Brendon Kelson v David Syme & Co Pty Ltd [1998] ACTSC 246 (3 July 1998)

  
  
  
  

  
   

  

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   CRISPIN J

  

  

   Defamation - imputations
- distinction between what the reader would
understand from the article and conclusion drawn from belief excited by
article whether
secondary inferences may be taken into account - article to be
construed as a whole - relevance of form and layout.

  

   Damages
- injury to reputation - relevance of reputation and social
standing - higher sum necessary to vindicate reputation damaged throughout
the
country - importance of injury to feelings.

  

   Aggravated Damages - where injury made worse due to conduct which is
unjustifiable,
improper or lacking bona fides - publication of baseless
imputations without inquiring of plaintiff.

  

   Exemplary Damages -
where publication in contemelious disregard of
plaintiff's rights - reckless indifference to truth.

  

   Defamation Act 1974 (N.S.W.)

   Australian War Memorial Act 1980

  

   Lewis v Daily Telegraph (1964) AC 234 at 258-259

   Slatyer v The Daily Telegraph Newspaper Co Ltd [1908] HCA 22;  (1908) 6 CLR 1 at 7

   Sim v Stretch (1936) 52 TLR 669 at 671

   Farquhar v Bottom (1980) 2 NSWLR 380 at 386

   Amalgamated
Television Services v Marsden (unreported, NSW Court of Appeal)
4 February 1998

   Chakravarti v Advertiser Newspapers Ltd unreported
 [1998] HCA 37 (20 May
1998

   Steele v Mirror Newspapers Ltd (1974) 2 NSWR 348 at 373

   Mirror Newspapers Ltd v Harrison [1982] HCA 50;  (1982) 149 CLR 293

   Bargold Pty Ltd v Mirror Newspapers Ltd (1981) 1 NSWLR 9 at 12

   Lewis v Daily Telegraph Ltd [1963] 2
WLR 1063, at 1095

   Hepburn v TCN Channel Nine Pty Ltd (1983) 2 NSWLR 682 at 692

   Sergi v Australian Broadcasting Commission
(1983) 2 NSWLR 669 at 671

   Drummoyne Municipal Council v ABC (1990) 21 NSWLR 135, at 148-151

   Baffsky v John Fairfax &
Sons Limited [1991] ACTSC 58;  (1991) 106 FLR 21

   Swan v Federal Capital Press of Australia Pty Ltd & Anor (unreported,
ACT Supreme Court, 28 May 1993)
per Master Hogan

   Chalmers v Payne (1835) 2 CM & R 156

   English and Scottish Co-Operative Properties Mortgage and Investment
Society Ltd v Odhams Press Ltd [1940] 1 KB 440

   Slim v Daily Telegraph Ltd [1968] 2 QB 157

   Charleston v Newsgroup Newspaper
Ltd [1995] UKHL 6;  (1995) 2 AC 65

   Carson v John Fairfax & Sons Ltd [1993] HCA 31;  (1993) 178 CLR 44 at 69

   Horrocks v Lowe [1975] AC 135 at 149

   Crampton v Nugawela (1996) 41 NSWLR 176, at 193

   Associated
Newspapers Ltd v Dingle (1962) 3WLR 229

   Thompson v Australian Capital Television Pty Ltd & Ors (1997) 129 ACTR
14 at 20

   Kelson v Forward (1995) 60 FCR 39

   Guidelines on Official Conduct of Commonwealth Public Servants

   Broome v Cassell &
Co (1972) AD 1027

   Gatley on Libel and Slander (9 th edition 1998) at 789

   Pilcher v Knowles (1900) 19 NZLR 368 at 378

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

   Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 per Hunt
J
at 74-75

   Mirror Newspapers Ltd v Fitzpatrick (1984) 1 NSWLR 643 at 660

   Rigby v Associated Newspapers Ltd (1969) 1 NSWLR
729 per Walsh JA at 740

   Bogusz v Thompson (1989) 95 FLR 167

   Hallet v Schoevers (1992) 109 ACTR 1

  

  

   CANBERRA, 25-28
May and 15 June 1998 (hearing), 3 July 1998 (decision)

   #DATE 3:7:1998

  

   Counsel for the Plaintiff: Mr T Tobin QC with Mr
P Hohnen

   Instructing Solicitors: Colquhoun Murphy

   Counsel for the Defendant: Mr S Wheelhouse

   Instructing Solicitors:
Minter Ellison Solicitors

  

  

   THE COURT ORDERS THAT:

  

   1. There be judgment for the plaintiff in the sum of $82,500.00.

  

  

   CRISPIN J

  

   1. This is an action for libel. On 20 November 1994 the defendant published
an article in "The Sunday
Age" in the following terms:

  

   War Memorial chief leaves during probe

  

   By Paul Daley,

   National affairs

  

   The
director of the Australian War Memorial, Mr Brendon Kelson, has retired
suddenly during an inquiry into dozens of allegations of
harassment in the
workplace.

  

   On Friday, the Minister for Veterans' Affairs, Mr Con Sciacca, announced Mr
Kelson's retirement
after five years in the job. Earlier this year, the
Minister assisting the Prime Minister on Public Service Matters, Mr Gary
Johns,
ordered an inquiry into the harassment allegations.

  

   The inquiry by the Merit Protection Review Agency - the Comonwealth's
employee-relations watchdog - is the first big test of the guidelines on
workplace behaviour in the Public Service introduced last
May.

  

   The agency is investigating up to 360 issues relating to workplace
harassment at the War memorial. Nine people, including
a woman are believed to
have been the subject of complains dating back 10 years.

  

   Sources say some staff have considered early
retirement or resignation
since the inquiry began. Others are on stress leave.

  

   Under the new guidelines, workplace harassment
covers:

  

   Offensive physical contact or coercive behaviour intended to be derogatory
or intimidating.

  

   Interference
with a person's work space, work materials, equipment or
property.

  

   Unjustified and unnecessary comments about a person's
work or capacity for
work.

  

   "Continual exclusion of a person or group from normal conversation, work
assignments, work-related
social activities and networks in the workplace".

  

   The guidelines draw attention to instances of harassment that centre on
the
social aspect of work rather than the work itself.

  

   "An example of this type of harassment may be when individuals or
groups
are intentionally excluded from functions such as official lunches or happy
hours where that behaviour is designed to offend
the excluded person," the
guidelines stipulate.

  

   In evidence for estimates hearings before the finance and public
administration
legislative committee last Thursday, the deputy public service
commissioner, Mr Peter Kennedy, said the guidelines did not seek "to
determine
who your friends are outside the workplace . . . it is seeking to determine
your behaviour in the workplace. "I think you
have got to look at the factual
situation and work out whether a person does feel threatened, humiliated or
intimidated in the workplace
as a result of what's happening," Mr Kennedy
said.

  

   Asked if the test was "whether a person feels they are being excluded",
Mr
Kennedy said: "I think there'd always be a bit of common sense in the
application. I mean, if I was a very paranoid person who
took offence to
things that no one else took offence to, well I think maybe when people looked
at it . . . that on no reasonable
definition is harassment."

  

   The associate director of the agency, Ms Charlotte Blesing, said the
inquiry into allegations
of workplace harassment at the Australian War
Memorial was confidential. She would not discuss the nature of the complaints
and said
the agency would report to Mr Johns as soon as possible.

  

   "We are hoping to finish as soon as possible but have given people
time to
respond to allegations and we can't produce a report until we have received
responses from those people," she said.

  

   2. The article was given added prominence in the paper by a reference to it
on the first page. That reference was headed "Director
Retires" and stated
"The Australian War Memorial's director has retired suddenly during an inquiry
into allegations of harassment
in the workplace. Report Page 4".

  

   3. In fact the plaintiff's term of office was due to expire at the end of
1994 and he had
informed Dame Beryl Beaurepaire, the Chairman of the Council,
as early as 25 May 1994 that he did not intend seeking any further
term. It is
abundantly clear that his decision to retire when he did had nothing to do
with any investigation into workplace harassment
at the War Memorial.

  

   4. By letter dated 24 November 1994 the plaintiff's solicitors wrote to the
defendant's solicitors complaining
of the defamatory nature of the article
and, in particular, the imputation that the plaintiff had retired prematurely
"under a cloud"
in order to avoid the inquiry. The letter referred to the
considerable embarrassment which the article had caused and to the plaintiff's
concern as to its impact upon his reputation. It advised the defendant that
the plaintiff had for some time intended to retire at
the end of 1994 and
mentioned that a farewell dinner had been conducted prior to the article in
question. It complained of the journalist's
failure to make any inquiries of
the plaintiff or his office prior to publishing the article and expressed the
fear that the harm
done to his reputation might result in financial loss after
his retirement if it resulted in his inability to obtain various appointments
and consultancies that he would have otherwise anticipated. It also asserted
that the complaints being investigated by the Merit
Protection Review Agency
('MPRA') were not primarily directed to the plaintiff and that those which had
been made against him "border
on the farcical". The letter suggested that a
very full retraction and apology should be published on page 3 of the Sunday
Age on
27 November 1994 in a form to be agreed between the solicitors for the
parties but noted that the plaintiff reserved his right to
damages and costs
in any event.

  

   5. In fact an apology was published but not until 11 December 1994. The
apology appeared,
as requested, on page 3 of the Sunday Age for that date but
Mr Tobin QC, who appeared for the plaintiff, submitted that it was not
sufficiently prominent, did not unequivocally acknowledge the imputations
contained in the original article and apologised only for
the particular
imputation that his retirement was related to the investigation into workplace
harassment.

  

   Imputations

 


   6. Mr Tobin contended that this article gave rise to a number of gravely
defamatory imputations. On the other hand, Mr Wheelhouse,
who appeared for the
defendant, argued that as a matter of law the article was not capable of
giving rise to the alleged imputations
but even if it was those imputations
did not in fact arise.

  

   7. Issues of this kind fall to be resolved by reference to an
objective
standard. In Lewis v Daily Telegraph (1964) AC 234 at 258-259, Lord Reid
summarised the general principles in the following
terms:

  

  

   "There is no doubt that in actions for libel the question is what the words
would convey to the ordinary man:
it is not one of construction in the legal
sense. The ordinary man does not live in an ivory tower and he is not
inhibited by a knowledge
of the rules of construction. So he can and does read
between the lines in the light of his general knowledge and his experience
of
wordly affairs . . . . What the ordinary man would infer without special
knowledge has generally been called the natural and ordinary
meaning of the
words. But that expression is rather misleading in that it conceals the fact
that there are two elements in it. Sometimes
it is not necessary to go beyond
the words themselves, as where the plaintiff has been called a thief or a
murderer. But more often
the sting is not so much in the words themselves as
in what the ordinary man will infer from them, and that is also regarded as
part
of their natural and ordinary meaning Ö. Ordinary men and women have
different temperaments and outlooks. Some are unusually
suspicious and some
are unusually naÔve. One must try to envisage people between these two
extremes and see what is the most
damaging meaning they would put on the words
in question."

   8. See also Slatyer v The Daily Telegraph Newspaper Co Ltd [1908] HCA 22;  (1908) 6 CLR 1
at 7 ; Sim v Stretch (1936) 52 TLR 669 at 671; Farquhar v Bottom (1980) 2
NSWLR 380 at 386; Amalgamated Television
Services v Marsden (unreported, NSW
Court of Appeal) 4 February 1998 per Hunt CJ at CL at 11 and 12.

  

   9. The hypothetical
ordinary reader has been variously described as a
"reasonable reader", a "right-thinking member of society" or an "ordinary man,
not avid for scandal" and sometimes as a "reader of average intelligence".
Special knowledge is excluded and so are extremes of suspicion
or cynicism on
the one hand and naivity and disbelief on the other: Chakravarti v Advertiser
Newspapers Ltd unreported,  [1998] HCA 37 (20 May 1998) per Kirby J at
paragraph 133.1.

  

   10. In deciding whether any particular imputation is capable of being
conveyed
by the material in question the issue is whether it is "reasonably so
capable, and any strained or forced or unreasonable interpretation
must be
rejected" (per Hunt CJ at CL in Amalgamated Television Services v Marsden at
11). However, a wide degree of latitude will
be attributed to the capacity of
the ordinary reasonable member of society to draw adverse imputations where
the language employed
has been imprecise, ambiguous or loose: Amalgamated
Television Services v Marsden at 12 and Chakravarti v Advertiser Newspaper Ltd
at paragraph 133. 2.

  

   11. It has been said that the nature of the publication is a material
consideration in determining whether
imputations are capable of being conveyed
by the words employed. The reasonable reader of a "sensational" article may be
permitted
to engage in a certain amount of "loose thinking" whilst the reader
of a non-sensational article should be taken to apply a greater
degree of
analytical focus: Steele v Mirror Newspapers Ltd (1974) 2 NSWR 348 at 373.

  

   12. It is clear from the decision of
the High Court of Australia in Mirror
Newspapers Ltd v Harrison [1982] HCA 50;  (1982) 149 CLR 293 that a report which merely states
that a person had been arrested and charged with an offence will be incapable
of bearing the imputation that he was guilty or probably guilty of that
offence. Of course, such an article may well provoke speculation
that the
person was guilty of the offence charged but the High Court concluded that any
adverse opinions formed from such an article
would have been derived from the
unreasonable responses of readers rather than from the publication itself. See
also Steele v Mirror
Newspapers Ltd at 356.

  

   13. In the present case, Mr Wheelhouse submits that similar considerations
apply. The article merely
asserted that there was an inquiry into numerous
allegations of harassment in the workplace. The reasonable reader, he
maintained,
is not permitted to impute guilt on such a basis. Furthermore, the
article did not even suggest that the allegations had been made
against the
plaintiff. It had asserted only that the allegations related to harassment at
the War Memorial and that the subject of
complaints concerned nine people
including a woman.

  

   14. Mr Wheelhouse also referred to the distinction drawn by the New South
Wales Court of Appeal in Amalgamated Television Services v Marsden, per Hunt
CJ at CL at 14, between what the ordinary reasonable
reader could understand
from what the defendant had said in the article and the conclusion which the
reader could reach by taking
into account his or her own belief which had been
excited by what was said. This is obviously a valid distinction and one of
some
importance in the present case.

  

   15. Mr Wheelhouse also relied upon His Honour's statement at 15-16 that
when a reader draws
an inference fairly available from the published material
and then uses that inference as a basis for a further inference the publisher
will be held responsible for the first but not for the second. His Honour
expressed the view that it would be unreasonable for the
publisher to be held
responsible for the second inference. This distinction was said to be
illustrated by reference to the principle
acknowledged in Mirror Newspapers
Ltd v Harrison that where a report merely stated that a person had been
arrested and charged with
an offence it was incapable of bearing the
imputation that he or she was guilty or probably guilty of that offence. His
Honour said
that the first inference available from such a statement was that
the police believed the plaintiff to be guilty or had grounds for
charging him
and that inference was justified. The second inference was that the plaintiff
was in fact guilty of the offence charged
but this was not justified because
it was based at least in part upon the first. However, Mason J, with whom the
other members of
the Court agreed, found, at 300, that imputations of guilt
were not justified in the circumstances mentioned "even if we put aside
the
emphasis that has been given to the process of inference on inference that is
involved in reaching a contrary conclusion". Accordingly,
the decision does
not offer any support for the test which His Honour had propounded, though it
is equally true that it was not held
to be inappropriate.

  

   16. His Honour made the same point in an earlier decision of the New South
Wales Court of Appeal in
Bargold Pty Ltd v Mirror Newspapers Ltd (1981) 1
NSWLR 9 at 12 where he relied upon the judgment of the Lord Hodson in Lewis v
Daily
Telegraph Ltd (1964) AC 234 at 274.

  

   17. Successive decisions of the New South Wales Court of Appeal are
obviously entitled
to considerable respect and I would be reluctant to depart
from a principle clothed with such authority, especially in the absence
of
persuasive authority to the contrary. However, the test traditionally posed by
the authorities is simply whether the material
in question was reasonably
capable of conveying the relevant imputation. In my view any distinction
between primary and secondary
inferences must be considered in the context of
that test rather than as a basis for some new and additional test. There may
be many
circumstances such as those arising in Mirror Newspapers v Harrison ,
in which the first inference could fairly be drawn from the
published material
but a second inference drawn from the first could not be regarded as an
imputation reasonably drawn from that
material. Hence, in the passage in Lewis
v Daily Telegraph Ltd to which Hunt CJ at CL referred, Lord Hodson at 274 held
that it would
be unreasonable to infer guilt from an inference of suspicion.
It was in this context that His Lordship added that this would be
"to draw an
inference from an inference and to take two substantial steps at the same
time". At the other extreme, there may be circumstances
in which the second
inference may be regarded as an almost inevitable corollary of the first and
there are strong grounds for concluding
that a reasonable reader would also
draw that secondary inference. In these circumstances there would be no
apparent reason to regard
the drawing of that inference as unreasonable or to
deny that the material is capable of conveying such an imputation. Of course,
it may sometimes be possible to find that the same imputation has been
conveyed by means of a primary inference rather than a secondary
inference,
but it is difficult to see why liability for a defamatory imputation should
depend upon the precise intellectual route
by which it should be taken to have
been conveyed to the hypothetical reasonable reader.

  

   18. I do not take His Honour's judgment
to suggest any departure from the
traditional test to which I have referred. However, if as Mr Wheelhouse
contended, the judgment
should be read as requiring the assumption that the
drawing of a secondary inference will always be unreasonable then, with great
respect to His Honour, I would be unable to accept this proposition.

  

   19. On the second day of the hearing the defendant withdrew
several
defences, leaving liability to be determined according to whether the article
was libelous and in particular whether it gave
rise to the imputations
alleged. Liability now falls to be determined according to whether the article
was capable of conveying some
or all of particular imputations which have been
pleaded and whether any such imputations were in fact so conveyed.

  

   20. As
Mr Tobin observed, section 9(2) of the Defamation Act 1974 (N.S.W.)
relates a cause of action for defamation in New South Wales to an imputation
defamatory of another person. This statutory
emphasis upon imputations may be
responsible for what Hutley JA described as "the search for excessive
precision in pleading in defamation
actions": Hepburn v TCN Channel Nine Pty
Ltd (1983) 2 NSWLR 682 at 692. This has led to attempts to put a plaintiff in
a "straight
jacket", to use another phrase adopted by His Honour: Sergi v
Australian Broadcasting Commission (1983) 2 NSWLR 669 at 671. See also
the
remarks of Kirby J in Drummoyne Municipal Council v ABC (1990) 21 NSWLR 135,
at 148-151. There is no comparable provision in
this Territory or the other
jurisdictions in which the relevant article was published. In this court the
imputations are but particulars:
Baffsky v John Fairfax & Sons Limited [1991] ACTSC 58; 
(1991) 106 FLR 21: Swan v Federal Capital Press of Australia Pty Ltd &
Anor (unreported, ACT Supreme Court, 28 May 1993 )per
Master Hogan. Of course,
that does not mean that they should not be drafted with reasonable precision
but as in other cases it is
generally sufficient that they indicate the nature
of the case which the defendant is required to meet.

  

   21. In the present
case the word "guilty" has been used in pleading several
imputations. In the context, I think that this word should not be understood
as meaning anything more than that the article conveys the meaning that the
plaintiff had behaved in the harassing manner particularised.

  

   The plaintiff in his position as Director of the Australian War Memorial
('AWM') was guilty of sexual harassment.

  

 
 22. In support of this allegation Mr Tobin submitted that the extract from
the MPRA guidelines had been inserted "to titillate readers"
and that there
had been a clear connection between the plaintiff's sudden retirement and the
examples of harassment set out in the
depiction of the torn off sheet of
paper. He argued that this depiction had been so placed as to attract the
reader's eye and "to
give the whiff of some sort of sexual misconduct linked
with the allegations". He also relied upon the following comments of Lord
Devlin in Lewis v Daily Telegraph Ltd [1963] 2 WLR 1063, at 1095:

  

  

   "It is not, therefore, correct to say as a matter of
law that a statement
of suspicion imputes guilt. It can be said as a matter of practice that it
very often does so, because although
suspicion of guilt is something different
from proof of guilt it is the broad impression conveyed by the libel that has
to be considered
and not the meaning of each word under analysis. A man who
wants to talk at large about smoke may have to pick his words very carefully
if he wants to exclude the suggestion that there is also a fire; but it can be
done. One always gets back to the fundamental question:
what is the meaning
that the words convey to the ordinary man: you cannot make a rule about that.
They can convey a meaning of suspicion
short of guilt; but loose talk about
suspicion can very easily convey the impression that it is a suspicion that is
well founded."

   23. Mr Tobin submitted that having regard to the form and content of the
article this was a case in which the reference to the
plaintiff's sudden
retirement during the course of the inquiry clearly implied that the
allegations were well founded. He also submitted
that whilst those allegations
were expressed in terms of workplace harassment, the hypothetical reasonable
reader would have readily
assumed that that phrase alluded to harassment of a
sexual nature.

  

   24. I accept the first of these submissions. In my view
the assertion that
the plaintiff had retired suddenly during an inquiry into allegations of
harassment would almost inevitably have
conveyed to the reasonable reader the
imputation that he had retired in order to avoid findings that he was guilty
of workplace harassment.

  

   25. As previously mentioned a report which does no more than state that a
person has been arrested and charged with a criminal
offence is incapable of
bearing the imputation that he is guilty or probably guilty of that offence.
In the present case the reference
to the inquiry was not accompanied by any
statement to the effect that the plaintiff had been charged with any such
allegation and
it was not open to a reasonable reader to conclude that some
presumably responsible officer had made a judgment to the effect that
there
were adequate grounds for maintaining legal proceedings against him.
Accordingly, Mr Wheelhouse submitted that there was even
less basis for an
imputation of guilt. The difficulty with this argument is that it ignores the
obvious causal link suggested between
the inquiry and the plaintiff's sudden
retirement. In my view, an ordinary reasonable reader, drawing on his or her
own knowledge
and human affairs would almost inevitably conclude that a very
senior public official would not have suddenly retired unless the
allegations
or at least some of the allegations had been true and he had grounds to fear
that his misconduct would be exposed by
the inquiry. It is, of course,
conceivable that a person in such a position might be tempted to retire early
in order to avoid the
stress and embarrassment of having to respond to wholly
false allegations, especially if he had already been considering retirement.
However, the adverb "suddenly" tends to militate against such a benevolent
construction. It evokes the image of a man suddenly deserting
his post due to
fear of exposure.

  

   26. Mr Wheelhouse also submitted that such a conclusion involved reliance
upon inference
upon inference. The first inference, he contended, was that the
inquiry into allegations of harassment had led to his retirement.
The second
inference was that the inquiry would not have had such an affect if he had not
been guilty of workplace harassment. Whilst
the former inference might be
available, he submitted that it would have been unreasonable for a reader to
have drawn the second
inference and hence the defendant should not be held
responsible for any such imputation. Whilst it is possible for an imputation
of guilt to be conveyed by an intellectual process involving such sequential
deduction, it seems to me to be more likely that the
average reader would have
simply concluded that the plaintiff would not have suddenly retired unless he
had been guilty. Whatever
the process of reasoning, however, I am satisfied
that the article was capable of and did in fact convey an imputation that the
plaintiff
was guilty of workplace harassment.

  

   27. On the other hand I do not accept the submission that a reasonable
reader would have
assumed that the reference to workplace harassment had
sexual connotations.

  

   28. In my view an otherwise unqualified reference
to harassment or
workplace harassment should not be read as imputing harassment of a sexual
nature. The article does not contain
the adjective "sexual" and whilst the
examples of harassment given prominence in the article include "offensive
physical contact
. . ." this is only one of several examples said to
constitute workplace harassment. Indeed, the text of the article suggests that
such harassment may extend to the exclusion of individual or groups from
social functions.

  

   29. There is a long line of authority
to the effect that the nature and
ordinary meaning of words said to be defamatory must be determined by
reference to their context
and the mode of publication. Hence, a plaintiff
cannot complain of one passage taken in isolation if qualified by others:
Chalmers
v Payne (1835) 2 CM & R 156 ; English and Scottish Co-operative
Properties Mortgage and Investment Society Ltd v Oldhams Press
Ltd [1940] 1 KB
440 ; Lewis v Daily Telegraph Ltd and Slim v Daily Telegraph Ltd [1968] 2 QB
157. I am conscious of the observations
of Kirby J in Chakravati v Advertiser
Newspaper Ltd at paragraph 133.3 in criticizing the decision of the House of
Lords in Charleston
v Newsgroup Newspaper Ltd [1995] UKHL 6;  [1995] 2 AC 65 for rejecting the
proposition that a headline could be defamatory when the text beneath was
inconsistent with the
defamatory imputation alleged. His Honour expressed the
view that their Lordships approach ignored the realities of the way in which
ordinary people receive and are intended to receive articles in newspapers and
also ignored changes in media technology and presentation.
However, even if
one were to approach the article on the basis of the general impression which
a reader might be expected to receive
from a cursory glance at its form and
layout it is difficult to find adequate support for the plaintiff's contention
that it conveyed
an imputation of harassment of a sexual nature.

  

   30. Mr Tobin's most persuasive submission was that in determining whether
the words were capable of conveying this imputation I should take into account
the likelihood that a reasonable reader would have
assumed that only fear of a
finding that he had been guilty of sexual harassment could have induced him to
suddenly retire. As previously
mentioned, I accept that a reasonable reader
may have thought that his sudden retirement was attributable to allegations of
workplace
harassment which were both serious and well founded. However, in the
context of the examples of harassment contained in the article
I am not
satisfied that a fair minded reader would have construed the article as
imputing guilt of harassment of a sexual nature.
I accept that some people
reading the article in November 1994 may have assumed that the plaintiff was
guilty of harassment of that
kind but any such assumption would in my view
have been based upon speculation rather than the form and content of the
article. In
other words, it would not have been what the ordinary reasonable
reader would have understood from what the defendant had said in
the article
but rather a conclusion which the reader could have reached by taking into
account his or her own belief which had been
excited by what had been said.

  

  "(b) The plaintiff in his position as Director of the Australian War Memorial
was guilty of
one or more of the following instances of harassment:"

  ""

  "(i) offensive physical contact or coercive behaviour which is intended
to be
derogatory or intimidating;"

  ""

  "(ii) insulting or threatening gestures;"

  ""

  ""interference with a person's workspace,
work materials, equipment or property,
apart from that which is necessary for the ongoing work of the agency.

  

   The instance
or instances were so serious as to warrant the plaintiff's
forced resignation.

  

   31. Mr Wheelhouse submitted that the article
was incapable of conveying
this imputation because the types of harassment listed were only examples of
behaviour which could be
regarded as constituting workplace harassment. The
article did not say that the plaintiff had been guilty of any harassment and,
even if a reader deduced that he must have been one of the nine members of
staff against whom allegations had been made, the nature
of any allegations
made against him was not stated. Accordingly, to find any imputation of the
kind suggested would require a process
of inference upon inference.

  

   32. On the other hand, Mr Tobin submitted that it was necessary to consider
what inferences
might be drawn by an ordinary member of the community not
prone to interpreting newspaper articles as a lawyer might interpret a
statute. Having regard to the form and layout of the article as a whole such a
person might have concluded that the plaintiff must
have been guilty of one or
more of the instances of behaviour in question. Those instances were given
added prominence by being featured
in the depiction of the torn off sheet of
paper and constituted three of the only four examples cited in the article.
The fourth
related to exclusion from meetings and functions and it was
inconceivable that readers would have thought that such an allegation
could
have prompted the plaintiff's retirement. There was no hint of any other
behaviour which might have caused his sudden departure.

  

   33. In answer, Mr Wheelhouse relied upon the principle that a reasonable
reader should be taken to read the entirety of the
published material and
refrain from drawing adverse inferences from some part of that material when
other parts effectively refuted
such inferences or otherwise undermined their
bases. This principle had been challenged in Charleston v Newsgroup Newspapers
Ltd
when, as I have mentioned, the House of Lords rejected the proposition
that a prominent headline and photograph might found a claim
in libel in
isolation from the related text because some readers only read headlines.
Notwithstanding the criticism of Kirby J in
Chakravarti v Advertiser Newspaper
Ltd at 133.3 and, if I may say so with respect, my own misgivings about the
validity of this presumption,
I would be reluctant to depart from so weighty
an authority as that provided by a recent and unanimous decision of the House
of Lords.
However that decision did not lay down any principle to the effect
that a reader must be expected to have taken due cognizance of
every word in
the article and to ignore different emphases arising from the layout. Indeed
their Lordships affirmed previous authority
to the effect that it is necessary
to take into account the context in which the words were used and the mode of
publication. Their
Lordships said at 70 that the "locus classicus" was a
passage from the judgment of Alderson B in Chalmers v Payne (1835) 2 CM and
R
156 at 159 where he said:

  

  

   "But the question here is, whether the matter be slanderous or not, which
is a question for
the jury; who are to take the whole together, and say
whether the result of the whole is calculated to injure the plaintiff's
character.
In one part of this publication, something disreputable to the
plaintiff is stated, but that is removed by the conclusion; the bane
and
antidote must be taken together."

   34. In Charleston v Newsgroup Newspapers Ltd counsel for the appellant had
argued that
the earlier authorities had been explicable on the basis that the
allegedly defamatory matter with which they had been concerned
had been so
located within the document that there was no likelihood of it being read in
isolation. In those circumstances it had
been natural and proper to look for
the meaning conveyed to the reader by considering the publication as a whole.
However, the techniques
of modern tabloid journalism now involves eye catching
headlines or other features which are intended to attract the reader's
attention
and it is likely that a significant number of readers will not
trouble to read any further. Since this is well known to newspaper
editors and
publishers they should not be entitled to complain if they are held liable for
damages for any libel this published to
those readers. Their Lordships
acknowledged the attractiveness of this argument but expressed the view that
it fell foul of two principles
which were basic to the law of libel. The first
was that where no innuendo was alleged to arise from extrinsic circumstances
known
to some readers, the natural and ordinary meaning to be ascribed to the
words were those which the words would convey to the mind
of "the ordinary,
reasonable, fair-minded reader". The second, which was said to be a corollary
of the first, was that the jury in
a libel action is required to determine
"the single meaning which the publication conveyed to the notional reasonable
reader" and
to base its verdict on the assumption that this was the one sense
in which all readers would have understood it. Lord Nicholls of
Birkenhead
described the principle of adopting a single standard for determining whether
an article is defamatory as a "crude yardstick".
He concurred with the other
members of the court in maintaining that long held principle but added:

  

  

   "This is not to say
that words in the text of an article will always be
efficacious to secure a defamatory headline. It all depends on the context,
one
element in which is the layout of the article. Those who print defamatory
headlines are playing with fire. The ordinary reader might
not be expected to
notice curative words tucked away further down in the article. More so, if the
words are on a continuation page
to which a reader is directed. The standard
of the ordinary reader gives a jury adequate scope to return a verdict meeting
the justice
of the case."

   35. Lord Bridge of Harwich with whom Lord Goff of Chieveley, Lord Jauncey
of Tullichettle and Lord Mustill agreed,
also said at 72 that whether the text
of newspaper articles would be sufficient to neutralise the defamatory
implication of a prominent
headline would sometimes be a nicely balanced
question, which would depend not only on the nature of the libel which the
headline
conveys and the language of the text relied upon to neutralise it but
also the manner in which the whole of the relevant material
is set out and
presented.

  

   36. In the present case, as I have mentioned, there was a short statement
on the first page of
the newspaper to the effect that the plaintiff had
retired suddenly during an inquiry into allegations of harassment in the
workplace.
That statement was not qualified in any way other than by reference
to the fact that there was a report on page 4. Even if the reasonable
reader
had turned to page 4 to read that report, the impression already created would
have been strengthened by the prominent headline
"War Memorial Chief Leaves
During Probe". That impression would have been further confirmed by the
statement in the very first paragraph
of the text to the effect that he had
retired suddenly during an inquiry into "dozens of allegations of harassment
in the workplace".
Furthermore, the depiction of the torn off sheet of paper
listing examples of workplace harassment was immediately beneath the headline
and adjacent to the initial paragraph of the text to which I have referred.
The examples given prominence in that manner corresponded
to the instances of
harassment referred to in the imputation alleged. If the reasonable reader had
proceeded to read the whole of
the article he or she would have found those
examples of harassment repeated at the foot at the first paragraph. It is true
that
the article referred to a further example of harassment constituted by
continual exclusion from conversations and activities but,
as previously
observed, the reasonable reader was unlikely to have concluded that the
plaintiff had suddenly retired to avoid a finding
of harassment of that kind.
In my view there is nothing in the article to dispel the impression that the
allegations of harassment
against the plaintiff included one or more of the
instances referred to in the depiction of the torn off sheet of paper and
repeated
during the text of the article.

  

   37. Mr Wheelhouse submitted that even if the document should be understood
in this sense
that did not mean that the ordinary reader would have assumed
that the plaintiff was guilty of any of those allegations. For the
reasons
previously given I do not accept this submission.

  

   38. In all the circumstances I am satisfied that the article was
capable of
and did in fact convey the defamatory imputation alleged.

  

   (c) The plaintiff in his position as Director of the
Australian War
Memorial was guilty of harassment which was so serious that he had to
relinquish his office.

  

   39. I am also
satisfied that the article was capable of and did in fact
convey this imputation. In my view, even the most fair minded reader would
find this imputation virtually inescapable. It would have been difficult to
imagine that the plaintiff had suddenly retired merely
to avoid answering
false or trivial allegations and the logical inference was that he had been
guilty of harassment which was so
serious that he had to relinquish his
office.

  

   (d)) That the plaintiff had behaved in a cowardly way in that he
prematurely
resigned as Director of the Australian War Memorial because he was
being investigated for harassment.

  

   40. Mr Tobin contended
that the article was capable of bearing this
imputation because the article obviously suggested that his sudden retirement
had been
prompted by the inquiry and his departure could therefore be seen as
involving a decision to flee rather than face the allegations
against him. An
incumbent of the very senior position which the plaintiff held would not
normally have been expected to retire suddenly.
It may not be easy to find a
suitable replacement on short notice and such a departure might cause
significant disruption. The only
obvious motivation for a person charged with
significant responsibilities to behave in that way would be cowardice.

  

   41. Whilst
it is possible that some readers may have seen his decision as
cowardly, I think it is more likely that the ordinary reasonable reader
would
have construed the reference to his sudden retirement as being evidence of his
guilt rather than as evidence of a lack of courage
to face the allegations.
Accordingly, I do not find that the article bears this imputation.

  

  "(e) The plaintiff's conduct as
director of the Australian War Memorial was
such that he was reasonably suspected of harassment so serious as to warrant
his removal
from office."

  ""

  ""42. Mr Tobin indicated that this allegation reflected a "fallback" position
and that the allegation would
not be pressed in the event that there was a
finding in the plaintiff's favour in relation to any of the allegations that
the article
conveyed imputations that he was guilty of harassment.
Consequently, this issue does not need to be determined.

  

   (f) The plaintiff
so misconducted himself as Director of the Australian War
Memorial that he resigned rather than respond to allegations.

  

   43.
Whilst Mr Tobin did not specifically indicate that this allegation also
reflected a fallback position it seems to fall into that
category. The
allegation appears to be a somewhat diluted version of earlier allegations
which I have found to be substantiated.
In any event, there is nothing in the
article to suggest that the plaintiff had misconducted himself other than in
relation to the
articles of harassment. I am not prepared to find any further
imputation of this kind.

  

   (g) The plaintiff had so mismanaged
his job as Director of the Australian
War Memorial that he resigned in the face of the investigation by the Merit
Protection Review
Agency into the Australian War Memorial.

  

   44. It is conceivable that a reader might think that the plaintiff must
have been
guilty of mismanagement to permit circumstances to arise in which
such extensive allegations of harassment had been made concerning
staff at the
Australian War Memorial even if he had not been personally guilty of any such
behaviour. Indeed, if I had not been satisfied
as to one or more imputations
of guilt, I would have concluded that this was the most likely inference.
However, in view of the findings
I have made, I am not satisfied that such an
imputation is fairly conveyed by the article.

  

   True innuendoes

  

   45. The
plaintiff also pleaded a number of true innuendoes namely:

  

  "(a) The plaintiff as Director of the Australian War Memorial was
guilty of
harassment so serious as to warrant his removal from office."

  ""

  "(b) The plaintiff as Director of the Australian
War Memorial was guilty of
harassment so serious as to require him to relinquish his office."

  ""

  "(c) The plaintiff's conduct
as Director of the Australian War memorial was
such that he was reasonably suspected of harassment so serious as to warrant
his removal
from office."

  

   46. In support of these allegedly true innuendoes the plaintiff relied upon
the following particulars:

  

   (1) The statutory appointment of the plaintiff for a fixed term by the
Governor-General in Council pursuant to section 24 of the Australian War
Memorial Act 1980.

  

   (2) The terms of an appointment to a statutory office such as that held by
the plaintiff whereby he could be removed for
misbehaviour.

  

   (3) The custom within the Federal and State Public Services and statutory
authorities whereby a public servant
or the holder of a statutory office who
is liable to be removed for certain misbehaviour may be permitted to take the
option of early
retirement.

  

   47. Mr Tobin made it plain that the plaintiff relied upon the true
innuendoes only in the event that the natural
and ordinary meaning of the
article was held insufficient to convey any imputations to the effect that the
plaintiff had been guilty
of harassment. Having regard to this concession and
the findings which I have made, it is clear that no issue arises for
determination
in relation to the innuendoes alleged.

  

   Damages

  

   48. Mr Tobin submitted that the plaintiff is entitled to damages for
the
injury to his feelings and reputation which would be sufficiently large to
vindicate his reputation. It is clear that general
damages for libel may
encompass these elements: Carson v John Fairfax & Sons Ltd [1993] HCA 31;  (1993) 178 CLR
44 at 69.

  

   Injury to reputation

  

   49. In Horrocks v Lowe [1975] AC 135 at 149 Lord Diplock observed
that "as
a general rule English law gives effect to the ninth commandment that a man
shall not speak evil falsely of his neighbour.
It supplies a temporal sanction
. . ." He referred to the public interest that "the law should provide an
effective means whereby
a man can vindicate his reputation against calumny . .
." The law does this by enabling a person whose reputation has been damaged
by
defamatory statements to obtain damages. The extent of those damages will, of
course, depend upon the extent of the injury to
the plaintiff's reputation.
That will in turn depend not only upon the gravity of the defamatory
imputations but the nature and extent
of the plaintiff's reputation. As
Mahoney A-CJ observed recently in Crampton v Nugawela (1996) 41 NSWLR 176, at
193, in some cases
"a persons reputation is, in a relevant sense, his whole
life".

  

   50. The plaintiff was a man of considerable prominence. He
was Director of
what was described in evidence as a 'national icon' and had a high profile
within the community. That profile had
been further elevated by the initiative
which he took in arranging for the return and entombment of the "unknown
soldier" and the
considerable publicity which that attracted. There was ample
evidence of his very high reputation. It was also evident that his reputation
was very important to him and that he had hoped to see it recognized by an
award following his retirement. He had also hoped that
his reputation and
standing would enable him to gain appointments to various boards and obtain
consultancies to bodies concerned
with museums or the arts.

  

   51. It is clear that this reputation was seriously damaged and that those
hopes have been dashed.
However, the extent to which that damage was caused by
the article was disputed.

  

   52. Mr Wheelhouse submitted that substantial
damage had already been done
to the plaintiff's reputation by the mere announcement of the inquiry to be
conducted by the MPRA. Newspaper
articles to that effect had appeared on 2
November 1994 and there had been an article in the Bulletin on 15 November
1994. As a matter
of principle, a defendant is not entitled to rely upon other
statements to the same defamatory effect in mitigation of the damages
flowing
from his or her own libel: Associated Newspapers Ltd v Dingle (1962) 3WLR 229.
In any event, the earlier articles did not
suggest that the allegations
concerned the plaintiff or refer to his impending retirement. The defence did
not raise any issue about
the plaintiff's reputation prior to the article
complained of and the evidence did not reveal that those articles had had any
significant
effect upon his reputation.

  

   53. In contrast the article of 20 November 1994 had an immediate impact.

  

   54. The plaintiff
had been due to act as Master of Ceremonies at the launch
of a fund-raising appeal in Melbourne later that week. The meeting was
to be
attended by the Victorian Premier and was organised by Mr David Ford CVO, GM
who was Chief of Protocol for the Department of
Premier and Cabinet. Mr Ford
gave evidence on reading the article in question he gained the impression that
he did not want the plaintiff
involved in the launch. On the following day he
made a telephone call to Ms Ros Casey at the Australian War Memorial, told her
that
the presence of the plaintiff would not help the appeal and suggested
that if he had to be in Melbourne on the day in question he
might have an
extended morning tea rather than attend the function. The plaintiff was on
leave on that day but when subsequently
informed of Mr Ford's message felt
"terribly embarrassed and humiliated". He said that he was concerned at his
non-attendance and
how the other participants would feel about him.

  

   55. Dame Beryl Beaurepaire, who had been Chairman of the Australian War
Memorial, gave evidence that following the publication of the article people
had told her that it was going to be much harder for
her to raise money on the
appeal unless there was a complete rebuttal of the allegations. Thereafter she
found potential donors constantly
raising the article with her and was forced
to defend the plaintiff and tell them that he had told her that he had been
going to
retire at the end of December. On a couple of occasions she had
actually taken the plaintiff with her to meet potential donors "just
so that
they could see he did not look like a monster". Nonetheless, she was left with
the impression that the appeal had not been
as successful as it might
otherwise have been and that in a couple of cases money which had been
promised was not donated.

  


  56. Mr Warren Horton, the Director General of the National Library of
Australia, said that he thought the article must have made
many people
involved in national cultural institutions including the National Library
question his standing. He also said that he
thought that any director of a
major Commonwealth institution would be devastated at allegations that they
had left their job precipitously
for "these reasons".

  

   57. Mr Gordon Darling who had been dealing with the plaintiff in relation
to a proposed donation of
certain works of art by the Gordon Darling
Foundation to the Memorial wrote to Dr McKernan in a letter dated 23 November
1994 which
clearly reflected the fact that as a result of reading the article
he believed that the plaintiff had resigned and was no longer
in a position to
deal with him in relation to the proposed donation.

  

   58. Other people contacted him to express their concern
at what they
apparently regarded as an unjustified attack upon his reputation.

  

   59. Ms Margaret Coldrake, a former Director
of the National Museum of
Australia, had been acquainted with the plaintiff for some time. Despite her
knowledge of him and the excellent
reputation which he then enjoyed Ms
Coldrake gave evidence in the following terms:

  

   "It made me wonder why he would go. It
seemed to be saying that he was
running away from the allegations and I had - I knew Brendon well and I was -
suddenly wondered whether
in fact there might be some truth to some of the
allegations although I found it difficult to believe, it didn't fit with my
knowing
- my knowledge of Brendon but I began to wonder whether there wasn't
some smoke - or some fire where there was smoke. So, yes, it
certainly made me
begin to doubt what was going on."

  

   60. There was other evidence as to the immediate impact upon the
plaintiff's
reputation.

  

   61. When assessing compensatory damages it is relevant to take into account
the likelihood that a higher sum
may be needed to vindicate the reputation of
a person who has suffered hatred, ridicule and contempt throughout the
country: Thompson
v Australian Capital Television Pty Ltd & Ors (1997) 129
ACTR 14 at 20. In the present case, the plaintiff enjoyed a high reputation
and his standing in the community had just been enhanced by publicity
concerning his role in the return and entombment of the unknown
soldier.

  

   62. The Sunday Age had a wide distribution within Australia and I accept
that the reputation of the plaintiff was
significantly damaged.

  

   63. Of course, the various witnesses called by the plaintiff as to his
reputation made it plain that
the publication of the article did not lower him
in their estimation. It is also clear that he continues to maintain a wide
circle
of friends and continues to enjoy a reasonable social life.

  

   64. Mr Wheelhouse argued that the damage caused by the article
was short
lived and cited the quick cessation of entries in the plaintiff's diary
recording approaches by people contacting him abut
it. He also relied upon
evidence from Mr McPherson that he joined with the plaintiff in an expression
of interest to provide consultancy
services in relation to the Shrine of
Remembrance in Victoria in March 1995. In my view, this step is not wholly
inconsistent with
Mr McPherson's evidence that he regarded the plaintiff's
reputation as having been damaged by the publication. The plaintiff's previous
experience may have been regarded as especially relevant to the work which was
to be done in relation to the Shrine of Remembrance.
Mr McPherson may well
have thought that those responsible for determining the consultancy services
might rely upon either their own
knowledge of the plaintiff or direct enquiry
about his ability and integrity rather than his general reputation. Indeed,
the plaintiff
said that the expression of interest was one where he thought
there was a reasonable expectation of a consultancy because of a long
association.

  

   65. Mr Wheelhouse also relied upon the fact that in March 1995 the
plaintiff commenced proceedings in the Federal
Court to quash the MPRA report.
The fact that the plaintiff had commenced those proceedings was reported in
the press and it was
submitted that once those proceedings had been commenced
it would have been clear that the plaintiff was himself the subject of at
least some allegations.

  

   66. Finn J gave judgment on 6 October 1995 quashing the report. See Kelson
v Forward (1995) 60 FCR
39. His Honour's decision reveals that the process
embarked upon by the MPRA was inherently flawed. The inquiry extended beyond
the
issue of workplace harassment into wider questions of staff management.
Indeed, as noted at 48, written advice from the Attorney-General's
Department
had suggested, inter alia, that the inquiry had gone beyond that issue to such
an extent that "workplace harassment appears
to have become an issue of
relative insignificance in the overall inquiry". Furthermore, by letter dated
9 November 1994 the MPRA
advised the plaintiff that it had adopted a
definition of workplace harassment as constituting "any type of behaviour that
can be
reasonably expected to cause a person to feel threatened, uncomfortable
or unable to cope with their work environment". As His Honour
pointed out at
53 ff, this definition went considerably beyond the concept of workplace
harassment in the Public Service Commission's
Guidelines on Official Conduct
of Commonwealth Public Servants issued on 7 March 1995. Furthermore, the
definition was confusing
because it was not clear whether the behaviour needed
to be directed at the individual in question and, more importantly, did not
seem to acknowledge any difference between feelings evoked by offensive and
inoffensive behaviour. Hence, a decision concerning an
officer's performance
or a disciplinary decision might properly be described as an instance of
harassing behaviour if it produced
the feeling described in the definition.
His Honour thought that it was inconceivable that the MPRA actually intended
that perfectly
permissible and properly motivated decisions or actions should
be classified as workplace harassment. However, some of the allegations
which
had been made merely related to perceptions entertained by others, some
involved generalised assertions as to a supposed propensity
to act in a
particular way and some related to what, in the absence of more specific
particularisation, could only to be said to
be decisions which might properly
have been taken by the plaintiff or his deputy. In these circumstances His
Honour concluded that
the plaintiff had been denied natural justice. His
failure and that of his Deputy, Dr McKernan to respond to the allegations was
a reasonable and probably prudent course for them to take. It reflected a
pattern of concern on their part about the inquiry which
the MPRA seemed
unable to appreciate. The MPRA had put them into a position in which they
should not have been placed.

  

   67.
However, Mr Wheelhouse submitted that, however flawed the approach of
the MPRA may have been, the quashing of the report left the
substance of the
initial allegations unresolved. Whilst it was unfair for the plaintiff's
reputation to be damaged in this way, the
impact of widespread knowledge
concerning these allegations could not be ignored. Furthermore, the
proceedings which the plaintiff
and his deputy initiated in the Federal Court
were widely reported and gave further currency to the allegations. In essence,
there
was a further layer of damage caused by the unfairness of the approach
taken by the MPRA. Because it persisted in the inquiry in
the way that it did,
notwithstanding advice from both the Attorney-General's Department and the
Public Service Commissioner the only
avenue of redress reasonably open to the
plaintiff was an application to the Federal Court of the kind which he in fact
made. Yet
even that step caused further dissemination of the fact that
unspecified allegations of workplace harassment had been made against
him.

  

   68. Mr Wheelhouse did not suggest that that I should approach the
assessment of damages on the basis that the plaintiff
had a bad reputation.
His contention was rather that the plaintiff's prospects of obtaining
appointments or consultancies had been
undermined not by the article but by
widespread awareness of the fact that allegations had been made by or to the
MPRA and that the
truth of those allegations had never been determined. This
point is not without validity. However, I do not accept the plaintiff's
prospects were wholly undermined by any one cause. The evidence suggests that
competition for appointments and consultancies of the
kind sought by the
plaintiff is strong and that otherwise suitable candidates may be excluded if
there is any real risk that the
appointment may attract criticism. It seems
likely that any widespread publicity concerning allegations of misconduct
would have
severely prejudiced the plaintiff's chances. I am satisfied that
publicity concerning the Federal Court proceedings would have had
such an
effect. Nonetheless, I am not satisfied that the publicity so generated was
wholly responsible for his failure to obtain
such appointments or
consultancies. The article published by the defendant plainly had a very
significant impact upon his reputation
and would have severely damaged his
prospects. I am not satisfied that the prejudicial impact of this article was
wholly supplanted
by any subsequent publicity. In my view, the plaintiff is
entitled to be compensated for loss of the chance that but for the article
he
might have obtained some appointments or consultancies notwithstanding any
publicity subsequently engendered by the Federal Court
proceedings.

  

   69. Nonetheless it is clear that the plaintiff had not been willing to
accept work of that kind for about a
year after his retirement and I am not
satisfied that he would have persisted in it for more than four or five years.

  

   70.
There was competing expert evidence from Ms Coaldrake and Mr Duffield,
who was called on behalf of the defendant, concerning the
plaintiff's
prospects of obtaining appointments and consultancies as he had hoped. I am
not persuaded to wholly accept the evidence
of either. It was common ground
that there is strong competition for appointments and consultancies of this
kind and there is an
obvious element of speculation in any evidence of this
kind. In general, Ms Coaldrake seemed better equipped to express such an
opinion
having regard to her qualifications and experience and her knowledge
of the plaintiff's high reputation in the relevant field. I
accept her
evidence that some work would have been available to him had it not been for
damaging publicity concerning the MPRA inquiry
but that as a result of that
publicity the relevant people "wouldn't touch him with a barge pole". However,
I do not accept that
the plaintiff would have obtained the range of
appointments and consultancies claimed. In particular, I am not satisfied that
he
would have been able to obtain and maintain multiple appointments
throughout the years immediately following his retirement.

  

   71. In these circumstances, whilst I accept that the plaintiff is entitled
to some allowance for the loss of the chance that
but for the libel he may
have been able to obtain some work of that kind any such allowance must be
relatively modest.

  

   Injury
to feelings

  

   72. In Broome v Cassell & Co [1972] UKHL 3;  (1972) AC 1027 Lord Diplock observed, at
1125 that harm caused by the publication of a libel often lies more in the
plaintiff's
own feelings, "what he thinks other people are thinking of him",
than in any actual damage revealed by their attitude towards him.

  

   73. In the present case, the impact upon the plaintiff's feelings was
immediate and substantial. There was ample evidence
that he had been extremely
distressed and embarrassed. These feelings persisted well after the
publication of the article and seemed
to have cast a pall over his enjoyment
of his retirement. Indeed, his son Mr Adrian Kelson gave evidence that his
father had been
a normal ebullient, happy and optimistic person who enjoyed
life but that as a result of the publication of the article he had withdrawn
from friends and family and appeared to have been "almost going through a
breakdown". Mr Kelson felt that his father had still not
fully recovered from
the effect of the article.

  

   74. It is true that the mere announcement of the MPRA inquiry may have had
a continuing impact upon his feelings following his retirement, especially
when he was obliged to commence proceedings in the Federal
Court. However, the
earlier publicity had referred only to unspecified and unresolved allegations
of workplace harassment at the
Memorial. The libel gave rise to the feeling
that people believed he had retired early because he had been guilty and it
was the
only way to prevent the truth from being revealed.

  

   The effect of the apology

  

   75. It is clear that a defendant may
rely upon the fact that he or she has
made an adequate apology to the plaintiff for the publication of defamatory
material as a matter
which is relevant to mitigation of damages: Gatley on
Libel and Slander (9 th edition 1998) at 789. Furthermore, in Pilcher v
Knowles
(1900) 19 NZLR 368 at 378 Edward J suggested that a defendant ought to
be permitted to prove that he did something to minimise the
injury to the
plaintiff, whether that was "much or little".

  

   76. As Mr Wheelhouse pointed out, the plaintiff's letter seeking
an apology
had raised four specific matters:

  

   (a) that the plaintiff's retirement from the Australian War Memorial was
not
connected to the inquiry to be conducted by the Merit Protection Review
Agency;

  

   (b) that he had advised Dame Beryl Beaurepaire
of his impending retirement
prior to the initiation of that inquiry;

  

   (c) that he was going to continue in his position as
Director until the end
of 1994; and

  

   (d) that the defendant should clearly apologise.

  

   77. Mr Wheelhouse maintained
that the apology met each of these specific
requirements. He also called expert evidence from Mr Crispin Hull as to
whether the nature
and extent of the apology accorded with standard practice
and as to the potential risks of publishing apologies adverting to possible
imputations which had not been the subject of any complaint. Mr Hull has
extensive experience within the field of newspaper journalism
and I accept his
evidence as to these matters.

  

   78. Mr Tobin submitted that the apology had been made too late, that it was
not sufficiently prominent and that it was "wheedling" in that it did not
sufficiently acknowledge that the defendant had made serious
imputations
concerning the plaintiff's character and apologise for them. In reply to these
criticisms Mr Wheelhouse relied upon the
evidence of Mr Hull as to the
practice of placing apologies within newspapers and also pointed out that the
plaintiff had asked for
it to be placed on the page where it was in fact
located. He also submitted that the apology met each of the requirements which
the
plaintiff had identified in his letter. Furthermore, he contended that the
plaintiff had not prosecuted the present action with due
diligence though he
had conceded in cross-examination that if he had not been satisfied with the
apology he would have done so.

  

   79. I am not satisfied that the criticisms of the form and content of the
apology are justified but I do think that the delay
in publication was
significant. Furthermore, apart from any question of aggravated or exemplary
damages the real issue is not so
much whether the apology met some objective
standard of reasonableness but the extent to which it may have mitigated any
damage caused
by the previously published article. In my view that issue falls
to be evaluated in the context of the whole of the evidence rather
than merely
by reference to an appraisal of the merits of the form of the apology and the
manner in which it was published.

  

   80. Despite Mr Wheelhouse's submissions I do not accept that the apology
effectively brought to an end the damage which had been
caused by the article.
I am satisfied that it would have had some significant mitigating effect
notwithstanding the delay but the
evidence does not suggest that there was any
sudden restoration of the plaintiff's reputation. Nor does it suggest that the
injury
to his feelings was abruptly brought to a halt. On the contrary, there
was an abundance of evidence that his distress has continued.

  

   The claim for aggravated damages

  

   81. Aggravated damages are awarded where either the circumstances of the
publication
or the subsequent conduct of the defendant make the injury to the
plaintiff worse. They are usually awarded only in relation to the
injury to
the plaintiff's feelings although there may be circumstances in which the
aggravating conduct may justify damages for further
injury to the plaintiff's
reputation. They may be awarded only in respect of conduct which is in some
way unjustifiable, improper
of lacking in bona fides. Even then, the damages
awarded will be compensatory rather than punitive. See generally Bickel v John
Fairfax
& Sons Ltd (1981) 2 NSWLR 474; Waterhouse v Broadcasting Station
2GB Pty Ltd (1985) 1 NSWLR 58 per Hunt J at 74-75.

  

   82.
In the present case aggravated damages were sought on a number of
bases.

  

   83. First, it was submitted that Mr Paul Daley,
the journalist who had
written the article, had acted unethically and irresponsibly in failing to
check its accuracy before publication
and in making unjustified suggestions
that the plaintiff had left his job and had fled in the face of the MPRA
inquiry or that his
resignation had been precipitous. Mr Hull was
cross-examined about these aspects and agreed that the plaintiff should have
been given
an opportunity to comment on the substance of the proposed article
prior to its publication. I accept that Mr Daley may have been
unable to
contact the plaintiff prior to publication even if he had attempted to do so.
However, it was open to him to seek to verify
the accuracy of the article by
contacting the plaintiff's deputy or other staff at the Australian War
Memorial. Failing that he could
have contacted Dame Beryl Beaurepaire or some
other member of the Board or perhaps even the personal staff of the Minister
who had
issued the press release. Furthermore, Mr Hull agreed that there was
no pressing need for the article to be included in the next
edition of the
paper and it could presumably have been held over until the next Sunday's
paper to allow time for verification. He
was unable to explain how the
announcement in the press release that the plaintiff "will be retiring" could
have been used as the
basis for a statement in the article that he "has
retired" and agreed that it was very careless.

  

   84. A failure to make enquiries
of the plaintiff prior to publication will
be relevant to the issue of aggravated damages only if that failure was
unjustifiable,
improper or lacking in bona fides. Such a failure could not
fall into that category unless some obligation arose for the defendant
to make
the enquiry and that does not occur in every case. Indeed, in Waterhouse v
Broadcasting Station 2GB Pty Ltd , Hunt J expressed
the view, at 77, that it
would be a very rare case. Mr Tobin submitted that Mr Daley's apparent failure
to make any attempt to contact
the plaintiff could only be explained on the
basis that he had written the article mischievously or with reckless
indifference to
the truth and the harm that it would cause the plaintiff. I am
not satisfied that this is so. Both concepts would normally require
advertence
to the risk that the relevant imputations may not be true and to the potential
damage to the plaintiff. I am not satisfied
on the evidence before me that
this was a case in which the publication could only be attributed to mischief
or recklessness rather
than the more obvious explanation of a combination of
incompetence and negligence. However, I am satisfied that this was a case in
which an obligation to enquire as to the truth of the matter had plainly
arisen. The press release issued by the Minister for Veterans
Affairs
contained nothing to suggest that the plaintiff had retired precipitously or
under any cloud of suspicion. On the contrary,
it referred to his retirement
in the future tense, announced the appointment of an acting director with
effect from 1 January 1995
and spoke highly of the work which the plaintiff
had done. The imputations conveyed by the article were baseless and the
article's
potential to wrongfully damage the plaintiff's feelings and
reputation should have been obvious.

  

   85. Mr Daley was not called
to explain the basis for the imputations, his
reasons if any for failing to contact the plaintiff, his assertion that the
plaintiff
had retired or his repeated use of the adverb "suddenly". There was
evidence that he had intended to be on holidays when the matter
commenced but
no attempt was made to explain his failure to give evidence when the matter
resumed on 15 June 1998. I am prepared
to infer that there was no explanation
that could have assisted the defendant.

  

   86. In my view, his conduct might fairly be
described as unjustifiable and
the plaintiff is entitled to aggravated damages on this ground.

  

   87. Secondly, it was submitted
that aggravated damages were warranted
because the defendant's apology had been tardy and inadequate. As previously
mentioned, I
accept that the delay in publishing the apology was significant
having regard to the plaintiff's position and the circumstances then
prevailing. However, even a failure to offer any apology at all will be
relevant to the issue of aggravated damages only if it can
be regarded as
conduct which was unjustifiable, improper or lacking of bona fides: Mirror
Newspapers Ltd v Fitzpatrick (1984) 1 NSWLR
643 at 660; Waterhouse v Station
2GB Pty Ltd at 78. I do not accept that the late publication of the apology
concerning the plaintiff
could be so categorised.

  

   88. Thirdly, Mr Tobin relied upon the fact that the defendant had pleaded a
defence of contextual
truth in respect of the publication of the article in
New South Wales and had abandoned that defence, along with others, only on
the
second day of the hearing. The plaintiff gave evidence that he had seen this
defence as maintaining the substantial truth of
the article for the past three
years despite the apology and the judgment in the Federal court. He said that
he had had sleepless
nights and then suffered distress and depression as a
result of this issue being opened up again. In answer to these contentions
Mr
Wheelhouse said that the defence was withdrawn in the light of the decision of
the High Court of Australia in Chakravati v Advertiser
Newspaper Ltd which
suggested that defences of partial justification may be bad in law. That
decision was delivered on 20 May 1998
and the defence was withdrawn on 2 June
1998. In these circumstances he submitted that it could not be held that the
defendant had
unreasonably persisted with the defence. He also pointed out
that the defendant had never pleaded a defence which asserted that the
allegations against the plaintiff had been true.

  

   89. In my view this issue falls to be determined in accordance with the
general principle that the manner in which the case is conducted may justify
aggravated damages if it is capable of being regarded
as having been
unjustifiable, improper or lacking in bona fides on the part of the defendant:
Rigby v Associated Newspapers Ltd (1969)
1 NSWLR 729 per Walsh JA at 740.
Whilst I accept the plaintiff's evidence that he was genuinely distressed as a
result of the maintenance
of the defence of contextual truth I do not regard
the manner in which the case was conducted on behalf of the defendant as
constituting
aggravating conduct.

  

   90. Fourthly, Mr Tobin also relied upon the cross-examination of the
plaintiff to the effect that the
original allegations had never been
determined and contended that it had been implied that the plaintiff had, in
effect, "got off
on a technicality". Mr Wheelhouse said that it had never been
his intention to suggest that any of the allegations which had been
made
against the plaintiff were true. His cross-examination had been directed to
the issue of the causation of any loss related to
the plaintiff's prospects of
obtaining appointments or consultancies. Again, I am not satisfied that this
course could properly be
regarded as aggravating conduct.

  

   The claim for exemplary damages

  

   91. Exemplary damages will only be awarded where
the defendant has acted in
contumelious disregard of the plaintiff's rights in publishing the defamatory
matter. In Bogusz v Thompson
(1989) 95 FLR 167 Miles CJ held that it was
sufficient that the plaintiff establish that the defendant acted with reckless
indifference
to the truth of the imputations in question. As previously
mentioned I am not satisfied that Mr Daley acted with reckless indifference
to
the truth of the imputations concerning the plaintiff. Nor am I satisfied that
there is any other basis upon which exemplary damages
might be awarded.

  

   92. In all the circumstances I assess compensatory damages, including
aggravated damages, in the sum of
$75,000.00.

  

   93. I award a further sum of $7,500 for interest. Having regard to the
principles discussed in Hallet v Schoevers
(1992) 109 ACTR 1, I have assessed
this figure taking into account the fact that the predominant damage to the
plaintiff's reputation
and feelings would have occurred in the period
immediately after the publication but that the relatively modest allowance for
the
potential loss of post retirement income related to the period from mid
1995.

  

   94. There will be judgment for the plaintiff
for the sum of $82,500.00