New South Wales Court of Appeal CITATION: MOIT v. BRISTOW [2005] NSWCA 322 HEARING DATE(S): 22/03/2005 JUDGMENT DATE: 19 September 2005 JUDGMENT OF: Beazley JA at 1; McColl JA at 2; Campbell AJA at 130 DECISION: Appeal dismissed with costs CATCHWORDS: DEFAMATION - Justification - whether finding that imputation of dishonesty not substantially true was erroneous - held - no - Comment - whether finding that imputation of dishonesty was statement of fact not comment was erroneous - held - no - Common law qualified privilege - whether finding matter complained of not published on occasion of qualified privilege erroneous - held - no - s 13 Defamation Act - whether rejection of defence that matter complained of was published in circumstances where plaintiff was unlikely to suffer harm was erroneous - held - no - DAMAGES - s 46A Defamation Act - whether damages excessive - held - no (D) LEGISLATION CITED: Defamation Act 1974 Adam v Ward [1917] AC 309 Andreyevich v Kosovich (1947) 47 SR (NSW) 357 Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 78 ALJR 346 Bonette v Woolworths Ltd (1937) 37 SR (NSW) 142 Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 Devries v Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171 Goldsbrough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524 John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164; (2005) Aust Torts Reports 81-789 John Fairfax Publications Pty Ltd v O'Shane (No 2) [2005] NSWCA 291 Jones v Sutton [2004] NSWCA 439; (2004) 61 NSWLR 614 CASES CITED: Kemsley v Foot [1952] AC 345 New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340 O'Shaughnessy v Mirror Newspapers Ltd [1970] HCA 52; (1970) 125 CLR 166 Padmore v Lawrence (1840) 11 Ad & El 380; (1840) 113 ER 460 Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327 Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211 Telegraph Newspaper Co Ltd v Bedford [1934] HCA 15; (1934) 50 CLR 632 Toogood v Spyring (1834) 1 Cr M & R 181; (1834) 149 ER 1044 Books Odgers on Libel and Slander (6th ed) Gatley on Libel and Slander (10th ed) George Moit (Appellant) PARTIES: Andrew Julian Bristow (Respondent) FILE NUMBER(S): CA 41013/2003 R.A. Campbell (Appellant) COUNSEL: S.M. Littlemore SC (Respondent) Stephen Noss & Associates (Appellant) SOLICITORS: Kalantzis Lawyers (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 13962/01 LOWER COURT JUDICIAL OFFICER: Puckeridge DCJ IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41013/03 DC 13962/01 BEAZLEY JA McCOLL JA CAMPBELL AJA 19 September 2005 George MOIT v Andrew Julian BRISTOW Judgment 1 BEAZLEY JA: I agree with McColl JA. 2 McCOLL JA: In 1998 – 2000 Hornsby Shire Council was considering whether to rezone land in Dural Village. George Moit, the appellant, owned and occupied a property in the village and had been working with the Council to rezone the area. Andrew Bristow, the respondent, was the president of the Hornsby Shire Residents and Ratepayers Association. He had taken an active role in relation to the rezoning, including circulating leaflets concerning the Council's proposals within the community. The two men had "completely opposing views as to the effect of changes in uses for property in Dural Village". 3 The Council organised a public meeting for 26 October 2000 to discuss the rezoning proposals. On or about 23 October 2000, the appellant sent a facsimile to the Council. The cover sheet to the facsimile, which was the matter complained of (exhibit A), set out the appellant's name, address, telephone and fax numbers, then continued: "To: Hornsby Shire Councillors From: George Moit Fax: 98476909 Pages: 6 Phone: Date: 23.10.100 Re: Dural Village Centre For Review Comments: Dear Brief Notes We have been working with Council to rezone the small area within the Dural Village Centre. I represent and have been leed (sic) spokesperson for the Residents and landowners for approx. 4 years, see the attached list, item 2. We have wide spread community support and this has been evident in the residents meetings and workshops which were attended by large numbers in support for the rezoning. We will not stand for the undemocratic and criminal behaviour of generating false information by Andrew Bristow. We believe that investigations are required into Andrew Bristows connection with Hornsby Shire Council, note Building contractors for Hornsby Shire Council. Because he does not represent the community." [spelling and expression as in original] 4 The respondent commenced defamation proceedings against the appellant asserting that the matter complained of conveyed three imputations which were defamatory of him. At a hearing pursuant to s 7A of the Defamation Act 1974 to determine whether the matter complained of carried the imputations of which the respondent complained, his Honour Judge Puckeridge QC found it conveyed two imputations which were defamatory of him. 5 The first, imputation (b), was that "the respondent acted dishonestly in relation to the Dural Village Centre in that he generated false information about it". 6 The second, imputation (c), was that "the respondent's conduct in relation to Hornsby Shire Council building contracts was such as to call for official investigation". 7 The appellant sought to defend imputation (b) on the basis that: (a) it was a matter of substantial truth and related to matters of public interest or was published on an occasion of qualified privilege (s 15, Defamation Act ); (b) that it was related to matters of public interest and consisted of comment and was based on proper material for comment and was his comment (ss 30(3)(a), 32(1) Defamation Act ); (c) alternatively, that it related to matters of public interest and consisted of comment based to some extent on proper material for comment and represented an opinion which might reasonably be based on the material to the extent to which it was proper material for comment and was his comment (s 30(3)(b), s 32(1), Defamation Act ). 8 He also pleaded that the matter complained of was published under common law qualified privilege and under such circumstances that the respondent was unlikely to suffer harm (s 13, Defamation Act). These defences applied to both imputations. 9 In reply to the defence of qualified privilege the respondent pleaded that the publication of the matter complained of was actuated by express malice. In reply to the defence of comment he pleaded that insofar as any part of the matter complained of contained comment, the comment did not, at the time it was made, represent the opinion of the appellant (s 30(2), Defamation Act)). 10 The primary judge found that none of the defences were established. He awarded the respondent $55,000. The Court granted leave to appeal on 5 May 2004. Grounds of Appeal 11 The appellant raises a number of grounds of appeal, in the following order: (a) finding that imputation (b) was not a matter of substantial truth; (b) failing to consider and determine the issues of public interest and qualified privilege required by the defence under s 15 of the Defamation Act 1974 raised in respect of imputation (b); (c) his determination that imputation (b) would have been understood as an assertion of fact as distinct from a comment; (d) taking irrelevant matters into consideration in his determination as to the availability of the defence of unlikelihood of harm; (e) failing to consider the circumstances relevant to the defence of unlikelihood of harm; (f) finding that imputation (b) would not have represented a reasonable opinion insofar as it was based on proper material for comment; (g) applying subjective considerations to the determination of whether the matter complained of was published on an occasion of qualified privilege; (h) failing to find that the mater complained of was published on an occasion of qualified privilege; (i) failing to order judgment for the respondent; and (j) awarding excessive damages. The judgment below 12 The primary judge found the matter complained of was published in the following circumstances. 13 In 1998 there was a public meeting at Cherrybrook concerning Dural Village at which both the respondent and appellant were present. The Council organised the meeting to find out the community's views about the uses to which properties in the Dural Village might be put. 14 Another public meeting was held in December 1999 at the Council. Again, interested parties and community groups were invited. That meeting apparently came up with a list of possible uses for Dural Village. 15 A member of the Council who supported rezoning the village, Councillor Horne, gave evidence that she supported specific changes to the current uses and had specified that any changes to the use of land in the Dural Village had to be small in scale and local in nature. 16 A Council meeting held on 7 June 2000 resolved to adopt a motion moved by Councillor Horne and seconded by Councillor Russell, for the preparation of a draft local environmental plan to permit the following uses in Dural Village (the "7 June 2000 resolution"): "(a) services shop (b) home offices (c) business premises (d) offices (e) light industry similar to a home industry, but not necessarily residential (f) health consulting rooms." (exhibit 3) 17 In June – July 2000 the respondent wrote, and publicly circulated, a leaflet headed "Hornsby Shire Residents and Ratepayers Association Inc - Industrial & Fast Food Rezoning Threat"(exhibit B). The leaflet referred to land, apparently within Dural Village, and said that on 7th June 2000 Hornsby Council, following representations to some Councillors by the landowners concerned, had resolved to prepare "a draft LEP to permit a number of commercial land uses in the area". The leaflet said, (correctly) that the motion for this resolution was moved by Councillor Horne and seconded by Councillor Russell. It also said that an amendment, moved by Councillor Orr and seconded by Councillor Brown, that the current planning strategy and low-density residential zoning and development controls be retained was defeated. Exhibit B asserted that the only people who would benefit from any rezoning would be "the few owners of the subject land" who, it claimed would make an " 'overnight' financial gain". It also asserted that "the rest of the community will suffer long-term from an industrial/fast food alley at this major gateway to the rural areas…[and] from vastly increased traffic hazards, the visual pollution inevitable with an industrial/fast food alley and subsequent decline in property values". It concluded by asking readers to make their views known that evening to Councillors and also to write to the General Manager Hornsby Council "re Dural Village rezoning". The respondent said that there was no statement of fact in exhibit B which was untrue. 18 In October 2000, again on behalf of the Hornsby Shire Residents and Ratepayers Association, the respondent published a leaflet (exhibit C) to which drew attention the public meeting planned for 26 October 2000. The leaflet was distributed in shopping centres and at homes throughout the community. The respondent said that there was no statement of fact in exhibit C that was untrue. 19 A triangle containing a skull and crossbones appeared at the top of exhibit C. The word "BEWARE" in capitals appeared in bold below it followed by the statement: "… SOME HORNSBY COUNCILLORS PLAN TO MAKE DURAL VILLAGE AN INDUSTRIAL ESTATE AND FAST FOOD CENTRE … STOP PLANS TO MAKE THIS ALREADY DANGEROUS INTERSECTION OF OLD NORTHERN ROAD AND GALSTON ROAD EVEN MORE DANGEROUS. HAVE YOUR SAY AT … LATER WILL BE TOO LATE!" [layout as in original] Exhibit C gave details of the meeting. The respondent's contact details were also included. 20 The appellant said he first saw exhibit C at an overbridge near the public school. He also saw it displayed in a local shop. The appellant said that the content of exhibit C was "lies" because the respondent, having been at the 1999 meeting was aware of what was going to happen on the site. He said he was very upset. The appellant said that at the workshop meeting Councillor Horne had said she would only support, and would only be interested in, low scale type uses which would be appropriate to the rural setting that existed in Dural Village Centre. 21 The appellant said he faxed the matter complained of to the councillors in response to exhibit C. He attached a number of documents to the matter complained of, one of which was exhibit C on which the following words were handwritten: "This was distributed to homes in Dural on the 21st and 22nd October 2000. Also a pile was left at Dural Newsagency without permission of the principal. Lawrence from Dural Newsagency is very upset and available for comment because his goodwill was used without his permission … generate confidence deceptively." This note appears to bear the appellant's signature. 22 The respondent learnt of the matter complained of, on or about 23 October 2000, when Councillor Orr faxed a copy to him. He only sued on the cover sheet of the 23 October facsimile. 23 The appellant gave evidence that when he said, in the matter complained of, "we have been working with Council to rezone the small area within the Dural Village Centre", he meant that he had contacted other people with properties in the Dural Village Centre and made a submission to Council on their behalf. One of the documents he attached to the matter complained of was a street plan headed in the left hand corner "Dural Village Centre Rezoning". The words "item 2" are handwritten upon it. The primary judge accepted that this was the submission to which the appellant was referring. The document stated that "the attached plan shows all the properties that request rezoning in this submission, properties that actually are enjoying use of their land for uses other than the current zoning". 24 The appellant said he believed the imputation "that the respondent had acted dishonestly in relation to the Dural Village Centre in that he generated false information about it" to be true. He said that the respondent acted dishonestly in publishing exhibit C. 25 He gave evidence that when he referred in the matter complained of to "residents' meetings and workshops" he was referring to the public meetings held in 1998 and 1999. He said that there was something "undemocratic" about Mr Bristow publishing exhibit C in that it did not represent what was said at the 1999 meeting. He said that the reference in exhibit C to "an industrial estate and fast food centre" and the "connotation" that the public would attach to the skull and crossbones was "false information". He formed the view that exhibit C presented "a very threatening type view about [himself] and [his] intentions". He said that the "skull and crossbones [was] really a sign of danger and poisons and death and a list of things". 26 The appellant said the respondent must have known from his attendance at meetings, particularly the 1999 meeting, that there was no plan to make Dural Village an industrial estate and fast food centre as stated in exhibit C. He claimed that in stating that some Hornsby Councillors did have such plans, the respondent was dishonest and that such a statement was not in accord with what actually occurred at the workshop meeting. 27 Councillor Horne gave evidence that when she referred to industry, the industry had to be low scale and suitable for a rural village and that she did not mention "industrial estates". She said she did not envisage that any change in the use of land to light industrial would turn the Dural Village into an industrial estate and fast food centre. 28 The respondent said that he believed that the changes referred to in the 7 June 2000 resolution would turn Dural Village into an industrial estate and fast food centre. He said he used the word "beware" and the skull and crossbones on exhibit C to make people aware of the dangers that would come if the rezoning went ahead from a traffic point of view. He said that there was a bus interchange in the Dural Village Centre that would only become worse if the traffic increased and pedestrian movements across the road would become "very very dangerous". 29 The primary judge found that the respondent and the appellant had "completely opposing views as to the effects of change in uses for property in the Dural Village". He concluded that the respondent published exhibit C to make ratepayers aware of what he considered the Council's intention in relation to Dural Village. 30 He accepted that the appellant believed exhibit C was unnecessarily alarmist and that the respondent was dishonest in stating that some councillors planned to make Dural Village an industrial estate and fast food centre. Justification: primary judge's conclusion 31 The primary judge held that imputation (b) was not substantially true. He said [judgment 9 – 11]: "Exhibit C is a pamphlet encouraging people to attend the public meeting on 26 October. It seeks to make people aware of what the president of the Hornsby Shire Residents and Ratepayers Association considered some Hornsby Councillors planned in relation to the Dural Village. The plaintiff could not be said to be acting dishonestly in issuing a pamphlet inviting people to a public meeting to have their say in relation to any plan to change the uses of land in the Dural Village . There would be nothing to prevent Mr Moit attending the meeting on October 26, and say that any change in the uses of the land in the Dural Village as described in exhibit 3 would not have the effect of making the village an industrial estate and fast food centre. It may be that in fact any change in the uses for land in the village would not turn it into an industrial estate and fast food centre, but that was the honest belief of the plaintiff and his actions in publishing exhibit C does not, I consider, turn an honest belief into a dishonest action . I accept the evidence of the plaintiff that the word 'beware' and the triangle with the pictogram of skull and crossbones within the triangle was to make people aware of the dangers that would come with increased traffic flow from any change in the uses of the land. I accept that the plaintiff had an honest belief that dangers would occur to persons with such increase in traffic flow. I accept that the plaintiff did not intend to alert persons to toxins and pollution occurring as a result of any change in the uses of the land. I do not consider the plaintiff was acting dishonestly in making known to ratepayers honestly held views as to the effect of any proposed changes in the use of land . I find that Imputation (b) is not substantially true. It is therefore unnecessary to further consider whether the imputation relates to a matter of public interest or is published under qualified privilege." (emphasis added) Justification: consideration 32 Mr Campbell challenged the primary judge's conclusion that exhibit C expressed the respondent's honestly held opinion. He argued that the use of the word "beware" and the skull and crossbones threatened that "contamination, pollution, toxic waste or some unwholesome chemicals or like minerals were involved in the alleged plan to make Dural Village an industrial estate". He contended that there was no evidence to suggest that such a threat existed and that the respondent's evidence had been that he had not intended to alert readers of exhibit C to threats of toxins and pollution. Accordingly, he argued the respondent did not believe in the truth of what would have been the very "obvious message" exhibit C conveyed. 33 Mr Campbell submitted that the respondent's evidence that he was not seeking to scare residents by his use of the word "beware" and the skull and crossbones but, rather, was merely seeking to make the public aware that this was an opportunity to have their say "beggared belief". Accordingly, he contended, the primary judge's conclusion that the respondent's action in issuing exhibit C was not dishonest, was wholly contradicted by that document. This was apparently an attempt to invoke the proposition that exhibit C, on its face, was incontrovertible evidence which demonstrated that the primary judge's conclusion was erroneous: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118. 34 Mr Littlemore argued that in order to justify imputation (b) the appellant had to establish not just that the respondent had published false information, but information he knew to be false at the time of publication. He submitted that the appellant had failed to discharge that burden. He also submitted that the primary judge's finding was one which was demeanour based and was not to be set aside even if this Court thought the probabilities of the case were strongly against it: Devries v Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472 at 479. 35 In my view the respondent's submissions must be accepted. 36 The respondent was cross-examined extensively on exhibit C. He accepted that the skull and crossbones and the word "beware" was a "well-known symbol for poisons". He said he was not sure that it was a symbol used for toxic waste. He was then asked what he intended to indicate by the use of the word "beware" under the skull and crossbones motif and he responded: "We wanted to make the community aware of what could occur if the land was going to be rezoned." 37 He denied wanting to scare the community. At a later stage, in response to a rather confusing question, he said: "Q. You also believed that this was something extremely dangerous by your skull and crossbones and beware, didn't you? A. Yes, certainly increased traffic at the intersection would be extremely dangerous." 38 It was never put to the respondent that the skull and crossbones was used to threaten contamination, pollution, toxic waste or that some unwholesome chemicals or like perils were involved in the proposed rezoning. 39 The primary judge's conclusion that the respondent was not acting dishonestly in publishing exhibit C was clearly demeanour based. The respondent's evidence about exhibit C was not "glaringly improbable" (Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 at 844). The appellant has not established that the primary judge " 'failed to use or palpably misused his advantage' or … acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable' ": Devries v Australian National Railways Commission at 479. 40 In my view, it is not open to this Court to interfere with the primary judge's conclusion that the respondent honestly believed what he published in exhibit C. 41 Accordingly, the appellant's challenge to the primary judge's conclusion that the defence of justification failed should be rejected. 42 The appellant also complains that the primary judge erred in failing to consider and determine the issues of public interest and qualified privilege which are elements of the s 15 defence of justification. In light of his Honour's decision that the respondent had not acted dishonestly by publishing exhibit C, it was unnecessary for his Honour to consider those issues. While there are cases in which this Court urges a primary judge to consider all issues notwithstanding a conclusion which may be seen to render other issues otiose, the issue of public interest is one this Court can determine should it arise. 43 As I have concluded that it is not open to this Court to interfere with the primary judge's conclusion on the substantive issue concerning the defence of justification, it is unnecessary for this Court to consider whether the appellant's publication related to matters of public interest. The issue of qualified privilege arose as a separate defence, as well as an element of the plea of justification, and will be considered below. 44 Grounds of appeal (a) and (b) must be rejected. Comment: the primary judge's conclusion 45 The appellant submitted that imputation (b) was a comment and was based on proper material for comment, namely exhibit C. The respondent submitted that imputation (b) was a statement of fact. 46 In order to determine whether imputation (b) was comment or a statement of fact, the primary judge directed himself that he was required to take into account all the circumstances in which the matter complained of was made, including the relationship between the material relied upon and the alleged comment and the surrounding circumstances: see Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 at 182. 47 The primary judge concluded that, taking into account the appellant's evidence and the surrounding circumstances, the appellant was making a statement on material other than exhibit C. He referred to Petritsis v Hellenic Herald Pty Ltd as authority for the proposition that a statement of opinion if made to a person who has not had brought to their mind the facts on which it is based is a statement of fact and not a comment. He concluded the ordinary recipient of the matter complained of would understand the words "criminal behaviour" to be a statement of fact. 48 Although his Honour did not expressly find that imputation (b), rather than the matter complained of, was a statement of fact, the appellant clearly accepts, in the manner he has framed his third ground of appeal, that that was the purport of that finding. 49 The appellant had argued that the recipients of the matter complained of, the Councillors, must have been aware of what was resolved at the workshop meeting and that there was no resolution which would make Dural Village an industrial estate and fast food centre. In this respect, the primary judge concluded, that "it was not brought to the mind of the Councillors that the statement in the matter complained of in regard to the 'undemocratic and criminal behaviour' of the respondent was made with the intent to discredit the respondent and to ensure that the respondent was not Chairman of the meeting on 26 October". Comment: consideration 50 Mr Campbell submitted that imputation (b) would have been understood as an expression of the appellant's opinion because he included exhibit C with the matter complained of "so that readers would be aware of the basis of his complaint about false information being disseminated by the respondent". He submitted that exhibit C was proper material for comment, being material the respondent had publicly displayed and distributed in the lead up to the Council's meeting: see Gardiner v John Fairfax & Sons Limited (1942) 42 SR (NSW) 171 at 174 per Jordan CJ. 51 Mr Campbell identified the error into which he submitted the primary judge fell when dealing with the defence of comment as his Honour's statement (judgment at 13) that: "… it was not brought to the mind of the Councillors that the statement in exhibit A in regard to the 'undemocratic and criminal behaviour' of the plaintiff was made with the intent to discredit the plaintiff and to ensure that the plaintiff was not Chairman of the meeting on 26 October …" 52 He argued that the primary judge had misdirected himself as to the test for comment by having regard to the circumstances in which the matter complained of was published, rather than testing the question whether imputation (b) was comment by having regard to the facts expressly or impliedly indicated in the matter complained of. 53 Mr Littlemore submitted that imputation (b) did not have the character of a comment but was a "verdict against the respondent". He accepted that it was conceivable that a charge of dishonesty might involve an expression of opinion: see O'Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166 at 174. He contended, however, that the task of a publisher, seeking to establish a statement was comment rather than fact, and who chose to use such an unequivocal word as "dishonestly" was an onerous one particularly when the imputation was conveyed in the context of assertions of "criminal behaviour" and "false information". He submitted that an assertion of "criminal behaviour" or "false information" is not a matter of opinion but of fact. 54 Mr Littlemore argued that the primary judge had correctly applied Petritsis v Hellenic Herald Pty Limited (at 182) per Reynolds J. He submitted that the primary judge correctly concluded that as the matter complained of contained no reference to the basis for the assertion of the respondent's "undemocratic and criminal behaviour of generating false information", its recipients had not had brought to their mind the facts on which that assertion was based. He pointed out that the handwritten words on the copy of exhibit C attached to the matter complained of, did not assert that anything set out in that leaflet was untrue but, rather, recorded a complaint that it had been left at the newsagent's shop without his permission. 55 He argued that the matter complained of did not indicate that exhibit C was material upon which imputation (b) was based. He pointed to the fact that a number of documents were attached to the matter complained of, none of which expressly, or as I understand his argument impliedly, asserted that the respondent had generated false information about Dural Village. 56 Insofar as exhibit C was concerned, Mr Littlemore submitted it would not be understood by the ordinary reader as identifying "false information" the respondent was said to have generated about Dural Village. He contended that nothing in the materials attached to the matter complained of indicated that the printed text of exhibit C was false. 57 The question whether a statement is one of fact or comment turns on whether it appears that the words used "are opinions stated by the writer or speaker about facts, which are at the same time presented to, or are in fact present, to the minds of the readers or listeners, as things distinct from the opinions, so that it can be seen whether the opinions are such that they can fairly be formed upon the facts": Goldsbrough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524 at 531, 532 per Jordan CJ. Reynolds J quoted this passage with approval in Petritsis v Hellenic Herald Pty Limited (at 182). 58 The classic illustration of this proposition is Kemsley v Foot [1952] AC 345 in which a periodical published an article under the heading "Lower than Kemsley". Kemsley was a well-known newspaper proprietor, but the article criticised the conduct of a newspaper with which he was not connected. Kemsley brought proceedings for defamation. The defendants pleaded fair comment. Kemsley sought to strike out the defence on the basis that it could not succeed because no facts appeared in the article to support the statement in the headlines. 59 Lord Porter (at 356 – 357) held that the facts which might found a finding that words were a comment could not only appear in the matter complained of itself, but could also be impliedly referred to. He accepted the statement in Odgers on Libel and Slander, (6th ed, 1929 at 166) that: "Sometimes, however, it is difficult to distinguish an allegation of fact from an expression of an opinion. It often depends on what it is stated in the rest of the article. If the defendant accurately states what some public man has really done, and then asserts that 'such conduct is disgraceful', this is merely the expression of his opinion, his comment on the plaintiff's conduct. So, if without setting it out, he identifies the conduct on which he comments by a clear reference . In either case, the defendant enables his readers to judge for themselves how far his opinion is well founded; and, therefore, what would otherwise have been an allegation of fact becomes merely a comment. But if he asserts that the plaintiff has been guilty of disgraceful conduct, and does not state what that conduct was, this is an allegation of fact for which there is no defence but privilege or truth . The same considerations apply where a defendant has drawn from certain facts an inference derogatory to the plaintiff. If he states the bare inference without the facts on which it is based, such inference will be treated as an allegation of fact. But if he sets out the facts correctly, and then gives his inference, stating as his inference from those facts, such inference will, as a rule be deemed a comment. But even in this case the writer must be careful to state the inference as an inference, and not to assert it as a new and independent fact; otherwise, his inference will become something more than a comment, and he may be driven to justify it as an allegation of fact ." (emphasis added) 60 Lord Porter went on to say (at 357) that "the question whether an inference is a bare inference in this sense must depend upon all the circumstances". Accordingly, he explained, that where it was said that the comment might be implied from the terms of the matter complained of, the enquiry ceased to be "can the defendant point to definite assertions of fact in the alleged libel upon which the comment is made?" and became "is there subject – matter indicated with sufficient clarity to justify comment being made?" 61 In John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164; (2005) Aust Torts Reports ¶81-789, Giles JA (with whom Ipp JA agreed on this issue) referred with approval to Lord Porter's endorsement in Kemsley v Foot of the passage in Odgers. His Honour also referred to Gatley on Libel and Slander, (10th ed, 2004, para 12.7) which emphasises that: …"if the defendant alleges that a person has been guilty of disgraceful or incompetent conduct, or has been actuated by corrupt or dishonourable motives and does not state what those disgraceful or incompetent acts are, or assign any grounds from which such motives can reasonably be inferred, his allegations are allegations of fact and not comments …." 62 As Giles JA pointed out in John Fairfax Publications Pty Ltd v O'Shane (at [36]), these common law principles must be adapted to the defence of comment under the Defamation Act which is directed to the imputation rather than to the words of the matter complained of. His Honour referred to New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340 where, at 345 - 346, Priestley JA (with whom Sheppard AJA agreed) summarised the position as follows: "(a) whether or not an imputation pleaded by a plaintiff as a cause of action is an expression of opinion, or conclusion or a statement of fact or some mixture of any two or all three of these will sometimes be impossible to decide simply from the terms of the imputation itself; (b) in the kind of case referred to in (a), where the jury finds the alleged imputation was made by the published matter complained of and was defamatory of the plaintiff and the defendant is relying on the defence of comment, then it will be for the defendant to show, amongst the other requirements of that defence, that the defamatory imputation was a comment and not a statement of fact; (c) to do that the defendant is entitled to require the tribunal of fact to consider the published matter which made the defamatory imputation in order to determine whether that matter made an imputation which was comment (in which case the defendant will have succeeded in establishing one of the matters necessary to the defence) or was not (in which case the defence will have failed). (at 346) … the defence of comment must be pleaded as an answer to the cause of action consisting of the imputation the plaintiff relies on and [that] in considering whether the imputation made by the matter was made as a comment or a statement of fact, the matter from which the imputation is derived may be taken into account." 63 Accordingly, as Giles JA pointed out (O'Shane, at [40]), the fact that "the defence of comment is directed to the imputation does not mean that, in characterising the imputation, there is no reference to the published matter carrying the imputation". It would, as his Honour said, be artificial to set aside the matter complained of. 64 The matter complained of, as I have earlier indicated, was the cover sheet of a facsimile to which the appellant attached a number of documents. The appellant seeks only to rely upon the last in order of those documents, exhibit C, as constituting the factual basis of imputation (b). 65 I accept the appellant's submission that if the primary judge was to be understood as having tested the question whether imputation (b) was a statement of fact or comment by reference to circumstances not said to constitute, whether expressly or impliedly, the facts upon which the imputation was said to be based, then his Honour misdirected himself. Mr Littlemore acknowledged that this part of his Honour's judgment could have been "more happily constructed". 66 Properly understood, however, it is apparent that his Honour applied the correct test to determine whether the appellant had made a comment upon facts sufficiently stated. Thus, his Honour acknowledged the appellant's submission that his statement had been based on exhibit C and identified the statement in exhibit C the appellant claimed was false to the respondent's knowledge (that some Hornsby Councillors planned to make "Dural Village an industrial estate and fast-food centre"). He concluded, in substance, that taking into account the matter complained of, exhibit C was not sufficiently identified as the factual basis for imputation (b), and that it was therefore to be understood as a statement of fact not comment. 67 In my view, the primary judge did not err in this respect. The appellant's argument that imputation (b) was a comment depended on its factual basis having been expressly or impliedly stated in the matter complained of. It was open to the primary judge to conclude that exhibit C was not identified as the factual basis of the assertion that the respondent had acted dishonestly in relation to Dural Village in generating false information about it. Without a factual substratum for that assertion, it was properly treated as an allegation of fact, not comment. 68 Ground of appeal (c) must be rejected. It is unnecessary, therefore, to consider ground (f). Qualified privilege: the primary judge 69 The primary judge noted the appellant's evidence that before he wrote the matter complained of: "[H]e had a curiosity of the legalities of what was occurring and 'the way things were going' … He considered that a major injustice was occurring and determined to discredit the plaintiff. The injustice which he considered was occurring was the false information about the Dural Village becoming an industrial estate and fast food centre." 70 The primary judge rejected the qualified privilege defence. In relation to imputation (b) he said [judgment 15 – 16]: "I do not consider there was a duty on the defendant to convey to Councillors the plaintiff's view as to what could occur if there was any change in the uses of the Dural Village. The Councillors would have been aware of the expressed views of the plaintiff at the workshop meeting and subsequent meetings. I consider that the appellant considered that the Councillors might find exhibit A interesting. But that is insufficient to constitute an 'interest' for the purposes of the defence of qualified privilege at common law. On the evidence of the defendant, he was simply curious as to the legalities and there is nothing in the evidence to show that the 'interest' relied upon as the foundation of the claimed privilege was definite ." (emphasis added) 71 In relation to imputation (c) his Honour said: "The defendant claimed that the plaintiff required 'official investigation' in relation to 'corruption in Local Government'. In particular he, the defendant, was concerned as to how the plaintiff's development company came to be awarded the building contract in relation to the Galston Community Hall. The defendant was also concerned as to the plaintiff's relationship with a Councillor Orr, and whether that relationship was instrumental in the plaintiff securing the contract for the Galston Community Hall. In a statement in answer to interrogatories, exhibit J, the defendant stated that he had conversed with numerous officials preceding 23 October 2000. He stated that he had information from a Mr Brian Carey, the Mayor Mr Muirhead, people he spoke to at Galston Community Hall, public records of donations in NSW, his observations of the plaintiff and the plaintiff's associates at various political meetings concerning Hornsby Shire matters, and in particular the Dural Village. In the interrogatories the defendant also states that the plaintiff was a member of a local political group comprising himself and Messrs Orr and Carey. He also states that he learnt the plaintiff had received the contract to renovate the Galston Community Hall, and that he had contributed money to Councillor Cadmartis' election fund. Again in relation to this imputation, I consider that 'curiosity' as to the legalities involved in the awarding of any building contract to the plaintiff's development company could not be said to amount to a duty to suggest that there be an enquiry. The defendant stated [transcript 183, lines 38 – 40] that he was only suggesting a possible enquiry, but there was no obligation on the Council to have such an enquiry . The defendant made no enquiry if [sic, this should be "of'] Councillor Orr as to whether or not he voted on any Council resolution to award the building contract in regard to the Galston Community Hall to Mr Bristow's development company. Any information he received from people as referred to in exhibit J, would have to amount to 'gossip'. Again, whilst the defamatory statement in exhibit A might be 'interesting' it is insufficient to constitute an 'interest' for the purpose of the defence of qualified privilege at common law." (emphasis added) 72 The appellant contends that the primary judge erred in applying the test of what constitutes qualified privilege. He complains about the entirety of the passage I have set out concerning imputation (b) and the underlined section of the passage I have extracted concerning imputation (c). Qualified privilege: consideration 73 The defence of qualified privilege protects the publication of a statement notwithstanding that it is false in fact, and injures the reputation of another, provided the statement is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. If the statement is fairly warranted by any reasonable occasion or exigency, and the statement is honestly made, it is protected for the common convenience and welfare of society: Toogood v Spyring (1834) 1 Cr M & R 181 at 193; [149 ER 1044 at 1049-1050], applied by Gleeson CJ, Hayne and Heydon JJ in Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 78 ALJR 346 at [9]; see also McHugh J at [53]; Gummow J at [136]; Kirby J at [187]; Callinan J at [231]. 74 The expression "welfare of society" used in Toogood v Spyring means that the interests of society in general require that a communication made under the particular circumstances to the particular person should be protected: Bashford at [54] (see also Gummow J at [137]) 75 The duty or interest must exist in fact. A mere belief in its existence is not sufficient: Adam v Ward [1917] AC 309 at 334; see also Bonette v Woolworths Ltd (1937) 37 SR (NSW) 142 at 148 per Jordan CJ; Bashford at [71] per McHugh J. As Lane J said in Beach v Freeson [1972] 1 QB 14 at 25, "it seems contrary to principle that the existence of qualified privilege should depend on the mistaken belief of the defendant". 76 Furthermore, interest for the purpose of the law of qualified privilege means "more than an interest in the information 'as a matter of gossip or curiosity'…[it] must be a social, moral or economic interest that is sufficiently tangible for the public interest to require its protection": Bashford at [71] per McHugh J. 77 Brennan J explained how the "interest" established must transcend curiosity in Stephens v Western Australian Newspapers Limited [1984] HCA 45; (1984) 182 CLR 211 at 242, saying: "When it is said that a publication is privileged because it is made in the public interest, 'interest' is not to be equated with curiosity. It is used in a non-technical sense to mean that the publication is made for the welfare of society. As Bedford's case illustrates, a publication defamatory of the plaintiff is not made on an occasion of qualified privilege merely because the person or persons to whom it is made — in that case, the readers of the newspaper — were interested in the subject matter." 78 In order to determine whether a publication was made on an occasion of qualified privilege, the court examines all the circumstances of the case. These include the nature of the defamatory communication, the status or position of the publisher, the number of recipients and the nature of any interest they had in receiving it, and the time, place and manner of, and reason for, the publication. After considering these matters, the court makes a judgment as to whether the publisher had a duty or interest that justified making the publication and whether the recipients, or some of them, had a duty to receive or interest in receiving it: Bashford per McHugh J at [54]; see also Gleeson CJ, Hayne and Heydon JJ at [10]; Gummow J at [139]; Callinan J at [235]. 79 In order to establish a publication was made on an occasion of qualified privilege, the publisher must call evidence which establishes "that both the givers and the receivers of the defamatory information had a special and reciprocal interest in its subject matter, of such a kind that it was desirable as a matter of public policy, in the general interests of the whole community of New South Wales, that it should be made with impunity, notwithstanding that it was defamatory of a third party": Andreyevich v Kosovich (1947) 47 SR (NSW) 357 at 363 per Jordan CJ; applied in Bashford by McHugh J at [55]; by Gummow J at [140]. 80 The appellant submitted that the matter complained of was published on an occasion of qualified privilege because there was the relevant reciprocity of duty or interest between him and the Council about matters relevant to local government issues. As I understand Mr Campbell's submission, an occasion of qualified privilege arose for two reasons. First, because of the Council's pivotal role in the rezoning of Dural Village. Secondly, because the appellant's statement, that investigations were required into the respondent's connection with the Council, should be treated as analogous to reporting a suspected crime. 81 In relation to the first matter, Mr Campbell submitted that the appellant had a duty or interest to communicate to the Council that the respondent was "whiteanting the council meeting" so that the Council would realise that those attending the meeting may be misinformed about the nature of the proposed rezoning. 82 Mr Campbell argued that the appellant was concerned that the integrity of the Council meeting was being eroded by people being encouraged to attend the meeting "up in arms against the Council and the landowners". He also pointed out that the appellant had discovered that the meeting was not to be chaired by an independent person but, rather, by a representative of an organisation called Nexus which was associated in some unexplained way with the respondent. Accordingly, he determined that that person was inappropriate to chair the meeting. The appellant wrote the matter complained of, he submitted, to draw to the Council's attention the fact that the meeting would not be attended by "dispassionate interested people". 83 In relation to the inclusion of the statement concerning the necessity for an investigation into the respondent's connection with the Council, Mr Campbell drew attention to the following passage in the appellant's cross-examination: "LITTLEMORE: Q. Surely, Mr Moit, you can see that there is no logic in an answer that says 'My motive was to have the Chairman of the meeting changed. Therefore, I wrote a letter accusing Andrew Bristow of criminality'. Now, how could that do it? A. It was just to expose the whole situation and that was the frame of mind that I was in and that was to expose the whole situation that I felt there was a lot of activity which was undue." 84 The following exchange is also germane: "Q. … You tell us on your oath that the only reason you wrote exhibit A was because you wanted to change the Chairman of the meeting on 26 October at St Jude's Hall. Is that correct? A. Yes, and to expose the situation. Q. What situation. A. Well, like, that's how I felt. I had found that Nexus Environmental was going to be chairing that meeting that afternoon … we had asked for an independent facilitator and then I found that Nexus Environmental had represented Andrew Bristow in the past or some issue which actually really stirred up, yeh, my emotion and, yeh, how I felt." 85 Mr Campbell also submitted that what was concerning the appellant was the relationship between the respondent and one of the Councillors and that he had found out that the respondent was a major source of political campaign funding to one of the Councillors. He submitted that the appellant's question in the matter complained of about the relationship of the respondent with the Council flowed from the three hats the respondent was wearing as, respectively, President of the Ratepayers Association, a major campaign funder to a Councillor and a person with a contract with the Council. He submitted that a ratepayer was entitled to query whether there was an untoward relationship between a contractor and a council. He submitted that the appellant had a duty or interest of a social or moral nature to raise questions concerning that relationship. 86 Mr Littlemore submitted that the primary judge was correct in concluding that the appellant had failed to demonstrate the essential duty/interest relationship. He submitted that the primary judge had found that that relationship did not exist because the appellant's admitted purpose was to discredit the respondent in order to remove him, or a person perceived as an associate as Chairman of the public meeting. Accordingly, the matter complained of had been published as part of an improperly motivated attack on the respondent's character, not as an exercise of the appellant, as a resident, "complaining about a local government matter". He submitted that the primary judge was correct in concluding that the mere fact that the appellant's attack on the respondent may have been "interesting" to the Councillors, did not mean that it satisfied the requirement of definite or tangible interest essential to an occasion of qualified privilege. 87 Mr Littlemore submitted that even though the primary judge had concluded, on the issue of malice, that the appellant honestly believed that the respondent was acting dishonestly by circulating false information as to the effect of any proposed changes in the use of Dural Village, that did not elevate the publication of the matter complained of to an occasion of qualified privilege. He submitted that the occasion of qualified privilege had to be established in fact and that the appellant's belief in its existence was not sufficient. 88 Insofar as imputation (c) was concerned, Mr Littlemore submitted that the primary judge correctly found that no occasion of qualified privilege had been established in circumstances where the appellant was calling for an inquiry without first making any, or any adequate, inquiry of his own about Council building contracts. 89 Although Mr Campbell at first submitted that the primary judge had erred in considering the qualified privilege defence in relation to each he appeared to accept in argument, that there could, in fact, have been two occasions of qualified privilege; a communication to the Council on the issue of land rezoning and a communication with the Council relevant to its responsibility to investigate any untoward dealings in connection with its affairs. 90 In my view the appellant has not established that the primary judge erred in concluding that the matter complained of was not published on an occasion of qualified privilege. In relation to imputation (b), it is clear that the primary judge concluded that the appellant did not publish the matter complained of because of either a duty or interest would found an occasion of qualified privilege but, rather, because of a "curiosity of the legalities of what was occurring and the way things were going". As I have already explained, an "interest" founded on "curiosity" will not suffice to establish an occasion of qualified privilege. 91 Insofar as imputation (c) is concerned, it might be accepted that a communication concerning a suspected crime would, in most cases, be on an occasion of qualified privilege. However, even in that context the question whether there was such an occasion in fact, will turn on whether the statement was made "bona fide in the prosecution of an inquiry into a suspected crime" (Padmore v Lawrence (1840) 11 Ad & El 380; (1840) 113 ER 460 at 461 per Coleridge J) or whether the publisher honestly suspected illegality or criminality (Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632 at 661 per Evatt J, with whom Rich and McTiernan JJ agreed). 92 His Honour's conclusion in relation to imputation (c) rested on the proposition that the appellant had not established as a matter of fact that a duty or interest sufficient to found a finding of an occasion of qualified privilege had been established for two reasons. First, he found the appellant had a mere "curiosity" as to the legalities involved in the respondent receiving building work from the Council. Secondly he concluded that the appellant had no bona fide basis upon which to call for an investigation but, rather, to the extent he had received any information concerning the respondent's contractual relationship with the Council, founded his communication on "gossip". These were factual findings which were clearly open on the evidence. 93 Ground of appeal (h) should be rejected. 94 Ground of appeal (g) complained that the primary judge erred in applying subjective considerations to the determination of whether the matter complained of was published on an occasion of qualified privilege. Mr Campbell did not address this ground in either his written or oral submissions. It should be rejected. Unlikelihood of harm: s 13 Defamation Act 95 The primary judge rejected the appellant's submission that the circumstances of the publication of the matter complained of were such that the respondent was not likely to suffer harm. He said: "I have found that imputation (b) is a statement of fact and not a comment. It was made in circumstances where the appellant desired to discredit the respondent for the purpose of not having the respondent chair the meeting on 26 October. That purpose was not brought to the mind of the Councillors. To achieve that purpose the appellant made a serious allegation of dishonesty on the part of the respondent. The circumstances involved in imputation (b) were that the appellant was simply suggesting that an enquiry be held. He was suggesting such possible enquiry on the basis of information provided to him by people involved in local affairs and without checking as to the basis upon which the Council awarded any building contract, particularly the contract as to the Galston Community Hall to the respondent's development company. I do not consider that the circumstances of the publication of exhibit A were such that the respondent was not likely to suffer harm." Unlikelihood of harm: consideration 96 The appellant complained that the primary judge dismissed its defence that the circumstances of the publication of the matter complained of was such that the appellant was unlikely to suffer harm but did not give reasons other than to say he did not accept the appellant's submissions in that regard. That is not correct. I have already set out the primary judge's ruling on this issue. His Honour clearly thought that the serious nature of the imputations was such that the defence was not attracted. 97 In his written submissions, Mr Campbell submitted that this was a limited publication to each of the Councillors on the Council and that there was no evidence that anybody who received the publication in fact thought the less of the respondent. 98 In Jones v Sutton [2004] NSWCA 439; (2004) 61 NSWLR 614 Beazley JA (with whom Santow JA and Stein AJA agreed) held (at [11] – [24]) that s 13 is not concerned with whether harm was in fact occasioned and (at [45], [49]) that the phrase "not likely to cause harm" in s 13 refers to "the absence of a real chance" or the "absence of real possibility of harm". 99 Jones v Sutton was delivered after the appellant had formulated his grounds of appeal and his written submissions. In oral argument Mr Campbell accepted that he could only rely upon the limited nature of the circulation of the matter complained of and suggested that it would be understood, in the circumstances of its publication, as being part of an ongoing dispute. 100 In my view, the primary judge did not err in rejecting the appellant's s 13 defence. The appellant bore the onus of establishing the s 13 defence. The limited circulation of a publication is clearly a relevant factor to the s 13 defence. However, as the primary judge found, in circumstances of the publication of a serious imputation of dishonesty concerning the respondent to the Councillors it could not be said there was no "real chance" or "real possibility" of the respondent suffering harm. 101 Ground of appeal (e) should be rejected. 102 Ground of appeal (d) complained that the primary judge took irrelevant matters into consideration in his determination as to the availability of the defence of unlikelihood of harm. Mr Campbell did not address this ground in either his written or oral submissions. It should be rejected. Damages: the primary judge 103 The primary judge rejected the appellant's submission that the respondent had not suffered any damage. He found that the respondent had been shunned and avoided. He accepted that the respondent's reputation for honesty had been affected. He concluded that the appropriate award for damages in relation to imputation (b) was $40,000 and in respect of imputation (c), which he considered to be "a less serious imputation", $15,000. He said he had taken the factors in s 46A of the Defamation Act into account in making his award. Damages: consideration 104 In his written submissions Mr Campbell submitted that the damages awarded were excessive because "the publication was of extremely limited circulation with evidence that it was published to nobody other than a handful of Councillors". He relied upon his submissions concerning the s 13 defence. 105 In oral argument the Court drew Mr Campbell's attention to its obligation in considering the measure of the respondent's damages it was required to have regard to s 46A of the Defamation Act which provides: "46A Factors relevant in damages assessment (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. (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)." 106 In written submissions filed, with leave, after the hearing of the appeal to address the issue of s 46A of the Defamation Act, Mr Campbell argued that s 46A(2), by directing attention to the "range of damages", must include both the upper cap and the lower cap beneath which no damages are awarded at all. Accordingly, he drew the Court's attention to the range of awards between the upper and lower caps under the relevant legislation. Having regard to those awards, Mr Campbell submitted that the damages awarded to the respondent were excessive because they were commensurate with the personal injury victim suffering injuries equal to approximately 28% of a worst possible case whether limited by reference to motor accident legislation or the Civil Liability Act. 107 Mr Littlemore did not take advantage of the leave granted to him to reply to Mr Campbell's submissions concerning s 46A. In his original submissions he drew attention to transcript references which he submitted were evidence that the respondent had suffered profound hurt to his feelings as a result of the publication of the imputations. He also relied upon the fact that every Councillor had received the publication and Council staff were involved in its receipt and distribution so that the "ordinary inference of the 'grapevine effect' in an organisation such as a shire council is inescapable". 108 Accordingly, he submitted that having regard to the extent of distribution, the grapevine effect and the respondent's subjective hurt, the award of damages for the two imputations was "very much middle of the road" and involved no error of the part of the trial judge. 109 The appellant's complaint that the damages awarded were excessive invites appellate review of an exercise of discretion: Rogers v Nationwide News Pty Limited [2003] HCA 52; 216 CLR 327 at [62] per Hayne J. 110 The appellant has not identified any specific error from which he says the primary judge's assessment of damages suffered. He does not complain, nor properly could he, about the primary judge's findings that the respondent had been shunned and avoided and his reputation for honesty affected. He does not complain that the primary judge failed to consider relevant matters. Nor does he complain about the brevity of the primary judge's reasons on the damages issue. Accordingly, his complaint is confined to the proposition that the damages the primary judge awarded "exceeded the maximum amount which could reasonably have been awarded or was so large that no Court could have awarded them" without them having been affected by latent error: see Rogers v Nationwide News Pty Limited, per Heydon J at [384]. 111 In Rogers v Nationwide News Pty Limited the High Court considered a complaint that the Court of Appeal had erred in setting aside as excessive the primary judge's assessment of damages in a defamation case. The following propositions emerge from the judgment of Hayne J (with whom Gleeson CJ and Gummow J agreed on damages). 112 First, Hayne J emphasised (at [69], [73]) that the damages awarded for defamation should reflect the effect the particular defamation had on the individual plaintiff. 113 Secondly, he pointed out (at [72]) that there is room for comparison between awards for defamation and awards in personal injury cases as "[i]f an award of damages for defamation is greater than the amount that would be allowed for the non-economic consequences of the most serious physical injuries with permanently disabling consequences, it may be evident that the amount awarded for defamation is manifestly excessive". 114 Thirdly, he observed (at [74]) that s 46A of the Defamation Act draws attention to the fact that "damages awarded for defamation must take their proper place in the administration of justice…[and] must stand in a proper relationship with awards for the non-economic consequences of personal injury". He accepted (at [74]), however, that: "The relationship which s 46A(2) identifies is not, however, some precise or mathematical relationship between particular cases of defamation and personal injury or between particular classes of such cases. To do that would compare the incomparable." 115 He concluded (at [74] – [76]) that s 46A(2) had two consequences relevant to that case. The first was to invite attention "to the nature of the injury done by defamation compared with the consequences of physical injury". The second was that the reference to the general range of damages in s 46A(2) identified "a presumptive outer limit to awards for defamation". Insofar as s 46A(2) required the court 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)", his Honour concluded (at [76]) that "[t]reating cases where the damages allowable are capped by statute as included within the 'general range' to be considered shows that those statutory limits imposed in cases of motor or workplace accident are not to be taken as being indirectly imposed as limits on the amount to be allowed in defamation". 116 Callinan and Heydon JJ were of the view (see [134], [187]) that the case was not an appropriate vehicle for any definitive analysis of s 46A(2). Heydon J did, however, comment (at [190]) that if the purpose of s 46A(2) was "the need to maintain an appropriate relationship between the scale of values in the two classes of case", then "it must be remembered that the statutory capping of damages is not an ethically-driven or value-infused exercise". I understand his Honour's comment to mean that the court should recognise, when undertaking the s 46A(2) exercise, that statutorily capped damages do not reflect the factors relevant to an assessment of general damages at common law for either personal injury of defamation. 117 Recently in John Fairfax Publications Pty Ltd v O'Shane (No 2) [2005] NSWCA 291 the Court re-assessed damages in a defamation case. Giles JA (with whom Ipp JA agreed) referred (at [4]) to s 46 and 46A of the Defamation Act, but did not elaborate on how he had applied those provisions in his assessment of damages. He observed (at [11]) that he did not think the amount he considered appropriate was "out of step with the general range of damages for non-economic loss in the State". 118 Young CJ in Eq referred to Callinan J's statement in Rogers v Nationwide News Pty Limited (at [136]) that: "Neither s 46A in terms, nor the second reading speech suggests that equivalence is possible, or that in every case of defamation, awards for other injuries provide a ceiling above which an award for defamation should not go." and accepted a submission of counsel for the plaintiff that s 46A(2) did not prevent the court from making an award in a defamation case which was larger than an award in a personal injury case. 119 Young CJ in Eq noted (at [38] – [39]) the Court was required to apply s 46A "no matter what the difficulties". Having observed that in the ten years s 46A had been in force, it did "not appear to have been considered a substantial brake on large awards of damages", his Honour referred to three defamations cases decided during the s 46A regime in which large awards had been made (see [41], [60]) and concluded they gave "some guidance as to the range". Like Giles JA, his Honour did not expressly examine the general range of damages for non-economic loss in personal injury awards in deciding the amount he considered should be awarded. 120 In John Fairfax Publications Pty Ltd v O'Shane (No 2) (at [3]), Giles JA referred with approval to Mahoney ACJ's statement in Crampton v Nugawela (1996) 41 NSWLR 176 at 195 that "the law should place a high value upon reputation, and in particular upon the reputation of those whose work and life depend upon their honesty, integrity and judgment". He observed that "[t]he damages must also be a sufficient amount to make clear the vindication of [the plaintiff's] reputation" referring to Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 at 61 and Crampton v Nugawela at 195. 121 In Broome v Cassell and Co [1972] AC at 1071, Lord Hailsham of St Marylebone LC said that the damages awarded for defamation must be such that "in case the libel, driven underground, emerges from its lurking place at some future date, [the plaintiff] must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge". Mahoney ACJ referred to that statement with approval in Crampton v Nugawela (at 193), a case decided after s 46A came into force, and held (at 194 – 195) that "[t]he award must be sufficient to ensure that, the defamation having spread along the 'grapevine'… and being apt to emerge 'from its lurking place at some future date', it was 'sufficient to convince a bystander of the baselessness of the charge' ". 122 In my view Mr Campbell's submissions failed to give full weight to the statutory language of s 46A. Section 46A(1) requires the Court to ensure there is an "appropriate and rational relationship between the relevant harm and the amount of damages awarded". "Relevant harm" as defined in s 46A(1)(a) means the harm suffered by the person defamed. As a part of that exercise s 46A(2) also requires the Court to take into consideration the general range of damages for non-economic loss in personal injury awards in the State as I have sought to explain. 123 However, as Rogers v Nationwide News Pty Limited makes plain, the statutory limits imposed by legislation such as the Motor Accidents Compensation Act or the Civil Liability Act neither impose a limit on the amount to be allowed (Hayne J) and may be of limited utility, albeit that they are taken into consideration (Heydon J). 124 Another limitation on approaching the exercise in the way Mr Campbell submitted, is that he failed to take into account that the award of $55,000 to the respondent was divided, properly so, by the primary judge into $40,000 in relation to imputation (b) (dishonesty) and $15,000 in relation to imputation (c) (the necessity for an investigation). That approach accorded with the fact that each imputation was a separate cause of action: s 9, Defamation Act. 125 As John Fairfax Publications Pty Limited v O'Shane demonstrates, the s 46A(2) exercise does not require the recitation of a string of awards of damages in personal injury cases and a demonstration of precisely how they were taken into consideration in assessing the damages in the instant case. In Rogers v Nationwide News Pty Limited the primary judge had not been benefited with any specific submissions about s 46A and, after pointing out the difficulties judicial officers had "in finding any logical connection between general damages awarded in defamation cases with damages for non-economic loss awarded in personal injury cases whether those damages are capped or not according to statute" took into account that such awards could range from "very low in those minor cases where there are no thresholds operating by statute up to about $500,000 where there are no statutory caps and the injury is extremely serious such as in the case of quadriplegia" (see Heydon J at [184]). Her Honour's approach was not criticised in the High Court. 126 In my view, even if one took into consideration the maximum amounts which might be awarded for non-economic loss damages under either the Motor Accidents or Civil Liability legislation, the appellant has not demonstrated that his Honour's exercise of discretion in the award of damages miscarried. The imputations struck at the heart of the respondent's reputation. It was appropriate that he be awarded a sufficient amount to make clear his reputation had been vindicated. 127 Ground of appeal (j) should be rejected. Conclusion 128 Ground of appeal (i) does not, therefore, arise. 129 The appeal should be dismissed with costs. 130 CAMPBELL AJA: I agree with McColl JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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