The Assessment of Damages in the Present Case
223 A preliminary question is whether I should attempt to differentiate between the various individual plaintiffs in the amounts of damages I award.
224 It is clear that I should differentiate between the individual plaintiffs on the one hand and the Club on the other, because the defamatory imputations conveyed about the individuals are not the same as the defamatory imputations conveyed about the Club and because the basis on which damages are to be awarded to the individual plaintiffs differs from the basis on which damages are to be awarded to the Club as a non-natural legal person.
225 The individual plaintiffs have the important things in common with each other that they were all directors of the Club at the time of the broadcast and the jury found that the same defamatory imputations relating to their conduct as directors of the Club were conveyed by the program about all of them. All of the individual plaintiffs have continued to be elected, unopposed, as directors of the Club.
226 On the other hand, there are differences between the individual plaintiffs with respect to their positions in life at the time of the broadcast, the ways in which they were dealt with in the program and what were the consequences to them of the broadcasting of the program.
227 Counsel for the plaintiffs, who of course appeared for all of the plaintiffs, did not submit that I should differentiate between the individual plaintiffs but at times in his address he indicated that it would be open to me to differentiate in favour of some of the individual plaintiffs by "topping up" their awards. He did not advocate any basis on which I might make this differentiation.
228 Counsel for the defendant suggested that it might be appropriate to differentiate between those plaintiffs whose individual named photographs were shown in the program and those plaintiffs who were not so singled out and identified. Counsel for the plaintiffs, while not supporting the making of this suggested distinction between the individual plaintiffs, did not oppose it.
229 It seems to me that it would be appropriate to distinguish between the individual plaintiffs, on the basis suggested by counsel for the defendant. There is, in my opinion, an important difference between those plaintiffs whose individual named photographs are shown in the program so as to occupy the whole of a viewer's television screen and the remainder of the plaintiffs who are merely shown in a group photograph and this difference should be reflected in different awards of damages.
230 I do not, however, propose to endeavour to distinguish between the individual plaintiffs on any other basis, particularly in the absence of any submission from counsel as to the basis on which I should make such a distinction. There are undoubtedly some differences between the individual plaintiffs, although some of the differences tend to offset each other. As I previously noted, the assessment of damages in defamation is "at large" and is not the result of a precise calculation.
231 A further preliminary question is whether I should simply award one global amount in favour of each plaintiff or whether I should attempt to break-up the damages awarded to each plaintiff into amounts awarded for various elements.
232 In Costello v Random House Higgins J showed the separate amounts he had decided to award each plaintiff for injury to reputation, injury to feelings and aggravated damages.
233 I do not consider that I should follow such a course. As the majority of the High Court said in Carson in the passage which I have quoted, the three purposes served by an award of damages in defamation overlap considerably in reality and the amount of any verdict is a product of a mixture of inextricable considerations. In Waterhouse v Station 2GB Hunt J said that aggravated compensatory damages are not awarded as a separate amount.
234 If I was to decide to award exemplary damages, then I would consider that I should show the amount of exemplary damages separately, because the considerations that enter into an award of exemplary damages are different from the considerations that enter into an award of compensatory damages.
235 It was submitted by counsel for the plaintiffs that I should show separately the amounts I had decided to award for the broadcasting of the program in New South Wales, the broadcasting of the program in Queensland and the broadcasting of the program in the Australian Capital Territory.
236 I do not consider that I should adopt this course. The overwhelming majority of the viewers of the program were in New South Wales and viewers in New South Wales were, in general, those likely to pay the greatest attention to the program. In Costello v Random House Higgins J did not show separately the amount of damages he was awarding for the interstate publication of the offending book. On the appeal to the Full Court of the Federal Court, Miles J noted in his judgment that on the appeal no point had been taken that Higgins J should have made separate awards for each of the causes of action that accrued by publication in each of the States and Territories. Miles J said that the practice of awarding one lump sum when defamatory matter has been published in more than one State or Territory "appears to be accepted by this Court" (par 127 at p 250).
237 There was no dispute at the hearing about a number of matter relevant to the assessment of damages. These matters included that at the time of the broadcast all the individual plaintiffs were directors of the Club, that at the time of the broadcast all the individual plaintiffs were persons of good, and indeed high, reputation, that all the individual plaintiffs have continued to be elected, unopposed, as directors of the Club, that no individual plaintiff has suffered any economic loss or incurred any risk of suffering economic loss as a result of the broadcasting of the program and that none of the plaintiffs, with the limited exception of Mrs Bridge who has been agitated and who has had difficulty in sleeping, have suffered any serious ill health as a result of the broadcasting of the program. As for the Club, it has continued carrying on business and there was no actual evidence that the Club has suffered any adverse effect as a result of the broadcasting of the program, although it was conceded that some damage could be presumed.
238 I will note some of the more salient features of the broadcasting of the program.
239 The program was shown on television as part of a news bulletin between 6 pm and 6.30 pm or between 6.30 pm and 7 pm, in prime viewing time. Television is a powerful, but at the same time a fleeting, medium. A number of the witnesses who had seen the program broadcast said that they could remember the program well enough to give evidence about it, without having to see a recording of the program played.
240 The program was watched by an estimated viewing audience of more than half a million in New South Wales and by a much smaller, but not inconsiderable, number of viewers in Queensland and the Australian Capital Territory. There would be a multiplier effect, in that some persons who did not actually view the program would get to know about it.
241 The program conveyed the serious defamatory imputations about each of the individual plaintiffs, that the plaintiff had been a director of the Club, while knowing it to be a slush fund club for the Labor Party; that the plaintiff's conduct as a director of the Club had been such as to warrant the plaintiff being reasonably suspected of being involved in the Club committing a large number of serious licensing offences; and that the plaintiff as a director of the Club had been involved in the donation of $125,000 of tainted money to the Labor Party. Each of these imputations about each director was untrue, to the knowledge of each director.
242 There had been no attempt by the defendant, before the program was broadcast, to communicate with any of the plaintiffs to check the accuracy of the allegations in the program. There would have been an opportunity for the defendant to do so. There was no apparent reason why the program, in order to be newsworthy, had to be shown on the night of 5 June 1997 and not on some later occasion.
243 The program consisted of words and pictures compiled from a variety of sources. The program conveyed the impression of being authoritative, containing inter alia camera shots of the exterior of the Club on which its name appeared, camera shots of the premier, camera shots of, and words spoken by, the shadow minister for gaming, camera shots of an official looking financial record, camera shots of a police service building and an allegation that senior police had "confirmed" that the Club was continuing to undergo audits and checks by the police.
244 In the program the number of alleged breaches of the licensing laws is stated, three times, to be the very large figure of 13,000.
245 A group photograph of the directors is shown in the program and then separate photographs of the plaintiffs Mr Riordan, Mr Ford, Mr Bridge and Mr Murray are shown, with their names shown at the foot of these photographs. While it is being shown, each of the photographs of the individual directors occupies the whole of the television screen.
246 A financial record is shown twice in the program. To viewers it would appear to be an official record. The way in which the record is shown, with shading of part of the picture, dim lighting of the rest of the picture and highlighting of the entries relating to the Club, would suggest that something sinister and significant and hitherto hidden had been discovered by the defendant.
247 The program shows as being part of the interior of the Club part of the interior of another club and the program wrongly asserts that the Club is the venue for Labor Party election victory celebrations. As stated later in this judgment, I do not consider that these errors are significant.
248 Features of the program having some tendency to mitigate the damage which would be done to the plaintiffs by the broadcasting of the program include that Adam Walters says that the alleged breaches "relate mainly to irregularities in record keeping and book work" and that the allegation that the Club is a "slush fund club" for the Labor Party is made by someone (Mr Bull), who is identified as the shadow minister for gaming and who many viewers would have realised was a political opponent of the Labor Party, whose utterances should, for that reason, be, to some extent, discounted. The first set of assertions made by Mr Bull in the program are rather incoherent and end rather lamely. However, the second set of assertions made by Mr Bull are spoken by him with much more apparent authoritativeness.
249 There is little evidence of a loss of reputation of any of the plaintiffs in the circles in which they move. For example, Mr Downey gave evidence that people who spoke to him about the program were "all surprised and mostly unbelieving or disbelieving". Some witnesses, such as Mr Sullivan and Mr Bastick, may have had initial doubts but these doubts were soon resolved. Persons to whom the plaintiffs gave denials of the allegations made in the program accepted these denials. Any changes in the lifestyle of the plaintiffs as a result of the broadcasting of the program were fairly brief. For example, Mr and Mrs Bridge resumed acting as hosts at AJC lunches, within a short time after the program was broadcast.
250 I was, however, reminded by counsel for the plaintiffs of Lord Atkin's words in Ley v Hamilton. A number of witnesses said that, while in their estimation the reputation of the plaintiffs had not been diminished by the broadcast, they could not speak for people who moved in different circles from the witnesses. The witnesses at the hearing were mainly members of the Labor Party, who knew the plaintiffs well and who would be unlikely to give credence to the allegations against the plaintiffs. It is much more likely that the plaintiffs would have suffered a loss of reputation among their political opponents or persons who were politically disinterested or persons who did not hear any rebuttal of the allegations made in the program. Mr Sullivan gave evidence of the program having been brought up in conversation by a political opponent. It is likely that some persons who gave the allegations some credence might have been diffident, as Mr Riordan feared, about speaking to the plaintiffs about the allegations.
251 I have already stated that I accept the evidence of the plaintiffs and the plaintiffs' witnesses about the plaintiffs' injured feelings and I keep in mind the need for each award of damages to serve the purpose of vindication.
252 The plaintiffs are entitled to claim aggravated compensatory damages ("aggravated damages") in all jurisdictions, that is New South Wales, Queensland and the Australian Capital Territory. In New South Wales, by reason of s 46 of the Defamation Act, aggravated damages must be confined to what is truly compensatory.
253 Particulars of the individual plaintiffs' claims to aggravated damages were supplied. Without any protest by counsel for the defendant, certain further matters which had not been particularised were in fact relied on in support of the claims for aggravated damages.
254 It was conceded by counsel for the defendant that the individual plaintiffs were entitled to some aggravated damages, at least on the bases that the defamatory imputations conveyed by the program were, to the knowledge of all the plaintiffs, untrue and that no attempt had been made by the defendant to communicate with any of the plaintiffs, before the program was broadcast, in order to check the accuracy of the allegations in the program, although clearly the defendant would have had an opportunity to check with the plaintiffs.
255 Apart from these matters, which were conceded by the defendant, it was alleged on behalf of the plaintiffs that a number of other matters had been proved to exist, which would have the effect of increasing the amount of aggravated damages.
256 It was submitted that I should infer that the failure on the part of the defendant to communicate with any of the plaintiffs before the program was broadcast, was deliberate or reckless. I am not, however, persuaded that I should draw this inference. In my opinion, the failure to communicate can readily be attributed, and should be attributed, to negligence, rather than deliberate or reckless conduct.
257 It was submitted that the untrue assertions in the program that the interior of the club which was shown was the interior of the Club and that the Club was a place where Mr Carr or the Labor Party celebrated election victories warranted the awarding of aggravated compensatory damages. However, these untrue assertions do not appear to me to be related to the defamatory imputations for the publication of which I am awarding damages and, in any event, I am not satisfied that the making of either of these assertions aggravated the injury to any plaintiff's feelings or the injury to any plaintiff's reputation.
258 Mr Scott gave evidence that he felt that the defendant by making an application through its solicitors under the Freedom of Information Act was attempting "to dig up some dirt on us". However, none of the other plaintiffs gave evidence such as would support a finding that this matter gave rise to a claim for aggravated damages. I do not consider that the step taken by the defendant was unjustifiable, improper or lacking in bona fides and hence I would not award aggravated damages on this basis.
259 It was submitted that the plaintiffs had been put to trouble in obtaining figures for viewing audiences for the program and especially figures for the estimated audience to which Prime Television had broadcast the program. However, the solicitors for the defendant had by successive letters of 28, 29 and 30 March 2000 promptly supplied substantial information about the broadcasting of the program, after information had been requested by the plaintiffs' solicitors. It has not been established that the defendant was already in possession of the information which Prime Television supplied, after it had been served with a subpoena.
260 I consider that the raising of the defence of qualified privilege, the statement by the defendant's solicitors in their letter of 23 June 2000 that the defendant had no intention of withdrawing its defence of qualified privilege and was preparing for the trial on that basis and the failure by the defendant to notify the plaintiffs before 9 August that the defence of qualified privilege would not be relied on, do support a claim for aggravated compensatory damages. In reaching this conclusion I have taken into account inter alia the evidence of a number of the plaintiffs that they had little real understanding of the nature of a defence of qualified privilege.
261 As regards the subject of an apology, I was referred to what the judges in the majority said in Carson at p 66:-
"..we have difficulty in understanding how the mere absence of an apology can aggravate damages. 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".
262 Notwithstanding the decision in Carson, it was held by the Court of Appeal in Clark v Ainsworth (1996) 40 NSWLR 463 that a mere refusal or failure to apologise is relevant to general compensatory damages and is capable of being included as a component of such damages. The Court of Appeal would also appear to have held that a refusal or failure to apologise can be relevant to aggravated compensatory damages, if the condition for the award of such damages laid down in Triggell v Pheeney is satisfied. In Costello v Random House Higgins J took into account the failure of the defendant to apologise in both his award of ordinary compensatory damages and his award of aggravated compensatory damages. On appeal, his Honour was held not to have erred. See especially per Drummond J at pars 219-221 at pp266-267.
263 In my opinion, whether the additional damages should properly be described as ordinary compensatory damages or aggravated compensatory damages, the damages to be awarded should be increased to some extent by reason of the defendant's conduct in regard to an apology. I have found that the letter of 19 June 1997 asking for an apology was posted by the plaintiffs' solicitors and received by the defendant. No apology was then broadcast by the defendant. No apology was broadcast within a short time after the conclusion of the section 7A hearing. It was not until 3 August 2000 that the defendant first indicated a willingness to give an apology, by submitting through its solicitors a proposed form of apology. I take into account the correspondence which was exchanged and the events which occurred in August 2000, which I have summarised in pars 25-30 of this judgment.
264 The defendant relied on the apology which was ultimately broadcast and repeated by counsel in open court, as operating in mitigation of damages. The apology when broadcast (in the terms required by the plaintiffs' solicitors) was, as counsel for the defendant submitted, unconditional, fulsome and it recognised the excellence of the reputations of the individual plaintiffs. However, the apology was very late, more than three years after the original broadcast. According to the oral evidence, the apology as it was broadcast consisted of words spoken by two announcers, without camera shots. The apology was broadcast late in a news bulletin, after the weather forecast had already been broadcast.
265 It was not suggested by counsel for the plaintiffs that anything done in the conduct of the case in the courtroom would have justified an award of aggravated damages. At the hearing there had been no challenge to the reputation of any of the plaintiffs and no cross-examination of any plaintiff or any other witness of such a kind as could give rise to a claim for aggravated damages.