O'Rourke v Hagan and Anor [2007] ACTSC 61 (8 August 2007)

Last Updated: 19 September 2008

DENNIS PATRICK O’ROURKE v STEPHEN HAGAN and NATIONWIDE NEWS PTY LTD (A.C.N. 008 438 828) [2007] ACTSC 61 (8 August 2007)

DEFAMATION – action by film producer – alleged imputations of unscrupulous and/or abusive conduct in releasing film containing footage of two teenage girls discussing sexual experiences – whether imputations conveyed – whether defences of truth and comment sustainable – measure of damages when outstanding previous reputation substantially unimpaired by defamation.

Defamation Act 1974 (NSW), ss 15(2), 22
Defamation Act 2005 (NSW), s 26
Defamation Act 1889 (Qld), ss 14(1), 15
Defamation Act 1957 (Tas), s 15
Criminal Code 1913 (WA), ss 355, 356

John Fairfax Publications Pty Ltd v ACP Publishing Pty Ltd [2005] ACTCA 12 (1 April 2005)
Lewis v Daily Telegraph Ltd [1964] AC 234
Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR1
Sim v Stretch (1936) 52 TLR 669
Farquhar v Bottom & Anor [1980] 2 NSWLR 380
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Steiner Wilson & Webster Pty Ltd v Amalgamated Television Services Pty Ltd [1999] ACTSC 123
Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519
Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348
Sutherland & Ors v Stopes [1925] AC 47
Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183
John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164
Clarke v Norton [1910] VLR 494
Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366
Toogood v Spyring (1834) 1 Cr M & R 181 [149 ER 1044]
Adam v Ward [1917] AC 309
Dingle v Associated Newspapers Ltd (1964) AC 374
Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118
Broome v Cassel & Co [1972] UKHL 3; [1972] AC 1027 at 1071
Carson v John Fairfax & Sons Ltd (1993) 178 CLR
Waterhouse v Broadcasting Station 2GB Pty Ltd [1985] 1 NSWLR 58
Suttcliffe v Pressdram Ltd [1991] 1 QB 153

W. D. Ross, The Right and the Good, Clarendon Press, Oxford, 1930
The Foundations of Ethics, Clarendon Press, Oxford, 1939
H. A. Pritchard, Moral Obligation, Clarendon Press, Oxford, 1949, especially ‘Does moral philosophy rest on a mistake?’
J. R. Searle. ‘Prima facie reasons’ in Philosophical Subjects, ed Z. van Staaten, Oxford University Press, Oxford, 1980
F. H. Bradley, Ethical Studies (first published 1876), Clarendon Press, Oxford, 1962
A. J. Austin, The Province of Jurisprudence Determined [first published 1832], ed by H. L. A. Hart, Weidenfeld, London, 1954
D. Luban, “Partnership, Betrayal and Autonomy in the Lawyer-Client Relationship: A Reply to Stephen Ellmann”, (1990) 90 Columbia L. Rev. 1004
C. S. Lewis, The Abolition of Man, 1947, republished by Fount Paperbacks, London, 1978
P. Singer, “Afterword”, in A Companion to Ethics, Basil Blackwell, Oxford, 1993, 543
The Oxford English Reference Dictionary, 2nd ed, at 1582
Gatley on Libel & Slander, 10th Ed 2004, Sweet & Maxwell, London

No SC 144 of 2002

Judge: Crispin J
Supreme Court of the ACT
Date: 8 August 2007

IN THE SUPREME COURT OF THE )
) No SC 144 of 2002
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: DENNIS PATRICK O’ROURKE

Plaintiff

AND: STEPHEN HAGAN

First defendant

NATIONWIDE NEWS PTY LTD

Second defendant

ORDER

Judge: Crispin J
Date: 8 August 2007
Place: Canberra

THE COURT ORDERS THAT:

1. There be judgment for the plaintiff against the first defendant in the sum of $90,800.
   
2. There be judgment for the plaintiff against the second defendant in the sum of $113,500.
   

1. This case involves two actions for defamation.
2. In relation to the first action, it is alleged that on 31 May 2001 the first defendant published to a journalist, Ms Janelle Miles, the first matter complained of, which was pleaded in the following terms:

“I’m disturbed at the high level of abuse of indigenous people in pursuit of monetary gain,” (and) “Hopefully, this (by which the First Defendant was referring to planned litigation against the Plaintiff by two young women aged 16 and 17 in relation to their appearances three years previously in his film “Cunnamulla”) will deter other unscrupulous producers and media moguls from misusing indigenous people, particularly youth.”

3. In relation to the second action, it is alleged that on 1 June 2001 the second defendant published an article in the Daily Telegraph (“the second matter complained of”) in the following terms:

“As a 13-year-old, Cara Hearn was filmed talking about her sex life in the controversial movie documentary Cunnamulla.
Now aged 16, and with a five-week old daughter to care for, she is angry that her adolescent intimacies are still up on the silver screen for all to see.
“It seems like I’m branded and some people look at me as if I’m a little slut,” she said yesterday.
Cara and her 17-year-old cousin Kellie-Anne plan to sue the film’s producers for defamation and deceptive conduct, and are seeking an injunction to stop further distribution of the film.
Cara, who gave birth to Kyieshah on April 23, claims the film’s director Dennis O’Rourke deceived her into revealing details about her sex life. She alleges Mr O’Rourke told her he planned to base the movie around her involvement in the town’s Miss Maid competition and that their discussions about sex would be left out.
“I wouldn’t have said what I said if I knew that he was going to use it,” she said.
Peter Black of Brisbane-based firm Drakopoulos Black Solicitors, will file papers in the Federal Magistrates Court next week on behalf of Cara and Kellie-Anne, who also appeared in the film.
Mr Black said he had briefed a barrister on behalf of the teenagers.
He said he would also seek an injunction to stop further distribution of the documentary which exposes aspects of life in the south-western Queensland town.
Cara’s mother Margaret said she felt she had been betrayed by Mr O’Rourke.
She admitted to signing a document giving Mr O’Rourke permission to talk to Cara, but this was only on the basis of the teenager’s involvement in the Miss Maid competition.
“I naturally placed my trust in him . . . because he told me it was for the Miss Maid competition,” Ms Hearn said.
“I didn’t even know that he was talking to Cara about the sex things.
“When I saw it I was ashamed of it. I feel that he’s exploited her.”
Ms Hearn and Cara moved from Cunnamulla to Charleville after the movie was filmed and may move again to escape the notoriety surrounding the film.
“People pull her up in the street and say they’ve seen the movie,” Ms Hearn said.
“I just feel she’s been branded for life now because of that. She was only young.”
ATSIC regional councillor Stephen Hagan said he was pleased the matter was going to court.
“I’m disturbed at the high level of abuse of indigenous people in pursuit of monetary gain,” he said.
“Hopefully, this will deter other unscrupulous producers and media moguls from misusing indigenous people, particularly youth.”

4. The second matter complained of was accompanied by two photographs and the captions:

“Cara Hearn (above) from the Cunnamulla documentary with her baby Kyieshah and (right) 13-year-old Cara and her cousin Kellie-Anne in the documentary.”

5. The first defendant is sued both in relation to the original publication to Ms Miles of the first matter complained of and in relation to the republication of those words in the second matter complained of. It is alleged that, in making the original publication, the first defendant intended that his words would be so republished and that it was the natural result of the original publication that such republication would occur. Aggravated damages are sought against him on the ground that he repeated versions of the matter complained of in a radio news broadcast on 1 June 2001, a radio interview on 17 December 2001, a television news broadcast also on 17 December 2001 and articles in “The Canberra Times” and “The Australian” newspapers both on 18 December 2001.
6. The second defendant is sued in relation to the second matter complained of and aggravated damages are sought against it on the ground that it repeated a version of that matter in the article in The Australian newspaper on 18 December 2001.
7. The first defendant did not file any notice of appearance or defence and did not attend at the trial of the action. On the first day of the hearing I was handed a letter, sent to the court by facsimile, in which Mr Black, a solicitor apparently acting on his behalf, explained that the first defendant was impecunious and had been unable to fund legal representation. Mr Black sought the Court’s indulgence in respect of his failure to make a formal application for leave to withdraw as “solicitor on the record” but, since he had never filed any notice of his intention to appear for the first defendant, this seemed unnecessary. During the second week of the hearing and after the plaintiff had closed his case I was handed a second letter from Mr Black enclosing a copy of a defence, apparently signed and dated some four years earlier, and indicating that if I would take it into account notwithstanding the first defendant’s non-appearance at the trial the solicitors were instructed to seek leave for it to be filed. I had my Associate respond by letter, referring to the Rules, advising Mr Black of the then current state of the hearing and indicating that I could only leave it to the first defendant to decide what action, if any, he might wish to take. Whilst noting that it was not clear whether Mr Black had any further instructions to act on his behalf, the letter asked that the first defendant be informed of the response as a matter of urgency and encouraged to seek appropriate advice. There was no further communication and the first defendant was apparently not moved to take any step in the proceedings. I subsequently acceded to an application by the plaintiff for judgment against the first defendant for damages to be assessed, but indicated that they would have to be assessed by reference to the case pleaded against him in the initial statement of claim that had, in fact, been served upon him, and not by reference to any further allegations contained in the amended pleading that had apparently not been served.
8. The plaintiff initially sued in respect of publication of the second matter complained of in all Australian jurisdictions, but abandoned its claim in respect of Tasmania when subsequent enquiries revealed that it had not been published in that state. The second defendant denies that the second matter complained of conveyed the defamatory imputations alleged and has pleaded a number of defences, with certain variations to reflect differences in the law applicable in the various jurisdictions, involving allegations of truth, comment and privilege.
The imputations
9. The first issue that arises in a case of this kind is whether the allegedly defamatory imputations were actually conveyed by the matters complained of. The legal principles are well established.
10. As the Court of Appeal pointed out in John Fairfax Publications Pty Ltd v ACP Publishing Pty Ltd [2005] ACTCA 12 (1 April 2005) at [8], the general principles applicable to issues of this kind were summarised by Lord Reid in Lewis v Daily Telegraph Ltd [1964] AC 234 in the following passage at 258-259:

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 experience of worldly 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 . . . Ordinary men and women have different temperaments and outlooks. Some are unusually suspicious and some are unusually naïve. 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.

11. See also Slatyer v 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 & Anor [1980] 2 NSWLR 380 at 386; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 170 and Steiner Wilson & Webster Pty Ltd v Amalgamated Television Services Pty Ltd [1999] ACTSC 123 at 17.
12. The hypothetical ordinary reader has been variously described as a “reasonable reader”, a “right-thinking [member] of society”, an “ordinary man, not avid for scandal” and sometimes as a “reader of average intelligence”. No special knowledge is attributed to such a reader and he or she is not assumed to approach the relevant words with either extremes of suspicion or cynicism on the one hand or naivety and disbelief on the other: Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 per Kirby J at [134.1]. 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 utterly unreasonable interpretation must be rejected” (see Hunt CJ at CL in Amalgamated Television Services v Marsden at 165). 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 165 and Chakravarti v Advertiser Newspaper Ltd at par 134.2. The nature of the publication may also be a material consideration. 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 NSWLR 348 at 373.
13. It is in this context that the competing submissions in the present case must be considered.
The imputaions in the first matter complained of
14. It is alleged that the first matter complained of, in its natural and ordinary meaning, conveyed two defamatory imputations of, and concerning the plaintiff. I will deal with these allegations sequentially.

(a) he is an unscrupulous film producer

15. Since the first defendant did not file any defence, the allegations pleaded against him must be taken to have been admitted. In any event, this imputation was, in my opinion, clearly conveyed by the first matter complained of.

(b) in his work as a film producer, he has abused indigenous people, particularly young ones

16. The allegation that this imputation was conveyed must again be taken to have been admitted and, despite the argument advanced on behalf of the second defendant concerning somewhat similar statements in the second matter complained of, I am again satisfied that it was so conveyed.
The imputations in the second matter complained of
17. It is alleged that the second matter also complained of, in its natural and ordinary meaning, conveyed a number of defamatory imputations of and concerning the plaintiff. I will also deal with them sequentially.

(c) he deceived a 13 year old girl into revealing details about her sex life which he then displayed to the public in his film “Cunnamulla”

18. The second defendant did not resist a finding that this imputation had been conveyed by the second matter complained of and I am satisfied that it was.

(d) he disrupted the life of a 13 year old girl by subjecting her to embarrassing publicity in his film “Cunnamulla”

19. The plaintiff has conceded that is imputation was not so conveyed.

(e) he is an unscrupulous film producer

20. The second defendant did not resist a finding that this imputation had been conveyed and I am again satisfied that it was.

(f) in his work as a film producer, he has abused indigenous people, particularly young ones

21. Counsel for the second defendant submitted that this imputation did not arise. They argued that the first defendant had merely taken the opportunity to express general concern about the abuse of indigenous people and the “aspiration” that the proceedings might deter unscrupulous producers and media moguls from abusing young indigenous people. It was understandable that the first defendant had expressed such concern since he had been an ATSIC regional councillor, but he had not gone on to suggest that the plaintiff had abused such people in his work as a film producer.
22. I do not accept this submission. The references to the abuse of indigenous people followed allegations that the plaintiff was to be sued for defamation and deceit and that the first defendant had said that he was pleased the matter was going to court. In this context, the expressed hope that “other” unscrupulous producers and media moguls would be deterred, by the litigation pending against him, from “misusing indigenous people, particularly youth” plainly suggested that he had acted in that manner.
23. I am satisfied that this imputation was conveyed.

(g) the Plaintiff took advantage of two children by filming them talking about their sex lives and, after promising Cara Hearn, in Kellie-Anne Allardice’s presence, that he would not include those filmed discussions in the film to be released for public consumption, including those filmed discussions about their sex lives in his film, “Cunnamulla”

24. The plaintiff has conceded that this imputation was not so conveyed.

(h) the Plaintiff deceived Margaret Hearn, the mother of Cara Hearn, by telling her that he would film her daughter’s involvement in the Miss Maid competition and thereby securing Ms Hearn’s consent to talk to her daughter, but then having a discussion with Cara Hearn about her sex life, which he filmed and published

25. The second defendant did resist a finding that this imputation had been conveyed and I am satisfied that it was.

(i) the Plaintiff acted unscrupulously by including in his film “Cunnamulla” details of Cara Hearn’s sex life, obtained from her when she was 13 years old, when he had told Cara Hearn that he would not include such details in the film and had told her mother that her daughter’s participation in the film would relate to her involvement in the Miss Maid competition

26. The second defendant again did not resist a finding that this imputation had been conveyed and I am satisfied that it was.
27. Various defences were raised by the second defendant and, whilst there are some differences in the principles applicable in the various jurisdictions in which the matters complained of were published, they may be conveniently be discussed under the headings of truth, comment and qualified privilege.
Truth
28. At common law a defendant need prove only that the relevant words were true in substance and in fact. Furthermore, as Lord Shaw of Dunfermline observed in Sutherland & Ors v Stopes [1925] AC 47 at 79, “the whole sting of the libel may be justifiably affirmed ... notwithstanding (some) errors in detail”.
29. At the time of the publications, the law in New South Wales required that proof of the substantial truth of the imputation be augmented by proof that the imputation related to a matter of public interest or was published under qualified privilege: see s 15(2) of the Defamation Act 1974 (NSW). Section 26 of the Defamation Act 2005 (NSW) now provides a defence of contextual truth but it was not contended that this defence could be raised in respect of the publications in question. As counsel for the second defendant pointed out, resolution of any issue as to whether an imputation relates to a matter of public interest requires a value judgment by the tribunal of fact. The guiding principle is that a matter will be of public interest if it relates to the actions or omissions of a person or institution engaged in activities that either inherently, expressly or inferentially invite public criticism or discussion: see Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 214. In the present case, if I had been satisfied of the substantial truth of the imputations conveyed by the matters complained of, I would have readily concluded that it had been in the public interest to expose the deceit and abuse of young indigenous people alleged.
30. In the Code states of Queensland and Western Australia it was necessary for a defendant to establish that the relevant publication was not only true but for the public benefit: see s 15 of the Defamation Act 1889 (Qld), s 15 of the Defamation Act 1957 (Tas) and s 356 of the Criminal Code 1913 (WA). This is a broad concept and as the High Court observed in Bellino v Australian Broadcasting Corporation at 229, in view of the importance that contemporary Australian society attaches to freedom of discussion of subjects of public interest, “the occasions upon which (a court) could reasonably find that such a discussion was not for the public benefit must be very rare”. In the present case, if the second defendant had been able to establish the truth of the imputations, I would undoubtedly have concluded that the relevant publications were for the public benefit.
31. The decisive question is whether the substantial truth of the relevant imputations has been established.
Particulars of truth
32. The second further amended defence of the second defendant provides extensive particulars of the factual allegations relied upon in support of this defence and, whilst it may be unnecessary to set them out in full, I should perhaps provide a brief account of the main points.
33. It is alleged that the plaintiff met Ms Taccara Hearn (who will be referred to as “Cara” to avoid confusion with her mother, Ms Margaret Hearn) at a bus stop in Cunnamulla in about September 1998. She was a 13 year old indigenous Australian and by reason of age and social background was both vulnerable and impressionable. The plaintiff later met her mother at their home. He told them that he was filming a documentary on festivals in small towns and said that he was particularly interested in the Miss Maid competition in Cunnamulla. He asked Margaret Hearn for permission to film her daughter’s participation in that competition and subsequently provided her with a form of consent which she signed after he told her that it would enable him to film her daughter participating in the competition without Margaret Hearn being present. The form was later amended without Margaret Hearn’s knowledge by the inclusion of the words “The consent also applies to recordings made of my children” and “July 1998 to December 1999, in Cunnamulla and other places”. Neither Cara nor her mother were informed that footage of interviews concerning Cara’s sex life would be used in the film. Margaret Hearn would have not signed the form or allowed the plaintiff to have interviewed her daughter had she known that the plaintiff was going to speak to her concerning that issue.
34. About the same month Cara introduced Ms Kellie-Anne Allardice (who will be referred to as “Kellie-Anne”) to the plaintiff. Kellie-Anne was then 15 years old. The plaintiff allegedly told her that he was filming a documentary on festivals and things that go on in small towns such as racism. He later met her father, Mr Bruce Allardice, and gave him a similar explanation. Mr Allardice agreed to permit the plaintiff to film his daughter but neither he nor his daughter was aware that that any footage of interviews concerning her sex life would be used in the documentary.
35. The plaintiff subsequently commenced to film interviews with Cara and Kellie-Anne, including segments in which they were talking about her sex lives. He also asked them questions about sexual matters and their own sexual activities.
36. At all material times, Cara felt uncomfortable talking about her sex life and felt pressured by the plaintiff to do so.
37. In late 1998 Cara asked the plaintiff if the footage of her talking about her sex life would be included in the film and the plaintiff told her that they would be omitted.
38. The plaintiff also informed Kellie-Anne that he would show her the edited film before it was broadcast but did not do so.
39. He returned to Cunnamulla in about June 2000 and provided Cara with a form of consent for her to sign, explaining that she had to sign the document to say that she had received the sum of $300 from him. She signed it without receiving any further explanation and it was later amended by the inclusion of the words “in Cunnamulla during 1998, 1999 and 2000” and “to Cara Hearn” and “27 Broad Street, Cunnamulla”.
40. The film subsequently conveyed the impression that Cara and her mother had agreed that Cara could be interviewed concerning this topic. Yet the plaintiff had not informed Margaret Hearn that he had spoken to her daughter about it or that he intended to include any footage of such conversations in the film.
41. As a consequence of the screening and broadcast of the film Cara and her mother were subjected to harassment and embarrassment and Cara felt that she could no longer remain in Cunnamulla. Kellie-Anne reluctantly returned to Cunnamulla to obtain her father’s assistance with her new child but was subjected to abuse and harassment as a consequence of the film.
42. The plaintiff failed to warn Cara or Kellie-Anne that he intended to ask them questions about their sexual activities and failed to similarly warn their parents or to seek their consent because he knew or believed that, had he done so, it would have been likely that consent would have been withdrawn and that Cara and/or Kellie-Anne would have refused to discuss such issues.
43. The plaintiff refrained from informing Cara, Kellie-Anne or their respective parents that footage of such discussions would be included in the film because he knew or believed that this would have been likely to have led to difficulties with the use of that material.
The evidence
44. The film and some of the rushes provided vivid contemporaneous records of interviews with Cara, Margaret Hearn and Kellie-Anne, all of whom were called to give evidence in support of the second defendant’s case, and other material relating to the social context within which relevant events occurred.
45. The evidence of Cara and her mother and Kellie-Anne and her father was generally supportive of the allegations contained in the particulars, though Kellie-Anne did not claim that the plaintiff had promised to show her the edited film before it was broadcast and the evidence from Margaret Hearn and Mr Allardice was understandably limited to their own participation in the relevant events. It is, of course, necessary to consider the credibility and reliability of particular aspects of the evidence in the context of other relevant evidence in the case, though in addressing the allegations of truth in relation to particular imputations I will refer only to that which relates to the issues in question.
46. Cara was adamant that she had asked the plaintiff whether the discussions between her and Kellie-Anne about their sexual experiences would be included in the film and that he had assured her that they would be “edited out”. She said that when she first saw the film she had been shocked and distressed to find that material of that kind had been included. She had been unable to keep watching it and had never been able to see it through to the end. She had been ashamed of the manner in which she had been portrayed. Whilst neither Cara nor her mother were still living in Cunnamulla at that stage, they returned in late 2001. Cara then discovered that she had lost friends as a result of the film and that she had become something of an object of ridicule. She was repeatedly subjected to verbal abuse. She said that, in view of the ill-treatment she had received and the life that she had been “branded with”, she had been forced to move first to Roma, and then to Broken Hill, where she continues to reside. Cara also voiced concerns over the welfare of her child, and in particular the possibility that hostility visited upon her as a result of her appearance in the film might also be visited upon her.
47. I found Cara’s evidence deeply moving. She presented as a sad and at times tearful young woman who had been deeply hurt by things said to her by people in Cunnamulla concerning her sexual reputation. There is, of course, a vast difference between abusive statements couched in sanctimonious terms and expressions of concern or even reproof born of genuine sympathy or decency, but it seemed clear from Cara’s evidence that many of the things said by people in Cunnamulla had been intentionally hurtful. She had been a young, unsophisticated girl in a small country town and had already been exposed to what her mother described as a feud between her family and another. I have no doubt that she would have been extremely vulnerable to the taunts and abuse directed at her.
48. Sadly, however, it is clear from her evidence that abuse of this kind commenced before the plaintiff even arrived in town, let alone before the film was released. Indeed, one of the more arresting images in the film is of a sign daubed on a fence obscenely proclaiming, “Fuck Cara slut”. The evidence does not reveal whether this sign was simply the product of youthful vulgarity or whether it was at least partially attributable to inter-personal tensions or even animosity arising from the feud with the other family.
49. I accept her evidence that after the film was released she was subjected to further abuse relating to her participation and the disclosures she had made during the excerpts of the interviews that were screened. I also accept that she found this very hurtful. I do not, however, accept her evidence that the plaintiff had assured her that no footage would be screened of her and Kellie-Anne discussing their sexual experiences. It must be remembered that Cara was giving evidence of events that had occurred nearly eight years earlier when she had been only thirteen years old. It is, I think, possible that she initially misunderstood something that the plaintiff had said or subsequently reinterpreted a conversation, perhaps subconsciously, as she became increasingly hurt by the response of other people in Cunnamulla. It is also possible that she made up the allegation to defend herself from criticism and, perhaps, subsequently persuaded herself that the plaintiff had actually said words to that effect.
50. She clearly bore considerable resentment towards the plaintiff and seemed to regard him as primarily, if not wholly, responsible for all of the embarrassment and distress that she had experienced since the film was released. Despite her acknowledgement of earlier abuse, she seemed not to realise that her earlier reputation for promiscuity, however attributable to exploitation by others, would almost inevitably have persisted to some extent in this small country town even if the film had not contained the footage in question. Whilst she had not been living in Cunnamulla at the time the film was released, there was no evidence to suggest that those who had previously abused her had come to see her in a more sympathetic light. At the time of the film’s release, she was still only 15 years old and was about six months pregnant. The film may well have made things worse. It certainly made more people aware of her earlier involvement in sexual activity and may have attracted added opprobrium from people prepared to draw adverse inferences about her character from her willingness to discuss experiences of that nature.
51. On the other hand, given the nature of the film he was intending to make, it seems extremely unlikely that the plaintiff would have given an undertaking of the kind Cara suggested. She did not claim to have raised the issue with him prior to any discussion relating to her and Kellie-Anne’s sexual experiences and, whilst it is conceivable that someone in his position may have wished to forestall any attempt to restrain use of the footage already obtained, it seems most unlikely that he would have been concerned at any risk of Cara or Kellie-Anne commencing legal proceedings for that purpose. It is also conceivable that he may have given such an undertaking to encourage further disclosures but I did not form the impression that the plaintiff was a dishonest man.
52. Ms Margaret Hearn claimed that the plaintiff had told her that he was doing documentaries on festivals in small towns and that he had heard that Cara was intending to enter the Miss Maid competition. It was in this context that he had asked her if Cara could be part of the documentary. She rejected the suggestion that he said that he wished to film Cara over an extended period of time while she was living the life that she was then leading in Cunnamulla or that he had explained that he was interested in doing so because she had dropped out of school and was “living the life on the wild side”. Margaret Hearn maintained that he had told her that the film was to be about festivals and that he had not mentioned anything else about life in small country towns. She denied that there had been discussions at her house about other topics and emphatically rejected a suggestion that she had often spoken to him about aspects of her family that had nothing to do with the Miss Maid competition.
53. Regrettably, Margaret Hearn proved to be a most unimpressive witness. Many conversations were recorded and there are video tapes that clearly demonstrate that some of her assertions were simply untrue. On one occasion the plaintiff filmed Margaret Hearn remonstrating with her daughter about being out late at night and telling her that girls who walk the street all night till late at night get a bad name. Ms Hearn initially denied having made statements to that effect. When the relevant portion of the video tape was played during cross-examination, she changed tack and claimed that the plaintiff had told her to “say all that”. She then sought to explain that “he just said say things like gave me examples and I’ve – I just carried out with it for him, because I was just sick of him running to my house all the time”. She added, “I had no privacy from him”. She later claimed that by this stage he had been pestering her for a long time. In fact, it appears that this conversation occurred on the first or second occasion that they had met. She initially said that she had told the truth when the plaintiff was present but, when shown footage of her telling Cara that if she kept staying out on the streets at night she would get a bad name that would stick with her forever, she said that she had not believed that this was true. She agreed that a young girl could get a bad name for behaving in that manner but, when asked what the bad name would be for, said that she did not know. She later sought to explain that she wanted Cara to avoid walking in the streets at night so that members of another family would not be able to abuse her. She maintained that, whilst she did not know what she would have meant, her comments would not have related to sexual activity.
54. Her denials of having told the plaintiff about problems with her de facto partner and son were similarly refuted by excerpts from the video taped conversations. Those tapes also revealed Margaret Hearn revealing that Cara had been suspected by the police of being involved in the break in of the bakery. Margaret Hearn volunteered that Cara “probably was involved in it, but just don’t want to say”. As Mr Molomby SC, who appeared for the plaintiff, pointed out, the nature and extent of these conversations reveal a reasonable foundation for the plaintiff’s belief that Margaret Hearn had known more about Cara’s life than she was prepared to concede in evidence, and that she had had no objection to the plaintiff filming matters quite unrelated to the Miss Maid competition.
55. It should also be noted that the filming extended for some months beyond the time of the Miss Maid competition.
56. I regret to say that, having had the opportunity of observing Margaret Hearn in the witness box for some time, I formed the distinct impression that she was a woman who was prepared to say anything that she thought might tend to support the factual allegations that her daughter had made against the plaintiff in the Federal Court proceedings. Mr Blackburn SC, who appeared for the second defendant, made an eloquent plea in mitigation, stressing not only her deprived background and evident lack of sophistication, but also the loyalty she plainly felt to Cara. I am not insensitive to those considerations but, for present purposes, I am not required to make any judgment about the extent of her moral culpability for the apparent dishonesty of her evidence. I am required only to record that I did not find her a truthful witness.
57. Kellie-Anne Allardice also gave evidence that she remembered a conversation in which the plaintiff was asked whether the discussions about their sexual experience would be included in the film. She said that there had been only one conversation to this effect and that it had occurred in her bedroom, though she was unable to say whether it had occurred during the course of any particular scene shown in the film. She said that she was unsure if the question had been asked by herself or Cara and agreed that her memory of the conversation was “pretty vague”. When it was put to her in cross-examination that the plaintiff had never said that he was not going to use any of those scenes in the film she replied, “he might not have said that but we told him, you know, that we didn’t want those on there”.
58. At the time of the film’s release, Kellie-Anne was living in Brisbane. Like Cara, Kellie-Anne maintained that she was “disgusted” by the film, and that its release had caused her considerable hardship. She said that her appearance in the film had ruined her life. She returned to Cunnamulla in 2004 after becoming pregnant and remained there for approximately two years. She said that her return was traumatic and characterised by significant verbal taunting. She maintained that upon her return to Cunnamulla she was forced to live her life “in fear”. She was “called a slut and everything else” and felt at times as though she could not go out for fear of physical harm. Kellie-Anne also spoke of a feeling of considerable isolation, and of having been robbed of friendships. She claimed that her decision to move back to Brisbane in 2006 was based largely upon perceived maltreatment arising from her participation in the film.
59. Kellie-Anne presented as a sad and somewhat nervous young woman who had evidently found life difficult during the years that elapsed since she was filmed as fifteen-year-old girl. Again, however, it was obvious that the film had not been responsible for all of her troubles. During the course of her evidence it became apparent that, following her move to Brisbane in late 1998, she had experienced considerable difficulties with her finances, her schooling, and substance abuse. Her memory of the events surrounding the making and release of the film and her subsequent contact with the plaintiff was apparently limited. The plaintiff gave evidence that in late January 2001, immediately after the film’s release, Kellie-Anne contacted him in a state of some distress. She had told him that she had not seen the film but that she was “in a terrible state” and had no one to assist her. The plaintiff said that she had asked him to give her approximately $1500 to cover some unspecified expenses. Kellie-Anne denied having asked the plaintiff for financial assistance. However, the plaintiff’s evidence was supported by Mr Moore, who confirmed that, shortly after the film had opened, the plaintiff had told him of a conversation with Kellie-Anne in which she had asked for a sum of money. Mr Moore said that he had counselled the plaintiff against acceding to her request and had warned him that it could form part of a pattern of behaviour that ought not be encouraged.
60. Kellie-Anne seemed to have only a vague idea that there may have been a conversation with the plaintiff about the use of footage of discussions concerning sexual experiences and I was unable to place any real weight on this aspect of her evidence. I was left with the impression that her evidence may have been influenced, consciously or subconsciously, by loyalty to Cara or others who had encouraged or supported them in pursuing Federal Court proceedings against the plaintiff.
61. Both Cara and Kellie-Anne claimed that they had felt under pressure to talk about their sex lives and both explained that the plaintiff had asked questions and then left the camera running. They said they had felt that they had no real choice but to answer the questions. It is evident both from the film and the retained rushes that the plaintiff did from time to time ask questions and that there were occasions when he left the cameras running during discussions of this kind. However, it seems clear from this material that both young women had willingly discussed these matters with him whilst fully conscious of the fact that the conversations were being recorded on film.
62. The evidence given by Mr Allardice added little, if anything, to the strength of the second defendant’s case. He seemed to have little clear recollection of the events he was attempting to recount and to have been substantially reliant upon a process of reconstruction aided, I suspect, by what others had told him. He maintained that he had not known that his daughter had been sexually active at the time of the interviews and that he had discovered this only when he saw the film about the end of January 2001. However, a police officer, Sergeant Knight, gave evidence that he had previously been a Detective Senior Constable based in Cunnamulla and that he had spoken to Mr Allardice on 20 December 2000 in connection with police enquiries instituted in response to pre-release publicity for the film. Mr Allardice had then told him that during the filming he had become aware of that fact that his daughter had been sexually active and had spoken to her about her behaviour. Mr Allardice denied making any statement to that effect but Sergeant Knight was an impressive witness and he was able to produce contemporaneous notes of the conversation.
63. It was also clear that by early 2001 Mr Allardice had completely forgotten that he had signed a consent and release form on his daughter’s behalf. Indeed, he had vehemently denied having done so until the plaintiff faxed him a copy on 30 January 2001. He subsequently gave evidence that he had no recollection of signing the document or having ever seen it, though he accepted it contained his signature.
64. I formed the impression that he was convinced that an injustice had been done to his daughter and her friend, and that he was attempting to support them by giving evidence of things that he may have come to believe had happened but could not recall with any real clarity or accuracy.
65. The plaintiff denied deceiving Cara by telling her that footage of her or Kellie-Anne talking about their sex lives would be omitted from the film. He also denied deceiving her mother. He maintained that he had never said that the film would be limited to the Miss Maid competition and that he had actually told her that he was interested in filming Cara because she was living life “on the wild side”. He claimed that he had not acted unscrupulously and insisted that he had made the film with a view to exposing the truth about life in Cunnamulla and generally dispelling myths about the warmth and innocence of life in small country towns.
66. Despite a substantial attack upon his credit, I formed the impression that the plaintiff was an entirely honest witness, though his evidence was at times tinged with some measure of defensiveness and he did on occasion adopt a needlessly pedantic approach to questions put to him in cross-examination. I accept his evidence that he did not offer any undertaking of the kind alleged. It is, I suppose, possible that he gave such an undertaking and subsequently forgot about it, but think that that is most unlikely, especially in the light of the undisputed evidence that he subsequently went through the rushes with a view to erasing any interviews that might have exposed some young people to prosecution.
67. As Mr Molomby pointed out, there was no sensible reason for the plaintiff to have been filming discussions about these topics if he had already assured the girls that he would not use any of the footage. I accept Mr Blackburn’s submission that Cara and Kellie-Anne were young and unsophisticated girls who had grown up in a small country town and could not be expected to have had any real understanding of the processes by which documentary films were made. Accordingly, I would not discount their evidence on the basis that they could not have believed or acted upon such a suggestion. However, the plaintiff was well aware of the processes involved in the making of films and it is difficult to imagine that he would have wasted his time by conducting and filming interviews of this kind had he not anticipated that at least some of the material might ultimately be used. It was not suggested that he had engaged in a pointless charade due to mere prurient interest and there is no reason to suppose that he would have given such undertaking and immediately forgotten about it. Furthermore, it is difficult to understand why he would have given such an undertaking unless, of course, he had done so in a dishonest attempt to beguile these young girls into making disclosures that he feared would not be made if they realised that there was a risk of them appearing in a film. I do not accept that he did so.
68. As previously mentioned, the plaintiff did erase some of the tapes containing rushes. It was suggested that he had done so because he knew or feared that they would otherwise have revealed material inimical to his case but I accept his evidence that he did not do so for that purpose.
69. There are also reasons to doubt that either Cara Hearn or her mother were initially as shocked and distressed about the film as they claimed. Shortly after its release the plaintiff went to see them and took them to a hotel to discuss their reactions to it. Both Margaret Hearn and her mother claimed that they accompanied him reluctantly and that they were still hurt and angry. Cara claimed that she had left it to her mother to do all the talking and had barely spoken to the plaintiff. Conversely, her mother claimed that she had barely spoken to the plaintiff and that her daughter did all the talking. In contrast, the plaintiff said that they had accompanied him willingly, had expressed no resentment about the film and had, in fact, had an entirely amicable discussion both in the car and on their arrival at the hotel. The plaintiff’s account of the incident received some support from Mr Simon Royal of the Australian Broadcasting Corporation (ABC), who testified that whilst in Charleville in January 2001, he had encountered the plaintiff on his way to the Charleville Hotel with Cara and Margaret Hearn, both of whom appeared to be comfortable and in good spirits.
70. I also accept the evidence of Mr Stefan Moore, an executive producer with Film Australia who assisted the plaintiff with various aspects of the film’s production. Mr Moore gave evidence that a “long rough cut” version of the film was screened to a group of 10-20 of the plaintiff’s “colleagues and peers”. This version included the same footage of Cara and Kellie-Anne that appeared in the final cut of the film. Mr Moore stated that the screening was well received and, most significantly, “the only feedback (he) got in regard to Kellie-Anne and Cara was that they were- they viewed incredibly sympathetically”. The plaintiff also said a number of those present had said that “the portrayal of Cara and Kellie-Anne was very sensitive and very sympathetic”.
Findings
71. I find that imputation (c) was untrue. I do not accept that he deceived Cara into revealing details of her sex life. On the contrary, I find that he did not give any assurance that the relevant footage would be omitted.
72. I also find that imputation (h) was untrue. I do not believe Margaret Hearn’s evidence concerning this issue and am quite satisfied of the truth of the plaintiff’s account of the relevant conversations.
73. Imputation (i) involves allegations that the plaintiff had told Cara that he would not include details of her sex life in the film and that he had told her mother that her daughter’s participation in the film would relate to her involvement in the Miss Maid competition. I do not accept either of these allegations and accordingly find the imputation to have been untrue.
74. Imputation (e) relates to the character of the plaintiff rather than the occurrence of a discrete act or acts. An imputation that a person is an unscrupulous film producer, or an unscrupulous member of any other profession, is obviously more generalised and perhaps even more damaging than an imputation that such a person has acted unscrupulously on a particular occasion. In the present case, there is unchallenged evidence to the effect that the plaintiff had previously enjoyed an excellent reputation as a film producer and it was not suggested that he had acted in an unscrupulous manner in the making of any other films. The imputation was defended only by reference to the various allegations concerning his conduct in obtaining and using footage of the relevant interviews with Cara and Kellie-Anne as set out in the particulars of truth.
75. As previously mentioned, I do not accept some of those allegations and others, such as those relating to the amendment of consent forms, was not shown to have been of any real significance. I did not form the impression that either Cara or Kellie-Anne were reluctant to talk about their sexual activities or that they felt under any pressure to do so. Nonetheless, Cara was a 13 year old indigenous girl who had grown up in a small country town, and Kellie-Anne was only two years older and of a similar background. Both were vulnerable and impressionable. At face value, it would have been quite inappropriate for a man of the plaintiff’s age and relative sophistication to have filmed such discussions. Furthermore, whilst I accept the plaintiff’s evidence that he had told Margaret Hearn that he wished to film Cara over an extended period of time because she was living life on the wild side, he did not suggest that he had later warned either Margaret Hearn or Mr Allardice that their respective daughters had begun to discuss their sex lives in explicit terms or that footage of such discussions might be used in the film. Nor did he appear to realise the likelihood that they would be subjected to abuse and ridicule as the disclosures revealed in the film became known in Cunnamulla. I accept his evidence that he had thought that they had been portrayed sympathetically and that others who had seen the film prior to its general release had shared that perception. However, the milieu in which Cara and Kellie-Anne lived was not one populated by mature and sophisticated film buffs. These young women lived in a small town in which they would almost inevitably have become victims of gossip and, as the film itself suggested, its residents included some whose responses were unlikely to have been influenced by maturity, sophistication, compassion or even simple fairness.
76. Mr Molomby sought to address these issues by pointing out that the film was an expose of life in Cunnamulla, referring to the plaintiff’s evidence that, as shocking as they may now seem, the attitudes to sex displayed by Cara and Kellie-Anne had not appeared to be unusual in that town. Mr Molomby argued strongly that it had been in the public interest for the truth to be revealed and myths about the innocence of life in rural communities dispelled. At least one of the messages of the film, he suggested, was that young people like Cara and Kellie-Anne were being sexually exploited and nothing was being done to protect them. Indeed, the potential for such abuse remained enshrouded in romantic illusions about the wholesome quality of country folk and the sense of community that could be expected in small towns. He also submitted that the evidence revealed that the plaintiff had displayed genuine concern for these young women and that his perception that the film portrayed them sympathetically had been shared by others who had seen it prior to its general release. In essence, Mr Molomby maintained, the plaintiff had had been strong moral justification for revealing the truth and reasonable grounds to believe that neither Cara nor Kellie-Anne would not be damaged as a consequence. The real problem was that the second defendant had missed the point and elected to “shoot the messenger”.
77. The competing arguments of counsel obviously reflected some difference of ethical viewpoint. That is not surprising.
78. Even those offended by the concept of moral relativism must acknowledge that, to some extent at least, morality, like beauty, lies in the eye of the beholder. Whilst some may seek security in glib phrases such as “everyone knows right from wrong”, there are undoubtedly many circumstances in which morally conscientious people will differ as to where the path of propriety lies. A deontologist may believe that it leads in a different direction from that which might be taken by a committed teleologist. Yet both may be forced to acknowledge that their conclusions are inevitably influenced by their perceptions of the relevant facts. Furthermore, both may be forced to make value judgments in the context of the circumstances as they perceive them. The deontologist may have to make judgments about the priority of potentially competing moral values such as whether truth should prevail over compassion or loyalty (see, for example, the discussion by W. D. Ross, The Right and the Good, Clarendon Press, Oxford, 1930, especially chapters 1-2 and The Foundations of Ethics, Clarendon Press, Oxford, 1939. See also H. A. Pritchard, Moral Obligation, Clarendon Press, Oxford, 1949, especially ‘Does moral philosophy rest on a mistake?’ at 1-17; and J. R. Searle. ‘Prima facie reasons’ in Philosophical Subjects, ed Z. van Staaten, Oxford University Press, Oxford, 1980). The teleologist may have to make judgments about the priority of possible outcomes or competing objectives with a view to pursuing such objectives as the greatest good or the least harm. Indeed, it has been claimed that consequentialism may plunge its adherents into an “incessant practical casuistry” (see F. H. Bradley, Ethical Studies (first published 1876), Clarendon Press, Oxford, 1962, at 107) though at least one ethicist has emphatically rejected the suggestion that any such process would be incessant, noting that “It was never contended or conceived by a sound, orthodox utilitarian, that the lover should kiss his mistress with an eye to the common weal” (see A. J. Austin, The Province of Jurisprudence Determined [first published 1832], ed by H. L. A. Hart, Weidenfeld, London, 1954, at 108). Yet, it cannot be doubted that teleologists sometimes confront moral dilemmas. It may true that despite ethical reliance on a ‘grab bag of philosophical principles, customs, religious admonitions, cultural conventions, casuistical judgments and ad hoc valuations’, there is often concurrence as to the moral course in concrete situations (see D. Luban, “Partnership, Betrayal and Autonomy in the Lawyer-Client Relationship: A Reply to Stephen Ellmann”, (1990) 90 Columbia L. Rev. 1004, at 1023; see also C. S. Lewis’, The Abolition of Man, 1947, republished by Fount Paperbacks, London, 1978, at 95-121 and P. Singer, “Afterword”, in A Companion to Ethics, Basil Blackwell, Oxford, 1993, 543 at 543). Nonetheless, situations constantly arise in which the propriety of a particular action is hotly debated by protagonists equally convinced of their competing opinions on staunchly held moral grounds.
79. It is obviously possible for one person to conscientiously believe that it is morally right to make a film graphically exposing the plight of young people in a small country town, and for another to feel that the film has unjustifiably exposed some of those interviewed to unwarranted shame or embarrassment. Yet others may be conscious of the potential conflict between competing moral imperatives and uncertain as to which should be accorded primacy. Somewhat similar issues arise in relation to the television footage of human tragedies that seems to regularly intrude into our living rooms. One may find the public display of personal anguish repugnant, even voyeuristic, yet at the same time acknowledge that the little may be done to prevent further tragedy unless the need for intervention is graphically demonstrated. The producers of such programs may need to consider other questions, such as whether the risk of exacerbating the pain of those portrayed may be reduced or alleviated in some manner and whether any further harm caused is likely to be outweighed by the perceived benefits of the broadcast.
80. In the present case, I am not called upon to make any such moral judgments. That responsibility fell to the plaintiff when he decided to film the relevant interviews and when he decided to use footage of them. The issue which I am required to address is whether, in acting as he did, he demonstrated that he was unscrupulous, that is, devoid of scruples or unprincipled (see The Oxford English Reference Dictionary, 2nd ed, at 1582). It should be borne in mind that I am not presently dealing with the defences of comment. They will be addressed later. In defences of that nature, the relevant question is whether a fair minded person could have made the comment and that must be answered by reference to the beliefs and understanding of the defendant. For present purposes the question is whether it is true that the plaintiff was an unscrupulous film director. That requires an objective judgment, but one formed by reference to the beliefs and perspectives that the plaintiff had or might well have had and considered, perhaps, in the context of any dilemmas that he may have faced in grappling with competing considerations.
81. I have carefully considered the arguments ably advanced by counsel for the second defendant, some of which were not without cogency. Nonetheless, I am satisfied that he genuinely believed that it he was morally justified in acting as he did and, in all the circumstances, I am not satisfied that he has been shown to have been an unscrupulous film producer. Accordingly, the defence of truth fails in relation to this imputation.
82. Somewhat similar considerations arise in relation to imputation (f). In the context of the second matter complained of, the allegation that the plaintiff had “abused indigenous people, particularly young ones” did not mean that he had not merely caused them harm or disadvantage, whether unwittingly or otherwise, but that he had done so by acting in a manner that was in some respect unconscionable. The truth of such an allegation must again be judged by reference to the beliefs and perspectives of the plaintiff. Whilst I am satisfied that the publication of the relevant footage caused both Cara and Kellie-Anne real distress, I am not satisfied that the plaintiff either intended or anticipated that they would be hurt in that manner. Hence, I do not accept that the truth of this imputation has been established.

Comment

83. At common law, a defence of this nature will be available when the words complained of reflect a comment as distinct from a statement of fact, there is a basis for the comments contained or referred to in the published material and the opinion is expressed on a matter of public interest (see, for example Gatley on Libel & Slander, (10th Ed 2004), Sweet & Maxwell, London at par 12.4). If there is any basis for the comment, it does not matter whether it is extreme or strongly expressed. It is sufficient that a fair minded person, even if holding a strong, obstinate or prejudiced view, could have made it: see John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164 at [16]. When a defence of this kind is pleaded it is important to distinguish between comment and statements of fact and that is not always easy. I was referred to a suggested definition of a comment as “something which is or can reasonably been inferred to be a deduction, inference, conclusion, criticism, remark, observation, etc”: Clarke v Norton [1910] VLR 494 at 499. It should be noted that this formulation was said to have reflected the assumption of counsel rather than a judicial pronouncement as to the meaning of the term, but it does appear to provide a useful explanation of the essential difference between a statement of facts and a comment about such facts.
84. The common law defence of comment was at the relevant time reflected in s 22 of the Defamation Act 1974 (NSW), s 14(1)(b) and (f) of the Defamation Act 1889 (QLD) and s 355 of the Criminal Code (WA) but neither party suggested that statutory provisions substantially affected the nature of the defence.
85. In the present case such defences have been pleaded only by the second defendant and it is necessary to consider their application only in respect of the imputations arising from the second matter complained of.
86. Imputation (c), that he deceived a 13 year old girl into revealing details about her sex life which he then disclosed in the film, was clearly an allegation of fact rather than a matter of comment.
87. On the other hand, I am satisfied that imputation (e), that the plaintiff is an unscrupulous film producer, was a matter of comment. There is a clear basis for the comment in other statements in the second matter complained of and the opinion was, in my opinion, expressed upon a matter of public interest. I uphold the defence in relation to this imputation.
88. Imputation (f), which alleges that, in his work as a film producer, the plaintiff has abused indigenous people, particularly young ones, was again, in my opinion, a comment. It was based upon factual statements made earlier and was also expressed upon a matter of public interest. I again uphold the defence in relation to this imputation.
89. Imputation (h) contains a series of factual assertions: namely, the plaintiff deceived Margaret Hearn, the mother of Cara Hearn; he did so by telling her that he would film her daughter’s involvement in the Miss Maid competition; he thereby secured Margaret Hearn’s consent for him to talk to her daughter; he then had a discussion with Cara her sex life; he then filmed and published that discussion. There is no basis for the defence of comment.
90. Imputation (i) is, in my opinion a matter of comment. The central allegation is that the plaintiff acted unscrupulously. The other allegations, whilst factual in nature, specify the manner in it was alleged that he had acted unscrupulously namely, by including in the film details of Cara’s sex life that had been obtained when she was 13 years old and were included even though he had told Cara that he would not do so and had told her mother that Cara’s participation in the film would relate to her involvement in the Miss Maid competition. There was a basis for this comment in other parts of the second matter complained of and the opinion was again expressed upon a matter of public interest.
Qualified privilege
91. Defences of qualified privilege at common law and pursuant to s 22 of the Defamation Act 1974 (NSW) were raised in the second further amended defence and, whilst they were not pressed with any real vigour in argument, I should deal with them briefly.
92. The common law defence of qualified privilege was discussed by the High Court of Australia in Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366. In that case Gleeson CJ, Hayne and Heydon JJ observed, at [9], that the principles to be applied in determining whether the occasion of publication of matter about which complaint is made was an occasion of qualified privilege were well known. Their Honours referred to the well known authorities of Toogood v Spyring (1834) 1 Cr M & R 181 [149 ER 1044] and Adam v Ward [1917] AC 309, noting that frequent reference had been made to the following statement of Parke B in Toogood v Spyring;

"In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits."

Their Honours also affirmed that reciprocity of duty or interest is essential.
93. Section 22 of the Defamation Act 1974 is in the following terms:

(1) Where, in respect of matter published to any person:

(a) the recipient has an interest or apparent interest in having information on some subject,

(b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and

(c) the conduct of the publisher in publishing that matter is reasonable in the circumstances,

there is a defence of qualified privilege for that publication.

(2) For the purposes of subsection (1), a person has an apparent interest in having information on some subject if, but only if, at the time of the publication in question, the publisher believes on reasonable grounds that that person has that interest.

(2A) In determining for the purposes of subsection (1) whether the conduct of the publisher in publishing matter concerning a person is reasonable in the circumstances, a court may take into account the following matters and such other matters as the court considers relevant:

(a) the extent to which the matter published is of public concern,

(b) the extent to which the matter published concerns the performance of the public functions or activities of the person,

(c) the seriousness of any defamatory imputation carried by the matter published,

(d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts,

(e) whether it was necessary in the circumstances for the matter published to be published expeditiously,

(f) the sources of the information in the matter published and the integrity of those sources,

(g) whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the publisher to obtain and publish a response from the person,

(h) any other steps taken to verify the information in the matter published.

(3) Where matter is published for reward in circumstances in which there would be a qualified privilege under subsection (1) for the publication if it were not for reward, there is a defence of qualified privilege for that publication notwithstanding that it is for reward.

94. The question that arose in Bashford v Information Australia (Newsletters) Pty Ltd was whether qualified privilege, at common law or pursuant to s 22 of the Defamation Act 1974, was attracted by the publication of defamatory material in an occupational health and safety journal. Their Honours said, at [26] that:

What set the respondent's Bulletin apart from some other paid publications was the narrow focus of both its subject matter and its readership. Because its subscribers were only those responsible for occupational health and safety matters, and because it dealt only with those matters, there was that reciprocity of duty or interest between maker and recipient which attracted qualified privilege. The circumstances of publication were, therefore, very different from those in which the general news media deal with matters of political or other interest. The premise for the development of the common law that was made in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 570 was that only in exceptional cases had the common law recognised a duty to publish or interest in publishing defamatory matter to the general public (references to earlier authorities omitted). To hold that the occasion of publication of the matter complained of in this matter was privileged does not challenge that premise. In the present matter there was no publication to the general public.

See also the judgment of Gummow J at [148] and that of Kirby J at [187].
95. In the present case, there does not appear to have been any similar reciprocity of interest or duty sufficient to attract qualified privilege.
96. In any event, the second matter complained of did not contain the substance of the plaintiff’s side of the story and there was no suggestion that the second defendant had attempted to contact him with a view to obtaining a response from him. The second defendant did not call any other evidence that, in my view, was capable of establishing that it had acted reasonably.
97. I reject this defence.
Conclusion
98. I am satisfied that the second defendant is liable to the plaintiff by reason of defamatory imputations (c) and (h).
Damages
99. In assessing damages it is, of course, necessary to bear in mind that the cases pleaded against each defendant are quite different, though there is some measure of potential overlap because the first defendant is sued for republication of the first matter complained of in the second matter complained of and aggravated damages are sought against both defendants by reason of the substantial repetition of the relevant imputations in The Australian newspaper on 18 December 2001. There was no evidence as to whether the second matter complained of was written wholly in response to an unsolicited approach by the first defendant to Ms Miles or whether she had spoken to him in the course of preparing her article. In any event, it was not suggested that he bore any responsibility for any portion of the second matter complained of apart from that consisting of a republication of the first matter complained of.
100. The general principles are clear. Damages must be awarded to vindicate the plaintiff’s reputation and to compensate him for his hurt feelings: see, for example, Dingle v Associated Newspapers Ltd (1964) AC 374 at 396-398; Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118 at 150; Broome v Cassel & Co [1972] UKHL 3; [1972] AC 1027 at 1071; and Carson v John Fairfax & Sons Ltd (1993) 178 CLR at 44.
101. As Lord Diplock explained in Broome v Cassel & Co at 1125:

The harm caused to the plaintiff by the publication of the libel upon him (or, of course, her) often lies more in his own feelings, what he thinks other people are thinking of him, than of any actual change made manifest in their attitude towards him. A solatium for injured feelings, however innocent the publication by the defendant may have been, forms a large element in the damages . . . even in cases in which there are no grounds for “aggravated damages”.

102. In the present case, as I have mentioned, the plaintiff seeks aggravated damages against both defendants on the ground that the substantial repetition of the defamatory material in subsequent broadcasts would inevitably have caused further harm to his reputation and certainly had an impact upon his feelings. Aggravated damages are compensatory in character (as Hunt J observed in Waterhouse v Broadcasting Station 2GB Pty Ltd [1985] 1 NSWLR 58 at 74-75) and are awarded when the circumstances in which the defamatory matter was published or the conduct of the defendant has made the injury worse. In Suttcliffe v Pressdram Ltd [1991] 1 QB 153, Lord Donaldson said at 170 that “aggravated damages are awarded precisely because other conduct by the defendants, which may or may not take the form of another libel, rubs salt into the wounds inflicted by the libel sued upon”. Unlike exemplary damages, which are not sought in the present case, they are not usually reflected in a separate award but taken into account in the overall assessment of general damages.
103. The plaintiff undoubtedly enjoyed an excellent reputation as a film producer but the evidence suggests that the defamatory statements published by the defendants did not materially damage it. Mr Molomby argued that, whilst his reputation amongst those involved in the film industry may not have been significantly diminished, his reputation in the wider community may have been tarnished and, as a consequence the plaintiff might experience difficulty in persuading people to be interviewed for future films. I accept that the publication of the second matter complained of may well have caused some people in the community to think the plaintiff was prepared to deceive vulnerable young people and their parents in order to obtain controversial footage. However, there was no evidence that people had subsequently declined to be interviewed by the plaintiff due to perceptions of this kind. It is, of course, possible that such perceptions could persist and may have some continuing influence on the plaintiff’s work even if no evidence of it has yet emerged from conversations with people he has sought to interview. Nonetheless, I am not satisfied that there has been any substantial damage to either his reputation or his career.
104. On the other hand, I am satisfied that the plaintiff suffered hurt feelings as a result of the defamatory publications. It is true that he did not commence proceedings in respect of some other publications of substantially similar allegations, but that does not, of course, mean that he did not suffer hurt feelings as a result of the only publications for which he has sought legal redress.
105. It is also true that in the course of the plaintiff’s professional career he has sought, and perhaps even revelled in, controversy. That does not excuse the defamatory imputation. It may suggest that he is confident of his ability to cope with the type of criticism that is likely to be evoked by his films and even, perhaps, that he is one of the more emotionally robust members of the community, but it does not justify an assumption that he would not have been hurt by the imputations conveyed in the first and second matters complained of.
106. The first matter complained of was published only to Ms Miles but the plaintiff is also entitled to damages against the first defendant in respect of the republication in the second matter complained of and damages were aggravated by the first defendant’s conduct in making similar allegations in the radio broadcast of 1 June 2001 and 17 December 2001, the television broadcast on 17 December 2001 and articles in The Canberra Times and The Australian newspapers both on 18 December 2001.
107. Having regard, not only to the imputations contained in the first matter complained of, but also to their republication in the second matter complained of and to the aggravating effect of the further repetitions, I am satisfied that it would be appropriate to award general damages of $80,000 in respect of the claim against the first defendant.
108. More than five years has elapsed since the relevant publication and, whilst it is clear from his evidence that the plaintiff is still hurt by the imputations, I am satisfied that the overall impact of the defamation has been substantially spent. In fact, the damage both to the plaintiff’s reputation and to his feelings would have been substantially greater in the period immediately after the republication in the second matter complained of on 1 June 2001 and the subsequent repetitions in December of that year. In the circumstances, I propose to allow interest at 3% per annum, for a period of 5 years on 90 per cent of the general damages. That amounts to a further sum of $10,800.
109. Accordingly, there will be judgment against the first defendant in the sum of $90,800.
110. The second matter complained of was more a more extensive article and it conveyed imputations (c) and (h) in an explicit manner. However, the damage arising from this article was aggravated only by reason of a substantial repetition of the relevant imputations in the article in The Australian on 18 December 2001. In all of the circumstances, I have decided that it is appropriate to award the sum of $100,000 for general damages.
111. I also allow interest, calculated on the basis already mentioned, in the sum of $13,500.
112. Accordingly, there will be judgment for the plaintiff against the second defendant in the sum of $113,500.
113. Whilst brought in the same proceedings, the claim against the first defendant must be distinguished from that against the second defendant. Furthermore, there has been no application for indemnity or contribution by one defendant against the other. In other circumstances it might, nonetheless, have been appropriate to make orders imposing joint and several liability in respect of that part of the second matter complained that constitutes of the republication of material in the first matter complained of. However, imputations (a) and (b) which formed the basis for the judgment against the first defendant do not give rise to any finding of liability against the second defendant and, conversely, imputations (c) and (h) which formed the basis for the judgement against the second defendant were not conveyed by the first matter complained of. I am, of course, conscious of the fact that, in this jurisdiction at least, the imputations are merely particulars of the relevant causes of action. Nonetheless, neither counsel suggested that either defendant should be relieved from his or its separate liability by reason of any payment by the other and I see no reason to do so.
114. I will hear counsel as to costs.
I certify that the preceding one hundred and fourteen (114) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 8 August 2007

Counsel for the plaintiff: Mr T Molomby SC with Mr R Rasmussen
Solicitor for the plaintiff: Pamela Coward & Associates
Counsel for the defendant: Mr T D Blackburn SC with Mr D R Sibtain
Solicitor for the defendant: Blake Dawson Waldron

Date of hearing: 9, 10, 11, 12, 13, 16, 17, 18, 19, 20 October 2006, 15, 16 March 2007

Date of judgment: 8 August 2007