Gerard Otmar Gutman v Brian Clouston and Australian Consolidated Press Limited [1989] ACTSC 33 (13 July 1989)

SUPREME COURT OF THE ACT

GERARD OTMAR GUTMAN v. BRIAN CLOUSTON and AUSTRALIAN CONSOLIDATED PRESS
LIMITED
S.C. No. 482 of 1984
Defamation

COURT

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

CATCHWORDS

Defamation - compensatory, aggravated and exemplary damages - assessment only - no new question of principle.

Gatley on Libel and Slander, 8th Ed., 1981, para.1327

Reader's Digest Services Proprietary Limited and Anor v. Lamb [1982] HCA 4; (1981-1982) 150 CLR 500

Andrews v. John Fairfax & Sons Limited (1980) 2 NSWLR 225

Bickel v. John Fairfax & Sons Limited (1981) 2 NSWLR 474

Mirror Newspapers Ltd v. Fitzpatrick (1984) 1 NSWLR 643

David Syme & Co. Ltd. v. Mather (1977) VR 516

Jools v. Mirror Newspapers Ltd (1984) 56 ACTR 1

Lawrie v. Northern Territory News Services Ltd (unreported decision of Nader J., Supreme Court of the Northern Territory, 28 November 1985)

Bogusz v. Thomson and Another (unreported decision of Miles CJ, Supreme Court of the A.C.T., 21 April 1989)

Uren v. John Fairfax & Sons Pty Limited [1966] HCA 40; (1967-68) 117 CLR 118

Cassell v. Broome [1972] UKHL 3; (1972) AC 1027

Toomey v. Mirror Newspapers Limited (1985) 1 NSWLR 173

Waterhouse v. Australiant Broadcasting Corporation (unreported decision of Kelly J., Supreme Court of the A.C.T., 23 June 1987)

Australian Consolidated Press v. Driscoll (1988) Aust. Torts Reports 80-175

John Fairfax & Sons Limited v. Kelly (1987) Aust. Torts Reports 80-091; (1987) 8 NSWLR 131

HEARING

CANBERRA
13:7:1989

ORDER

There be judgment for the plaintiff against both defendants in the sum of $50,000.

The defendants pay the plaintiff's costs.

DECISION

This action for damages for defamation arose out of a publication of the edition of "The Bulletin" dated 27 March 1984. The action was commenced by writ of summons issued on 31 May 1984. The action came on for hearing before me on 6 February 1989 and continued from day to day until 9 February 1989. On 15 February 1989 I delivered interim reasons for judgment, holding that the article complained of was capable of the defamatory meanings relied upon by the plaintiff, and that the article was derogatory of the plaintiff in the ways particularised. The hearing resumed on 19 June 1989, all defences having been withdrawn on 30 May 1989. Accordingly the only remaining issue to be determined is the quantum of damages. The plaintiff has claimed compensatory, aggravated and exemplary damages.

2. At the time of publication the plaintiff was a highly regarded economic and financial consultant. He graduated from Melbourne University as a Bachelor of Commerce and subsequently obtained a Master's Degree. He joined the Australian Public Service in 1948 in the Bureau of Agricultural Economics. In 1953 he was granted a travelling fellowship to study investment problems with specific reference to underdeveloped countries. He then worked as a post-graduate student at Oxford and as a visiting fellow at the Massachusetts Institute of Technology. He returned from overseas study in 1957 having published several papers. He rejoined the Bureau of Agricultural Economics and was promoted to the Department of Trade as Assistant Secretary in about 1960. After three years in the Department of Trade he took leave and worked for the Harvard Development Advisory Service in Pakistan. He later worked in India and Afghanistan and returned to a post in the Economic Division of the Department of Territories. He spent seven years in that Department as head of the Economic Division, during which time he was responsible for the preparation of the first Five Year Development Program for Papua New Guinea. He was responsible for setting up the Papua New Guinea Development Bank and the Investment Corporation of Papua New Guinea on which he served as a Director. He continued to publish papers, particularly in relation to Papua New Guinea.

3. In his role as a senior public servant he moved at a high level in Government not only within Australia but with other countries. In 1972 he set up his own economic consultancy business and has continued to operate that business ever since. He provides advisory services on a range of longer term economic and political issues and their implications for business, more particularly policies in the field of natural resources development. His clients have included large corporations and leaders in the field of commerce, including the major Australian mining companies.

4. I am satisfied that at the time of the publication complained of the plaintiff was a highly respected consultant economist. His book "Retreat of the Dodo" was launched on 7 July 1982 at the National Press Club in Canberra. it is a serious work in which the plaintiff has sought to address important political and economic issues in Australia. Indeed in its apology, to which I shall refer later, the second defendant acknowledged that the "Retreat of the Dodo" is a work of merit.

5. The plaintiff first learned about the article complained of when he received a telephone call from Peter Ryan of Melbourne University Press drawing the plaintiff's attention to the article. Ryan asked the plaintiff whether he had read "The Bulletin" and when the plaintiff said he had not, Ryan said that the plaintiff ought to do so because he had been shockingly defamed in it. The plaintiff then read the article and he described his feelings as follows:
"My first reaction was one of rage and amazement, both,

that I was being rubbished, being made a laughing stock
really, in this manner. I felt like someone had
publicly thrown dirt at me or spat in my face; done it
without any provocation. So I think that was my first
reaction and my second reaction, I suppose, was that
two-faced, double-dealing Clouston. How can he do a
thing like this to me because up to then my relations
with Clouston had been perfectly correct and friendly
and then all of a sudden I saw him publicly holding me
up to ridicule.
Now, what - can I - I am sorry, you wanted to say
something else?---Yes. I just wanted to add and
because both holding me up to ridicule and holding the
book that I wrote up to ridicule in a situation where
he had an obligation to me as his author to support me
and where he had undertaken an obligation to promote
the book and so far from promoting it, he set out there
to make fun of it and to disparage it in public."

6. The plaintiff considered whether he would communicate with the first defendant, through whom he had published the book, and decided against it. Instead he sought legal advice. This resulted in letters dated 10 April 1984 from his solicitors to the defendants seeking an apology both publicly and privately for the harm done by the article. Neither defendant responded and a reminder letter was sent on 19 April 1984 to both defendants. This produced a response from the second defendant in the following terms:

"Thank you for your letter of 10th of April. We do not
consider that the matter complained of defames your
client in any way. In the circumstances, no apology is
appropriate. If there are any errors of fact in the
article we would (sic) grateful if you would draw then
to our attention."

There was no response from the first defendant.

7. The plaintiff thereupon instituted these proceedings by writ of summons issued on 31 May 1984. There was delivered with the writ of summons a statement of claim wherein the plaintiff pleaded that:
(a) on a date shortly prior to 27 March 1984 the first

defendant published of and concerning the
plaintiff to the second defendant the matter
attributed to him in paragraphs numbered 9 to 18
inclusive of the matters set out in the schedule
to the statement of claim which comprised the
article complained of;

(b) the first defendant published the said matter to

the second defendant knowing it to be the natural
and probable consequence of so doing that it would
be republished by the second defendant in "The
Bulletin" Magazine and authorising and/or
intending that result; and

(c) the said matter was in fact published by the

defendants in the edition of "The Bulletin"
Magazine dated 27 March 1984.

The allegation against the second defendant was that the second defendant published the edition of "The Bulletin" dated 27 March 1984 in the Australian Capital Territory and the other States and Territories of Australia. The prayer for relief was a claim for damages and interest pursuant to s.53A of the Australian Capital Territory Supreme Court Act 1933.

8. The writ of summons issued on 31 May 1984 was replaced (for reasons which are not apparent to me) by a further writ of summons which simply bore an indorsement to the writ. The indorsement reads:

"The plaintiff's claim against the first defendant is
for damages for slander and libel arising out of the
publication by the firstnamed defendant to the
secondnamed defendant shortly prior to 27 March 1984 of
material defaming the plaintiff and arising out of the
republication of that material in 'The Bulletin'
magazine on or abut 27 March 1984. The plaintiff's
claim against the secondnamed defendant is for damages
for libel arising out of the publication by the
secondnamed defendant on or about 27 March 1984 in 'The
Bulletin' magazine of material defaming the plaintiff."

9. There is an indorsement on the backsheet of the second writ of summons which reads:

"Amended pursuant to the order of the Registrar made the
127th day of August 1984."

The indorsement is signed on behalf of the solicitors for the plaintiff.

10. On or about 6 August 1984 the plaintiff delivered a statement of claim. In that statement of claim the pleadings against the first and second defendant as stated in the original writ of summons are reproduced. The prayer for relief is a claim for damages and interest pursuant to s.53A of the Australian Capital Territory Supreme Court Act 1933. The plaintiff delivered an amended statement of claim dated 19 October 1984 pursuant to leave granted by Blackburn CJ on that day. The prayer for relief simply claimed damages and interest as before.

11. The second defendant put on a defence on 25 October 1984 pleading a denial that the article complained of was capable of bearing a defamatory meaning or the imputations alleged by the plaintiff, truth and public benefit, truth in relation to certain States and Territories, fair comment, qualified privilege and a defence provided by s.13 of the Defamation Act 1974 (NSW).

12. On 13 November 1984 the first defendant put on a defence denying that the matter complained of was capable of bearing a defamatory meaning or the imputations alleged by the plaintiff. On 9 August 1988 both defendants amended their defences by putting on a common defence pleading that the matter complained of was not capable of bearing a defamatory meaning or the imputations pleaded, truth, truth and public benefit, qualified privilege, fair comment, and statutory qualified privilege in accordance with s.22 of the Defamation Act 1974 (NSW).

13. On 3 February 1989 the defendants filed a second amended defence, raising in addition to the defences already listed, a defence of partial justification.

14. As mentioned earlier the hearing of the action commenced on 6 February 1989 and lasted for four days before it was adjourned so that interim reasons for judgment could be prepared on the preliminary question of whether the article was capable of a defamatory meaning. In the course of the hearing the defendant delivered to the plaintiff interrogatories. As I indicated earlier, interim judgment and reasons were delivered and published on 15 February 1989.

15. By letter dated 27 April 1989 the plaintiff's solicitors requested apologies from the defendants in terms drafted by them and settled by the plaintiff himself. The defendants did not regard the terms of the apologies so drafted as appropriate and declined to apologise in those terms. The second defendant published an apology in the edition of "The Bulletin" magazine on 6 June 1989. The terms of the apology were:

"Apology to Mr G.O. Gutman
The Bulletin of March 27, 1984 contained an article
under the heading 'Chapter and verse on the Vanity
Press' which referred to a book called Retreat of the
Dodo by Mr G.O. Gutman.
In publishing that article The Bulletin had no
intention of conveying any derogatory or defamatory
meaning in respect of Mr Gutman or his book.
In proceedings commenced by Mr Gutman in the Supreme
Court of the Australian Capital Territory the Court has
held that the article has defamed Mr Gutman and The
Bulletin accepts that ruling as correct. The Bulletin
acknowledges that the Retreat of the Dodo is a work of
merit. The Bulletin apologies unreservedly for any
hurt or embarrassment the article has caused Mr Gutman."

16. During the course of the resumed hearing and in the cross-examination of the plaintiff, the first defendant proffered an apology which was read by senior counsel for the defendants in open court and tendered in written form in the following terms:

"APOLOGY TO MR G.O. GUTMAN
FROM MR BRIAN CLOUSTON
I was responsible in part for the publication in 'The
Bulletin' on 27 march 1984 of an article headed
'Chapter and Verse on the Vanity Press'. The article
referred in terms that this Court has held to be
defamatory of Mr G.O. Gutman, to a book 'Retreat of the
Dodo' of which Mr Gutman was the author.
Mr Clouston wishes to associate himself with the
apology published in 'The Bulletin' on 6 June 1988 to
Mr Gutman. He accepts the decision of this Court, from
which he will not appeal that the article defames Mr Gutman.

Mr Clouston apologises to Mr Gutman and expresses regret for any hurt and embarrassment that the article caused. him."

17. The second defendant's estimates of the circulation of "The Bulletin" magazine issued on 27 March 1984 throughout Australia are as follows:

"N.S.W. Metropolitan 16088
Country 7008
Total N.S.W. 23096
Victoria 7902
Queensland 7909
South Australia & N.T. 4370
West Australia 3908
Tasmania 1378
Total (Aust.) 48563

18. I am satisfied that "The Bulletin" is a serious weekly magazine read by the general public and by persons in political, public service and business circles, of which the plaintiff is and has been a part in his personal and professional life. Furthermore each edition would probably be read by more than one reader.

19. It is relevant to the gravity of the libel that it was not prominent in the overall context of the article on vanity publishing. The subject of the article is not the plaintiff. It is about vanity publishing and, although the reference to the plaintiff is explicit, he is merely an example used by the author of the article in the development of the central theme of vanity publishing. It is relevant that the author of the article, having received the information about the plaintiff from the first defendant, made no inquiry of the plaintiff and no attempt to read "Retreat of the Dodo". He simply accepted what the first defendant said.

20. I have already set out the plaintiff's evidence about the hurt to his feelings on reading the article complained of. I turn to consider the gravity of the damage done to the plaintiff's reputation.

21. I follow, with respect, the dicta of Brennan J. in Reader's Digest Services Proprietary Limited and Anor v. Lamb [1982] HCA 4; (1981-1982) 150 CLR 500 at 507:

"When the libel is proved, some general damage is
presumed (English and Scottish Co-operative Properties
Mortgage and Investment Society Ltd. v. Odhams Press
Ltd. (1940) 1 KB 440 at p 455, 461) but there is no
reason in principle why evidence should not be admitted
to show the gravity of the damage done to a plaintiff's
reputation by the making of a defamatory imputation
independently established (see per Bowen L.J. in
Ratcliffe v. Evans (1892) 2 QB 524, at p 530; Ingram
v. Lawson (1840) 6 Bing (NC) 212 at pp 216, 217 (133
ER 84, at pp 85-86)). A jury is entitled to take
into account in assessing general damages the effect of
the libel on those who read it (Herald and Weekly Times
Ltd. v. McGregor [1928] HCA 36; (1928) 41 CLR 254, at p 263), bearing
in mind that some readers will regard the defamation
more seriously than others (Australian Consolidated
Press Ltd. v. Uren [1966] HCA 37; (1966) 117 CLR 185, at p 215). In
making its assessment, a jury is properly assisted by
evidence that the making of the defamatory imputation
found by them had an especially adverse impact upon the
plaintiff's reputation in the eyes of some group or
class in the community. Of course, care must be taken
to ensure that evidence of the attitude of particular
groups of classes is not misused it is neither
material to, nor admissible upon, the issue of the
defamatory nature of the imputation made. The
defamatory nature of an imputation is ascertained by
reference to general community standards, not by
reference to sectional attitudes. But if the
imputation is defamatory according to the standards of
the community generally, a particular impact of the
defamatory imputation may be proved."

22. It is important to bear in mind the natural and ordinary meanings of the words of the article and the respects in which they are defamatory of the plaintiff. The sting of the article is that the plaintiff was so vain a person as to pay for the publication of his book solely with the motive to see himself in print, notwithstanding his incompetence as an author in writing an otherwise unpublishable work, and that the plaintiff was so lacking in competence as an economic and financial consultant that he could only write a book in his field that was so trivial as to be unworthy of publication except at his own expense. The sting of the article is not that it made a revelation to the readers thereof that the plaintiff had paid for publication after publication had been refused by many publishing houses.

23. It was established on the evidence that the plaintiff approached in the order of 20 publishing houses to have the book published and that all severally declined publication. It is also significant that no witness was called to say that his estimate of the plaintiff had been diminished by the article.

24. Germanus Pause, a senior executive public servant and friend of the plaintiff, described his first reaction as one of surprise. He had regarded the book as a very serious book and regarded the article as extremely unfavourable to the plaintiff in revealing that the plaintiff had paid for publication of the book. He related the reaction of other acquaintances of the plaintiff at a farewell lunch in Sydney in 1984. The general tenor of the comments that seem to have been made at the luncheon was that the plaintiff had been "a naughty boy" in having paid for the book to be published and yet pretended that it had been published in the ordinary way. There was general laughter about "naughty boy Gutman". Similar remarks were made at a private dinner party at Pause's home in March 1984. Remarks were made that regardless of what you do in Canberra and what you write in your books, at least you have to make sure that somebody prints it in the normal fashion and you do not use your own money to subsidize publication.

25. Pause's evidence was that people regarded the plaintiff as having been a naughty boy sailing under a forged flag of having accepted publication and appearing as such while in fact he had paid for it.

26. It is obvious that this is not the sting of the article and is of little value as evidence of the impact of the article on other people.

27. On the other hand, the plaintiff's good friend Peter Allen Ryan of Melbourne University Press regarded the article as seriously defamatory of the plaintiff in the senses relied upon by the plaintiff.

28. James Alexander Byth, a business acquaintance of the plaintiff, gave evidence of a similar reaction to Ryan.

29. James Fulton Muir could not remember whether the plaintiff had brought the article to his attention or whether he had read it in "The Bulletin" as part of his weekly routine of reading "The Bulletin". His reaction was that the article was derogatory of the plaintiff in the senses relied upon by the plaintiff. The effect of his evidence was that the article did not really differentiate between vanity publishing, as he understood it, and private publishing.

30. In this case, however, I am not persuaded that the damage to general reputation looms as large as a factor as the hurt to the plaintiff's feelings. The plaintiff impressed me as a person with a high respect for his own achievements, reputation and dignity. At the same time he is unduly sensitive to criticism. Perhaps because of these traits, or otherwise, he did not strike me as being entirely frank as a witness. He seemed to assume a position designed to avoid if possible any fact or inference which might prove adverse to his claim for damages and at the same time to adopt an attitude of added hurt and grievance from every aspect of the conduct of the defendants' case.

31. Typical of this attitude were his answers in cross-examination about his efforts to get the book published before he finally reached a business arrangement with the first defendant. Examples of his evidence on this subject are as follows:

"Mr Gutman, did you submit your manuscript to any other
publisher for publication? Other than Mr Clouston?---I
am not quite sure that I follow your question. When
you say submit for publication, what do you mean? I -
what would I need to have done to submit the manuscript
for publication?
Did you send your manuscript to any other publisher
other than Mr Clouston and ask that publisher to
publish it?---No.
You have never sent a copy of the manuscript of Retreat
of the Dodo to any other publisher and make a request
that that publisher publish it?---Sorry. I think, -
no, I think that is right, no, I did not.
Have you ever had your manuscript rejected by any
publisher after you submitted it to the publisher with
a request for publication?---I made no request for
publication.
Have you ever made a request of Penguin Books that they
consider your book for publication?---I sent them the
book and asked them to make me an offer.
And did you do that in the form of a letter?---I do not
recall. I had discussions with the director of Penguin
and he encouraged me to send him the manuscript.
Did you not write to the director of Penguin Books on
21 December 1979 with a request that they consider a
rough outline of your book with a view to them
indicating on the base upon which they would publish
it?---Could I remind myself of that letter?
...
I show you a letter, Mr Gutman. Is that a letter which
you wrote to Penguin Books in - a copy of a letter
which you wrote to Penguin Books in December
1979?---Are we talking about this letter here?
Yes, the ones before you?---Well, the letter I said,
'Please let me have your view' - - -
HIS HONOUR No, no, you are asked Is that a copy of
the letter that you sent to Penguin Books in December
79? That be the question?
MR WHEELHOUSE Yes.
THE WITNESS Yes.
HIS HONOUR Do not tell me what is in it; I am not
entitled to know what is in it, you see?---Sorry, I
misunderstood the question. Yes, that is the letter.
MR WHEELHOUSE And was that letter written before you
had actually written the entirety of the manuscript,
was that the case?---Yes, it was written before the
book was finished.
And how long after that letter was written did you
actually finish the manuscript?---Probably eight or
nine months.
Did you subsequently send the manuscript to Penguin
Books?---Yes."

32. All the correspondence between the plaintiff and the various publishing houses who declined publication had been discovered to the defendants' solicitors during the pleading stages. It was subsequently tendered in evidence (Exhibits A-Y).

33. The plaintiff was at pains to argue that his approaches to those publishing houses were designed to attract offers to publish so that he could consider them. Yet he did not know what terms he would accept. He wished to receive offers, compare them and then make up his mind having regard to the commercial factors and such matters as circulation. Thus, he said in evidence, he never asked any publisher that he approached to publish. His stance on this subject was, in my view, an undue refinement. However the plaintiff chose to describe his approaches to the numerous publishers, they were efforts to get the book published. Even later in his evidence after he had conceded that he had paid the first defendant to publish the book and that it would certainly not have been published otherwise, he endeavoured to split hairs and say that he had merely contributed to the publication of the book. Although he paid for publication, he would not concede that it was published at his expense. He was most unconvincing and specious in this evidence.

34. Counsel for the plaintiff stressed the refusal to offer an apology to the plaintiff when it was asked for by letters dated 10 April 1984. The evidence of the plaintiff was that failure to apologise caused him added distress. Andrews v. John Fairfax & Sons Limited (1980) 2 NSWLR 225 makes it clear that the conduct of the defendant may be taken into account in aggravation of compensatory damages if it is such as to increase the harm which the publication of the libel has caused, or may be supposed to have caused.

35. The nature of the conduct covers a wide span of circumstances as may be seen from the cases quoted in Gatley on Libel and Slander, 8th Ed., 1981, para.1327 at 544-545. The defendants' conduct need not be malicious but if it is to affect the damages it must be in some way unjustifiable, improper or lacking in bona fides (Andrews's case at pp 248-250 per Glass JA and Bickel v. John Fairfax & Sons Limited (1981) 2 NSWLR 474 at pp 495-497 per Hunt J.). In Andrews Hutley JA said at p 243:

"The failure of the defendants to retract or
apologise has been traditionally regarded as a matter
of aggravation, as it is part of 'the whole conduct of
the defendant from the time the libel was published
down to the time they (the jury) give their verdict'."

Hutley JA concluded that if the jury thought that the failure to apologise was unjustifiable and if they were satisfied that the failure of the defendant to retract promptly "was producing harm suffered by (the plaintiff) they were justified in awarding aggravated damages".

36. In my opinion the failure of the defendants to apologise could not be regarded as unjustifiable, improper or lacking bona fides. I must accept that the reason for not apologising soon after publication of the article was, so far as the second defendant is concerned, a belief on the part of its General Counsel and Secretary as set out in his letter of 26 April 1984 that the article was not defamatory of the plaintiff. In this opinion he was, as I have found, wrong. But minds may well differ on whether the article was defamatory. On the other hand, the first defendant did not respond at all to the request for an apology. In relation to both defendants, I am not persuaded that the failure to apologise at that early stage evidenced contumelious disregard for the plaintiff's reputation (Mirror Newspapers Ltd v. Fitzpatrick (1984) 1 NSWLR 643 at 660). The necessary element of oppressiveness or conscious wrongdoing in the sense of recklessness and arrogance are not established on the evidence.

37. When the defendants did come to apologise they did so in terms different to those requested by the plaintiff and the plaintiff has alleged that the terms of the apologies caused him added distress. It must be said at once that the apologies when given were too late. The plaintiff described his reaction to the apologies as adding insult to injury in that they did nothing to withdraw the insulting imputations. He regarded the apology published in The Bulletin on 6 June 1989 as "a slap in the face", "grudging", "inadequate", having "an element of malice in denying the satisfaction of seeing them withdraw the offensive imputations".

38. In my view the apologies drafted by the plaintiff went beyond what was reasonable and appropriate in the circumstances. Here again, I find that the plaintiff was unduly sensitive and seeking to cherish the obvious grievance which had been done to him by the original article. An apology can aggravate, especially if it is as the plaintiff's counsel described the present apology, a "Clayton's" apology, meaning that it is no apology at all (David Syme & Co. Ltd. v. Mather (1977) VR 516 per Lush J 519 at 520, 523 and 528; Jools v. Mirror Newspapers Ltd (1984) 56 ACTR 1 at 10-11; Lawrie v. Northern Territory News Services Ltd, unreported decision Nader J., Supreme Court of the Northern Territory, delivered 28 November 1985). But in my view the plaintiff cannot claim aggravated damages for the initial failure of the defendants to apologise or for the terms of the apologies when ultimately given. Nevertheless, I take the failure to apologise into account generally on the question of damages.

39. The nature and quality of the defendants' conduct is relevant to the claim for exemplary damages. As Miles CJ observed in Bogusz v. Thomson and Another delivered 21 April 1989, the distinction between aggravated damages and exemplary or 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; (1967-68) 117 CLR 118 at 149 per Windeyer J.). Both in relation to aggravated damages and exemplary damages it is the defendants' conduct which must be looked at.

40. The submission on behalf of the plaintiff was that the various steps in the litigation caused aggravation to the harm done by the original article. So far as the initial failure to apologise is concerned, the plaintiff gave evidence that on reading the letter from the second defendant refusing an apology he felt outraged when it was perfectly clear in his mind that something had been said about him that called for an apology. When there was no response from the first defendant he was disappointed and angry because he had no doubt that the first defendant was perfectly well aware that he had said something that he should not have said and was not prepared to withdraw it and apologise, which he, the plaintiff, would have expected from an acquaintance of long standing.

41. He said that when he became aware of the defences he felt frustrated because the defendants were saying that what they had published was true and there was nothing to apologise for. He said they had added insult to injury or repeated the insult contained in the article about which he had complained. Upon reading the amended defence of 9 August 1988 his reaction was that it was not true to say that publication was only achieved because he had paid for the book to be published and he regarded it as totally improper for the first defendant to have made their arrangements public. He found that in itself an appalling breach of commercial confidence and to make it public in a way which misrepresented it completely was, he thought, outrageous. He felt that the defendants had again added further insult to the original one.

42. So far as the defence of fair comment was concerned, he said that he found all these manoeuvres most objectionable because they resulted in delay. He had been told that the defence had been introduced as some further device for procrastination and he wished to clear as quickly as possible his reputation. With regard to the interrogatories, he said that he felt distressed and very suspicious and that he was being led by the nose by the defendants who were constantly thinking of new manoeuvres to prevent the matter from going to court.

43. As I have said before, I take little notice of the plaintiff's evidence of increased hurt to feelings. I am not convinced that the defendants' conduct up to the stage when I delivered interim judgment was anything more than the legitimate conduct of an important piece of litigation so far as they were concerned. I said as much in the course of the hearing on 9 February 1989 (p.275 of the transcript).

44. I am not convinced that aggravated or exemplary damages should be awarded because I do not regard that evidence of increased hurt as a very substantial feature of the case. I nevertheless take account of the fact that the initial judgment of the defendants that the article was not capable of a defamatory meaning and was not defamatory of the plaintiff was wrong. The plaintiff, I am satisfied, has been put through the stress of litigation affecting his good name and reputation. Because he is a person of pride and dignity, and has a high respect for his own achievements as an economic consultant, the conduct of the litigation by the defendants is relevant to general damages (Cassell v. Broome [1972] UKHL 3; (1972) AC 1027 at 1071).

45. I take account also of the fact that the first defendant gave information to the author of the article without checking that course with the plaintiff. That disclosure by the first defendant was indiscreet and tactless. The author did not bother to contact the plaintiff, whereas he did contact the other authors who had been particularised by the first defendant to him.

46. There is another feature of the first defendant's conduct about which the plaintiff complains as increasing the hurt. I am satisfied on the evidence of Susan Alana Hardiman that on 15 March 1989 the first defendant said to her at a cocktail party attended by people connected with the publishing industry, words to the effect that Ryan had given evidence against the first defendant and that she had got a mention in the court. The first defendant went on to say that he could prove that the plaintiff's manuscripts had been "knocked back" by 16 publishers. The first defendant repeated on perhaps three occasions that Ryan had given evidence against him.

47. Hardiman reported those statements to Ryan and he reported them to the plaintiff. The plaintiff said that when he heard about what the first defendant had said at the cocktail party he was upset that Hardiman, a friendly acquaintance of many years standing, should be embarrassed and exposed to bullying and public bad-mouthing by the first defendant, who ought to have known better. He was also distressed that Ryan, in his absence but in the presence of many people who knew him, should have been talked about and offended. He even went so far as to say that he felt very bad about the way Hardiman was cross-examined by senior counsel for the defendants.

48. I take little notice of that evidence of hurt. Although the first defendant's words at the cocktail party were regrettable, they were not directed against the plaintiff. They were directed against Ryan. It was unfortunate that they were conveyed back to the plaintiff. On the whole, I think it was a petty incident having little effect on damages in this matter.

49. During submissions on the question of damages the plaintiff's counsel sought separate awards of damages against both defendants. In my view, this is not permissible and in the circumstances of this case would be inappropriate. Although the statement of claim as ultimately pleaded alleges separate publications by both defendants, there is one prayer for relief and that is a prayer for damages and interest. In any event, the publication by the first defendant to the second defendant would not sound in any material way in damages and should appropriately be merged in the award of damages arising from the publication in "The Bulletin".

50. I proceed to assess damages for the publication in the Australian Capital Territory and the other States and Territories of Australia. It seems to be well settled law that in proceedings for defamation the common law permits a plaintiff who has pleaded a single cause of action against a newspaper defendant to recover as ordinary compensatory damages for the injury to his reputation caused by the entire issue of that newspaper published by the defendant, be it within the State in which the action is brought or elsewhere (Toomey v. Mirror Newspapers Limited (1985) 1 NSWLR 173; Waterhouse v. Australian Broadcasting Corporation, unreported decision of Kelly J. in this court, 23 June 1987). I proceed accordingly.

51. In my judgment an adequate and reasonable assessment of damages against both defendants is $40,000.

52. With regard to the claim for interest, it was submitted on behalf of the plaintiff that interest should be calculated from the date of the defamation giving rise to the cause of action against both defendants, namely 27 March 1984 to the date of judgment at a realistic rate of interest. It was submitted on behalf of the plaintiff that the defendants have had the use of the money reflected in the award of damages, the hurt to the plaintiff's feelings has endured, no apology was offered until very late in the litigation, and the defendants' were slow to answer interrogatories delivered by the plaintiff.

53. In Bogusz v. Thomson and Another, Miles CJ declined to award interest on the same basis as in actions for breach of contract or personal injury. In Australian Consolidated Press v. Driscoll (1988) A Torts R 80-175, the Court of Appeal of New South Wales held that interest was appropriately awarded on damages for defamation because the award comprised damages for vindication relating to the date of publication and damages for injury to reputation and injury to feelings accruing between the time of publication and the trial of the action. The Court of Appeal there reviewed its earlier decision in John Fairfax & Sons Limited v. Kelly (1987) A Torts R 80-091; (1987) 8 NSWLR 131 and adopted the reasoning of McHugh JA, as he then was, in that case.

54. The usual rate of interest applied by this court in areas other than defamation is 14 percent and the court usually takes account of the fact that all the damage is not suffered when the cause of action accrues. Applying that approach to the award of $40,000 the amount of interest PN would be in the order of $14,000. In the present matter I am satisfied that interest should be awarded.

55. The action could have been heard and disposed of much earlier if the defendants had not put on defences which they ultimately were forced to withdraw. On the other hand, some delay was caused by the plaintiff when he had a hearing date in September 1988 vacated because he wished to travel overseas. He thereby brought about a delay of about six months.

56. In the circumstances I order that interest of $10,000 be included.

57. There will be judgment for the plaintiff against both defendants in the sum of $50,000. I order that the defendants pay the plaintiff's costs.