. To that end, the precise circulation figures of the Herald Sun are less relevant than they would be in a case where damage to reputation and hurt feelings were principal considerations.

As will be seen, this is so in the present case.

56 The plaintiff submitted that in a similar manner vindication was important in his case. The award should be sufficient to 'nail the lie', in case the libel, driven underground emerges from its lurking place at some future date. The plaintiff must be able to point to a sum sufficient to convince a bystander of the baselessness of the charge.

57 The defendant submitted that if I accepted that the imputation was mild and the extent of publication was limited, vindication only called for a modest component of the award.

58 Aggravated damages may be awarded where the conduct of the defendant has increased the subjective hurt suffered by the plaintiff. The defendant's conduct must have been lacking in bona fides, unjustifiable or improper.[16]

59 The plaintiff submitted that the defendants had aggravated his damages in a number of ways.

60 First, Mr Sheales asserted that the defendants published the articles knowing them to convey a false imputation or with reckless indifference as to the truth or falsity of the imputation, and without having made any sufficient inquiries as to their truth or falsity. The defendant submitted that I should reject that submission as the plaintiff had failed to establish a foundation for it. Imputation A was not conveyed by the articles so no question of knowledge of falsity or recklessness arises in that respect. While the jury considered that imputation B was conveyed, the defendants submitted that there was an arguable foundation in the transcript of the stewards hearing for each statement attributed to the plaintiff in the articles. The plaintiff had not discharged his burden of establishing that the defendants published that imputation knowing it to be false or with reckless indifference, but I am persuaded that the defendants' conduct was unjustifiable.

61 The defendants' motive was confirmed by the variations between the two versions of the article. The original article, the online version, was a personal attack on Mr Sheales, as he rightly recognised, beginning with the headline. He was not portrayed as a mouthpiece or advocate for a trainer facing a 'show cause' hearing. Although he was, as all barristers do, putting his clients' arguments to the tribunal, the defendants did not characterise the defences of Messrs Kavanagh and O'Brien as missing the facts. The word 'Lawyer's' did not appear in the print version, presumably deleted by an attentive sub-editor, and the sting of Mr Bartley's article remained that the 'defence' was Mr Sheales' responsibility, not that of Messrs Kavanagh and O'Brien. Not having heard Mr Bartley cross-examined, I cannot be satisfied that he lacked bona fides in choosing this particular attribution, but I am satisfied that it was not justifiable for the publications to fail to attribute responsibility for the defence where it belonged, with the persons who were called to show cause rather than their advocate. The proper inference is that Mr Bartley personally attacked Mr Sheales, which was unjustified in the circumstances.

62 Secondly, the plaintiff relied on the defendants' persistence with its justification defence that failed and their abandonment at trial of the defences of fair report and honest opinion. In Herald & Weekly Times Ltd v Popovic,[17] Gillard AJA stated:

The cases provide examples of the conduct of the publisher which has attracted an award of aggravated damages. Typical examples are the conduct of the publisher at the time of publication, including any evidence of malice, the extent and mode of the publication, and the conduct of the publisher during the litigation. Other examples are failure to apologise and retract and the pleading and persistence in unjustifiable defences. The conduct of counsel at trial may be another example.

63 Mr Sheales described his reaction to the substantial truth defence: 'I couldn't believe it. It was a threat... if you want to run this case, you have to run the risk of not just us saying it, but a court saying it'. He submitted it was open to infer that he was upset by the abandonment of the defences of honest opinion and fair report, given his evidence that he considered the articles to be very unfair having regard to what he had said at the stewards hearing.[18]

64 Accepting that pleading, and persisting with, an unmeritorious defence can be a factor that aggravates damages where the conduct of the defendant in doing so is improper, unjustifiable or lacking in bona fides, the defendants submitted that, although that defence of fair report was ultimately not pressed at trial, pleading a fair report defence could not be described as so hopeless as to amount to conduct that was improper, unjustifiable or lacking in bona fides as there was an arguable foundation in the transcript for each statement attributed to the plaintiff in the articles. It would be perverse to conclude that a defendant who decided at trial not to persist in a bona fide defence had aggravated the plaintiff's damages; a defendant ought not be penalised for adopting a responsible approach towards defamation litigation.

65 Thirdly, the plaintiff pointed to the conduct of The Age's sports editor Chloe Saltau as a further aggravating factor. After he informed Ms Saltau by leaving a message on her phone that the article was wrong in material respects, he never heard from her and gave evidence that 'I was so annoyed that she hadn't rung me back'. The defendants' submitted that the court should not conclude from a mere failure to return a phone call that there was anything improper, unjustifiable or lacking in bona fides in the first defendant's conduct. The plaintiff's message was left on 3 August 2015. His lawyers sent a concerns notice on 4 August 2015. The obvious inference is that the message was overtaken by the delivery of a concerns notice the next day.

66 Fourthly, the continued publication of the articles caused him further injury. The plaintiff gave evidence that on 19 March 2017, during the trial, he had looked online and saw that the third entry under his name on a Google search was the defendants' article, 'Lawyer's defence misses the facts'. He clicked on the link and said that it took the reader to the article which says he is an incompetent lawyer. The articles were removed from the internet following the jury's verdict.

67 Fifthly, the plaintiff relied on the defendants' failure to apologise or publish retractions. On 4 August 2015, the plaintiff's solicitors sent a concerns notice to the legal department of Fairfax Media that included a request that Mr Bartley and the publishers apologise and retract within seven days. Kaye J said in Belbin:[19]

[D]epending on the circumstances, a failure to apologise and express regret can constitute improper or unjustifiable conduct. Ordinarily, it may be difficult to establish that a mere failure to apologise, without more, aggravates damages in a particular case. However, in the context of other factors, by failing to publish a retraction or apology a defendant may be seen to be continuing to assert the imputations published by it.

68 The plaintiff's reaction to not receiving either an apology or a retraction was: 'I think it's a disgrace. They know they're wrong. They're just using their power.' The other factors that pointed to continuing assertion of the imputation found by the jury were the other matters of aggravation already mentioned - knowledge of, or reckless indifference to falsity, the plea of substantial truth and persistence with it at trial, the continued publication of the online articles, and the lack of response from Ms Saltau.

69 The defendants submitted that there could be no criticism of them for failing to accede to a demand that they publish an apology or retraction of imputation A, which was rejected by the jury. Although the jury has found otherwise, the defendants were entitled to take the view that imputation B was not conveyed by the articles and, if it was, that it was substantially true. There was nothing improper, unjustifiable or lacking in bona fides in adopting that approach. The matter was fairly arguable. In any event, as the authorities recognise, a mere failure to apologise, without more, is not a factor ordinarily warranting an award of aggravated damages.[20]

70 Section 34 of the Defamation Act 2005, requires that in determining the amount of damages to be awarded, I ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded. That relationship is necessarily informed by the statutory cap. Damages for non-economic loss are currently capped at $381,000 although that cap does not set a scale.[21] 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.[22]

71 The plaintiff submitted, and I agree, that each of the three purposes for an award of damages for defamation were significant in the present case - reparation for harm done, solatium for distress and embarrassment, and vindication. Other relevant factors include the seriousness of the imputation and the extent of publication. In addition, the defendants pointed to a number of mitigating factors as outlined above. I have considered each of these factors.

72 Turning first to the seriousness of the imputation, the jury found the less serious of the two imputations conveyed by the article. I accept the plaintiff's submission that the 'negligence' aspect of imputation B was a serious matter that the ordinary reasonable reader would understand to be something more than just mere carelessness.

73 While neither party put the meaning of the word negligence as specifically going to a neglect of obligation or duty, it is not possible to entirely remove that natural meaning from the context of the article, being the plaintiff's appearance as a barrister making submissions to the racing stewards tribunal. The imputation directly concerned the conduct of the plaintiff in his professional work as a barrister, rather than any personal capacity. In that role he was paid for his professional services by his clients to appear on their behalf. It was more than mild. To impute that he had acted negligently, albeit in a general rather than legal sense, was a serious matter even without a suggestion that the conduct in question was an actual breach of professional standards or would meet the requirements for a claim in negligence.

74 Turning next to the extent of publication, I do not accept the defendants' submission that publication of an article in The Age newspaper with a circulation of over 100,000 copies, followed shortly by an online article read by over 2,000 people, was modest. Publication was in a major newspaper and on its affiliated websites and as such is distinguished from minimal publication, for example, a defamatory comment made on a blog or made verbally to a small number of people within earshot.

75 I was also not convinced that the potential injury was significantly reduced by the suggestion that very few people would have made it to page 37 of The Age where the article appeared. It is relevant that many readers with no interest in horse racing would be likely to skip over those pages and the circulation figures need to be understood in that context, but there are competing considerations. Possible cobalt doping of racehorses was a high profile story that had generated considerable public interest. Peter Moody, trainer of Black Caviar, had been linked to the story. The breadth of interest in the story should not be underestimated. Further, the plaintiff acted for high profile race horse trainers in Victoria and more broadly, as a sports lawyer. An article in the racing section of the sports pages was likely to have been of interest to, and read by, people who had some knowledge of the plaintiff's involvement in racing and sports law more generally. Although the plaintiff made no claim for special damage from lost earnings, I do not consider that the placement of the article in the sports and racing pages where it would not be seen by all of the readership of The Age was a significant mitigating factor.

76 I do not accept the defendants' submission that the three mitigating factors they pointed to were so fundamental as to reduce the plaintiff's entitlement to only nominal damages. That said, those mitigating factors warrant consideration and I will take them into account.

77 First, there was the plaintiff's conduct during the trial while giving his evidence from the witness box, in particular, his attacks on the credibility and professional reputations of both Professor Mobasheri and Mr Bartley that I have already discussed. Counsel for the plaintiff urged me to view Mr Sheales' comments about others from the witness box as evidence of just how upset he was, how he was plainly angry about the article and embarrassed that it had been raised with him by a number of professional associates. Mr Sheales did give evidence of his hurt feelings by reference to the professional credibility of both men.

78 There was some strength to the defendants' submission that the ferocity of the plaintiff's attacks on the reputations of others was unnecessary to making out his case and at times bordered on conduct unbecoming for a member of counsel. However, I was not persuaded by this submission that damages should be significantly mitigated for the following reasons.

79 When giving evidence the plaintiff was not acting as counsel making submissions about a matter in which he was briefed as a dispassionate advisor. He was in the witness box as an aggrieved plaintiff in a defamation action, in which he has ultimately been successful. That is the capacity in which I have assessed his evidence.

80 Although the cross-examiner did challenge statements that Mr Sheales made about Professor Mobasheri and Mr Bartley, the sting of the submission touching on his professional reputation was not put distinctly to the plaintiff when he was cross-examined, arising instead during the defendants' closing submissions as to damages when Mr Sheales could not answer it. No challenge was made to the plaintiff's reputation when he gave evidence. I do not accept the defendants' invitation to infer that his professional reputation can be challenged by submission when it was not distinctly challenged by cross-examination. That said, I am entitled during the course of the trial to fairly assess the plaintiff in connection with my duty to assess his damages and although there was a window into his performance as a barrister, primarily he presented as an aggrieved plaintiff. To that limited extent, there was a mitigatory effect that I take into account.

81 The second mitigating factor relied upon by the defendants was that the court may take into account evidence of errors and misstatements in what the plaintiff said at the stewards hearing, put during the trial as evidence in support of their failed justification defence, as relevant to the reduction of damages.[23]

82 When the cross-examiner put to the plaintiff particular aspects of his submissions to the stewards, he made concessions that he may have been mistaken in respect of some of the things he had said during the hearing. To the extent that the making of those errors is conduct similar or comparable to the meaning of imputation B, that evidence may mitigate the award of damages.

83 In closing, the plaintiff's counsel submitted that the matters Mr Sheales had misstated were a long way from the sting of the libel in question. Some matters were clearly trivial. For example, the plaintiff had told the stewards that when administered to humans cobalt will cause an increase in red blood cell count after 10 days, when in fact it was 7 days. Other 'misstatements' relied upon how one would interpret the use of language like 'hysteria' and 'capacity' in context. I was not satisfied that those were properly matters going to mitigation. Some of Mr Sheales' statements criticising academic commentary about cobalt science were rather unrestrained and of more significance. These comments cannot be dismissed as irrelevant to mitigation issues and I take account of some mitigatory effect.

84 The final matter put in mitigation was the plaintiff's answers to interrogatories regarding a phone call to Mr Pierik. I accept the plaintiff's evidence that he was honestly mistaken as to the date of the phone call. While it is certainly regrettable that this mistake was made, I do not consider that it bears on the question of mitigation of damage in a substantial sense.

85 In summary, the defendants have identified some mitigatory factors that I will take into account.

86 The plaintiff also claimed on a number of bases that the defendants aggravated his damages. Aggravated damages are a component of compensatory damages that are awarded as a global sum reflecting the purposes of consolation, reparation and vindication, as well as any component for aggravation.[24]

87 I am satisfied that the defendants' failure to apologise at any time and their failure to remove the online articles from the internet until after the jury returned its verdict were aggravating factors. Those failures, taken in combination with the personal nature of the attribution of the defence by Mr Bartley to Mr Sheales, were improper and unjustified.[25] The defendants maintained that they had not wronged the plaintiff and remained entitled to continue to assert, rather than retract, the imputation. I accept that such conduct increased the hurt experienced by the plaintiff.

88 For the same reason, the defendants' maintenance of a justification defence that failed before the jury and the abandonment of other defences during trial also aggravated the plaintiff's hurt. Aggravation of damages is not made out in every case where a defence of justification fails, and for good reason. A jury verdict does not mean that the pleading and persistence with that defence was unjustifiable or lacking in bona fides. There must be something more in the nature of improper persistence. That was found in the personal nature of the attribution of the defence by Mr Bartley that was maintained by the failed or abandoned defences.

89 Otherwise, I am satisfied that the defendants conducted their defence of these proceedings responsibly, which ameliorated aggravation to some extent. They narrowed the issues by making appropriate concessions about publication, identification and whether the pleaded imputations were defamatory. They substantially shortened the trial by not pressing defences of honest opinion and fair report. They confined their cross-examination of the plaintiff to relevant matters and did not challenge the reputation witnesses.

90 In summary, the plaintiff has identified a basis for aggravated damages that I will take into account.

91 When making my assessment I consider that there is limited utility in having regard to comparable damages awards in other cases. As Hayne J said in Rogers v Nationwide News Pty Ltd:[26]

Two of the three purposes served by an award of damages for defamation are to provide consolation to the person defamed for the personal distress and hurt which has been done, and reparation for the harm done to that person's reputation. Necessarily, then, the amount awarded for defamation should reflect the effect which the particular defamation had on the individual plaintiff. It follows that the drawing of direct comparisons between particular cases is apt to mislead, just as the drawing of direct comparisons in personal injury cases can also mislead. Comparison assumes that there is sufficient identity between the effect which each defamation had on the particular plaintiff, whereas in fact circumstances alter cases. The amount allowed in each case should reflect the subjective effect of the defamation on the plaintiff. Unless that is recognised, the courts fall into 'that form of the judicial process that Cardozo J deprecated, the mere matching of the colours of the case in hand against the colours of samples spread out upon a desk'. The consideration of other cases can yield no norm or standard derived from the amounts awarded in those other specific cases. Nonetheless, as Windeyer J said in relation to the assessment of damages for personal injuries:

Of course no two cases are exactly alike ... One award is never really a precedent for another case. But we would I think be ignoring facts if we were to say that judges when asked to consider whether a particular verdict is beyond the bounds of reason - either excessive or inadequate - are unmindful of what was done in other cases, similar or dissimilar. If we were to say that, we would I consider deceive ourselves, as well as belie statements in judgments of high authority.

92 The damages awarded need to be in a sum that properly vindicates the plaintiff. I accept the plaintiff's description of his reaction to the two publications. It is open to me, and I do, infer from the jury's verdict that the publications amounted to an unwarranted personal attack upon his competency as a barrister in the manner they found to have been conveyed. I accept that the impact of the hurt upon him personally has been substantial. He was, understandably, incensed. The articles were completely unfair and a personal attack upon him. They were certainly, in that respect, unusual articles in the sense that the conduct of a barrister is not typically accorded the prominence of being more newsworthy than the conduct of the party showing cause. In this case, those persons were two of Victoria's most high profile race horse trainers appearing before a racing stewards' tribunal.

93 I will award damages, including aggravated damages, in favour of the plaintiff against the defendants.

94 The judgment of the court is that, in accordance with the jury's verdict, the plaintiff recover damages from the defendants in the sum of $175,000.

95 I will hear from the parties in relation to costs.

[2] Victorian Government Gazette, 26 May 2016, 1248.

[3] Coyne v Citizen Finance Ltd [1991] HCA 10; (1991) 172 CLR 211, 216.

[5] [2016] VSC 201, [58], upheld on appeal in McDonald v Dods [2017] VSCA 129.

[6] [2012] VSC 535, [211] (citations omitted).

[8] [2015] VSCA 107, [52]. See also Dods v McDonald [2016] VSC 201, [55].

[9] Ibid, [53], citing the following as examples: Coyne v Citizen Finance Ltd [1991] HCA 10; (1991) 172 CLR 211, 216 (Mason CJ and Deane J); Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44, 60 (Mason CJ, Deane, Dawson and Gaudron JJ); McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86, 104 (Pearson LJ), 107 (Diplock LJ); and Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; (2003) 9 VR 1, 76-77 [379]-[380] (Gillard AJA).

[10] See, e.g. David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24; (2000) 1 VR 667, 673 [17], 686 [52], 690 [69].

[11] Broken down as follows: Victoria - 98,786; New South Wales - 1,126; Queensland - 430; South Australia - 641; Western Australia - 31; Tasmania- 1,118; Australian Capital Territory - 374; and Northern Territory - 46.

[12] Broken down between the following websites: www.theage.com.au - 2,044; www.canberratimes.com.au - 35; www.brisbanetimes.com.au - 94; www.watoday.com.au - 81.

[13] During the stewards hearing the plaintiff: (a) misstated twice the relationship between cobalt thresholds in Canada and Victoria; (b) failed to refer the stewards to the Scollay material, despite saying at trial he considered it conclusive on the question of performance enhancement; (c) misstated by at least 30 per cent the time the science showed it takes for red blood cells to increase in humans after the administration of cobalt; and (d) asserted that the hysteria around cobalt was confined to Victoria, when in fact it was a serious issue being grappled with in a number of jurisdictions. The defendants produced a table of misstatements that include other matters as an aide memoire for the jury in respect of jury question 7 that reflected the justification defence, but it is unnecessary to set out every detail.

[14] Cf Pamplin v Express Newspapers Ltd [1988] I WLR 116, 120; Joseph v Spiller [2012] EWHC 2958 (QB).

[15] [2016] VSC 201, [59] - [60] (citations omitted).

[16] Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497, 514; Lower Murray Urban and Rural Water Corporation v DiMasi (2014) 43 VR 348, 392 [118]; Belbin v Lower Murray Urban and Rural Water Corporation [2012] VSC 535, [328]; Dods v McDonald [2016] VSC 201, [66].

[17] [2003] VSCA 161; (2003) 9 VR 1, 77-78 [386] (Winneke ACJ and Warren AJA agreeing).

[18] They were abandoned at the opening of the defendants' case after the plaintiff had concluded giving his evidence so he was not asked directly about this. The plaintiff's case was re-opened later to allow the plaintiff to give further evidence but on a specific and unrelated topic.

[19] [2012] VSC 535, [330] (citations omitted).

[20] Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44, 66.

[21] Cripps v Vrakas [2014] VSC 279, [599]-[609], Carolan v Fairfax Media Publications Pty Ltd [2016] NSWSC 1091, [127].

[23] Relying upon Burstein v Times Newspaper Ltd [2000] EWCA Civ 338; [2001] 1 WLR 579, [47] (Lord Justice May) and Plato Films Ltd v Speidel [1961] AC 1090, 1142.

[24] Lower Murray Urban and Rural Water Corporation v Di Masi [2014] VSCA 104, [16], See also Dods v McDonald [2016] VSC 201, [63].

[25] I should make clear that my finding in that regard is not related to the responses, or lack thereof, of the sports editor Ms Saltau, or the investigative journalist who spoke with the plaintiff, Mr McKenzie. There was simply insufficient evidence for me to be able to draw a conclusion either way as to their conduct in this matter.

[26] (2003) 216 CLR 327, 350 [69] (citations omitted; emphasis in original).

At a glance

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Judgment (156 paragraphs)

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Cases Cited (7)