Nationwide News Pty Ltd v Sleeman [2005] NSWCA 349 (14 October 2005)

CITATION: Nationwide News Pty Ltd v Sleeman [2005] NSWCA 349

FILE NUMBER(S):

CA 40988/04

HEARING DATE(S): 09/08/05, 10/08/05

JUDGMENT DATE: 14/10/2005

PARTIES:

Nationwide News Pty Ltd - Appellant

Richard Sleeman - Respondent

JUDGMENT OF: Mason P Beazley JA Brownie AJA

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): 20256/00

LOWER COURT JUDICIAL OFFICER: Levine J

COUNSEL:

Mr T D Blackburn SC with Mr D R Sibtain - Appellant

Mr C A Evatt with Mr J C Henness - Respondent

SOLICITORS:

Blake Dawson Waldron - Appellant

Peter R Murphy & Co - Respondent

CATCHWORDS:

Defamation - comment by a stranger - question whether the matter published was published as a statement of fact or as comment - if as comment, whose comment - if not the stranger's words, not the stranger's comment. Defamation - damages.

LEGISLATION CITED:

Defamation Act 1974

Motor Accidents Act 1988 (NSW)

Civil Liability Act 2002 (NSW)

DECISION:

1. Appeal allowed, to the extent that the judgment for the respondent for $434,660.00 be set aside. 2. In lieu therefore, judgment for the plaintiff for $271,665.00 and costs, to take effect from 15 October 2004. 3. Appellant to pay 90 percent of the respondent's costs of the appeal.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40988/04

SC 20256/00

MASON P

BEAZLEY JA

BROWNIE AJA

Friday 14 October 2005

NATIONWIDE NEWS PTY LTD v RICHARD SLEEMAN

Judgment

1 MASON P: I agree with Brownie AJA.

2 BEAZLEY JA: I agree with Brownie AJA

3 BROWNIE AJA: The appellant was the publisher of The Australian newspaper. On 8 June 2000 it published in that newspaper an article which, numbering the sentences for ease of reference, was in this form:

(1) IAN Thorpe was treated like a god following his world-record-breaking swims at the Olympic trials. (2) At just 17, Thorpedo charmed the public outside the pool too – with his characteristic modesty and sweet nature. (3) Sadly, the goodwill Ian and his manager, David Flaskas, felt towards the media pack has somewhat diminished after a cover story, The Water God, appeared in Fairfax’s Good Weekend. (4). According to the write-off, “Richard Sleeman meets the almost too-good-to-be-true teen with the world at his big, big feet – and discovers his surprising plans for after the Olympics”. (5) (Disclosure: Thorpe has a contract to write exclusively for The Australian and was recently interviewed at length by this newspaper’s Fiona Harari for a magazine piece). (6) The background to the Good Weekend article is complex, but the upshot is that Thorpe did not agree to be interviewed for the profile, did not pose for photographs for the magazine and was surprised to discover he had allegedly told the journalist he may retire after Sydney 2000. (7) “He’s having a break like all the other swimmers,” Flaskas says. (8) To be fair, Sleeman did have some access to Thorpe and his family – way back in January – and he did attend press conferences to get the rest of his material. (9) He also snatched poolside conversations with him, of which Flaskas was previously unaware. (10) But, according to Flaskas, the piece was dishonest because it was presented as if Sleeman had spoken to Thorpe recently and at length. (11) It is the first, but probably not the last, time the young swimmer has felt exploited.”

4 At a hearing conducted pursuant to s 7A of the Defamation Act 1974 (the Act) the jury found that the following two imputations had been conveyed, and that they were defamatory of the respondent:

“(a) The [respondent] is a dishonest journalist.

(d) The [respondent] in writing a piece on Ian Thorpe deliberately gave the false impression that he had spoken to Ian Thorpe recently and at length.”

5 At a later hearing, Levine J rejected various defences that had been taken by the appellant, and assessed damages. There is no appeal from the verdict of the jury, but a number of his Honour’s findings are challenged. In summary, the questions pleaded and now raised on appeal go to questions about comment, truth, and the measure of damages.

6 In order to deal with these issues, it is necessary to set out the article published in the Good Weekend, at length. There was a headline “The water god”, followed by the words “Ian Thorpe ... all-round nice guy, wet or dry”, and then there were some introductory sentences, in these terms:

“At 15, he splashed onto the world swimming scene, leaving all in his wake. Today, Ian Thorpe is bathed in fame, glory and riches ... and is still too young to vote. Richard Sleeman meets the almost too-good-to-be-true teen with the world at his big, big feet – and discovers his surprising plans for after the Olympics.”

7 There followed a headline, reading “Laps of the god”. The respondent did not write any of this, but he did write what followed, reading (with the addition of numbering for the sentences):

“(1) When Ian Thorpe takes to the water, leaping from the edge of the pool, he doesn’t dive so much as unravel. (2) The way he extends and stretches and uncoils, he could be Inspector Gadget, rather than a kid from Sydney’s south-west going to his home-town Olympics as possibly the greatest swimmer the world has seen.

(3) Everything about Thorpe is extraordinary. But this simple act of getting into the pool for a training session might be the most amazing sight of all. (4) You could swear his feet are still touching the pool deck by the time his fingertips break the water’s surface. (5) Between these extremities, the rest of him arches upwards and outwards.

(6) Is it this flexibility that makes him so good? (7) Is it that relaxed, slow-motion style, so distinct from anyone else’s in world swimming? (8) Is it just his damned hard work, or maybe his highly technical and scientific level of training and preparation? (9) Superior coaching perhaps? (10) Happy home life? (11) Unflappable temperament? (12) The bodysuit? (13) Those flipper feet? (14) Certainly not drugs, as that impertinent German coach suggested. (15) If none of these, what then?

(16) The thing about Thorpe is that his avalanche of freestyle world records – 10 in two years – defies explanation. (17) Yet when the world sees something it can’t comprehend, like this 17-year-old gliding through water with the speed and grace and singlemindedness of a seal after a fish, world records tumbling in his wake, it demands an answer.

(18) Brad Fittler is arguably the best rugby league player in the world and moves about the playing field effortlessly, knowing what will happen minutes before it does. (19) He watched Thorpe from poolside in the latest wave of world records. (20) “It gives me the shits,” Fittler called out to anyone in earshot. (21) “How can one sportsman be so good at something and make it look so easy?” (22) Every other swimmer, every coach, in the world wants to know his secret. (23) But not even Thorpe himself can explain it.

(24) Here he is, fresh and relaxed at the end of a pool session, lounging about like any big, happy, gawky teenager, in a room adjoining the Sydney Olympic venue. (25) On the other side of the window, dozens of lesser swimmers pound up and down the lanes, and you wonder how, like fish in a crowded tank, they never bump into each other. (26) The air hangs thick with the smell of pool chemicals and Olympic dreams.

(27) Thorpe’s hair and towel and costumes are still dripping wet and, as he speaks, he’s oblivious to the small lake that develops around him. (28) You are instantly struck by the warmth and confidence he exudes. (29) The almond eyes sparkle, ringed by marks left by his goggles. (30) The smile is wide-mouthed and welcoming; teeth in perfect rows.

(31) It would seem a simple question to ask first up: why are you so good? (32) Thorpe isn’t exactly stuck for words – he’d talk underwater – but he does puzzle over it for a while, and then can’t find a satisfactory answer.

(33) “A lot of it’s to do with using the smallest amount of energy above the water,” he says. (34) “I look like I’m going slow on top of the water, but underwater’s where it’s all happening – the bit you don’t see from the stands.” (35) His coach, Doug Frost, calls it “sliding freestyle”. (36) Says Frost: “He has this – what would you call it? (37) That’s it. (38) A ‘feel’ for the water. (39) He gets up on the plane, the way a speedboat does.”

(40) His stroke-rate is absurdly slow. (41) When Kieren Perkins broke world records in the recent past - and even Grant Hackett now – they completed more than 20 strokes per lap. (42) Even when he cranks it up, Thorpe never completes more than 16 strokes.

(43) The irony is that Thorpe works hard at looking so relaxed. (44) When he broke the 400 metre world record yet again at the Olympic trials which ended last weekend, he went home and watched the footage of the race taken from below the water. (45) He watched it over and over again, at home, at training, at his manager’s. (46) Not satisfied with knocking half a second off his world mark, he went searching, painstakingly, for improvement. (47) Then he came out and chipped a bit more off his 200 metre world record the following night in the semi-finals, shrugging his shoulders at the end of it as if to say, “I thought there might be a bit more in me.” (48) There was. (49) The next night, in the final, he broke the record again.

(50) Says Thorpe: “I’m constantly working on the stroke. (51) I get so frustrated when my stroke’s out.” (52) In fact, his stroke hasn’t been out since he was eight. (53) But there’s a search for perfection here that’s unparalleled. (54) Perhaps that’s the real reason he’s so good. (55) Nothing’s ever good enough. (56) No limits. (57) That, and the realisation of how transient fame and life are.

(58) Thorpe’s intensity drops off when the conversation turns to life outside swimming. (59) Don’t be the least bit surprised if he does a “Shane Gould” and quits, or at least takes a very long break from swimming, after the Sydney Olympics. (60) As a Sydney teenager at the Munich Olympics, Gould won five medals, three of them gold. (61) She broke two world records in the process. (62) Going into Munich, she was every bit as dominant as Thorpe has been in the lead-up to Sydney. (63) Months later, Gould was lost to the sport, gone west, literally, to the obscurity of a small farm south of Perth.

(64) “I won’t be swimming after the Olympics,” Thorpe says, leaning across and speaking in a conspiratorial tone. (65) He doesn’t specify whether he means for a short time or forever. (66) He has not told this to anyone publicly before. (67) “I want to go to university to study psychology, or medicine. (68) I would like to earn my living as a psychologist or a surgeon. (69) You won’t see much of me after the Olympics. (70) I want to be able to go to the movies like a regular person and be no-one special.”

(71) THIS IS NOT A ONE-DIMENSIONAL, TUNNEL-visioned swimmer, however much time he puts into the hunt for the perfect stroke. (72) Thorpe may have quit school at 14, but it had nothing to do with a shortage of brain power. (73) He was dux of his primary school and scored in the high 90s at East Hills Boy’s Technology High in the School Certificate, which he completed by correspondence. (74) He has since taught himself French, studies the classics at home for “something to do”, reads voraciously and day-trades on the stock market from his computer. (75) “Swimming is never mentioned at home,” he says. (76) “It’s a rule. (77) Home is my safe haven.”

(78) The choice between a “normal” teenager’s school life and that of a full-time professional swimmer was made when Thorpe was 14. (79) He was a “freak” swimmer, really, at 12. (80) His father, Ken Thorpe, remembers a State short-course meet when Ian, at that tender age, had 13 swims for 13 State records. (81) “I knew at that moment,” Ken says, “that we had a very special boy on our hands.”

(82) But Ken and his wife, Margaret, had seen their daughter, Christina, squander her education in search of swimming glory, before an injury cut short a promising career as a distance freestyler which got her to the Pan Pacific titles in 1995.

(83) Ken Thorpe recalls the family gathering that would decide whether young Ian became a swimmer or a student. (84) Sport or an education? (85) You can’t have both these days, such are the demands of modern-day training.

(86) “It was the strangest conversation.” Ken recalls. (87) Thorpe Snr was an accomplished cricketer who played alongside Len Pascoe and Jeff Thomson at the Bankstown club. (88) Margaret Thorpe is a schoolteacher. (89) You’d expect the former would push for the sports option for their son, and the latter for an education. (90) Says Ken: “It was the exact opposite. (91) I wanted him to stay at school and complete his education. (92) Margaret wanted him out of school and into swimming full-time.”

(93) Luckily for a lot of people, Margaret Thorpe got her way. (94) That decision has changed more lives than just Ian’s. (95) He’s a millionaire in endorsements alone, but Thorpe is not the only one to benefit. (96) The family home used to be a modest pile in Milperra, a suburb best remembered as the site of the Father’s Day bikie gang massacre in 1984. (97) Now home is a comfortable new brick place at Voyager Point, on the Georges River, in a complex called The Sanctuary. (98) Ken has taken redundancy from his council job.

(99) Doug Frost, Thorpe’s grey, balding, bespectacled mentor, has struggled as a coach for 40 years for few rewards. (100) He had a world championship finalist once in Phil Bryant, but never a star. (101) Says Frost: “I could never even afford a decent car to go to training. (102) It’d be, like, 5am on a cold winter’s morning and the old bombs I had wouldn’t start. (103) Many’s the time I had to walk to the pool in the pitch black or get one of the mums to pick me up. (104) When grants were handed around, I never got one.”

(105) And when swim coaches were mentioned in the newspaper, it was always the Lawrences, the Bucks, the Talbots. (106) Now Frost gets his name and mug shot in the paper on a regular basis, banks a hefty stipend from the Australian Sports Commission and the NSW Institute of Sport and drives a black BMW with customised plates and expensive golf clubs in the boot. (107) On the pool deck at important meets, coaches from around the world follow him like he’s the guru, taking notes as they trail in his footsteps. (108) When Thorpe breaks yet another world record, they run from everywhere to shake Frost’s hand, as it some of his secrets might rub off.

(109) Then there’s Thorpe’s agent, David Flaskas. (110) The pair are exceptionally close. (111) Flaskas looked after Christina Thorpe, who now works for him and handles all calls on Ian’s time. (112) Before Thorpe, Flaskas was a relative minnow among the sharks in the sports agent business. (113) Now he talks “global strategies”, rolls off the big-name companies that support his charge, and admits: “It has been fantastic financially.” (114) If Thorpe Inc, rather than just Ian himself, ever floated, it would cause a stampede.

(115) Flaskas is in awe of Thorpe, his talent and maturity. (116) “It’s like Ian’s been here before,” he says.

(117) THORPE’S FIRST TENTATIVE STROKES IN A swimming pool were far from god-like. (118) Doug Frost recalls how Thorpe as a seven-and eight-year-old used to accompany his sister to the old Padstow pool. (119) “He was allergic to the chlorine,” says the coach. (120) “He refused to get his face and head wet. (121) If he did, he’d break out in a bad rash or something. (122) It was hardly an auspicious start to a swimming career.

(123) “I tried to reach him how to dive in, but that meant getting his face wet. (124) So he’d do the belly flop and thrash about. (125) I’ve got some old footage of him somewhere. (126) I must get it out. (127) He was all straight-armed and half-drowning.”

(128) Over the years, they developed, honed and adjusted his precisely balanced stroke. (129) “Ian has absolutely no flat spots in the stroke,” says Frost. (130) “Not even under the most intense pressure.”

(131) Frost is asked if Thorpe has any faults. (132) “If he has one, I haven’t seen it yet. (133) He’s competitive, but not aggressive. (134) He treats other competitors with great respect. (135) He never misses a training session. (136) He’s rarely even late for one.”

(137) They made one big tactical blunder in the 1998 World Championships in Perth – letting Grant Hackett get a big lead in the 400 metres. (138) Thorpe reeled him in, but only in the nick of time, to become the youngest-ever world champion. (139) Says Frost: “My plan – our plan – was flawed. (140) We underestimated Hackett. (141) It won’t happen again.” (142) It’s why Thorpe now leads in all his races, and when in front, relentlessly drives further and further ahead.

(143) That same night, In the Sydney Children’s Hospital on the other side of the continent, a young, seriously ill cancer patient who also happened to be Ian’s closest friend yelled so loudly at the television in support of Thorpe that nurses feared for his life.

(144) They make quite a pair, Ian Thorpe and Michael Williams. (145) They met when Thorpe’s sister, Christina, was first dating Michael’s brother, David. (146) When Michael, at age 11, was struck down with lymphoma, Thorpe was 14, his career just taking off. (147) Thorpe told Sports Illustrated, “It was a strange time, all the sponsors coming into my life, all the interviews and the limelight. (148) I realised how little it all meant. (149) It gave me no power to help Michael.”

(150) For a time, Thorpe struggled with his own goals as Michael fought against the inoperable cancer and sickening chemotherapy. (151) More than once, Michael was given up for dead. (152) Thorpe wondered at the point of it all. (153) He credits his sick friend with getting him back on track.

(154) He says, “What I saw because of Michael was how precious life is, how important it is to love what you do, every day, to appreciate and make the most of your gifts. (155) It changed my life. (156) It opened my eyes to the world. (157) When I was feeling pain in workouts, I’d start thinking: this is nothing compared to what Michael’s going through.”

(158) If Michael’s courage inspired Thorpe, then the reverse was also true. (159) His health began to improve, the cancer went into remission. (160) Thorpe shouted his mate a trip to the Commonwealth Games in Kuala Lumpur and Michael watched from the stands while Thorpe won four gold medals.

(161) Michael’s cancer is still in remission, he and Thorpe are family now that Christina and David Williams are married, and you’ll rarely see Thorpe compete without Michael in the stands, stopwatch in hand, cheering him on. (162) When Thorpe won $25,000 as the first swimmer to break a world record in the Olympic pool at Homebush, he donated it to children’s cancer research.

(163) Thorpe, too, benefits from scientific research. (164) The bodysuit cuts down times, no doubt about it. (165) So does the altitude training in the Snowy Mountains and Colorado. (166) There’s the stroke assessments from the underwater video, guidance in nutrition and diet, lactate tests, skinfold tests, gym programs. (167) Nothing is left to chance.

(168) For some of us, it might be reassuring to know that not even medical and scientific breakthroughs can help Thorpe in another sport.

(169) His father wanted him to be a cricketer.

(170) But, “Ian has absolutely no hand-eye co-ordination. (171) He can’t catch or throw,” says Ken. (172) “Put him on the cricket or football field and it’s embarrassing.”

(173) Want to beat Ian Thorpe? (174) Just throw him a cricket ball.

8 Various photographs accompanied the article, and at the end there was a table listing the world records Mr Thorpe had broken, including three during May 2000.

Truth

9 In this Court, there were two separate issues, or groups of issues to consider. First, in relation to imputation (d) only, the appellant, relying upon s 15(2) of the Act, pleaded that the imputation was a matter of substantial truth, and that it related to a matter of public interest and/or that it had been published under qualified privilege. Secondly, and in relation to imputations (a) and (d), the appellant raised a defence of contextual truth, relying upon s 16 of the Act. It pleaded that another imputation (the contextual imputation) had been made by the same publication, in these terms (Red 10):

“.....the [respondent] acted dishonestly as a journalist by conveying the impression in his article that Ian Thorpe was revealing that he might retire after the Olympics.”

10 It also pleaded that the contextual imputation related to a matter of public interest and/or had been published under qualified privilege, that it was a matter of substantial truth, and that by reason that the contextual imputation was a matter of substantial truth, the imputations sued upon had not further injured the reputation of the respondent.

11 The appellant gave the same particulars in respect of each of these defences (Red 7):

(A) Clauses 1 and 3 of the AJA Code of Ethics provide:

“1. Report and interpret honestly, striving for accuracy, fairness and disclosure of all essential facts. Do not suppress relevant available facts, or give distorting emphasis. Do your utmost to give a fair opportunity for reply.

“3. Aim to attribute information in its source. Where a source seeks anonymity, do not agree without first considering the source’s motives and any alternative attributable source. Where confidences are accepted, respect them in all circumstances”.

(B) Ian Thorpe did not agree to be interviewed for the article referred to in the matter complained of published in the Sydney Morning Herald Good Weekend Magazine on 27 May 2000 entitled “The Water God” written by the [respondent] (a copy of which is annexed in Schedule A).

(C) Ian Thorpe briefly answered some questions put by the [respondent] at the World Cup Swimming Competition in January 2000, but gave no formal or lengthy interview to the [respondent].

(D) Ian Thorpe did not agree to provide or pose for photographs for the particular use in the [respondent’s] article.

(E) The [respondent’s] article uses language designed to give the impression that the [respondent] had spoken at length and recently with Ian Thorpe for the purposes of the article, including:

(I) ‘Richard Sleeman meets [Ian Thorpe]’ (paragraph 2)

(II) ‘Thorpe’s hair and towel and costumes are still dripping wet and, as he speaks, he’s oblivious to the small lake that develops around him. You are instantly struck by the warmth and confidence he exudes. The almond eyes sparkle, ringed by marks left by his goggles. The smile is wide-mouthed and welcoming; teeth in perfect rows.

It would seem a simple question to ask first up: why are you so good?’ (paragraphs 9-10)

(iii) the conversation turns to life outside swimming (paragraph 15)

(IV) “I won’t be swimming after the Olympics,” Thorpe says, leaning across and speaking in a conspiratorial tone .....He has not told this to anyone publicly before. (paragraph 16)

(V) The change in tense from ‘Thorpe told Sports Illustrated’ (paragraph 33) to ‘He says’ (paragraph 35), and the omission of an attribution to Sports Illustrated in respect of the later quote, when both quotes appeared in the earlier Sports Illustrated article.”

(F) Ian Thorpe did not meet with the [respondent] for the purposes of providing an interview for an article relating to him.

(G) The [respondent] did not have a formal interview with Ian Thorpe, David Flaskas, Doug Frost or the parents of Ian Thorpe for the purposes of his article.

(H) The [respondent] had not spoken recently to the parents of Ian Thorpe before the publication of the [respondent’s] article.

(I) The [respondent’s] article falsely conveys the impression that the following facts (each of which is untrue) were obtained from interviews with Ian Thorpe, David Flaskas, Doug Frost and the parents of Ian Thorpe:

(I) Ian Thorpe repeatedly watched video replays of his 400 metre swim at the Olympic trials (paragraph 13)

(II) Ian Thorpe day trades on the stock market from his computer at home (paragraph 17)

(III) Ian Thorpe quit school at age 14 (paragraph 17)

(IV) Ian Thorpe was dux of his primary school (paragraph 17)

(V) the Thorpe family debated in the manner described whether Ian would become a swimmer or a student (paragraphs 20-21)

(VI) Ian Thorpe purchased the new family home at Voyager Point (paragraph 22)

(VII) Michael Williams regularly has a stopwatch when in the stands watching Ian Thorpe compete (paragraph 37)

(VIII) Ian Thorpe donated all of the $25,000 prize for being the first swimmer to set a world record at the Homebush Olympic pool to children’s cancer research (paragraph 37)

(J) The [respondent’s] articles included a large number of factual errors that proper enquiries would have revealed to be untrue, including assertions or inferences that:

(I) Ian Thorpe repeatedly watched video replays of his 400 metre swim at the Olympic trials (paragraph 13)

(II) Ian Thorpe day trades on the stock market from his computer at home (paragraph 17)

(III) Ian Thorpe quit school at age 14 (paragraph 17)

(IV) Ian Thorpe was dux of his primary school (paragraph 17)

(V) the Thorpe family debated in the manner described whether Ian would become a swimmer or a student (paragraphs 20-21)

(VI) Ian Thorpe purchased the new family home at Voyager Point (paragraph 22)

(VII) Michael Williams regularly has a stopwatch when in the stands watching Ian Thorpe compete (paragraph 37)

(VIII) Ian Thorpe donated all of the $25,000 prize for being the first swimmer to set a world record at the Homebush Olympic pool to children’s cancer research (paragraph 37)

(IX) Ken Thorpe used the term “embarrassing” in relation to Ian Thorpe’s cricket and football abilities (paragraph 41)

(K) Ian Thorpe did not tell the [respondent] that there was any likelihood that he would retire from swimming after the Olympics.

(L) Ian Thorpe did not make any newly published revelations to the [respondent] that he would either retire from swimming after the Olympics or that he would be taking a break from swimming after the Olympics.

(M) The [respondent’s] article conveyed the impression that:

(a) Ian Thorpe had revealed to the [respondent], for the first time, that he might retire after the Olympics.

(b) Ian Thorpe had revealed to the [respondent] for the first time, that he would be taking a break after the Olympics.”

12 Both at trial and on appeal, the appellant made a detailed, concentrated attack upon the honesty of the respondent, in his having written what he wrote. At trial, the appellant raised most, if not all of the questions mentioned in the particulars just quoted, but the findings of the trial judge, adverse to the appellant, meant that on appeal the attack upon the respondent was more restricted.

13 The appellant submitted that three impressions had been created by the article written by the respondent: first, that the article was the product of a deep, wide-ranging and unhurried consultation with Mr Thorpe; secondly, that the respondent had obtained a scoop to the effect that Mr Thorpe would or might retire after the 2000 Olympic Games (see sentences 64-70); and thirdly, that the respondent was thereby revealing something previously undisclosed, that Mr Thorpe had then revealed to the respondent for the first time.

14 Levine J, whilst critical of the respondent in some respects, generally accepted the respondent’s evidence, and rejected these propositions. He went through the particulars given in respect of these defences, and made findings that, in the main, need not be considered now.

15 At trial there was a dispute as to whether the respondent had had a formal consultation or interview with Mr Thorpe. The Judge found, and it is no longer in dispute that the respondent did have such an interview, lasting some 15 to 20 minutes, as well as certain “snatches” or “grabs” of conversation, between the respondent and Mr Thorpe at the side of a pool (or pools) during training sessions. His Honour also found that the appellant had not established that the respondent’s state of mind was such that he was dishonest, or that the respondent had considered the question of Mr Thorpe’s possible retirement as being a scoop – if the respondent had thought that, he would have published his article more promptly (there was a delay of about four months between the interview and the publication), and would have put the supposed scoop at the forefront of his article.

16 The Judge also found that, at the formal interview, Mr Thorpe had said words to the effect quoted in sentences 64-70, that the respondent had understood Mr Thorpe’s remarks to constitute a reference to an option to possibly retire, rather than to the probability that he would retire, and that this was what the respondent’s article conveyed; and the Judge noted the evidence of a witness, Mr Meagher, who generally corroborated the evidence of the respondent on this topic, and said that he, Meagher, had been surprised at the time by what Mr Thorpe had said about his possibly retiring, as well as the evidence of Mr Thorpe, who said that he really did not remember the interview (he gave many interviews). He also found that the respondent had not, by the article, conveyed a deliberate or false impression that he had spoken to Mr Thorpe recently and at length.

17 Recognising the effect of the decision of Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, the appellant submitted that it was unarguable that the three impressions mentioned at [13] had been conveyed by the respondent’s article, that he must therefore have intended to convey them, and that it was glaringly improbable that he did not intend to do so.

18 I do not find these submissions persuasive. I consider that it is reasonably plain from the face of the respondent’s article that a good deal of the information there set forth came from sources other than Mr Thorpe, and also that the article does not convey the impression that Mr Thorpe had given the respondent some formal consultation or interview which was a deep, wide-ranging and unhurried interview. Thus, sentences 19-21 were attributed to Mr Fittler; sentences 36-39, 101-104 and 117-142 were sourced to Mr Frost; sentences 143-162 to Sports Illustrated and/or Michael Williams; sentences 113-116 to Mr Flaskas; and sentences 78-81, 86, 90-92 and 170-172 to Mr Thorpe Snr, and possibly the whole of the passage comprising sentences 78-98. In any event, they do not appear to have been sourced to Mr Thorpe, on the face of the article.

19 All that was clearly attributed to Mr Thorpe himself in the material in sentences 31-34, 50-51, 64-70 and 74. A good deal of the rest of the article might, on its face, have come from a variety of sources. Sentence 27 does not suggest a particularly formal interview.

20 In my judgment, neither what Mr Thorpe said, as quoted, nor the article read as a whole conveys the impression that the respondent had a consultation of the type alleged, and the evidence of the respondent, accepted by his Honour, was to the effect that he had done a good deal of research into what others had earlier written concerning Mr Thorpe, tending to undermine the conclusion for which the appellant contends, that it is glaringly improbably that the respondent did not intend (by reference to the supposed first impression, mentioned at [13]) to convey a dishonest or false impression through his article.

21 Similarly, I do not accept that the article conveyed, and must have been intended by the respondent to convey the second and third “interlinked” impressions contended for, and that it was glaringly improbable that the respondent did not so intend.

22 Even if the article might be thought to convey the impressions for which the appellant contends, his Honour’s rejection of the case of the appellant that the respondent did intend to convey matters dishonestly, or so as to convey a false impression, would be very difficult to overturn on appeal. His Honour had the very considerable advantage in this context of observing the respondent during a lengthy cross-examination (the transcript of which occupies some eighty pages). His Honour’s finding was not limited to what was apparently conveyed by the written article: he expressed a view as to what was the respondent’s subjective state of mind.

23 One matter that the appellant relies upon now is the statement at sentence 64, that Mr Thorpe leant forwards and spoke conspiratorially. The appellant submits that, at this point in the article, the appellant must have been dishonest, because he blurred together two separate conversations: one at the poolside during a training session, and the other at the formal consultation a day or two later. It is established now that Mr Thorpe said words to the general effect of those quoted at sentences 64-70 on both occasions. If this matter stood alone, I would regard it as reasonably significant, but it does not.

24 Otherwise, the submissions tended to focus on the proposition that the respondent, by his article, was conveying a scoop, publishing something that had not been published earlier, and which had been disclosed, in a confidential or conspiratorial tone, to the respondent alone. The notion that the respondent thought that he had the suggested scoop, but that he nothing to publish it for about four months, and then disclosed only in sentences 64-70 of the 174 sentences that he wrote seems to me to be, if anything, somewhat far-fetched and fanciful, but in any event, his Honour’s findings as to what Mr Thorpe said makes this part of the appeal untenable.

25 I note that Levine J recorded that, when giving evidence, Mr Flaskas had appeared to be stressing that, when he used the words “misleading” and “inaccurate”, he was expressly denying having used the word “dishonest”.

26 There was a further difficulty confronting the appellant in relation to the imputation (d), and the defence of justification, arising from the allegation that the respondent had acted dishonestly, by conveying the impression that he had spoken to Mr Thorpe “recently”. Although some small parts of the article, including the table at the end of the article which I have not quoted, referred to events that were recent at the time of the publication of the article, the great bulk of it, on its face, might have been written at any time. The words “recent” and “recently” are not words of precision, and what the respondent undertook to prove was dishonesty in this connection. There is a great and obvious difficulty involved in this Court making the finding that the appellant seeks, that what the respondent wrote, to convey this impression, was deliberately false, and I do not consider that the Court would be justified in making this finding.

27 The appellant submitted that his Honour had failed to deal with the defence of truth, based upon s 15 of the Act, as distinct from the defence of contextual truth, based upon s 16. If one were to judge the matter by reference to the headings contained within the reasons for judgment, this might be correct, but reading the readings for judgment overall, I do not think it is correct. See e.g. [35] and [85], but in any event, what I have written above is intended to refer to each of these defences.

Comment

28 In respect of each of imputations (a) and (d) his Honour found that the imputation had been conveyed as a statement of fact, rather than as comment, but went on the make further findings, first, that the comment had not been based on proper material for comment and secondly, that if it was comment, and based on proper material for comment, the defence of comment by a stranger failed because of a lack of good faith in publishing the matter complained of.

29 Sections 33 and 34 of the Act, set out below, provide separate defences, depending upon whether the defence taken is that of the comment of a servant or agent of the defendant, or the comment of a stranger. The appellant submitted primarily that the case was one of comment by a stranger, namely Mr Flaskas, but in the alternative, submitted that the comment was that of its servant or agent, namely the author of the article published. In the particulars of the Further Amended Defence, this was said to be a Ms Meade.

30 Section 9(2) of the Act has the effect that a cause of action in defamation arises from the publication of a defamatory imputation: that is, it is the imputation, and not the published matter conveying the imputation that gives rise to the cause of action. Where therefore a defendant raises a defence of comment, that defence must go to the defamatory imputation found to have been conveyed, and not to the published matter conveying the imputation, since the defendant must meet the cause of action in question, and not just the background to the cause of action, or some cause of action not sued upon: Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728, 735-736 and New South Wales Aboriginal Land Council v Perkins (1988) 25 NSWLR 340, 349. As Lord Keith of Kinkel said in Lloyd (speaking before the enactment of s 7A of the Act):

“There is no such thing as a comment in the air. Comment must have a meaning, and ex hypothesi the jury are proceeding on the finding that its meaning is defamatory in the sense of the imputations which have been found to be established.”

31 One question to be considered is whether what was conveyed was conveyed as comment, or as a statement of fact, and at this point neither the intention of the publisher, nor the intention of the commentator is relevant. The question is whether the ordinary reader would understand that a statement of fact was being made, or that an opinion was being offered: Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 at 182.

32 Sometimes it is not possible to tell, merely from the imputation in question whether what was conveyed had been conveyed as a comment, or as a statement of fact, or as a mixture of the two. In those circumstances, where there has been a finding that the defendant published matter containing an imputation defamatory of the plaintiff, and where the defendant raises a defence of comment, the defendant bears the onus of persuading the court that the imputation was conveyed as a comment; and in order to discharge that onus the defendant is entitled to have the tribunal of fact consider the published matter, to see whether what was published was comment or a statement of fact: Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 at 468-469 and Perkins at 345.

Imputation (a): Conveyed as Comment or Statement of Fact?

33 Levine J found that imputation (a) had been conveyed as a statement of fact. The appellant accepts that before this Court can intervene, it must demonstrate that his Honour was in error: Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, and submits that his Honour erred at [14] where he said, citing Radio 2UE and Perkins:

“....I find that imputation (a) is an assertion of fact and not the expression of an opinion of the defendant or the defendant’s servant or agent. This finding is based upon the form of the imputation made by the matter complained of as found by the jury, and the matter, that is, the article sued upon, having been taken into account”.

34 The appellant submitted that the error can be seen from the fact that the judge had effectively given equal weight to the matter complained of, and to the form of the imputation. I do not consider that one can discern from what his Honour said that he did effectively give equal weight to the two topics, but even if this error had been demonstrated, I would come to the same conclusion.

35 As the appellant recognised, when seeking to draw comfort from parts of the published material, other than the tenth sentence, one must read the material published as a whole. Whilst the tenth sentence attributes to Mr Flaskas the statement that “the piece”, or the article written by the respondent, was dishonest, for the reasons there stated, the thrust of the whole of the matter complained of is, not that the comment or opinion of Mr Flaskas was that the respondent was a dishonest journalist, but rather the assertion of fact that what the respondent had written was wrong in the various ways mentioned, and dishonestly so. See the third sentence (goodwill to the media diminished after the respondent’s story), the fourth sentence (Mr Thorpe discovered his surprising plans), the fifth and sixth sentences (contrasting Mr Thorpe’s being contractually bound to write exclusively for The Australian newspaper – as if that was somehow relevantly important – and having been interviewed by a reporter for The Australian, with the assertion that Mr Thorpe had not agreed to be interviewed for the respondent’s article, had not posed for photographs published with that article, and was surprised to discover something he had allegedly said), the seventh sentence (Mr Thorpe was going to have a break, in contrast to the respondent having quoted Mr Thorpe as saying he might retire), the contrast between the commencement of the eighth sentence (“To be fair”) and the commencement of the tenth sentence (“But”), and the further contrast between the substance of the eighth, ninth and tenth sentences (“some access”, but only “way back in January”; the respondent “did” attend press conferences; the proposition that he “snatched” conversations, of which Mr Flaskas had been unaware; the assertion that what the respondent had written was dishonest), and the statement in the eleventh sentence that Mr Thorpe had felt exploited for the first time, and probably would feel exploited again later.

36 The tenth sentence must of course be given real and significant weight, but it ought not to be elevated beyond its proper weight; and the matter complained of, as a whole, goes far beyond purporting to record the comment of Mr Flaskas. The matter complained of displays the hallmarks of a carefully crafted piece of writing. The statements attributed to Mr Flaskas are incidents, and the statement attributed to him in the tenth sentence is an important incident in the development of the theme of the matter complained of, but the matter takes its real force from a series of propositions, advanced as statements of fact and not comment. The sting of the imputation had a number of barbs, and, overall, they were presented as statements of fact.

37 The use of the words “according to Flaskas” do not by themselves determine whether what was conveyed was conveyed as a comment or as a statement of fact: Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449, 474. That question must be determined having regard to how the ordinary reasonable reader would construe the matter: Grech v Odhams Press Ltd [1958] 1 QB 275, 313 and Petritsis at 182. I do not find persuasive the submission of the appellant that the allegation of dishonesty arose (only) from the tenth sentence. Whilst the word “dishonest” only appears there, that accusation is given force by the context, mentioned above: the idea is developed over a number of sentences, drawn so as to reinforce each other.

Imputation (d): Conveyed as Comment or Statement of Fact?

38 This imputation is narrower, and a consideration of the question whether what was conveyed was conveyed as comment or as a statement of fact is also narrower. The supposed comment of Mr Flaskas was that in writing his article, the respondent had deliberately given a false impression, that he had spoken to Mr Thorpe recently and at length.

39 Levine J concluded, doubtfully, that what had been conveyed had been conveyed as a statement of fact, and not as comment: he took the view that what had been conveyed had been a statement by Mr Flaskas, the person who knew the facts, and that what was reported was Mr Flaskas’ statement as to the facts, and not his opinion. His Honour considered that the form of the words used (“But, according to Flaskas ...”) conveyed no more than the fact that Mr Flaskas said the words quoted, on the basis that he, Mr Flaskas, knew the facts which demonstrated the falsity of what the respondent had written.

40 This question is more evenly balanced than the question concerning imputation (a) and, with respect, I consider that the ordinary reasonable reader would consider that this imputation had been conveyed as the comment of Mr Flaskas. Unlike imputation (a), it is focussed, and almost completely constituted by the tenth sentence.

Whose comment?

41 In respect of each of imputations (a) and (d), the appellant pleaded, first, that the comment was the comment of its servant or agent, or alternatively, the comment of a stranger (that is, Mr Flaskas). In submissions, the appellant relied primarily upon the latter assertion.

42 Part 3 of the Act deals with defences in civil proceedings for defamation. Section 11 provides:

“The provision of a defence by this Part does not of itself vitiate, diminish or abrogate any defence or exclusion of liability available apart from this Act.”

43 Division 7 of Part 3 contains these sections:

“29 General

(1) The defence or exclusion of liability in cases of fair comment on a matter of public interest:

(a) is modified as appears in this Division, and

(b) is not available except in accordance with this Division.

(2) This Division has effect notwithstanding section 11.

30 Proper material

(1) For the purposes of this section, but subject to subsection (2), proper material for comment means material which, if this Division had not been enacted, would, by reason that it consists of statements of fact, or by reason that it is a protected report within the meaning of section 24, or for some other reason, be material on which comment might be based for the purposes of the defence or exclusion of liability in cases of fair comment on a matter of public interest.

(2) A statement of fact which is a matter of substantial truth is proper material for comment for the purposes of this section, whether or not the statement relates to a matter of public interest.

(3) The defences under this Division are available as to any comment if, but only if:

(a) the comment is based on proper material for comment, or

(b) the material on which the comment is based is to some extent proper material for comment and the comment represents an opinion which might reasonably be based on that material to the extent to which it is proper material for comment.

(4) There is no special rule governing the nature of the material which may be the basis of comment imputing a dishonourable motive or governing the degree of foundation or justification which comment imputing a dishonourable motive must have in the material on which the comment is based.

31 Public interest

The defences under this Division are not available to any comment unless the comment relates to a matter of public interest.

32 Comment of defendant

(1) Subject to sections 30 and 31, it is a defence as to comment that the comment is the comment of the defendant.

(2) A defence under subsection (1) as to any comment is defeated if, but only if, it is shown that, at the time when the comment was made, the comment did not represent the opinion of the defendant.

33 Comment of servant or agent of defendant

(1) Subject to sections 30 and 31, it is a defence as to comment that the comment is the comment of a servant or agent of the defendant.

(2) A defence under subsection (1) as to any comment is defeated if, but only if, it is shown that, at the time when the comment was made, any person whose comment it is, being a servant or agent of the defendant, did not have the opinion represented by the comment.

34 Comment of stranger

(1) Subject to sections 30 and 31, it is a defence as to comment that the comment is not, and in its context and in the circumstances of the publication complained of did not purport to be, the comment of the defendant or of any servant or agent of the defendant.

(2) A defence under subsection (1) is defeated if, but only if, it is shown that the publication complained of was not in good faith for public information or the advancement of education.

35 Effect of defence

Where the matter complained of includes comment and includes material upon which the comment is based, a defence under this Division as to the comment is not a defence as to the material upon which the comment is based.”

44 It will be seen that sections 32-34 provide for separate defences: the comment of the defendant, the comment of the defendant’s servant or agent, and the comment of a stranger; and the three sections go on to provide separate grounds for the possible defeasance of the three defences. However, before one comes to consider the grounds for the defeasance of a defence, one must first find that the defence has otherwise been made good. Here, the respondent contends that it is not apparent from the material published that the imputations found had been conveyed as the comment of any one person: the matter complained of was, on its face, a series of statements of fact, and even if one accepts that the tenth sentence records a comment by Mr Flaskas, the balance of the matter consists of statements of fact.

45 As noted above, it is for a defendant to persuade the court that the imputations were conveyed as comment, and not as a statement of fact, and it follows that it is for the defendant to persuade the court, in a case of doubt, that any comment that was conveyed was the comment of one person, rather than of another person. If a defendant publishes material, found to contain an imputation defamatory of the plaintiff, and the defendant raises a defence of comment, but the defendant’s lawyers feel it appropriate to plead in the alternative that it was the comment of one person, or alternatively of another person, then the defendant might well fall between two stools, in that the court may not be satisfied that either proposition has been made good.

46 However, in the present case, it seems to me that the assertion that the two imputations under consideration were conveyed as the comment of the first defendant’s servant or agent, rather than of Mr Flaskas, is quite unlikely. The matter published does not speak anywhere of the opinion or comment of anyone, except perhaps in the tenth sentence, and it speaks there only of Mr Flaskas.

47 That is, any possible defence of comment must be the defence of comment by a stranger, Mr Flaskas, and not otherwise.

If not the stranger’s words, not the stranger’s comment.

48 Mr Flaskas was called as a witness for the appellant, and he said in chief (Black 232 N-V):

“BLACKBURN: Q. After you read the piece in the Good Weekend, was it your personal opinion that the piece was dishonest in some way?

A. Yes, I thought it was misleading and inaccurate.

Q. Why did you think that? What was it about the article that made you think that?

A. Well, I think firstly it gave the impression that the author had spent a significant amount of time with Ian which I couldn’t see was possible considering the timing, and there just seemed to be quite a few inaccuracies within the story which I believe with a lengthier interview wouldn’t have occurred.

Q. Did you say the things you said to The Australian not because you believed they were true but in order in some way to protect Mr Thorpe’s contract with The Australian?

A. We had no obligation to The Australian but we had a loyalty to The Australian.

Q. What I am asking you is did you believe the truth of what you said to The Australian?

A. Absolutely.”

48 The evidence does not establish what it was that he said to The Australian, referred to in the last two questions and answers just quoted. In cross-examination (Black 233–235), he spoke of being telephoned by a Ms Jeffery of The Australian newspaper, who said that “they” – evidently the appellant – did not believe that what the respondent had written was “a true article”, because “she” believed that the appellant had not spent a sufficient amount of time with Mr Thorpe, so as to enable him to write as much as he had written. He said that he told Ms Jeffery that Mr Thorpe’s father “was far from pleased with the article”, and also that Mr Thorpe senior “was somewhat disappointed with some of the reporting in that article”; and he gave this evidence:

“Q. You’re saying, are you, that Mr Sleeman’s piece was dishonest; is that right?

A. Well, I am not quoted there.

Q. Well, did you say that, that Mr Sleeman’s --

A. I wouldn’t have used the words dishonest. What my personal thoughts were and my personal thoughts of it, I am not quoted on that line.

Q. And you didn’t use the word dishonest?

A. Not there, no.

Q. To the reporter from The Australian?

A. No.

Q. And you wouldn’t have used that word?

A. No”.

49 Counsel for the appellant spoke of the position of a newspaper that prints a letter in its correspondence columns conveying a defamatory comment, or of a radio station that broadcasts the comment of a caller in a “talk back” session. He submitted that in those cases the publisher might well have available a defence of comment by a stranger; s 34(2) of the Act has the result that such a defence does not depend on the writer or caller having the relevant opinion; and the publisher need not necessarily call the writer or caller as a witness.

50 However, that is not this case. Here, the appellant called Mr Flaskas as a witness and his evidence showed not only (the presently immaterial fact) that he did not have the relevant opinion, but also (the presently material fact) that he did not say the words attributed to him.

51 In Pervan v North Queensland Newspaper Co Ltd [1993] HCA 64; (1993) 178 CLR 309, 329, Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ said of the common law, citing an earlier case:

“A plea of fair comment is not the newspaper’s plea: it is the adoption by the newspaper of the speaker’s protection of fair comment.”

52 At least according to the drafters of the Act, it was not intended to change the common law concerning the defence of comment, except in relation to particular and presently irrelevant points: see Report No 11 of the New South Wales Law Reform Commission, Defamation (1971), at paragraphs 32-36, and in Appendix D, at paragraphs 161-163 and 208-210.

53 In the present case, the appellant seeks to adopt what might be said to be the defence that Mr Flaskas would have had, had he said or written the words in question, been sued for defamation and taken a defence of comment. However, on the evidence, he would have had, not the difficult and potentially hazardous defence of comment, but the obvious and simple defence that he did not publish the material.

54 If one stands back from the facts of this case, and considers the purpose of this branch of the law – the encouragement and protection of freedom of expression and of discussion, in relation to matters of public interest – there is a clear and obvious reason why the publisher of a newspaper should be protected if it publishes a letter containing a defamatory comment on a matter of public interest, but no apparent reason why it should be protected if what it publishes is not something that the letter writer actually said; and that is in substance the position of the appellant here. What it published was not what Mr Flaskas said, but its own defamatory embellishment, changing the sense of what he said.

55 In short, the published material was not the comment of Mr Flaskas, within the meaning of s 34. If the words referred to in the published matter, or at least generally similar words, were not his words, it was not he who made the comment relied on.

56 In respect of imputation (a), the evidence shows that it was not Mr Flaskas who made the comment in question. On the contrary, the evidence is that he did not have the opinion now said to have been his opinion. He considered, not that the respondent was dishonest, but that what the respondent had written was misleading, and contained inaccuracies.

57 Similarly, the claim in respect of imputation (d) cannot be successfully defended on the basis that it was the comment of Mr Flaskas. In evidence, he spoke of inaccuracies, and he used the word “misleading”, and it might be, although it has not been proved, that he used these words, or something synonymous, when speaking to some representative of the appellant, but there is no evidence that he said anything constituting an opinion of his that what had written by the respondent was “deliberately” written to give a “false” impression; and what evidence there is points to the conclusion that he did not say words to the effect of the imputation.

58 In each case, it has not been proved what it was that Mr Flaskas said, that might properly have been restated by the appellant, so as to enable it to defend itself on the basis that what it published was the comment of Mr Flaskas. There is some evidence of what he thought, but this evidence is discordant with the imputations said to have been his comment.

59 In the light of these findings there is no need to consider questions about whether there was proper material for comment, or questions concerning the defeasance of the defences.

Damages

60 Levine J assessed damages at $250,000 in respect of the publication of imputation (a), and a further $150,000 in respect of the publication of imputation (d) (plus interest). The appellant submitted that the two awards, viewed together, were excessive, referring to the provisions of Pt 4 of the Act, and to Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44, 60-61. Practically speaking, the appellant acknowledged that the assessment in respect of imputation (a) was within a proper range, but submitted that, since imputation (d) fell within the scope of imputation (a), so that there was no additional relevant harm to the respondent, the awarding of additional damages for imputation (d) amounted to the awarding of damages twice.

61 This submission may perhaps overstate the matter a little, but it is substantially accurate, and the award of $400,000 overall does seem to me to be excessive.

62 It is likely that the overcompensation came about because the trial judge awarded damages in respect of each imputation. It was not an error as such for his Honour to have done so, because by virtue of the provisions of s.9(2) of the Act, each defamatory imputation constitutes a cause of action. However, the danger in awarding damages separately for each imputation that arises out of one publication is that the total award of damages may be excessive. This possibility is recognised in the provisions of s.9(5)(a), which provide that in the case where damages are determined by a jury, "the jury shall, unless the court otherwise directs give a single verdict in respect of all the causes of action on which the plaintiff relies". Subsection (5)(a) was, of course, in the Act prior to the enactment of the provisions of s.7A. The legislature either overlooked or considered it to be unnecessary to enact a complementary provision in circumstances where damages are assessed by the trial judge. Nonetheless, the same considerations apply in relation to the award of damages by a judge acting pursuant to the provisions of s.7A, so that, where the imputations that are found to be defamatory arise out of the same publication and are of a like effect, then it is preferable that the court assess the damages in a single amount so as to properly reflect the harm that has been suffered arising out of the imputations found to have been defamatory in the matter complained of.

63 This is also apparent from the provisions of s.46A(1), which specifies the factors relevant to determining the assessment of damages. That subsection provides:

(1) In determining the amount of damages to be awarded in any proceedings for defamation, the court is to ensure that there is an appropriate and rational relationship between the relevant harm and the amount of damages awarded.

64 Subsection (2) of s.46A is also relevant to the approach that must be taken by the court in the determination of damages. It provides:

(2) In determining the amount of damages for non-economic loss to be awarded in any proceedings for defamation, the court is to take into consideration the general range of damages for non-economic loss in personal injury awards in the State (including awards made under, or in accordance with, any statute regulating the award of any such damages).

65 In New South Wales, damages in for non-economic loss attained by persons injured in motor vehicle accidents are governed by the provisions of s.79 of the Motor Accidents Act 1988 (NSW). At the time that the defamatory material was published, the maximum that could be awarded under the Motor Accidents Act was $273,000: see Motor Accidents (Determination of Non-Economic Loss) Order Number 10. Presently, the maximum amount that may be awarded for non-economic loss is $341,000: see Motor Accidents (Determination of Non-Economic Loss) Order Number 15. In 2002, the Civil Liability Act 2002 (NSW) was introduced. Under that Act, the maximum amount that could be awarded by way of non-economic loss as and from 1 October 2002 was $365,000.

66 This was a serious defamation. However, having regard to the statutory requirement in s.46A, and the statutory limits that were applicable for non-economic loss for personal injury, I am of the opinion that his Honour's award of damages in a total amount of $400,000 is excessive, and appealably so. In effect, the trial judge has compensated the plaintiff for harm arising from imputation (d), when the harm arising from that imputation is the same harm as that arising from imputation (a).

67 I consider that, as a practical measure, the appeal should be allowed, to the extent of setting aside the award of the additional damages of $150,000 in respect of imputation (d). An award of $250,000 in respect of imputation (a) is, in all the circumstances, proper. If for any reason the award of damages in respect of imputation (a) was to be set aside, and damages were to be assessed in respect of imputation (d), then the sum of $150,000 would be a proper award.

68 The amended judgment along these lines should assess damages at $250,000, plus interest at 2 percent per annum for four and one third years, that is, to the date of the judgment appealed from, 15 October 2004.

69 The argument as to damages took only a brief time on appeal. The appellant has succeeded, but only to a limited extent. I consider that the proper order for costs of the appeal is that the appellant should pay 90 percent of the respondent’s costs.

Orders

70 I propose the following orders:

1. Appeal allowed, to the extent that the judgment for the respondent for $434,660.00 be set aside.

2. In lieu therefore, judgment for the plaintiff for $271,665.00 and costs, to take effect from 15 October 2004.

3. Appellant to pay 90 percent of the respondent’s costs of the appeal.

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LAST UPDATED: 14/10/2005