TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd [2008] NSWCA 9 (19 February 2008)

Last Updated: 21 February 2008

NEW SOUTH WALES COURT OF APPEAL

CITATION:
TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd [2008] NSWCA 9


FILE NUMBER(S):
40751 of 2006

HEARING DATE(S):
29 and 30 November 2007

JUDGMENT DATE:
19 February 2008

PARTIES:
TCN Channel Nine Pty Ltd (First Appellant)
Ben Fordham (Second Appellant)
Ilvariy Pty Ltd (First Respondent)
Frederick Robert Cox (Second Respondent)



JUDGMENT OF:
Spigelman CJ Beazley JA Hodgson JA

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
20085 of 2002

LOWER COURT JUDICIAL OFFICER:
Smart AJ

LOWER COURT DATE OF DECISION:
2 June 2006

LOWER COURT MEDIUM NEUTRAL CITATION:
[2006] NSWSC 519

COUNSEL:
R Macfarlan QC, M Richardson (Appellants)
S Bell, R Graycar (Respondents)


SOLICITORS:
Johnson Winter & Slattery (Appellants)
G J Donaghy & Co (Respondents)


CATCHWORDS:
DAMAGES – trespass to property – general and aggravated damages – principle of no double counting – whether manifestly excessive
DAMAGES – trespass to property – exemplary damages – proper approach for awarding – type of conduct attracting – whether manifestly excessive
TRADE PRACTICES – consumer protection – misleading and deceptive conduct – whether in trade or commerce – Trade Practices Act 1974 (Cth), s 52 – application to prescribed information providers - whether conduct protected by Trade Practices Act 1974 (Cth), s 65A
TRADE PRACTICES – consumer protection – interpretation of Trade Practices Act 1974 (Cth), s 52 and s 82 – whether the provisions should be read down so as not to extend to publications that engage defamation law – whether the provisions should be read down so as not to extend to publications defensible under defamation law
WORDS AND PHRASES – “in trade or commerce”

LEGISLATION CITED:
Civil Liability Act 2002
Suitors’ Fund Act 1951
Trade Practices Act 1974 (Cth)


CASES CITED:
Advanced Hair Studio Pty Ltd v TVW Enterprises Ltd (1987) 18 FCR 1
ASIC v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485
Australian Ocean Line Pty Ltd v West Australian Newspapers Ltd [1983] FCA 66; (1983) 47 ALR 497
Australian Ocean Line Pty Ltd v West Australian Newspapers Ltd [1985] FCA 37; (1985) 58 ALR 549
Avram v Inches [1999] TASSC 10
Bond v Barry [2007] FCA 1484
Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512
Cassell & Co Ltd v Broome [1972] UKHL 3; [1972] AC 1027
Chulcough v Holley (1968) 41 ALJR 336
Collaroy Services Beach Club Ltd v Haywood [2007] NSWCA 21
Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594
Cornwall v Rowan [2004] SASC 384; (2004) 90 SASR 269
Edwards v Attorney General (NSW) [2004] NSWCA 272; (2004) 60 NSWLR 667
Global Sportsman Pty Ltd v Mirror Newspapers Ltd [1984] FCA 180; (1984) 2 FCR 82
Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1
Harris v Digital Pulse Pty Ltd [2003] NSWCA 10; (2003) 56 NSWLR 298
Hearn v O’Rourke [2002] FCA 1179; (2002) 193 ALR 264
Hearn v O’Rourke [2003] FCAFC 78; (2003) 129 FCR 64
Henry v TVW Enterprises Ltd (1990) 3 WAR 474
Hill v Van Erp (1997) 188 CLR 159
Houghton v Arms [2006] HCA 59; (2006) 225 CLR 553
Hunter Area Health Service v Marchlewski [2000] NSWCA 294; (2000) 51 NSWLR 268
Moran v McMahon (1985) 3 NSWLR 700
New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638
New South Wales v Ibbett [2005] NSWCA 445
New South Wales v Paige [2002] NSWCA 235; (2002) 60 NSWLR 371
New South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496
Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118
Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327
Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32
Steiner Wilson & Webster Pty Ltd v Amalgamated Television Services Pty Ltd [1999] ACTSC 123; (2000) Aust Torts Reps 81–537
Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562
Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317
TCN Channel Nine Pty Ltd v Anning [2002] NSWCA 82; (2002) 54 NSWLR 333
Versace v Monte [2002] FCA 190; (2002) 119 FCR 349
Village Building Co Ltd v Canberra International Airport Pty Ltd [2004] FCAFC 240; (2004) 139 FCR 330
Wide Bay-Burnett Television Ltd v Bradford [1998] QCA 443

TEXTS CITED:


DECISION:
1 In par [1075] of the judgment of Smart AJ vary par [2] by substituting $170,000 for $230,000, and vary par [5] by substituting $20,000 for $50,000
2 The respondents pay half of the appellants’ costs of the appeal
3 The respondents to have a certificate under the Suitors Fund Act if otherwise entitled.



JUDGMENT:

- 7 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40751/06

SPIGELMAN CJ

BEAZLEY JA

HODGSON JA

Tuesday 19 February 2008

TCN CHANNEL NINE PTY LIMITED & Ben FORDHAM v ILVARIY PTY LIMITED & Frederick Robert COX

FACTS

The first appellant broadcast a segment on its television programme, “A Current Affair”, concerned to expose the allegedly incompetent building practices of a company operating under the trade name of Craftsman Homes. The first respondent was a franchisee of the company and the second respondent was the managing director of both entities and lessee of the premises in issue in the proceedings.

The programme was the end result of a process of investigation, which involved employees of the programme purporting to be interested in building a home in order to gain access to the premises with cameras and to confront the second respondent. Elements of this investigation were broadcast together with the testimony of dissatisfied customers.

The appellants appealed from the awarded damages in these two respects: trespass to land ($60,000 in general damages, $50,000 in aggravated damages and $120,000 in exemplary damages to the managing director), and false and misleading conduct ($50,000 to the managing director and $30,000 to the franchisee) contrary to s52 of the Trade Practices Act 1974 (Cth) (“the Act”). The proceedings in the court below involved unsuccessful claims for defamation which did not arise on the appeal.

HELD

Appeal as to trespass damages

a) General and aggravated damages

Per Spigelman CJ, Beazley JA and Hodgson JA agreeing

1 His Honour’s judgment did not infringe the principle that there should be no double counting. General damages were awarded for vindication of occupier rights. Aggravated damages were granted to compensate for hurt feelings, humiliation and affront. [17] – [20] [97] [98]

New South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496 referred to.

Per Spigelman CJ, Beazley JA agreeing

2 The damages awarded under the two heads of damage are not excessive. Considering the comparable cases and the factual findings of his Honour, the awards are justified as they are within the range open to be awarded, even if high in the range. The amounts are not manifestly excessive and do not bespeak error in the exercise of a discretion or the formulation of a judgment. [23] – [24] [97]

Chulcough v Holley (1968) 41 ALJR 336; Collaroy Services Beach Club Ltd v Haywood [2007] NSWCA 21; Hunter Area Health Service v Marchlewski [2001] NSWCA 294; (2001) 51 NSWLR 268; Moran v McMahon (1985) 3 NSWLR 700; Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118; Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327 applied.

Hodgson JA dissenting

3 The damages awarded under the two heads of damage are manifestly excessive. General damages should be reduced to $20,000 and aggravated damages should be reduced to $30,000. [99] – [101]

TCN Channel Nine Pty Ltd v Anning [2002] NSWCA 82; (2002) 54 NSWLR 333 considered.

b) Exemplary damages

Per Spigelman CJ, Beazley JA and Hodgson JA agreeing

4 This was an appropriate case for the award of exemplary damages as the appellants engaged in conscious wrongdoing in disregard of the respondents’ legal rights for the pursuit of commercial gain. His Honour came to the clear view that the amount of general and aggravated damages did not adequately serve the purposes of punishment and deterrence. [28] [30] [31] [97] [98] [102]

Cassell & Co v Broome [1972] UKHL 3; [1972] AC 1027; Channel Nine Pty Ltd v Anning [2002] NSWCA 82; (2002) 54 NSWLR 333; Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1; Harris v Digital Pulse Pty Ltd [2003] NSWCA 10; (2003) 56 NSWLR 298; New South Wales v Ibbett [2005] NSWCA 445 referred to.

5 It cannot be said that his Honour erroneously granted exemplary damages by failing to take into account the fact that the appellants succeeded in the defamation cause of action. In any case, while the trespass enhanced the entertainment value of the publications, the truth of the imputations and the public interest in revealing the truth in no way justified the trespass. [33] [97] [98] [103]

Per Spigelman CJ, Beazley JA and Hodgson JA agreeing

6 Cases over a decade old in the context of defamation are not helpful to assess whether the present award of exemplary damages in trespass was appropriate. [35] [36] [97] [98]

Avram v Inches [1999] TASSC 10; Henry v TVW Enterprises Ltd (1990) 3 WAR 474; Steiner Wilson & Webster Pty Ltd v Amalgamated Television Services Pty Ltd [1999] ACTSC 123; (2000) Aust Torts Reps 81-537; Wide Bay-Burnett Television Ltd v Bradford [1998] QCA 443 distinguished.

7 A substantial award of exemplary damages is justified by reason of the intrusion on an individual’s private property by a media organisation which has commercial reasons to do so again. [28] [37] – [38] [97] [98]

TCN Channel Nine Pty Ltd v Anning [2002] NSWCA 82; (2002) 54 NSWLR 333 applied.

Per Spigelman CJ, Beazley JA agreeing

8 His Honour failed to give adequate weight to the general and aggravated damages awards for trespass, and the awards for false and misleading conduct, which themselves have some punishment and deterrent effect. The award for exemplary damages should be reduced to $60,000. [39] – [40] [97]

Hodgson JA dissenting

9 In the context of compensatory damages awards totalling $50,000, (see 3 above) exemplary damages of $120,000 are not excessive. [102]

Appeal as to false and misleading conduct

a) Conduct in trade and commerce

Per Spigelman CJ, Beazley JA and Hodgson JA agreeing

10 To constitute conduct in trade or commerce, the conduct must be an aspect of the activities of the company which, of their nature, bear a trading or commercial character. [43] [46] [97] [98]

Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594; ASIC v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485 applied.

Hearn v O’Rourke [2003] FCAFC 78; (2003) 129 FCR 64; Hearn v O’Rourke [2002] FCA 1179; (2002) 193 ALR 264 distinguished.

11 The false and misleading representations in the present case were in trade and commerce as they were in the trade of the respondents to whom the representations were made. [48] – [49] [97] [98]

Houghton v Arms [2006] HCA 59; ([2006] HCA 59; 2006) 225 CLR 553 applied.

Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 494; Village Building Co Ltd v Canberra International Airport Pty Ltd [2004] FCAFC 240; (2004) 139 FCR 330; Hearn v O’Rourke [2003] FCAFC 78; (2003) 129 FCR 64 referred to.

b) Exemption under s65A of the Act

Per Spigelman CJ, Beazley JA and Hodgson JA agreeing

12 The appellants are not entitled to the protection of s65A. A false and misleading statement made for the ultimate purpose of publishing information obtained by that conduct is not a “prescribed publication” within the meaning of s65A. For purposes of s65A there should be a close correspondence, perhaps even identity, between the matter published and the information provided by the business. [54] – [57] [97] [98]

Bond v Barry [2007] FCA 2034 distinguished.

c) Double counting with damages in trespass

Per Spigelman CJ, Beazley JA and Hodgson JA agreeing

13 There was significant overlap between the elements that led to the award of trespass damages on the one hand and the award of false and misleading conduct damages. Despite his Honour’s express intention to avoid this overlap, the substantial overlap warrants Mr Cox’s award being reduced to $20,000. [58] [67] - [70] [97] [98]

d) Coherence between competition law and defamation law

Per Spigelman CJ, Beazley JA and Hodgson JA agreeing

14 The proposition that s52 and s82 of the Act should be read down so as not to extend to injury to reputation by publications giving rise to claims covered by the law of defamation should be rejected as inconsistent with established authority. [73] [77] [91] [97] [98]

Advanced Hair Studio Pty Ltd v TVW Enterprises Ltd (1987) 18 FCR 1; Global Sportsman Pty Ltd v Mirror Newspapers Ltd [1984] FCA 180; (1984) 2 FCR 82 considered.

Australian Oceanline Pty Ltd v West Australian Newspapers Ltd [1983] FCA 66; (1983) 47 ALR 497; Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512; Edwards v Attorney-General (NSW) [2004] NSWCA 272; (2004) 60 NSWLR 667; Hill v Van Erp (1997) 188 CLR 159; New South Wales v Paige [2002] NSWCA 235; (2002) 60 NSWLR 371; Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562; Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 referred to.

Cornwall v Rowan [2004] SASC 384; (2004) 90 SASR 269; Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32 distinguished.

15 His Honour did award damages for injury to reputation in the ultimate publication. However, the appellants’ alternative submission that s52 and s82 should be read down so as not to extend to injury for reputation arising out of publications defensible under the law of defamation should also be rejected. [79] [80] [83] [85] – [88] [90] – [91] [97] [98]

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40751/06

SPIGELMAN CJ

BEAZLEY JA

HODGSON JA

Tuesday 19 February 2008

TCN CHANNEL NINE PTY LIMITED & Ben FORDHAM v ILVARIY PTY LIMITED & Frederick Robert COX

Judgment

1 SPIGELMAN CJ: The second appellant was a journalist on a television programme entitled “A Current Affair”, which was broadcast by the first appellant on each weeknight. On 26 February 2002, the first appellant broadcast a promo and on 27 February 2002 broadcast a segment on that programme. These two publications were the end result of a process of investigation with which these proceedings is concerned.

2 The programme was concerned to expose the defective building of homes carried out under the trade name of Craftsman Homes, being the business name of Craftsman Homes Australia Pty Limited which operated a franchise system. That company was a plaintiff below but is not involved in this appeal. The first respondent (“Ilvariy”) was a franchisee conducting a building business. The second respondent (“Mr Cox”) was the Managing Director of both Craftsman Homes Australia and Ilvariy. The proceedings below included other parties not involved in the appeal. The proceedings also involved unsuccessful claims for defamation, which also do not arise on the appeal.

3 This appeal is concerned with the two bases upon which the respondents were successful in obtaining damages: trespass to land and false and misleading conduct, contrary to s 52 of the Trade Practices Act 1974 (Cth) (“the Act”). Each of these causes of action was based on the same interrelated course of conduct in which employees of the first appellant, led by the second appellant, gained entry to the premises by means of a deception, thus enabling the reporters to confront Mr Cox and to obtain footage which was used in both the promo and the programme.

The Relevant Facts

4 The nature of the deception is a matter of significance for the issues that arise. That consisted, the trial judge, Smart AJ, found, of five discrete steps:

(i) An employee of TCN Nine telephoned Mr Cox to make an appointment for what she asserted was the purpose of her and her husband discussing the construction of a home.

(ii) On the appointed day that employee arrived at premises occupied by Mr Cox accompanied by the second appellant (“Mr Fordham”). She was carrying a bag in which there was a camera and recorder, the presence of which was not revealed to Mr Cox. Nor was there any mention at this stage that they were from TCN Nine.

(iii) Both of the TCN Nine employees indicated that they were interested in building a home and made a number of statements to that effect.

(iv) By pre-arrangement, as his Honour found, Mr Fordham’s mobile phone rang, he answered it and walked to the front door of the house and admitted a TCN crew with cameras and a microphone.

(v) At this point, with the camera running, Mr Fordham walked across from the front door, stood in front of Mr Cox’s desk and said “Fred, I just want to ask you a couple of quick questions. We’re from A Current Affair”.

5 It was of some significance that the staff of “A Current Affair” had made contact with the respondents prior to the incident on 21 February 2002. His Honour found that representatives of TCN Nine tried to arrange an interview with a senior officer of Ilvariy and that there was correspondence about the subject. However, his Honour found:

“[5] ... The officers ... wanted to know the questions to be raised so that they could refresh their memories from the files and reacquaint themselves with all the details. This did not appeal to the ACA staff ...

[6] The ACA staff decided that they wanted to speak to Mr F R Cox, the principal behind the first and second plaintiffs and confront him with a number allegations which reflected adversely upon him and [Ilvariy]. Mr F R Cox was thought to be unlikely to agree to such an interview. Perhaps TCN Nine primarily wanted to show viewers the chief executive of the offending company.”

6 The promo and programme sued upon consisted in large part of complaints by a number of homeowners who had directly or indirectly, used the building services of Craftsman Homes. It also included footage of the confrontation with Mr Cox as follows.

7 In the promo:

“11 Fred Cox: I’m sorry.

12 Ben Fordham: Can we just ask you a couple more quick question[s]?

13 Fred Cox: No.

14 Ben Fordham: You don’t want to answer the questions, you want us to go?

15 Fred Cox: Get out or I’ll call the police.

16 Mike Munro: Ben Fordham with that investigation tomorrow.”

8 In the programme:

“2 Ben Fordham: Are you signing up a new business in Sydney?

3 Fred Cox: Am I?

4 Ben Fordham: Mmmmm

5 Fred Cox: Why?

6 Ben Fordham: Well you’ve left a trail of devastation on the North Coast of New South Wales.

7 Fred Cox: I don’t think I have, I’ve got nothing to say to you.

8 Ben Fordham: Are you proud of the houses you build?

9 Fred Cox: Yep.

10 Ben Fordham: All of them?

11 Fred Cox: Yep[.]

12 Ben Fordham: Fred Cox may be proud of his handiwork but some of his customers are far from satisfied.”

And:

“25 Fred Cox: The Moss’s is not up for comment I’m sorry.

26 Ben Fordham: They’ve been waiting two years to get into their place.

27 Fred Cox: Well.

28 Ben Fordham: I’ve had a look at it and it’s a disgrace.

29 Fred Cox: I’m sorry.

30 Ben Fordham: Can we just ask you a couple more quick questions?

31 Fred Cox: No, and if you don’t leave I will call the Police.

32 Ben Fordham: You want us to go?”

9 Both the cause of action in trespass and the cause of action in false and misleading conduct turned on the deception involved in gaining access to the premises. In each respect there was the identical deception involved in the conduct by which TCN employees purported to be interested in building a home. The entry of the camera crew admitted to the premises by Mr Fordham was a trespass not directly involving any misrepresentation.

10 The appellant successfully defended the cause of action in defamation on the basis that the imputations that were found to have been conveyed were substantially true and, in one case, that the imputation was defensible as comment. It is unnecessary to set out the imputations but they included imputations of “shoddy building practices” and “incompetence” as a building contractor. The appellants rely on the success in these respects for purposes of the other counts, in certain ways to which I will refer below.

The Appeal

11 The appeal with respect to the claim in trespass is concerned only with the damages awarded. Smart AJ awarded $60,000 in general damages, $50,000 in aggravated damages and $120,000 in exemplary damages to Mr Cox, who was the lessee of the premises. The appellant submits that each such amount is excessive and that this was not an appropriate occasion for the award of exemplary damages at all.

12 With respect to the cause of action for false and misleading conduct, the appellants contend that the conduct was not in trade and commerce and alternatively that they were entitled to rely on the provisions of s 65A of the Act.

13 The appellants also challenge the award of damages of $50,000 to Mr Cox and $30,000 to Ilvariy for the misleading and deceptive conduct cause of action, particularly on the basis that there was double counting with respect to the award of damages for trespass and on the basis that the amount impermissibly awarded damage for injured feelings and damage to reputation. In this regard the appellant relied on the fact that it successfully defended the defamation cause of action.

Damages for Trespass

14 As I have indicated above, the appellants challenge as excessive each head of damage awarded for trespass: general, aggravated and exemplary damages. They also submit that no award of exemplary damages should have been made.

15 With respect to general damages the critical paragraph in the judgment of Smart AJ is [940]:

“[940] The right of exclusive occupation was important in the present case. The first and third defendants intruded into the home occupied by Mr Cox and his daughter and in which they were working and carrying on business on behalf of Craftsman Homes Australia Pty Ltd and, mainly, [Ilvariy]. The first and third defendants were aware that no such intrusion would have been permitted if the significance of the identities of Ms Stinson and Mr Fordham, their employment by the first defendant and their purpose had been known. Further once inside the premises Mr Fordham facilitated a further violation of Mr Cox’s rights by admitting the camera crew. This was close to a virtual ‘take-over’. The first and third defendants knew that Mr Cox would never have sanctioned this. The first and third defendants were slow to withdraw after being asked to leave and continued the intrusion from the doorway. A substantial award is required. I assess the general damages at $60,000 in the present case.”

16 With respect to aggravated damages for trespass the critical paragraph is [942]:

“[942] The present case is also an appropriate one for aggravated damages. The hurt to feelings, humiliation and affront to dignity experienced by Mr Cox was aggravated by the way in which the first and third defendants acted in the course of their trespass. That included Mr Fordham letting the camera crew into the home at Edmondson Park, then, with cameras rolling, confronting Mr Cox with broad general allegations of poor work and an accusation of having left a trail of devastation and filming him. No prior notification was given. The statement that Mr Cox should answer questions rather than “running away” aggravated the hurt, especially when it was shouted out from the front door while Mr Fordham and the camera crew were hovering around. Mr Cox must have been aware that his reputation and the business in which he was deeply involved were being attacked and damaged.”

17 The appellants submitted that his Honour has infringed the principle that there should be no double counting with respect to the awards, referring to New South Wales v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496 at [125]- [133].

18 A comparison between [940] and [942] of his Honour’s judgment indicates, in my opinion, that general damages were awarded for vindication of the respondents’ right to exclusive occupation of the land. Indeed [940] begins with the words “[t]he right of exclusive occupation” and comes immediately after his Honour had quoted from my judgment in TCN Channel Nine Pty Ltd v Anning [2002] NSWCA 82; (2002) 54 NSWLR 333 at [178] where I said: “General damages should reflect the significant purpose of vindicating the ... right to exclusive occupation”.

19 A comparison of [940] and [942] indicates that compensation for hurt to feelings, humiliation and affront was granted by his Honour only under aggravated damages. These matters are treated quite distinctly and the references to the entry into the premises in both paragraphs do not suggest otherwise.

20 The appellants’ submission that an inference was available from [940] that the award of general damages contained a component of hurt to feelings etc has no basis and should be rejected. In my opinion, there was no double counting.

21 The appellants’ principal submission in this respect was that the damages awarded under the two heads of damage was excessive. Reliance was placed on the amounts awarded in Anning and New South Wales v Ibbett [2006] HCA 57; (2006) 229 CLR 638.

22 With respect to the use of other awards, the Civil Liability Act 2002 does not apply and this Court remains bound by Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118 at 124-125. (See Moran v McMahon (1985) 3 NSWLR 700 at 726; Collaroy Services Beach Club Ltd v Haywood [2007] NSWCA 21 at [86].) Although there is no tariff or standard, some understanding of the general scale of awards is appropriate. (See eg Chulcough v Holley (1968) 41 ALJR 336 at 338; Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327 esp at [35], [66], [69]-[70], [140], [192]; Hunter Area Health Service v Marchlewski [2000] NSWCA 294; (2000) 51 NSWLR 268 at [73]- [76].)

23 In any event, although the facts of Anning are comparable in some respects, I do not find that or any other case of any particular assistance for present purposes. His Honour’s factual findings justify each award.

24 Smart AJ had to exercise a broad judgment in each respect. His Honour’s conclusion was within the range open to be awarded, even if each award is high in the range. The amounts are not, in my opinion, manifestly excessive. It cannot be said that either amount bespeaks error in the exercise of a discretion or the formulation of a judgment. (See Rogers at [35], [62]-[66].) The appellants’ submissions should be rejected.

25 With respect to the award of exemplary damages, the appellants contended that the circumstances were not such that an award should have been made. They further submitted that his Honour failed to apply the law correctly in the process of making the determination. Alternatively, the appellants submitted that the award of $120,000 was excessive.

26 His Honour’s consideration of the issue of exemplary damages commences with extensive quotations from the judgments of this Court in Anning at [180]-[188] and the joint judgment of the High Court in Gray v Motor Accident Commission [1998] HCA 70; 196 CLR 1 at [15]. His Honour also referred to the identification by Heydon JA of the applicable principles in Harris v Digital Pulse Pty Ltd [2003] NSWCA 10; (2003) 56 NSWLR 298 at [241]- [246]. In his judgment at [946], after the extensive quotations from Anning and Gray and reference to Digital Pulse, Smart AJ states “I have applied those principles”.

27 His Honour concludes:

“[947] In my opinion the present case is one of those rare cases where exemplary damages should be awarded. I rely on this combination of factors:

(a) the calculated deception practised to gain entry to the premises occupied by Mr Cox both as a residence and office;

(b) the calculated deception and manoeuvre adopted to admit the camera crew.

(c) the delay in leaving when asked including Mr Fordham and the camera crew hovering around the front door with Mr Fordham telling Mr Cox it would be better to answer questions rather than running away;

(d) the making of the general allegations of poor work and leaving a trail of devastation when no prior notice had been given and there had been negotiations with Mr Chaseling for an interview;

(e) the knowledge that Mr Cox and his companies had received excellence in building awards;

(f) and the confrontation of Mr Cox in unfair circumstances where he could not effectively answer his critics, the sustained attack being made on Mr Cox’s reputation and businesses without regard to the damage being done and the hurt being done to Mr Cox’s feelings[;]

(g) the public appeal of ACA in the success of which the first and third defendants had a clear financial interest is significantly enhanced by actual footage of poor work and “guilty men”[;] and

(h) the first and third defendants engaged in high handed conduct of a grave kind. The first defendant is a substantial well sourced company with ready access to legal advice with its own in house legal advisors. Its television station has a large viewing audience.

[948] I would respectfully follow the observation of Spigelman CJ in Anning at 183 that the power of the mass media is a material consideration when determining whether conduct should be punished or deterred.

[949] The circumstances of this trespass were so bad that they should be punished and future like trespasses firmly discouraged.”

28 In my opinion, these findings support a conclusion that the appellants have engaged in conscious wrong doing in contumelious disregard of the rights of the second respondent. (See Gray at [14].) These findings constitute a proper basis for the award of exemplary damages in a case, such as the present, where a tortfeasor has manifested a preparedness to infringe the legal rights of others, and has commercial reasons to continue to do so.

29 The appellants submit that an award of exemplary damages should not be made unless the compensatory damages otherwise awarded are insufficient to adequately punish the tort feasor. (Referring to Cassell & Co Ltd v Broome [1972] UKHL 3; [1972] AC 1027 at 1121-1122 and New South Wales v Ibbett [2005] NSWCA 445 at [79], a passage not included in the report of the case in [2005] NSWCA 445; (2005) 65 NSWLR 168.) The appellants rely on the absence of any express statement in his Honour’s reasons that his award of exemplary damages was intended to effect punishment or deterrence further to the sums awarded by way of compensation.

30 His Honour was clearly aware of the damages he awarded. His Honour outlined the relevant law in a manner which was not subject to any criticism as to the purpose of an award of exemplary damages. These were principles that his Honour expressly said he had applied. His Honour concluded that the present case was “one of those rare cases where exemplary damages should be awarded”. It appears to me that his Honour came to the clear view that the amount of damages he awarded by way of compensation did not adequately serve the purposes of punishment and deterrence. This conclusion was open to his Honour.

31 The appellants’ submissions in this regard should be rejected.

32 The appellants also submitted that his Honour failed to consider the success of the appellants on the defamation cause of action. They relied on the circumstance that the trespass was one part of a process which resulted in the broadcast of a programme found to be in the public interest and which contained imputations defensible as substantially true under defamation law. The appellants drew attention to the references in his Honour’s findings on exemplary damages to aspects of the publication eg in par (g) in his Honour’s par [947] set out above.

33 In my opinion, assuming his Honour failed to take into account his own findings with respect to the defamation cause of action, which I do not accept, the proposition for which the appellants contend should be rejected. Neither the element of the public interest nor the substantial truth of the imputations made in the programme was in any manner related to the conduct constituting the trespass. The persons compiling the programme had access to information, particularly interviews with persons who complained about building work performed by the respondents. The ability to broadcast footage of a direct confrontation with the alleged guilty party enhanced the entertainment value of the programme. It did nothing, however, to enhance the aspects of the public interest or the truth of the imputations protected by the law of defamation.

34 The appellants’ written submissions suggested that there was some issue of coherence between the balancing of interests by the law of defamation and recovery for trespass to land in circumstances leading to a publication which is defensible in defamation law. I can see no issue of coherence. The considerations which ensure that proper weight is given to the public interest in freedom of speech do not arise. The conduct leading to and constituting the trespass had nothing to do with freedom of speech.

35 The appellants also challenge the award of exemplary damages as excessive. In this respect they rely on his Honour’s failure to expressly consider a number of comparable exemplary damages awards to which his attention was drawn:

· an award of $50,000 for trespass in circumstances leading to a comparable broadcast, where the conduct of the journalist was of a higher order of contumely: (Steiner Wilson & Webster Pty Ltd v Amalgamated Television Services Pty Ltd [1999] ACTSC 123; (2000) Aust Torts Reps 81-537);

· an award of $40,000 in Henry v TVW Enterprises Ltd (1990) 3 WAR 474;

· an award of $25,000, quashed on appeal, in Avram v Inches [1999] TASSC 10;

· an award of $75,000 for exemplary damages in Wide Bay-Burnett Television Ltd v Bradford [1998] QCA 443, set aside as manifestly excessive by the Queensland Court of Appeal.

36 I do not find these awards helpful. To begin with they are all about a decade or more old. Further, cases awarding exemplary damages in defamation, such as Wide Bay-Burnett Television, are of little assistance in the distinct context of trespass. The fact that each involve a media defendant is not significant. The two areas of the law protect different social interests.

37 Smart AJ expressly referred to and applied relevant parts of my judgment in Anning supra and specifically quoted the following at par [944]:

“The public appeal of a program like ‘A Current Affair’, in the success of which the appellant has a clear financial interest, is significantly enhanced by actual footage of ‘dastardly deeds’ and ‘guilty men’ or ‘guilty women’. Intrusion onto the respondent’s land was an important part of the value to the appellant of its investment in the story, of a character that it could not obtain without committing a trespass.

Furthermore, the power of the mass media in comparison with an individual like the defendant is, in my opinion, a material consideration when determining whether conduct should be punished or should be deterred. In a democratic society power is not wielded only by instrumentalities of government. ... High-handed conduct approaching arrogance may well be manifest by private corporations.”

38 I reiterate these observations and agree that they are applicable to the present case. These considerations, together with the matters expressly listed by his Honour in par [947], as quoted above, justify a substantial award of exemplary damages. The issue, however, is whether, in all of the circumstances, the amount of $120,000 is manifestly excessive.

39 It is difficult to articulate why it is that an award which is excessive becomes ‘manifestly’ so. However, I have concluded that that is the case here. Although I have rejected the submission that his Honour failed to have regard to the damages that he awarded by way of compensation, it appears to be likely, by reason of the size of the award of exemplary damages, that his Honour failed to give adequate weight to that consideration.

40 I give particular weight, more so than his Honour did, to the fact that the award of $110,000 by means of general and aggravated damages, although expressed as compensatory, also has an effect by way of punishment and deterrence. So does the award of compensation for false and misleading conduct as modified below. Nevertheless, for the above reasons an additional award for these purposes should be made. The function of such an award would, in my opinion, in all the circumstances, be served by an award of half the amount awarded by his Honour. I would reduce the award for exemplary damages to $60,000.

Trade and Commerce

41 I turn to the appeal with respect to the false and misleading conduct case. The appellants submit that the conduct which occurred was not relevantly in trade and commerce. The authority which was closest to the present case is the judgment of the Full Court in Hearn v O’Rourke [2003] FCAFC 78; (2003) 129 FCR 64, on appeal from the decision of Kiefel J in Hearn v O’Rourke [2002] FCA 1179; (2002) 193 ALR 264.

42 That case, on its face, bore considerable resemblance to the present situation. Both cases involved an attempt at an interview with a person for purposes of broadcast in a television programme.

43 The relevant principles to be applied are those set out in the High Court judgment in Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594 and in particular the test promulgated in that judgment that to constitute conduct “in trade or commerce” for purposes of s 52 there had to be “conduct which is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character” (at 603, repeated at 604). This test was contrasted with an approach to what is conduct “in trade or commerce” as encompassing “activities which are not, of their nature, of a trading or commercial character but which are undertaken in the course of, or as incidental to, the carrying on of an overall trading or commercial business” (602-603).

44 What was under consideration in Hearn v O’Rourke was a strike out application. The majority judgment in the Full Court was given by Finn and Jacobson JJ. Their Honours concluded:

“[10] ... There could be no documentary unless appropriate interviews were secured. Securing such interviews, in our view, could properly be said to be central to the trading or commercial activity in which the second respondent was engaged in producing a film for profit.”

45 Their Honours went on to say:

“[11] ... Nonetheless we are satisfied that the conduct impugned could possibly be found to have occurred in a dealing with the applicants which was integral to an activity of the second respondent which was itself of a commercial character.”

Finally their Honours said:

“[12] ... Nonetheless, we consider it to be reasonably arguable that they were being asked to enter into a relationship which, for the respondents, actually effectuated part of their commercial purpose.”

46 Kiefel J at first instance and Dowsett J on appeal gave convincing reasons, in my opinion, to the contrary. Of significance for present purposes is the fact that the majority did no more than to find that it was reasonably arguable that an interview as a preliminary matter to production of a film was “in trade or commerce”. That does not determine the question as to whether or not it is such. The powerful reasoning of Kiefel J at first instance and Dowsett J in dissent on the appeal is of greater significance for present purposes because their Honours found that the relevant proposition was not even arguable. However, because the issue before the Court in Hearn v O’Rourke differed fundamentally from the issue in this Court, this Court is not constrained to follow the majority decision in the Full Court. (See ASIC v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485.)

47 The present matter is, in any event, determined by the fact that, even if the steps taken to procure the involuntary interview with Mr Cox were not “in trade or commerce” of TCN Nine, the very misrepresentation meant that the conduct did occur “in trade or commerce” of the respondents. I refer to the misrepresentation that the TCN Nine employees were there in order to inquire about procuring services from the respondents for the building of a house.

48 The High Court has determined that a representation can be made in trade or commerce even though it is not in the trade of the person making the representation, so long as it is in the trade of the person to whom the representation is made. (See Houghton v Arms [2006] HCA 59; (2006) 225 CLR 553 at [34]- [35].) That is the case here.

49 The communications, directed as they purported to be for the sole purpose of acquiring the services of the respondents as builders, bore the requisite trading or commercial character. (See Concrete Constructions and Village Building Co Ltd v Canberra International Airport Pty Ltd [2004] FCAFC 240; (2004) 139 FCR 330 esp at [52] and at [44] approving Dowsett J in Hearn v O’Rourke at [28].)

The s 65A Exemption

50 In the alternative to the submission that the relevant conduct did not arise in trade or commerce, the appellants seek the protection of s 65A which relevantly provides:

“(1) Nothing in section 52, 53, 53A, 55, 55A or 59 applies to a prescribed publication of matter by a prescribed information provider,

...

(2) For the purposes of this section, a publication by a prescribed information provider is a prescribed publication if:

(a) in any case – the publication was made by the prescribed information provider in the course of carrying on a business of providing information; or

(b) in the case of a person who is a prescribed information provider by virtue of paragraph (a), (b) or (c) of the definition of prescribed information provider in subsection (3) (whether or not the person is also a prescribed information provider by virtue of another operation of that definition) – the publication was by way of a radio or television broadcast by the prescribed information provider.

(3) In this section:

prescribed information provider means a person who carries on a business of providing information and, without limiting the generality of the foregoing, includes:

(a) the holder of a licence granted under the Broadcasting Services Act 1992; and

(aa) a person who is the provider of a broadcasting service under a class licence under that Act; and

(ab) the holder of a licence continued in force by subsection 5(1) of the Broadcasting Services (Transitional Provisions and Consequential Amendments) Act 1992; and

(b) the Australian Broadcasting Corporation; and

(c) the Special Broadcasting Service Corporation.

...”

51 The appellants rely upon the reasoning of French J in Bond v Barry [2007] FCA 1484. In that case a freelance journalist had provided material for publication by a newspaper. The issue was whether or not the communication of that draft article from the journalist to the newspaper fell within s 65A.

52 French J considered the submissions before him in terms of the scope of the word “publication” and concluded:

“[40] Where more than one construction is open on the statute, that construction should be adopted which is consistent with its purpose. The purpose of s 65A was clearly stated in the Second Reading Speech. To exclude from the exemption the supply of information by freelance journalists to media organisations is to partially defeat that purpose. The communication of news articles to media organisations by freelance journalists is so plainly within the intended purpose of the section that a construction covering it should be adopted provided that construction is open. In my opinion, as stated above, such communication is within the natural and ordinary meaning of publication as publication to the world at large. And even if transmission of an article by a freelance journalist to the editor of a media organisation were to be construed as merely one-to-one communication, the concept of such communication as publication is familiar in the area of defamation law. ...

...

[43] The publications which are protected by s 65A include the transmission of information or articles by freelance journalists to media organisations. Absent such coverage media organisations could be exposed to liability as accessories for publishing articles prepared for publication by freelance journalists in contravention of s 52 or the equivalent provision of the relevant Fair Trading Act. It would be a major and unintended gap in the coverage of the exemption and completely at odds with its purpose.”

53 The facts in Bond v Barry were quite different from the facts of this case. The communication of a draft article is one step removed from the act of publication itself. The protection of s 65A would be virtually non-existent if a journalist, who in the usual case would be an employee of and indemnified by the publisher, could be successfully sued for supplying an article, the publication of which was protected. I note that, unlike Bond v Barry, no issue arises here as to whether s 65A(1)(a)(i) applies.

54 There is no authority on the question which has now arisen. That question is whether a false and misleading statement made for the purposes of obtaining information or material for an ultimate purpose of publication is a “prescribed publication of matter” as defined in s 65A(2), namely a “publication ... made ... in the course of carrying on a business of providing information”.

55 No doubt the collection of information, including audio-visual images, can be said to occur for some purposes “in the course of carrying on a business of providing information”. However, the formulation “in the course of” is not equivalent to “in connection with” or “for purposes of”. The relevant publication is the ultimate output of the business of providing information.

56 The focus of the section upon “publication of matter” ... “in the course of carrying on a business of providing information” indicates that there should exist, as there was in Bond v Barry, a close correspondence, perhaps even identity, between the “matter” published and the information “provided” by the business. Statements made in the course of an investigation, even where there is an ultimate intent to publish something, have no such correspondence. They may be “in connection with” or “for purposes of” the business of providing information, but they do not occur “in the course of carrying on” that business.

57 The appellants’ submission on s 65A should be rejected.

Double Counting of Damages

58 The appellants assert that there was an overlap between the award of damages for the false and misleading conduct claim and that for trespass. His Honour was well aware of this issue and expressly stated:

“[1048] ... It is necessary to avoid any form of double counting when the same misrepresentations lie behind the action of trespass and false and misleading conduct and defamation proceedings have been instituted.”

59 His Honour’s findings of misleading and deceptive conduct were summarised at [974]:

“[974] What tends to mark out this case is that there were four instances of misleading or deceptive conduct namely, when Ms Stinson first spoke to Ms Santin by telephone, when the initial appointment for an interview was made with Mr Cox, when access to the Edmondson Park house was gained without telling Ms Cox that they were from ACA and in the initial part of the interview when Mr Fordham and Ms Stinson told Mr Cox that they were considering building a house. Mr Fordham and TCN Nine realised that they would not be admitted to the house if it was realised who they were and the purpose of their visit.”

60 The appellants relied on the linkage in his Honour’s reasons between the misrepresentation and the trespass. His Honour said:

“[1052] In my opinion there is a causal connection between the contravening conduct and the trespass. The question of a causal connection between the contravening conduct and the injury to the reputation of [Ilvariy] and Mr Cox is more difficult. There is no causal connection between the misrepresentations and that part of the program comprising the statements of the Mosses, the Vimpanys, the Allans and Ms Wilton and those of Mr Fordham when engaging in discussion with them. However, as to the confrontation and exchanges between Mr Fordham and Mr Cox, which were deliberately engineered by Mr Fordham, these would not have occurred but for the misrepresentations and the access they produced to the Edmondson Park premises and Mr Cox. Those exchanges, which were shown in the program produced some strong and defamatory remarks from Mr Fordham. There was also the confrontation and exchange shown in the promo and the program between Mr Fordham and Mr Cox which did not flatter Mr Cox. I think that there is a sufficient causal connection between the misrepresentations and the parts of the program and promo which I have indicated. But for the misrepresentations this would not have occurred. There was real damage.”

61 In this context his Honour also said:

“[1055] In the present case but for the representations Ms Stinson and Mr Fordham would not have been granted access to the Edmondson Park premises for an appointment with Mr Cox to discuss a purported building proposal. Mr Cox would not have admitted them if he had known that they were from ACA and were going to confront him. The refusal of entry would have robbed the program of its enhancement by questioning Mr Cox suggesting to him that the work of CHNR was poor and filming him. The questioning and filming was not flattering and did not assist Mr Cox. The refusal of entry, would not have altered the substance of what the Mosses, the Vimpanys, the Allans and Ms Wilton had to say or the defective work which was shown.”

62 His Honour set out the basis upon which he awarded damages for misleading and deceptive conduct as follows:

“[1064] The misleading and deceptive conduct of TCN Nine and Mr Fordham was carefully contrived. Both Mr Cox and [Ilvariy] suffered damage over and above the trespass and the core of the defamatory material, namely the statements made by the Mosses, Vimpanys, Allans and Ms Wilton and some of those of Mr Fordham.

[1065] The misleading and deceptive conduct enabled TCN Nine and Mr Fordham to obtain access to Mr Cox, to surprise and confront him, to film him and to ask a series of questions and make assertions. Although not in the program Mr Fordham’s exhortation (or harangue) to come out and talk to them, and especially his comment that Mr Cox was running away were offensive. He was under no obligation to grant interviews to TCN Nine. All this distressed Mr Cox and rightly so.

[1066] The misleading and deceptive conduct enabled TCN Nine and Mr Fordham to move into a position whereby TCN Nine could enhance its program and give it a greater sting at the expense of CHNR [Ilvariy] and Mr Cox. They, and especially Mr Cox were visually held up to public criticism. This increased the damage which they suffered. Visual representation is telling and adds an extra dimension, a dimension that words alone do not have. With the visual representation added to the words, the criticisms and allegations are more memorable and tend to linger longer in the recollection of the reasonable viewer.”

63 His Honour’s conclusion in this respect was:

“[1069] If the misleading and deceptive conduct had not occurred there would have been no admission to the Edmondson Park premises, no discussion with Mr Cox, no filming of Mr Cox and no opportunity for TCN Nine to enhance its program by a personal confrontation in unfair circumstances. He would not have been harrangued and accused of running away which is often associated with guilt. Mr Cox would not have suffered the damage of his visual representation being exposed to hundreds of thousand people in adverse circumstances. He was stunned, distressed and seething at what happened.

[1070] While I have held the imputations were justified and also covered by the comment defences, he and [Ilvariy] have suffered damage as a result of the representations.

[1071] It is not easy to assess the damages. I take into account that s 65A, TPA does not apply to the promo. The damages which I assess do not include aggravated damages or a punitive element. The principal damage was suffered by Mr Cox. I take into account that he has been awarded damages and that the defences to the imputations have been upheld. I must avoid double counting and be careful not to award damages in respect of the material in the promo and the program covered by the imputations. In assessing the compensatory damages I can do no better than make an estimate of the damage flowing from the misleading or deceptive conduct. I assess the damage suffered by Mr Cox by the misleading and deceptive conduct as $50,000.

[1072] [Ilvariy] (CHNR) was not entitled to damages for trespass but it was the builder of the houses under attack in the promo and the program. The name of Craftsman Homes Northern Rivers is mentioned four times in the program and there is a video picture of “Craftsman Homes” signage in the promo. The misleading and deceptive conduct practised on Mr Cox also affected CHNR adversely and led to the enhancing of the program against it but to a lesser extent than Mr Cox.

[1073] [Ilvariy] is entitled to compensatory damages which I assess at $30,000.”

64 Ilvariy was not entitled to damages for trespass. This ground of appeal does not affect its award of $30,000.

65 It is clear that his Honour linked the misrepresentations to the trespass in that, save with respect to the entry of the camera crew, it was the misrepresentations that enabled the appellants to gain entry and thereby commit the trespass. Of itself that does not indicate double counting.

66 Despite his Honour’s express intention to avoid double counting, Mr Macfarlan QC submitted that his Honour did do so. He compared pars [942] with respect to aggravated damages and [1065], both set out above, in support of that submission.

67 There is a significant overlap between the two:

· “confronting Mr Cox with broad general allegations” [942] and “to confront him ... and ask a series of questions and make assertions” [1065].

· “The statement that Mr Cox should answer the questions rather than ‘running away’” [942] and “especially his comment that Mr Cox was running away” [1065].

68 In the case of the false and misleading claim these were said to be matters leading to “distress” [1065]. In the case of aggravated damages for trespass these were matters leading to “hurt to feelings, humiliation and affront to dignity” [942]. Notwithstanding the different formulations, there is a significant overlap. Furthermore, in the case of the former, the false and misleading conduct enabled TCN Nine to give the programme “a greater sting” and to “visually” hold up the appellants to “public criticism” [1066]. In the case of the trespass, the respondents “must have been aware” that Mr Cox’s “reputation and the business ... were being attacked and damaged” [942]. Again, the overlap is substantial.

69 Although his Honour expressly stated that he intended to avoid double counting, his reasons suggest that he did not succeed in that regard. There is, however, a significant element of differentiation. The reasons with respect to trespass focus in the last sentence of [942] on the effect upon Mr Cox at the time. The reasons with respect to the false and misleading case extend to the effect of the publication. (As discussed below.)

70 Nevertheless, the degree of overlap is substantial. In my opinion, the award of damages to Mr Cox for damage to reputation not compensated in the award of aggravated damages for trespass is less than the damage to Ilvariy in this regard. In my opinion, Mr Cox’s award should be reduced to $20,000.

Coherence

71 The appellants also make two submissions based on the principle of coherence. At a general level, the principle was invoked for the proposition that damages under s 52 of the Act should not be awarded for loss of reputation as the policy of the law and/or the interpretation of the Act is for such matters to be dealt with exclusively by the law relating to defamation. The second, and narrower, submission is that it would be contrary to public policy and to the provisions of the Act to award damages for misleading and deceptive conduct in relation to a publication which was found to be true and in the public interest.

72 The issue is one of statutory interpretation. I do not find the references to “the policy of the law” to be pertinent.

73 Mr Macfarlan acknowledged that acceptance of the general submission would mean that the enactment of s 65A would not have been necessary. It is, furthermore, a submission which is inconsistent with the line of authority to which Parliament responded by enacting s 65A. (See esp Global Sportsman Pty Ltd v Mirror Newspapers Ltd [1984] FCA 180; (1984) 2 FCR 82; Australian Ocean Line Pty Ltd v West Australian Newspapers Ltd [1983] FCA 66; (1983) 47 ALR 497 and subsequently [1985] FCA 37; (1985) 58 ALR 549.) This line of authority, set out by French J in Advanced Hair Studio Pty Ltd v TVW Enterprises Ltd (1987) 18 FCR 1 at 7-10, continues to be applied. (See e.g. Versace v Monte [2002] FCA 190; (2002) 119 FCR 349 esp at [45]-[46].) Mr Macfarlan submitted that the argument which he was now putting to the Court was not put in these cases.

74 The appellants rely on the fact that since the decisions in the Federal Court which adopted a literal interpretation to s 52 and s 82 of the Act, the High Court has emphasised the significance of coherence of the law including coherence between the common law and statutory law understood as a single body of law. (See Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 at [53]- [55]; Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512 at 532 [31]; Hill v Van Erp (1997) 188 CLR 159 at 231 referred to with approval in Sullivan v Moody at 580 [50]; Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 at 335 [28], 342 [58], 361 [123], 425 [323]; New South Wales v Paige [2002] NSWCA 235; (2002) 60 NSWLR 371 esp at [92]-[95]; Edwards v Attorney General (NSW) [2004] NSWCA 272; (2004) 60 NSWLR 667 esp at [6].)

75 Mr Macfarlan relied upon the reasoning of Levine J in Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32 and the similar conclusion reached by the Full Court of the Supreme Court of South Australia in Cornwall v Rowan [2004] SASC 384; (2004) 90 SASR 269 esp at [694].) However, in those cases the issue was whether the tort of negligence should intrude into the sphere regulated by the tort of defamation. The issue of statutory interpretation with which this Court is concerned was not involved.

76 The issue of coherence that arises in the present case is whether the words of either s 52 or s 82 of the Act should be read down so as not to extend to proceedings for injury to reputation, either at all or with respect to defensible publications. In such a context, the principle of coherence can only apply, if at all, as an assumption about the intention of Parliament when enacting the Act.

77 The issue of coherence in this case requires reading down the literal words of the Act on the basis that Parliament would not have intended to disrupt a well established body of doctrine, such as the law of defamation. This proposition is contrary to reasoning of the Full Court of the Federal Court of long standing – on the basis of which Parliament has intervened to further regulate the matter. The approach reflected in that Court, as modified in a particular way by statute, has been established for too long for this Court to intervene. In any event, it reflects the literal, perhaps literalist, approach that has long been adopted with respect to these statutory provisions. The appellants’ general submission that s 52 or s 82 should be read down so as not to extend to publications covered by the law of defamation should be rejected.

78 The alternative proposition, for which the appellants primarily contended, is based on a factual situation where the actual act of publication has been found to be defamatory, but defensible as being true and in the public interest.

79 It must, however, be remembered that the act constituting the false and misleading conduct in the present case was not the publishing of the material. The false and misleading conduct identified was the deception involved in getting access to property. It was that access which enabled the appellants to obtain visual footage of a confrontation with Mr Cox which, directly in his own case and indirectly in the case of Ilvariy, was found to have caused damage.

80 There is, in my opinion, no intersection of any kind between the law of defamation and the statutory contravention, unless damages have been recovered for injury to reputation by the ultimate publication. Mr Macfarlan accepted that it was a necessary step in his argument on this ground of appeal that he establish that Smart AJ awarded damages for injury to reputation.

81 Mr Macfarlan’s submissions on the issue of reputational damage were based on passages in his Honour’s reasoning which, he submitted, indicated that the broadcast of the confrontation between Mr Fordham and Mr Cox was part of the material that conveyed the defamatory imputations and gave them greater sting. He submitted that the defamatory imputations were not derived only from broadcasting the footage of dissatisfied homeowners, but also from the footage which occurred by reason of the trespass which, in turn, came about only by reason of the false and misleading conduct. I have set out the relevant passages of Smart AJ’s judgment above.

82 The first passage to which Mr Macfarlan drew attention was the reference in par [1066] to how the conduct enabled the appellant broadcaster to “enhance its program and give it greater sting at the expense of CHNR (Ilvariy) and Mr Cox”. In my opinion this is not a reference to the impact on the respondent’s reputation by reason of the imputations found to be defamatory but defensible. This passage is a reference to how the confrontation enhanced the impact of the programme as a whole. It was not, in my opinion, directed to enhancing the sting of any defamatory imputation conveyed by the programme.

83 In par [1066] his Honour went on to say that the respondents “were visually held up to public criticism” and that, “[w]ith the visual representation added to the words, the criticisms and allegations are more memorable and tend to linger longer in the recollection of the reasonable viewer”. The “intentions and allegations” are, it appears to me, a reference to the statements said to give rise to the imputations. In this regard, in my opinion, Mr Macfarlan has established an interconnection between injury to reputation and that part of the broadcast which consisted of the confrontation.

84 Mr Macfarlan also referred to [1069] where his Honour indicated that the false and misleading conduct enabled the appellant broadcaster “to enhance its program by a personal confrontation in unfair circumstances” and that “Mr Cox would not have suffered the damage of his visual representation being exposed to hundreds of thousands [of] people in adverse circumstances”.

85 This passage is a reference back to his Honour’s analysis at [1052] where he distinguished the part of the programme consisting of statements by the disappointed homeowners and referred to the fact that the access granted on the basis of the misrepresentations led to the confrontation with Mr Fordham who made some “strong and defamatory remarks”. This does link the confrontation to the defamatory imputations.

86 Furthermore, these comments at [1052] were made in a context in which his Honour identified the task which he was undertaking – and which he described as “more difficult” – as being the identification of “a causal connection between the contravening conduct and the injury to the reputation of Ilvariy and Mr Cox” (emphasis added). This reference also indicates that his Honour was focusing on the publication of the confrontation in terms of compensation for the injury to the reputation of the respondents arising from the confrontation.

87 Accordingly, the appellants have made out the factual basis of these submissions.

88 Mr Macfarlan emphasises the incongruity of the consumer protection provisions of the Act giving rise to an award of damages for conduct which was related to, albeit not constituting, the supply of truthful information to the public. Although the fact that s 52 appears in part of the Act entitled “Consumer Protection”, which has long been held not to confine the scope of s 52, the heading remains part of the context when construing the language of the Act. (See Concrete Constructions at 601-602.) In that case the High Court confined the words “in trade or commerce”, in part, on this basis.

89 I do not find the principle that a person cannot take advantage of his own wrong or the ex turpi causa principle, on which Mr Macfarlan relied, of any assistance on the issue of statutory interpretation.

90 I have not been able to identify a textual foothold for the appellants’ proposition. It cannot be the word “by” in s 82, as Mr Macfarlan expressly abjured any causation point. Nor has it been submitted that, by reason of the truth of the imputations, the respondents did not in fact suffer any compensable damage from the conduct found to be in contravention of s 52.

91 Without a textual foundation for reading down either s 52 or s 82 in the manner contended, the appellants’ proposition, even if not strictly covered by authority, is inconsistent with the line of authority to which I have referred above. For example, the joint judgment of the Full Court in Global Sportsman commenced with the observation:

“There is no definable boundary between conduct which is misleading or deceptive ... and material which is defamatory.”

92 In any event, this submission is based on the unattractive proposition that the end justifies the means. This process of reasoning is potentially subversive of the rule of law. There appears to be no authority directly in point. Nor should one be created.

93 In my opinion, the appellants’ submissions should be rejected.

94 I note that although the appellants did appeal in grounds (m) and (n) of their Notice of Appeal from the award of damages as excessive, no submissions were addressed to this issue either in writing or orally.

Conclusion

95 The appellants have been successful in certain respects. The respondents should pay half of the appellants’ costs.

96 The orders I propose are:

1 In par [1075] of the judgment of Smart AJ vary par [2] by substituting $170,000 for $230,000, and vary par [5] by substituting $20,000 for $50,000.

2 The respondents pay half of the appellants’ costs of the appeal.

3 The respondents to have a certificate under the Suitors’ Fund Act 1951 if otherwise entitled.

97 BEAZLEY JA: I agree with Spigelman CJ.

98 HODGSON JA: I agree with the orders proposed by Spigelman CJ, and subject to what I say below about damages for trespass, I agree with his reasons.

99 I am of the view that the award of $60,000 for general damages for this trespass, where there was no damage to the property and where nothing was included for hurt feelings, was manifestly excessive. I accept that such damages may include compensation for the use of the land, and an amount for vindication of the right to exclusive occupation of the land; and I note that $25,000 was awarded on the latter basis in TCN Channel Nine Pty Ltd v Anning [2002] NSWCA 82; (2002) 54 NSWLR 333 at [178].

100 I would order general damages of $20,000.

101 I think the award of $50,000 for aggravated damages was also manifestly excessive. I consider it an extraordinarily high figure for hurt to feelings, humiliation and affront to dignity, with no continuing or lasting effects. I would award $30,000.

102 As regards exemplary damages, in coming to his view that $120,000 was manifestly excessive, Spigelman CJ noted the effect by way of punishment and deterrence of compensatory damages totalling $110,000. I would award compensatory damages totalling $50,000; and in that context, I do not consider exemplary damages of $120,000 manifestly excessive. The case is one where the appellant’s employees showed contumelious disregard of the rights of the respondent, in circumstances where they were seeking advantages for the appellant likely to be much greater than any actual damage caused to the respondent.

103 Thus I reach the same total of $170,000, by a different route. I do not think a lesser total figure would be adequate for punishment or for deterrence from tortious conduct which, it would seem, is regarded by the appellant or its employees as beneficial to its business.

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LAST UPDATED:
19 February 2008