Gary John Humphries v Twt Limited [1993] ACTSC 24; (1993) 114 ACTR 1; (1993) 113 FLR 402 (26 March 1993)

SUPREME COURT OF THE ACT

GARY JOHN HUMPHRIES v. TWT LIMITED
No. SC6211 of 1990
Number of pages - 39
Defamation - Damages - General Tort Principle
[1993] ACTSC 24; (1993) Aust Torts Reporter 81-219
(1993) 114 ACTR 1
(1993) 113 FLR 402

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles CJ(1)

CATCHWORDS

Defamation - Member of Legislative Assembly - imputation of improper conduct through excessive expenditure on travel - whether imputation defamatory - retraction and apology - whether sufficient to negative imputation - television broadcast to be contrasted with written publication.

Damages - injury to reputation - general damages to compensate and vindicate - hurt to feelings - whether a component of general damages to be distinguished from aggravated damages - aggravated damages awarded only where defendant's conduct unjustifiable, improper, or lacking in good faith - retraction and apology - whether mitigating factors in award of damages.

General Tort Principle - take the plaintiffs as you find them - applicable in action for defamation

Reader's Digest Services Proprietary Limited and Another v. Lamb [1982] HCA 4; (1981-2) 150 CLR 500.

Broome v. Cassell and Co. Ltd [1972] UKHL 3; (1972) AC 1027 at 1071.

Coyne v. Citizen Finance Limited [1991] HCA 10; (1991) 172 CLR 211.

Goslin v. Corry (1844) 7 M and G 342 at 346.

Lynch v. Knight (1861) 9 HLC 577 at 598.

Dingle v. Associated Newspapers Ltd. and Others (1964) AC 371

Kelly v. Sherlock (1866) LR 1 QB 686.

Wheeler v. Somerfield and Others (1966) 2 QB 94.

Fielding and Another v. Variety Incorporated (1967) 2 QB 841.

Baltic Shipping Co v. Dillon (1993) 111 ALR 289 at 300.

Smith v. John Fairfax and Sons Ltd. (1986-7) 86 FLR 343 at 374.

Woodger v. Federal Capital Press Pty Limited (1992) 107 ACTR 1.

HEARING

CANBERRA, 1,2 and 3 February 1993
26:3:1993

Counsel for the plaintiff: Mr. M.J. Neil, QC and

Mr. B. Cornell

Solicitors for the plaintiff: Macphillamy Cummins and Gibson

Counsel for the defendant: Mr. B. McClintock

Solicitors for the defendant: Gallens Crowley and Chamberlain

ORDER

The court orders that:

1. There be judgment for the plaintiff in the sum of $9,000.00.

DECISION

Gary John Humphries is a member of the Legislative Assembly of the Australian Capital Territory, the Deputy Leader of the Opposition and Opposition spokesperson for various portfolios including that of Attorney-General. On 11 October 1990 he was Minister for Health, Education and Arts in the Alliance Government. He sues the proprietor of the WIN Television Network for defamation arising out of a broadcast in a news program at about 6.10 p.m. on that date. The matter complained of is contained in a transcript of the words spoken in the broadcast and is as follows:

"Newsreader: In Assembly politics, the Alliance Government has been
attacked for its ministerial travel expenses. Opposition Leader
Rosemary Follett has condemned the cost as wasteful during a
time when the Government is closing schools to save money.
Reporter: The Opposition says it's having a field day at this week's
Assembly estimates sitting. The latest attack is on travel expense
figures. For the six and a half months the Alliance Government has
been in office, it's spent $40,000.00 on interstate travel for
ministers and staff. The minority Labor Government only spent
$6,000.00 during its five months in office.
Rosemary Follett: They can't justify it. I think it's simply
Ministers taking advantage of money that they believe is available,
but at the same time they're closing schools, closing Royal Canberra
Hospital, and that's just not the kind of priority that I think the
Canberra community deserves.
Reporter: The Minister bitten the most by the travel bug was Finance
and Urban Services Minister, Craig Duby. His conference hop totalled
around $18,000.00 closely followed by Health Education and Arts
Minister, Gary Humphries. He and his staff spent just over 17,000.00.
Meanwhile, Chief Minister, Trevor Kaine before Estimates this morni ng
considered his plans for two new ACT Ministers would cost the
Government money.
Rosemary Follett: It's the first time he has admitted that. He's
previously said that it wouldn't cost any extra, which I don't think
anyone would have believed, and what he has said that to pay for those
extra Ministers, he'll have to find additional savings.
Reporter: Meanwhile the Opposition was also in the attack over school
closures. Education spokes-person, Bill Wood, says he's been leaked
a National Capital Planning Authority submission to the Commonwealth
Grants Commission.
Bill Wood: Closing down in its terms the infrastructure will make it
less safe, make the suburban roads less safe, because we'll be putting
our children out of that very comfortable environment."

2. Ms. Rosemary Follett was the leader of the Opposition at the time. Mr. Bill Wood was Opposition spokesperson on Education.

3. The statement that the plaintiff and his staff "spent just over 17,000.00" was wrong. The correct sum was $4,978. Immediately after the broadcast, a personal assistant to the plaintiff, Mr. Rohan Greenland, telephoned the WIN studio and advised that the sum spent by the plaintiff and his personal staff on travel during the period in question was about $5,000. At about 6.30 p.m. and just before the end of the news program, a newsreader read an announcement in the following words:

"Just before we go tonight, a correction to an earlier story. The
Education Minister's Department spent five thousand dollars not
seventeen thousand dollars on travel as reported."

4. Mr. Greenland, who had made a video tape of at least part of the program, informed the plaintiff of what had been said and played the tape to the plaintiff in the plaintiff's office. Whether the video tape also included the announcement made at about 6.30 p.m., and whether the plaintiff was informed of the broadcast and saw the video tape before or after the announcement, is not clear. Ultimately, in my view, it does not matter.

5. The plaintiff instructed his solicitors to obtain an apology. After an exchange of correspondence, an item in the nature of an apology (its exact nature is disputed) was read on 18 October 1990 during the same news program as the matter complained of. Its terms are set out later in these reasons.

6. It is convenient to refer to the item read at the end of the broadcast on 11 October 1990 as "the correction" and the item read in the broadcast of 18 October 1990 as "the apology". The effect and significance of both items were matters of dispute and will be discussed.

7. The plaintiff alleged that the following imputations arose out of the matter complained of in its natural and ordinary meaning:

"(a) The plaintiff was prepared to use for the purposes of travel
public funds that could otherwise have been employed to prevent the
closure of schools and hospitals.
(b) The plaintiff was wasteful in his use of public funds for travel
by himself and his staff.
(c) The plaintiff was more extravagant than almost all of his
ministerial colleagues in his expenditure of public funds on travel
for himself and his staff."

8. The plaintiff claimed compensatory damages, aggravated damages and punitive damages. The basis for the claim for aggravated damages was the alleged knowledge on the part of the defendant that the imputations were false and the failure on the part of the defendant to apologise in the terms requested by the plaintiff in a letter written by his solicitors to the defendant's solicitors on 18 October 1990.

9. The defendant denied the imputations and denied that the imputations were defamatory. Publication was alleged to have taken place in New South Wales as well as in the Australian Capital Territory, and the defendant raised a defence under s.13 of the New South Wales Defamation Act 1974 that the matter complained of was published in circumstances where the plaintiff was unlikely to suffer harm. The defendant also raised a number of matters in mitigation on the question of damages which will be discussed later.

The matter complained of
10. As already indicated, the matter of which the plaintiff complained was spoken during a television broadcast at about 6.10 p.m. It was part of a half hour program of local news, interspersed with advertisements of various kinds. It may be convenient to say something now about the visual aspects as well as the words themselves.

11. The words spoken by the newsreader were accompanied by visual footage of the newsreader. During the first passage spoken by the reporter, various ACT politicians (not including the plaintiff) were shown together around a table at a meeting, which may or may not have been the Assembly estimates sitting. Ms. Follett was shown speaking in a street or park. The second passage spoken by the reporter was against a background showing in turn Mr. Duby, the plaintiff and Mr. Kaine. Mr. Wood was shown speaking outside a school. The part in which the plaintiff appeared was shown at the time of the mention of his name and the expenditure of 17,000. It was a clear close-up visual image of the plaintiff, apparently at a Legislative Assembly sitting.

12. The argument was raised on behalf of the defendant at the conclusion of the evidence that the matter complained of, taken as a whole, was not confined to what was broadcast at about 6.10 p.m. and included the correction at about 6.30 p.m. However, this was not a matter that was pleaded by way of defence, as I think it should have been if it is to be treated as of any great significance. The fact that it was not pleaded simply reflects the discrete nature of what was broadcast at about 6.10 p.m. on the one hand and the correction at about 6.30 p.m. on the other hand. In this respect a television broadcast may be contrasted with a written publication such as a newspaper. A defamatory error in part of a newspaper might be corrected in another part of the same newspaper, with the result that the publication taken as a whole should be regarded as including the correction. So much will depend upon the context and on the circumstances. In a television or radio broadcast where the viewer or listener is, without the use of a recording, unable (except by recollection) to refer back to an earlier part of a broadcast in order to compare it with a later correction or retraction, it may be more difficult to regard the correction or retraction as part of the earlier item. Again everything will depend upon the context and on the circumstances.

13. In the present case I have little hesitation in concluding that the correction was not part of the matter complained of. At the time of the broadcast at about 6.10 p.m. there was no indication to the viewer or listener that what was broadcast about the plaintiff then was to be the subject of correction, retraction or modification by anything to be broadcast later in the program. The news program from 6.00 p.m. to 6.30 p.m. was not a continuous and cohesive whole in any relevant sense. It was made up of various news items, such as that contained in the matter complained of. Those news items were not necessarily connected with each other, except to the extent that they were items of local news or of interest to local people, and they were interspersed with various advertisements which had nothing to do with each other or with the news items.

14. I have little difficulty in coming to the further conclusion that there were numerous viewers who saw the matter complained of, but who did not see the correction, although it is impossible to determine what proportion of viewers would have been in this category. I add for completeness that there were probably some viewers who saw the correction without seeing the matter complained of, but that is, I think, of no significance for the purposes of the case.

15. I interpolate that it was submitted on behalf of the plaintiff that there is a presumption that the whole of the matter complained of was seen by the viewers. However, in my view there is no such presumption. If it is alleged to be a presumption of law, then no authority was cited to support it. If it is alleged to be a presumption of fact, then I simply disagree. There are all sorts of reasons why viewers who see the beginning of a news item might not stay to view the conclusion of the same item. However, I accept that this was a comparatively short item (about 1.5 minutes). The opening remarks read by the newsreader had an arresting quality, and I think that it is likely that most viewers who heard the beginning of the broadcast would have lasted through until the end. Anyone who stopped watching before there was a reference to the plaintiff by name could not have identified the plaintiff as the subject of the foregoing remarks.

Imputations or meanings
16. There is no question that imputation (a) has been made out. The plaintiff was the Minister responsible for implementing the government's decision to close certain schools and the Royal Canberra Hospital. The newsreader referred to the Opposition Leader's condemnation of the cost of ministerial travel expenses as "wasteful during a time when the government is closing schools to save money". Ms. Follett herself was heard to say, "Ministers taking advantage of money" when "at the same time they're closing schools, closing Royal Canberra Hospital" and that the Ministers concerned were not recognizing the right "kind of priority". Accordingly, the viewer was likely to conclude that the Minister in question was using public money for travel when the money could have been used directly for the purpose of avoiding the closure of schools and hospitals.

17. Imputation (b) is clearly made out for the same reasons.

18. Imputation (c) is that the plaintiff was more extravagant than "almost all" of his ministerial colleagues in this regard. If the words of the alleged imputation are construed literally then the imputation does not arise. There were only four Ministers, and according to the broadcast, the plaintiff spent less on travel than one of them. The term "almost all" is extravagant and inexact in a pleading where particularity and precision are called for. Nevertheless it is sufficient if an imputation relied upon contains the "sting" of the libel and to the extent that the matter complained of bears the meaning that the plaintiff was more extravagant than the ministerial colleagues not named in the broadcast, or extravagant when the unnamed ministerial colleagues were not extravagant, I think that it does arise and that the plaintiff is entitled to rely upon it.

Are the meanings defamatory?
19. The submission was put on behalf of the defendant that even if made out the imputations relied upon were not defamatory. As I understood it, the submission relied upon the expectation that the ordinary reader would know that it was necessary for the proper government of the ACT that Ministers would incur expenses for proper travel connected with the exercise of their ministerial duties. Further, so it was submitted, the ordinary reader would also realise that in incurring expenditure for ministerial travel, Ministers would inevitably divert funds from other expenditure such as schools and hospitals. Hence, so the argument went, the ordinary reader would not think the less of a Minister who was in the words of imputation (a) prepared to use for the purposes of travel public funds that could otherwise have been used to prevent the closure of schools and hospitals. Again, I think that, taken literally and alone, that particular imputation is not defamatory of a Minister. Furthermore, the drafter of the imputation alleged has avoided any allegation that the words meant that the plaintiff was prepared to use public funds for the purpose of unnecessary travel, or travel which was unconnected with his ministerial duties. That may have been a wise tactical step on the part of the drafter, in that it avoids the raising of an arguable issue which the plaintiff does not wish to raise. However, the imputation relied upon must be seen in context and indeed in relation to the other imputations themselves. Construing the imputation very broadly so that its sting lies in the suggestion that spending so much money on travel was not justified when it could have been used to keep open the shcools and hospital, I think that the imputation is defamatory.

20. On the other hand, I have no difficulty in rejecting the submission that imputations (b) and (c) are not defamatory of the plaintiff. Any suggestion that a person responsible for the use of public funds was "wasteful" or "extravagant" in the discharge of his or her functions must tend to lower the reputation of that person in the eyes of ordinary members of the community.

Evidence
21. The above findings must lead to a conclusion that the plaintiff is entitled to judgment in his favour. The more substantial questions in the case relate to the issue of damages, and on this issue it is necessary to refer to the evidence.

22. The plaintiff, who did not state his date of birth or age, graduated from the Australian National University in Law, was admitted as a solicitor in New South Wales in 1983 and practised for some four years within the section of the Commonwealth Attorney-General's Department which has since become the ACT Government Law Office. In 1988 he joined the staff of Senator Vanstone as a personal adviser. He has been a member of the Australian Liberal Party since 1980. He was elected to the first Australian Capital Territory Legislative Assembly on 4 March 1989 and immediately became Deputy Leader of the Opposition. That is not a position established under legislation or under the standing orders of the Legislative Assembly, but it is one which has become recognized in ACT politics.

23. On 5 December 1989 the Labor Government was replaced, without an election, by the Alliance Government. The plaintiff became the Minister for Health, Education and Arts. The combined portfolio was undoubtedly a very demanding one and, in a climate of reducing government expenditure, the plaintiff was faced with implementing government policy to close certain schools and the Royal Canberra Hospital. He thus became the target of criticism by various people and community groups who wanted to keep the schools and the hospital open.

24. The plaintiff said, and I have no reason to reject his evidence, that he was determined to be frugal with the use of money in his ministerial office and to set an example to others. He was cautious about where and when he travelled, and when he did so, he attempted to travel economy class. Sometimes when he arranged to travel economy class, the airline would upgrade his seat, and he would hear disparaging remarks from other passengers making their way to the economy class seats. He attempted to avoid that sort of criticism by a "lean office administration" and refraining from expenditure which might be the subject of criticism. He decided not to attend a meeting of Ministers of the Arts in New Zealand in 1990 because he felt he could not justify overseas travel in the midst of "stringent belt-tightening".

25. When the plaintiff viewed the video tape of the broadcast on 11 October 1990, he was very angry and upset about what he saw as an attack on his personal integrity. He was upset about the implications he felt that the broadcast would have in relation to his reputation both personally and politically and felt that it would deprive him of what he called "moral authority". The plaintiff was unable to recall when he saw the correction, whether at the time it was broadcast at about 6.30 p.m. or on video tape at a later time. However, if it was later, in my view, it could not have been much later on the same evening. He was not much mollified by the correction, if at all, and felt that it gave the impression that he was still in some way implicated, because the reference was to the Education Department and not to himself and his staff.

26. The plaintiff said that he noticed the reactions of people towards him were different after the broadcast from what they had been previously. He mentioned particular incidents in which people displayed animosity towards him which he claims would not have been displayed except for the broadcast. For instance, at a meeting at Lyons Primary School (date unspecified), a parent referred to "millions spent on travel, on lurks and perks for Ministers". A friend, Mr. Michael Warby, told him, "It's not a nice thing to be happening while school closures are going on". The day after the broadcast the plaintiff's secretary asked him "Who's been a naughty boy, then?". Another colleague said a few days after the broadcast, "It surprised me, I didn't think you travelled all that much".

27. The plaintiff authorised the issue of a press release. There is some dispute about the press release that was eventually issued. One document (Exhibit 1) was prepared with the title "News Release" and was dated 15 October 1990. It stated that the plaintiff denied that he had travelled excessively as Minister and that his ministerial travel expenditure, including travel by his Executive Deputy and staff, for the year in question was $4,978. However, for reasons to which I will refer later, I think it more likely that the press release issued was in fact represented by Exhibit 2 and also by an identical document produced by the defendant at the hearing, annexed to the defendant's affidavit as to documents, Exhibit N. This document is also headed "News Release", with a sub-heading "ACT Alliance Government, Gary Humphries, MLA, Minister for Health, Education and the Arts". The body of the press release is in the following terms:

"WRIT FOR DEFAMATION
The Minister for Health, Education and the Arts, Gary Humphries, today
instructed his solicitor, Mr. Peter Hohnen, of Macphillamy Cummins and
Gibson to issue a writ for defamation in the Australian Capital
Territory Supreme Court against WIN Television.
The writ relates to an item broadcast on the WIN Television News on
Thursday, October 11, 1990 dealing with ministerial travel
expenditure.
CONTACT: Rohan Greenland [phone]
October 15, 1990."

28. There is no evidence that the defendant, or any other media outlet, published the press release.

29. On the following day, 16 October 1990, the defendant offered to publish an apology in the following terms:

"DRAFT APOLOGY
ON THE ELEVENTH OF OCTOBER WE BROADCAST A STORY ON ESTIMATES COMMITTEE
HEARINGS INTO ALLIANCE GOVERNMENT EXPENDITURE.
IN THAT STORY IT WAS REPORTED THAT HEALTH, EDUCATION AND ARTS MINISTER
GARY HUMPHRIES AND HIS STAFF HAD SPENT JUST OVER SEVENTEEN THOUSAND
DOLLARS ON TRAVEL EXPENSES.
WIN HAS SINCE BEEN INFORMED THAT THAT SUM IS INCORRECT - AND THAT THE
ACTUAL SUM SPENT WAS FOUR THOUSAND NINE HUNDRED AND SEVENTY EIGHT
DOLLARS.
WIN TELEVISION UNRESERVEDLY APOLOGISES TO MR. HUMPHRIES AND HIS STAFF
FOR THE ERROR."

30. However, the plaintiff felt that the draft apology was inadequate and through his solicitors sought an apology as follows:

"APOLOGY SOUGHT
On the eleventh of October we broadcast a story on estimates committee
hearings into Alliance government expenditure.
In that story it was reported that Health, Education and Arts Minister
Gary Humphries and his staff had spent just over seventeen thousand
dollars on travel expenses.
WIN has since been informed that the sum is incorrect - and that the
actual sum spent was four thousand nine hundred and seventy eight
dollars.
WIN Television unreservedly apologise to Mr. Humphries and his staff
for the error.
WIN Television did not intend to suggest that Mr. Humphries' travel
expenditure was in any way excessive or that he travelled more often
that (sic) his ministerial duties warranted. If viewers did interpret
the story in that way, WIN withdraws any such suggestions,
acknowledges that they are completely unfounded and expresses its
regret that the story should have been understood in that unintended
way."

31. There is a suggestion in the evidence that the words "did not intend to suggest" in the first line of the last paragraph of the apology sought were altered to "had no basis for the suggestion". There is also a suggestion in the evidence that the word "unintended" in the last line of the last paragraph of the apology sought was struck out. I do not think it necessary to make a finding on whether those alterations had in fact been made before the document was sent to the defendant's solicitors as the apology sought by the plaintiff.

32. As mentioned earlier in these reasons, on the evening of 18 October 1990 and in the same news program as that in which the matter complained of was broadcast, there was read a statement by way of apology. It was in these terms:

"APOLOGY GIVEN
On the Eleventh of October we broadcast a story on estimates committee
hearings into Alliance Government expenditure.
In the story it was reported that Health, Education and Arts Minister
Gary Humphries and his staff had spent just over seventeen thousand
dollars on travel expenses.
WIN has since been informed that that sum is incorrect - and that the
actual sum spent was four thousand nine hundred and seventy eight
dollars.
WIN accepts that the travel undertaken by the Minister and his travel
expenditure were not excessive and should not be construed so.
WIN television unreservedly apologises to Mr. Humphries and his staff
for the error."

33. It may be observed that the apology given differed from that originally offered only in the addition of the second last paragraph.

34. The plaintiff said that he was further hurt by the apology that was broadcast, as the defendant appeared reluctant to fully correct the original impression given by the matter complained of. He felt that the apology was tight-lipped and terse and "the bare minimum" needed to make a technical correction but without fully withdrawing the imputations that had been made.

35. As the litigation progressed, the hurt to the plaintiff's feelings continued, according to his account. For instance, there was a matter of interrogatories, in particular a question put on behalf of the plaintiff in the interrogatories directed to the defendant, which sought to ascertain whether the defendant intended to convey the imputations alleged. The answer to the interrogatory was in the affirmative. The plaintiff saw this as an admission by the defendant that it had made a deliberate attempt to cast aspersions upon his character at the time of the matter complained of.

36. Then there was the matter of the defence of qualified privilege which had originally been raised by the defence in relation to the claim made for publication in New South Wales, a defence which was abandoned at the hearing. The plaintiff said that he felt the defendant was simply playing games, using his reputation and feelings as a tactical weapon, deliberately prolonging the proceedings and making them as complex and as costly as it could in order to punish him for having the audacity to sue. Similarly, he said that he was flabbergasted to learn that the defendant was raising a defence under s.13 of the NSW Defamation Act.

37. There was also a letter of 7 August 1991 written by the defendant's solicitors to the plaintiff's solicitors, requesting discovery of documents relating to the issue of truth or falsity of the imputations pleaded, on the ground that truth or falsity was an issue raised by the plaintiff's claim for aggravated damages (which in my view it was). The plaintiff said that this letter caused him "great concern and anguish".

38. The plaintiff spoke of how he was relegated from the first position on the Liberal Party voting ticket to the fifth position and "within two places of not being successful" in pre-selection in July 1991 as the Liberal Party candidate for the ensuing ACT elections. He said that he believed that the WIN broadcast may have been a factor in what he saw as a decline in his popularity within the Liberal Party.

39. In summary, the plaintiff said that the publication was "the most distressing thing that has ever been said about me in my life".

40. The plaintiff called several witnesses.

41. Mr. Rohan James Greenland, the plaintiff's Senior Private Secretary and Press Officer at the time, gave evidence which, as far as it went, was consistent with that of the plaintiff. He spoke of the plaintiff's high reputation for integrity and honesty. He said, "We were known to be frugal". He spoke of how he rang Mr. John Vause at WIN on the evening of 11 October 1990 and told him that the "correct figure was about five thousand dollars", and urged Mr. Vause to "check the facts".

42. He said that some short time after the broadcast he was at a bank in connection with a Liberal Party branch trip to Rutherglen, and the bank teller quipped "Off on another junket, are we?". I am satisfied that the bank teller was referring to the misinformation that the plaintiff had been extravagant in his use of funds for travel.

43. Dr Eric Willmot was the Secretary to the Department of Health, Education and the Arts in December 1989 at the time of the broadcast. He saw the program in question, thought it was wrong, checked the budget figures the next day and confirmed that it was wrong. He spoke of the plaintiff's reputation for integrity and the plaintiff's reluctance to spend money to attend ministerial conferences interstate. In this regard, Dr Willmot was clearly of the view that the plaintiff tended to underspend on such conferences, and did not attend enough of them. Dr Willmot could not remember the correction. He did not see the apology broadcast, but he did hear about it. He also heard joking references to the plaintiff as "Minister for travel" on about three occasions. Those references were, in my view, clearly made as a result of the defamatory broadcast.

44. Mr. Bill Wood is the present Minister for Education and Training, Minister for the Environment, Land and Planning and Minister for the Arts in the ACT Government. He served with the plaintiff on various committees. He spoke of the plaintiff's reputation for integrity, hard work, willingness to listen to community groups and to representations and to attend community meetings. He spoke of how the Labor Opposition in 1990 pursued Mr. Duby, the Minister for Transport, and Mr. Collaery, Deputy Chief Minister and Attorney-General, over what he called "travel matters". Mr. Wood said that he did not recall seeing the broadcast in question, a statement which is a little surprising, particularly in view of the fact that he was shown on it and heard to express a view about expenditure on schools. He remembers being interviewed for such a program but did not relate it in his own mind to any broadcast concerning the plaintiff. He recalled that his parliamentary colleagues did not take the opportunity to mount any attack upon the plaintiff on matters arising out of the program, although it was their view that the Ministers were politically vulnerable on the matter of travel expenses as that related to reduction of expenditure on schools. I think that Mr. Wood's inability to remember whether he saw the matter complained of suggests that he did not see it.

45. Mr. Paul Whalan was a consultant in politics and government at the time of the hearing. He was a member of the Legislative Assembly from the 1989 election until 26 April 1990, and was Deputy Chief Minister for part of that period. He had known the plaintiff for seven or eight years, during the early part of which he was an adviser to a federal Minister and the plaintiff was an adviser to a Senator. He spoke of the plaintiff's reputation for conscientiousness and commitment to fiscal responsibility. Mr. Whalan did not recall seeing the program but he remembered that at about the time in question he spoke to Mr. Max Blumenthal, Commonwealth car driver to the Honourable Ros Kelly, who remarked to him, "I see the Libs have been blowing out their travel again". Again, I think that if Mr. Whalan had seen the matter complained of, he would not be likely to forget it.

46. Mr. Whalan was shown a video tape of the broadcast in question shortly before the hearing. He gave evidence about what he considered would have been the likely impact of the broadcast on the reputation of the plaintiff amongst members of the Legislative Assembly. He was permitted to give evidence of that nature having regard to the decision of the High Court in Reader's Digest Services Proprietary Limited and Another v. Lamb [1982] HCA 4; (1981-2) 150 CLR 500. Mr. Whalan said on the one hand that any effect on the plaintiff's reputation would have been minimal if the members were informed properly of the situation. On the other hand, he considered that the apology would have had no ameliorating impact at all. Whether or not it may be possible to reconcile these two conflicting statements on the part of the witness, a matter to which I shall return, Mr. Whalan expressed a further view that a retraction of a defamatory statement could never completely sweep away the original effect of that statement in the mind of a politician because a politician was always aware of the "community impact".

47. Mrs. Anne Katherine Carnell was a member of the Legislative Assembly and a member of the Liberal Party at the time of the hearing. She had been elected in the elections of February 1992 and was Opposition spokesperson on Health, Community Services, Status of Women, Youth and the Family. Mrs. Carnell is a pharmacist by occupation and for some time prior to 11 October 1990 held office in a number of organizations concerned with the practice of pharmacy in the Australian Capital Territory and in Australia. She was a Vice-President of the Pharmacy Guild of Australia and chaired the management division of that body from 1988 to 1990. She was also President of the ACT branch of the Pharmacy Guild of Australia. It was her practice to keep up to date with relevant political developments by watching programs such as the one in question. She had a television set in her office and one at home. She first got to know the plaintiff during the early period of self-government when as President of the ACT Branch of the Pharmacy Guild she made representations to him as Shadow Minister on health matters. She considered that he had the reputation of being a hard-working, honest, career politician, who cared greatly about making sure that the ACT was able to remain within its budget.

48. When she saw the program, it immediately affected her estimation of the plaintiff. She wondered what the plaintiff was doing "swanning around Australia spending tax-payers' dollars on trips". She said that it was because of the figures for expenditure given during the broadcast that her perception of the plaintiff was affected. However, in May the following year, she joined the Liberal Party, came to know the plaintiff personally, and received information about the actual expenditure on travel by the Alliance Government. The result was that by some time between May and July 1991 the effect of the news broadcast on her estimation of the plaintiff was "totally outweighed".

49. Mrs. Carnell did not recall seeing any correction at the end of the news program on 11 October 1990. She said it was possible that she heard the correction but did not relate it to the plaintiff, because of the reference to the Education Department in the correction. She said that her assessment of the plaintiff at the time was affected by the impression she had that it was the plaintiff himself, without any assistance from his staff, who had incurred the expenditure of $17,000.

50. Mr. John Darren Vause was the only witness called for the defendant. He was a journalist working with the defendant at the time of the broadcast. It was not suggested that he had anything to do with the broadcast itself. He had dealings with Mr. Greenland, the plaintiff's Press Secretary, on several occasions both before and after the broadcast. After the broadcast there was a press release issued by the plaintiff, and then an apology. After the apology Mr. Greenland told him, "We were quite pleased with the apology". He recalled seeing the documents in the form of press releases in evidence as Exhibits 1 and 2 although he did not recall any press release with handwriting on it as Exhibit 1 has. Having carefully observed Mr. Vause whilst giving evidence, I accept his evidence as far as it goes. Despite Mr. Greenland's denial, I accept that he said something to Mr. Vause along the lines of being satisfied with the apology which had been broadcast. As to the press releases, I think the most likely explanation is that Exhibit 1 was a draft prepared prior to the plaintiff receiving legal advice in relation to the press release and Exhibit 2 (identical for practical purposes to the press release in Exhibit N) is the press release which was issued.

Conclusions: Damages for injury to reputation
51. I have no doubt that the plaintiff had a high reputation for honesty, hard work and thrift. At the time of the initial broadcast, at about 6.10 p.m., the plaintiff's reputation in that regard stood to be severely damaged. However, there was a substantial, although not complete, correction some twenty minutes later when, at the end of the same program, the defendant made it publicly known that it had made an error in the amount said to have been spent on travel. The statement that the correct amount was $5,000 was close enough to be, for practical purposes, a complete and adequate correction on the matter of the amount spent. On the other hand, the correction was inaccurate insofar as it referred to the sum expended as being expended by the Education Minister's Department. A complete correction would have referred at least to the plaintiff and his personal staff. Nevertheless, I am of the view that the ordinary viewer who saw the correction would have taken the attitude that there was a substantial withdrawal of the suggestion by the defendant that the use of public funds for travel, for which the plaintiff was responsible, had been extravagant or wasteful. But the damaging statement having been made, there was likely to remain in the mind of the ordinary viewer who saw the correction, a suspicion or lurking doubt as to the propriety of the plaintiff's conduct. Furthermore, as has already been indicated, there must have been viewers who saw only the defamatory broadcast and not the correction.

52. Then there is the matter of the apology to be taken into account. It was submitted on behalf of the plaintiff that there was no apology at all, but I do not agree. Of course the apology could have been more fulsome and of course the defendant could have published the apology in the terms demanded by the plaintiff. But the question is what the reaction would have been on the part of the ordinary viewer who saw the defamatory broadcast and one week later saw the apology. I think that in the case of the ordinary viewer who had seen both the defamatory broadcast and the correction, the effect of the apology would have been very substantial. It would have been somewhat less substantial in the case of those viewers who saw the defamatory broadcast and the apology, but not the correction. But in the case of the ordinary viewer who saw all three broadcasts, I think that the effect would have been to eliminate the damage to the reputation of the plaintiff in the mind of that ordinary viewer. Again, it could not be said that there would not be some viewers who, having seen all three broadcasts, would nevertheless come away with the impression that the plaintiff was somehow at fault. That is reflected in the evidence of the various witnesses who gave evidence about what they observed of reactions on the part of various members of the community. However, I think that this evidence has to be assessed realistically. The facetious remarks of the plaintiff's personal secretary, later references by colleagues to "Minister for Travel", and so forth, are as consistent with a desire on the part of the speaker to be jocularly provocative as with a belief in the mind of the speaker that the plaintiff had misspent public moneys on travel. That such remarks may have wounded the plaintiff's feelings is another matter, and one to which I shall return. There is no evidence that the Commonwealth car driver ever saw the program in question. If he did, he got it completely wrong, as the other Minister referred to, Mr. Duby, was not one of "the Libs" at all, but an independent member.

53. Although I do not reject Mr. Whalan as a witness of truth, I found his evidence on contentious matters unpersuasive. Although the evidence was admitted in accordance with Reader's Digest v. Lamb, I think that there are distinctions to be drawn between that case and the present case. In that case evidence was given by Mr. Murdoch, a journalist of considerable experience, that the conduct attributed to the plaintiff by the words complained of amounted to a breach of an ethical code and of standards of ethical behaviour which were recognized by journalists. I am not convinced that it has been established in the present case that members of the Legislative Assembly had a code or any recognized standards of propriety relating to official travel expenses, or that in general terms the ethical standards they expected of each other were higher than the standards expected of them by members of the community generally.

54. I also had difficulty with the evidence of Mrs. Carnell. Whilst I accept that her opinion of the plaintiff was affected, and substantially affected, by seeing the defamatory broadcast, it is strange that she does not remember one way or the other whether she saw the correction or the apology. She was quick to reassess her opinion of the plaintiff to the extent that his reputation, in her eyes, was completely rehabilitated once she got to know him more closely as a fellow Liberal and member of the Legislative Assembly. It is unlikely, therefore, that the correction and the apology would have had no effect upon her had she seen them. My conclusion is that she saw neither the correction nor the apology, and that her evidence does not represent the reaction of those viewers who, having seen the defamatory broadcast, saw the correction which followed closely thereon and who later saw the apology a week later. Once again I bear in mind that there were some viewers of the defamatory broadcast who failed to see the correction or the apology, or both.

55. I am unable to find that the defamatory broadcast had the effect of reducing the plaintiff's standing within the Liberal Party to the extent that he was relegated to a lower position on the voting ticket at pre-selection time some eight months later. Indeed the plaintiff only ever put this as a possibility in any event. The vagaries of political life must encompass such a wide variety of factors that it is impossible to say that, whatever the plaintiff's popularity or unpopularity in the Liberal Party was between 11 October 1990 and July 1991, any decline in popularity had as a substantial contributing cause the defamatory broadcast.

56. However, I accept that once a substantial defamatory statement has been made about a person, it is unlikely that a substantial retraction or apology will completely eradicate the effect on the reputation of that person in the minds of every person in the community. The penetrating, persisting and adhesive qualities of a defamatory statement are referred to in the cases in terms of poison, mud, slime, and the like. Bearing all those factors in mind, I still think that damages for the effect on the plaintiff's reputation must be modest.

57. There is, however, the factor that damages for injury to reputation are not intended to be only compensatory; they must also vindicate the plaintiff. It was said by Lord Hailsham in Broome v. Cassell and Co. Ltd. [1972] UKHL 3; (1972) AC 1027 at 1071 that the sum should be sufficient for the plaintiff to point to it in order to convince a bystander of "the baselessness of the charge". How a court is to go about selecting an amount of money which will satisfy this criterion is a matter of intuition. It is difficult enough to apply the compensatory rule that an award of damages must, as far as money can, put the injured party in the position in which that party would have been but for the wrongdoing of the other. But to put a figure in dollars and cents, which of itself and without more, would convince the hypothetical bystander that a defamatory statement is without foundation, would appear to be impossible, were it not for the fact that the House of Lords said in Broome v. Cassell that that is exactly the effect of what courts have been doing in awarding damages for defamation over centuries. In any event, when there has been a substantial retraction of the libel, by way of correction and apology, the hypothetical bystander may not need much convincing in terms of dollars and cents that the allegations against the plaintiff are untrue.

Damages: Injury to Feelings
58. It is now well recognized that once a plaintiff establishes that he or she is entitled to damages for libel, the damages include not only a sum referable to harm to reputation and vindication, they include also a sum for hurt to feelings. In Broome v. Cassell, Lord Diplock said at 1125:

"The harm caused to the plaintiff by the publication of a libel upon
him often lies more in his own feelings, what he thinks other people
are thinking of him, than in any actual change made manifest in their
attitude towards him."

59. That passage has been quoted on many occasions in many courts, including the judgment of McHugh J in Coyne v. Citizen Finance Limited [1991] HCA 10; (1991) 172 CLR 211. His Honour remarked at 241 that where the plaintiff has been very seriously defamed in relation to professional reputation and the defendant maintains to the end that the defamatory imputations are true, a jury has a great advantage in determining the true motive of the defendant's conduct and the real effect of the libel and the defendant's conduct on the plaintiff.

60. It was submitted on behalf of the plaintiff that the damage to the plaintiff's reputation in this case was enormous and requires a very substantial award, in comparison to which a lesser component is appropriate for the hurt to the plaintiff's feelings. In my assessment, sitting without a jury, but bearing in mind the remarks of McHugh J, I am unable to avoid the conclusion that, at least on the face of it, the damage to the plaintiff's feelings is a far more important factor in this case than the observable damage to his reputation or the need for vindication. I have already summarised the plaintiff's evidence in which he repeatedly referred to the various aspects of what he considered to be a wrong done to him by the defendant and of its effect upon his feelings.

61. Recognition of the right of a plaintiff to damages for injury to feelings caused by a defamatory publication goes back a long way. The earliest authority appears to be Goslin v. Corry (1844) 7 M and G 342 at 346 where reference was made by Erskine J to the "mental suffering arising from the apprehension of the consequences of the publication".

62. Some years later in Lynch v. Knight (1861) 9 HLC 577 at 598, Lord Wensleydale said as follows:

"Mental pain or anxiety the law cannot value, and does not pretend to
redress, when the unlawful act complained of causes that alone; though
where a material damage occurs, and is connected with it, it is
impossible a jury, in estimating it, should altogether overlook the
feelings of the party interested."

63. There are few, if any, reported cases on injury to feelings in a defamation action for the century or so following.

64. In Dingle v. Associated Newspapers Ltd. and Others (1964) AC 371, Lord Radcliffe said at 398:

"..... injured feelings, it must be remembered, are as much a
matter of consideration in assessing damages for defamation as
injured reputation."

65. In Kelly v. Sherlock (1866) LR 1 QB 686 the plaintiff had obtained from a jury a verdict of a farthing damages for a publication which was hardly more than gross abuse and which was not shown to have affected his reputation. In an application for a new trial on the ground of inadequacy of damages, Blackburn J said at 698:

"But the question was not what fine ought to be imposed on the
defendant, but what compensation ought the plaintiff to have for his
injured feelings, for it is to be observed that there was no actual
pecuniary damage; and that no one, who in these unhappy controversies
was not already prejudiced against the plaintiff, would think worse of
him in consequence of the vulgar abuse of the defendant."

66. In Wheeler v. Somerfield and Others (1966) 2 QB 94, Lord Denning MR dealt briefly with a claim by the plaintiff that the libel had an effect on his health (mainly the aggravation of cataracts in his eyes). Lord Denning said that he had never heard of a case where a man had been allowed to claim damages in a libel action for injury to health, and although the possibility of such an action could not be excluded, the case before the court would not be the first.

67. However, in an appeal by a defendant against excessive damages the following year, in Fielding and Another v. Variety Incorporated (1967) 2 QB 841, Lord Denning MR at 851 said that the injury to the plaintiff had been aggravated by the conduct of the defendant, his feelings had been "grievously wounded without any justification", and that for all this the plaintiff was entitled to damages. Harman LJ agreed with Lord Denning. Salmon LJ, after remarking that the plaintiff had suffered no pecuniary damage, said that the plaintiff was nevertheless entitled to be compensated for the anxiety and annoyance which he very naturally felt at the time. With respect, it is difficult to see in the judgment in Fielding a recognition of the distinction between, on the one hand, the component of injury to feelings which is part of the award of ordinary general damages for the libel, and, on the other hand, aggravated damages which are awarded as a result of unmeritorious conduct on the part of the defendant. It may be that such a distinction is no longer recognized to be of practical significance in England. In Broome v. Cassell, Lord Hailsham at 1071 referred to the matters that may be taken into account in assessing damages for defamation as follows:

"..... factors for injury to the feelings, the anxiety and
uncertainty undergone in the litigation, the absence of apology,
or the reaffirmation of the truth of the matters complained of,
or the malice of the defendant."

68. In Australia, however, it appears that injury to feelings is a substantial component in ordinary general damages and is to be distinguished from an award of aggravated damages which is over and above ordinary general damages.

69. In Baltic Shipping Co v. Dillon (1993) 111 ALR 289 at 300, Mason CJ said:

"..... in some circumstances at least, a plaintiff can recover damages
for injury to his or her feelings caused by tortious conduct; assault,
false imprisonment, malicious prosecution and defamation are causes of
action in which a plaintiff may recover damages on that score. This
is not surprising. As Lord Cranworth V-C observed in Kemp v. Sober
(1851) 1 Sim (NS) 517 at 520; 61 ER 200 at 201, "the feeling of
anxiety is damage". No doubt his Lordship, by that statement,
intended to convey that damages could be recovered by a plaintiff for
anxiety, disappointment or distress when those feelings were the
consequence of conduct for which damages are recoverable and the
damages recoverable for that actionable wrong include compensation for
injured feelings of that kind."

70. In Smith v. John Fairfax and Sons Ltd. (1986-7) 86 FLR 343 at 374, I expressed the view that, on the matter of damage to the plaintiff's feelings, there is no reason why the ordinary tortious principle, that the defendant must take the plaintiff as the defendant finds the plaintiff, should not apply in the field of defamation as it applies in other fields of tort law. That remark was not the subject of correction or comment by the Federal Court when the case went on appeal and I think that it should be applied. From my observation of the plaintiff in this case and from a consideration of the evidence, I formed the view that he is a person of sensitivity, with a particular consciousness of his own sense of morality, so that he was likely to be particularly hurt if he thought that his own propriety was questioned or under attack. Hence I have no difficulty at all in accepting his account of his own hurt and outrage when he saw the tape of the original defamatory broadcast. I find it somewhat difficult, however, to appreciate his attitude to the correction and the apology. I do not doubt his genuineness in rejecting the correction and the apology. Indeed, I do not doubt that the very lack of completeness as he saw it in both the correction and the apology was something which caused him subjective hurt. I take a similar approach to the evidence of the effect of the conduct of the litigation, the occasions on which he read correspondence and considered answers to interrogatories, on which occasions, as he said, the hurt was revived or increased, and similar occasions. But despite his genuineness, I do not think that the effect on the plaintiff on those occasions calls for substantial damages.

71. The cases say that hurt to the plaintiff's feelings is something that a jury should not overlook, but they do not say that substantial damages must be awarded in every case upon the plaintiff's say so. It is, I think, much in the nature of a discretion and if the defendant has taken prompt and effective steps to reduce the harm to reputation by publishing a retraction, then I think that the tribunal of fact is quite entitled to consider that the award for hurt to feelings should be modest. That is the attitude I take in the present case.

72. Similarly, with regard to the claim for aggravated damages, there must be something in the conduct of the defendant which is unjustifiable, improper or lacking in good faith to increase the damages beyond what is necessary to compensate the plaintiff and vindicate his reputation.

73. A number of matters were relied upon by Mr. Neil, QC on behalf of the plaintiff in order to support the claim for aggravated damages. They included:

. Pleading qualified privilege and then abandoning that defence at the
trial.
. Asserting that the plaintiff was unlikely to suffer harm.
. Failing to inquire from the plaintiff the truth of the allegation
before publishing it.
. Asserting in answer to interrogatories that the defendant intended to
convey the defamatory meanings alleged by the plaintiff.
. Failing to publish a complete apology or complete correction.
. Suggesting in cross-examination that the plaintiff was exaggerating or
fabricating the hurt to his feelings.

74. I have already dealt with some of these matters in relation to the claim for hurt to feelings. However, I do not think that any of them, individually or in conjunction with any others, or the lot taken collectively, entitle the plaintiff to aggravated damages. It is true that the defendant gives no explanation as to how the error arose whereby the plaintiff was reported to have spent $17,000 on travel for himself and his staff. Although absence of explanation may allow an adverse inference to be more easily drawn against the party failing to give the explanation, the inference does not have to be drawn and the surrounding circumstances may suggest that it should not be drawn. In the present case the defendant published the correction as soon as could reasonably be expected after being informed by Mr. Greenland that the true figure was $5,000. The correction was not complete, however, in that it attributed the expenditure to the Education Minister's Department and not to the Minister and his staff. However, I am unable on the evidence to conclude that the correction was published otherwise than in good faith. The reference to the Education Minister's Department was certainly not made maliciously or recklessly. Whether it was negligent or not, is unnecessary to decide. I do not consider that the duty to take reasonable care plays any part in the law of defamation. I am not aware of any authority that says it does.

75. For the purpose of aggravated damages, reliance was placed upon the presence of a representative of the defendant at the Estimates Committee on the occasion when the attack on ministerial travel expenses was made by the opposition. The attack was directed at Mr. Duby and Mr. Collaery. There was no reason for confusing the attack on Mr. Collaery with an attack on the plaintiff, if there was such a confusion. Mr. Collaery's travel expenses for the period were about $12,000, and no where near the $17,000 which, according to the defamatory broadcast, had been expended by the plaintiff. According to the transcript of proceedings (Exhibit L) there was no mention there of the amount spent by the plaintiff, although among the papers tabled was a two page statement of the relevant expenditure of the Minister for Health, Education and the Arts, Executive Deputy and Support Staff. However, whatever be the explanation for the error, there is the plain fact of the correction at the end of the program, followed by the apology a week later. On the face of that, I am not convinced that it has been shown that there was malice on the part of the defendant, or even recklessness, with regard to publication.

76. The statement on oath by the defendant's representative that the defendant intended to convey the defamatory meanings is curious, at least on first impression, when considered in the light of the defences filed and maintained at the hearing. However, on one view, it may be seen as frankness on the part of the person answering the interrogatories although conflicting with the attitude taken by the defendant and the defendant's representatives at trial. I am not convinced that it constitutes conduct on the part of the defendant which attracts aggravated damages.

77. There is also the question whether the defendant's conduct at the trial, including the late withdrawal of the defence of qualified privilege and the conduct of its counsel, should be considered to aggravate the damages. The withdrawal of defences can, I think, be adequately covered by a costs order. The conduct of counsel for the defendant did not seem to me to be extraordinary or improper and again I am unable to conclude that counsel was acting on instructions which were motivated by ill-will or other improper motives. The plaintiff's claims were in many ways unusual. The defendant was entitled to test them. Ultimately, whilst the attack on the plaintiff's genuineness failed, the plaintiff's claims were not all entirely successful.

78. For the same reasons for declining to award aggravated damages, I have concluded also that punitive damages are inappropriate in the present case.

79. There was no evidence about the size of the audience that watched the program in question. The plaintiff bears the onus on this issue. I act upon the basis that there were probably some thousands of viewers in the ACT and the surrounding areas of New South Wales. I do not think that the proportion of viewers in New South Wales was more than very small. The New South Wales viewers were not likely to have much interest in ACT politics. The damage to the plaintiff's reputation in New South Wales was extremely small, almost minimal. For the reasons advanced in Woodger v. Federal Capital Press Pty Limited (1992) 107 ACTR 1, the case is essentially a Canberra case and I apply the law of the Australian Capital Territory to the whole of the publication and I award damages for the whole of the publication accordingly.

80. The net result is that the plaintiff will receive a quite modest sum both for damage to reputation and hurt to feelings. I award a round sum of $8,000.00 to cover both heads. There is also a claim for interest. The loss of reputation, such as it was, was virtually minimal after a period of about a year, although the hurt to feelings has continued. In those circumstances and having regard to the relatively small sum awarded by way of total damages, I do not think it appropriate to assess interest on a mathematical formula. I fix a sum of $1,000.00 in lieu of interest. The plaintiff is at liberty to enter judgment for $9,000.00.

81. I will hear the parties on costs.