Tingle & Anor v Harbour Radio P/L & Anor

T D Blackburn (1 Pl) COUNSEL : No appearance (2 Pl) B R McClintock SC/ R Lancaster (Defs) SOLICITORS : Barker Gosling (1 Pl & 2 Pl) Bush, Burke & Co (Defs) CATCHWORDS : Defamation; Damages; Aggravated damages ACTS CITED : Defamation Act 1974 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 Bickel v John Fairfax & Sons Ltd (1981) 2 NSWLR 474 Triggell v Pheeney (1951) 82 CLR 497 Broome v Cassell & Co Ltd (1972) AC 1027 CASES CITED : Coyne v Citizen Finance Ltd (1990-1991) 172 CLR 211 McCarey v Associated Newspapers [No 2] [1965] 2 QB 86 John Fairfax Ltd v Carson (1991) 24 NSWLR 259 Australian Consolidated Press Ltd v Ettingshausen (unreported, C of A, 13/10/93) Theophanous v Herald & Weekly Times Ltd & Anor (1994) 124 ALR 1 John Fairfax & Sons Ltd v Palmer (1987) 8 NSWLR 297 DECISION : See para 143

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

21262/95 - JOHN TINGLE & ANOR v HARBOUR RADIO PTY LTD & ANOR [No 4]

HIS HONOUR: Background 1 Mr John Tingle has brought an action for defamation against the company responsible for Radio 2GB, and against the broadcaster, Mr Ron Casey. 2 The action arises out of a broadcast on 1 November 1997. On that day Mr Casey said the following words on air: "I was talking about Shooters' Party … and the shooters' Party (laughs) is in debt to the State Government. Now we hear a lot about them, you know, beating their chests and they've got all this political strength and they - well they've got money coming in from the United States and the Shooters' Party in a court case, High Court Judge Sir Harry Gibbs appointed as a mediator on May 26th, he said that the Shooters' Party must pay back the principal of the loan made to them by the State Government and the legal costs and the interest, which means the Shooters' Party, John Tingle's crowd, is in debt to the State Government to the tune of $880,000.00, that's right, $880,000.00. Okay fellas, shut up until you pay your bill, okay, just be quiet until you've paid your bill." 3 A statement of claim was issued on 1 December 1995. Mr Tingle was named as the first plaintiff, and The Shooters' Party Limited, the second. When the matter was called on for hearing, counsel for Mr Tingle indicated that the second plaintiff had since been wound up. The action, therefore, proceeded with Mr Tingle alone. 4 The statement of claim, in its amended form, asserted that the following imputations, concerning Mr Tingle, arose from the natural and ordinary meaning of the words used, and were defamatory: "(a) The plaintiff had bragged publicly about the political strength and secure financial position of the Shooters' Party, knowing that both boasts were untrue. (b) The plaintiff was a foolish politician in that he had allied himself to a political party whose members made unfounded boasts about its wealth and influence." 5 The publication took place after the introduction of s 7A of the Defamation Act 1974. A jury was empanelled to determine first, whether the words spoken by Mr Casey carried the imputations alleged (or either of them), and whether they were defamatory (s 7A(3)). The jury determined that the first imputation ((a))arose, and that it was defamatory of the plaintiff. It found that the second imputation ((b)) did not arise. The jury was then discharged. 6 The plaintiff claims damages, included aggravated (compensatory) damages. No defence has been raised. The issue, therefore, is simply one of quantum. The defendants' point to an apology broadcast by Mr Casey on 3 November 1995, that is two days after the broadcast, as mitigating the damage to the plaintiff. The Principles to be Applied 7 Section 46(2) of the Defamation Act 1974, provides that the damages recoverable, where a person has been defamed, shall be "in accordance with the common law", but limited to "damage for relevant harm". The words "relevant harm" are defined as "harm suffered by the person defamed" (s 46(1)). 8 The three broad purposes to be served by an award of damages in defamation were restated by the High Court in Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, per Mason CJ, Deane, Dawson and Gaudron JJ, at 60-61 in these words: " … 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 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 often 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 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." 9 Here the plaintiff claims aggravated damages. The distinction between compensatory damages and aggravated damages was explained by Hunt J in Bickel v John Fairfax & Sons Ltd (1981) 2 NSWLR 474 in these terms (at 496): "Compensatory damages are given to compensate the plaintiff for the harm done to him by the publication of the matter complained of; aggravated compensatory damages (which are also known as merely 'aggravated damages') are given to compensate him when that harm has been aggravated by the defendant's conduct in publishing that matter or by his subsequent conduct." 10 Where the defendant's conduct may be characterised as "improper, unjustified or lacking in bona fides" (Triggell v Pheeney (1951) 82 CLR 497 at 514), and causes harm to the plaintiff, aggravated damages may be appropriate. Harm, in this context, means an increase in the hurt to feelings occasioned by the publication. If, by the presence of matters of aggravation, the hurt to feelings is exacerbated, the award of damages should reflect that fact. The Reputation and Standing of the Plaintiff 11 Mr Tingle is aged 67 years. He is a member of the Legislative Council of the New South Wales Parliament. He entered Parliament in March 1995 as the representative of The Shooters' Party. That party was founded by him and others in 1992. It was founded as a vehicle for protest against the Firearms Act 1992, which was thought to be unduly restrictive upon the rights of law- abiding shooters. 12 Mr Tingle is the sole parliamentary representative of The Shooters' Party. He was described as its "public face". The defendant acknowledged that the plaintiff was "a person prominently identified" in the public mind with that party. 13 Mr Tingle began his career in broadcasting. In 1949 he commenced working with Radio 2QN, Deniliquin. In 1951 he joined the ABC. He remained with the ABC between 1951 and 1968, working in radio and television. He became the supervisor of the ABC television news. Mr Tingle ultimately held the position of Chief of Staff of the News Service. 14 Between 1969 and 1976 Mr Tingle provided a commentary upon current affairs for a number of radio stations, both in Sydney (Radio 2UE, 2UW and 2SM), and Melbourne (Radio 3AW). At the same time he provided a daily news commentary for Radio Australia, the ABC's overseas shortwave service. 15 In 1977 Mr Tingle returned full time to the ABC in Queensland working in both radio and television. 16 In 1978 Mr Tingle began work with Radio 2SM, presenting its news, and providing commentary. He remained with 2SM until 1982. In that year he moved to Radio 2GB, where he then worked until 1992 on "talk back radio". Between 1992 and 1995 (by which time he had been elected to parliament), Mr Tingle worked with Radio 2CH. 17 Once in parliament, Mr Tingle was invited to join the Stay Safe Committee, being a Joint Standing Committee concerned with road safety. 18 Mr Tingle, therefore, has pursued a very public career. Since 1982, through a three hour segment on radio each day, he became known to a wide cross section of people in Sydney. Mr Nigel Milan, who is presently the Managing Director of SBS Broadcasting, gave evidence concerning Mr Tingle's reputation. It was Mr Milan, then the Manager of Radio 2GB, who enticed Mr Tingle to leave Radio 2SM to join Radio 2GB. Mr Milan moved in the same circles as Mr Tingle. He gave the following evidence concerning his reputation: (T 111) "I think he had a very fine reputation, both on a personal and on a professional basis." 19 Mr Milan added: (T 111) "I think on a professional basis he was certainly always considered to be very fair and very balanced in his approach. Sometimes he looked too balanced for the management, but …" 20 He thought Mr Tingle had a reputation "of great integrity". 21 A number of executive members of The Shooters' Party were called to speak of Mr Tingle's reputation. Mr Brown, who was also the State President of The Australian Deer Association, gave the following evidence: (T 191) "A. … By November 1995 John Tingle had been elected into parliament as the first representative of shooters anywhere in the world and so I would say he had a very high profile in the shooting community.

Q. What was his reputation? A. Oh well, his reputation was of a fairly clever man who had managed to achieve what we all thought was impossible.

Q. What was that? A. By being elected to parliament to represent our interests, shooters' interests I should say." 22 Mr Borsak described Mr Tingle as honest, trustworthy and "straight shooting". 23 I accept this evidence. Mr Tingle was, at the time of publication, a person of some prominence, with a reputation for integrity. Mr Tingle and Mr Ron Casey 24 Mr Tingle, before the broadcast, spent much of his time in the relatively small world of radio journalism. From time to time he attended functions with colleagues who inhabited the same world. By this means he met Mr Ron Casey in approximately 1971. He claimed to have been especially stung by the broadcast on 1 November 1995 because he regarded Mr Casey as a friend. 25 The defendants' strongly challenged that evidence. It is, therefore, necessary to examine the relationship between Mr Tingle and Mr Casey before November 1995 when the broadcast took place. 26 Between 1971 and 1995, Mr Tingle said that he saw Mr Casey periodically. Sometimes he would see him each week at social functions. Months would then pass before he saw him again. He described his relationship, as at November 1995, in these terms: (T 121) "I believe it was a warm relationship. We had certainly never had any disagreements or fights that I can recall and we always greeted each other warmly whenever we met." 27 Indeed, Mr Tingle, on one occasion, between 1992 and 1995, approached Mr John Singleton (for whom he then worked) on Mr Casey's behalf, endeavouring to secure him a position with Radio 2CH. He was unsuccessful. 28 Mr Casey, once back in radio, made comments from time to time which were perceived by Mr Tingle and his wife as being "anti-gun". On Radio 2GB on 17 May 1995, Mr Casey made a comment which opened with these words: (Ex H) "Have a look also at John Tingle, this relatively obscure, non successful radio personality, who's now gone into politics with a … a splinter party … the Shooters' … the Shooters' Party…" 29 The comment then dealt with a Private Member's Bill which Mr Tingle was then promoting. Mr Casey said this: "… he's struck upon a publicity stunt, whereby he says that anyone who's home is invaded that he wants … he wants the State … New South Wales, to pay their legal expenses … if … if they shoot the person that invades their home … in other words, if a home invader is shot, then the home … shot by someone in their own home, then the person protecting their rights, is going to have all legal expenses paid by the State. It opens up a Pandora's box, to say nothing of …to say nothing of every home will be required to have a gun, which is really what John Tingle is all about, that's right isn't it? That's what Tingle and the Shooters' Party is all about. He wants publicity for his obscure little political campaign, and he wants publicity in order to promulgate the idea that everyone should have a gun. If we all have guns we'll be like the United States, and if we all think like John Tingle, we should all go and live in the United States … think about it, that's another subject we'll talk about it today …" 30 As a political comment it was, according to Mr Tingle, inaccurate. The harm to the intruder may be produced by any weapon, not simply a firearm. The right to legal expenses would only follow where the person was acquitted. 31 Mr Tingle claimed not to have been offended by Mr Casey's opening words. He regarded them as "typical Ron Casey". They were part of the "cut and thrust" of radio journalism. 32 Mr Tingle distinguished this broadcast from the later broadcast of 1 November 1995, about which complaint is now made. He said this: (T 136) "A. … That broadcast was an attack on my political ideas, the broadcast in November was an attack on me." 33 When cross examined, however, Mr Tingle acknowledged that the opening words of the May 1995 broadcast were a personal attack. Yet, he insisted that, on 1 November 1995, he still regarded Mr Casey as a friend, and therefore felt especially hurt by his comments. 34 It is convenient not to resolve this issue for the moment. Its resolution will be assisted by more fully describing the way in which the events unfolded. The Day of the Broadcast 35 The broadcast occurred at some time on the morning of Wednesday 1 November 1995. Mr Tingle was at home in Port Macquarie with his wife. He did not hear the broadcast. 36 However, soon after it occurred he received a number of telephone calls. He could not remember exactly who rang. He believed it was the Office Manager of The Shooters' Party, and a friend, Alan Wardrop, who listened to 2GB. At first he did not take the matter seriously. The comments made to him were along the following lines: (T 122) "A. … I remember one person saying, 'Casey's done a real job on you on 2GB' and somebody else said, 'Casey said that you and the Shooters' Party owe the government money' and somebody else said, 'How come you got all that money out of the government' and things of that sort." 37 He felt somewhat bewildered. The Shooters' Party owed no money to the government. He telephoned the station manager of Radio 2GB, who undertook to investigate. 38 Meanwhile, Mr Tingle continued to receive telephone calls from persons who had heard the broadcast, or heard of it. He arranged with his parliamentary office to obtain a tape of what had been said. By mid afternoon he was able to listen to the tape played over the telephone. He did so twice. He described his reaction in these words: (T 124) "A. Well, it's hard to explain how sick in the guts I felt because I couldn't believe it had happened. I had always regarded Ron as a friend and a fair person. What I felt he had done was describe me publicly as somebody who was bragging about something that I hadn't bragged about. I felt that he virtually made a liar of me by suggesting that we were getting money from the United States. I felt indignant because nothing that he said was true and I knew it wasn't true and I felt terribly anxious about what I could do to mend the situation. Q. Were you concerned about people's reactions? A. Yes, I was because, having been in radio myself for forty-six - or, in those days, about forty-three years - I knew people hear things and believe them on the radio and I was very concerned for my reputation. I felt I had a good reputation up to that date. I don't think I was known as a braggart or a liar and I thought that, from what Mr Casey had said or what I heard on the tape, people might think I was." 39 He discussed the matter with his wife. Mrs Tingle gave evidence. She recalled her husband being very agitated. He was very upset. He was also angry. Mrs Tingle said this: (T 197) "Q. After he had heard the tape, did you ask him about it or did you say something to him? A. Yes. He said he had heard the tape and he was quite surprised because he didn't believe it at first. He thought it might have been an exaggeration because he and Ron Casey had been mates and he didn't expect Ron would make a personal attack on him but having heard the tape he realised it was true. Basically he had said that he and the Shooters' Party owed the Government money, that he had bragged in the past about getting money from America and other things and that Ron Casey had basically said that he was a liar and that he had a big mouth and he should shut up and pay up." 40 The Station Manager for 2GB was slow getting back to Mr Tingle. Mr Tingle remained agitated that the matter had not been resolved. He telephoned his solicitor in Sydney. He said this: (T 124/5) "A. Yes, later in the afternoon I thought I had better find out what the legal position was so I rang my solicitor in Sydney. I was really concerned with - more or less with seeing whether we could get a - an apology for it or somehow straighten it out." 41 That evening Mr Tingle remained agitated. He said this: (T 126) "Q. Coming back to the day in question. How did you feel that night? On the night of 1 November? A. Well, I felt dreadful. I felt that people whose resepct I considered important to me would probably think less of me because I had been accused publicly of, I suppose, telling lies and being a braggart and of owing money which I wouldn't repay and all the things I considered important to my reputation seemed to be under attack. I felt quite nervous and not a little physically ill. Q. How did you sleep that night? A. Very badly. In fact, I remember sitting up most of the night talking to my wife about this and asking what effect it would have on our lives." 42 Mrs Tingle gave a similar account. Her husband complained of chest pains, and indigestion. He did not sleep. They talked for much of the night. The Falsity of the Allegations 43 To better understand Mr Tingle's reaction, I should interrupt the description of what occurred, in order to examine the broadcast, and its background. 44 On the morning of 1 November 1995, a small item appeared in the Telegraph Mirror. It carried the following heading: "Shooters owe State $280,000" 45 The article was concerned with the New South Wales Shooting Association, not The Shooters' Party. It related to events in 1991, before the formation of The Shooters' Party in 1992. The article said this: (Ex C) "The NSW Police Service is suing a shooters' association to recover an outstanding debt of $280,000 from a $600,000 loan given to it by the previous Coalition government. Police Minister Paul Whelan told a budget estimates committee hearing yesterday he would take legal action to get the money back from the NSW Shooting Association. 'I want that money repaid. It is State money. It belongs to the people of NSW and not to the shooters', Mr Whelan said. Mr Whelan revealed that former Liberal police minister Ted Pickering had given the shooters $600,000 in 1991 to help them promote responsible gun ownership. High Court Judge Sir Harry Gibbs - appointed as a mediator - said on May 26 the shooters must pay back the principle loan, interest and legal costs, which meant the bill was closer to $880,000." 46 Mr Casey was not called as a witness. However, interrogatories were tendered. They bore his name and, although unsigned, were said to have been completed on his instructions. According to the interrogatories, Mr Casey directed that one of his officers check the amounts referred to in the article with the Police Minister's Office. That was done. The figures in the article were confirmed. 47 No check was made with Mr Tingle, or The Shooters' Party. The defendants acknowledged (as they did in an apology broadcast on 3 November 1995), that Mr Casey had made a mistake. The New South Wales Shooting Association was not The Shooters' Party. The Shooters' Party had not been provided with funds by the New South Wales government. It was not in debt to that government.

The Solicitor's Letter 48 On 1 November 1995, the solicitors for Mr Tingle wrote a letter to Radio 2GB. The letter opened with these words: (Ex E) "We act for John Tingle and The Shooters Party." 49 Apart from Mr Tingle (who was in Port Macquarie), the solicitors obtained instructions from someone in The Shooters' Party. 50 The letter then quoted from the broadcast, and continued as follows: "We are instructed that our clients are extremely distressed and upset by the above statements which are offensive, defamatory and totally inaccurate. In particular, the statements contain the following defamatory imputations about our clients:- · That our clients are unable to pay their debts. · That our clients are in financial difficulties. · That our clients receive funding from associations in the United States. · That our clients are connected with, associated with/influenced by the National Rifle Association of America. · That our client is not able to make legitimate political comments because of its inability to pay its debts. We are instructed that these imputations are false and offensive and will be likely to be extremely damaging to our client's reputations." 51 The letter concluded by specifically denying that either John Tingle or The Shooters' Party was in debt to the State government for $880,000, or for any amount. It denied that the party received funds from the USA, or had any affiliation with the National Rifle Association of America. It then added these words: "Our client's believe that the statements have had and will have a serious effect on their reputation and standing. They require an on air apology by Ron Casey in acceptable terms as soon as possible together with an undertaking that no similar comments will be made in the future. Our clients reserve their rights for damages." 52 The solicitors for Radio 2GB recognised at once that a mistake had been made. They responded the same day. Although they denied that the imputations were capable of arising, they said this: (Ex D) "Nevertheless, as our clients acknowledge the error in the broadcast and further as our clients bear your clients no malice whatsoever, our clients are prepared to broadcast the attached apology tomorrow (subject to Mr Casey's health) or on another mutually convenient day. Please note that the apology has been drafted in Mr Casey's absence and as such is subject to his final approval." 53 The draft apology, which accompanied that letter, was in these terms: "On Wednesday morning I made a reference to the SHOOTERS PARTY being in debt to the State Government to the tune of 880-thousand dollars. The basis of my comment was a press article describing a decision by High Court Judge SIR HARRY GIBBS that the shooters, as they were described in the Daily Telegraph-Mirror, must pay back a loan, with interest and legal costs which would total that amount. I was incorrect. The group referred to was actually funded by the State Government to perform firearm testing in readiness for a licensing scheme which was NOT implemented. I have been informed that this group has NO connection with the SHOOTERS' PARTY and therefore I withdraw any suggestion that the SHOOTERS' PARTY owes money and withdraw my additional comments regarding any outside source of finance. The party's elected MLC, JOHN TINGLE, has assured us that the party's books are open for inspection at anytime. Therefore, I apologise to JOHN TINGLE and to THE SHOOTERS' PARTY for making such an error." 54 Mr Tingle was not happy with the apology. On 3 November 1995, on Mr Tingle's instructions, his solicitors wrote back to the solicitors for Radio 2GB. They said that the draft apology was rejected. Their letter continued as follows: (Ex F) "We enclose an amended apology that would be acceptable. In an attempt to repair the damage already done, our clients require this apology to be broadcast on air as a matter of urgency at 10.30 am today in the Ron Casey programme time slot." 55 The amended apology proposed by Mr Tingle's solicitors was as follows: "On November 1, 1995, Ron Casey on Radio Station 2GB, broadcast a number of comments that were critical of John Tingle and the Shooters Party. In particular, he stated that the Shooters Party was in debt to the State Government in the sum of $880,000.00, that it was funded from the United States, and implied that it was connected with the National Rifle Association of America. Ron Casey and Radio Station 2GB now accept that these statements were totally untrue, inaccurate, without foundation, and grossly defamatory of John Tingle and the Shooters Party. Ron Casey and Station 2GB wish to publicly retract any defamatory imputations which were conveyed by these statements. Ron Casey and Station 2GB acknowledge that neither John Tingle nor the Shooters Party owes any money to the State Government and has never owed such money. Ron Casey and Station 2GB wish to apologise unreservedly to John Tingle and the Shooters Party for the hurt, embarrassment, and possible electoral damages which the allegations have caused. Ron Casey acknowledges that these statements were completely false, and that this had been drawn to the attention of Radio Station 2GB when similar statements had been made on earlier occasions." 56 The same morning (3 November 1995), Mr Ron Casey read an apology on Radio 2GB. It was a shortened version of the apology which had been proposed by Mr Tingle's solicitors. The apology was framed without further reference to Mr Tingle or his lawyers. It was as follows: (Ex G) "On Wednesday morning I broadcast a number of statements about John Tingle and the Shooters' Party. These statements included that the Shooters' Party was in debt to the government, the State government in the sum of $880,000 and was receiving funding from the United States. Now these statements were incorrect. The Shooters' Party is not nor ever has been in debt to the State government and the Shooters' Party does not receive funding from the United States. Both 2GB and myself unreservedly, unreservedly apologise to both John Tingle and the Shooters' Party for any hurt or embarrassment they may have suffered as a consequence of these statements." 57 Mr Tingle was disappointed that the station had not broadcast the apology submitted by his solicitor. He thought the apology actually broadcast was "sketchy". However, when cross examined, Mr Tingle made the following concession: (T 173) "Q. It retracted the substance of everything which you have asked to be retracted; did it not Mr Tingle? A. Yes." 58 The defendants submitted that the apology broadcast was "a handsome apology". Whatever the appropriate word, it was not, in my view, inadequate. Having regard to the request made, it was a suitable apology, published promptly. After the Broadcast 59 Mr Tingle remained upset by the broadcast for some time. The Shooters' Party held its State Conference in November 1995. Mr Tingle said this: (T 132) "A. Yes, I had the feeling that everybody or everybody seemed to know what had been said even if they had not heard the broadcast and they would be sort of looking at me and thinking: Well, that fellow beats his chest and skites a lot, tells a lot of lies and doesn't pay his debts. Q. Did you spend any time explaining to people who spoke to you what had happened? A. Yes, I found it embarrassing to have to explain to people continuously that neither the party nor myself had ever owed the government any money and that what had been said was untrue. I felt, the original statement having been made, they may not believe me." 60 People at the conference asked Mr Tingle whether the story was true: Did The Shooters' Party really owe the State Government money? Mr Brown (who gave evidence of reputation) was, at this time, contemplating standing for an executive position within the party. He asked Mr Tingle for the balance sheet and the profit and loss account of the company. He described Mr Tingle's response in these words: (T 193) "Q. How was his demeanour? A. I think he was a bit miffed that I insisted on seeing the accounts. …" 61 His evidence continued: "Q. Did you notice something else about his mood or his mood as he was telling you about this? A. His response was somewhat agitated and a bit impatient - he appeared to be agitated that I was actually questioning, you know, his integrity or his - what he had said. He just said there was no problem and yet I wanted to have a look at the accounts. I felt that was my right or obligation to myself to make sure the facts were right." 62 Throughout this time Mr Tingle said that he was depressed. He felt that his reputation "had been pretty well permanently tainted". To some degree he still felt that. During this period he did not sleep well. He gave the following evidence: (T 133) "Q. Did this continue in the New Year, people spoke or approached you about the Casey broadcast? A. It started to fizzle out in the New Year but it did go on for some time after Christmas." The Attack Upon Mr Tingle's Evidence 63 Mr Tingle's evidence was challenged in a number of respects: · First, it was suggested that the imputation upon which he had succeeded before the jury (in effect, that he was a braggart and a liar) had not occurred to him at the time of the broadcast. Indeed, it did not arise in his mind until the statement of claim was drawn by counsel a month later. The statement of claim incorporated imputation (a). · Secondly, it was suggested that, by November 1995, Mr Tingle no longer regarded Mr Casey as a friend. His evidence that, by reason of that friendship, his feelings were especially hurt, should be rejected. · Thirdly, it was suggested that Mr Tingle's description of his agitation, his loss of sleep, and the effect upon him, was exaggerated. It was put to him that he was "gilding the lily". 64 I will deal with each issue in turn. Mr Tingle's Appreciation of Imputation (a) 65 Before examining the evidence, I should say something about imputation (a). Imputation (a) combined two ideas. It alleged that the plaintiff had bragged publicly. It also asserted that, when he did so, he knew that what he was saying was untrue. 66 Now, Mr Casey did not say, in terms, that Mr Tingle was a braggart, and a liar. The case went to the jury upon the basis that this was the plain message, reading between the lines. The words were spoken (so it was said) with a sneering tone. The reference to bragging was said to be unmistakable. Mr Casey said this: "Now we hear a lot about them, you know, beating their chests and they've got all this political strength and they - well they've got money coming in from the United States …" 67 The bragging was then contrasted with the reality. A High Court Judge had determined that The Shooters' Party owed the State Government $880,000. 68 The broadcast ended with the clear implication, according to the plaintiff, that the Party could not pay, and, therefore, those who had bragged had been caught out in a lie: "Okay fellas, shut up until you pay your bill, okay, just be quiet until you've paid your bill." 69 It appeared to me that the imputation arguably arose. I, therefore, left the issue to the jury, which determined that it did arise, and that it was defamatory. 70 Mr Tingle gave evidence (which was corroborated by his wife) that, upon hearing the broadcast, he believed that he had been called a braggart and "virtually a liar". His wife used the term "big mouth". The challenge to their evidence by the defendants rested upon two matters. First, the letter from the plaintiff's solicitors did not suggest any such imputation. Secondly, the apology which was sought by those solicitors, which Mr Tingle found acceptable, did not seek the retraction of any suggestion that Mr Tingle had lied (or said things knowing them to be untrue), or even that he had boasted. Had Mr Tingle thought the broadcast publicly branded him a liar, it is inconceivable (so it is argued) that he would not have sought a retraction of that imputation. 71 Mr Tingle acknowledged that the letter of 1 November 1995 from his solicitors to the defendants was sent on his instructions. It was not submitted to him before its despatch. He saw it some days later. Although he gave instructions (as did an officer from The Shooters' Party), he did not identify, in his conversation with the solicitors, the imputations which he thought arose. He said nothing, at this point, about his belief that the broadcast had "virtually called him a liar". The imputations which appeared in the solicitors' letter of 1 November 1995, therefore, did not derive from him. 72 Counsel for the defendants strongly challenged that testimony. Mr Tingle acknowledged that the first time that he raised his concerns about "virtually being called a liar" was after 3 November 1995, that is after the apology had been broadcast by Radio 2GB. Why had it not been raised earlier? Why had he not raised the issue, for instance, once he had seen the letter of 1 November 1995 (setting out certain imputations), or after he had been provided with the draft apology (which he found acceptable)? Mr Tingle said this: (T 167) "A. I saw the broadcast as breaking into two parts, opinions which Mr Casey expressed about me, and statements of fact which he made, or before the statements of fact he had made about me. I felt it was more likely I would get an apology for the so called statements of fact than I would for an expression of opinion." 73 Counsel for the defendant then accused Mr Tingle of not giving truthful evidence. The following question was put: (T 167) "Q. Mr Tingle, you are just making this up as you go along? A. No, I'm not, Mr McClintock." 74 The cross examination then included the following: (T 167) "Q. And you say that it was not something that you were sufficiently concerned about to seek an apology from Mr Casey and 2GB? A. I didn't say (it) I wasn't sufficiently concerned about it. I said I didn't think I would get an apology for what I saw as an expression of opinion, not a statement of fact." 75 Mr Tingle continued: (T 169) "Q. Don't you think it would have been appropriate there, if you thought it was an expression of opinion to include a reference to the fact that you had been called, so you say, a liar? A. It may have been but given the circumstances and the speed with which the apology was sought I suspected at the time we were concentrating on what I regarded as purported statements of fact by Mr Casey and they seem, things that were most readily rebutted." 76 I accept the plaintiff's evidence. I found Mr Tingle to be an impressive witness. His evidence, as to his reaction upon hearing the broadcast, was supported by that of his wife. Mrs Tingle appeared to me straight-forward, and truthful. However, leaving aside these impressions, and as a matter of analysis, the version of Mr Tingle appears to me more probable. 77 First, the broadcast was built upon a central idea, namely the statement that The Shooters' Party owed the State Government $880,000. That statement was wrong. One can readily appreciate the desperate urgency felt by Mr Tingle, and The Shooters' Party, to secure an acknowledgment of error. Such an acknowledgment would go some way towards stemming the electoral damage that may otherwise ensue. 78 Secondly, I do not find it implausible that Mr Tingle should choose, selflessly, to put to one side, for the time being, his own interests, in order to deal with those of the Party. He was, after all, the parliamentary representative of that Party, and the person identified as the public face of The Shooters' Party. Contradicting the central mistake in the broadcast would also go some way towards rehabilitating his own image. 79 Thirdly, nor do I find it implausible that Mr Tingle should choose to concentrate upon the explicit rather than implications arising from the broadcast. There was, as mentioned, a need for an urgent retraction and apology. The matter was complicated by the need to negotiate that apology through lawyers. I accept that his motivation was "the art of the possible", as he saw it. By concentrating upon the explicit, there could be no argument. Delay, therefore, was the less likely. The message about him personally depended upon implications. It was necessary to read between the lines. It was, therefore, more argumentative, as this trial has demonstrated. It was not unreasonable that he should fear that the inclusion of such material may bring about delay. 80 Fourthly, I do not believe, as a matter of construction, that the letter from Mr Tingle's solicitors of 1 November 1995 identified him as the source of the imputations which appeared in that letter. Rather, the imputations appear to be the solicitors' encapsulation of the disparaging message which the broadcast conveyed. Putting the matter at its highest, from the viewpoint of the defendants, the imputations may have been put to Mr Tingle for his comment. 81 Fifthly, as mentioned, imputation (a) combines two ideas, bragging and telling untruths. Mr Tingle must surely have gained the impression from the broadcast that the Party and he, as its public spokesman, were being accused of bragging. After all, Mr Casey had used the expression "beating their chests". Yet, there is nothing in the solicitors' letter, or the draft apology, which identified that issue. The solicitors' letter is plainly not an exhaustive statement of the imputations which arose. It would also be surprising if it had not occurred to Mr Tingle that the broadcast had suggested that he was lying. Mr Tingle had publicly stated (as was the fact) that The Shooters' Party received no funding from the National Rifle Association of America. He said this: (T 125) "A. There had been a suggestion by the Coalition for Gun Control and others that we were funded by the National Rifle Association of America - not true. And, because of those assertions, I had stated publicly several times that we were not receiving assistance from them and wouldn't accept it if they offered it." 82 It is plain from Mr Tingle's evidence that the contrast between these statements, and the words in the broadcast, was a matter of concern. Now, the finding of the jury was not based upon that concern. Rather, it was based upon the more subtle message, arising from the words in the broadcast itself, that Mr Tingle was not telling the truth (the sneering tone of the delivery, and the contrast between the public utterances of financial strength, and the reality of massive debt). It was, no doubt, open to counsel to suggest that any concerns of Mr Tingle about an imputation of lying could only arise, in effect, as a true innuendo to those persons (such as the plaintiff himself) familiar with his public utterances on funding from the United States. However, the matter was not put on that basis. Rather, Mr Tingle was cross examined upon the basis that he was giving false testimony when suggesting that he immediately though that the broadcast accused him of lying. Such a cross examination was not, in my view, justifiable on this material. 83 Finally, it will be noticed that Mr Tingle's solicitors, when framing the imputations in the letter of 1 November 1995, included the following, as one of the imputations arising from the broadcast: "That our clients are unable to pay their debts." 84 That, I infer, is the message the solicitors got, reading between the lines. Since the broadcast expressly speaks of bragging ("beating their chests") about money flowing to them (and impliedly financial strength), the imputation identified by the solicitors presupposes that the bragging is false. It presupposes, in other words, that untruths have been told about the financial strength of the party. Accordingly, the difference between imputation (a), and the imputation in the solicitors' letter is not as great as it may at first appear. Mr Tingle's View of Mr Casey 85 There was no challenge to Mr Tingle's evidence that, before 17 May 1995, he regarded Mr Casey as a friend, or at least an acquaintance of long standing, whom he was pleased to see from time to time. His seeking a job for Mr Casey was consistent with the goodwill that Mr Tingle claimed to have for Mr Casey. The issue is whether the insulting reference to Mr Tingle by Mr Casey in his opening remarks on 17 May 1995 is likely to have changed Mr Tingle's view? Alternatively, is it likely that the insult, combined with Mr Casey's anti-gun views, altered Mr Tingle's regard for Mr Casey? 86 The remark by Mr Casey ("an obscure non-successful broadcaster") was hardly flattering. Many would terminate their relationship upon the basis of such a remark, uttered in public. I believe it likely that such a remark had some effect upon Mr Tingle's view of Mr Casey. However, I accept Mr Tingle's assertion that, on 1 November 1995, he still regarded Mr Casey as a friend. One remark (in May 1995), although it was insulting, and although it may have made him wary, was not enough to cancel almost twenty five years of knowing Mr Casey, and feeling well disposed towards him. I also believe that there is a qualitative difference between the broadcast on 17 May 1995, and that on 1 November 1995. Apart from the opening remarks, the attack on 17 May 1995 was an attack upon the policy of The Shooters' Party. It was an opinion. Mr Casey was entitled to his opinion. The opening remark was, no doubt, surprising. However, Mr Casey's style was to be provocative by being insulting. The words he used did not necessarily reflect Mr Casey's view of Mr Tingle. I believe that is what Mr Tingle meant when he described the opening remark as "typical Ron Casey". Mr Casey responded to the following interrogatory in respect of Mr Tingle. (Ex K) "10A. State all matters of past experience and background or of contemporary history or notoriety and anything else relating to the matter complained of that occurred to the mind of the Second Defendant. 10B. The Second Defendant had known John Tingle for some time as a broadcaster and radio commentator. He had always had a high professional regard for Mr Tingle. He had known him personally and regarded him as a person of good character." 87 The broadcast on 1 November 1995, however, was different. It was an attack upon The Shooters' Party, and upon John Tingle. It purported to be based upon certain facts. The facts stated were wrong. It was damaging to the Party, as well as Mr Tingle. It could not be dismissed simply as Mr Casey's opinion. 88 I accept that the sting of this misinformation concerning the Party (of which he was the leader), and himself, was the greater because its source was Mr Casey, whom he regarded benignly, as an acquaintance of long standing Did Mr Tingle Exaggerate the Impact Upon Him? 89 The following was put to the plaintiff by counsel for the defendants: (T 176) "Q. I want to suggest to you that in describing your reactions to the programme you have engaged in a considerable amount of gilding the lily. What do you say about that? A. I am not sure what you mean by gilding the lily Mr McClintock. I have told what I felt." 90 The examination continued: "Q. Exaggeration? A. I am sorry. I don't accept that.

Q. You wouldn't regard yourself as a sook; would you? A. I hope not." 91 I do not believe that Mr Tingle was exaggerating the impact upon him. I accept that, as a consequence of the broadcast, he was highly agitated and distressed. I accept that he lost sleep. I accept that his feelings of hurt and distress were rekindled in the months that followed, as people reminded him of the broadcast by asking him questions about what had been said. 92 The more complex question is the issue of causation. It is not enough that Mr Tingle should have experienced this hurt following the broadcast. The cause of action in respect of which he has succeeded before the jury relates to imputation (a), and only imputation (a). Insofar as his distress was the consequence of the misinformation concerning the finances of The Shooters' Party, and the electoral impact that was likely to have, that is not compensible in this action. 93 Disentangling the emotions felt by Mr Tingle, and attributing some to imputation (a) is, in a sense, impossible. However, I do not doubt that the assault upon Mr Tingle's personal integrity by the broadcast, through suggesting that he was bragging and not telling the truth (imputation (a)), caused Mr Tingle some pain, and was, in part, responsible for the distress that he described (the agitation, the loss of sleep, the continuing hurt, etc). 94 I accept Mr Tingle's evidence that, in relative terms, imputation (b) (suggesting that he was a foolish politician) was the minor aspect of the attack upon him personally. Being accused of bragging, knowing that what he said was untrue, appears to me rather more serious than being called a foolish politician. 95 How, then, should the question of causation be approached? Obviously emotions are not compartmentalised. Analysis will not usually identify those emotions properly to be attributed to a particular imputation. Nonetheless, the Court must form a view as to that part of the damage (in this case, hurt feelings) caused by imputation (a). One may, perhaps, choose simply to describe the contribution to the overall hurt as "major", "minor", or by some other appropriate adjective. It may be more helpful, however, to identify that proportion of the hurt which can fairly be attributed to the imputation. Such an approach is really no different from the apportionment which must be undertaken when determining issues of contribution between joint tortfeasors, or by the plaintiff, through contributory negligence. 96 Doing the best I can, I would attribute 40 percent of the hurt suffered by Mr Tingle to the message conveyed by imputation (a), and 60 percent of the hurt to other aspects of the broadcast. The major part of the hurt, in my view, arose out of the misinformation concerning the finances of The Shooters' Party, and the electoral damage that could be expected as a consequence. Aggravated Damages 97 The plaintiff identified a number of matters of aggravation. They were: · First, the falsity of the imputation. · Secondly, the sneering tone which, with the words said, signalled an intention to injure the plaintiff, as he immediately recognised. · Thirdly, the apology which was offered which was said to be insulting. · Fourthly, the May 1995 broadcast, and the realisation that this was part of a campaign by Mr Casey. · Finally, the conduct of the defendant in cross examination of the plaintiff repeatedly accusing him of lying (T 167, line 9: T 176, line 35) 98 Dealing with the first matter, I have accepted that the plaintiff recognised that the broadcast accused him of bragging, and speaking untruths. Such suggestions were false. They were recognised as such by Mr Tingle. I accept that the falsity exacerbated the hurt to Mr Tingle. 99 Moving to the second matter, I believe the broadcast was delivered with a sneering tone. The intention of Mr Casey to wound Mr Tingle (and The Shooters' Party) was unmistakable, and recognised by Mr Tingle. That, too, was a matter of aggravation. 100 The third matter concerns the apology. The draft apology was said to be quite unsatisfactory. Indeed it was insulting. Whereas the original Telegraph-Mirror article, which was the source of the broadcast, had correctly identified the party which was indebted to the State Government (the New South Wales Shooting Association), the draft apology did not do so. It wrongly suggested that the article had simply referred to "the Shooters". Mr Tingle felt, therefore, that the apology was an attempt to evade responsibility, and to maintain a level of ambiguity which was not there. He felt the apology did not make it clear that the New South Wales Shooting Association owed the money, and not The Shooters' Party. 101 However, I do not believe that the apology was insulting. There is no evidence as to who drafted the apology. It was said to have been drafted in Mr Casey's absence. One infers that it was the work of the defendants' lawyers, putting the best complexion they could upon the mistake which had been made. The draft made it clear, in my view, that the monies were not owed by The Shooters' Party. It included the following: "The group referred to was actually funded by the State Government to perform firearm testing in readiness for a licensing scheme which was NOT implemented. I have been informed that this group has NO connection with the SHOOTERS' PARTY and therefore I withdraw any suggestion that the SHOOTERS' PARTY owes money and withdraw my additional comments regarding any outside source of finance." 102 The third matter, therefore, is not a matter of aggravation. 103 The fourth matter, said to be a matter of aggravation, concerns the 17 May 1995 broadcast. The broadcast on 1 November 1995 occurred in the context of the earlier broadcast. The plaintiff asserted that it was part of a campaign, and was unjustifiable, and lacking in bona fides. It was said that it increased Mr Tingle's sense of hurt. 104 However, the earlier broadcast does not appear to have been in the forefront of Mr Tingle's mind. His wife gave the following evidence, from which it emerges that Mr Tingle needed to be reminded of the earlier episode. She said this: (T 197) "A … He had been surprised that Ron would do it, make an attack on him. I reminded him that several broadcasts that Ron Casey had made were very anti-gun, he had taken an anti-gun stand in the past and that he had once, about John and the Shooters' Party, he once suggested that John was a failed broadcaster. He said, 'That is fine but I can't let this one go through, I have got to do something about it.'" 105 I am not persuaded that the fourth matter is a matter of aggravation. 106 The fifth matter concerns the way in which the defendants conducted their case. At the point where Mr Tingle was cross examined, a number of matters were clear. First, it was clear that Mr Casey had made a mistake. He had confused the New South Wales Shooting Association with The Shooters' Party. Further, the jury had determined that what was said by Mr Casey in the broadcast carried imputation (a), which was defamatory of Mr Tingle. Imputation (a) included the suggestion that Mr Tingle had knowingly told untruths. The plaintiff, to vindicate his reputation, had brought the present action. 107 Mr Tingle asserted that each of the ideas in imputation (a) (namely, that he was a braggart and had told untruths) occurred to him from the outset. He gave reasons for not seeking to repudiate the suggestion that he was a liar and a braggart in the apology that was broadcast. In that context, Mr Tingle was twice accused of giving false testimony to this Court. He was accused of "making it up" as he went along (T 167). 108 Counsel returned to the issue shortly thereafter, and put the following: (T 176) "Q. Just to make it absolutely clear Mr Tingle, I want to suggest to you, if I haven't done it already, that your evidence that you thought that Casey's words had conveyed the first imputation about bragging publicly is untrue? A. That my evidence is untrue?

Q. Yes? A. No I am sorry. It is not." 109 The plaintiff identified this conduct as a matter of aggravation. It was said to be unjustifiable, and lacking in bona fides. I should infer that Mr Tingle's feelings were hurt the more by reason of that conduct. 110 The defendants responded in two ways. First, the cross examination was legitimate. There was ample justification for the suggestion which was made, in the light of the implausibility of the plaintiff's assertion, given the letter of 1 November 1995 from his solicitors, and the terms of the draft apology. Neither suggested an imputation which, in any way, resembled imputation (a). The plaintiff's attempt to explain these omissions was sophistry. 111 Secondly, the defendants asserted that the plaintiff was not in fact hurt. He did not appear hurt when giving evidence. He would readily understand that counsel was required to do a job, and was simply doing that job. 112 I have, earlier in this judgment (supra p 25, para 82), dealt with the first issue. The blanket suggestion that Mr Tingle was lying to the Court in stating that he recognised that the broadcast made him out as a liar was, in my view, unjustifiable. 113 I have no doubt that the cross examination increased Mr Tingle's sense of hurt. That hurt was not visible when he gave evidence. However, I do not doubt that it was there. 114 I therefore believe that the fifth matter of aggravation has been established by the plaintiff. 115 Having described what happened, and the plaintiff's reaction, I am now in a position to consider more closely the major ingredients of the award, namely; harm to reputation, hurt to feelings, and vindication of the plaintiff's reputation. What Harm Was There to Mr Tingle's Reputation? 116 A number of matters are relevant. First, it is necessary to look at the circumstances of publication. The imputation was, of course, conveyed in a radio broadcast. A broadcast is evanescent. Listeners are not able to return to the text, to check the message. 117 The broadcast itself was short. It was something less than thirty seconds. The message was not explicit. The listener had to read between the lines. Some listeners would have missed the point. 118 The listening audience of Radio 2GB at that time was said to be twenty thousand people. Some, no doubt, were listening closely. Others were, perhaps, concentrating on other things, with the radio in the background. Still others may have heard only part of the broadcast. Something less than twenty thousand people, therefore, would have received the message. 119 The plaintiff points out, and I accept, that of those who heard the broadcast many, if not most, would have recognised Mr Tingle's name, and his association with The Shooters' Party. He is a public figure. 120 Secondly, it is relevant to have regard to the seriousness of the imputation. The plaintiff asserts that to call a Member of Parliament, and the head of a political party, a braggart, and a person who deliberately speaks untruths, is a very serious matter. The defendants responded by saying that "there are lies and lies". To suggest that someone told untruths for financial gain is serious. To suggest, on the other hand, that a politician bragged about the strength of his political party is not serious, and indeed trivial. More than that, each one of us, each day, bends the truth, in one way or another. These are the "white" lies that are understood, and are commonplace. No-one thinks the less of someone because of them. 121 The defendants adopted an expression used by counsel for the plaintiff, when addressing the jury. The broadcast suggested the plaintiff was "a bull artist". In the context of a politician, such a suggestion was not likely to seriously damage his reputation. 122 There is force in the arguments put by each party. The truth lies somewhere in between. In may not be serious to suggest that politicians brag, and are given to telling deliberate untruths, any more than to say that all lawyers are thieves. However, to name a particular politician, and suggest that he has publicly bragged about something which he knew to be untrue, is serious. It is likely, at least for a time, to harm his reputation and standing. 123 Having said that, the imputation is not of such character as to brand the person for life, permanently damaging his reputation (as, for instance, an imputation of paedophilia or financial dishonesty). 124 Mr Tingle, in the comments he could recall after the broadcast, did not suggest that anyone questioned his truthfulness, or accused him of bragging. The comments, by and large, were to the effect: "Why do you (or The Shooters' Party) owe the Government money?" "Why haven't you paid your debts?" "How did you get so much money out of the Government?" One thought that Mr Tingle had been identified as a welcher. No witness gave evidence that they thought the less of Mr Tingle by reason of what had been said. Indeed, it was plain that those called still held Mr Tingle in high regard. 125 It was suggested by the defendants that Mr Tingle's reputation today was as high as it ever had been. That this is so was demonstrated by the decision of The Shooters' Party to rename that Party, for the purposes of the 1999 ballot paper, as "John Tingle's Shooters' Party". 126 I believe there would have been some damage to Mr Tingle's reputation by reason of the broadcast. I believe, however, that most of the damage was likely to have been relatively short lived because the central mistake made by Mr Casey was quickly recognised, and admitted. The story then died. No doubt it lingered for a time, and was embarrassing and irritating to Mr Tingle. However, without republication and repetition, through the media, it was quickly spent. 127 The damage, to some degree, although not completely, would have been stemmed by the apology, which was prompt. Although the apology did not correct (and was not asked to correct) imputation (a), it withdrew the suggestion of indebtedness to the State Government, and funds being received by the Party from the USA. These matters provided the context for imputation (a). Their removal took away the superstructure which gave rise to imputation (a). 128 Some damage, with some individuals, no doubt, endured. For some individuals the broadcast may have created their impression of Mr Tingle. The award of damages should reflect these matters. Hurt Feelings 129 I have, earlier in this judgment, dealt with two issues relevant to hurt feelings, that being a component of the award. · First, I accepted that this episode was the more painful because the broadcast was that of Mr Casey, who was regarded as a friend. · Secondly, I accepted Mr Tingle's description of the turmoil and anguish in his life following the publication. However, not all that pain can be attributed to imputation (a). I have determined that it is fair to attribute 40 percent of this pain to the cause of action upon which the plaintiff sues. 130 The apology is also relevant to the plaintiff's hurt. It was prompt, and directed towards the facts which gave rise to imputation (a). It was an emollient which, no doubt, eased in part the plaintiff's anguish. I accept that the publication, even to this day, is still a source of hurt to the plaintiff. Vindication 131 The amount awarded must be sufficient "to convince a bystander of the baselessness of the charge" (Broome v Cassell & Co Ltd (1972) AC 1027, per Lord Hailsham LC at 1071). Having fixed upon an appropriate sum for injury to reputation and hurt to feelings, it is necessary to ask whether that sum itself provides the plaintiff with a complete vindication. If it does, then all three purposes of an award of damages in defamation will have been satisfied (Carson v John Fairfax & Sons Ltd (supra) p 60-61). If it is not, an adjustment may be necessary so that the final award represents a sufficient vindication. The Quantum of Damages 132 The Defamation Act 1974 identifies certain factors as relevant to the assessment of damages. Section 46A is in these terms: "S.46A (1) In determining the amount of damages to be awarded in any proceedings for defamation, the court is to ensure that there is an appropriate and rational relationship between the relevant harm and the amount of damages awarded. (2) In determining the amount of damages for non-economic loss to be awarded in any proceedings for defamation, the court is to take into consideration the general range of damages for non-economic loss in personal injury awards in the State (including awards made under, or in accordance with, any statute regulating the award of any such damages)." 133 The background to this legislation furnishes some insight into its meaning. In Coyne v Citizen Finance Ltd ((1990-1991) 172 CLR 211), Mason CJ and Deane J (who were in the minority), adopted the approach of Diplock LJ in McCarey v Associated Newspapers [No 2] ([1965] 2 QB 86), and said this, at 221: "… it seems to us that it would be quite wrong for an appellate court, entrusted with hearing appeals in both defamation and personal injury cases, to be indifferent to the need to ensure that there was a rational relationship between the scale of values applied in the two classes of case." 134 In John Fairfax Limited v Carson (1991) 24 NSWLR 259, an award of damages in favour of a prominent solicitor, totalling $600,000, was set aside, by majority, as excessive. Kirby P, who with Priestley JA formed the majority, said this at 274: "It is also perhaps worth recalling that, more recently, this Court held that (by the standards of jury verdicts of this State) a jury verdict of $250,000 for general damages for effective total blindness caused by negligent hospital care, was outside 'current general ideas of fairness and moderation': see Canterbury Hospital v Cappelletto (Court of Appeal, 17 May 1991, unreported). In that case Mahoney JA and I both considered $250,000 was appealably excessive. In so far as one may compare that verdict to this, it seems difficult to say that the damage to Mr Carson was greater than to Mrs Cappelletto, in aggregate, and by a magnitude of 2.4…" 135 On appeal, the High Court (Mason CJ, Deane, Dawson and Gaudron JJ) said this: (at 57/58): "In Coyne, Mason CJ and Deane J considered that it is legitimate for an appellate court considering an appeal against the quantum of damages in a defamation case to bear in mind 'the scale of values' applied in dealing with appeals in cases of serious physical injury ((1991) 172 CLR at 219-221). There is no occasion here to repeat the reasoning advanced in support of that conclusion. That conclusion does not deny that the harm suffered in defamation cases differs from the 'tearing of flesh and bone and the pain of body' (Carson (1991) 24 NSWLR 273, per Kirby P) suffered in personal injury cases nor that 'precise comparisons' (ibid (emphasis added)) should not be drawn between the different types of cases. But for an appellate court which must test the quantum of a defamation award against some criteria to be prohibited from considering awards of general damages in personal injury cases would exclude reference to a potentially relevant criterion." 136 There was a need for a rational relationship between the scale of values applied in the two classes of case. The Court added: (at 58/59) "And the foundation of that relationship must be the scale of awards for general damages in cases of serious physical injuries which, in their severity and disabling consequences, transcend injury to reputation." 137 In Australian Consolidated Press Ltd v Ettingshausen (unreported, C of A, 13 October 1993), the appellant published a photograph of Mr Ettingshausen naked in a shower in a football dressing room. The plaintiff sued upon an imputation that he had deliberately permitted a photograph to be taken with his genitals shown, for publication in a magazine with a wide readership. There was a further imputation that he was unfit to engage in promotional work with young people. Mr Ettingshausen was awarded $350,000 by a jury. Kirby P, in this context, said this: (at 39) "The High Court, in Carson (at 591), specifically took into account two recent awards for general damages for quadriplegia, being $275,000 and $250,000 respectively. Using the same criteria, and approaching the matter in the same necessarily general way, I reach the identical conclusion in this case. It is simply impossible to suggest that compensation for the harm done to the reputation of Mr Ettingshausen required or permitted general damages greater in magnitude than those awarded to persons suffering profound quadriplegia." 138 The principle was restated by the High Court in Theophanous v Herald & Weekly Times Ltd & Anor ((1994) 124 ALR 1) at 20: "… an appellate court hearing appeals in both defamation and personal injury cases needs to ensure that there is an appropriate or rational relationship between the scale of awards in the two classes of case. That relationship stands on the foundation represented by the scale of awards for general damages in cases of serious physical injuries which, in their severity and disabling consequences, may transcend injury to reputation." 139 It was against this background that s 46A of the Defamation Act was introduced. The Second Reading Speech by the Attorney General included the following: "Honourable members need have no concern that the legislation now before the House will fetter the proper exercise of judicial discretion. On the contrary, the Bill envisages that such a discretion will be retained. All it requires is that, in assessing non-economic damages, the judge will take into consideration awards made in other types of cases. Such awards are an important factor, but they are by no means the only factor legitimately to exercise a judge's mind." 140 The alignment of defamation verdicts (for non economic loss) with those in personal injury matters is a reminder of the need for moderation. The amount awarded must not be extravagant (or miserly) when compared to the amounts awarded for painful and disabling injuries. 141 Weighing all these matters, including the three aspects of aggravated damages which I have identified, it appears to me that the appropriate award is a verdict for the plaintiff of $75,000. 142 In terms of costs, I believe that the plaintiff had a sufficient reason for commencing and continuing the proceedings in this Court. He should, therefore, have his costs. An important part of the action by the plaintiff was the vindication of his reputation (John Fairfax & Sons Ltd v Palmer (1987) 8 NSWLR 297). 143 Accordingly, the orders of the Court are as follows: 1. Verdict for the plaintiff in the sum of $75,000 against both defendants, jointly and severally. 2. Pursuant to Pt 52 r 24(4), the plaintiff should have his costs on a party and party basis. 3. I reserve the question of interest, and the costs payable in respect of the companion action by The Shooters' Party Limited against the defendants. -----

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