Edmund Bateman v Bruce Shepherd, Australian Medical Association Limited and Reed Business Publishing Pty Limited [1997] ACTSC 6 (4 February 1997)

SUPREME COURT OF THE ACT

EDMUND BATEMAN v. BRUCE SHEPHERD, AUSTRALIAN MEDICAL ASSOCIATION
LIMITED and REED BUSINESS PUBLISHING PTY LIMITED
No. SC243 of 1993
Number of pages - 25
Defamation - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY HOGAN AJ

CATCHWORDS

Defamation - Identification of plaintiff - Extrinsic evidence - Discrepancies between published facts and actual facts relevant to identification

David Syme v Canavan [1918] HCA 50; (1918) 25 CLR 234 Morgan v Odhams Press [1971] 1 WLR 1239 Steele v Mirror Newspapers (1974) 2 NSWLR 348

Damages - Defamation - Extent of publication - Limited class of people aware of extrinsic facts relevant to identification - Members of that class not accepting truth of imputations - Apology and plaintiff's letter published by newspaper defendant - No apology from author defendant - Aggravated damages - Exemplary damages - Separate Judgments.

Law Reform (Miscellaneous Provisions Act (NSW) 1946, s5 Defamation Act (NSW) 1974, s46(3)

Rigby v Associated Newspapers Ltd [1969] 1 NSWR 729 Broome v Cassel & Co Ltd [1972] UKHL 3; [1972] AC 1027 Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 McCarey v Associated Newspapers Ltd (No. 2) [1965] 2 QB 86 Uren v John Fairfax & Sons Ltd [1966] HCA 40; (1966) 117 CLR 118 X L Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12; (1985) 155 CLR 448 John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131 Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 Coyne v Citizen Finance Ltd [1991] HCA 10; (1991) 172 CLR 211 Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41 McKain v R W Miller & Co (South Australia) Pty Limited [1991] HCA 56; (1991) 174 CLR 1 Jones v TCN Channel Nine Pty Ltd (1992) 26 NSWLR 732

HEARING

CANBERRA, 26-30 August 1996 4:2:1997

Counsel for the Plaintiff: Mr B R McClintock Instructing Solicitors: Clayton Utz

Counsel for the First and Second Defendants: Mr M G Sexton Instructing Solicitors: Blake Dawson Waldron

Counsel for the Third Defendant: Mr J S Wheelhouse Instructing Solicitors: Abbott Tout Harper Blain

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the plaintiff against all defendants for $54,000.00. 2. Judgment be entered for the plaintiff against the first and second defendants for an additional $27,000.00.

DECISION

HOGAN AJ
1. The plaintiff in this action claims damages for defamation from the defendants. He was not named in the relevant publication, but relies on evidence extrinsic to that to show that it was defamatory of him.

2. The plaintiff is a medical practitioner. The first defendant is also a medical practitioner, who at the time of the publication was the president of the second defendant, the Australian Medical Association. On behalf of the second defendant, he wrote a regular article in the "Australian Doctor", a weekly newspaper published by the third defendant, and circulated among members of the medical profession and associated professions.

3. In the issue dated 22 January 1993, Dr Shepherd published an articled headed, "This is the year to fight the left." It opened with an attack upon the health policies of the Australian Labour Party, which was then in government. It then continued, Meanwhile, despite repeated plaintive cries from myself and others, those bulk-billing emporiums (I don't mean all of them) which continue to cheat the system in many ways, go unscathed. Like the odd pathology firm, they seem to live a charmed life. I have heard it said, from inside the Department and the HIC, that they must have minders inside the Department who keep them one step ahead. Alternatively, it may be said that there is a directive from above that they are to be left alone. How is it that a GP, no matter how many doctors he has working for him, can afford a $3 million holiday home when he relies on bulk-billing for the total reward for services? How is it that a pathologist with a series of unlicensed outlets (or inlets) can transfer licences to those centres just before the inspector comes around from the HIC?

4. The Statement of Claim alleged that the matter complained of, in its ordinary and natural meaning was defamatory of the plaintiff, and conveyed the following defamatory imputations, a) The plaintiff cheated the Australian national health system in the operation of his medical practice. b) The plaintiff was reasonably suspected by the President of the Australian Medical Association of cheating the Australian national health system in the operation of his medical practice. c) The plaintiff has so conducted himself as to give reasonable grounds for suspicion that he has cheated the Australian national health system in the operation of his medical practice. d) The plaintiff has corrupted officers of the Health Department in order to avoid detection of irregularities in his practice. e) The plaintiff was reasonably suspected by the President of the Australian Medical Association of having corrupted officers of the Health Department or their superiors in order to avoid the detection of irregularities in his practice. f) The plaintiff has so conducted himself as to give reasonable grounds for suspicion that he had corrupted officers of the Health Department or their superiors in order to avoid detection of irregularities in his practice. g) The plaintiff has corrupted officers of the Attorney-General's Department in order to avoid detection of irregularities in his practice. h) The plaintiff was reasonably suspected by the President of the Australian Medical Association of having corrupted officers of the Attorney- General's Department or their superiors in order to avoid detection of irregularities in his practice. i) The plaintiff has so conducted himself as to give reasonable grounds for suspicion that he had corrupted officers of the Attorney-General's Department or their superiors in order to avoid detection of irregularities in his practice.

5. A further allegation in the Statement of Claim was as follows, The matter complained of in addition conveyed the following imputations, which were defamatory of the plaintiff, by reason of the fact set out below: Defamatory Imputations a) The plaintiff has corrupted officers of the Health Department in order to avoid detection of irregularities in his practice. b) The plaintiff was reasonably suspected by the President of the Australian Medical Association of having corrupted officers of the Health Department or their superiors in order to avoid the detection of irregularities in his practice. c) The plaintiff has so conducted himself as to give reasonable grounds for suspicion that he had corrupted officers of the Health Department or their superiors in order to avoid detection of irregularities in his practice. Fact The term 'The Department' in the medical profession and amongst persons having knowledge of the administration of the health care system is understood to refer to the Department of Health.

6. The Particulars of Identification alleged in the Statement of Claim were as follows, a) The plaintiff operates a number of bulk billing medical centres, a fact which is widely known among other medical practitioners, associates and friends of the plaintiff, current and former patients of the plaintiff and diverse other persons. b) The plaintiff had purchased a $3 million property in the Southern Highlands which purchase was widely publicised in the media at the time, and which fact was known among other medical practitioners, associates and friends of the plaintiff, and diverse other persons.

7. Publication was alleged in the Australian Capital Territory and in each of the other States and Territories of the Commonwealth.

8. The plaintiff claimed damages, aggravated damages and exemplary or punitive damages. Particulars of the aggravation were as follows, The hurt and harm to the plaintiff was increased by his knowledge of the following matters: a) The plaintiff's knowledge of the falsity of the imputations. b) The first, second and third defendants' knowledge of the falsity of the imputations or reckless indifference as to their truth or falsity having failed to make any inquiry of the plaintiff or any other reasonable inquiry prior to publication.

9. The Defences of the first and second defendants were identical. They formally put in issue both publication by them and the extent of publication. They denied that the matter published was, or was capable of being, defamatory of the plaintiff. They then raised defences of qualified privilege appropriate to the various States and Territories. Particulars of those defences of qualified privilege were given, and they were persisted in up to the hearing.

10. In Replies to those Defences, the plaintiff alleged broadly that the first defendant was actuated by express malice, and that the publication was not made in good faith, with details and particulars appropriate to the relevant law about qualified privilege in the respective States and Territories. As a result of the way in which the case was conducted, it is, mercifully, not necessary to analyse these provisions in any detail.

11. The Defence of the third defendant, the publisher, was radically different. It admitted being the publisher of the Australian Doctor, but put in issue the extent of publication. It put in issue publication of the matter complained of, and denied that the matter was capable of conveying, or that it did convey, the defamatory imputations alleged, or that any of them were defamatory of the plaintiff.

12. In mitigation of damages the third defendant also relied upon an apology that it published on 19 February 1993, and also on the fact that the plaintiff had accepted an invitation from it to reply to the matter complained of, and that it had published that reply. In subsequent correspondence, the plaintiff confirmed that he had not suffered special damage or general damages in the nature of the loss of business, and that he did not seek aggravated damages from the third defendant.

13. In Answers to Interrogatories, the first defendant admitted publishing the matter complained of to the third defendant with the intention and knowledge that it would be republished by the third defendant. He also admitted that, before publication, he did not make any enquiries with a view to ascertaining whether the matter complained of was true or not, did not attempt to contact the plaintiff with respect to it, and since publication had not offered any apology to the plaintiff in respect of it.

14. The second defendant's answer admitted that it published the matter complained of to the third defendant with the intention and knowledge that it was to be republished by the third defendant.

15. The third defendant admitted publication of the edition of Australian Doctor of 22 January 1993 in the various States and Territories in the following approximate number: State Number NSW 7175 VIC 4816 QLD 3243 SA 1749 WA 1628 NT 132 TAS 482 ACT 386

16. On 28 January 1993 solicitors for the plaintiff wrote to the first defendant as follows: We advise that we act for Dr Edmund Bateman who is extremely concerned by your article on page 7 of the above issue headed "This is the year to fight the left". The article is clearly and gravely defamatory of our client. Our client has been approached by a number of people who have identified him as the person referred to as having a $3m holiday home as a result of bulk billing and cheating the system. In fact, enquiries by our client suggest that there is no other person who would be identified by this description due to the reference to a $3m property. The reference to our client, however ill conceived has been inferred by a substantial number of people within the medical profession in particular. The true position is that our client and his wife bought a $3m country property and the purchase was publicised widely to readers of the Sydney Morning Herald to the surprise of and against the wishes of our client and his wife. The property was purchased as a normal investment in the course of primary industry activities which our client and his family have long undertaken. Our client and his family have extensive and very long standing interests in a variety of areas including primary production and to suggest that the funds for the purchase of this particular property are from the profits of a medical centre or centres is totally ill-conceived. Your action in publishing this material is all the more reprehensible due to the fact that you would have known or could have very easily ascertained that there was no truth whatsoever to the statement you were making. Any simple enquiry would have revealed the true position. Our client is left with the only reasonable assumption being that his rights and reputation have been extremely damaged for the purpose of making a political attack upon a system to which you are personally opposed. Very serious damage has been done by labelling our client as a cheat in a publication which goes to his peers. There is also a suggestion that he has improper dealings with the Department and HIC which are an essential part of avoiding detection and retribution for his cheating. Bearing in mind the true position as stated above, you will no doubt appreciate that the statements by you are enormously damaging to our client, his reputation and his feelings. He is distressed by the adverse reflection not only upon him but upon his family members, all of whom are indirectly tainted by the suggestion that the family wealth built over decades of hard work is nothing more than ill-gotten gains. To mitigate to some small extent the enormous damage done to our client we must insist that a full and detailed apology be published in the next available issue of Australian Doctor. The apology must be in the terms prepared by or approved by our client and any delay in publication will clearly be the most serious aggravation of damage one could contemplate. Would you please confirm by return fax your agreement to publish an apology whereupon we will provide this to you without delay. Copies were sent to the second defendant and the third defendant.

17. Solicitors for the third defendant responded by letter dated 2 February 1993 as follows: We act on behalf of Reed Business Publishing Pty Ltd, the publisher of Australian Dr Weekly. We have been asked to respond, on behalf of our client, to your letter to it dated 28 January 1993. Upon receipt of your letter our client's editor immediately made enquiries of Dr Shepherd concerning the parts of his article to which your client has taken objection. Dr Shepherd's advice to our client is that he had no particular practitioner in mind when referring either to "a GP" or "a pathologist" in the penultimate paragraph of his column. He told our client that he had no knowledge of the financial circumstances of your client or that, as you point out, he had recently purchased a $3 million country property. In fact we understand that Dr Shepherd was making a comment about a hypothetical practitioner as part of his well known objection to the system of bulk billing. Our client, who by reason of its publication of the magazine has some knowledge of the medical profession, also was unaware of the purchase to which you refer and which, according to your client, has identified him as the subject of the comments complained about. Although, of course, identification in a defamatory publication does not have to be intentional, we would have thought that ownership of a "million dollar holiday home", among successful members of the medical profession, would not be unique to your client and certainly does not, so far as our client's advice from Bruce Shepherd is concerned, single out Dr Bateman as the doctor referred to in the column. Nevertheless, our client accepts that, according to your letter, a number of people have, in our view mistakenly, interpreted the passage in the column as referring to Doctor Bateman and as casting aspersions on the legitimacy of the source of income from which his country property was purchased. That being the case, our client is certainly prepared to publish, if desired, an apology / clarification in the edition of the Australian Dr Weekly being published on 12 February 1993. If such an apology is to appear in that edition, the form of apology needs to be finalised by 5 February 1993. Our client welcomes any submissions that you might have on the form of that apology but, at this stage, proposes that it be along the lines of making absolutely clear that the passage in Dr Shepherd's column referred to a hypothetical practitioner, was not intended in any way to be a reference to Dr Bateman or any other person and was not intended to convey any comment about the circumstances in which your client purchased a $3 million country property. If your client wished, it could include an acknowledgment from Australian Dr Weekly that it accepts, unreservedly, your point that the subject property was purchased by Dr Bateman as a "normal investment in the course of primary industry activities which he and his family had undertaken." Our client would publish this apology entirely without prejudice to its view that no defamation has been committed by the initial publication. Indeed its first response, prior to seeking legal advice, was that the publication of any further material on the subject, be it an apology or otherwise, would appear likely to exacerbate any embarrassment that Dr Bateman suffered as a result of the initial publication. Nevertheless, that is obviously a matter which your client has already considered and, as mentioned above, if he wishes, a formal apology and clarification in the terms discussed above can be published. Given our client's views about the "identification" issue and its unwitting involvement in this dispute our client would hope that publication of the apology would be accepted by Dr Bateman in complete satisfaction of any complaint he has against Australian Dr Weekly. Please advise. As mentioned above, if an apology/clarification is to be printed, it needs to be finalised by the end of the week. In those circumstances, if your client wishes to make known some requirements as to the terms of that clarification/apology, then that should be submitted to us as soon as possible. Failing that, we will prepare and have sent to you by say Thursday morning of this week, a draft that our client proposes to publish. The plaintiff's solicitors replied, Thank you for your fax of 2 February, 1993. Our client finds a number of your assertions such as suggestions of "a hypothetical practitioner" impossible to accept. However, in the interim it is important that the damage being done to our client be mitigated by the publication of an apology at the earliest possible time. It may be that an apology would cause less concern to your clients if published in conjunction with a detailed response from our client whereby the apology would assume only modest proportions. To that end we enclosed a suggested apology coupled with a draft letter of response from our client. Obviously, the above will still not undo the very serious damage which has been done to our client, but it is the view of our client that it will be a reasonable way of mitigating the damage provided the publication is given appropriate prominence. Accordingly, in the issue of Australian Doctor of 19 February 1993, there was published on page 4 the following apology. In the 22 January issue of Australian Doctor, an article by Dr Bruce Shepherd headed "This is the year to fight the Left" was published. The article included the statement "How is it that a GP, no matter how many doctors he has working for him, can afford a $3 million holiday home when he relied upon bulk billing for the total reward for services?" Australian Doctor has been informed by Dr Edmund Bateman that some people have interpreted the article as referring to him and that the article contained the suggestion that Dr Bateman has been guilty of cheating or impropriety either in connection with a recent real estate purchase or in the conduct of his business and professional affairs. Dr Shepherd has assured Australian Doctor that the references in the article were entirely hypothetical and were not intended to refer to the circumstances of any particular person or business. Australian Doctor accepts Dr Shepherd's assurances. However, if some people have interpreted the article as referring to Dr Bateman, Australian Doctor acknowledges that any suggestion of cheating or impropriety on the part of Dr Bateman is totally without foundation. Australian Doctor apologises to Dr Bateman for any embarrassment caused by the article. See page 8 for a letter of reply from Dr Bateman. That apology, as published, was not precisely in the same terms as the draft submitted by the plaintiff's solicitors. In particular, their draft did not include the paragraph about Dr Shepherd's assurances. No objections to any differences were raised at the time.

18. On page 8 of the same issue, there was published the following letter from Dr Bateman: In Australian Doctor, 22 January, there was an article by Dr Bruce Shepherd, president of the AMA. It referred to a GP buying a $3 million property. The reference to the $3 million property purchase (previously published in the Sydney Morning Herald) and other details identify myself as that person. The article suggests that the $3 million property was purchased with ill-gotten funds and implies that anyone in my position could not possibly have acquired such property honestly. While I am taking the legal proceedings available to me, this will take some time and will not cover the interim damage to myself, my family, my business, my professional colleagues and associates. Additionally, while such proceedings will form part of the public records, the passage of time and lack of published detail to clarify the real situation allows scuttlebutt to continue in the meantime. As a result, I feel compelled to write this letter. Where I refer to assets or income, I refer to the totals held by my immediate family through whatever structure they be held in. I have lived in the same house at Collaroy for the past 25 years (purchase price $27,000). Major sources of income are three: Medical Practice - GP in the Manly -Warringah area of Sydney for 25 years. Bond trading - Initially linked to foreign currency loans to provide positive gearing and cash flow. I continue trading, on margin, long term Government bonds. Rural enterprises - Now in its third decade, this business has continued to build and expand in size, scope and success. Major interests include cattle breeding - both stud and commercial together with export of cattle to the US and import of stud cattle from North America, wool, fat lamb production and horticulture. Royal Agricultural Society awards include All Breeds Championship on three separate occasions. Numerous championship awards over the past 12 years including grand championships for the past three consecutive years. Each of these enterprises have been a long-term family commitment with associated risk-taking. The above are the sources of funds for the purchase of the $3 million property without taking into account any income from medical centres. This fact is central to where Dr Shepherd got it so wrong. The purchase of this property was part of normal ongoing rural venture. From 1985-93, my family has had a share in the service structure that now operates two medical centres. The doctors who work in the centres currently see in excess of 8,000 patients a week. To suggest that such practices are not closely monitored by the HIC is naive. To suggest that they or I have minders in the HIC is ludicrous. We get advice from a variety of sources including lawyers, accountants and the HIC. We proceed on the basis of what we believe to be excellent advice. Because of the size and scope of the centres we assume that the HIC/Tax Department would monitor the centres in their normal role. The only "minders" that I have are my wife, my family, my legal and accountancy advisers together with trusted employees and my associates. While income and assets other than from the medical centres did purchase the $3 million property, it is necessary to address the slur that there is cheating going on in the medical centres. It is difficult to refute the very broad allegations that medical centres cheat the system. The following details of our centres can help to put aside some of the suggestions made by the AMA for their own purpose: . Costs (or outgoings) per patient are up to one-third that of other practices surveyed, and less than all other categories. . Specialist referrals are a smaller percentage than all other categories of practices surveyed. . Pathology - Individual doctors in the centres have a normal profile of ordering. The average pathology ordered per patient is less than that ordered by GPs outside the centres. The average dollar value of each pathology request is less than that of GPs outside the centres. . Radiology - individual doctors in the centres have a normal distribution of referral. The average radiology ordered per patient seen is less than that by GPs outside the centres. . Average fee income per patient is 14.78% less than median and 24.3% less than upper 25% of practices. . There are no doctors currently employed, each doctor works on his own account. . A significant proportion of medical centre income is derived from other than Medicare and bulk billing. The sources, other than our own, for the above details are RACGP Inter Practice Comparison report to June 1992, HIC Surveys as reported in Medical Observer, and HIC letters to individual doctors re pathology and radiology profiles (part of HIC awareness campaign). Although that letter also had been subjected to some considerable sub- editing, no point was raised about that fact, either at the time or at the hearing. There was also no suggestion that the appearance, position or degree of prominence given to the apology and the letter was not appropriate.

19. The Writ was issued on 6 April 1993.

Identification 20. It is obvious that, if the publication referred to a particular doctor, it was gravely defamatory. The first question is, whether it was in fact defamatory of the plaintiff.

21. In support of the particulars of identification, the plaintiff tendered in evidence a copy of an extract from "Title Deeds", a regular article written by a journalist named Jonathan Chancellor and published in the Sydney Morning Herald on Saturdays, in which the dealings in real estate of well known people are reported. In the issue of the Sydney Morning Herald dated 21 September 1991, there had appeared an aerial photograph of a property called Roberton Park, with a caption under the photograph which read "Roberton Park (left) .... created a Southern Highlands price record;" In the text above and to the right of that photograph, the following paragraph appeared, Ever since he installed the spa in his Bellevue Hill mansion, Leura - which subsequently sold for $7.3 million to Ken Allen in 1986 - property restorer Bill Shipton has rarely taken a bath. His latest deal - the $3 million sale of Roberton Park at Glenquarry to Dubbo's Edmund and Belinda Bateman - has provided the Southern Highlands with a bullish record price. The 11 ha historic property was bought from the Loewenthal family in 1985 for $740,000. The latest deal was clinched through Richardson and Wrench Bowral's Mick Maloney, who, in conjunction with Ray White's Sandra Cummins, has listed The Chase, Rob Porter's 40 ha Sutton Forest with attractive vendor finance terms. Tuesday's Herald commercial property section will have a special Southern Highlands feature.

22. The plaintiff gave evidence, over objections, that shortly after the publication of that article, a number of his friends and acquaintances spoke to him in terms that indicated that they had read the article. I would have been surprised if they had not. Even without that evidence I would have thought it highly likely that a number of people who knew the plaintiff would have read the article, and would therefore have been aware, in September 1991, that the plaintiff and his wife had bought a property in the Southern Highlands for $3 million.

23. I think that the likelihood exists despite the fact that the article referred, not to a "Dr Bateman", but to "Dubbo's Edmund and Belinda Bateman." Many of those who knew him as a person would also have known of his rural interests, and the combination of given names is relatively distinct.

24. Evidence was given by Dr Christie, who had known the plaintiff since student days. He had read the article in Title Deeds, and was aware that the plaintiff had bought a house in the Southern Highlands for $3 million. He had been to the property. He was also aware that the plaintiff operated a number of bulk billing medical centres, and that he was a general practitioner.

25. He read the matter complained of, shortly after its publication, and took it to be referring to the plaintiff. His sister in law who worked in a hospital, and a number of other doctors at the centre where he worked, spoke to him in terms that indicated that they had also read it, and that they understood it to be referring to the plaintiff.

26. Mr David Fisher, an engineer who serviced radiographic equipment, including equipment in the centres operated by Dr Bateman, had known that Dr Bateman had purchased a heritage home in the Southern Highlands for a price of "a few millions". He saw the matter complained of and thought that it referred to the plaintiff.

27. Father O'Rourke gave evidence. He had been a medical practitioner before entering the Catholic Priesthood, and had at one time worked in the plaintiff's medical centre at Warringah. He had read the Title Deeds article and visited the property referred to in it. He was therefore another instance of the sort of person who would have been aware of the facts that the plaintiff operated bulk billing establishments and had paid $3 million for a property in the Southern Highlands. He had not, however, read the matter complained of.

28. Dr Artinian had practised in the Warringah Mall Medical Centre for 7 to 8 years. He read the matter complained of. He then knew, of course, that the plaintiff was a GP who operated bulk billing medical centres, and although he did not identify the Title Deeds article as being the source of his knowledge, he said that he was aware that "the grazier, Edmund Bateman" had purchased a property in the Southern Highlands for $3 million. I find the inconsistencies in his evidence about the source of his knowledge of that fact to be quite consistent with the fallibility of human memory. The point is, that he was aware of sufficient of the detail to identify the plaintiff as the person referred to when he read the matter complained of.

29. The plaintiff bears the onus of demonstrating that the defamatory matter referred to him. In this case, I am satisfied that the plaintiff has established the facts on which the identification could be made, namely that he was a general practitioner, he operated two medical centres which bulk billed, and he had purchased a property in the Southern Highlands for $3 million. I am also satisfied that some readers had knowledge of some or all of those circumstances, and that some of them could reasonably, and did in fact, understand the words as referring to the plaintiff. See David Syme v Canavan [1918] HCA 50; (1918) 25 CLR 234 per Issacs J at 238; Morgan v Odhams Press [1971] 1 WLR 1239, per Lord Reid at 1242 - 1244, Lord Morris at 1252 - 1253, Lord Donovan at 1263 - 1264.

30. Counsel for the first and second defendants contended that I should not come to that conclusion, on the basis of a number of discrepancies between the terms of the publication and the actual facts about the plaintiff proved in evidence. Those discrepancies included the following: 1. The plaintiff did not rely entirely on bulk billing for his income. 2. The plaintiff did not employ any doctors - they merely practised at his centre. 3. The property in the Southern Highlands was not a "holiday" home. 4. The plaintiff lived in Sydney, not Dubbo.

31. That contention is sufficiently disposed of by the following comment of Hutley J in Steele v Mirror Newspapers (1974) 2 NSWLR 348 at 364, The extrinsic facts which enable the identification to take place do not have to coincide exactly with the facts detailed in the defamatory matter, as a reasonable reader will not expect perfect accuracy.

32. Counsel for the third defendant did not, in his final submissions, contest the issue of identification. He did contest its extent, a matter which is dealt with in relation to damages.

The Imputations 33. In this Territory each imputation does not form a separate cause of action. Imputations perform the function of particulars only.

34. Once it has been established that the matter published referred to the plaintiff, it certainly bore imputation (b), that the President of the AMA reasonably suspected him of cheating the system. So much was conceded, even by counsel for Dr Shepherd. But I am satisfied that it also bore (a), that in fact he did cheat the system. It also clearly bore imputations (e) and (f). They are, alone, sufficiently serious to relieve me of the burden of close textual analysis of the rest. The imputations clearly made out are of a most serious kind to make about a person in professional practice. They are, in my opinion, accurately summarised in the letter from the plaintiff's solicitors dated 28 January 1993 as being that the plaintiff was labelled as a cheat in a publication which went to his peers, and there was a suggestion also that he had improper dealings with the Department and the HIC in order to avoid detection or retribution for his cheating.

Extent of Publication 35. The publication was not a television program seen by millions. Out of the total number of people who might be expected to read the Australian Doctor, or that particular issue of it, there must have been many who did not read the matter complained of at all, or who did not know the extrinsic facts that would have enabled them to connect it with the plaintiff, or who did not know the plaintiff at all.

36. I do not agree, however, that the extent of the spread of the poison was restricted to a handful of doctors working at the plaintiff's two medical centres. Those who did read it and make the connection could almost certainly be expected to talk about it with others, and I would have expected knowledge of the defamatory statement to have spread amongst a substantial number of people, both doctors and others associated with the medical profession. Such a spread would be the natural and probable consequence of the publication of such material in such a paper as the Australian Doctor.

37. The fact that publication to a person making the connection was not proved to have occurred in the Australian Capital Territory is not of any significance. Once the defendants have been properly served, and have appeared in the action, the only relevance that fact could have would relate to choice of law rules.

38. Although the first and second defendants did not formally abandon the defences of qualified privilege, they did not call any evidence or make any submissions in respect of them. I am therefore mercifully spared the burden of analysing them or applying choice of law rules to them.

Damage to Reputation 39. Those witnesses who gave evidence for the plaintiff knew him well enough, and had a sufficiently high opinion of him, not to have entertained for more than a moment the thought that there might be any truth in the imputations conveyed by the matter complained of.

40. That fact was urged by counsel for the defendants as mitigating the harm done to the plaintiff's reputation. It could not, of course, go to the existence of the cause of action: See Morgan supra per Lord Morris at 1252.

41. So far as the extent of actual harm to the plaintiff's reputation is concerned, I think that it is probable that many of those to whom the defamation spread would have had the same reaction as the witnesses. It is by no means true that all of them would. Nevertheless, that common reaction, together with the limited extent of publication, must be taken into account when considering the actual harm done to the plaintiff's reputation.

42. On that same issue the publication by the third defendant of the apology and the article by the plaintiff must also have reduced the extent of the damage. Had Dr Shepherd joined in the apology and retraction, their force in reducing the harm to the plaintiff's reputation would have been enhanced. Not only did Dr Shepherd not join in the apology, the third defendant repeated as part of it the strange assurance that it had received from him that he had intended to refer only to a "hypothetical" doctor. That is an assertion that I find disingenuous, and I suspect that some of those reading the apology must have wondered about it also.

43. Dr Shepherd's failure to apologise and the inclusion of that assurance detracted, I think, from the fullness and frankness of the apology, and lessened to some extent its effect in mitigating the harm to the plaintiff's reputation.

44. Nevertheless, the Australian Doctor acknowledged that any suggestion of cheating or impropriety on the part of the plaintiff was totally without foundation, and apologised to him for any embarrassment caused by the article. The plaintiff's reply, as published by the third defendant, also dealt comprehensively with the foundation of Dr Shepherd's attack. Both the apology and the reply were given appropriate prominence. They could both be expected to come to the attention of many who had read the offending article, for much the same reasons as had led them to read it in the first place.

45. It is however probable that of the number of people who had come to be aware of the original defamation, some would in all likelihood not come to be aware of the apology or the reply. How many there were cannot be estimated, but I do not think that it was necessarily a small number.

46. There is no direct evidence of adverse reaction to the plaintiff in the community. I agree with the submission that the absence of Mrs Cohen from the wedding of the plaintiff's daughter is not shown to be the result of the defamation. I also think that it is probable that other considerations led to the correspondence and conflict about the Artlu trusts, on which so much time and energy was expended at the hearing.

47. Nevertheless, if there is published gravely defamatory matter such as was the subject of this case, damage to reputation may be presumed to have occurred. It was less than it might otherwise have been, by reason of the apology and reply, and it was not as extensive as it might have been because of the limited number of people to whom it came and who connected it with the plaintiff, and because of the high regard that most of them rightly had for him, but nevertheless it was significant, and such as to require an award of damages sufficient to provide vindication for the injury done to his reputation. That is, it must be an award at a level sufficient to "nail the defamatory statement as a lie": Rigby v Associated Newspapers Ltd [1969] 1 NSWR 729 at 743. The award should be sufficient for the plaintiff to be able to point to it in order to convince a bystander of the "baselessness of the charge": Broome v Cassel & Co Ltd [1972] UKHL 3; [1972] AC 1027 at 1071.

Hurt to Feelings 48. It is principally in connection with this aspect of the award that an attack was made on the plaintiff's credit by all defendants. On the basic facts relevant to this issue I have no doubt that the plaintiff was telling the truth. When his son rang him and told him about the article, of course he was shocked. The very nature of the defamation ensured such a consequence. Its content was that he was a cheat. Its source was the President of his professional association. Its vehicle was a publication to his professional peers.

49. The plaintiff's emotional reaction to the apology was not, to my mind, an indication of exaggeration. It was a perfectly understandable result of the bitterness that he undoubtedly felt. It must have been significant and hurtful to him that Dr Shepherd did not join in the apology and that the Australian Doctor made a point of inserting in its apology its acceptance of Dr Shepherd's assurance about a hypothetical doctor. Of course, also, he was concerned about the effect that the defamation might have upon the viability of his medical centres. The fact that no harm is shown to have eventuated is not the point. His worry about it is, to my mind, another aspect of the inevitable hurt to his feelings and emotions that resulted from the libel.

50. There is no doubt that the plaintiff showed in his evidence that he feels bitterly towards Dr Shepherd. He did not seek to conceal it. His claim for punitive damages is based on a desire to punish Dr Shepherd. It does not in the least follow that his evidence about hurt to his feelings must be treated as either unreliable or irrational. In general I accept it.

51. I accept the submission of the defendants that they do not have to compensate the plaintiff for the distress that the members of his family suffered, but his observation of their distress had its effect on him, and to that limited extent forms part of the complex injury to feelings for which he is to be compensated.

General Compensatory Damages 52. As Hunt J remarked in Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 74-75, Aggravated damages are more properly called aggravated compensatory damages. They are awarded where either the circumstances of the publication of the matter complained of or the defendant's conduct then or subsequently make the injury worse - when the ordinary compensatory damages awarded for the publication itself may be increased. They are not awarded as a separate amount. Aggravated compensatory damages are usually awarded only in relation to the plaintiff's feelings: McCarey v Associated Newspapers Ltd (No. 2) [1965] 2 QB 86 at 104, 107; Cassell & Co v Broome Ltd [1972] UKHL 3; [1972] AC 1027 at 1071, 1125. They are not, however, necessarily so limited, and there may be conduct which has the effect of increasing the injury to the plaintiff's reputation as well. What were sometimes called aggravated damages in the older cases have been discovered upon later analysis to be in reality punitive damages: see Uren v John Fairfax & Sons Ltd [1966] HCA 40; (1966) 117 CLR 118 at 151-152.

53. Counsel for the plaintiff did not seek aggravated damages from the third defendant, but I understood that to refer only to any element based upon the conduct of the defendant. In other words, no complaint was made that there was any conduct of the publisher at any time which made the injury worse. Insofar as the falsity of the imputations and the plaintiff's own knowledge of their falsity was concerned, that increased the hurt to the plaintiff's feelings independently of any conduct of the defendants - or any of them. There is not alleged in this case any conduct of any of the defendants which had the effect of increasing the injury to reputation.

54. Although to do so does not accord strictly with the analysis by Hunt J I take into account in assessing general compensatory damages the falsity of the accusations and the plaintiff's knowledge of that falsity. In the circumstances of this case I do not think that any confusion will be caused by doing so. The elements of damage that I have so far discussed, and which I refer to as general compensatory damage, are common to the damage for which all defendants are liable.

55. The claim was pressed, however, that compensatory damages to be awarded against the first and second defendants should be increased because of conduct on the part of Dr Shepherd.

56. A claim was also pressed for punitive damages, but also only against the first and second defendants.

57. It is very much a contentious matter whether separate judgments may be entered for different amounts against the respective defendants.

58. Counsel for the first and second defendants submitted firstly that so far as purely compensatory damages are concerned, the one sum should be awarded against all defendants, and it should be the lowest sum for which any of the tort feasors could be held liable.

59. I agree with that proposition, as I hope will be clear from what I have already written.

60. Secondly, however, he submitted that if there were any evidence that could support a claim for aggravated damages in relation to any of the defendants, the plaintiff would be limited to the amount to be awarded against the defendant with the least component of aggravation. He submitted that this rule, laid down in Broome v Cassell (supra) has not been affected, in relation to compensatory damages (of which aggravated damages are a component), by the decision of the High Court of Australia in X L Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12; (1985) 155 CLR 448, which related to exemplary damages.

61. With that proposition I do not agree. It is clear from X L Petroleum (supra) that the foundation of Broome v Cassell was the common law rule that only one judgment could be awarded against joint tort feasors and that the enactment of s5 of the Law Reform (Miscellaneous Provisions) Act (NSW) 1946 and corresponding provisions in the other States and the Territories, had completely abolished the common law rule. Brennan J held, in X L Petroleum at 470, that there may be specified, ... in the judgment the respective amounts assessed as exemplary damages and as compensatory damages in order to identify the amount to which s5(1)(b) and (c) might apply. There is no reason why there may not be specified, for the same purpose, the respective amounts awarded as general compensatory damages and aggravated compensatory damages.

62. If there were not any element of aggravated or punitive damages to be considered, the amount that I would consider to be reasonable compensation to the plaintiff for the harm done to his reputation and the injury done to his feelings, that is, the general compensatory damages in the sense that I have outlined above, is $50,000. For interest on that amount I would award $4,000, taking into account the considerations set out by McHugh JA in John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131 at 142, 143.

Comparable Verdicts 63. Counsel for the defendants submitted that I should take into account a number of recent awards for defamation in this Territory, ranging from $5,000 to $45,000. There were various aspects of those cases on the basis of which it might be argued that they were comparable with this case, or that they indicated a range beyond which I should not go.

64. I have not excluded those awards from my consideration. However I must confess that I do not find much assistance in approaching an award in defamation in such a manner.

65. Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 and Coyne v Citizen Finance Ltd [1991] HCA 10; (1991) 172 CLR 211 dealt with the approach to be adopted by an appellate Court to jury verdicts, and comparisons with awards for other types of injury such as personal injury. They are hardly in point for a Judge at first instance assessing damages as a tribunal of fact.

66. I would hope that I am sufficiently aware of the ranges of figures awarded for damages for personal injury in this Territory to be able to avoid an award which is so disproportionate as to demonstrate error.

67. I have simply approached the problem as one of deciding upon a figure which is a reasonable sum to achieve the objectives of an award of damages in defamation, in accordance with the principles referred to earlier. Having arrived at the figure that I have, on the basis of the particular facts of this case, I do not see any of those other awards as indicating that I have been over generous at the expense of the defendants or niggardly at the expense of the plaintiff.

Aggravated Damages 68. The particulars of aggravation concerning the conduct of the first and second defendants that are set out in the Amended Statement of Claim are; - knowledge of the falsity of the imputations; or - reckless indifference as to their truth or falsity, having failed to make any enquiry of the plaintiff or any other reasonable enquiry prior to publication.

69. The relevant knowledge is that of Dr Shepherd. He has admitted that he did not make any enquiry at all prior to publication.

70. Counsel for the plaintiff submitted forcefully that Dr Shepherd had the plaintiff individually in mind when he wrote the libel.

71. Dr Shepherd had known the plaintiff when they had both been at the Mater Hospital in the sixties. Dr Bateman had referred some patients to Dr Shepherd, but they were not many. Dr Shepherd was also aware that the plaintiff conducted medical centres which bulk billed.

72. Dr Shepherd denied in his evidence that he had ever seen the Title Deeds article which linked the plaintiff with a $3 million home. In cross-examination it was put to him that he had seen it at the time of its publication, and that he had discussed it with a Mrs Nuttall, whom he had known for many years.

73. Omitting discussions about objections to the evidence, his answers were as follows. MR McCLINTOCK: Now, what I am suggesting to you ....? ---Can I say clearly, I had not seen that article. There are a lot of things I don't remember very clearly, but I remembered that I had not seen this until the solicitor sent it to me sometime afterwards. What I want to suggest to you, Dr Shepherd, was that in late September 1991 or October 1991, you had a conversation with Mrs Nuttall, in which you referred to the Title Deeds article, that Dr Bateman had purchased a house in the Southern Highlands for $3 million?---I have no recollection of that, I don't see how that could have happened. There are other factors that I can't bring up or I don't know whether I can bring up, about the attitude of Mr and Mrs Nuttall towards me at the present time. If, in fact, you had had a conversation with Mrs Nuttall in late September, early October 1991 and that you referred to the Title Deeds column, the one in front of you, exhibit B, that would be inconsistent with the evidence you have given that you had not read that article before; it was sent to you by your lawyers in the course of this case?---I had not read the article before the lawyer sent it to me. I'm having trouble working it out now. Now you, in fact, became aware, very shortly after publication of that Title Deeds article that Dr Bateman and his wife had purchased a property for $3 million in the Southern Highlands, didn't you?---I have no recollection of that. And, in fact, you were aware of that fact, that the Batemans had purchased such a property for $3 million, at all time, up to the time you wrote the article in question, weren't you?---No. In fact, you mentioned your knowledge of the purchase of the property in question to Mrs Nuttall in September/October 1991, didn't you?---No.

74. Mrs Nuttall was called in reply. She and her husband had been closely associated with Dr Shepherd for many years. There had been a falling out between them about 18 months ago, the cause of which was not in evidence. In the witness box she was given a copy of the Title Deeds article. She swore that it had been mentioned to her by Dr Shepherd, and she had then obtained a copy of the newspaper. She had been shown it by him not long after publication, in September or October 1991.

75. In cross-examination she agreed that she had been asked to give evidence only a short time before, that she was not on good terms with Dr Shepherd, she was on good terms with the plaintiff, she would like to see the plaintiff win the case and to see Dr Shepherd lose it.

76. Nevertheless, it was not suggested to her that she was deliberately fabricating her evidence, nor did counsel really submit that in his address. He pointed particularly to the lapse of time between September 1991 and Dr Shepherd's state of mind in January 1993, and to the lapse of time between the date of the conversation and her being asked to give evidence about it. He also urged the serious nature of a finding of malice, the onus being on the plaintiff. Those are indeed forceful considerations. Nevertheless, I am satisfied that the evidence given by Mrs Nuttall was true.

77. Another consideration that I think is relevant to this conflict is Dr Shepherd's assurance to the third defendant about a hypothetical doctor.

78. In his evidence in chief Dr Shepherd said that after receiving the letter from the plaintiff's solicitors, he contacted the editor of Australian Doctor. His evidence continued, What did you say to the editor?---Well, I said to the editor that this is not good, that I had no intention of indicating anybody and that if I gave an apology, I'd be doing Dr Bateman damage and I was reluctant to do that. I perhaps discussed even contacting him to say just that. At any rate you - the material in the apology that is attributed to yourself is accurate?---Well, that's true. I felt that was the best sort of apology to make for it. The material in the apology that was attributed to him was, Dr Shepherd has assured Australian Doctor that the references in the article were entirely hypothetical and were not intended to refer to the circumstances of any particular person or business. Also in his evidence in chief, when shown the matter complained of, he was asked what person if any he had in mind when he referred to a GP He answered, I had no one in mind.

79. However, it strains credibility to accept that he intended to refer to a hypothetical doctor. As I have already said, I find that explanation disingenuous. There are too many specific facts in the description. It must have been obvious that such a statement must refer to some particular person.

80. In fact Dr Shepherd himself did not persist with that explanation. In examination in chief, when asked the purpose of the addition of the word "holiday" before "home" in the matter complained of, he stated that his recollection was that he had heard that sort of story.

81. He had a lot of contact with the staff of the Health Insurance Commission and the Health Department, and would have been told of this type of happening. In cross-examination the following passage occurred, MR McCLINTOCK: Could I just ask one further question. Are you saying - what I suggested to you was that when you wrote this paragraph, you say that you were speaking entirely hypothetical and that there was no intention to refer to the circumstances of any particular person. I thought that was your evidence yesterday?---No, my evidence yesterday was that I had been given this information from a member of the department or Health Insurance Commission and I was given no names and that was it. Putting aside what appears in the second last paragraph before the asterisks, that is the references to the Health Department and so on, I understood your evidence to be yesterday that the last paragraph commencing "How is it that a GP" was entirely hypothetical?---That was not my memory of it. If I gave that impression that was the wrong one. And I thought you said that you did not intend to refer to any particular person?---No, I didn't intend to refer to anyone. Later, during the cross-examination, Dr Shepherd responded to a question from me, Your Honour, I was getting information and it still goes on where we sit around the table with the Health Commission and they tell us about naughty doctors and they - you know - And they suggested to you that there was a particular case of a naughty doctor who bulk billed and managed to buy a $3 million house on the - ? --- I recollect that was the story, your Honour. Yes? --- That was my recollection at the time. And that would've been a reference to some particular person? --- Well, it probably was, yes. So there was some doctor out there that met that description so far as the information you had from - ? --- As far as the information, yes. Now, I don't know whether that's distant enough to make it hypothetical. I agree that to give that impression, namely that the GP referred to in the matter complained of was a hypothetical person, was to give a wrong impression. Yet Dr Shepherd agrees that he concurred in the publishing of precisely that wrong impression in the apology to be made by the third defendant.

82. Next, there is the failure by Dr Shepherd to apologise or to retract. I can understand an initial reaction by Dr Shepherd that the publication of an apology might do more harm than good to the plaintiff and that he was, as he said, "reluctant to add fuel to the flames". But, once it became clear that an apology was what the plaintiff wanted, and that the third defendant proposed to publish one, that consideration no longer had any weight. Yet Dr Shepherd would not, did not, join in that apology.

83. When asked why not he responded, Yes. Your Honour, I probably should've. I felt that I didn't intend to refer to him, and I - again, I thought that we're just beating this up by writing - his writing a letter, me putting in a big apology. I was frightened by the letter from the solicitors that said, you know, it was, "he's damaged, he's determined, and you can give us an apology. We demand an apology but it's not going to make any difference". And that was my interpretation to the letter. The solicitor's letter did not, of course, say any such thing. He was asked to read it again. He commented, Your Honour, in the second paragraph when it says "very serious damage is done by labelling our client as a cheat in a publication which goes to his peers, there was also a suggestion that he had improper dealings", well, if I wrote an apology I felt that I'd be admitting that that was what I was doing. That answer perhaps gets closer to the truth. In not making an apology he was at least partly motivated by an instinct of self-protection.

84. His suggestion that he was motivated by an intention to protect the plaintiff is another suggestion of his that I find disingenuous.

85. On the balance of probabilities, I think that Dr Shepherd did have the plaintiff in mind when he wrote the libel. It may well have been some conversation with a person or persons in the Health Commission that alerted him to the fact that a general practitioner who was connected with a bulk billing establishment had recently bought a $3 million property. He probably saw the article in the Herald.

86. The plaintiff was well enough known to him to enable him to make the connection. He was, of course, affronted by the knowledge that such a thing could happen. When the occasion arose, some time later, to refer to the happening in his column, he took the opportunity to do so. I do not think that, in the circumstances in which he composed the publication, he gave it any detailed consideration. The fact of the purchase by such a person was simply another fact in the whole complex of considerations which led him to oppose the bulk billing system so strenuously. He is not a lawyer. Morgan v Odhams Press is probably not a text to which he has often had occasion to refer. He probably thought, if he adverted to the question of identification at all, that what he had written was sufficiently vague and non-specific as not to be seen to be referring to anyone in particular. Hence his claim not to have had anyone particular in mind. He knew that it was the plaintiff that he was referring to, but he may well have thought that very few others would realise it.

87. There are two corollaries of this view that I take of his state of mind when he composed the matter complained of.

88. The first is that he did not set out deliberately to harm the plaintiff. That was not his objective in writing what he did.

89. The second is that he genuinely believed, at the time that he wrote it, that the implications in it were true. He probably shared the views of the people in the Health Insurance Commission, that it was disgraceful that people should be able to cheat the system to such an extent. He did not know the plaintiff well enough to realise that there was an explanation for the plaintiff's wealth other than cheating the system.

Punitive or Exemplary Damages 90. I am therefore not persuaded that, at the time of publication, Dr Shepherd had actual knowledge of the falsity of the imputations.

91. Nor do I think that subjectively he suspected that they might be false, and proceeded nevertheless recklessly to publish without further enquiry.

92. It follows, in my view, that the case is not one which calls for an award of punitive or exemplary damages.

93. I do not, therefore, propose to decide the difficult question whether s46(3) of the Defamation Act (NSW) 1974 would prevent this Court from making such an award, in the light of Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41 and McKain v R W Miller & Co (South Australia) Pty Limited [1991] HCA 56; (1991) 174 CLR 1. Counsel for the plaintiff submitted that I should decline to follow the decision of Hunt J in Jones v TCN Channel Nine Pty Ltd (1992) 26 NSWLR 732, but, in light of the view that I take of the facts, I have not considered whether I should do so or not.

94. Nevertheless, returning to the question of aggravated compensatory damages, the imputations were so grave that, objectively, Dr Shepherd, knowing that it was the plaintiff to whom he was referring, was acting recklessly in publishing what he did, with sufficient detail and specificity in it to enable others to identify the plaintiff.

95. That finding relates to his state of mind at the time of publication.

96. At a later time, once he had received the letter from the plaintiff's solicitor, it must have been clear to him, first, that others had in fact identified the plaintiff as being the doctor referred to, and that the imputations were false.

97. Dr Shepherd did not even proffer an apology or a retraction in his evidence in chief at the hearing. He finally admitted that the imputations were untrue so far as the plaintiff was concerned during cross-examination. It was only then, also, that he conceded that the doctor referred to was a real one, not a hypothetical one.

98. It is true that, on mature reflection, after hearing all the evidence, and considering the submissions of counsel, I have not been persuaded that Dr Shepherd deliberately set out to harm the plaintiff. It is also understandable, however, that the plaintiff would have found it difficult to take the same view, in the light of Dr Shepherd's conduct up to and including the hearing.

99. Dr Shepherd's persistent refusal to publish, even privately to the plaintiff, a retraction and an apology in those circumstances, compounded the harm done by his recklessness and added to the distress and hurt to the plaintiff's feelings.

100. It should be noted that I have already taken into account in assessing general compensatory damages the fact that Dr Shepherd's failure to join in the third defendant's apology lessened the force of that apology in its limitation of the harm done to the plaintiff's reputation.

101. On the other hand, I do not accept the submission of counsel for the plaintiff that the conduct of counsel for the defendants during the hearing was such as to call for an award of aggravated damages. Both in content and in manner, the cross-examination of the plaintiff was conducted with propriety and well within the limits allowed to counsel to test the evidence of a plaintiff in a defamation case.

102. Theoretically, the filing of the pleas of qualified privilege, and the failure to withdraw them even at the hearing, could found an additional award. It is in the nature of such a consideration that it could not be particularised before the hearing. But, although counsel for the plaintiff adverted to the implication in such a plea of an assertion of a belief in the truth of the implications, the plaintiff gave no evidence that it was a matter to which he adverted, or that it had any effect upon his feelings about the publication or about the case. I do not think that in this particular action there should be any aggravated damages awarded on that account.

103. On the whole case, I think that an appropriate award of aggravated damages against the first and second defendants is $25,000.00. For interest on that amount I award $2,000.00.

104. I direct the entry of judgment for the plaintiff against all three defendants for $54,000.00. I direct the entry of judgment for the plaintiff against the first and second defendants for an additional $27,000.00.

105. Unless counsel wish to be heard to the contrary, I would order the defendants to pay the plaintiff's costs.