MILES J:
101 On issues relating to liability, I agree with the statements of principle set out in the judgments of Beaumont J and Drummond J, which I have read in draft form. To the extent that there is a conflict on the conclusions reached by their Honours (which appears to me to arise only in relation to imputation B(i) and innuendoes D(i) to D(v)) I agree, with respect, with those of Drummond J.
102 I wish to add that, in my view, there is considerable force in the reference by Beaumont J to the remarks of Gaudron and Gummow JJ in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 545 that words do not mean what the parties choose them to mean and that ordinarily the defamatory material will, itself, sufficiently identify and, thus, confine the meanings on which they may rely. I agree with Beaumont J that, in the present case, the matter complained of would convey the meaning relied on by the plaintiff at trial without the need for prolix "particulars" of meaning pleaded as imputations or false innuendoes. Furthermore, as Drummond J observes, debate about the meaning of the passage in question has become increasingly remote from the text as the case has moved progressively from pleadings to trial to appeal, so that, in the end, much time and effort has been taken up in concentrating on what the trial judge meant when he recast the imputation of "promiscuity" as one of "unchasteness" when neither word appears in the text at all. Such profitless exercises about the meaning of meanings may be difficult to avoid where the law provides (as it does in New South Wales, one of the places of publication) that each imputation provides a separate cause of action. In common law jurisdictions, such as the Australian Capital Territory, such exercises can and should be avoided.
103 In relation to damages, I agree, in the end, that the appellant has not shown that the award to any plaintiff was outside the range of a sound discretionary (or value) judgment, and for that reason I agree that the appeals against damages must fail. However, I do not agree that substantial issues on damages were not raised by the appellant and, in my view, they deserve attention.
104 The rationale of an award of damages for defamation at common law has been the subject of differing opinions and approaches over a long time. The historical background is explained by Windeyer J in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 149-151 and by McHugh J in Carson v John Fairfax & Sons Pty Ltd (1993) 178 CLR 44 at 102-103. At one end of the spectrum is compensation for the plaintiff and at the other is punishment of the defendant, each factor always being present but neither being entirely distinguishable from the other, since compensation for the purposes of defamation is not the same as compensation for the purposes of other, probably most, areas of the law. Compensation in the latter or usual sense is intended to place the plaintiff, as far as money is capable of so doing, in the position that the plaintiff would have been but for the defendant's wrongdoing, a principle which has become so familiar that Diplock LJ described it as a platitude: Fletcher v Autocar and Transporters Limited [1968] 2 QB 322 at 340. The tort of defamation has a quasi criminal background and the liability of a defendant includes exposure to a monetary remedy which, to a variable extent, is supposed to express social disapproval, even if the defendant's conduct falls short of warranting the award of exemplary or punitive damages, the latter being specifically directed towards punishment of the defendant and not compensation for the plaintiff.
105 Whatever be the continuing controversy amongst the academic writers and in other parts of the world, the High Court has spoken authoritatively for Australian courts.
106 The majority judgment of the High Court in Carson states at 60-61:
"Specific economic loss and exemplary or punitive damages aside, there are three purposes to be served by damages awarded for defamation. The three purposes no doubt overlap considerably in reality and ensure that 'the amount of a verdict is the product of a mixture of inextricable considerations': Uren v John Fairfax & Sons Pty Ltd, per Windeyer J at 150. 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: Carson (1991) 24 NSWLR at 296-299. The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant: Uren v John Fairfax & Sons Pty Ltd at 150; Coyne (1991) 172 CLR at 216; John Fairfax & Sons v Kelly (1987) 8 NSWLR 131 at 142; McCarey v Associated Newspapers Ltd [No 2] [1965] 2 QB at 107. 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 appellant's 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: Fleming, Law of Torts, 8th ed (1992) at 595."
107 It appears that the component of consolation for hurt feelings plays an increasingly important part in defamation litigation. Windeyer J in Uren made it clear at 151 that that element of damages has always been available:
"That defamation may produce indignity and humiliation and that these can attract monetary compensation is no new doctrine. It goes back to the early Middle Ages …"
108 Until Rookes v Barnard [1964] AC 1129 the distinction between aggravated compensatory damages and exemplary damages was regarded as of little importance. After the House of Lords decided in Rookes v Barnard that limits should be placed on the classes of cases in which exemplary damages may be awarded, the High Court in Uren declined to follow that decision. In doing so, it brought to bear a focus on the circumstances in which aggravated compensatory damages may be awarded, and made it clear that such damages are attached to and, in addition to, "ordinary" compensatory damages for hurt feelings.
109 Furthermore, in Broome v Cassell & Co Ltd [1972] AC 1027, Lord Diplock lent encouragement to shifting the emphasis from loss of reputation to hurt to feelings. In a short but seminal passage he said at 1125:
"The harm caused to the plaintiff by the publication of a libel upon him often lies in his own feelings, what he thinks other people are thinking of him, than in any actual change made manifest in their attitude towards him."
110 Although Lord Diplock appeared to confine this aspect of the damages to the plaintiff's concern about the effect of the libel on others, that is to say indirectly, the damage to reputation, other pronouncements since then have made it clear that the damages under this head encompass a good deal more and extend to the subjective insult felt by the plaintiff who need not necessarily reflect upon what others think at all. For instance, in Carson Brennan J said at 71 that the consequences of publication are not restricted to the insult publicly inflicted on the plaintiff and its effect on reputation. His Honour added:
"Damages are awarded also for the plaintiff's injured feelings, including the hurt, anxiety, loss of self-esteem, the sense of indignity and the sense of outrage felt by the plaintiff. Indeed, all those objective consequences and all those subjective reactions which flow naturally from the publication of the defamatory matter are relevant factors."
111 Concentration at the trial on hurt to feelings and a failure on the part of juries to appreciate that that component, if substantial, provides vindication, may go to explain the excessive verdicts of juries which have been the subject of comment and concern by appellate courts in recent years. Defamation trials are seldom concerned with proof of damage to reputation. The plaintiff will typically give evidence of the effect on him or her on reading or hearing of the libellous material and witnesses will be called to give evidence of their own observations of the effects it has or had on the plaintiff. That will be followed by cross-examination of the plaintiff as to the genuineness or true cause of the plaintiff's distress. If the cross-examination is unsuccessful, the plaintiff's counsel will rely on it as an aggravating factor by virtue of which the damages are likely to be increased. There is a graphic description of evidence of this nature in the judgment of Mahoney A-CJ in Crampton v Nugawela (1996) 41 NSWLR 176 at 190.
112 This shift from loss of reputation to hurt to feelings is not confined to Australia. According to McDonald, Irish Law of Defamation (1989) at 287:
"The estimation which an individual enjoys before others is the pre-eminent value served by the present law of defamation. But it does not seem to be the only one. The relief of emotional distress caused by the publication is becoming increasingly recognised as a further object of the law's protection. However, this secondary purpose does not rest comfortably with the first. Indeed, it has enveloped the action in such a cloud of uncertainty that now it is open to question just which of the two is the purpose which the action seeks to further.
Quite often, from the way a plaintiff and his counsel bemoan his situation in court, and from the sympathetic way which the jury is encouraged to, and often does, respond, and from the fact that the legal presumption of damage to reputation avoids any necessity to show actual damage, it appears that the action is really about satisfying the plaintiff's hurt feelings, and not vindicating his standing in the community. This suspicion is greatly strengthened by the fact that it is money - and not some rehabilitating redress - which is awarded to a successful plaintiff, and which he can do with as he pleases."
113 In the United States, where "the doctrine of presumed damages invites juries to punish unpopular opinion rather than to compensate individuals for injury sustained by the publication of a false fact" the Supreme Court has ruled that "it is necessary to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth to compensation for actual injury": Gertz v Welch 418 US 323 at 349-350.
114 In Scots law proceedings for hurt to feelings (solatium) were taken in the commissary courts and the element of loss to reputation was dealt with in the civil courts. Despite the merging of jurisdictions, an action for solatium may still lie although there has been publication to no one but the injured party: K Norrie, Defamation and Related Actions in Scots Law (1995) 164.
115 In Australia there has been no attempt judicially or legislatively to restrict or isolate damages for hurt to feelings. The mixture of "inextricable considerations", which ultimately governs an award of damages for defamation, means, as McHugh J (although dissenting on other matters) put it in Carson at 115:
"The elements of an award of damages in a defamation action are so intangible and the criterion of value so vague that no two persons are likely to agree, even approximately, on what is a proper award for a defamation. This is so even in a case where exemplary damages cannot be awarded."
116 Thus the assessment of damages by the tribunal of fact is not lightly to be set aside as excessive by a court of appeal. The cases that repeat that principle in relation to jury verdicts are referred to by Toohey J with whom Dawson and McHugh JJ agreed, in Coyne v Citizen Finance Limited (1991) 172 CLR 211 at 238-239. It is appropriate that a similar approach be taken to an appeal from assessment by a trial judge sitting without a jury unless the trial judge's reasons reveal error. Nevertheless an appeal court will intervene to correct an award of damages which is manifestly excessive or inadequate although the reasons display no identifiable error. This Court did so in Humphries v TWT Ltd (1994) 120 ALR 693. In that case the Court said at 700:
"Where it is not shown that the trial judge acted upon a wrong principle of law or misapprehended the facts, the court will infer that the judge's discretion miscarried only where it is satisfied that the amount is so high or so low as to be a wholly erroneous estimate of the damages to which the party is entitled. Where specific error in principle or fact cannot be identified, Fox J in Mirror Newspapers Ltd v Jools (1985) 65 ALR 174 at 176 said:
'It then becomes a question of what matters his Honour could properly have taken into account in arriving at this amount, and whether, bearing these matters in mind, the award should be disturbed.'"
117 Furthermore, the advantage that the trial judge has in seeing and hearing from the plaintiff (and possibly other witnesses) must be acknowledged, especially where hurt to feelings forms a substantial part of the plaintiff's claim as it does increasingly in defamation litigation. The present case is a further illustration of that tendency, as the trial judge acknowledged.
118 Because the law presumes harm to reputation from a libellous publication, a plaintiff does not have to prove or call evidence about actual harm. There was very little by way of evidence of damage to reputation in the present case. Much of the trial was taken up by examination and cross-examination of each plaintiff as to his or her reaction, both as to the publication and to the defendant's conduct. The multiplicity of imputations pleaded contributed to the complexity and length of the trial in this regard. Counsel for the plaintiffs sought, as he was entitled to seek, from the plaintiff being examined, expressions of his or her understanding of the meanings of the words published. To the extent that the understanding more or less coincided with one or more of the imputations, the plaintiff was then able to describe his or her reaction in terms of outrage, affront, hurt, indignity and the like. Witnesses were called to give evidence as to what they had heard the plaintiff say about his or her feelings and what they observed about the plaintiff's conduct and demeanour as an apparent consequence of the publication. Invariably, perhaps inevitably, such witnesses said that their own previous high opinion of the plaintiff was in no way affected by the defamatory content of the publication. Counsel for the defendant sought in cross-examination to confine the plaintiff's understanding of the publication to a meaning or meanings least likely to cause substantial hurt, or least likely to be defamatory.
119 There is substance in the submission made on behalf of the appellant that the compensatory component of the award should reflect the likelihood that the reputations of all plaintiffs hardly suffered at all. The statements of claim lead with opening paragraphs declaring that Mr Costello is and was at all material times the Treasurer in the Government of the Commonwealth of Australia, the Deputy Leader of the Liberal Party in the Parliament of the Commonwealth and the Member for the electorate of Higgins, and that Mr Abbott is and was at all material times the Parliamentary Secretary to the Minister for Employment Education and Youth Affairs within the Government of the Commonwealth of Australia and the Member for the electorate of Warringa. During the hearing, Mr Abbott was sworn in as Minister. His Honour was reminded more than once of the need for both plaintiffs to absent themselves from the courtroom from time to time in order to attend to important affairs elsewhere. There could be and was no suggestion that their parliamentary careers had suffered as a result of the publication and there was no direct evidence that, as a result of the publication, anyone had ever questioned their private or public integrity.
120 There is also substance in the further submission that the tone of the matter complained of, in its context within the book, was such that the ordinary reader could hardly be expected to take it seriously. That does not mean that it was not defamatory, nor that being defamatory, it does not open up liability on the part of the publisher for damages under heads other than loss of reputation. But the fact of the matter is that the ordinary reader would come to the offending passage in the book after reading much of what goes before (472 pages of it), and apart from an initial reaction to the offending passage, would not come to any conclusions without reading further and, at least partly, into the remaining 133 pages. The ordinary reader would be aware that the matter complained of is preceded by a sensitive description of the author's relationship with the poet Les Murray, particularly during the illness of the latter, with a lengthy extract from one of Murray's poems. The matter complained of is immediately followed by an outrageous account of how Dame Nellie Melba prepared herself for her theatre appearances, an account so preposterous that no reader could begin to believe it, were it not presented as purporting to originate from the historian, Manning Clark, who vouched for its truth to another historian, Ian Turner. The book as a whole, as its subtitle suggests, is an almost structureless series of musings, recollections, anecdotes and the like, in which it appears to be the author's intention to challenge the reader to distinguish between fact and fiction, reality and dreams, history and myth. The ordinary reader is likely to come away not knowing what to believe. The prurient reader who would read only the matter complained of might be prepared not to disbelieve some of it. In the classic language of defamation law the mud would stick, and the suspicion lurk, and for this the plaintiffs are entitled to damages.
121 As far as damage to reputation is concerned, the matter complained of appears to strike hardest at Mr Rodney Cavalier. The ordinary reader would be aghast at the idea of anyone telling such a story as the author attributes to Mr Cavalier, unless the story were true, and the ordinary reader, suspecting that the story was not true, would suspect the more that Mr Cavalier was indulging in a cheap, smutty lie at the expense of the plaintiffs. Furthermore, at the end of the litigation, one might note, almost in passing, that the person whose reputation is in tatters is the author. In seeking to "nail the lie" the plaintiffs did not seek an apology or explanation from him and did not sue him. It is a curious feature of the case that the outrage of the plaintiffs is directed against the publisher, Random House, and not against the author. That did not stop their counsel referring to the author in the most disparaging terms at various times during the trial, thereby assisting the process of vindication.
122 It was the conduct of the publisher, not that of the author, on which reliance was placed, successfully, for an award of aggravated damages. Clearly each of the plaintiffs impressed his Honour in giving an account of his or her reaction to learning about and reading the publication, talking about it to members of the family or close associates, or not talking about it as the case may be, and then, as further matters of aggravation, reacting to being told of the various steps in the litigation and the appellant's conduct in relation to the demands for apologies and in relation to negotiations between the lawyers. His Honour took a very dim view indeed of the appellant's failure to apologise, of the language in which the appellant's solicitors conducted the negotiations ("pious cant"), and of what he considered to be desultory efforts to seek out and destroy copies of the book that had found their way into institutional libraries and other matters. His Honour was also less than impressed with the evidence of Ms Funnell, the literary editor of the appellant, who read the manuscript prior to publication with a view to excising anything libellous, and who said that it did not occur to her that the matter complained of was defamatory.
123 It was submitted for the appellant, as I understand it, that the law is that failure to apologise is not a matter that goes to aggravated damages. Reliance was placed on the majority judgment in the High Court in Carson where it was said at 66:
"Whereas publication of an apology may mitigate damage, thereby reducing the harm suffered by a plaintiff in a defamation case, and so reduce the damages awarded, the failure to publish an apology does not increase the plaintiff's hurt or widen the area of publication. No doubt want of apology may be a relevant factor in establishing that a defendant is motivated by a desire to injure the plaintiff but that does not mean that want of apology itself aggravates the plaintiff's injury."
124 Notwithstanding that passage, as Drummond J points out, the New South Wales Court of Appeal held in Clark v Ainsworth (1996)40 NSWLR 463 that damages for hurt to feelings may be assessed taking into account the plaintiff's increased hurt brought about by the failure to apologise, and that aggravated damages may be awarded additionally for the same failure if it involves improper or unjustifiable conduct. That decision has been followed in the Victorian Court of Appeal. This Court in Humphries at 699 stated that a failure to apologise was relevant to general compensatory damages "even in the absence of circumstances of aggravation". There are other cases impossible to reconcile with the statement in Carson, except upon the basis that failure to apologise is always relevant to subjective hurt to feelings but can be taken into account for the purpose of aggravated damages only if it is part of a pattern of conduct so unmeritorious by objective standards as to warrant increasing the plaintiff's damages, but always stopping short of awarding damages in order to punish the defendant. On the other hand, if the conduct relied upon goes beyond the failure to apologise, as his Honour clearly thought it did in the present case, then the failure may then be taken into account as part of the overall pattern: but failure to apologise is never, without more, enough to warrant aggravated damages. Upon that basis, no error is shown in his Honour's approach.
125 His Honour used strong language in his criticism of the appellant and its advisers, describing the latter as betraying "a disappointing moral bankruptcy". He considered that the appellant and its advisers lacked "the ideals of honesty and accuracy", which should have commended them to publish an apology. His Honour used colourful terminology in relation to what he considered to be the conflicting "frames of moral reference" of the parties. His Honour concluded that "the author and the defendant have managed to beguile the defendant's legal advisers into believing that the current norms likely to be applied by this court, are now those of nineteenth century ale houses". It was submitted that there was no evidence to support these and similar epithets and conclusions. That may well be, but it does not follow that his Honour was wrong in deciding that the conduct of the appellant and its advisers, taken in conjunction with the graphic evidence of the plaintiffs as to their reaction to that conduct, entitled them to aggravated damages. His Honour was clear in distinguishing between conduct which gave rise to aggravated damages and conduct which might have warranted an award of exemplary damages and specifically found (somewhat surprisingly in the light of the strength of his criticism of the appellant) that the conduct was not so serious as to fall within the latter category.
126 Then it was submitted that his Honour did not distinguish between hurt experienced by an individual plaintiff as a result of the libel of that plaintiff in contrast to the outrage resulting from the indignity and humiliation heaped upon that plaintiff's spouse. The clearest example of this was perhaps in the case of Mr Costello where it was suggested that he was more concerned about the attack on his wife than that upon himself. However, his Honour did consider this aspect and concluded that it would be "artificial" to draw the distinction for the purpose of awarding damages. In any event, the transcript shows that, whilst Mr Costello's initial concern was for his wife, it changed over time when he came to conclude that he himself was the true target of the publication and that political enemies were using his wife for that purpose. Indeed, both Mr Costello and Mr Abbott spoke at length about their concern for the health of the Australian political system if such publications were allowed to continue. It is highly doubtful whether that particular concern was a proper basis for damages (and it is hardly relevant to anything else) but his Honour appears not to have taken it into account. As a matter of principle, it is correct, as submitted on behalf of the appellant, that a person is not entitled to damages by being outraged at the defamation of somebody else. However, it has not been shown that his Honour proceeded erroneously in this regard.
127 In conclusion, it should be acknowledged that no point was taken on the appeal that his Honour should have made separate awards for each of the causes of action that accrued by publication in each of the States and Territories. The practice of awarding one lump sum for interstate publication appears to be accepted by this Court and was followed in Humphries as well as in Australian Broadcasting Commission v Comalco Ltd (1986) 68 ALR 259, cf David Syme & Co Ltd v Grey (1992) 115 ALR 247.
128 I agree that the appeals should be dismissed with costs
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Miles.