Elizabeth Mary Bogusz v Owen Thomson and Truth Newspapers Pty Limited [1989] ACTSC 17 (21 April 1989)

SUPREME COURT OF THE ACT

ELIZABETH MARY BOGUSZ v. OWEN THOMSON and TRUTH NEWSPAPERS PTY LIMITED
S.C. No. 995 of 1987
Defamation

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Defamation - publications - publication of defamatory material in each State and mainland Territories.

Defamation - previous publications by newspapers other than defendant - innuendo - whether relevant to case.

Defamation - damages - assessment - injury to reputation and injury to feelings - whether conduct of defendant amounted to reckless indifference - aggravated damages - exemplary damages.

Astaire v. Campling and Another (1965) 3 All ER 666

The Royal Society for the Prevention of Cruelty to Animals (NSW) v. 2KY Broadcasters Pty. Ltd. & Anor (Supreme Court of New South Wales, unreported, 9 December 1988, per Hunt J.)

Readers' Digest Services Proprietary Limited and Another v. Lamb [1982] HCA 4; (1981-1982) 150 CLR 500 at 507 per Brennan J.

Bickel v. John Fairfax & Sons Ltd and Another (1981) 2 NSWLR 474

Uren v. John Fairfax & Sons Pty. Limited [1966] HCA 40; (1967-1968) 117 CLR 118

Salmond on Torts p 102

Jones v. Dunkel and Another [1959] HCA 8; (1959-1960) 101 CLR 298

Australian Broadcasting Corporation v. Comalco Ltd. (1986) 68 ALR 259

John Fairfax & Sons Ltd. v. Smith (Full Court of the Federal Court, unreported, 18 January 1988, per Sheppard, Morling and Beaumont JJ.)

Defamation Act 1974 (NSW), s.46(3)

Breavington v. Godleman [1988] HCA 40; (1988) 62 ALJR 447

ACT Supreme Court Act 1933

HEARING

CANBERRA
21:4:1989

Counsel for the plaintiff: Mr. E.W. Gillard, Q.C.

Mr. I.A. Curlewis

Solicitors for the plaintiff: Macphillamy Cummins & Gibson

Counsel for the defendant: Mr. B. McClintock

Solicitors for the defendant: Gallens Crowley Chamberlain

ORDER

There be judgment for the plaintiff in the sum of $58,500.

DECISION

The plaintiff sues the defendants for damages for libel. In her statement of claim the plaintiff alleges that the first defendant was and is the printer and publisher of a newspaper known as "Weekend Truth", and that the second defendant is and was the owner and operator of that newspaper. Those allegations are denied on the pleadings but they were not seriously in issue at the hearing.

2. The publication complained of is a headline on the front page and an article on page 5 of the issue of the Weekend Truth published on Saturday, 8 August 1987. At the bottom of page 59 appearing in a small block of print are the words, "Printed and published by Owen Thomson of Rosslyn Street, West Melbourne for Truth Newspapers Pty. Ltd." No evidence was called on behalf of the defendants. I find publication by both defendants proved.

3. The newspaper is of tabloid size and consists of sixty-four pages. The headline on the front page is placed in the top righthand corner in a box about six centimetres by thirteen centimetres. It is in these terms: "Canberra dancer named: P 5". Each of the words is on a separate line. Immediately below the headline is a photograph of a young woman and under the photograph at the bottom of the page are the words, "Would a nice girl like this go nude?". The main article on the front page appears under the heading "DAWKINS - ABORIGINAL EX-WIFE SPEAKS OUT" and there is a photograph of the Minister concerned.

4. The article on page 5 appears under the headline, "PM Staffer is Rave-up Dancer". It is set out in the middle two of six columns and extends about halfway down the page. The full text of the article is as follows:

"PM STAFFER IS RAVE-UP DANCER
By The WHIP
LIBBY Bogusz is the reveller who wowed guests
with her dancing during a pre-election party at
Canberra's Parliament House.
Ms Bogusz, in her mid-40s, is a senior
stenoographer to Prime Minister Hawke.
She also served as Malcolm Fraser's stenographer
when he was PM.
And on the night of June 4, in House Senate
Committee rooms 1 and 2, she lifted her skirt in a
series of impromptu dances on and off tables.
The guests, who included Cabinet Ministers and
MPs, consumed plentiful supplies of alcohol and
food.
Many had already left before Ms. Bogusz offered
her entertainment.
Rejected
Among the stayers at the romp was Administrative
Services Minister, Stewart West.
Guests said Mr West appeared unwell in the wee
hours and left the bash.
His press secretary, Howard Conkey, sounded
offended by suggestions Mr West had witnessed any
dances of a risque nature.
"I'm not making any comment", Mr. Conkey said.
However, Ms Bogusz is not talking about the party.
Truth tried to speak with her but she did not
return calls.
The party raged on until after 2 am.
A male parliamentary staffer - witness to
Ms Bogusz's final performance - was seen to guide
her from the festivities.
Deputy Prime Minister, Lionel Bowen was also at
the party but his private secretary, John
Richardson, rejected reports that Mr. Bowen had
seen any of Ms Bogusz's performances.
Mr. Richardson declined to comment further.
The Federal Government has angrily denied a
report in the Melbourne Herald last week which
stated a Cabinet Minister had been with an
unnamed woman dancer."

5. A small photograph of the Deputy Prime Minister appears at the foot of the first column of the article and a similar photograph of the then Minister for Administrative Services is at the top of the second column. There are other articles and an advertisement on the same page. They are fairly innocuous in character. Apart from advertisements, however, the emphasis on the first few pages leading to the article in question is on sexual titillation. This theme continues in the various articles and reports until the sporting pages are reached at page 21. The emphasis on sex resumes at page 49.

6. Paragraph 5 of the statement of claim complains of the following defamatory imputations:

"(a) the plaintiff conducted herself in a lewd,
indecent and/or unseemly manner;
(b) the conduct of the plaintiff was such as to
render her unfit to be employed in the
office of the Prime Minister as a member of
the staff of that office;
(c) the plaintiff had been inebriated and/or was
a person of intemperate habits as regards
alcohol."

7. The plaintiff claims damages, aggravated damages, punitive damages and interest.

8. In their defence the defendants deny the defamatory content of the words. Qualified privilege was also raised in the defence, but this was abandoned at the hearing.

9. Accordingly, the only issues are whether the publication was defamatory of the plaintiff and, if so, what damages should be awarded.

10. The plaintiff gave evidence herself and called witnesses. In the absence of evidence on the defendants' side there is very little room for dispute about the primary facts.

11. I was told that the newspaper in question is published twice a week, but its name is the "Weekend Truth", and I presume that the publication issued in the middle of the week is known simply as the "Truth". Counsel for the plaintiff submitted that it really is not a newspaper at all since it does not contain any news. This is not quite true. There is a certain amount of news in the issue of 8 August 1987, although it could not be described as a comprehensive news coverage. At least the publication looks like a newspaper. It sells for $1 a copy.

12. The circulation figures at the time were:

Australian Capital Territory - 1,186
New South Wales - 7,669
Victoria - 46,633
Queensland - 18,429
South Australia and the
Northern Territory - 12,809
Western Australia - 13,487
Tasmania - 4,780
Total - 104,993

13. It appears to be the sort of publication that once read would be thrown away. It is not likely, for instance, that it would be kept in a home until all the members of the family had read it, or filed away for future reference.

14. I deal now with the factual background to the publication.

15. It is common ground that there was a party at Parliament House on the night of 4 June 1987 to mark the announcement of the forthcoming election and that the plaintiff attended that party. Between then and the publication by the defendants on 8 August, articles appeared in other Melbourne newspapers. The Herald published the following article on 30 July 1987:

"MICHAEL HARVEY reports on the naked truth from
Canberra
Yes, yes, oh yes Minister
After Federal Minister John Brown's infamous
"sex-on-desk" escapade a mock circular went
around Parliament House warning of the physical
danger inherent in such practices.
Participants were jokingly advised to keep their
manoeuvres at floor level - but now it can be
revealed a different Minister has taken the
warning very seriously.
It was the night of June 4. Senior ALP figures
had gathered to work on ensuring they scored a
record third straight election win.
It was also the night the Minister scored in a
way he surely never dreamed possible - with a
naked woman in the soundproofed privacy of the
federal Cabinet room.
ALP and advertising identities had gathered in
the Cabinet room to come up with a jingle for the
campaign.
The list included advertising guru Mr. John
Singleton, songwriter Mr. Terry Hannagan, the
Prime Minister, Mr. Hawke, and the party's
national secretary, Mr. Bob McMullan.
After a marathon four hours, they came up with
the still familiar "Let's Stick Together" ditty.
So it was with good reason that all present
indulged in a relaxing celebration once they were
through.
But, with the song's opening line, "We're on our
way" still lingering, slowly the scene took a
decidedly Bacchanalian turn.
Perhaps it was the exciting prospect of winning a
record third term which drove a female government
staffer to remove her clothes.
Perhaps the air conditioning in the Cabinet room
was not what it ought to have been.
Whatever the reason, "Let's Stick Together"
suddenly took on an entirely different meaning
when a Minister closed in and administered a
federal act of his own.
Attempts to discover the identity of the Minister
have drawn a blank.
A spokesman for Mr. Hawke today denied the
incident.
He said that the Cabinet room had been locked
after the evening's songwriting and anyway, no
Ministers were in the room.
However, a large crowd of ALP figures later
celebrated in ground floor Senate committee
rooms, he said.
Could the incident have happened there? "Well,
there were a lot of people who would have been
watching."

16. On 31 July 1987 the Sun published the following article:

"Sexual fantasy or the naked truth?
By Matthew Abraham
The Federal Government has reacted angrily to a
report yesterday claiming another sexual
adventure by a Government minister inside
Parliament House.
The report in The Herald said a Government
Minister "administered a federal act" with "a
female government staffer" who had removed her
clothes at a celebration after the drafting of
the ALP's campaign song, "Let's Stick Together",
last month.
The report said the event occurred in the
"sound-proofed privacy of the Cabinet room", but also
raised the possibility that it may have happened
after a party later in the Senate committee
rooms.
The reference to the alleged indiscretion occurring
in the Cabinet room - rated as a secure
Government inner sanctum - sparked a furious
reaction from the Prime Minister's press office.
In later editions of The Herald the reference to
the Cabinet room was deleted.
The Prime Minister's press aide, Mr. Barrie
Cassidy, said there was not a skerrick of truth
in the report.
"Every line of it is bull..." he said.
Mr. Cassidy said he had demanded a retraction
from The Herald. He said he had been at the
meeting in the Cabinet room on June 4, and after
the meeting had finished about midnight, "we
drank capuccino".
Mr. Cassidy said security staff had locked the
Cabinet room door as he left, about 10 minutes
past midnight.
A party had been going on in the Senate committee
rooms, but this had been "full of journos".
Herald assistant editor, Mr. Stephen Price, said
The Herald had run the story through all editions
and would not retract anything.
"We stand by the story", he said.
"We've known about it for some time. We
obviously wouldn't have run it without checking
it out."
A journalist at the party in the Senate committee
rooms that night confirmed yesterday that at one
point a woman staff member had danced for some
time with her dress lifted high above her waist.
He said that at this stage, no politicians had
been in the room - although many had attended the
party during the night.
Along with many others at the party, the woman
had indulged freely in the plentiful supply of
alcohol laid on for the event.
The party lasted from 8 pm to about 3 am, when
only a handful of people remained.
It was organised by Government staff to kick off
the election campaign, and was promoted as
possibly their last fling while in power.
Nevertheless, several Opposition MPs and staff
members attended during the night."

17. The admission of the Herald and Sun articles into evidence was objected to but they were admitted subject to a later ruling on admissibility. Ultimately, however, it had to be conceded on behalf of the defendants that this material was relevant at least to damages, but the objection was maintained that it bore no relevance to any other aspect of the case. Reliance was placed upon the decision of the English Court of Appeal in Astaire v. Campling and Another (1965) 3 All ER 666. In that case the issue was whether certain innuendoes pleaded by the plaintiff should be struck out. The innuendoes raised defamatory statements made by persons other than the defendant prior to the publication complained of. All three members of the Court of Appeal agreed that the innuendoes should be struck out. Diplock L.J., as he then was, said at p 668:

"It may be that the publication of the second
statement, whether it identifies the plaintiff to
the reader for the first time as having been the
subject of a previous defamatory statement or
merely causes the reader to remember a previous
defamatory statement about the plaintiff, does
have the consequence that the plaintiff's
reputation is lowered in the estimation of the
reader; but that does not of itself give to the
plaintiff a cause of action against the publisher
of the second statement. A statement does not
give rise to a cause of action against its
publisher merely because it causes damage to the
plaintiff. The statement must be false and it
must also be defamatory of the plaintiff: that is
to say, the statement must itself contain,
whether expressly or by implication, a statement
of fact or expression of opinion which would
lower the plaintiff in the estimation of a
reasonable reader who had knowledge of such other
facts, not contained in the statement, as the
reader might reasonably be expected to possess.
I emphasise this: the statement of fact or
expression of opinion relied on as defamatory
must be one which can be reasonably said to be
contained in the statement in respect of which
the action is brought and not merely in some
other statement."

18. It is clear from the concluding words of this passage that the distinction between Astaire v. Campling and the present case is that there the material published by the defendant was not on the face of it defamatory of the plaintiff and, without reference to the material previously published by other persons, the plaintiff was unable to show that he was the person identified. The present case is in stark contrast. The article in the Weekend Truth is prime facie defamatory of the plaintiff, that is to say, capable of defaming her. The articles previously appearing in the Herald and the Sun are relevant because they fix a framework within which the minds of some of the readers (those in Melbourne and wherever else the Herald and Sun were published) were set to receive the publication on 8 August 1987. They are not relevant to the question of whether the article itself was defamatory of the plaintiff (in the absence of the pleading of innuendoes) but they are relevant to the seriousness of the libel, if there was one, the minds of the defendants at the time of publication, and the hurt to the plaintiff's feeling and dignity.

19. The heading on the front page, "Canberra Dancer Named" cannot, as I have already said, be relied upon the plaintiff on the issue of the defamatory nature of the publication to refer back to the articles in the Herald and the Sun. But its prominent nature, its terseness and its relationship to other material on the same page (the reference to a nice girl going nude and the story about the wife of a Federal minister) suggest immediately to the ordinary reader that something scandalous is about to be revealed about people connected with the Canberra political scene. The reader does not have to be aware of the content of the Herald and Sun articles in order to be so alerted. The reader who is so aware is all the more alert.

20. When the reader turns to page 5, the heading "PM Staffer is Rave-up Dancer" focuses attention on the association of the subject of the article with people in high places and loose exuberant behaviour. Such an irresistible combination compels the reader to continue.

21. The first sentence in the article identifies the plaintiff by name as "the reveller", as though the reader would already be acquainted with the quest to identify the woman who "wowed guests with her dancing".

22. The equivocal reference to the plaintiff's marital status (women in other articles on the same page are referred to by their first names only), the plaintiff's background as a senior parliamentary stenographer and to the presence of Federal ministers prepare the reader to contrast what the reader would expect to be the standard of behaviour required of a person occupying the sort of position occupied by the plaintiff with the behaviour described in the article.

23. The specific account of the plaintiff's behaviour is that "she lifted her skirt in a series of impromptu dances on and off tables", at a party where there was an abundance of alcohol and which "raged on" into the early hours of the morning. Her conduct is described as "entertainment" and a "performance". The plaintiff is said to have been guided from the festivities and there is reference to suggestions of "dances of a risque nature". The final paragraph of the article invites the reader to associate the activity of the plaintiff with a report about a cabinet minister being with an unnamed woman dancer. This final paragraph itself relates back to the headline both on the front page and at the top of the article. Regardless of whether the reader might be expected to have read the articles in the Herald and the Sun, the reader is left with an impression that there may be some connection between the plaintiff and a cabinet minister.

24. I have no hesitation in holding on the balance of probabilities that the average reader of the article, who would not be slow to draw inferences, would conclude that the plaintiff was well affected by liquor on the occasion in question and sought to entertain those who were present by performing as alleged, that is, dancing impromptu on and off tables with her skirt lifted.

25. The first imputation alleged is that the plaintiff conducted herself in a lewd, indecent and/or unseemly manner. I do not think that the ordinary reader would have concluded that the behaviour of the plaintiff was such that it should be characterised as "lewd" or "indecent". I think it likely, however, that the reader would have considered such behaviour "unseemly" and, as mentioned in the article, "risque". The word "risque" has connotations of daring provocativeness but I think it falls short of lewdness and indecency.

26. The next imputation alleged is that the conduct of the plaintiff was such as to render her unfit to be employed in the office of the Prime Minister as a member of the staff of that office. I think that this allegation has to be dealt with in conjunction with the third imputation alleged, namely, that the plaintiff had been inebriated and/or was a person of intemperate habits as regards alcohol. As far as this third allegation is concerned I am not satisfied that the reader would have considered that the plaintiff was a person who, as a matter of habit and custom, became inebriated or abused alcohol. There is no reference to behaviour on any occasion but the night in question. There can be no doubt that the reader would draw the conclusion that the plaintiff was inebriated on that night. But bearing in mind then that the inebriation was on the single occasion, I think it unlikely that the reader would have been so unfair or gone so far as to conclude either that the plaintiff was habitually or often inebriated or that the plaintiff's conduct rendered her unfit for office. Rather, I think, the reader would consider that there was serious doubt about the plaintiff's capacity to remain sober and to behave in a seemly manner on social occasions, and that would have reflected upon her fitness to work in the office of the Prime Minister. I do not think the reader would be so unfair to think that risque dancing and drunkenness on one occasion within the confines of Parliament House amongst parliamentary colleagues and staff meant that a person in the position of the plaintiff must be banished from it.

27. However, the plaintiff is not bound to prove the imputations precisely as alleged, so long as the evidence permits of a conclusion which is broadly within their scope. In my view, the imputations proved are within the scope of the imputations alleged, and those imputations are defamatory of the plaintiff.

28. I turn now to damages.

29. The plaintiff claimed compensatory damages on the one hand and punitive or exemplary damages on the other hand. In respect of compensatory damages, she claimed damages for loss of reputation and for injury to feelings. In respect of compensatory damages she also alleged that there were circumstances of aggravation which entitled her to an award of increased or aggravated damages. The better view appears to be that aggravated damages can be awarded only in respect of that component which relates to the injury to feelings. However, it is conceivable that there are rare cases in which aggravated damages may be awarded for loss of reputation. This would occur where the circumstances of aggravation are known not only to the plaintiff but also to the general reader: see The Royal Society for the Prevention of Cruelty to Animals (NSW) v. 2KY Broadcasters Pty. Ltd. & Anor (Supreme Court of New South Wales, unreported, 9 December 1988, per Hunt J.). Such unusual circumstances do not exist in the present case and I propose to limit my consideration of aggravated damages to the injury to the plaintiff's feeling.

30. Although the plaintiff was entitled to rely upon the presumption that the defamatory imputations were likely to damage her reputation in the community amongst those people who would read the publication, she called evidence, as she was entitled to do, about the "especially adverse impact upon the plaintiff's reputation in the eyes of some group or class in the community": Readers' Digest Services Proprietary Limited and Another v. Lamb [1982] HCA 4; (1981-1982) 150 CLR 500 at 507 per Brennan J. That evidence was not material upon the issue of the meaning of what was published by the defendant nor upon the defamatory nature of the imputation made. The plaintiff also called evidence as to the injury to her feelings and dignity. On neither aspect was the evidence of the plaintiff or her witnesses contradicted or shaken, except to the extent that the witnesses agreed that the damage to the plaintiff's reputation amongst those who knew her personally was temporary only.

31. The plaintiff was born on 11 November 1949 and apart from her final year at school in 1966, she grew up in Darwin. She had clerical and secretarial experience there until she married in 1969. Three of her children were born in Darwin. She and her husband and the children left Darwin soon after Cyclone Tracy and came to Canberra. Her fourth child was born in Canberra in 1976. In 1980 she resumed work and took up a position as a typist in the Department of Prime Minister and Cabinet. In 1981 she began working as a word-processing operator in the House of Representatives and in 1983 she was invited to work in the Prime Minister's office. She has worked in that office ever since.

32. The office of the Prime Minister has a staff of about twenty-seven people. For administrative purposes the office is headed by the Principal Private Secretary to the Prime Minister. He is in effect chief of staff and in charge of personnel matters. At the next level there are four senior advisers, then a number of advisers and press officers. A small pool of five persons, of which the plaintiff was one, carries out secretarial and clerical duties. The plaintiff, at the time of the publication, was directly responsible for secretarial and clerical assistance to one of the senior advisers. She was also responsible with the other secretarial staff for acting as a means of communication between, on the one hand, the Prime Minister and his senior staff and, on the other hand, people ranging from Ministers to members of the public who telephoned or who called unannounced at Parliament House. Her duties also brought her into close contact with members of Parliament on both sides of both Houses and in particular with Ministers. She also dealt personally with Commonwealth public servants and parliamentary staff at all levels and senior State politicians and public servants. She was well known to all those persons and her reputation was that of a competent, responsible and discreet officer. That reputation extended beyond the immediate world of senior Federal politicians and the members of their staffs to the press gallery and public servants concerned with the working of Parliament House and the Prime Minister's office. There were some three to four thousand people working in and about Parliament House at the time. News spread quickly amongst them. After the copy of the Truth article reached Mr. Cassidy, press officer to the Prime Minister, on the afternoon of Friday, 7 August 1987 he was "inundated" with enquiries from members of the press gallery. He had to attend to about forty such enquiries that afternoon. Whilst such enquiries might not have been motivated solely by interest in the plaintiff, as compared with an interest in the ramifications for the Prime Minister's office, clearly the plaintiff's reputation stood to be jeopardised in the eyes of all those persons at that stage and in the days following in the eyes of all who knew her or of her in her professional capacity.

33. The plaintiff maintained contact and friendship with many people in the Northern Territory. Her duties brought her into contact with people from all over Australia. In addition, she had accompanied the Prime Minister on several official trips interstate in the course of her duties (and on one occasion when the Prime Minister represented Australia at an international conference). She had relatives interstate. Although she was not a person clearly in the public eye, she was known to persons throughout Australia, and her reputation interstate was likely to be affected by the interstate publication of the Weekend Truth article.

34. For the purposes of the assessment of damages for injury to reputation, the readership should to be divided into three categories. First there was the general body of readership of the Weekend Truth. From a cursory perusal of the whole of the issue of 8 August 1987, which is the only issue in evidence, it is obvious that the vast majority of the readers would have had no particular interest in politics, although most of the readers in Canberra would have been more interested in the goings-on at Parliament House than readers elsewhere. However, it is to be remembered that the headline on the front page drawing the reader's attention to the article on page 5 was such that few of the readers could have been expected to fail to acquaint themselves with the general nature of the allegations made about the plaintiff's behaviour.

35. The second category of readers were people in the Prime Minister's office at Parliament House and in associated circles who knew the plaintiff or knew of her in relation to her official duties. Associated with but not identical to this group of readers were readers in Canberra and elsewhere who took a particular interest in Federal politics but did not know the plaintiff either personally or by repute. The vast majority of those who knew the plaintiff personally would, in my view, have dismissed the allegations soon after they were made. Others in Canberra, however, are shown on the evidence to have given some initial credence to the allegations because in a sense they were bound by their own positions not to dismiss such serious allegations unless and until some investigation had been made of their truth.

36. There still may be people who knew the plaintiff through her official duties but did not know her well, or who knew only of the plaintiff, and may still suspect that there was some truth in the publication. Such people might never have heard of the investigation carried out by Mr. Conybeare, Principal Private Secretary to the Prime Minister, and being in no position to carry out investigations of their own, might harbour lingering doubts that the falsity of the imputations had not been demonstrated. The plaintiff gave evidence of an example of one such person. In the parliamentary corridor in January 1988, when she was on crutches following an accident, the person made a remark to her about being "on and off tables again". The remark may have been in jest but it goes to show that there are still people who remember the allegation and that it is still a source of hurt to the plaintiff.

37. The last group of people who would have read the article were people who knew the plaintiff in her private or personal capacity. Again those close to her such as Father Burke, the parish priest, who gave evidence, dismissed the allegations as untrue and entirely out of keeping with the plaintiff's character, but again there would be others who did not know her so well or who knew her only by reputation, who have harboured and still harbour the lingering doubt.

38. I turn now to the facts relating to injury to feelings.

39. A facsimile copy of the article (without the front page headline) was received by Mr. Cassidy at about 2 pm on Friday, 7 August 1987. He made a copy available to Mr. Conybeare shortly thereafter. Mr. Conybeare summoned the plaintiff to his office where she read the copy of the article. She broke down and informed Mr. Conybeare that there was no truth in the allegation made concerning her behaviour. Mr. Conybeare, who had been surprised by the content of the article, told the plaintiff that he was assured by her denials, but informed her that further enquiries still needed to be made.

40. Upon her return to her workplace the plaintiff was obviously distressed to the observation of her immediate supervisor, Mrs. Helen Le Nevez. The plaintiff initially appeared too upset to speak. She was crying and continued to cry. About half an hour later she went home to bed.

41. The plaintiff said in her evidence that the article had a devastating effect upon her. Making due allowance for the emotional aspects of giving evidence in court, and for the somewhat loose use of terminology, I do not think that she was exaggerating. Perhaps the word "distressing" would have been more accurate. It is probable that she was emotionally distressed for a period of time, at least weeks, following publication. She kept reading and re-reading the article wondering who it was who could have written such lies about her, and for what reason. She instructed her solicitors to seek an apology and none was forthcoming. I accept that the lack of apology deepened the hurt and substantially so. The conduct of the litigation has reminded her from time to time of the distressing events. She was visibly distressed during the course of the hearing. Nevertheless she lost no time from work and there is no evidence of any psychiatric distrubance.

42. Whilst it must have been clear to the plaintiff within days of the publication that her employment prospects were not likely to suffer (and she gave no evidence that she thought they would), she is conscious that her ability to deal with other people, including members of the public, has suffered. Mrs. Le Nevez said that the plaintiff has in fact been given duties which require her to deal less often with people "on a day to day basis".

43. The publication of the article has also had its consequences as far as the hurt to feelings is concerned within the plaintiff's family. The nature of the allegations was such that it brought about tension between the plaintiff and her husband, although this has been resolved almost entirely. The plaintiff was too embarrassed to inform her children of the publication or of the court proceedings, but it was decided only in recent weeks that the older children should be told. When they were told of the publication the plaintiff experienced a sense of relief, as the possibility that the children might be told from some other source had weighed at the back of her mind in the interim.

44. It was submitted on behalf of the plaintiff that the conduct of the proceedings by the defendant was such as to increase the hurt to the plaintiff. I am not convinced that this is a substantial feature of the case. I have dealt with the lack of the apology. Senior counsel for the plaintiff relied upon some of the interrogatories which it was submitted were irrelevant and some of the cross-examination which, in the end, did not assist the defendant. However, in my view, this went only marginally further than to remind the plaintiff of the events, a result which the conduct of litigation would necessarily bring about in any event.

45. In order to recover aggravated damages, the plaintiff must prove that the defendant's conduct was unjustifiable, improper and lacking in bona fides: Bickel v. John Fairfax & Sons Ltd and Another (1981) 2 NSWLR 474. The nature and quality of the defendant's conduct is relevant also to the claim for punitive damages.

46. The distinction between aggravated damages and punitive damages is that the former are awarded to compensate the plaintiff when the harm done is aggravated by the manner in which it is done whilst exemplary damages are intended to punish the defendant, "presumably to serve one or more of the objects of punishment" (Uren v. John Fairfax & Sons Pty. Limited [1966] HCA 40; (1967-1968) 117 CLR 118 at 149 per Windeyer J.) Whilst the purposes of aggravated damages is distinct from the purpose of exemplary damages, and whilst caution must be exercised before awarding exemplary damages and in order to avoid a double or overlapping award of damages, it is the defendant's conduct which must be looked at in relation to both heads of damages.

47. In Australia punitive damages can be awarded where "the defendant recklessly and arrogantly attacked the plaintiff's reputation for the purpose of publishing a sensational story" Uren v. John Fairfax and Sons Pty. Limited at 143 per Menzies J. There have been other definitions. For instance, it has often been said that the plaintiff must establish conscious wrongdoing on the part of the defendant which treats the plaintiff's reputation with "contumelious disregard". That term seems to have acquired juridical status in the first edition of Salmond on Torts p 102 (see Windeyer J. in Uren v. John Fairfax & Sons Pty. Limited at p 154), although for centuries the "proud man's contumely" has been associated with the oppressor's wrong. Perhaps it is oppressive conduct, a term more easily understood in present times, which is central to an award of punitive damages for a defamatory publication. In any event, oppressiveness, conscious wrongdoing and contumelious disregard are all no doubt encompassed by the statement of Menzies J. in which the key elements are specified as recklessness and arrogance.

48. In my view, it is sufficient for both aggravated and exemplary damages that the plaintiff establish, as she seeks to do, that the defendant acted with reckless indifference to the truth of the imputations that she behaved improperly on the night in question and that her fitness for office was called into question. If reckless conduct of that nature aggravated the hurt to the plaintiff then she is entitled to increased compensatory damages. If the reckless conduct calls for payment by the defendant beyond what is necessary to vindicate the reputation and provide for hurt to feelings, then punitive damages may be awarded to supplement compensatory damages.

49. It is necessary then for the plaintiff to establish that the defendants acted with reckless indifference to the truth. That involves proof of a state of mind. The mental state of the first defendant, Owen Thomson, though difficult enough to prove, was a fact. The mental state of the second defendant, a corporation, is entirely fictitious. Nevertheless, it is submitted on behalf of the plaintiff that the necessary mental states may be implied from the circumstances. On Thursday, 30 July 1987 the article in the Herald alleged that there had been some sexual activity between a minister and a naked woman in the Federal Cabinet room. The same article reported that a spokesman for the Prime Minister had denied that any such incident had occurred in the Cabinet room but the article left open the possibility that something similar could have occurred in the Senate Committee rooms. The following day, 31 July 1987, the Sun published an article referring to what had been alleged in the Herald and purporting to quote a journalist at a party in the Senate Committee rooms who confirmed that a woman staff member had danced for some time with her dress lifted high above her waist and that the woman had indulged freely in the consumption of alcohol.

50. On a date at about this time, which I find to be on or before 31 July 1987, someone in the employ of the second defendant prepared a note referring to a "spectacular - late in night" which occurred in the Senate Committee rooms. It is not necessary to set the whole of the note out in these reasons. It is in evidence as Exhibit G. It made reference to the staff of two Ministers, the name of the plaintiff, her marriage to a "Yugoslav", to "dress above head" and, perhaps significantly, an absence of sexual intercourse.

51. The articles in the Herald and Sun were read by Mr. Barrie Cassidy, who had denied to journalists from each of those newspapers that the incidents referred to had taken place. It is to be observed that each of the articles in the Herald and the Sun reported these denials. It is also to be observed that neither of those articles mentioned the name of the plaintiff nor contained any material by which the plaintiff could be identified. Then occurred an event of some importance. On or soon after 31 July 1987 Mr. Cassidy, whose evidence I accept entirely, spoke to a reporter employed by the second defendant named Steven Puritta. Mr. Puritta asked Mr. Cassidy about the story in the Herald. Mr. Cassidy said, "Well, what I have to say on that is already well documented". Mr. Puritta said, "Well, we understand that a member of the Prime Minister's staff, Libby Bogusz, was the person concerned". Mr. Cassidy replied to the effect, "That is just absolute nonsense and I am certain that if you were to publish that then she would sue you for all you are worth." Mr. Puritta said that he would make his editor aware.

52. On 31 July 1987 Steven Puritta prepared a draft article, whether before or after the conversation with Mr. Cassidy it is impossible to say. The draft article referred to the plaintiff as "Libby". It is not necessary to set it out any further in these reasons. It is in evidence as Exhibit J. Sufficient to say that it was almost entirely scandalous and almost entirely false. One of the few propositions of truth contained within it was "No one seen to do the deed - or, at least no one saying". Steve Puritta then prepared a further draft article on 4 August 1987 as scandalous and as untrue as that prepared on 31 July. It is in evidence as Exhibit H. It stopped short of naming the plaintiff or containing sufficient material whereby she might have been identified.

53. The article that was eventually published on 8 August retreated from the position taken in the two draft articles which had alleged conduct of the most scandalous kind. On the other hand, of course, it drew attention to the plaintiff as "Canberra Dancer Named" and went on to specifically name her.

54. The history of the non-events which eventually became the subject matter of the defendants' article on 8 August may be seen to have developed as in the following way.

55. First the Melbourne Herald alleged an incident involving a sexual relationship between a Minister and an unnamed woman in the Cabinet room. Then the Sun, referring to the same incident, changed the nature of the incident to one involving a drunken and indecent dance by an unnamed woman in the Senate committee room. Both newspapers published denials. The Truth then began to prepare a story repeating and exaggerating the account given in the Sun, but taking the further and important step of naming the plaintiff. A more elaborate draft article was prepared repeating and further exaggerating that account, but retreating from naming or identifying the plaintiff. This was followed or preceded by the discussion with Mr. Cassidy. Finally there was a move to the position where the decision was made to name the plaintiff specifically, identify her as "The Canberra Dancer", accuse her of an inebriated display of risque dancing, and remind readers of what had originally been published in the Herald.

56. Counsel for the defendant submits that the sequence of events should lead to an inference that both defendants had considered the possible truth or otherwise of what had been alleged in the draft articles, and that they had come to the conclusion that the more serious allegations of misbehaviour should not be pressed against the plaintiff. Therefore, so it is submitted, they must have believed in the truth of what they eventually published. In my view, however, the silence of both defendants on this and all other matters is eloquent. There was no explanation of the failure to call the first defendant, Steve Puritta, or any of the witnesses referred to in the undated note (Exhibit G) as "attendants, Commonwealth car drivers, journos". It is a sound and well recognized rule in litigation that where particular facts lie within the knowledge of one party rather than the other, the failure of the party with whom the knowledge lies to call evidence as to those facts enables the tribunal of fact to more easily draw inferences adverse to that party: Jones v. Dunkel and Another [1959] HCA 8; (1959-1960) 101 CLR 298. That is a salutary rule and the present case is one which calls for its application. In my view, the inference is to be drawn that those responsible for the publication of the Weekend Truth well knew the contents of the Herald and Sun articles and well knew of Mr. Cassidy's denials. In my view, it is likely that the conflict in the accounts given in the Herald with those given in the Sun, and the further conflict of those accounts with what was prepared in the draft articles, and the conflict overall with the denials made by Mr. Cassidy to Mr. Puritta, meant that whoever authorised the publication of the defamatory material on 8 August did so with reckless indifference to whether it was true or not. I further find that the decision to publish that material was taken as a calculated risk in the expectation that the advantage to the defendants in publishing the defamatory material outweighed the disadvantage of possibly being held liable for damages at a later date. It is not to be presumed, of course, that a defendant who publishes defamatory material in a newspaper is more likely to do so recklessly or arrogantly than any other publisher of a libel, but on the other hand, the publication of a newspaper does not provide immunity from exemplary damages. There are exceptional cases where a newspaper publishes a libel because it appears that it may pay to do so. In those circumstances, the Court takes the unusual and extreme step of awarding damages to show that tort does not pay (see Uren v. John Fairfax & Sons Pty. Limited at pp 146-149). In my view, this is such a case and exemplary damages will be awarded.

57. It was submitted that exemplary damages could not be awarded against the first defendant, because Mr. Puritta was not known to be his agent but at the most (and even this was disputed) the agent of the second defendant. However, I think that this issue has to be decided on the likely factual situation. I put aside the question of law whether the first defendant is vicariously liable for anything done by Mr. Puritta. The first defendant is the publisher of the newspaper. The assertion to that effect appears at the foot of p 59. The internal note or memo and draft articles to which I have referred were disclosed on discovery on behalf of both defendants. In the circumstances, and again bearing in mind the failure of the first defendant to give any evidence at all, I draw the inference that as the publisher of what appeared on 8 August 1987, he was recklessly indifferent as to its truth or otherwise and published the defamatory material with arrogant disregard for the plaintiff's reputation.

58. Counsel for the defendants submitted that I should make separate awards of damages for each of the States and Territories in which the publication occurred. I have previously expressed the view that there should be separate awards for separate torts in cases such as this. However, having regard to the decisions of the Full Court of the Federal Court of Australia in Australian Broadcasting Corporation v. Comalco Ltd. (1986) 68 ALR 259 and John Fairfax & Sons Ltd. v. Smith (Full Court of the Federal Court, unreported, 18 January 1988, per Sheppard, Morling and Beaumont JJ.), it appears to be appropriate to award one lump sum for the publication throughout Australia. Counsel for the plaintiff was content that the award should not include punitive damages for the publication in New South Wales: Defamation Act 1974 (NSW) s.46(3). Counsel for both sides appeared to be content that the case be decided without reference to the decision of the High Court in Breavington v. Godleman [1988] HCA 40; (1988) 62 ALJR 447. Nevertheless, I have tried to decide the issues in this case in the light of that decision. In the absence of submissions to the contrary and but for the non-recoverability of punitive damages in New South Wales, I have taken the applicable law of each place of publication within Australia to be the same as the law of the Australian Capital Territory.

59. For loss of reputation (including, but for New South Wales, punitive damages) I award $38,000. For injury to feelings (including aggravated damages) I award $17,500. The total is $55,500.

60. The plaintiff claims interest. There is no reason in principle why a plaintiff awarded compensatory damages in defamation should not obtain an award of interest. However, it is to be remembered that damages in defamation are not to be equated with damages in other areas, for instance, damages for breach of contract or for personal injury. "Compensatory" damages in defamation are not entirely compensatory in character, and include a component for solatium and vindication of the plaintiff's reputation, apart from what might be awarded for compensation for loss of reputation and injury to feelings. In any event, it is inappropriate to award interest on punitive damages, as they do not represent loss to the plaintiff of any kind. In the circumstances I propose to exercise my discretion under s.53A(1)(b) of the ACT Supreme Court Act 1933 and instead of awarding interest, award a lump sum of $3,000 in lieu of interest. That will be added to the damages.

61. There will be judgment for the plaintiff for $58,500 and unless the parties wish to be be heard I propose to order the defendants to pay the plaintiff's costs.