Edward Cecil Thompson v Australian Capital Television Pty Limited and Publishing and Broadcasting Pty Ltd and Tcn Channel Nine Pty Limited [1997] ACTSC 58; (1997) 129 ACTR 1 (20 August 1997)

SUPREME COURT OF THE ACT

EDWARD CECIL THOMPSON v. AUSTRALIAN CAPITAL TELEVISION PTY LIMITED and PUBLISHING AND BROADCASTING PTY. LTD. and TCN CHANNEL NINE PTY.
LIMITED
No. SC1286 of 1985
Number of pages - 17
Defamation - Damages - Contribution Between Tortfeasors
(1997) 129 ACTR 14

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

MILES CJ

CATCHWORDS

Defamation - damages - release of one joint tortfeasor by payment to plaintiff - effect on damages in action against another joint tortfeasor.

Defamation - damages - mitigation of damages under s.7 of Defamation (Amendment) Act 1909 (ACT).

Defamation - damages - serious libel alleging sexual abuse of stepdaughter - principles to be applied - injury to reputation not to be evaluated like a damaged asset - relevance of social standing - injury to feelings - anxiety produced by litigation.

Damages - comparable awards - applicability in defamation cases - standards laid down by appeal court.

Contribution Between Tortfeasors - damages for defamation - original broadcaster responsible for production of program with fore knowledge of defamatory content - local re-broadcaster lacking in such fore knowledge - apportionment two thirds against former - stay of execution against former for amount already paid to plaintiff in respect of joint libel.

Law Reform (Miscellaneous Provisions) Act 1955 (ACT), sub-ss.11(2) & (4) and s.12

Defamation (Amendment) Act 1909 (ACT), s.7

Thompson v. Australian Capital Television Pty Ltd [1996] HCA 38; (1996) 141 ALR 1 at 3

Thompson v. Australian Capital Television Pty Ltd (1993) 121 FLR 343 at 345-7

Carson v. John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 at 60-61

Rigby v. Associated Newspapers Ltd. (1969) 1 NSWLR 729

ABC v. Comalco Ltd (1986) 12 FCR 510 at 605

Comalco Ltd v. Australian Broadcasting Corporation (1985) 64 ACTR 1 at 88

Smith v. John Fairfax & Sons Ltd (1987) 86 FLR 343 at 368

Fleming, The Law of Torts 8th ed. (1992) at 595

John Fairfax & Sons Ltd v. Smith. (unreported, Full Court of the Federal Court, 18 January 1988)

Humphries v. TWT Limited [1993] FCA 577; (1993) 120 ALR 693

Uren v. John Fairfax & Sons Pty Ltd (1965) 66 SR (NSW) 223

Bryanston Finance Ltd v. de Vries (C.A.) [1975] 1 QB at 703 at 723

Jameson v. Central Electricity Generating Board, Babcock Energy Ltd (third party) (1997) 3 WLR 151

Townsend v. Stone Toms & Partners (No. 2) 27 BLR 26

HEARING

CANBERRA, 16-17 July 1997 (hearing), 20 August 1997 (decision)

20:8:1997

Counsel for the plaintiff: B.J. Salmon QC with C.P. McKeown

Solicitors for the plaintiff: Elrington Boardman Allport

Counsel for the defendant: W.H. Nicholas QC with R.C. Refshauge

Solicitors for the defendant: Deacons Graham & James

Counsel for the thrid parties: B.R. McClintock SC

Solicitors for the third parties: Phillips Fox

ORDER

Orders made.

DECISION

MILES CJ

By order of the High Court this Court has had remitted to it the assessment of damages to be recovered by the plaintiff and the hearing of the related contribution claim by the defendant (Channel 7) against the third party (Channel 9).

Nature of case

The case has a long history which is relevant to the issues still to be decided. The history was summarised in the judgment of Brennan CJ, Dawson and Toohey JJ in Thompson v. Australian Capital Television Pty Ltd [1996] HCA 38; (1996) 141 ALR 1 at 3:

"The first respondent (Channel 7) operated a television station in the Australian Capital Territory. On 21 February 1984, it broadcast a program entitled "The Today Show". The program was produced live by the second-named second respondent (Channel 9) from its studios in Sydney. Pursuant to a licence agreement between Channel 7 and the first-named second respondent (PBL), a related corporation of Channel 9, the program was received by a microwave link at the transmitting site of Channel 7 on Black Mountain in the Australian Capital Territory. From there the program was relayed to the studios of Channel 7 at Watson in the Australian Capital Territory, whence it was broadcast throughout the Australian Capital Territory and to adjoining areas of New South Wales.

The program included a live interview with a young woman identified as "Vicki", during which it was alleged that her father (which was held to be a reference to the appellant, who is in fact her stepfather) had committed incest with her from the time she was seven years old, and had fathered a child to whom she had given birth when she was 14. Nothing has emerged at any stage to suggest that there is any truth in these allegations. The appellant sued Channel 7 in the Supreme Court of the Australian Capital Territory seeking damages for defamation. Channel 7 sought contribution or indemnity from Channel 9 and PBL in third party proceedings.

While the trial judge, Gallop J found that Channel 7 had defamed the appellant, he dismissed the claim against it on the basis that it had made out the defence of innocent dissemination. He also held that the appellant had, in any event, released Channel 7 from liability pursuant to a deed executed between the appellant and Channel 9. Without admission of liability, and for a consideration of $50,000, the deed released Channel 9 from liability in respect of the program. Gallop J took the view that, on its proper construction, the deed released Channel 7 as well.

The appellant appealed to the Full Court of the Federal Court, Thompson v. Australian Capital Television Pty Ltd [1994] FCA 688; (1994) 54 FCR 513; 127 ALR 317. That court differed from Gallop J, holding that the defence of innocent dissemination was not available to Channel 7 and rejecting Gallop J's finding that the deed between the appellant and Channel 9, on its proper construction, released Channel 7. However, the appeal was dismissed because it was held that the deed had the effect of releasing Channel 7 from liability on the basis that Channel 7 and Channel 9 were joint tortfeasors, the release of one being effective to release the other."

The High Court allowed the appeal. All members of the High Court were of the view that Channel 7 and Channel 9 were joint tortfeasors and further, that in accordance with sub-s.11(2) of the Law Reform (Miscellaneous Provisions) Act 1955 (ACT) (the Law Reform Act), the common law rule that a joint tort gives rise to a single indivisible cause of action has been abrogated. Accordingly it was held that the release by the plaintiff of Channel 9 did not release Channel 7 and the plaintiff is free to pursue his claim against Channel 7. Further, the High Court found that, although the defence of innocent dissemination is available in Australia and is available in the case of a television broadcast or rebroadcast, that defence was not made out on the facts of the case where (at 12), citing Burchett, Ryan JJ at FCR 520, ALR 324:

"[Channel 7] took no precautions of any kind, knowing the program was a current affairs program, a program which by its nature would be likely to involve comments about persons."

After remittal to this Court, Gallop J. disqualified himself from further hearing the matter, having already expressed a view about some aspects of the plaintiff's credibility. I declined to allow an application on behalf of the plaintiff that I disqualify myself by reason of being a member of the Federal Court that sat on the appeal from Gallop J's original judgment.

Facts: Publication

Mr. Salmon QC for the plaintiff submitted that I was not bound by the facts as found by Gallop J. However, I consider that I am bound by the facts as they were found and acted upon in the Federal Court and in the High Court, and to which reference has already been made. Nevertheless, and without departing from those facts, I am obliged to make my own assessment of the plaintiff's credibility.

Other facts found by Gallop J. not already referred to and which are relevant for the purposes of the assessment of damages and third party proceedings were as follows (Thompson v. Australian Capital Television Pty Ltd (1993) 121 FLR 343 at 345-7):

"The plaintiff lives in Queanbeyan. He was born on 26 February 1936 in England and came to Australia in 1951. He commenced work as a miner at Captains Flat in 1954 and lived there. He got to know his present wife, who was then married and known as Dawn Weslin. There were two children of that marriage, Roslyn and Tony. She was not living continuously with her husband, the father of the two children. The husband lived with her from time to time but when he was not, he lived with his brother elsewhere in Captains Flat. At some time Dawn Weslin went to live with her father. A third child, Vicki, was born on 12 August 1956. The plaintiff is not the father of Vicki.

The plaintiff and Dawn Weslin commenced living together soon after her husband left Captains Flat to live in Sydney. The plaintiff bought a house in which they lived and in 1959 another daughter, Suzanne, was born.

In 1963 the mine at Captains Flat closed. Still living in Captains Flat, the plaintiff obtained employment in Canberra with a ventilation firm, where he remained for about three years, commuting from Captains Flat and sharing the transportation with others living in Captains Flat. He was a plumber at Campbell High School in the ACT for a while and then he obtained employment at Multibricks in Queanbeyan. In 1964 another son, Donald, was born. The family moved to a house in Queanbeyan and the children, including Vicki, went to local schools. The plaintiff remained in his employment as a leading hand with Multibricks for the next eight years, living and shopping in Queanbeyan in such a way that he got to know people. At no stage did he make it known to anyone that he was not the natural father of Vicki. As parents, he and Vicki's mother attended school functions as Isabella Public School on a number of occasions and also later when Vicki went to Queanbeyan High School.

Multibricks closed down in 1973 and the plaintiff then looked for another job. He obtained a job with the Post Master General's Department, later to become Telecom. The family rented another house in Queanbeyan and later bought a house. After completing a cable jointers course in Sydney the plaintiff was then working for Telecom at the Black Mountain Camp in Canberra. There were about 70 other former mining community people from Captains Flat working for Telecom. The plaintiff knew them all.

While the plaintiff was on the cable jointing course in Sydney there was trouble with police because Vicki had run away from home. The plaintiff returned from Sydney while the police were still looking for Vicki. Eventually she came home and was part of the family from 1974 to 1976, then she left again and was living with her boyfriend's parents. She was nearly 18 years of age and the plaintiff felt that there was not much he could do about getting her back home. She had two children before she moved back home. She stayed for about nine months and then was set up in a home unit. Later she left the Queanbeyan area and went to Sydney, but she would telephone the plaintiff and her mother and it was a good relationship.

In 1979 the Black Mountain Camp closed and the plaintiff was stationed at the Queanbeyan Depot, working in Queanbeyan and in parts of Canberra. In the course of his employment he was acting as foreman and somehow ended up as the union representative. I accept his evidence that he never had any problem handling his men and had a very good relationship with them.

On 21 February 1984 while he was still working with Telecom he received a telephone call from his wife who told him that Vicki had been on television making statements about him and incest. He went straight home. The wife was in tears and very upset. Also the daughter Roslyn, the eldest child, telephoned and said that Vicki had been on television and made statements that she had been molested from seven years of age. The plaintiff did not know what to do about the television program.

When he went back to work at the depot none of his fellow employees would speak to him, so he just kept to himself. About a week later one of them, Harry Campbell, spoke to him. He told Campbell that he was seeking legal advice and that Campbell should not believe everything he saw. Campbell replied, "Well when I first heard it I thought you were a mongrel dog". The plaintiff replied that he could not discuss the matter. Campbell gave evidence substantially to the same effect.

Another person at work asked the plaintiff whether he was still fighting the incest case and the plaintiff replied that he was. In the work place things gradually started to die down, although it took a long time during which the plaintiff kept quiet about it.

His employment then ceased and the plaintiff, together with his daughter Suzanne and her husband and the eldest son, Tony, took a lease of a hotel in Queanbeyan.

The plaintiff and Mrs. Weslin married in 1989, which is five years after the broadcast complained of.

As appears earlier in these reasons, the plaintiff did not see the televised broadcast on 21 August 1984. He saw it subsequently with his solicitor. Asked how he felt, he said he was angry, embarrassed and ashamed. He just could not understand why Vicki would make those statements in public."

I see no need to depart from these findings on the material before me.

There are some other relevant facts. The plaintiff and a witness gave evidence before me which I accept as truthful but not necessarily accurate in all respects, having regard particularly to the long lapse of time since the events.

The plaintiff appears to be a modest and reticent man. He was asked, inter alia, about the events and his understanding concerning the release of Channel 9. He was also asked about other proceedings brought by him against the owner of Channel 10 for a television broadcast of a similar libel on 28 April 1985. Those proceedings were settled by a consent judgment for $42,500 including costs entered in the Supreme Court of New South Wales on or about 27 June 1986.

The plaintiff's memory of details of the various proceedings and the steps taken in those proceedings is not good. I do not think that he fully understood the effect of the advice that he was given from time to time. There was no independent evidence of what that advice was. Insofar as the plaintiff's understanding of the terms and effect of the release are relevant, I accept the plaintiff's evidence where it is sufficiently clear about what he understood that advice to be.

The effect of the previous proceedings against both Channel 9 and Channel 10 and of the consequent receipt of the moneys in accordance with the terms of release and the consent judgment is a matter of some contention in relation to the assessment of damages. However, I think it is preferable to postpone consideration of that issue and first to assess in a provisional way an appropriate award of damages against Channel 7 without regard to the liability of Channel 9 and Channel 10. I shall return to the latter question.

Assessment of Damages

As it was not necessary for Gallop J to proceed to the assessment of damages, it is necessary to make some further factual findings in relation to this aspect.

There can be no doubt that the broadcast is a most serious libel on the reputation of the plaintiff or that the ordinary viewer would have reacted with feelings of deep revulsion and contempt for what had been done to the complainant. Further, there can be no doubt that those viewers who linked the broadcast with the plaintiff would have directed their feelings towards him. The allegations of the complainant were made in a context calculated by the presenter, Sue Calaway, to bring about such a reaction. The complainant was introduced by the presenter who spoke also to another woman, Gillian Calvert, put forward as an expert on issues relating to incest. Ms. Calvert started by saying that incest is much more common than people believe, possibly occurring in one in six families, more prevalent than physical abuse, committed upon young females powerless within the family structure and a massive functional problem in the community about which no one had done much in the past. When asked by the presenter whether it was possible that "kids might make these stories up", Ms. Calvert replied that she suspected that 99 per cent of children who talk about incest are speaking the truth. The presenter then turned her attention to the complainant, asking a series of obviously leading questions, clearly designed to elicit a response which would maximise both the sympathy felt by the viewer for the complainant and the hostility felt towards the perpetrator.

The presenter then returned to Ms. Calvert who said that the lack of intervention in incestual relationships was explicable by threats made by fathers to their children. The presenter sought a response from the complainant, who replied that she had been subjected to threats like "I'll get your younger sister" and "I'll kill you". In response to an invitation from the presenter to state the effect on her of "the years of incest", the complainant told of going into prostitution and heavy drug use. Ms. Calvert then added that drug abuse and prostitution are very common results of incest and that the effect on women can be long-lasting and quite dramatic. She concluded by saying that recovery from the effects of incest is a possibility and she gave information about an organization and a telephone number for people to contact.

The principles relating to the assessment of damages for defamation need to be distinguished from those applicable to damages for personal injuries. Except in rare cases of exemplary or punitive damages, damages for personal injury are entirely compensatory. In contrast, damages for defamation are not entirely compensatory or are compensatory in a different sense. In Carson v. John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 at 60-61 of the majority judgment it was said (citations omitted):

"Specific economic loss and exemplary or punitive damages aside, there are three purposes to be served by damages awarded for defamation. The three purposes no doubt overlap considerably in reality and ensure that `the amount of a verdict is the product of a mixture of inextricable considerations'. The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant's personal and (if relevant) business reputation and vindication of the appellant's reputation. The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant. Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant's reputation. `The gravity of the libel, the social standing of the parties and the availability of alternative remedies' are all relevant to assessing the quantum of damages necessary to vindicate the appellant."

There is no claim for aggravated damages in the present case. However, I know of no authority that aggravated damages have to be pleaded. The Court deals with the material before it. The lack of apology on the part of Channel 7 is relevant because it means that (leaving aside the effect of the release in favour of Channel 9) the injury to the plaintiff's reputation has not been vindicated from the date of publication until this day. Further, there has not been any solace to the plaintiff in respect of the hurt to his feelings, his self-respect and his sense of dignity. Although truth may be relied upon in mitigation of damages in the Australian Capital Territory (and in any jurisdiction where truth and public benefit or public interest together, and not truth alone, provide a defence of publication: Rigby v. Associated Newspapers Ltd. (1969) 1 NSWLR 729) Channel 7 has not raised any issue of truth. Further, by the time of the fourth and final amended defence filed on 16 November 1993, the plaintiff was placed in the position of having to prove identification and defamatory meaning. Other defences had been raised in previous pleadings, for instance pleas of qualified privilege and circumstances not likely to lead to harm. All of those defences were abandoned at or before the trial. Although the defendant is not to be punished for defending the action, the conduct of its defence is relevant to damages for injury to the plaintiff's feelings: Rigby at 732.

Channel 7 also pleaded in mitigation of damages delay by the plaintiff in the conduct and prosecution of this action. However, no evidence was called to support the plea and it was not the subject of address on behalf of Channel 7. The chronology of the proceedings to which I have regard does not convince me that the plaintiff is alone or substantially responsible for the lengthy period taken for the matter to arrive at an assessment of damages. Damages will not be reduced for that delay.

A more substantial matter raised on behalf of both Channel 7 and Channel 9 was the limited extent to which the plaintiff was likely to be identified by the broadcast in question. It was put first that the plaintiff is, in blunt terms, something less than a celebrity. It may well be true, as was submitted, that the typical plaintiff in a defamation action is a well known personality who is able to claim and does claim a reputation enjoyed among a large section of the community, so that when that reputation is harmed, the loss can be seen in those circumstances as a loss more substantial than that of a person virtually unknown among the general public. Jury verdicts as reported in the media may reinforce that perception, in that defamed public figures tend to recover higher damages than persons of little fame and notoriety, but no authority was cited to support any such tendency as a matter of law. It may be that a higher sum is needed to vindicate the reputation of a person who suffers hatred, ridicule and contempt throughout the country and awards of damages against the media in this Court in the past have sometimes been accompanied by figures relating to the numbers of likely viewers or readers. (See ABC v. Comalco Ltd (1986) 12 FCR 510 at 605; Comalco Ltd v. Australian Broadcasting Corporation (1985) 64 ACTR 1 at 88; Smith v. John Fairfax & Sons Ltd (1987) 86 FLR 343 at 368.)

However, as Mr. Nicholas QC for Channel 7 properly conceded, where the rule of law operates as a pillar of democracy, there can be no simple principle that one person's reputation is an asset to be assessed in value and compared with the value of another person's reputation. There is no principle that where reputation is injured, the loss is to be measured like the diminution in value of a damaged asset. As Brennan J., although dissenting, in Carson, said at 70:

"Although damages are awarded to vindicate the plaintiff's reputation, damages are not awarded as compensation for the loss in value of a plaintiff's reputation as though that reputation were itself a tangible asset or a physical attribute which, once damaged, is worth less than it was before: Dingle v. Associated Newspapers Ltd. [1964] A.C 371. In order to achieve the purpose of vindicating reputation, damages for defamation are quantified by reference, inter alia, to what is needed to achieve that purpose: those damages are not quantified by reference to a depreciation in the value of a plaintiff's reputation.

I think, with respect, that by the reference to "social standing" in the majority judgment in Carson at 61 (a quotation from Fleming, The Law of Torts 8th ed. (1992) at 595), their Honours were not suggesting that position in a social hierarchy, assuming that such could be established in any sensible way, is relevant to damages for reputation. What is relevant is the extent and nature of the social environment in which a plaintiff lives, works and moves, not forgetting that even a hermit may be widely known and respected.

The plaintiff was a person who over 48 years of life had established what would be regarded as a position of at least moderate trust and respect in his family, amongst his workmates and in the general community. He was entitled to have and had achieved a decent measure of self esteem. He had been a hard-working man. He had responded positively to the closing down of the mine at Captains Flat and followed a new career path, first in Canberra and then in Queanbeyan. By the time of the defamation he had achieved a reasonably responsible position in the Postmaster General's Department (the relevant section of which later became Telecom Australia and then Telstra) well known as perhaps the biggest employer in Australia with a mobile workforce and workplace environment in which the plaintiff was likely to have become widely known over his years of service. Having worked in Captains Flat then Canberra and then Queanbeyan, and in each for a substantial period of time, (whilst living mostly in Queanbeyan) he was likely to be known by a relatively large circle of acquaintances in the area. The complainant had spent her school years in the local area. The Court is sufficiently familiar with the geographical and social aspects of Canberra, Queanbeyan and to some extent Captains Flat for the conclusion to be drawn that word travels fast in the local communities. The contents of the Channel 7 broadcast were likely to have come to the notice of nearly everybody in the Captains Flat area, and of numerous people in the Queanbeyan area and the Australian Capital Territory. Although the number who actually saw the broadcast and both recognized the complainant and drew the connection between her and the plaintiff, was likely to be a small proportion of the total viewing audience, once the allegations were public, they were likely to have spread quietly but quickly among a high proportion of people who knew the plaintiff.

Figures supplied by Channel 7 following interrogatories administered by the plaintiff showed that in the viewing area 97 percent of homes had television sets. The number of residents in the ACT was some 225,000, in Queanbeyan 20,000, and in the Cooma/Monaro district (including Captains Flat) 10,000.

I bear in mind the persuasive power of television as an instrument of the media. The apparent plausibility of the complainant and her allegations as broadcast, the loaded nature of the questions asked by the presenter, and the strength lent to those allegations by the comments of Ms. Calvert would be unlikely to cause the ordinary viewer to pause and reflect whether there was any truth in the allegations. The assertion by the complainant that she had a child at the age of 14 would strike the ordinary viewer who did pause for a moment's reflection as one which would not be made unless true, since it could be easily checked. That in turn was likely to lend credence to the other allegations made by the complainant.

To these allegations the plaintiff was, as he said in his evidence, in a very difficult position for the purpose of response. His wife rang the Channel 7 offices in Sydney immediately after the broadcast to ask for an explanation and was given a telephone number said to be that of the responsible person. However, despite repeated attempts throughout the day, Mrs. Thompson was unable to make contact with that person. The plaintiff told at least two close friends of the falseness of the allegations. One said that he did not believe "all of it". The other, I presume, believed him and passed the word on. Over the years others may have heard of his denials and of the previous litigation and may have suspended any belief or disbelief. As late as 1993 the plaintiff's wife was reminded by an old acquaintance of "Ted's fault" in relation to Vicki. A day later the acquaintance, after being spoken to by the plaintiff's solicitor, came and apologised. It is probable that there are still many who harbour at least a suspicion that the complainant was one of the 99 per cent of those who tell the truth about incest and that the plaintiff accordingly was a perpetrator.

The case is clearly one of a serious defamation likely to have caused great damage to the reputation of the plaintiff in the local community, particularly in Queanbeyan and Captains Flat, as well as substantial hurt to his feelings. On the face of it, the case calls for substantial damages. Reference to comparable verdicts is not likely to be of great assistance because cases of defamation vary so much according to the circumstances and comparable circumstances are much less likely to be found than in cases say of damages for personal injuries. Nevertheless, some consistency of the level of damages awarded by the Court is desirable. The High Court in Carson referred with approval to the practice, in certain cases, of a court reminding itself of the level of damages awarded in other cases.

It is recognized that one function of a court of appeal when hearing appeals on quantum of damages is to bear in mind the desirability of a consistent approach to the calculation of damages. For this Court, the court of appeal is the Full Court of the Federal Court of Australia. Two decisions of that Court are in point. In John Fairfax & Sons Ltd v. Smith. (unreported, Full Court of the Federal Court, 18 January 1988) the plaintiff was a nationally known figure (the Official Secretary to the Governor-General). The libel appeared in a nationally published newspaper. The libel was that the plaintiff had used his position to hasten the passage of legislation with indifference to those who were adversely affected by it. The libel also involved moderate to substantial injury to feelings. The Federal Court (at 24) expressed the view that the award of $46,250 was moderate.

In Humphries v. TWT Limited [1993] FCA 577; (1993) 120 ALR 693 the plaintiff (the Australian Capital Territory Minister for Health) was very well known locally and also known to some extent nationally. The defamatory matter, published in an early evening television news broadcast, was to the effect that the plaintiff was reckless in expenditure for official travel. The potential defamatory impact was moderate to substantial, but was partially corrected at the end of the news program and was the subject of a full apology a week later. The injury to the plaintiff's feelings was considerable. The Federal Court increased the award of damages to $25,000. The Court allowed a component in the damages awarded to compensate the plaintiff for the uncertainty and anxiety produced by the litigation. Such a component must be substantial in the present proceedings.

On any approach, the present case calls on the face of it for an award many times that in each of the cases just mentioned.

Previous proceedings, mitigation of damages

However, there is the matter of the previous proceedings and the amounts received thereunder by the plaintiff. The receipt of these moneys appears to raise two separate issues, first the effect of prior payment by a joint tortfeasor and, second, the general issue of mitigation of damages which is provided for under s.7 of the Defamation (Amendment) Act 1909 (ACT) (the Defamation (Amendment) Act) as follows:

"Compensation in other actions provable in mitigation

7. At the trial of an action for a libel, the defendant may give in evidence, in mitigation of damages, that the plaintiff has already recovered, or has brought actions for damages, or has received or agreed to receive compensation in respect of a libel or libels to the same purport or effect as the libel for which such action has been brought."

In this regard Mr. Nicholas QC submits, and is supported by Mr. McClintock SC for Channel 9, that the total sum of $92,500 received by the plaintiff ($50,000 pursuant to the release of Channel 9, and $42,500 pursuant to the consent judgment against Channel 10) should, in effect, be credited in favour of Channel 7. Mr. Nicholas further submits that that total is a sufficient award to the plaintiff in the present proceedings.

By way of initial response to the general submission I have no hesitation in saying that on the face of it, the plaintiff's damages call for an award in excess of that total sum.

However, Mr. Salmon submits that before s.7 is applied, the separate issue relating to the payment pursuant to the release needs to be decided. It is submitted, as I understand it, that the direct broadcast by Channel 9 into the metropolitan area of Sydney (and presumably some other areas of New South Wales) together with the simultaneous relay by Channel 9 to Black Mountain, followed by the almost simultaneous broadcast by Channel 7 into the local area, involved Channel 9 in the commission of a tort quite separate and independent of that committed by Channel 7, and that the release of Channel 9 operates only in respect of the former tort. In other words, it is submitted that, if the Deed of Release is construed correctly, the amount paid pursuant to the deed is not paid in respect of the joint tort at all, but only in respect of a separate tort which did not include the broadcast into the Australian Capital Territory and adjacent areas.

I reject that submission.

The relevant provisions of the deed and of their effect may be taken from the judgment of Gummow J. At 141 ALR at 18:

"The Deed of Release was expressed to be a deed and to be executed as such. The appellant signed the instrument in New South Wales. It recited that an action had been commenced in the Supreme Court of New South Wales by the appellant against Channel 9 claiming damages for defamation arising out of publication on 21 February 1984 in the television programme `The Today Show' of certain words and images. In cl 1, the Deed of Release then provided that, without admission of liability and in consideration of Channel 9 paying to the appellant $50,000, the appellant:

`[f]orever releases and discharges [Channel 9] and its servants agents and related companies their servants and agents from all actions suits causes of action claims and demands whatsoever which [the appellant] now has or at any time hereafter may have or but for the execution of this Deed could would or might have had against [Channel 9] or any of its servants agents or related companies their servants and agents arising out of or in respect of the publication of the said matter the subject of the said action.'"

I think that it is plain enough from the terms of the deed that it releases Channel 9 from all liability at the suit of the plaintiff for the publication of the matter complained of, wherever that publication might have occurred. Paras 2 and 3 of the deed are explicit that the release is not restricted to the liability for publication specified in the statement of claim in the proceedings in the New South Wales Supreme Court. Nor is the release restricted to liability for publication within New South Wales, nor to liability for publication which occurred by means of direct broadcast rather than by re-broadcast. The deed is not to be construed to exclude release from liability for publication carried out jointly by Channel 9 and some other party. To construe the deed in such a way would be to overlook not only its precise terms but also the reality that in the process of publication of a libel, many persons may be jointly responsible, for instance, in the case of a newspaper article, the journalist, the printer, the newspaper publisher, the newsagent, any one or more of whom may be sued separately. Furthermore, it is difficult to see why the construction contended for would not have been the subject of argument and a ruling in the preceding stages of this litigation. If the point had been taken, the parties might have had the benefit of a decision of the High Court on that very point.

It was also put on behalf of the plaintiff that he at all times intended that the release would not affect his right to sue in the ACT for the tort committed by Channel 7. He said in his evidence, and I accept for what it is worth, that he came to this understanding as a result of legal advice, and that the action against Channel 9 was expected to generate funds in order to "fight the big one in Canberra". However, I do not consider that this evidence was admissible for the purpose of construing the deed. The deed, by the very nature of its provisions, is likely to contain the whole of the relevant agreement of the parties to it and the parol evidence rule prevents evidence being given to contradict or vary the meaning of the terms set out in it.

Hence I conclude that the consideration for the release of Channel 9 from all liability for publication of the matter complained of, wherever such publication may have occurred was the sum of money to be paid in respect of an area of publication which included the area of publication relied on in the present proceedings, and extended to the area of publication outside that relied on in the present proceedings. But upon the evidence, although the number of viewers who saw the program broadcast by Channel 7 was spread over a wide area, the number of such viewers outside the ACT and surrounding areas of New South Wales who knew both the complainant and the plaintiff sufficiently well to identify the plaintiff as the alleged perpetrator must have been comparatively small. There was evidence that one person had contacted the plaintiff from Sydney to inform him of having seen the program.

On these findings I turn to the question of mitigation of damages under s.7 of the Defamation (Amendment) Act as it may be relevant to the prior receipt of damages by the plaintiff from Channel 9. As far as I am aware, this is the first time that this Court has had to consider the effect of those provisions. They are similar, if not identical, to s.48 of the New South Wales legislation which has been considered in the context of trial by jury in Uren v. John Fairfax & Sons Pty Ltd (1965) 66 SR (NSW) 223. All that can be gleaned, with respect, is that the section is to be applied in a broad way with the object of preventing a plaintiff from receiving double compensation and whilst requiring the defendant to answer fully in damages to the extent that its publication has brought about damage to reputation, to restrict those damages to the injury caused by the publication by the defendant sued upon by the plaintiff.

During the course of oral submissions I was not referred to any authority about the extent to which a joint tortfeasor sued by a plaintiff subsequently to obtaining judgment against or arriving at a settlement with another joint tortfeasor is bound by the sum recovered in respect of the judgment or settlement. In Thompson at [1996] HCA 38; 141 ALR 1 at 31-2, Gummow J. observed that in some jurisdictions statutory provision is made for the adjustment of rights of contribution consequent upon the effective release of one of several joint tortfeasors, and that the provisions as to contribution made in the Law Reform Act in the ACT follow those as originally enacted in 1935 by the United Kingdom Act. His Honour continued at 32:

"Authority indicates that the phrase in s.11(4) `any other tort-feasor ... liable' includes a party whose liability has been ascertained upon a settlement whether or not reflected in a consent judgment, and that this is so whether or not in reaching the settlement the party now seeking contribution admitted liability. Nevertheless, the party seeking contribution after such a settlement must be prepared in that proceeding to establish that, if the claim had been fought out, that party would have been held responsible in law and liable to pay in whole or in part for the damage referred to in s.11(4)."

These remarks are not directed to a subsequent action by the plaintiff against a joint tortfeasor but in general it seems to me that similar principles apply in such subsequent action. Gummow J also drew attention to the distinction between extinction of a right of action by release and extinction by accord and satisfaction, and pointed out that the nature of a release is such that the consideration received by the releaser does not necessarily represent the value of the right extinguished, and that, "in modern times, the rationale for the discharge of the remaining joint tortfeasors by the release of one of them should be as supplied not by satisfaction, but solely on the ground ... that the one and indivisible cause of action having been released, all persons otherwise liable are released."

These remarks are consistent with the decision of the English Court of Appeal in Bryanston Finance Ltd v. de Vries (C.A.) [1975] 1 QB at 703 in which Lord Denning MR said at p.723:

"In the present case, the question that arises is this: suppose that the plaintiff settles with one of the wrongdoers before judgment by accepting a sum in settlement: or suppose that by consent an order is made by which the plaintiff accepts an agreed sum from the one tortfeasor and discontinues against him, but goes on against the other. I believe this to be a new point. It should be solved in the same way as the payment into court was solved. If the plaintiff gets judgment against the remaining tortfeasor for a sum which is more than the sum already recovered (by the settlement or the consent order), he is entitled to enforce it for the excess over which he has already recovered. But, if he gets judgment for less than he has already recovered, then he recovers nothing against the remaining tortfeasor and should pay the costs. ..... The right solution nowadays is for any sum paid by the one wrongdoer under the settlement to be taken into account when assessing damages against the other wrongdoer. If the plaintiff recovers more, he gets the extra. If he recovers less, he loses and has to pay the costs. And as between the joint wrongdoers themselves, there can be contribution according to what is just and equitable: see section 6(1)(c) and (2) of the Act of 1935."

I conclude therefore that in no way does the assessment of damages against Channel 7 start with a presumption that the amount received by the plaintiff for the release of Channel 9 represents the quantum of the plaintiff's damages.

I am unable to see why the proceedings against Channel 10 for the defamatory broadcast on 13 August 1985 and the subject of a consent judgment need to be taken into account at all. It was not the case of a re-publication by Channel 10 of the matter complained of and broadcast on 21 February 1984. I have read a transcript of the broadcast by Channel 10 and it is not necessary to set it out in these reasons. The Channel 10 broadcast was a completely independent interview by another presenter with the same complainant and a second complainant. It is true that the allegations of incest made by the complainant against the plaintiff are similar, it may also be true that had the action against Channel 10 gone to trial, the defendant could have relied in mitigation on a reputation already damaged by Channel 7, but the converse cannot be the case. Having regard to the lapse of time between the Channel 7 broadcast and the Channel 10 broadcast, the differences in the identity of the personnel involved in the broadcast and the lack of evidence to show overlapping of harm to reputation or damage to feelings, or both, I do not consider Channel 10 to be a concurrent, several, or joint tortfeasor, let alone a joint tortfeasor with Channel 7. Nor do I think that, for the purposes of s.7 of the Defamation (Amendment) Act, the amount received by the plaintiff from Channel 10 is compensation in respect of a libel to the same purport or effect as the libel published by Channel 7. In other words, I do not think that the amount received from Channel 10 is to be taken into account either as prior payment in satisfaction by a concurrent tortfeasor or in mitigation of damages under the Defamation (Amendment) Act.

A particular and distinct difficulty in the present case is that the $50,000 received by the plaintiff from Channel 9 was for any cause of action which arose from publication of the matter complained of, no matter where it occurred. In contrast, so it was submitted, the area of publication now relied on against Channel 7 does not extend beyond the Australian Capital Territory and nearby parts of New South Wales. Thus, so it was submitted, the damages recovered by the plaintiff pursuant to the release are only partially referable to the damages arising from the publication on the part of Channel 7 and recoverable in the present proceedings.

Mr. Salmon further relied upon the fact that the $50,000 payable to the plaintiff pursuant to the release included his costs in the New South Wales proceedings brought against Channel 10. Thus, so it was submitted, what is relevant to the mitigation of damages is the sum received by the plaintiff after his own legal costs and disbursements were deducted. Those costs and disbursements were $19,358.97. The net sum received was $30,641.03.

It was submitted against the plaintiff that the costs and disbursements were, on the face of it, assessed on an indemnity basis. I do not understand this to be the case. The costs and disbursements paid by the plaintiff to his solicitor are, in the absence of any evidence to the contrary, to be taken to be assessed on a solicitor and client basis. This results in a figure less than one calculated on an indemnity basis. Indemnity costs are costs awarded against a party only for special reason, usually for some degree of fault or misconduct.

In the end, I do not think that there is any practical difference in the result between taking the prior receipt of damages from Channel 9 into account as payment by a joint tortfeasor on the one hand, or in mitigation under s.7 of the Defamation (Amendment) Act on the other. The result in either case, in my assessment, is that the defendant is entitled to have taken into consideration that part of the $50,000 previously received by the plaintiff which represents damages for publication in the Australian Capital Territory and surrounding area of New South Wales but excluding that part of the $50,000 which represents the solicitor and client costs of suing in the New South Wales proceedings in respect of those damages. I assess that figure at $40,000,

Otherwise, without making any allowance for that figure of $40,000, I assess the plaintiff's damages at $120,000. I propose to give leave to the plaintiff to enter judgment against the defendant Channel 7 for $120,000 but to order a permanent stay of execution as to $40,000 of that sum. The $40,000 will be taken into account further in relation to interest: see below.

Third party proceedings

I turn now to the third party claim which is made pursuant to sub-s.11(4) and s.12 of the Law Reform Act, which provide as follows:

"11.(4) A tort-feasor liable in respect of the damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, but no person is entitled to recover contribution under this section from a person entitled to be indemnified by him or her in respect of the liability in respect of which the contribution is sought.

12. In proceedings for contribution under section 11 the amount of the contribution recoverable from a person is such as is found by the court to be just and equitable, having regard to the extent of that person's responsibility for the damage, and the court has power to exempt a person from liability to make contribution, or to direct that the contribution to be recovered from a person shall amount to a complete indemnity."

In considering what is just and equitable the Court should take into consideration the degree to which both Channel 7 and Channel 9 each contributed to or caused the plaintiff's damage and the degree of culpability involved in the conduct of each. In the present case it is also necessary to take into account the payment of $40,000 included in the amount paid by Channel 9 pursuant to the release and which may be taken to be referable to the joint tort.

In relation to the facts upon which these decisions are to be made, I act upon the findings already made and upon which the High Court proceeded namely at 11:

"The situation in the present case is that the broadcast of 'The Today Show' was live to air from the studios of Channel 9 in Sydney. It was received by a microwave link at Channel 7's transmitting site on Black Mountain in the Australian Capital Territory and relayed from there by a further microwave link to the studios of Channel 7 in the Australian Capital Territory. From those studios it was broadcast to viewers in the Australian Capital Territory and nearby parts of New South Wales. It is true that Channel 7 did not participate in the production of the original material constituting the program. But Channel 7 had the ability to control and supervise the material it televised. Channel 7's answer is that time did not permit monitoring the content of the programme between its receipt at Black Mountain and its telecast from the studios in the Australian Capital Territory. That may well be so but it by no means follows that Channel 7 was merely a conduit for the programme and hence a subordinate disseminator. It was channel 7's decision that the telecast should be near instantaneous, a decision which was understandable given the nature and title of the programme but which was still its decision.

Without, at this point, trespassing into the second question, namely, whether the defence of innocent dissemination was made out, the nature of a live to air current affairs programme carries a high risk of defamatory statements being made. In those circumstances it would be curious if Channel 7 could claim to be a subordinate disseminator because it adopted the immediacy of the programme. It did that for its own purposes, that is, to telecast to viewers in the Australian Capital Territory and adjoining areas. The agreement it made with PBL did not, as we have already observed, oblige Channel 7 to broadcast the programme. Pursuant to the agreement Channel 7 acquired a licence 'to broadcast by television transmission only' episodes of a current affairs programme, 'The Today Show'. It broadcast for its own purposes, not as agent for PBL or Channel 9, and it 'authorised' the broadcast in any meaningful sense that term has."

I also act upon the following findings in the joint judgment of Burchett and Ryan JJ in the Federal Court judgment, 54 FCR at 520:

"The defendant did not prove that exercise of due care which it was required to show. Indeed, it proved that the contract under which it received the programme for telecasting contained no term whatever requiring due care to be exercised, either generally, or with particular regard to the risk of defaming someone in the viewing area. The reality is that those who produced the programme were aware in advance of the nature of what would be said on it; and if Channel 7 was content to accept the producer as its agent in respect of the consideration of the propriety of televising the material, and the producer took no care, we do not see why Channel 7 should escape the consequences of the producer's knowledge. At any rate, it took no precautions of any kind, knowing the programme was a current affairs programme, a programme which by its nature would be likely to involve comments about persons.

It was said that there was no opportunity to monitor the content of the programme between its receipt at the Black Mountain receiver and the telecasting of it by Channel 7. If that were inevitably so, it would underline the need to require precautions to be taken in connection with the making of the programme. But nothing at all was proved to show that there was anything inevitable about it. The proof offered went no further than that things were done in that way. Whether it was feasible to monitor the programme for possibly defamatory statements was simply not explored in evidence."

These remarks in the Federal Court appear to me to be consistent with those in the High Court.

These findings as expressed in the Federal Court judgment clearly go to show both causation and culpability on the part of Channel 7. As I understand it, the Federal Court was not concerned with the aspects of the case as they relate to Channel 9. It is therefore necessary for me to make findings for myself in relation to Channel 9 and then weigh up the facts in relation to both parties. On the question of causation, it is difficult to state anything but the obvious. Channel 9 conceived the program, conducted it and relayed it in a way which made it available for viewing in the local area only if received and relayed by Channel 7. Channel 7 received and broadcast the program direct to viewers. I am unable to distinguish in any sensible way the extent of causation on the part of one channel as contrasted with the other. On the question of culpability, however, the scales should, in my opinion, go down heavily against Channel 9. I refer to the summary of the content of the broadcast earlier in these reasons. It surely indicates that there was clear foreknowledge on the part of the presenter of what the complainant was about to say. Perhaps more importantly the presenter framed her questions in such a way as to make sure the complainant said what was expected. The presence of Ms. Calvert and the questions addressed to her by the presenter went to reinforce the deadly message. There was no attempt to shield the complainant's face or appearance and thereby retain her anonymity and that of the plaintiff. She was there for all who could to see and identify and, for those who could go further, to make the connection with the plaintiff. There was no evidence that Channel 9 took any steps to check her story, not even her claim that she had a child at the age of 14. I draw the inference that Channel 9 failed to make any check. A naive acceptance of the assertion by Ms. Calvert that victims of incest remain silent as a result of threats from perpetrators and that, when complaints are made, 99 per cent of them are true, may account for the appalling failure on the part of Channel 9 to make some attempt to check the truth of the complainant's story. I would apportion the plaintiff's damages as to two-thirds against Channel 9 and one-third against Channel 7.

Before there is an adjustment of figures, however, there is a further question to be decided, namely the matter of interest. Counsel for the parties have indicated that they will make written submissions once my findings are published. At this stage I should indicate my preliminary view which rejects the submission of Mr. McClintock that I should, before fixing the damages, try to assess the present value of the amount received by the plaintiff for the release of Channel 9, or to calculate a figure applying a rate of interest to that sum, or both. I think that the appropriate course in this regard is to take into account in favour of Channel 7 the prior receipt by the plaintiff of the $40,000 which I have found to have been received from Channel 9 in respect of the matter now sued upon, and, for the purpose of calculating any interest which may be payable by the defendant, to take as the principal the remaining $80,000. I leave it to the parties to deal further with these matters in their written submissions and, if necessary, I will hear further argument.

Otherwise, I should indicate that I propose to make orders to the following effect:

In the action by the plaintiff:

1. Judgment for the plaintiff against the defendant in the sum of $120,000 (together with interest on $80,000 still to be calculated). 2. Execution on the judgment permanently stayed on $40,000 of the said sum. 3. The defendant to pay the plaintiff's costs.

In the third party proceedings:

1. The defendant to have judgment against the third parties for $40,000 (that is $80,000 less $40,000 already paid) (together with interest still to be calculated). 2. The third parties to pay the defendant's costs of third party proceedings.

I also note that there are two third parties, whom up until now I have simply called Channel 9. The final forms of the orders should allow for this aspect.

I will stand the case over for written submissions on interest and (if the parties wish) costs and then, if necessary, fix a date for hearing any matter still in dispute.

Postscript

I note that since arriving at my decision based on the foregoing reasons, counsel for Channel 9 and for the plaintiff quite properly wrote to my associate (after notice to counsel for Channel 7) in order to draw my attention to the recent decision of the English Court of Appeal in Jameson v. Central Electricity Generating Board, Babcock Energy Ltd (third party) (1997) 3 WLR 151. That was a case on which shortly before his death from malignant mesothelioma a worker agreed to accept 80,000 from his former employer in full and final settlement and satisfaction of any claim against the employer for recklessly exposing him to asbestos dust at various premises at which he had been employed. These premises included the premises of the defendant. After his death his widow sued the defendant for loss of dependency based on similar allegations of negligence as those formerly brought against the employer. In interlocutory proceedings it was held that the settlement of the action against the employer released the defendant only if and to the extent that the settlement amounted in fact to satisfaction of the full value of the plaintiff's claim. The words of the agreement expressing it to be in full and final settlement between the plaintiff and one tortfeasor were not to be regarded as providing full satisfaction of any claim that the plaintiff had against a concurrent tortfeasor not a party to the agreement. I think that it is sufficient for me to say that there is nothing in my foregoing reasons which is in conflict with what the Court of Appeal had to say in Jameson which was, in contrast to Bryanston Finance, a case not of joint tortfeasors but of several (or partly joint and partly several) tortfeasors and one in which the specific defence of satisfaction, in contrast with accord and satisfaction, was raised. In relation to the defence of satisfaction Auld LJ (with whom the other members of the Court of Appeal agreed) said at 165 (omitting authorities and citation):

"The court may give effect to the defence of satisfaction in different ways: (1) where the plaintiff has obtained full recovery, by declining to give him judgment because he can no longer prove an essential part of the cause of action, an entitlement to damages; or (2) where there has only been partial recovery, by confining any subsequent judgment to the unrecovered amount of the plaintiff's loss from the overlapping claims; or (3) where there has been full or partial recovery, by giving judgment for an amount but denying him his right to execution of it or confining execution to the unrecovered amount."

In reference to Bryanston Finance, Auld LJ said at 166 that the conclusion on the main issue that a claimant should not recover more than his true damage is as applicable to concurrent tortfeasors as it is to joint tortfeasors, and as to judgments as it is to settlements whatever form the latter take. Auld LJ also referred to Townsend v. Stone Toms & Partners (No. 2) 27 BLR 26 in which Oliver LJ said at 38:

"The starting point, and one on which there is a good deal of authority, is that where a plaintiff with concurrent claims against two persons, has actually recovered part or all of his loss from another, that recovery goes on diminution of damages which will be awarded against the defendant. A plaintiff can never, as I understand the law, merely because his claim may be against more than one person, recover more than the total sum due."

In the light of the above, I have no reason to withdraw my conclusions or alter my reasons.