Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bristow v Adams [2012] NSWCA 166 Hearing dates: 22 May 2012 Decision date: 22 May 2012 Before: Beazley JA at 1; Basten JA at 10; Tobias AJA at 45 Decision: 1. Refuse leave for the respondent to rely on its notice of contention filed on 1 December 2011. 2. Appeal allowed. 3. Set aside the verdict and judgment for the defendant made by the trial judge. 4. Order that there be a verdict and judgment for the plaintiff in the sum of $10,000. 5. There be no order for the costs of the appeal with the result that each party pay his or her own costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL - civil - grant of leave to appeal - overwhelming weight of authority supports appellant's position in relation to a point of fundamental principle - costs of appeal will exceed the amount in dispute - whether appropriate case for grant of leave to appeal DAMAGES - assessment - whether trial judge should consider all arguments raised despite dismissing a claim - when trial judge should assess damages after finding that no loss was suffered PROCEDURE - civil - abuse of process - application at hearing of appeal that claim should have been dismissed as abuse of process - whether open to defendant below to make application for dismissal of proceedings on appeal - discussion of Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75; [2005] QB 946 PROCEDURE - civil - notice of contention - whether leave should be granted to rely on notice of contention filed out of time - novel point raised on appeal - considerations relevant to grant or refusal of leave TORTS - defamation - presumption of harm arising from proof of publication - whether presumption exists in Australian law - discussion of Dow Jones & Co Inc v Gutnick [2002] HCA 56; 210 CLR 575; Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75; [2005] QB 946; Mirror Newspapers Ltd v Fitzpatrick (1984) 1 NSWLR 643 Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58 Civil Procedure Rules 1998, r 1.1 Defamation Act 2005 (NSW), s 33 European Convention on Human Rights, Article 6 Human Rights Act 1998 (UK) Cases Cited: Berezovsky v Michaels [2000] UKHL 25; [2000] 1 WLR 1004 Cassell & Co Ltd v Broome [1972] AC 1027 Dow Jones & Co v Gutnick [2002] HCA 56; 210 CLR 575 Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75; [2005] QB 946 Kuru v New South Wales [2008] HCA 26; 236 CLR 1 McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 Mirror Newspaper Limited v Fitzpatrick (1984) 1 NSWLR 643 Texts Cited: Tobin and Sexton, Australian Defamation Law and Practice, at [21,005] Category: Principal judgment Parties: Alan Bristow (Appellant) Tracy Adams (Respondent) Representation: Counsel: K P Smark SC/S T Chrysanthou (Appellant) R K M Rasmussen (Respondent) Solicitors: Kalantzis Lawyers (Appellant) Thomas Julius Goudkamp (Respondent) File Number(s): CA 2009/337286 Decision under appeal Jurisdiction: 9101 Citation: Bristow v Adams [2011] NSWDC 11 Date of Decision: 2011-03-24 00:00:00 Before: Levy DCJ File Number(s): DC 2009/337286 Judgment 1BEAZLEY JA: This was an appeal from an order of Levy DCJ dismissing the appellant's defamation action brought against the respondent. At the conclusion of the oral argument on the appeal in this matter, the respondent accepted that her support of the trial judge's decision and, correspondingly, her opposition to the appeal, could not be sustained. It was therefore possible for the Court at that time to make orders disposing of the appeal. The Court reserved its reasons in the matter. 2I have now had the benefit of reading in draft the reasons of Basten JA. Given his Honour's consideration of the case law, I am able to express my own reasons in short form. 3The respondent was an accounts manager and the appellant her supervisor. The defamation of which the appellant complained arose out of an email communication written by the respondent to the human resources manager of the company, advising of her intended resignation. The email was also disseminated throughout other offices of the company. 4Comments made in the email communication were clearly defamatory of the appellant and were so found by the trial judge. However, his Honour entered a verdict for the respondent, as he considered the appellant had not proved that he had suffered damage to his reputation. In reaching that conclusion, the trial judge accepted the respondent's submission that the decision of the High Court in Dow Jones & Co v Gutnick [2002] HCA 56; 210 CLR 575 had, in effect, abolished the presumption of damage to a plaintiff's reputation when defamatory matter was published of and respecting the plaintiff. In other words, proof of actual damage was a necessary ingredient of the cause of action. 5Notwithstanding that his Honour entered a verdict for the respondent, he provisionally assessed the damages he considered would have been an appropriate award, should he be wrong that it was necessary for the appellant to prove actual damage to his reputation. Although there was some ambiguity in his Honour's reasons as to the amount of that provisional assessment, the parties accepted that the sum to be awarded if the appeal was successful was $10,000. In my opinion, the acceptance of that amount reflects a correct reading of his Honour's reasons on the damages award. 6The matter came before this Court pursuant to leave previously granted. 7In my opinion, leave was correctly granted in the matter and as the Court has now ordered, the appeal should be allowed. The acceptance by the trial judge of the submission that Dow Jones v Gutnick was authority for the proposition asserted, namely, that the presumption of damage in defamation had been abolished, was fundamentally incorrect, as the reasons of Basten JA, at [23]-[26], explain. Although judgments of the District Court have no precedent value, there is always a danger, as a matter of comity, that a judgment in the Court on a particular issue will be followed in later judgments. It was appropriate, therefore, that the trial judge's determination to the contrary be corrected. 8There are also occasions where an error in a judgment is so fundamental that, in the interests of justice between the parties, it ought to be corrected, notwithstanding that the monetary value of the matter is not high. There may be other questions of significance in a particular case which warrant the correction of an erroneous first instance determination. Defamation provides an example where vindication of harm to reputation and hurt feelings may be effectively achieved by a favourable verdict, notwithstanding that the monetary value of the claim is not high. In my opinion, this was such a case. 9The respondent also filed a notice of contention in which she asserted that the decision in the court below should have been dismissed as an abuse of process. I agree with Basten JA that this argument was misconceived and that leave to rely upon the notice of contention filed out of time should therefore be refused. 10BASTEN JA: The appellant, Mr Alan Bristow, was the supervisor of the respondent, Ms Tracy Adams, in her former employment. On 10 June 2009 Ms Adams sent an email to Mr Bristow submitting her resignation as accounts manager at the Muswellbrook branch of the company. The email contained a number of criticisms of Mr Bristow's character and conduct, expressed in uncompromising terms. The email was disseminated to other offices of the company and specifically to the human resources manager. 11Mr Bristow took proceedings for defamation in the District Court. A number of imputations were identified and found to be defamatory of him. Nevertheless, the trial judge, Levy DCJ, dismissed the claim, giving judgment for the defendant. He did so because the plaintiff had not proven that he suffered "any relevant harm to his reputation": Bristow v Adams [2011] NSWDC 11 at [74]. 12The plaintiff appealed, pursuant to a grant of leave, on the basis that the trial judge erred in requiring the plaintiff to prove damage and in failing to accept the presumption that the plaintiff had suffered damage by the publication of defamatory material. 13There were a number of curious aspects to the judgment. In part those appear to have resulted from the trial judge studiously attending to all the arguments which were raised before him, despite his conclusion that the claim must be dismissed on the ground noted above. It is often desirable for a trial court to consider whether to take such a course, by analogy with the practice referred to in Kuru v New South Wales [2008] HCA 26; 236 CLR 1 at [12] in relation to appellate courts. However, that principle properly applies to consequential factors, rather than alternative findings. Thus, where the trial judge has heard all the medical evidence, it is often helpful if a finding is made in respect of heads of damage, despite the fact that the claim is dismissed for failure to prove liability. Usually (though not always) the assessment of damages will be independent of findings made in respect of liability and the time and expense incurred by the parties in dealing with the question of damages will then not be wasted in the event that there is a successful appeal on the finding with respect to liability. However, in circumstances where the trial judge had found that no harm to reputation had occurred, it was incongruous to go on to assess the damages he would have awarded had there been an entitlement: at [116]. 14There was a further curiosity. Ms Adams relied on a defence to the publication of defamatory matter which is available "if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm": Defamation Act 2005 (NSW), s 33. Although it may be legitimate to reject such a defence and also reject the plaintiff's claim on the basis that he had failed to establish that he had sustained any harm, such conclusions, without a sufficient explanation, appear to be inconsistent. No explanation was provided. 15Both of these aspects of the judgment had relevance to the appeal. In respect of the assessment of damages, not only was the basis for the assessment unclear, but there was a degree of ambiguity as to the quantum accepted by the trial judge. His Honour concluded that an appropriate sum for "compensatory damages", would be $7,000: at [126]. He further concluded that an amount of $10,000 "would have [been] an appropriate upper limit for aggravated damages", but noted that "the plaintiff did not ardently press the claim for aggravated damages": at [127]. 16One condition of the grant of leave to appeal made on 29 September 2011 was that "if the appeal succeeds judgment can be entered for damages in accordance with the trial Judge's reasons". The uncertainty as to the relevant amount was resolved by the appellant's acceptance that a judgment in the amount of $10,000 was appropriate. The respondent did not take issue with that figure. 17In respect of the rejection of the defence under s 33, no challenge was raised to the rejection of the defence, although its relationship with the presumption as to harm relied on by the appellant would have raised an important question. Rather, a notice of contention was filed on 1 December 2011 seeking that the judgment below should be affirmed on the ground that "the whole of the cause of action should have been dismissed as an abuse of the process of the Court it having been, in the circumstances proven, an insubstantial tort with no damage to reputation". 18Despite these uncertainties, neither party sought to have the grant of leave revoked or the conditions of the grant varied. At the completion of the oral argument, the Court made the following orders: 1. Refuse leave to the respondent to rely on its notice of contention filed on 1 December 2011. 2. Allow the appeal. 3. Set aside the verdict and judgment for the defendant given by the trial judge. 4. Order that there be a verdict and judgment for the plaintiff in the sum of $10,000. 5. There be no order for the costs of the appeal with the result that each party pay his or her own costs of the appeal. 19Although the orders were not made by consent, by the end of the oral argument, there was a degree of acceptance, or at least acquiescence, on the part of the respondent that orders should be made to the effect of those set out above. The reasons for judgment may therefore be briefly stated. Need to prove damage 20The point of law which underlay the application for leave to appeal was the holding that the tort of defamation was not established in the absence of proof that the defamatory publication had done some harm to the plaintiff's reputation. The appellant submitted that "the overwhelming weight of authority" supports the conclusion that damage is presumed. If that be so, as it clearly is, there was no requirement for a grant of leave in order to establish that point of principle. As the costs of the appeal on each side will no doubt exceed the amount in dispute, this was an inappropriate case for a grant of leave. 21Nevertheless, leave having been granted, the point of principle should be briefly articulated. A standard Australian text, Tobin and Sexton, Australian Defamation Law and Practice, commences its section on "Injury to reputation" at [21,005] with the following statement from Diplock LJ in McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 at 108: "No evidence was led that the attitude shown to the plaintiff by any persons with whom he came into social or professional contact was any different as a result of the libel. I agree that the jury was perfectly entitled to infer, even without specific evidence, that some change in that attitude would be bound to occur." 22In fact, the plaintiff did give evidence of injured feelings. In Cassell & Co Ltd v Broome [1972] AC 1027 at 1125 Lord Diplock stated: "The harm caused to the plaintiff by the publication of a libel upon him often lies more in his own feelings, what he thinks other people are thinking of him, than in any actual change made manifest in their attitude towards him. A solatium for injured feelings, however innocent the publication by the defendant may have been, forms a large element in the damages." 23The argument that harm to reputation was not to be presumed was said to flow from passages in the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ in Dow Jones & Co Inc v Gutnick [2002] HCA 56; 210 CLR 575, including the following: "26 Harm to reputation is done when a defamatory publication is comprehended by the reader, the listener, or the observer. Until then, no harm is done by it. ... 44 ...[O]rdinarily, defamation is to be located at the place where the damage to reputation occurs. Ordinarily that will be where the material which is alleged to be defamatory is available in comprehensible form assuming, of course, that the person defamed has in that place a reputation which is thereby damaged". 24Reliance was also placed on the statement of Kirby J at [108], albeit summarising the arguments of the respondent: "For defamation, it was necessary that the plaintiff's reputation should be damaged in fact." 25These statements were said to be inconsistent with a presumption of harm, because otherwise "if a person downloaded and read the material complained of anywhere in the world (even if they never heard of the plaintiff) then because of the presumption the plaintiff would have suffered some damage to his reputation". However, that submission is not specific to the issue raised in Dow Jones v Gutnick, namely locating the place of the tort when the publication appears on an internet website, but is an issue which may arise in respect of any form of mass publication. It is not an issue which arose in Dow Jones v Gutnick and was certainly not an issue which arose in the present case, where the publication was to a small number of people working for the same employer. It would, as the appellant submitted, have been remarkable if a basic principle of defamation law had been overturned by a side wind in a case in which the High Court rejected the proposition that the existence of the internet required some major reconstruction of defamation law in this country. 26Further, that Kirby J had no such intention is apparent from an earlier passage, where he sought to summarise the issues identified by the respondent, in which he noted that the third essential element of the tort of defamation, was asserted to be "causing damage to the plaintiff which, in the case of proof of publication of defamatory matter, is presumed". That proposition was supported by a reference to Berezovsky v Michaels [2000] UKHL 25; [2000] 1 WLR 1004 at 1012. Kirby J cast no doubt on its correctness. 27A similar issue arose in the Court of Appeal of England and Wales in Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75; [2005] QB 946. In that case Lord Phillips of Worth Matravers MR, handing down the judgment of the Court, stated: "26 In Berezovsky v Michaels ... Lord Steyn, after reviewing the relevant authorities, stated that the distinctive features of the English law of libel included the fact that it was not necessary for the claimant to prove that publication of defamatory words had caused him damage because damage was presumed. 27 Shevill v Presse Alliance SA [1996] AC 959 and Berezovsky v Michaels ... sufficiently establish that under English law publication of a defamatory article carries with it a presumption that the person defamed by it has suffered damage, without the need to prove that anyone knowing that person has read the article. What neither case, nor Duke of Brunswick v Harmer 14 QB 185, establishes is that the presumption is irrebuttable." 28After discussing possible circumstances in which it might be considered damages should be recovered for a defamation, even though no reader was able to identify the individual in question, Lord Phillips concluded: "31 There have always been strong pragmatic reasons for proceeding on the premise that a defamatory publication will have caused the victim some damage rather than opening the door to the claimant and the defendant each marshalling witnesses to say that, respectively, they did or did not consider that the article damaged the claimant's reputation. 32 In summary, our conclusion is that, prior to 2 October 2000, the presumption that a defamatory publication caused some damage to its victim was, in practice, irrebuttable." 29The reference in Jameel to the law as it stood prior to 2 October 2000 was intended to allow separate consideration, which was then undertaken, of the effect of the commencement on that date of the Human Rights Act 1998 (UK). The subsequent discussion is not relevant for Australian purposes. Nor is it is necessary to determine whether the presumption, which arises under the general law, is irrebuttable under Australian law. The defendant did not seek to rebut it by locating the various recipients of the email and inviting them to say whether or not the publication of the email lowered the plaintiff in their estimation. It was true, as the trial judge noted, that the only evidence called from recipients of the email was from a Mrs Wallis and a Mr Schaeffer, "who did not believe the assertions that had been made against the plaintiff": at [120]. The trial judge continued: "That evidence fell well short of what was required to prove injury to reputation, as distinct from hurt feelings, for which there can be no award of damages." 30Calling two witnesses from a larger group of recipients would not rebut the presumption, assuming such a course was available. The last statement as to injury to feelings would appear to be erroneous, but in any event beside the point. 31Further recitation of authority is unnecessary: the appellant has established error on the part of the trial judge. Consistently with the terms of the grant of leave to appeal and subject to the respondent's submission as to change of position, the appellant is entitled to a judgment in the accepted amount. Change of position 32It is necessary to note one further argument presented by the respondent in resistance to the appeal. It was originally submitted that the plaintiff, at trial, had not expressly relied upon a presumption of harm. That was said to be significant in circumstances where the defendant had, at several points, complained that there was no evidence of actual harm to reputation. 33The clearest statement of the point taken by the defendant was in her written submissions below dealing with quantification of damages, not liability. In opening the defence submissions, the absence of evidence of harm was identified as a reason for not awarding more than nominal damages. Nowhere was it expressly stated that failure to prove actual harm negatived liability. 34The point cannot be fully assessed because there is no transcript of the oral argument at trial. However, given the state of the law identified above, it was a matter for the defendant to raise at trial in clear and explicit terms if it were asserted that the claim must fail in the absence of evidence, not merely of injury to feelings on the part of the plaintiff, but of actual harm to his reputation. That was not done: the point now sought to be raised is of no substance, as was effectively conceded by counsel at the hearing of the appeal. Abuse of process 35As noted above, the respondent sought to rely upon a notice of contention asserting that the decision below should be upheld on the basis that the claim should have been dismissed as an abuse of process. 36For this purpose the respondent relied upon a separate aspect of Jameel in the Court of Appeal. The claim in Jameel related to an article posted by Dow Jones on one of its web sites referring to a list of 20 financial backers of Al-Qaeda, albeit at a time when its activities were directed against the Soviet forces in Afghanistan. To identify the donors it was necessary to activate a hyperlink. The claimant's name appeared on the list. Despite its availability, Dow Jones established that only five persons had followed the hyperlink in the UK and thereby had access to the list, three of whom were associates of the claimant. Dow Jones submitted that no substantial tort had been committed in the UK, that publication had been minimal, that it had done no significant damage to the claimant's reputation and that the cost of pursuing the expensive court action was disproportionate to the claim and an abuse of process: at [52]. The proceedings were unusual in that the claimant eschewed any claim to more than nominal compensation, limiting his relief to an injunction and to "vindication" in the event of a favourable verdict from a jury. The Court of Appeal discounted the possibility of injunctive relief being granted and stayed the action, concluding that the cost of the exercise was out of proportion to the attempted vindication and the small payment of damages: at [69] and [77]. 37In granting leave to appeal, this Court required the notice of appeal to be filed and served within 7 days and any notice of contention to be filed and served within a further 21 days. The notice of appeal was in fact filed on 6 October 2011; the notice of contention was not filed until 1 December 2011. The respondent therefore required an extension of time within which to file its notice of contention or, in the language of order, leave to rely upon the contention filed out of time. This leave was refused for the following reasons. 38First, although the application in this State of the principles applied in Jameel might raise questions of general public importance in relation to defamation proceedings and the administration of justice, this was not an appropriate vehicle for their consideration. The application which succeeded in Jameel was a pre-trial application for a stay of proceedings, in order to avoid disproportionate expenditure on a trial. Neither the precedent, nor the basis for granting such relief, could support an application at the hearing of an appeal, challenging a judgment which has already been reached following a completed trial. 39Secondly, the ground relied upon was outside the nature of the contention identified in the respondent's summary of argument on the leave application, at par 43. The foreshadowed notice referred to the rejection by the trial judge of the defence of common law qualified privilege and the finding of malice against the respondent. The complete change of course revealed in the notice of contention actually filed required justification. The raising of a novel point, if known to the Court which granted leave to appeal, might have affected the conditions on which leave was granted. 40Thirdly, the agitation of a novel point for the first time on appeal will rarely be appropriate. Where leave is required, leave should usually be refused, absent a specific justification for not raising the point below. None was proffered in this case. 41Fourthly, and related to the last point, had a stay been sought prior to trial, there would have needed to be careful attention to the differences between English and Australian law. For example, although it may be that the powers conferred on a New South Wales court pursuant to ss 56-58 of the Civil Procedure Act 2005 (NSW) may be no less than the powers conferred on English courts pursuant to the Civil Procedure Rules 1998, r 1.1, the language of the provisions differs. Further, account might need to be taken of the separate defence provided by s 33, described as a defence of "triviality", and its relationship to the power to stay for abuse of process based on a disproportion between the likely costs of the trial and the possible outcome. In addition, reference was made in Jameel to the consequences of the Human Rights Act in the UK and the relevant protections contained in the European Convention on Human Rights. At least in part, the Convention militated against a stay, which would have impinged on the right to a fair and public hearing in relation to an alleged infringement of rights: Convention, Article 6. These issues were not addressed in the submissions on the appeal. Costs 42So far as the costs of the trial were concerned, the respondent noted that no order had been made by the trial judge and that the matter should be remitted to the District Court, apparently so that her application for costs could be determined. No order was made to that effect, partly because it was unnecessary and partly because it might well be futile. Certainly, this Court should give no encouragement to the suggestion that outstanding issues raised by the parties in the court below should be determined after an appeal, except to the extent that some variation of the orders made below may be necessary in the light of any orders made in this Court. 43No order was made as to the costs of the appeal because it was a condition of the grant of leave to appeal that the appellant not seek an order for costs if successful, that condition being imposed in the light of a cross-undertaking given on behalf of the respondent that she would not seek an order for costs in this Court if the appeal failed. Conclusion 44For these reasons, the Court made the orders set out at [18] above. 45TOBIAS AJA: I have the benefit of reading in draft the reasons of Basten JA for his Honour joining in the orders made by the Court on 22 May 2012 and set out at [18] above. Apart from my respectful disagreement with his Honour's statement at [20] that the present was an inappropriate case for a grant of leave to appeal (and to which I refer below), I gratefully adopt his Honour's reasons at [20] to [43] for my joining in the making of those orders. As his Honour has also commented on other aspects of the primary judge's reasons which in my view are not directly related to the reasons for the making of the orders in this matter, it is necessary that I should also refer to those parts of those comments with which I am unable to agree. 46In my view the grant of leave to appeal by Campbell JA and Handley AJA in the present case was more than justified. There was a point of fundamental principle to be determined on the appeal, namely, whether the decision of the High Court in Gutnick had, in effect, abolished the presumption of damage to a plaintiff's reputation when defamatory matter is published of him or her. The primary judge's reasoning at [72] to [76] of his judgment and, in particular, [74] revealed in this regard a fundamental error of principle that required correction by this Court. It is apparent that his Honour misunderstood both the issue and reasoning in Gutnick which was a choice of law case and which did not purport to address the issue of damages in a defamation action. 47The statement at [26] of Gutnick cited by the primary judge at [72] of his reasons was concerned with the determination of the place of publication of the matter complained of. That place was where that matter was "comprehended by the reader, listener or the observer". The High Court's reference to the necessity for comprehension was directed to the defamatory matter coming to the notice or consciousness of that reader, etc. It is only then that there is publication and "[h]arm to reputation is done". In their context, these are words of presumption. 48At [74] of his reasons the primary judge turned the passage at [26] of Gutnick on its head. His Honour incorrectly understood it to be a requirement of liability that there be evidence that actual harm was sustained by the plaintiff to his or her reputation in the sense that there was evidence from a person to whom the matter complained of has been "published" stating that he or she "comprehended" that it harmed the plaintiff's reputation in their eyes. Gutnick established no such proposition. 49It is noteworthy that at [76] of his reasons, the primary judge accepted a submission recorded by him at [75] based on a passage from the judgment of Samuels JA in Mirror Newspaper Limited v Fitzpatrick (1984) 1 NSWLR 643 at 656. There, his Honour was dealing with the issue of identification of the person defamed which did not arise in the present case. However, if the primary judge had been referred to page 655 of Fitzpatrick he would have noted Samuel JA's recognition of the presumption of harm where he said: "It seems to me that it must always be open to a plaintiff to lead evidence to establish specifically, that is in addition to the benefits of any presumption which the law provides in this respect, the damage to reputation and the personal hurt suffered as a result of the libel" [Emphasis added] This is clearly a correct statement of the law and remains so unaffected by anything said in Gutnick. 50For the foregoing reasons in my opinion the misunderstanding of the primary judge of the passage from Gutnick on which he relied revealed an error of principle which more than justified the grant of leave to appeal in the present case. 51Since writing the above I have had the benefit of reading in draft the reasons of Beazley JA on the present issue. I respectfully adopt what her Honour has said at [7] and [8] with respect to the appropriateness of leave to appeal having been granted in this case. 52Apart from the foregoing there are two aspects of Basten JA's introductory paragraphs of his reasons with which I would respectfully take issue. At [13] and [14] his Honour referred to aspects of the primary judge's approach to the issues before him which he described as "curious". The first was that as the primary judge had found that no (actual) harm to reputation had occurred (that is, had been proved), it was incongruous for him to have proceeded to assess the damages he would have awarded had the appellant been entitled thereto. With respect, I think that this criticism is unwarranted. 53It seems to me that the primary judge was assessing damages on the basis that if he was wrong in finding that an essential ingredient of the tort of defamation had not been established as no actual harm to reputation had been proved by the appellant, then if liability was established notwithstanding the lack of actual harm, then the damages to which the appellant was entitled for hurt feelings should be those which he assessed. I see nothing incongruous in that approach. 54Nor with respect do I consider that there is any necessary inconsistency between the primary judge rejecting the s 33 defence on the one hand and rejecting the appellant's claim on the basis that he had failed to establish that he had sustained any harm to his reputation on the other. Section 33 is concerned with the circumstances of publication being such as to render it unlikely that the plaintiff would sustain harm. Although it is a defence to liability, it is directed to the situation where due to those circumstances no actual harm to reputation is likely to be sustained. 55On the other hand, the primary judge's finding of no actual harm was not due to the circumstances of publication but to the failure of the appellant to adduce evidence from any witness who were prepared to say that having read the matter complained of, they thought ill of the appellant and that his reputation was lowered in their eyes. Each finding, therefore, was directed to different concepts - one to harm being unlikely due to the circumstances of the publication itself and the other to a failure to adduce evidence of actual harm caused by the matter complained of. I do not believe that there is an inconsistency between these two concepts. 56However, I would accept that there was an inconsistency insofar as the primary judge rejected the s 33 defence with respect to liability on the one hand but found no liability due to the failure of the appellant to prove actual (as distinct from likely) harm on the other. In this respect he was in error as the latter finding went to damages and not liability whereas s 33 went to liability and not damages. Therein lay the inconsistency. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 June 2012