Supreme Court New South Wales Medium Neutral Citation: Gacic v John Fairfax Publications Pty Ltd [2013] NSWSC 1920 Hearing dates: 10/12/12; 31/1/13; 1/2/13; 7/3/13 Decision date: 19 December 2013 Jurisdiction: Common Law Before: Hall J Decision: 1. Judgment be entered in favour of the first plaintiff on the basis of an award of damages in the amount of $160,000. 2. Judgment be entered in favour of the second plaintiff on the basis of an award of damages in the amount of $160,000. 3. Judgment be entered in favour of the third plaintiff on the basis of an award of damages in the amount of $160,000. 4. Plaintiffs directed to bring in Short Minutes of Order to give effect to these reasons for judgment. Catchwords: DEFAMATION - assessment of damages - where decision at first instance overturned by Court of Appeal and matter remitted back for assessment of damages - restaurant review found to be defamatory of three plaintiffs in respect of two different restaurants operated by them - whether findings made at first instance can support plea in mitigation of damages - findings made at first instance as to statements of opinion of restaurant reviewer are not findings of fact - such findings had no notoriety until judgment at first instance delivered - such findings are not evidence of bad reputation of the plaintiffs - whether plaintiffs entitled to aggravated damages - article removed after Court of Appeal judgment but later restored - continued internet publication after Court of Appeal judgment increased harm caused by original publication - such conduct by first defendant was "unjustified" in light of circumstances of case - aggravated damages awarded Legislation Cited: Civil Liability (Non-economic Loss) Order 2010 Civil Liability Act 2002 Defamation Act 1974 Motor Accidents Compensation (Determination of Loss) Order No 3 Motor Accidents Compensation Act 1999 Workers Compensation Act 1987 Cases Cited: Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 Bickel v John Fairfax & Sons Ltd (1981) 2 NSWLR 474 Burstein v Times Newspaper Ltd [2001] 1 WLR 579 Carson v John Fairfax & Sons Limited [1993] HCA 31; (1993) 178 CLR 44 Cassall and Co Ltd [1972] AC 1027 Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; 278 ALR 232 Convery v The Irish News Limited [2008] NICA 14 Gacic v John Fairfax Publications Pty Ltd [2006] NSWCA 175; (2006) 66 NSWLR 675 Gacic v John Fairfax Publications Pty Ltd [2011] NSWCA 362 Gacic v John Fairfax Publishing Pty Ltd [2009] NSWSC 1403 Goody v Oldhams Press Ltd (1967) 1 QB 333 Gray v Motor Accident Commission (1998) 196 CLR 1 Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182 Holt v TCN Channel Nine Pty Ltd [2012] NSWSC 770 John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28; (2007) 230 CLR 291 John Fairfax & Sons v Kelly (1987) 8 NSWLR 131 Middendorp Electric Co Pty Ltd v Sonneveld [2001] VSC 312 Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 Prehn v Royal Bank of Liverpool (1870) LR 5 Ex 92 Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 Rookes v Barnard [1964] AC 1129 Selecta Homes and Building Co Pty Ltd v Advertiser Weekend Publishing Co Pty Ltd (2001) SASC 140 Steele-Smith v Liberty Financial Pty Ltd [2005] NSWSC 398 Taylor v Network Ten (Perth) Pty Ltd [1999] WASC 264 Triggell v Pheeney (1951) 82 CLR 497 Uren v John Fairfax & Sons Pty Ltd [1965]-[1966] 117 CLR 118 Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 Texts Cited: Gatley on Libel and Slander p 842 para 33.26 Category: Principal judgment Parties: Aleksandra Gacic (First Plaintiff) Ljiljana Gacic (Second Plaintiff) Branislav Ciric (Third Plaintiff) John Fairfax Publications Pty Ltd (First Defendant) Matthew Evans (Second Defendant) Representation: Counsel: CA Evatt; R Rasmussen; C Dibb (Plaintiffs) TD Blackburn SC; D Sibtain (Defendants) Solicitors: McKenzie Leamey Solicitors & Barristers (Plaintiffs) Banki Haddock Fiori (Defendants) File Number(s): 2004/176936 Judgment PART 1 - INTRODUCTION 1The plaintiffs, Aleksandra Gacic, Ljiljana Gacic and Branislav Ciric ("the plaintiffs") claim damages in respect of a defamatory review published in the Sydney Morning Herald, Good Living section of that paper on 30 September 2003 ("the review"). 2This judgment is concerned with the assessment of damages in those proceedings. 3Mr CA Evatt with Mr R Rasmussen and C Dibb of counsel appeared on behalf of the plaintiffs. Mr Blackburn SC and Mr David Sibtain of counsel appeared on behalf of the two defendants. 4It is sufficient, for the purpose of the present case that I set out in summary form the now extensive history of the proceedings. 5The proceedings were commenced by way of Statement of Claim on 25 June 2004. The proceedings, insofar as publication in New South Wales is concerned, have been and are to be further determined in this judgment in accordance with the Defamation Act 1974 (the 1974 Act). 6The appellants opened an establishment called "Coco Roco" at Sydney's King Street Wharf on 4 September 2003. On Tuesday 30 September 2003 the first respondent published the abovementioned review a copy of which was admitted as Exhibit A in the proceedings. 7Coco Roco was a harbourside establishment on two levels with two distinct dining options. It comprised a bistro downstairs called "Roco" and a more expensive restaurant upstairs called "Coco". The third appellant, Branislav Circic, conceived of the concept of Coco Roco in 2002. 8The first and second plaintiffs, Aleksandra and Ljiljana Gacic, are sisters. The third plaintiff, Mr Circic is married to Ljiljana Gacic. The plaintiffs established two companies, Coro Enterprises Pty Ltd trading as Coco Roco, and Syd Mirror Pty Ltd. The two companies became, respectively, the owner of the restaurant business and the lessee of the premises from which the restaurants Coco and Roco were operated. The plaintiffs were directors and shareholders of those companies. 9In the proceedings, the plaintiffs complained that the restaurant review written by the second defendant, Mr Evans, conveyed the following three imputations which were defamatory of each of them: (a) The plaintiffs sell unpalatable food at Coco Roco (the "unpalatable food imputation"). (b) The plaintiffs provide some bad service at Coco Roco (the "bad service imputation"). (c) The third plaintiff is incompetent as a restaurant owner because he employed a chef at Coco Roco who makes poor quality food (the "incompetence imputation"). 10The three imputations conveyed by the review were established by a jury under s 7A of the 1974 Act in earlier proceedings: see John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28; (2007) 230 CLR 291; Gacic v John Fairfax Publications Pty Ltd [2006] NSWCA 175; (2006) 66 NSWLR 675. 11Subsequent to the verdict, the proceedings proceeded to a hearing before this Court (Harrison J) to consider the defences pleaded by the defendants and the issue of damages: s 7A(4) of the 1974 Act. 12In defence to the publication in New South Wales, the defendants pleaded comment in relation to each imputation. They also sought to establish that the bad service and incompetence imputations were substantially true and were related to a matter or matters of public interest. 13They pleaded a defence of contextual truth by pleading each plaintiff's imputation back to each other, and relying on the substantial truth of the bad service and incompetence imputations. 14Similar defences (except as to contextual truth in Tasmania) were pleaded to publication in other jurisdictions. 15Judgment was delivered on 18 December 2009: Gacic v John Fairfax Publishing Pty Ltd [2009] NSWSC 1403. Harrison J held that the defendants had established a complete defence to the plaintiffs' claims. His Honour stated that in the event that that decision was erroneous, he undertook an assessment of damages, concluding that each plaintiff would have been entitled to general damages in the sum of $80,000. That assessment, however, did not bring into account whether damages would include an allowance for aggravated damages as claimed by the plaintiffs. 16The plaintiffs then appealed from his Honour's decision both as to the defences and as to the provisional assessment of damages. 17The Court of Appeal of New South Wales (Giles and McColl JJA and Sackville AJA) allowed the appeal with costs and in particular made the following orders: (i) An order setting aside the orders of Harrison J made on 18 December 2009. (ii) A verdict was entered in favour of the plaintiffs (the appellants). (iii) An order that the defendants, as respondents to the appeal, pay the costs of the proceedings before Harrison J. (iv) An order remitting the matter to the Common Law Division for assessment of damages: Gacic v John Fairfax Publications Pty Ltd [2011] NSWCA 362. 18Accordingly, the hearing in relation to the claim for damages proceeded by reason of the order of the Court of Appeal remitting the matter for assessment of damages. 19The hearing was conducted on 10 December 2012, 31 January 2013, 1 February 2013 and 7 March 2013. 20As discussed later in this judgment, the parties proceeded upon the basis that the transcript of the evidence in the proceedings heard by Harrison J forms part of the proceedings remitted by the Court of Appeal for the purposes of the damages hearing. At an earlier stage in the hearing, segments of transcript of the evidence given by each of the plaintiffs and other witnesses were separately tendered and marked as follows: Exhibit B: Transcript of first plaintiff, Aleksandra Gacic Exhibit L: Transcript of second plaintiff, Ljiljana Gacic Exhibit K: Transcript of third plaintiff, Branislav Ciric 21Subsequently the evidence of the plaintiffs contained in Volume 1 of the Black Appeal Book was tendered in the proceedings, Exhibit T. 22Each of the plaintiffs was called to give further evidence upon matters relevant to their respective claims. Evidence was also called in the hearing before me from the following witnesses: Mr Dean Wright, solicitor Ms Felicity Tilly Mr George Georgious PART 2 - THE REVIEW 23I reproduce below the text of the review: "Crash and burn When dining on the view is the only recommendation If a restaurant serves good as well as bad food, do you give it the benefit of the doubt? I wouldn't do that with a three-chef's-hat restaurant so why should I do it here? Especially when more than half the dishes I've tried at Coco Roco are simply unpalatable. Coco Roco is the swank new eatery at King Street Wharf. The opening was touted as 'Sydney's most glamorous restaurant'. If glamour peaked at about 1985, then perhaps they're right. Something about the polished stainless steel around the open kitchen and the black reflector tiles in the bathroom make me feel I should be wearing a pink shirt and a thin leather tie. Maybe it's just me. What isn't disputable is that this place has had a $3 million fitout, has views westwards over the water and scored Sarah O'Hare as its official guest at the opening. It has set itself up as a flash restaurant with big-end-of-town prices. Its business card even boasts that 'A new level of dining comes to Sydney's King Street Wharf.' I couldn't agree more. Coco Roco is actually two restaurants: Coco, the posh place upstairs off Lime Street, and sibling Roco, also smartly fitted out on the foreshore. Forever in pursuit of excellence, we choose the more expensive option. Expensive is right. Mains skid dizzily from a vegetarian dish at just under $30 and crash over the $50 mark. It's a brave restaurateur who tries that without the goods to back it up. A degustation of oysters ($28 for six/$40 for 12) arrives as different flavoured bivalves, rather than oysters from various regions. There's a saffron-infused gin one. There's a seafood foam, which looks like it's been piped on top. The texture is scary and, let's be polite, not to my tastes. The limoncello, however, is worse - flavours jangle like a car crash; all at once it's sickly sweet, overtly alcoholic, slippery, salty and bitter. Only the lone natural oyster is gloriously free from interference and there's an exquisite verjuice jelly on another. Next up, the carpaccio of beef ($22) comes with a dreary roast almond paste underneath and far too many yellowing rocket leaves on top. The meat itself is fine, although the parmesan cheese strips taste tired. Small Queensland scallops ($24) on jagged shells with cauliflower and vanilla nearly work but are uninteresting. Why anyone would put apricots in a sherry-scented white sauce with a prime rib steak is beyond me. A generous chock of meat comes perfectly rested, medium as ordered. But the halves of apricot are rubbery and tasteless (which is probably a good thing). I scrape the whole wretched garnish to one side. The meat has a good length of flavour and is a damned fine steak, even if it is $52. I can't help but think at this price I could be dining at Rockpool. On a side dish, three house-made mustards - milk, Guinness and lavender - prove that some things are better left alone. The other main, roast chicken ($35), is outstandingly dull, which is odd considering it's a Glenloth bird that I usually love. A few days later, in the interests of impartiality, I'm back. This time it's salad to start ($8), sweetly dressed with honey and balsamic vinegar and topped with fine cress. It's not great but passable, except for a few wilting leaves. A poached beef fillet ($46) shows, like last visit, that they can cook steak. This time it's medium rare, although the meat is curiously dry on the edges. But the accompanying broth is well below average. It is sticky sweet with port and overcooked potatoes floating in it do it no favours. Oxtail and sweetbread dumplings are a delight, however. I've never had pork belly that could almost be described as dry. Until tonight. A generous square of pig's paunch ($33) is snuggled into a mass of starchy lentils. The meat is unevenly spiced with Moorish flavours and the lentils are poor. Texturally, it brings to mind the porcine equal of a parched Weetbix. For dessert, honeycomb cheesecake ($17) has little to recommend it, with its soggy pastry base. Compared with the raspberry and shiraz sorbet, however, it's heaven. A dismal pyramid of sorbet ($15) jangles the mouth like a gamelon concert. Poached berries underneath are OK, except for what I guessed might have been soggy blackberries. It could be argued that Coco is still settling in. But apricots in sherry-scented white sauce aren't meant to garnish a rib eye of beef. The menu isn't held back by minor glitches; it's flawed in concept and execution. In a city where harbourside dining has improved out of sight in recent years, Coco Roco is a bleak spot on the culinary landscape." 24The second defendant, Mr Evans, attended at the restaurant, Coco, on 5 September 2003, the day following the opening of the restaurant, and again on Wednesday, 10 September 2003, on which latter date he attended with a companion. He did not enter the Roco bistro. He accordingly did not have any material for comment in relation to Roco. The review published on Tuesday, 30 September 2003, included his impression of both dining experiences at Coco. 25The review came to the attention of the plaintiffs on the day of its publication and it is noted by Harrison J in his Honour's judgment: "When the plaintiffs read the review they were shocked and distressed": at [7]. 26His Honour dealt with the plaintiffs' respective reactions to the review in a later part of his judgment. 27Coco Roco suffered a decline in patronage and ultimately closed permanently in early 2004. An administrator was appointed to both Syd Mirror Pty Ltd and Coro Enterprises Pty Ltd in March 2004. As McColl JA noted in her judgment at [25], Harrison J accepted that each plaintiff had been "very badly affected" by the failure of Coco Roco and that each plaintiff attributed its failure to the matter complained of: at [235]-[236]. PART 3 - THE JUDGMENT OF THE COURT OF APPEAL 28The principal judgment in the Court of Appeal was delivered by her Honour McColl JA. Giles JA agreed with the reasons of McColl JA and made additional observations in his Honour's judgment. Sackville AJA agreed generally with the judgment of McColl JA and with the additional observations made by Giles JA at [117]. 29McColl JA identified the issues on appeal at [52]-[57] of her Honour's judgment. 30At [52] her Honour stated: "The central issue on appeal is whether his Honour erred in his approach to determining whether the imputations, and the defences pleaded in respect of them, should be understood as referring to one restaurant, Coco Roco, or to two separate restaurants, Coco and Roco. The appellants contend that his Honour's approach, of determining that issue as a preliminary factual inquiry, led him into error both in construing the imputations and in assessing the defences." 31Her Honour then continued, at [53]: "In their Amended Notice of Appeal the appellants complained (Ground 1) that his Honour erred in finding that there was only one restaurant, Coco Roco, when he should have found there were two, Coco and Roco (the 'one restaurant ground'). As argued in written and oral submissions, this ground was put on the basis that, in the context of the matter complained of, each imputation was understood to relate to both restaurants, rather than one. The fact of a favourable finding on this ground was reflected in the bulk of the remaining grounds (grounds 2-7) insofar as they complained that as the second respondent only 'experienced' one of those two restaurants, Coco, he could not have held the opinion he expressed about Roco, there could have been no proper material for comment in respect of Roco and nor could any of the imputations be substantially true in relation to it." 32As her Honour subsequently noted at [59], the plaintiffs submitted that the finding that "there was relevantly only one restaurant" contaminated his Honour's findings in respect of the defence of comment and substantial truth. They contended that his Honour had erred in considering the material extrinsic to the matter complained of when determining the meaning of the imputations. 33Her Honour further noted at [60], that the plaintiffs submitted that the ordinary reasonable reader would have read the references to "Coco Roco" in the matter complained of as conveying its defamatory stings about their conduct in relation to both restaurants. 34The preliminary point raised on the appeal depended upon the proposition that each of the imputations constituted each appellant's cause of action against the respondents. If the imputations were to be understood to refer to the two restaurants at Coco Roco then McColl JA observed that the defendants' defences were substantially, if not entirely, compromised because the reviewer never ate at Roco: at [61]. 35Her Honour then concluded: "In my view the appellants' contention should be accepted. The matter complained of was replete with references to Coco Roco which makes it apparent, in my view, that it was open to the s 7A jury to conclude that an ordinary reasonable reader would have read the matter complained of as referring to both restaurants": (at [72]) 36Her Honour identified the matters which supported that conclusion at [73], noting that the review contained an explicit statement that there were two restaurants and that, taken as whole, it was open to the jury to conclude that the review referred to each restaurant at "Coco Roco", not merely to the restaurant "Coco": "... once the jury found that the imputations were conveyed concerning 'Coco Roco', which expression could be understood as I have explained when regard is had to the matter complained of, the respondents had to establish that their defences ran to both restaurants. They could not do so, and did not seek to do so": (at [75]). 37Notwithstanding that the Court of Appeal set aside the orders of Harrison J made on 18 December 2009, entered a verdict for the plaintiffs and remitted the matter "for assessment of damages", the defendants nonetheless sought to rely upon the opinion expressed by Mr Evans as to poor food and service at Coco and findings said to have been made by Harrison J to support the contention that, whilst the plaintiffs would be entitled to something more than "nominal" damages, any assessment by this Court of the damage claimed should be "modest". 38As discussed in greater detail below, in support of this contention the defendants placed significant reliance upon two matters. First, that the judgment of Harrison J contained factual findings concerning the food and service at Coco, and which it was said the Court of Appeal did not criticise. Whilst his Honour's orders were set aside, the defendants argued that his claimed "findings" nonetheless support the defendants' plea in mitigation. Second, that the principle of mitigation, as expanded upon in the case law, applies to the circumstances of the present case. The plaintiffs strongly took issue with the defendants' contentions. 39The defendants' defence of mitigation requires close consideration of the proposition that evidence adduced in support of the defence of "comment" is available to support the defence of mitigation of damages in the particular circumstances of the present proceedings. PART 5 - THE DEFENCE OF MITIGATION (a) The Bases for the Defence 40The defendants' submissions on the issue of mitigation of damages relied, inter alia, upon the following matters: (i) Evidence Available on Mitigation The facts allegedly found by Harrison J as to the truth of the imputations, the defence of, and the evidence led in support of the defence of comment may be relied upon in mitigation of damages. (ii) Previous "Findings" Establish "Facts" to be Applied on Mitigation The "findings" by Harrison J, the defendants argued, establish the "truth of facts" as to both poor quality food served at Coco on the two occasions that Mr Evans dined there and poor service at Coco as encountered or experienced by Mr Evans. (iii) In the assessment of damages in this case, following upon the remittal of the proceedings by the Court of Appeal, I am, in effect, bound by the "findings" made by Harrison J and I "would not depart from (those) findings ... as to the truth and accuracy of Mr Evans' evidence concerning his experiences at Coco": Defendants' Closing Submissions on Damages, 25 February 2013 at [27] and [35]. 41It was submitted for the defendants that: (i) "The Court, in the assessment of damages, takes into account such true facts as are established by the defendants": at [34]. (ii) "Whilst it is for this Court to assess damages, the Court should not disregard the solemn findings of a previous Court as to the evidence of Mr Evans and the experiences that actuated the publication of the matter complained of. The plaintiffs have not advanced any basis upon which this Court would decline to accept Mr Evans' evidence": at [43] 42The defendants contended that any damages awarded to the plaintiffs "cannot be great": at [45]. In this respect it was argued that the damage done by "a true review" of poor food served by a restaurateur and some bad service at one of his/her restaurants, "must be substantial": at [45]. Further it was submitted the theoretical assessment of damages by Harrison J at $80,000 for each plaintiff would be reduced by this Court on the assessment of damages ordered by the Court of Appeal "... this Court would reduce that figure to take into account the damage caused by the publication of the true facts concerning the poor food and service at Coco": at [46]. 43The defendants further submitted that the plaintiffs' complaints, for the purposes of the assessment of damages, "... must be limited to the criticisms imputed inferentially in respect of Roco, a restaurant where the food and service were not critiqued": at [26]. 44The defendants relied upon a further and separate matter as reducing any award of damages. They contended that the plaintiffs' damages should be reduced on the basis that their actions "caused the defamatory publication": Outline of defendants' submissions before trial at [28]. The defendants sought to support this argument by reference to caselaw authority relevant to the type of case where a plaintiff has "directly provoked the publication" about which he/she complains. 45These submissions are considered below. 46The focus of the defendants' submissions as presented, developed and repeated throughout the written and oral submissions, was that mitigation of damages principles operate upon "facts" said to be discernible in Mr Evans' article and in "findings of fact" allegedly made by Harrison J. 47The Court of Appeal determined that the pleaded imputations having regard to, and only to the review, were as to both the Roco bistro and the Coco restaurant. Although Mr Evans was aware of Roco's existence as one of two restaurants and although he had not experienced the food or service at both he nonetheless wrote the article in terms which the jury must have found conveyed imputations which spoke of both Coco and Roco - the imputations were all as to Coco Roco: [5] per Giles JA. Accordingly, the defendants' defences of substantial truth and comment failed. 48The Roco restaurant, which has been referred to as the "sibling" to Coco, was a substantial restaurant or bistro in its own right. It had its own kitchen and staff including its own chef. It was clearly focussed on a different level of dining. It was less formal. It had a large seating capacity which was much greater than that of the Coco restaurant (300 seats as against Coco's 90 seats). The range and style of food, though not described in detail in evidence, was clearly of a different character to that served in the Coco restaurant. The evidence indicates that the Roco restaurant was intended as one that had a quite distinct and different operation and focus to Coco: see judgment of Giles JA at [3]-[5]. The evidence of the plaintiffs was that it was open 7 days a week, lunch and dinner: T 10 December 2012 at 33. However, as indicated above, the Court of Appeal held that the imputations in the review applied to it as well as Coco. 49In this way the review subjected both the bistro and the restaurant to substantial and extremely negative criticism in circumstances in which Mr Evans had no experience at all of Roco. (b) Amendment of the Amended Defence 50The defendants, on an intermediate date in the damages hearing, sought and obtained leave to further amend their Amended Defence to plead a defence of mitigation of damages. 51The defence of mitigation (para 26 of the Further Amended Defence) became the centrepiece of the defendants' case on damages. Paragraph [26] pleaded that any damage suffered by the plaintiffs should be reduced by reason of the particulars set out in the defendants' Amended Defence in support of the defence of truth in relation to the bad service and incompetence imputations, and the defence of comment in relation to the unpalatable food imputation. In the way it was argued, substantial emphasis was placed upon the statements expressed in the review about Coco and the asserted factual findings of Harrison J as mitigating any award of damages to a low level. The defendants in that respect sought to rely upon both the defamatory article and the evidence of its author, Mr Evans, as to the quality of the food and service at Coco as being evidence of fact, namely, that the food served at Coco on the two occasions Mr Evans dined there was "unpalatable" and that the service was poor or substandard. 52Mr Evatt, on behalf of the plaintiffs, strongly submitted that both the review and Mr Evans' evidence in which he expressed his opinion on the Coco food and service, was based on his subjective reactions to, and his assessment of, the food served and the service at Coco. Mr Evatt, on more than one occasion, observed that Mr Blackburn had neither particularised nor identified the "facts" said to support the mitigation defence contained in [26] of the Further Amended Defence. As discussed below, Mr Blackburn at a later stage of the proceedings produced a schedule of evidence setting out the alleged "facts" established in evidence. 53The defendants, on 1 February 3013, were formally granted leave to raise and plead mitigation as a defence. In further written submissions for the defendants dated 18 March 2013, the "Schedule of evidence" set out or referred to evidence given by Mr Evans before Harrison J. In particular, it referred to particular aspects of evidence that were critical of the food served and of the claimed poor service. It also set out at [8] what were submitted to have been "findings of fact by Harrison J". 54Additionally, it was submitted as set out at [15], that Harrison J "implicitly accepted" aspects of Mr Evans' evidence on the food served to him at Coco. 55The defendants' further written submissions also sought to identify the matters Harrison J allegedly accepted as proved facts as to the quality of the food and the standard of the service at Coco. 56Mr Evatt strongly argued that the particulars on p 4 of the Amended Defence, being the particulars in support of the defence of truth, did not identify facts at all. In that respect he observed: "Going to page 4. Your Honour will see in paragraphs (a), (b) and (c) certain facts. (a), (b) and (c) are facts and were found by the Trial Judge and they are not in dispute - (d) and (e) there is no dispute, and it is a fact found by his Honour, that Matthew Evans visited Coco on 5 and 10 September. They are sufficient facts on which to base a defence of comment. Your Honour will appreciate that. The facts are that this was a restaurant owned by the plaintiffs, and Mr Evans ate there two times. They are the underlying facts. The rest of the review or criticism is Mr Evans' comments about the food he tasted and about the layout and appointment of the restaurant. They are his comments. He comments on the food. They are not facts, and could never be facts. I don't want to confuse matters." (T 197:8-19). 57Mr Evatt later submitted: "Now, looking at their defence, because of the truth of the facts and matters, they are not facts and matters, they are not true, they are Mr Evans' opinions. But that is not what they mean, anyhow. That is not what Mr Blackburn has been going on about for two to three days. What they are submitting to the court is that the text, and my friend read them this morning, do relate to facts and matters which are true, which they don't. But his main point is that Harrison J made findings of fact by which your Honour is bound, and if your Honour does not follow his findings of fact, then it is an abuse of process and you are subject to estoppel": (T 199:45-200:3). ... "EVATT: As a defence to the second and third imputations that each plaintiff provided some bad service and that each plaintiff was incompetent by employing a chef that made poor quality food. So, his Honour never embarked on an inquiry or made no determination as to the truth of the imputation they served unpalatable food. It was never a defence. HIS HONOUR: Then, in the way in which the trial was conducted by Harrison J, was the approach taken by your clients to seek or not to go into disputing Mr Evans' evidence on discrete aspects, such as the salad, et cetera, the different aspects of food, and take a different approach to making out their claim in what was the way in which the case was conducted, having regard to the defence that is reached in particular? EVATT: The way in which the case was fought, the plaintiffs said, in answer to the defence of comment to unpalatable food, the plaintiffs and their witnesses all gave evidence that the food was first class, fresh and in good condition, and, therefore, you there could be no comment to the contrary": (T 200:38-201:4). ... "EVATT: The point is, had there been a defence of truth to unpalatable food, and with those particulars supplied, then, obviously, every one would have to be traversed. But there was no defence. It was only comment on the food": (T201:38-40). 58Mr Evatt's submission accordingly was that the Amended Defence did not particularise or rely upon findings of fact about the quality of the food or service which the defendants contended I was bound by: T 203:5-10. He submitted that the "facts and matters" referred to on pages 4, 6, 7 and 8 of the Amended Defence were pleaded to support the grounds of the defence (and there was no pleading of truth to the imputation that each plaintiff sold unpalatable food at Coco): T 196:30-35, T 203:10-20. The grounds of defence, Mr Evatt argued, related: "... to the tastes of Mr Evans, his opinions, what he considers and it is just rephrasing but in a bit more detail, what Mr Evans wrote in the article and has nothing to do with any findings of fact by Justice Harrison. So, therefore, as there is no mitigation defence before your Honour, pleading facts found by Justice Harrison and setting out with precision what those facts are, your Honour should not mitigate the damages. Now. I have made that point. I am not going to make it again. In fact I raised that point on 1 February." (T 203:14-21). 59Mr Evatt submitted that Harrison J had directed his attention to Mr Evans' opinions, being the opinions of a food critic who had expressed them to readers concerning the meals he consumed at the Coco restaurant and in relation to which the defendants had invoked the defence of comment much the same as found in cases concerned with criticisms and reviews in other areas such as architecture, books etc. The reader, Mr Evatt submitted, is taken to understand the review to be expressing Mr Evans' opinion: T 203:22-33. I will return to the parties' submissions on this aspect below. 60The defendants also contended that the present case "falls squarely within the principles expounded in Pamplin and Burstein": Defendants' Closing Submissions on Damages at [30]. For this purpose reliance was placed upon the principles discussed and enunciated by the Court of Appeal in Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 per Neill LJ at 119-120 and in Burstein v Times Newspaper Ltd [2001] 1 WLR 579 per May LJ at [18]-[22], [36]. 61As later discussed, I have concluded that the principles in those cases do not support the defendants' defence of mitigation. The defences and factual circumstances in each of those cases are analysed below. So also are the principle(s) to be derived from them and the circumstances in which they may have application. PART 6 - MITIGATION PRINCIPLES (i) "Facts" and "Findings" 62The defendants' submissions advanced a number of propositions to support their mitigation of damages defence. These included: * That Harrison J had made factual findings as to Mr Evans' low opinion of the food consumed at the restaurant Coco; * Those "findings" regarding the food at Coco having been made, the published conclusions of Mr Evans must have done damage to the plaintiffs as restaurateurs, but justifiably. What remains of their reputation as restaurateurs is limited: Defendants' Further Submissions, 30 January 2013 at 1(a) and 1(c); * The review published to each reader "true facts" about Mr Evans' dining experience at the "fine dining" restaurant, Coco: Defendants' Closing Submissions on Damages, 25 February 2013 at [3]. It was there again stated: "The publication of his experiences at Coco must have done significant damage to the reputation of the plaintiffs". This statement was followed by the submission: "In the assessment of damages, the Court would have regard to that fact, and would discount the damages to be awarded accordingly." * The critical issue is whether Mr Evans' "observations" as an experienced food reviewer were correct. There was no challenge to his credit. Accordingly, they must be accepted: Defendants' Closing Submissions on Damages, 25 February 2013 at [17]; * The review on its face is explicitly a review of "the reviewer's experiences" at Coco. The context, and explicit content of the review, informs the assessment of damages: Defendants' Closing Submissions on Damages at [24]. 63The defendants' contention associated with or based on the above propositions as developed in the defendants' submission may be summarised as follows: First, the review, though defaming the plaintiffs, established "facts" as to the quality of the food and service at Coco. The publication of the defamatory review by the defendants of those "facts" must have significantly damaged the plaintiffs' reputations. Second, Harrison J's "findings" established "facts" concerning both the quality of the food served at Coco and the service at that restaurant. Those "facts" and "findings" are to be taken into account as they diminish the plaintiffs' claims for damages. 64In relation to the asserted "facts" and "findings", it was submitted by Mr Blackburn that I should not make findings contrary to those made by Harrison J. They were effectively said to constitute post-publication findings in legal proceedings that operated to diminish the entitlement of the plaintiffs to damages. 65These matters relied upon by the defendants, if valid, potentially at least have significant consequences to the assessment of damages in these proceedings. (ii) Three "Issues" 66The discussion below addresses the following issues: (1) Whether any "findings" of Harrison J may be considered as post-judgment findings of a court that relate to reputation; (2) Whether the statements of Mr Evans in the review, on the quality of the food served at Coco and as to the service, were statements of fact or of opinion about those matters; (3) Whether the "findings" made by Harrison J, however characterised, may be regarded as constituting post-publication findings that diminish the plaintiffs' reputations. Discussion 67I do not accept as valid the defendants' line of argument that Mr Evans' opinions expressed in the review proved "facts" as the defendants contend, nor that Harrison J made "findings" of fact or "true facts" concerning the quality of the food served to Mr Evans or as to the service he experienced or observed on the two occasions that he dined at the Coco restaurant. 68The defendants submitted that whilst liability in respect of each and all the pleaded imputations has been determined by the Court of Appeal in favour of the three plaintiffs, on the remittal of the proceedings I should award damages at a low level by reason of the statements as to the food and service at Coco in the defamatory article itself and by reason of what are said to be "findings" of fact by Harrison J. The review of the Coco restaurant, notwithstanding its defamatory nature, was relied upon by the defendants as having had a significant and adverse public impact upon the plaintiffs' reputation as restaurateurs to the extent that its effect upon them was to "devastate" their reputation. Such a devastating effect, the defendants contended, in effect, operated or worked in their favour in the assessment of damages. 69The defendants' submission in practical terms rests upon an assumption. It is that, notwithstanding that the review written by the second defendant was defamatory as the Court of Appeal determined, in the assessment of the damages for the harm it occasioned to each of the three plaintiffs, the defendants nonetheless should have the benefit, in terms of mitigation, of the fact that the review "devastate(d)" their reputations. 70The validity of this unusual line of argument was disputed by the plaintiffs. In that respect it was submitted that: (1) Any findings made by Harrison J, being "findings" in the very proceedings in which the plaintiffs claim damages for harm to and vindication of their respective reputations, are not evidence in the present proceedings. Further, such "findings" had no notoriety until his Honour's judgment was delivered; (2) In any event, the statements contained in the review were not statements of fact. They are/were statements of opinion; (3) Further, there were no "findings" of fact made by Harrison J in relation to the article on the quality of the food or the service based on his two attendances at the Coco restaurant. 71The above three points are discussed below. 72I have concluded that Harrison J did not make findings of fact as contended by the defendants. However, even if I were wrong in that conclusion, any such findings could not constitute a basis for the defendants' mitigation defence. (i) Whether "Findings" Operate as Post-Judgment Findings 73The "findings" of Harrison J as to the quality of the food and the service at the Coco restaurant, if they be as such, were made on 18 December 2009, the date of his Honour's judgment, that is a little over six years after the date of publication of the review. 74The defendants' submissions raise the question as to whether they are or can be taken as establishing facts adverse to the plaintiffs' reputations which adversely affected their reputations. In that regard there is an issue as to whether "findings" in the very proceedings in which the plaintiffs claim damages occupy the same position as post-publication findings in a judgment in other proceedings that impact upon a plaintiff's reputation. In the circumstances of the present proceedings, in my opinion, the asserted findings made by Harrison J cannot and do not operate in that way. In this respect it is necessary to consider the relevant principles as to the admissibility of post-publication evidence on the issue of a plaintiff's reputation. 75Firstly, of course, even if it could be said that Harrison J made factual findings as to the quality of the food and service at Coco, any factual "findings" made by his Honour are not "evidence" in the damages hearing. Secondly, being "findings" said to be found in his Honour's judgment of 18 December 2009, they had no prior existence let alone any notoriety prior to that date. 76In Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 an issue arose concerning findings in the proceedings in which the plaintiff was claiming damages, namely adverse trial findings. In that case, the Court (Beazley JA, as her Honour then was, together with Giles and Santow JJA) observed at [1396]: "While it is not necessary to come to a concluded view, it is by no means clear that the appellant could have relied on any findings Levine J might make adverse to the respondent as going to his reputation. On the cases on mitigation of damages because the plaintiff has a bad reputation, findings in a judgment may go to the plaintiff's reputation, including where the judgment post-dates the publication of the defamatory matter. But it is necessary to see why that is so, and to ask whether findings in the very proceedings in which the plaintiff claims damages are in the same position." 77Their Honours in that case examined the general issue as to the admissibility and relevance of findings made in a judgment concerning a plaintiff's reputation in defamation proceedings that post-dates publication of the defamatory matter. That examination included consideration of convictions for criminal offences as providing evidence of bad reputation (at [1397]-[1402], and the judgments in Goody v Oldhams Press Ltd (1967) 1 QB 333). 78As to the position where a judgment post-dates the publication of the defamatory matter the Court observed: "Evidence of events going to diminish reputation occurring after the publication of the defamatory matter can be given in mitigation of damages": (at [1403]). 79In relation to the judgment in Middendorp Electric Co Pty Ltd v Sonneveld [2001] VSC 312 (Gillard J) (a case of a plaintiff's post-publication convictions on criminal charges that could be taken into account in mitigation of damage) their Honours in Marsden examined the reasoning in that case and whether it provided support for the proposition that consideration should be given to findings in the proceedings in which the plaintiff claims damages for harm to and vindication of his reputation. 80The Court there stated that the reasoning in Middendorp did not apply for the following reasons: * The findings were not evidence in the proceedings; * The nature of the issues in the proceedings; * The absence of an opportunity for the plaintiff to address whether or to what extent the findings affect his/her reputation. 81The Court stated at [1406]-[1408]: "The reasoning in Middendorp Electric Co Pty Ltd v Sonneveld might support regard to findings in the proceedings in which the plaintiff claims damages for harm to and vindication of his reputation. To adapt what Gillard J said, it might be thought incongruous to award substantial damages to a plaintiff whose reputation, by reason of the findings of the trial judge, has been destroyed at the time the judgment is pronounced. The Court is telling the world the plaintiff has a good reputation at the date of judgment, yet the truth is that he has no reputation. But the situations are different. Courts act on evidence, and the court's findings are not themselves evidence in the proceedings - they are, of course, not known until judgment is delivered. The Goody v Odhams Press Ltd public knowledge can not apply, and the notoriety of the unknown findings and their effect in fact on the plaintiff's reputation can not be an issue in the proceedings. Thus there is not true incongruity in a court awarding damages on the basis of a good reputation but making findings actual or notional publication of which may (or may not) be detrimental to the plaintiff's reputation, since the court can not properly pay regard to the effect of its findings on the plaintiff's reputation. That courts act on evidence, and not otherwise, is fundamental to our legal system. It would be undesirable that a plaintiff claiming damages for defamation should have taken into account against him findings which are not known until judgment is given, without the opportunity to address whether or to what extent the findings do affect his reputation. Repeating that it is not necessary to come to a concluded view, as at present advised we would not accept the entitlement underlying the appellant's submission." 82In Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335, McColl JA (with whom Spigelman CJ, Beazley JA (as her Honour then was), McClellan CJ at CL and Bergin CJ in Eq agreeing) whilst addressing the issue of adverse trial findings, noted that in Marsden it had not been necessary for the Court of Appeal to come to a concluded view: at [250]. 83As McColl JA noted, the observations in Marsden appeared to relate more to the admissibility of the adverse trial findings made in those proceedings as distinct from "the Steele-Smith adverse findings". The latter was a reference to adverse findings in the judgment of Palmer J in another case, Steele-Smith v Liberty Financial Pty Ltd [2005] NSWSC 398. Her Honour concluded that Marsden supported the proposition that "findings which are in the public domain - even if made post-publication, may be admissible": at [253]. Accordingly, nothing said by her Honour was contrary to the Court's observations in Marsden as to the position discussed in the latter case as to adverse findings made in the very proceedings in which a plaintiff was claiming damages for defamation. 84Post-publication "findings" of the kind said by the defendants to have been made by Harrison J do not fall within the category of cases involving evidence of events going to diminish reputation occurring after the publication of the defamatory matters. That category may, of course, include, by way of example, a plaintiff's post-publication conviction on criminal charges proved in mitigation of damages for defamation. Similarly, findings in other or unrelated civil litigation made in open court may, as discussed above, be admitted as evidence of bad reputation: Goody v Oldhams Press Ltd (1967) 1 QB 333; Amalgamated Television Services Pty Ltd v Marsden at [1402]. However, the alleged findings of Harrison J relied upon by the defendants are not in the last-mentioned categories of case and were not equivalent to findings given notoriety by a judgment of another court in unrelated proceedings. 85The alleged findings of fact made by Harrison J made many years after the publication, were not evidence of bad reputation of the plaintiffs and as discussed below were not, in my opinion, factual findings. Harrison J was required to assess damages. He did so as at 18 December 2009, but only on what might be characterised as a provisional basis, given his Honours findings in relation to the defences. The proceedings were remitted by the Court of Appeal for the purpose of determining appropriate awards of damages to each of the plaintiffs being awards that ought to have been determined as at 18 December 2009. The alleged findings of Harrison J cannot now be used to diminish the plaintiffs' reputations as such alleged findings occurred after publication of the defamatory matter and in a judgment in the present proceedings wherein the orders made were set aside by the Court of Appeal. They do not constitute evidence going to mitigation for the reasons stated by Beazley JA, as her Honour then was, in Marsden, supra. (ii) Facts v Opinion 86I turn to the issue as to the nature of the statements in the review and the nature of the findings made by Harrison J. 87There is, of course, a fundamental distinction between statements which refer to facts as objective facts and statements which constitute expressions of opinion (or "comment"). The latter include statements in the nature of subjective deductions or assessments of factual matters in accordance with the reactions or perception or appreciation of a writer. 88Accordingly, in the present proceedings it is necessary to consider Mr Evans' evidence in relation to (i) the quality of the food, (ii) the service at the Coco restaurant, and (iii) the issue of "findings" by Harrison J, specifically, whether they deal with matters of fact or of opinion? 89In Convery v The Irish News Limited [2008] NICA 14 the Court of Appeal in Northern Ireland (Kerr LCJ, Campbell LJ and Gervan LJ) considered a case involving a restaurant owner who claimed damages for defamation in relation to a restaurant review in the "weekend gourmet" section of the defendant's newspaper, the Irish News. The article was critical of the ambience, the food and service of the restaurant known as "Goodfellas" in West Belfast. A jury returned a verdict in favour of the plaintiff for £25,000 damages. The newspaper appealed the decision. 90The defendant's primary defence was that the article represented fair comment on a matter of public interest. Alternatively, it pleaded insofar as the statements in the review consisted of fact rather than comment, that they were true - a defence of justification. 91The particulars on which comment was based were extensive. As to the beverage served they included allegations that it was flat, warm and watery. In relation to the food, the defendant asserted that the garnishes to the food were poor, allegations were made as to the appearance and taste of certain food items (eg squid rings), to an excessively sweet sauce said to have been a poor accompaniment with savoury food, and to other "unattractive" looking food (eg seafood), greasy, undercooked chips, and vegetables asserted as having been frozen etc. 92In broad terms the particulars were a paraphrase of the article. They contained virtually all the factual material from the original review, much of which it was held "might normally be regarded as comment": per Kerr LCJ at [10]. As to what had been contended as amounting to disputed categories of fact (which included such matters going to the appearance or taste or food, poor accompaniments etc) Kerr LCJ also observed: "[14] Although these were described as disputed matters of fact, it appears to me that many were plainly comment ..." 93The Chief Justice noted that in relation to observations in the review article such as the poor beverage being described as "warm", "watery" or "flat", "... none of such qualities can be measured as an objective fact". Kerr LCJ also observed that many matters referred to in the article were either entirely matters of opinion and comment or at least arguably so: at [14]. 94Kerr LCJ further observed that the defendant had identified various statements in the article as facts "when they were plainly comment" at [15] and that comment may include inferences drawn from facts as well as opinions: at [19]. 95At [31], the Chief Justice stated: "Of greater consequence, however, was the judge's acceptance that all of this material was factual in nature. In fairness to him, it had been portrayed by the defendant as such but, as I have already observed, much of it was plainly comment and other statements might reasonably have been regarded as opinions or inferences drawn from facts rather than unvarnished imputations of fact. Thus, for example, the statements that the reviewers were happy to order cola but did not enjoy it; that the cola was flat, warm and watery; that the squid rings were translucent grey in appearance; that they did not taste like squid; that the starters were of poor quality; that the sauce on the chicken Marsala was very sweet and a bad accompaniment for the savoury food; that the spaghetti dish had overcooked pasta, a lot of sauce and unattractive looking seafood in the sauce; that the reviewers did not enjoy their main course; that the chips were pale, greasy and undercooked; and that the reviewers were unimpressed by the poor standard of their dining experience were all matters of comment and not statements of fact. They should have been identified as such by the judge and he should have directed the jury that they should so regard them." 96In the same case, Campbell LJ referred to a jury's task of determining whether statements were comment or whether they constituted allegations of fact. That determination was then applied to the article written by the writer who visited the restaurant, tasted the food and drink served to her. Campbell LJ's observations made upon the restaurant review are instructive insofar as they illustrate the importance of differentiating between and having due regard to what is properly regarded as subjective evaluation and what are matters of fact: "[48] The judge gave the jury guidance on distinguishing comment from fact and used as an example the observation that the cola 'was flat, warm and watery, and can be sure it was on tap.' He suggested to them that the writer was stating as a fact that the cola was physically flat, warm and water, and her opinion based on that fact was that you can be sure it was on tap. In my view in the context of a review the entire description of the cola as being 'flat, warm and water, you can be sure it was on tap' is not fact but the reviewer's value judgment of it. Nor do I agree with the judge that when the reviewers said of the chicken marsala 'The meat itself looked fine, but it was coated in a sickly saccharine sauce that clashed horribly with the savoury food' the latter remark was fact. Other diners may not have agreed about the sauce but this was their opinion. Similarly the 'assertion that the vegetables were unmistakably fresh from the freezer...' was an expression of opinion." 97Girvan LJ in the same case similarly addressed the differentiation of fact and comment. Reference was made to the trial judge's summing up which had been criticised as having the potential to mislead the jury in carrying out the exercise of determining which were "true statements of fact" and which were comment. The criticism was based on there being an essential difference between a statement of objective fact or a true statement of fact and what amounted to evaluative or subjective assessments. Moreover, Girvan LJ noted that a restaurant reviewer in relation to the latter is providing his or her reactions to what he/she found according to that person's taste, namely an evaluative assessment based, as in that case, on the reviewer's reactions: at [53]. 98In these respects it was observed: "I accept the thrust of counsel's criticism of the summing up in this regard. The judge's direction failed to point out to the jury that the statement that the coke was flat, warm and watery was an evaluative assessment made by the writers arising from their experience of drinking coke which appeared to the drinker to be flat, warm and watery. The underlying fact was that the drinker had consumed the coke and had made a subjective assessment of it, it, being a fact that she had made such an assessment. Some one else disliking ice cold drinks may have found the coke sufficiently effervescent and of a pleasing room temperature. In relation to the chicken Marsala dish the judge suggested to the jury that the statement that the chicken was inedible was a statement of fact. Further, he suggested that the statement that the sauce with it was sickly saccharine sweet and clashed horribly with the meat was a statement of fact, going on to say 'so there you have a fact, it actually comes after the comment here, but nevertheless the comment is there and the fact upon which it was based is there.' This direction is confusing and gives insufficient guidance to the jury for their task. In relation to the statements in relation to the chicken dish the underlying facts were (a) that the writer ate the chicken; (b) that her reaction was that she found it inedible to her taste, an evaluative assessment based on her having a reaction to the taste of the dish; (c) that the meat was coated in a sweet sauce; and (d) that her reaction to that sauce was to find it sickly and saccharine sweet and that in her opinion it clashed badly with the meat. It was for the jury to decide whether she truly ate the dish, whether she had the reaction she described and whether she honestly formed the evaluative opinion expressed in the article": (at [53]). 99The defendants' submissions in the present proceedings, as noted above, relied heavily upon the proposition that Harrison J made a number of factual findings in relation to the quality of food and the quality of service on the two occasions Mr Evans dined at the Coco restaurant. 100As I have noted above, Mr Evatt, on behalf of the plaintiffs, strongly disputed the proposition advanced by Mr Blackburn SC that any findings expressed by Harrison J could or should be considered to constitute findings of fact. Mr Evatt submitted that the asserted "findings" made by Harrison J could only concern matters of opinion, not fact. For the reasons discussed below, and consistent with the approach and analysis undertaking in Convery, supra, I consider that Mr Evatt's submissions are correct and should be accepted. 101That conclusion is a sufficient answer to the defendants' abovementioned submissions on mitigation of damages. However, notwithstanding my conclusion in that respect, I will proceed to examine the decisions in Pamplin and Burstein for the purpose of identifying both the juridical basis for the mitigation of damages principle in defamation proceedings and the circumstances that determine its scope and application. 102Evidence that is admissible in reduction of damages may be admitted under a number of headings: Gatley on Libel and Slander p 842 para 33.26. One such heading is evidence properly before the court on some other issue. The decisions in Pamplin and Burstein, inter alia, addressed such evidence. Pamplin v Express Newspaper Ltd [1988] 1 WLR 116 103The plaintiff sued for damages in relation to an article published in the "Sunday Express". By way of background the plaintiff had been concerned that persons who could claim diplomatic immunity were able to avoid paying parking fines by the simple expedient of ignoring summons they may receive. He considered that to have been a loophole in the law. He decided to take steps to expose the "loophole" by arranging for his car to be registered in the name of his young son, then aged four or five. 104His plan worked for a while with parking offence tickets being safely ignored. 105An article published in the Sunday Express dealt with the car registration scheme and another similar scheme devised by the plaintiff whereby his son became the owner of a family television set. The article sued upon contained words, amongst others. "Spiv There maybe a few people who actually applaud Mr Pamplin's sleazy little ways of avoiding his legal responsibilities ..." 106The jury, in a second trial, it was observed, ordered "damages of the smallest coin of the realm, which we understand to be a one half penny". 107The defendant had obtained leave at the outset of the second trial to amend its defence. The amendments introduced a number of new matters: "(a) an allegation of lying about the number of parking tickets received and not paid, (b) an allegation of dishonest conduct in October 1980 when interviewing the victim of a rape, (c) an allegation of falsely representing in April 1983 that he was a journalist with 'The Sunday Times' and (d) an entirely fresh plea that the defendants would if necessary rely in mitigation of damages on the plaintiff's conviction at Preston on 9 October 1980 of failing to provide a specimen of breath for a breath test and, on the same occasion, wilfully obstructing a police constable in the execution of his duty. Evidence relating to these new matters was given at the hearing in October 1983 and this evidence was available for consideration by the jury together with the evidence tendered in support of the matters raised in the original amended defence": (at 118). 108One of two grounds in the plaintiff's appeal stated that the judge had misdirected the jury by telling them that they could take account of, in mitigation of damages, specific acts of misconduct relied upon by the defendants as part of their successful defence of publication. 109Neill LJ stated at 119: "In considering what evidence can be used in mitigation of damages it is necessary to draw a distinction between evidence which is put forward to show that the plaintiff is a man of bad reputation and evidence which is already before the court on some other issue. Evidence which relates solely to the plaintiff's bad reputation and which is used to support an argument that he should receive a smaller sum by way of damages than a person of unblemished reputation is governed by the following general rules." (my emphasis) 110The judgment then sets out the rules that determine the admissibility of evidence as to the plaintiff's general reputation and then continued at 120: "So much for evidence which is directed solely to establishing the plaintiff's previous bad reputation. But a defendant is also entitled to rely in mitigation of damages on any other evidence which is properly before the court and jury. This other evidence can include evidence which has been primarily directed to, for example, a plea of justification or fair comment. It is to be remembered that section 5 of the Defamation Act 1952 enables a defendant to succeed on the issue of liability even though he does not prove the truth of all the defamatory material of which complaint is made. ... There may be cases, however, where a defendant who puts forward a defence of justification will be unable to prove sufficient facts to establish the defence at common law and will also be unable to bring himself within the statutory extension of the defence contained in section 5 of the Defamation Act 1952. Nevertheless the defendant may be able to rely on such facts as he has proved to reduce the damages, perhaps almost to vanishing point. Thus a defence of partial justification, though it may not prevent the plaintiff from succeeding on the issue of liability, may be of great importance on the issue of damages." (my emphasis) 111Whilst there was found to have been a misdirection as explained at p 121 E-F, Neill LJ continued: "I feel bound to say that this part of the summing up contained misdirections. But the question then arises whether the misdirections occasioned any substantial wrong or miscarriage of justice. I am firmly of the opinion that the answer to this question is: No. I have already drawn attention, in reproducing the earlier passage from the summing up on damages, to the concessions which the plaintiff had to make about his conduct. He accepted that he could be described as an 'artful dodger' and that some of the things that he had done were 'slippery' and indeed 'unscrupulous.' In the light of these concessions, which were clearly relevant to partial justification, it does not seem to me to be of great moment that strictly speaking the jury were not entitled to take some of the same evidence into account in considering whether the damages should be mitigated because of his existing reputation." Discussion 112The principle in Pamplin was directly concerned with a defendant's entitlement to rely upon evidence in proceedings that established the existence of matters in the nature of past facts or events in mitigation of damages, being evidence as to facts that had been admitted for the purpose of proving the defendants plea (in that case a plea of justification or fair comment). The "facts" as to the plaintiff's past "conduct" referred to at p 121 G-H of the judgment and about which the plaintiff had made "concessions" in evidence were the conduct of the plaintiff having acted as "an artful dodger", and as having done things that were "slippery" and "unscrupulous". Evidence as to facts concerning the conduct of a person may, of course, impact upon his or her reputation. Such past "facts" having been proved to have existed, the evidence regarding them was held to be relevant to the plaintiff's "existing reputation" and hence relevant to damages. Burstein v Times Newspapers Ltd [2001] 1 WLR 579 113In Burstein v Times Newspapers Ltd the claimant sued for damages in relation to an article in the defendant's newspaper which stated that he had organised hecklers to wreck performances of modern atonal music. In their defence the defendants pleaded fair comment. They alleged that three years before the article was published the plaintiff had associated with a group called "the Hecklers" to oppose modernist atonal music, that the group encouraged the public to boo at the end of the performance of an opera and that he had been present at the performance and had booed. 114The judge below had struck out the defence and ruled that the facts pleaded in support of it were inadmissible evidence in mitigation of the claimant's damages. 115May LJ set out the particular facts that the defendants in Burstein wanted to rely upon in reduction of damages at [10]. Discussion 116It is clear from the analysis that evidence of factual matters (not matters in the nature of evaluation or opinion) adverse to a claimant's own past "conduct" and hence his or her past reputation, is admissible, albeit in limited extent, having regard to the facts proved in reduction of damages. 117The headnote to Burstein accurately states the principle concerning mitigation of damages as follows: "... that for the purposes of mitigating damages evidence of particular facts which were directly relevant to the contextual background in which a defamatory publication came to be made were not rendered inadmissible by any rule of common law, even though they might include matters which were not causally connected with the publication of the libel, or which concerned the claimant's general reputation, character or disposition, or which consisted of facts that in other circumstances might have been ingredients of a defence of justification ..." Decision 118There was, of course, no evidence that the food and service at Roco was in any way poor or below standard. In particular, there was no evidence that the food served at Roco was "unpalatable". The review was wholly defamatory of the plaintiffs in respect thereto in terms of the three pleaded imputations. 119Although the defendants contended that the evidence as to the food and service at Coco, as set out or referred to in the Schedule of Evidence, proved to matters of fact concerning the same, for reasons discussed above, properly considered, the evidence relied upon by the defendants did not establish objective fact. The evidence and the comments and the observations in the review, based on Mr Evans' personal experience of the items of food consumed by him and the observations made by him, reflect his personal reactions to them. There exists an important distinction between statements in the nature of evaluative assessments as to the food, being subjective assessments based on a reviewer's reaction to what he or she sees and tastes on the one hand, and matters of fact that are objectively verifiable, not involving comment, opinion or evaluation. 120The statements contained in the review, in my opinion, are properly characterised as statements of opinion rather than statements of fact contrary to the submissions made on behalf of the defendants. As previously stated, I accept Mr Evatt's submission that the distinction to which I have referred in the preceding paragraph must be recognised and given effect. 121I do not consider that Harrison J intended to make, or did make, findings of fact as to the quality of the food and the quality of the service at the Coco restaurant. His Honour observed: "174 ... He [Mr Evans] does not purport to assess the restaurant by reference to anything that he did not personally experience. For example, he commences his review by referring to 'more than half the dishes I've tried' being 'simply unpalatable'. It is obvious that Mr Evans is commenting on what he ate and differentiating between some dishes that he considered were good and those that he considered were not. This neither appears in its form nor its contents to be a statement of fact. Nor could it be. The ordinary reasonable reader would understand that Mr Evans or anyone else might arrive at a view of a restaurant's food that may or may not be shared by others who may have eaten there. Some food he liked and some food he did not like. That was his opinion. That is what he said in his review. The same applies to the service and his view of anyone who would employ a chef who produced the food he consumed." 122His Honour further observed: "176 ... It is never possible to know whether Mr Evans' perceptions of what he ate would always or ever accord with the perceptions of his readers. Mr Evans can do no more than give his subjective assessments of the restaurant. The fact that room exists for more than one opinion was exemplified in the evidence given by the plaintiffs' witnesses who attested to their enjoyment of the Coco Roco experience ..." 123His Honour a little later in that paragraph, referring to Mr Evans' review, observed: "... these statements are not akin to statements of fact ..." See also [177]. 124The statements in the review and the evidence of Mr Evans as to his subjective assessments, valuations and opinions do not, in my opinion, place this case in the category of case to which Pamplin and Burstein may apply. In both of those cases the "facts" related to past conduct of or past events directly involving the particular plaintiffs in those cases, not matters of evaluation or opinion. They were facts concerning past actions and events that adversely affected reputation in each case. Further, the principle that permits evidence of bad character based on past facts to be admitted in defamation proceedings, when examined in the circumstances of those two cases, clearly do not have application in the circumstances of the present case where there is neither evidence of fact nor findings of primary fact made in other court proceedings. Conclusions 125In relation to the defendants' defence of mitigation, my conclusions are as follows: (1) The statements of Mr Evans in the review and in evidence as to the quality of the food served at Coco and the service there observed by him were statements/evidence of his opinion on those matters. They were not statements/evidence of fact. (2) Such findings as were made by Harrison J in the present proceedings were not findings of fact concerning the quality of food served or the service at the Coco restaurant. (3) Such findings as were made by Harrison J are not and cannot constitute a basis for mitigation of damages. (4) The application of the principle of mitigation in Pamplin and Burstein in each case was dependent and based upon proof of factual matters of a kind that diminished the reputations of each plaintiff. (5) Any findings that were made by Harrison J could not, for reasons discussed above, constitute post-publication findings that diminished the plaintiffs' reputations. (6) On the basis of the Court of Appeal's judgment and orders, the date upon which damages were to be determined was 18 December 2009, the date upon which judgment was delivered by Harrison J. It follows that such findings as were made by Harrison J have no public exposure or notoriety as at the date that damages were to have been assessed and awarded, (18 December 2009). (7) The assessment of damages relates to the defamatory imputations concerning Coco and Roco. 126The above conclusions do not, of course, mean that I have no regard in assessing damages to the matters of opinion expressed by Mr Evans in the review, or the evidence and opinions of other witnesses called in the plaintiffs' case who dined at Coco. The opinions expressed all provide context for the purposes of the assessment of damages. The opinion of a food reviewer may, of course, not be an opinion that is shared at all by members of the public. That fact is reflected both in the evidence of the plaintiffs' witnesses who spoke of their enjoyment of their experience at Coco. It is also reflected in the observations of Harrison J to which I have referred at [121] and [122] above. 127Likewise the fact that the review was found by the Court of Appeal to have included the Roco bistro, a substantial enterprise in itself, meant that the defamatory statements made in reference to it were publicised notwithstanding that Mr Evans had never visited Roco and therefore had no experience at all of either the food served or the service provided at Roco. PART 7 - ASSESSMENT OF DAMAGES: STATUTORY PROVISIONS AND RELEVANT PRINCIPLES 128The provisions of Part 4, Division 8 of the 1974 Act govern the approach to be followed and applied in the assessment of damages for defamation. 129Section 46 is in the following terms: "General (1) In this part relevant harm means, in relation to damages for defamation: (a) harm suffered by the person defamed, or (b) ... (2) Damages for defamation shall be the damages recoverable in accordance with the common law, but limited to damages for relevant harm. (3) In particular, damages for defamation: (a) shall not include exemplary damages, and (b) shall not be affected by the malice or other state of mind of the publisher at the time of the publication complained of or at any other time, except as far as that malice or other state of mind affects the relevant harm." 130An award of damages for defamation serves three purposes: (i) consolation for the personal distress and hurt caused to the plaintiff(s) by the publication; (ii) reparation for harm done to the plaintiffs' personal, and in some cases, professional reputation; and (iii) the vindication of the plaintiffs' reputation: Carson v John Fairfax & Sons Limited [1993] HCA 31; (1993) 178 CLR 44 at 60. 131In Carson it was observed that the first two purposes are frequently considered together and constitute consolation for the wrong done, in this case, to the plaintiffs. Vindication looks to the attitude of others to the plaintiff(s). The sum awarded must be at least the minimum necessary to signal to the public the vindication of the reputation of the plaintiff(s). 132Since the purpose of the action is to vindicate a plaintiff's reputation, the sums awarded under these two heads in (i) and (ii) above must be sufficient to "vindicate" each of the plaintiffs. "Vindication" is not a separate head of general damages entitling each plaintiff to a right to sums of money over and above those awarded for injury to feelings and injury to reputation. Rather vindication is a function of the award of damages. Holt v TCN Channel Nine Pty Ltd [2012] NSWSC 770 at [159] per Adamson J citing John Fairfax & Sons v Kelly (1987) 8 NSWLR 131 at 142; Cassall and Co Ltd [1972] AC 1027 at 1071. 133In Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327, Hayne J made the following observations: * In many cases of defamation the wrong that is said to have been done to the person defamed is alleged to have caused personal distress and hurt and to have caused harm to that person's personal (and in that case professional) reputation: at [67] * Assigning a money sum that is sufficient to remedy those harms and to vindicate the person's reputation translates losses which have no market value into amounts of money: at [67] * In neither defamation nor in other cases of non-pecuniary loss can any standard of evaluation be employed except one that is described in qualitative terms and therefore necessarily in imprecise terms. The damages that may be awarded "are such as the jury may give when the judge cannot point out any measure by which they are to be assessed, except the opinion and judgment of a reasonable man", citing Prehn v Royal Bank of Liverpool (1870) LR 5 Ex 92 at 99-100 per Martin B: at [67]. * In searching for the standard against which a manifestly excessive award for defamation can be judged, account must be taken of three basis propositions. First, damage to reputation is not a commodity having a market value. Reputation and money are in that sense incommensurable. Secondly, comparisons between awards for defamation are difficult. Every defamation, and every award of damages for defamation, is necessarily unique. Thirdly, because the available remedy is damages, courts can, and must have regard to what is allowed as damages for other kinds of non-pecuniary injury: at [66]. * The measure of what is reasonable compensation, if not supplied by the collected wisdom of a jury, must be distilled from within the transactions of the law. That is, the standard against which an allegation that damages for defamation are manifestly excessive must be judged is a standard which is to be found within the administration of the law. It is not some external standard supplied, for example, by transactions within a market. Because reputation is not bought and sold, it is only in the courts that money values are assigned to the consequences of infliction of harm to reputation: at [68]. * The amount awarded for defamation should reflect the effect which the particular defamation had on the individual plaintiff. It follows that the drawing of direct comparisons between particular cases is apt to mislead. The amount allowed in each case should reflect the subjective effect of the defamation on the plaintiff: at [69]. * Section 46A of the 1974 Act gives effect to the proposition stated by the majority in Carson at 56-60 that there needs to be an appropriate or rational relationship between the scale of awards in defamation and personal injury cases. * The comparison which s 46A requires limits awards for damages. What, however, it does not do is identify where, within the outer limits of proper awards, a particular case should find its proper level: at [72]. * One of the principal purposes of an award of damages for defamation is to vindicate the wrong that was done: at [75]. 134A trial judge is required to assess damages in relation to the injury or harm caused by the defamation Selecta Homes and Building Co Pty Ltd v Advertiser Weekend Publishing Co Pty Ltd (2001) SASC 140 at [144]. 135In Mahommed, McColl JA (with whom Spigelman CJ and Beazley JA as her Honour then was, agreed) said at [271]: "When considering the issue of a rational relationship between the relevant harm and the amount of damages (s 46A) it must be recalled that a person's reputation is accorded high value. '[M]urdering a man's reputation by a scandalous libel may be compared to murdering his person': Webb v Blach (1928) 41 CLR 331 at 364; [1928] HCA 50 per Isaacs J. As Mahoney ACJ (Handley JA concurring) said (at 193) in Crampton v Nugawela (1996) 41 NSWLR 176 '[in] some cases, a person's reputation is, in a relevant sense, his whole life.'" 136The actionable imputations or wrongs are the imputations which have been found by the jury in these proceedings under s 7A(3) to be carried by the matter complained of and to be defamatory. 137As to the appropriate or rational relationship between awards, on the one hand, for non-pecuniary injury in defamation and, on the other, personal injury cases, s 46A of the 1974 Act provides: "(1) In determining the amount of damages to be awarded in any proceedings for defamation, the court is to ensure that there is an appropriate and rational relationship between the relevant harm and the amount of damages awarded. (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)." 138Hayne J in Rogers further stated that: "... it is of the first importance to recall the fundamental principle that the damages to be awarded for defamation must compensate for the effect of the defamation on the particular plaintiff. ...": (at [73]). 139Damages awarded for defamation accordingly must stand in a proper relationship with awards for the non-economic consequences of personal injury but that: "... the relationship which s 46A(2) identifies is not, however, some precise or mathematical relationship between the particular cases of defamation and personal injury or between classes of such cases. To do that would compare the incomparable ...": per Hayne J at [74]. 140As his Honour stated in Rogers at [75], the section invites attention to the nature of the injury done by the defamation compared with the consequences of physical injury. The injury done by defamation, even if serious, is often evanescent, whereas some personal injuries are permanent and devastatingly disabling. 141As in every case, so in the present, it is important that the basis upon which a court may award damages for defamation is explained and made clear to the parties. There is a particular reason for doing so in the present case. Mr Evatt in his final submissions stated that he had been instructed to put by way of a submission a particularly large amount of money as the appropriate amount of damages to be awarded in this case. It is unnecessary here to specify the amount referred to at T 216 for it clearly reflects a complete misunderstanding by the plaintiffs as to the basis for and the statutory provisions by which I am required to assess the damages in the proceedings. The assessment of damages in these proceedings, of course, for reasons earlier noted, does not involve an assessment of any loss which either or both of their companies may have suffered with the closure of the Coco and Roco restaurants in 2004. 142In this latter respect the plaintiffs' proceedings were opened by Mr Evatt before Harrison J as follows: "... there is no claim for financial loss in this case. So when I said that the restaurant folded and collapsed as a result of the review, that goes to hurt and upset and injury to reputation and there's no claim for financial loss": (T 10 November 2009 at 35:20-23). 143In relation to damages in respect of non-economic loss in personal injury litigation, there existed, as at the date of publication (30 September 2003) statutory caps that applied to the award of damages for non-economic loss. 144Under ss 16 and 17 Civil Liability Act 2002 (NSW) and the Civil Liability (Non-economic Loss) Order 2010 the maximum amount of damages that may be awarded for non-economic loss is $365,000. 145Under ss 134 and 146 Motor Accidents Compensation Act 1999 (NSW) and the Motor Accidents Compensation (Determination of Loss) Order No 3 the maximum amount as at the relevant date that a court could award for non-economic loss was $309,000. 146As at the date of publication the Workers Compensation Act 1987 (NSW) no longer prescribed a maximum amount that a court may award for non-economic loss. The only damages available in cases to which that Act applies are for economic loss pursuant to s 151G. Internet Publication 147The evidence as to the facts concerning the internet publication was as follows: (i) On 30 September 2003, the article was first published on the Sydney Morning Herald website and in "Good Living" lift-out of the newspaper (Exhibits F, G, Q and R). (ii) On 30 June 2006, the Court of Appeal delivered judgment. The review was removed from the SMH website. (iii) On 14 June 2007, the High Court delivered judgment. The review was thereafter restored to the website and has remained there from that date. (iv) On 18 December 2009, an article was published on the Sydney Morning Herald website which referred to the judgment in the proceedings of Harrison J (Exhibits H and S). The article reported that defences of comment and truth had been established before this Court (Harrison J) but that the High Court had ruled in favour of the restaurant. 148The evidence of Mr Ciric and of Aleksandra Gacic established that they had seen the review on the internet having downloaded the article. The evidence as to particular downloads from the Sydney Morning Herald website was as follows: (a) Exhibit A - the review was downloaded from the Sydney Morning Herald website - Good Living section - on 10 December 2012. (b) Exhibit G - the review was downloaded from the Sydney Morning Herald/News/National website on 10 December 2012. (c) Exhibit Q - the review was downloaded from the Sydney Morning Herald website - Good Living section - on 31 January 2013. (d) Exhibit R - the review was downloaded from the Sydney Morning Herald/News/National website on 31 January 2013. Evidence of the Plaintiffs 149The evidence given by each of the plaintiffs in the hearing before Harrison J was comprehensively set out in his Honour's judgment. Their evidence, as noted above, was supplemented by evidence at the damages hearing: (i) Aleksandra Gacic 150Aleksandra Gacic was born in 1969 in a small town approximately 80km south of Belgrade in Serbia, then part of the former Yugoslav Republic. Her father was a doctor and she went to Belgrade University for six years where she studied economics. She came to Australia in 1999. She had no relevant experience relating to restaurants before she came to this country. 151The evidence before Harrison J established that in 2002 the third plaintiff, Mr Ciric, conceived the idea of a restaurant and that he was the driving force behind what became Coco Roco. 152The evidence established that the plaintiffs contributed their own capital to the venture and they guaranteed significant loans advanced to the companies established for the purpose of the restaurants. 153Ms Gacic heard about the review on the day it was published at about 10.30am. As Harrison J observed at [44], when she read what was written she was devastated. She was asked: "Q. Why did it upset you or devastate you? A. Number 1, it wasn't the truth. Number 2, I thought that the person who wrote the review and the person - two or three people that were involved in establishing the restaurant did it together" ... Q. Why were you upset? A. I knew that's the end of the story for the restaurant. I knew it would be closed. It was a question how much money we can pour into it to keep it open, but it wasn't a question that - we were not able to do any longer. That we invested for ten months prior to the opening to be as it was. ... Q. Do you attach any importance to the fact that this review was in the Sydney Morning Herald Good Living? Did that have any effect on you? A. Yes. Q. What effect? A. That section in the Sydney Morning Herald and the review in the Good Living was very well known that, if it's not old, then 99.9% of the people that were target market for our restaurant were readers of that section of the Sydney Morning Herald." 154As Harrison J observed at [45], after she read the review Ms Gacic said she could not walk for the next half hour. She said that following publication of the review, the level of reservations fell dramatically and cancellations of previously made bookings increased. His Honour noted that the restaurants' reservation book or computer records were not available as verification as the administrator of one of the companies had taken the business records in early 2004. 155Ms Gacic gave further evidence that the cancellations of both individual and corporate bookings caused her a lot of upset. She stated that the business that they had planned and established: "... was just ruined over night ..." 156His Honour noted at [49], that since publication of the review Ms Gacic's evidence was that she had noticed a change in the attitude to her of friends, neighbours, business associates and the like. She said, "some people felt pity about me and some people were avoiding to come to the restaurant, some people felt sorry, some people felt very angry". This, she said, was all expressed to her and upset her. She said she was no longer invited to functions and had received no apology from the defendants and that had also upset her. 157In her evidence before me at the damages hearing, Ms Gacic identified photographs showing the restaurant Coco, in particular, the kitchen and dining areas. The photographs became Exhibit C in the proceedings. 158A further bundle of photographs were identified by her as being photographs of the Roco restaurant. Those photographs became Exhibit D in the proceedings. 159She gave further evidence in relation to the Roco restaurant. It, as noted above, was a bistro that had 300 seats. Ms Gacic said that each restaurant, Coco and Roco had its own kitchen and each had its own chef and staff. Each also had its own menus and wine lists. 160In relation to the Roco restaurant, Harrison J observed that, on the evidence, Roco had more customers than Coco because it had more seats and that Ms Gacic had described Roco as "more approachable". 161In the proceedings before me she stated that she had recently seen Mr Evans' review of 30 September 2003 on the internet. She said that she had in fact seen it on many occasions. When asked whether it caused her upset she said '"enormously": T 25. A copy of what she saw on the internet was tendered. It became Exhibit E in the present proceedings. She said that the article was still on the internet, including on the Sydney Morning Herald website: T 26. 162A copy of the article published on the latter website was tendered and became Exhibit F in the proceedings. 163A further copy of the same article appeared in the Sydney Morning Herald news/national website bearing date 10 December 2012. As noted above, a copy was admitted and marked Exhibit G in the present proceedings. Ms Gacic stated that she believed that the internet version on the Herald website appeared from 30 September 2003 until the Court of Appeal judgment on 30 June 2006, when it was taken off but came back on after the High Court judgment in the proceedings on 14 June 2007: T 27. She said it had remained there ever since. 164She was shown a copy of the article on the Sydney Morning Herald website after the judgment of Harrison J. A copy of the article became Exhibit H in the present proceedings. 165When asked what her reaction was to these internet publications, she said "It's a great disappointment": T 28. In particular, after the judgment of the Court of Appeal was delivered she said as to the continued presence of articles: "it is extremely disappointing and it is extremely upsetting that everyone still can read, certainly read on internet, the review it's outrageous. It shouldn't be there. We asked them to remove it": T 28. 166She again said in evidence in the damages hearing that she had never received an apology. When asked whether that had caused her upset, she replied: "It hurts a lot. We haven't asked for any damages, at the beginning we just asked for a simple apology to be published in the Sydney Morning Herald so we can try to rebuild the restaurant, and -": (T 28). 167She said that many friends, family, cousins and other relatives had spoken to her about the case. She said that she had received phone calls from friends mainly from Melbourne and Perth, Brisbane and some from overseas: T 29. 168She said she spoke to a Mr Andrew Edwards from Perth. She said in relation to what he said, "He was surprised that it is still there when we told him that we won the case ..." T 29. 169Ms Gacic referred to a Mr Milo who in August 2012 was inquiring about her father's health "... and why we were lying about that we won the case to our parents ..." (T 29) and that this caused upset to her, that is to say, that someone thought that they were lying to "our parents". 170She said a lot of people in Sydney had asked why the article was still on the internet. 171She said she had a call from a friend in Geelong, Melbourne, by the name of Tania in April/May 2012. She said that that person "almost called me a liar": T 30. She said that the person didn't believe that they had "won the case": T 30. (ii) Ljiljana Gacic 172Ljiljana Gacic was born in Belgrade in 1964. She was educated at high school and university in Serbia, having studied philosophy, classics and aesthetics. Before coming to Australia she had worked in two independent television stations in Serbia and came to this country in February 2000. 173Ms Gacic said in evidence before Harrison J that she was involved in promotion and public relations work concerning restaurants. She had assisted her husband, the third plaintiff, in promoting restaurants that were operated by him in Europe. 174She stated that between 5 and 30 September 2003, both restaurants were "nearly full". She said that business was better than they had anticipated and had many bookings for both restaurants. 175In cross-examination it was put to her than on 5 September 2003, when Mr Evans visited Coco, the restaurant was not full. She agreed and said that that was the first day of official "opening". She said that the prior opening on 15 August had been a "soft opening". 176On 30 September 2003, she arrived at Coco Roco. She said that when she read the review: "... I cannot believe. I was stressed, I was angry. It was, I don't know the right words to explain in English but I cannot believe anyone in the world can do something like this with a purpose. I just cannot believe": (T 134). 177Ms Gacic said she was more than upset. She did not know the word. She said she had lost sleep over a long period. 178Her evidence was that she was hurt by the review "... and our names on internet, everywhere" (T 135). 179Ms Gacic said that the review was still on the internet and that she still worries about the review and had experienced nervous upset as a result of it. 180She said that after the review the business deteriorated. Whilst before the review she had invitations to functions, they ceased after it was published. She said that she had never received an apology from either of the defendants. She said that failure of an apology had caused her to be very upset, that she had been very worried and stressed by the court case. 181In relation to the imputations as to unpalatable food and bad service she said that they false. Those particular imputations she said had made her "sick": T 138. 182In her evidence given in the damages hearing on 10 December 2012, Ms Gacic said that she had seen the review on the Sydney Morning Herald website. When asked what her reaction to it was, she responded: "I'm sick": T 58. 183She said she had seen the review frequently throughout 2012. 184She said that she had not received an apology from either of the defendants and that that had adversely affected her, saying "I feel again humiliated, insult, sick, angry, everything": T 59:30-32. 185Ms Gacic said that she had received many phone calls concerning the article over the previous three years and in particular in 2012. The calls included people calling from Canada, the United States and Europe. She stated that one call was particularly upsetting. It was from the sister of her best friend, Jelena Ardjovic, who lived in Geelong: T 64. Ms Ardjovic had stated, in effect, that Ms Gacic had lied when she said they had succeeded in the appeal because the review was still on the internet. She said that "they" did not believe her - that is that they had won the case. She said 'it is very humiliating ...": T 65:3-7. 186She said she had other calls of a similar nature; one being even worse. That, she said, was a call from a person in Mt Eliza, South Australia. That person, a male, had said to her that she was not allowed to lie to her parents because the review was still on the net and that if she, her sister and husband had won the case then it would not be on the net: T 65:20-25. She said that the person in question, a friend to her parents, got angry with her. She said that her reaction was to cry: T 65:25-30. 187In cross-examination she agreed that she had always maintained the opinion that the review was the result of "an evil conspiracy" between Mr Evans and other people. She agreed and said that she still maintained that unpalatable food was not served at Coco Roco: T 67:35-45. Further, she did not accept that Coco Roco had provided bad service: T 67:49-T 68:1. 188She confirmed that she was of the opinion that Mr Evans' opinion as expressed in the review as to the food and service was untrue: T 68:49-50. 189She was asked if the statements by Mr Evans as to the food and service were the main cause of her upset and hurt. She replied in the negative and said that publishing of the review had caused her upset. She said that she was upset by the publication of the review and the fact that Mr Evans had never apologised to her: T 69:1-5. 190As to her husband, the third plaintiff, Mr Ciric, she said that she had noted he had become "more closed", that he was formerly an extroverted person but had become introverted: T 63:1-10. (iii) Branislav Ciric 191The third plaintiff, Mr Ciric, gave evidence in the first proceedings on 11 November 2009 that he was born in 1949. He had, before coming to Australia, operated restaurants. He said that he had managed restaurants as owner, co-owner and as a consultant: T 11 November 2009 at 158-159. 192From 1972 to 1980 he was living on a large estate with a restaurant organisation called Central Tourist. He also worked for the Yugoslav Olympic Committee and undertook work during the Munich Olympics in 1972, in the Montreal Games in 1976, the Moscow Olympics in 1980 and in Sarajevo during the 1984 Winter Olympics. 193In the years before coming to Australia in 2000, Mr Ciric ran a disco club, named 'Nana' and had been a restaurant manager: T 11 November 2009 at 159. 194In about April 2002, he set up a company, Syd Mirror Pty Limited of which he and the first and second plaintiffs became directors and shareholders. 195Mr Ciric said that between the opening of the restaurant on 4 September 2003 up until Mr Evans' review, the business of the two restaurants was better than he had expected: T 165. He said there were a lot of people in attendance and there were a lot of reservations. Roco, he said, had more reservations: T 11 November 2009 at 166. 196He said his reaction after he read the review was one of shock: T 11 November 2009 at 166. From that moment he said he thought the business had no future: T 11 November 2009 at 166. He said it had an "impact" on his life "and still has an impact on my life": T 11 November 2009 at 167. He said both restaurants became "eerily empty": T 11 November 2009 at 167. 197As far as the business was concerned, he said: "October was tragic. November was bearable, simply because of the season and some functions which were not cancelled ... My opinion, December was the month which is supposed to be the busiest, was very bad": (T 11 November 2009 at 168) 198He said the imputations were "false", and they caused him upset: T 11 November 2009 at 170. 199Mr Ciric's evidence was to the effect that he had seen the article on the internet in 2012 and that he had had telephone calls from a number of people in Australia and in Europe and America pointing out to him that the article was still on the internet. 200Mr Ciric gave evidence that there had been continued publication of the review on the internet. 201He gave evidence of his attempts to re-enter the hospitability industry. Mr Evatt referred to the evidence given by him that he had tried to obtain work in January at a Greek restaurant in Leichhardt but that the owner was not prepared to take him on because of the history associated with the Coco Roco restaurant. Extent of Newspaper Publication 202The evidence (and in particular Exhibit P - Answer to interrogatories) established the following matters concerning the extent of publication of the review as at the date of publication (30 September 2003): * 836,000 readers in NSW (rolling 12 month average readership estimates) * 192,555 in NSW (distribution and sales) * 192,555 in Victoria (distribution and sales) * 3,446 in Queensland (distribution and sales) * 66 in Tasmania (distribution and sales) * 161 in Western Australia (distribution and sales) * 383 in South Australia (distribution and sales) * 4,828 in ACT (distribution and sales) The Assessment of Damages 203The plaintiffs claim in the Further Amended Statement of Claim (p 14) compensatory damages, aggravated damages and exemplary damages (the latter in respect of publication in States other than New South Wales). 204McColl JA at [112]-[113], noted that the primary judge had overlooked what her Honour stated: "... could be a significant factor on the assessment of damages in the appellants' claims for aggravated and exemplary damages. Matters of aggravation may push an award of damages towards the higher end of the scale: Cassell & Co Ltd v Broome [1972] AC 1027 at [1085], per Lord Reid; see also Andrews v John Fairfax & Sons Ltd (1980) 2 NSWLR 225 at 240, 249. Moreover, although the appellants did not expressly refer to it, I assume their claim for exemplary damages has not been examined. Aggravated damages are awarded for hurt to feelings. They necessarily depend upon observations of the claimant and his or her reaction to the matters particularised by way of aggravation. It is not possible for this Court to have the benefit of seeing the appellants give their evidence in this respect." 205Her Honour proceeded at [114] to discuss the circumstances in which exemplary damages are awarded and noted: "... the question whether the respondents engaged in conduct warranting an award of exemplary damages is also a matter which should be considered at first instance." 206In the Plaintiffs' Submissions in Reply at [32], it was submitted: "The problem for the Defendants is that they have refused to take the three publications (Exhibits F, G, H or Q, R, S) off the internet even though they know they are false and defamatory. The continued publication on the internet which apparently will be forever warrants exemplary damages in an amount which expresses the Court's displeasure. The quantum should serve as a warning to Fairfax that they will be punished financially if they won't take down a matter which the Court of Appeal and the High Court have established were wrong." 207In his oral submissions, Mr Evatt stated that the continued publication on the internet of the review went to exemplary damages but that it also went to aggravated damages and to general compensatory damages providing that there was no overlap in the assessment: T 206:29-40. 208The defendants in their Closing Submissions on Damages (at [41]) noted that there was no evidence that the internet articles had been given any prominence or that "... they could otherwise be discovered" except "as a consequence of diligent efforts to search for them". 209The submission for the plaintiffs was that the defendants' submission was contradicted by the unchallenged evidence of the plaintiff, Aleksandra Gacic, that all a user had to do was to type in the names of one or other of the plaintiffs or key words such as "bad review". 210Mr Evatt submitted: "... this means that when a user types in the names of any of the Plaintiffs onto Google or some other search engine the three publications would appear or there would be a link to them. It is not surprising that Mr Ciric has been unable to obtain employment in the restaurant business ..." (Plaintiffs' Submissions in Reply at [33]). 211Mr Evatt relied upon the evidence as to the ease with which access to the review on the internet can be achieved and the all pervasive nature of internet publication: T 207:5-20. 212Mr Evatt referred to the evidence of the plaintiffs, including in particular Ms Gacic as to her receipt of phone calls from persons in Geelong, Adelaide, Brisbane and overseas indicating that the article was still on the internet and inquiring as to what the true position was, as in some cases they indicated to her that they had understood that the plaintiffs had won the case: T 206:40-50. 213Evidence was called from Mr Dean Wright, solicitor and a friend of the plaintiffs. He said he could not believe that the review was still on the website which he said had still been on the internet when he checked two weeks previously. He had met the plaintiffs about three years before 2013. When asked of their demeanour when discussing the internet publication, Mr Wright said: "They were very unhappy. I would, in my 47 years of human experience, I would describe them as broken people": (T 45). 214Mr Wright said that he discussed the fact of the internet publication many times with the plaintiffs "this year alone probably over a dozen" and they appeared "very, very upset": T 45. He said in such discussions he gained the impression that "they were absolutely demoralised, ashamed and extremely frustrated human beings": T 46. 215Ms Felicity Tilley gave evidence before Harrison J on 12 November 2009. The transcript of her evidence (pp 270-288) was tendered in the present hearing (Exhibit N). She also gave evidence in the damages hearing on 10 December 2012. 216Ms Tilley initially met the plaintiffs when she was working as a legal secretary at the legal firm that acted on behalf of the plaintiffs in relation to the restaurant. She first met them, she said, probably in 2001. She attended the restaurant with family members on more than one occasion. This included the Roco restaurant. 217Ms Tilley had been apprised at an early stage of the plaintiffs' plans for the Coco Roco. 218She referred to the review in disparaging terms (T 272). Based on her experience she said that she thought it had been "... a fantastic restaurant" (T 273). 219After the review, she said that the behaviour of Ljiljana Gacic changed: "... from a glamorous, beautiful, confident woman to being someone who is totally off her centre. She was thrown totally off her centre. She became extremely emotional ... There were times when I would call and I couldn't speak to her at all ...": (T 275:15-25). 220Ms Tilley said that she observed that Ljiljana Gacic changed in appearance and put on weight: T 277:10-20. 221In evidence in the damages hearing she said she had seen the review on the internet since judgment was given in the first hearing: T 70:35-40. She could not remember whether she had seen it in 2011 or early in 2012. She had again seen it on the website two weeks before giving evidence on 10 December 2012. 222She said she had discussed the publication on the internet with Ljiljana Gacic. Asked what the latter's reaction was when it was discussed she said: "She has been distraught. She just couldn't believe that it was still up there": T 70-45:50. 223She said that since she had given evidence in the first hearing, Ljiljana Gacic "... has got worse": T 71:5-10. She said that she appeared to be unwell and she had been unable to visit her on a couple of occasions for that reason. She said that she is very emotional: T 71:10-15. 224She said that Aleksandra Gacic changed from being a very confident and optimistic and happy person to being "... a very wound up person": T 275:45-50. 225She said she also noted changes in Mr Ciric. Prior to the article she said he was a very confident man, quite optimistic and very outgoing. She said he changed, describing him in evidence: "he's a broken man": T 276:15-20. 226She said that Mr Ciric had become more and more depressed. 227Mr Georgious gave evidence both before Harrison J and in the subsequent damages hearing. His evidence in the first hearing was tendered in the present hearing and became Exhibit O (T 13 November 2009 at 289-297). 228Mr Georgious' occupation was the installation of point of sale systems in the hospitality industry, and he had previously owned restaurants. 229Mr Georgious said that he was the partner of Aleksandra Gacic. They had been together since September 2000. He was involved in the process of helping the plaintiffs set up Coco Roco. 230He had dined at both Coco and Roco and considered that the quality of the food was very good: T 13 November 2009 at 293:1-10. 231He said he was with Aleksandra Gacic when she read the review. He said: "... she was dumbfounded when she got it. It took her a while to recover ...": (T 13 November 2009 at 293:25-35). 232When asked as to her reaction when she read the article, he said: "... Oh, she was devastated. That's the only word I can use. Totally devastated": T 293:30-40. 233He said that subsequently he observed that Ljiljana Gacic changed from being a happy person to being miserable. He made a similar comment in relation to the other two plaintiffs: T 293:45-50. He said in due course Ljiljana Gacic put on weight and it was hard to talk to her. 234Mr Georgious gave evidence of his observations as to the decline in patronage of the Coco restaurant following the review: T 294:5-15. 235In his evidence on 10 December 2012, he said that he had checked a few times to see if the review was still on the internet and that he had seen it a few times over the previous three years. 236He discussed with the plaintiffs, principally with Aleksandra Gacic, the review being on the internet over the previous three years and in particular in the 2012 year. He said: "... every time that someone ever mentions it, that they've seen the article on the net, she just - I'm sorry, she loses it. She just gets very upset": (T 74:40-50). 237He said that he had friends mention that the review was still on the net and that he had friends inquiring "what's happening with the case": T 74:45-50. 238When he said that he had told Aleksandra about the friends' comments he said that, "... she just gets very upset about it": T 75:1-6. (a) Compensatory Damages 239The evidence of each of the plaintiffs was that they had worked in their respective fields in Europe before coming to Australia. The third plaintiff, Mr Ciric, had had substantial experience in the hospitality industry, in particular in the restaurant industry in Europe, including in particular in Germany. There was no dispute as to the fact that each of the plaintiffs were persons of good reputation. 240Accordingly in the present case, it should be accepted that each of the plaintiffs had, prior to the review's publication, been decent and hardworking people who came to Australia to make a new life and that after settling in this country they pursued their individual occupations before the concept of the Coco Roco restaurant enterprise was conceived and realised. 241The matter complained of by the plaintiffs in the present case, was published in the Good Living section of the Sydney Morning Herald, a prominent daily newspaper with a wide circulation and wide readership. 242As Hayne J (Gleeson CJ and Gummow J agreeing) observed in Rogers v Nationwide News Pty Ltd, supra, at [81] in the determination of compensatory damages an appropriate amount by way of compensatory damages it is necessary for a court to have regard to the effect of the publication on the particular plaintiff and that general statements as to distress and hurt feelings are insufficient. What must be taken into account is the subjective response of the plaintiff. Hayne J in Rogers also discussed the difficulty in direct comparison of the outcome of litigation in one case from another and that it was a matter of "first importance" to identify what the features or characteristics of a case are in seeking to make any comparison: "... where, as in the case with both defamation and personal injury, so much depends on the effect of the wrong on the particular plaintiff, the drawing of such comparisons has obvious difficulty": (at [82]). (emphasis added) 243Consistent with principle and relevant statutory provisions, in determining the amount of damages to be awarded to each of the plaintiffs, it is necessary, as earlier stated, that there is an appropriate and rational relationship between the harm suffered by each individual plaintiff and the amount of damages to be awarded. . 244The evidence in the present case established that the plaintiffs had a substantial personal investment and potential liability associated with the Coco Roco enterprise. That fact in itself does not, of course, directly impact upon the appropriate assessment of damages, there being no claim for special damages (economic loss) for reasons earlier stated. It forms part of the contextual background such that the feelings they said they experienced and the impact upon them, having read the subject review, may be properly understood. 245The unchallenged evidence given by each of the plaintiffs was that they were severely affected by the defamatory review, that it has caused harm to them as they described in evidence and that they, in particular, each suffered acute grief and distress as a result of the publication of the matters complained of. 246I have referred to the requirement to assess damages in relation to the injury and harm caused by the defamation: [134] above. In undertaking the assessment in this case it has been necessary to ensure that the compensatory damages relate to the injury or harm suffered by each of the plaintiffs caused by the defamation, and not any "injury" or harm otherwise related to the collapse of the Coco Roco business and the resulting financial and other repercussions for the plaintiffs. 247Accordingly, the evidence of each of the plaintiffs, and of Mr Wright, Ms Tilley and Mr Georgious, has been assessed with that important requirement in mind. 248Having heard and seen the plaintiffs give evidence, I unreservedly accept that the plaintiffs each have suffered considerable and ongoing distress and hurt as a result of the publication of the matters complained of. I do not, as I have earlier stated, accept the submission made on behalf of the defendants that the plaintiffs should only be awarded "modest" compensatory damages. They are each entitled to an appropriate award of damages for the "relevant harm" as defined by s 46 of the 1974 Act that is at a level that has an appropriate and rational relationship to the harm each has suffered in accordance with the evidence. 249The imputations, in particular the "unpalatable food imputation" and the "incompetence imputation" were extremely adverse to the plaintiffs so far as their reputation in the restaurant industry in the States in which the review was published. The relevant sectors of that industry in which they operated Coco Roco included both the field of fine dining or sophisticated restaurants as well as that involving the more casual restaurant sector in which the restaurant Roco operated. 250The production and service of "unpalatable" food in either the fine dining area and the bistro-style restaurant enterprise is plainly amongst the most adverse or severe criticisms of a restaurant. The large readership of the Sydney Morning Herald Good Living section may be considered to be but one matter to be taken into account in assessing the adverse impact of the article to the plaintiffs. 251I have referred earlier to the fact that in relation to the review found to be defamatory of the plaintiffs in respect of both the restaurant (Coco) and bistro (Roco), Mr Evans had no experience of the latter to support the comments made in the review. The Roco bistro represented a substantial part of the enterprise that had been established by the plaintiffs. 252McColl JA in her judgment on the appeal by the plaintiffs, referred to the fact that the jury had found the incompetence imputation against each plaintiff. Her Honour observed, at [85]: "... Although, as the appellants submit, there were no explicit facts or references to facts in the matter complained of which referred to their competency, it was open to the s 7A jury to conclude, as it manifestly did, that, applying the conventional test as to whether an imputation was conveyed, the incompetence imputation was conveyed of and concerning each appellant. They were, like the newspaper proprietor who was the plaintiff in Kemsley v Foot [1951] 2 KB 34, persons who had submitted their 'work' in the form of the Coco and Roco restaurants to the public. They bore ultimate responsibility for the conduct of the establishment both, it might be inferred, in the selection of the staff and the menu." 253Plainly the imputation as to incompetence made against each plaintiff was a significant one as it was directed to the ability and capacity to conduct a restaurant and bistro such as Coco and Roco. 254The review was expressed in pungent and strong deprecatory terms as to the quality of the food and service experienced at the Coco restaurant and was defamatory of the plaintiffs in respect of both Coco and Roco. 255I accept that the plaintiffs' damages are aggravated by the lengthy and continued publication on the internet. The internet publication on the evidence has continued to be accessed and seen by the plaintiffs, and a number of their family, friends and associates. Any person, including prospective employers, can readily access the review found by the jury to have been defamatory of the plaintiffs. The defendants have not by way of evidence or otherwise sought to explain or justify the continued publication of the review on the SMH website. The ongoing publication has continued to give life to the review, albeit in a negative sense resulting in an exacerbation of the distress and hurt occasioned to the plaintiffs. Failure by the Defendants to Apologise 256I accept that the failure by the defendants to apologise to the plaintiffs is a matter that is to be taken into account in the determination of normal compensatory damages in that it has, on the evidence, contributed to each of the plaintiffs' hurt, inter alia, by keeping alive the effect of the publication: Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182. In the circumstances of the case, the failure by the defendants to apologise at any time was unreasonable. I accordingly propose to take that matter into account in determining the appropriate and proper amounts to be awarded for compensatory damages. The Issue of "Provocation" 257The defendants submitted that damages awarded to the plaintiffs should be reduced upon the basis that: "... the plaintiffs have contributed to any damage suffered by them by the [way] they conducted their flagship restaurant. They bear some responsibility for what has happened to them": Outline of Defendants' Submissions Before Trial dated 10 December 2012 at [29]. 258Mr Blackburn in his oral submissions stated that it is relevant to consider whether, and if so the extent to which, the plaintiffs' own actions have caused the defamatory publication. He relied upon Burstein v Times Newspapers, supra, as an authority for the proposition: T 113:1-10. 259In pursuing this line of argument, Mr Blackburn referred to Exhibit 1 which was a copy of an invitation to Mr Evans to attend the restaurant opening. Mr Blackburn also submitted that the restaurant had been repeatedly been promoted as Coco Roco. 260As the evidence disclosed, Mr Evans did not attend in response to the invitation but he attended on the later occasions referred to above. Mr Blackburn submitted: "The provocation in a sense, I'm not saying it is provocation exactly, but the fact of the matter is that the plaintiffs brought the bad review upon themselves by serving some food that was unpalatable. You cannot run a restaurant, invite a reviewer to it, serve unpalatable food and claim that you are entirely blameless": (T 113:30-40). 261Mr Blackburn again resiled from use of the term "provocation": T 114:22. He said: "I'm merely saying that to some extent, it is not a complete answer to the claim, but to some extent the plaintiffs have authored their misfortune by serving up to a food reviewer, whom they invited to the restaurant, food that was unpalatable." 262I do not consider that there is any substance in the submission originally brought under the rubric "provocation" or its later modification in oral submissions for the defendants. 263The matters to which attention has been drawn in the discussion above in relation to the mitigation defence, are also relevant on the present issue. The submission on "provocation" or however it might be characterised, was put upon the basis that the food "was unpalatable", the implication or assumption being that, as a fact, that had been determined objectively by Mr Evans when in fact it had not. For reasons earlier stated, I do not consider that the submissions on those matters made on behalf of the defendants are valid as Mr Evans' statements in the review and in his evidence expressed his subjective opinions, based upon his personal reactions and assessment. 264There is, in my opinion, no basis for stating that the plaintiffs "provoked" the defamatory publication or encouraged or caused it to occur. There is, in my assessment, no factual basis available for a submission of this nature. The various tests discussed in Burstein, supra, at [24]-[27] do not apply on the evidence in the present proceedings nor in my opinion, has it been demonstrated in the defendants' submissions how or on what basis those tests could be satisfied. 265There was no provocative conduct that was causally connected with the publication in this case: Burstein at [24], [27]. In Burstein it was determined that the claimant's conduct was not "causally connected" with the defamatory publication. Nothing that the plaintiff there had said or done had provoked the newspaper to publish the words complained of (at p 590). The defendants in the present proceedings had, not sought to establish by evidence or otherwise that the review was "directly provoked" by the plaintiff's conduct in the sense discussed in Burstein at 590 or in any true causal sense arose due to any such conduct. (b) Aggravated Damages 266The principles concerning an award of aggravated damages in a defamation action are well established. They include the following: (i) That in the assessment of damages a court may look at the whole conduct of a defendant, that is from the time of publication of the defamatory matter to the time of a judgment or verdict in favour of a plaintiff. (ii) The defendant's conduct may provide a basis for an award of aggravated compensatory damages in circumstances where there has been a lack of bona fides in the defendant's conduct, or if the defendant's conduct was "improper" or "unjustifiable": Triggell v Pheeney (1951) 82 CLR 497, 513-514. (iii) Aggravated damages compensate a plaintiff for harm that has been exacerbated by a defendant's conduct in publishing the defamatory matter or by subsequent conduct: see Bickel v John Fairfax & Sons Ltd (1981) 2 NSWLR 474, 496; Taylor v Network Ten (Perth) Pty Ltd [1999] WASC 264 at [31]. (iv) The conduct of a defendant that aggravates a plaintiff's damages need not be malicious. (v) An award of aggravated damages is not limited to injury or hurt to a plaintiff's feelings: Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 75 per Hunt J. The aggravating conduct may, in some cases, increase the reputational damage suffered (as distinct from compensation for hurt or injured feelings). 267In the course of his oral submissions, Mr Blackburn submitted that the first defendant's conduct in placing the article on the Sydney Morning Herald website (and continuing its publication on that website) was not unjustifiable being an article that the first defendant had published and it is "... in the business of publishing newspaper articles": T 223:40-46. 268In circumstances not explained in evidence, the article was removed from the website following the judgment of the Court of Appeal but was then later restored and has remained on the internet. This conduct by the first defendant occurs in the overall context of the now prolonged litigation in which the plaintiffs were ultimately successful in establishing the review as having defamed each of them. 269It was, of course, open to the first defendant to call evidence, if there was evidence available, to meet the claim for aggravated damages with a view to justifying its conduct in giving internet publicity to material which the Court of Appeal held was defamatory. It did not, of course, do so. 270I have concluded that the conduct of the first defendant in placing the defamatory article on the internet constitutes unjustifiable conduct in accordance with the principles discussed above. The evidence called in the plaintiffs' cases, in my assessment, established that such conduct has increased the damage caused to each plaintiff by the original publication. As has been observed: "... there may be circumstances which cause the further publication to increase the damage caused by the original publication rather than to cause a new injury to the plaintiff. On the other hand, a subsequent publication may cause a new injury to the plaintiff's reputation. In the former case the subsequent publication will aggravate the damage caused by the publication sued upon. In the latter case the subsequent publication causes a new injury to the plaintiff's reputation and gives rise to a new cause of action": Australian Medical Association (WA) Inc v McEvoy (No 2) [2012] WASC 416 at [25] per Le Miere J. 271An award of aggravated damages is warranted where it has been established that the publication has been lacking in bona fides, is improper or unjustifiable in accordance with the well-known dicta in Triggell v Pheeney (1951) 82 CLR 497, 514. In the application of that test the words employed by the High Court in relation to it are disjunctive and "unjustifiable" carries a meaning that does not necessarily include impropriety. 272In these proceedings the evidence establishes that the article was on the Sydney Morning Herald website from 30 September 2003 up until the Court of Appeal judgment on 30 June 2006 and it was taken off the website on the later date. It was restored to the SMH website on the date of the High Court's judgment (14 June 2007) and it has remained there. The evidence, which I accept, is to the effect that from time to time persons (friends and acquaintances) within Australia and overseas have contacted the plaintiffs to point out that the article is on the internet and in some instances have sought clarification about the publication having regard to what they had been told, namely that the plaintiffs had won the litigation. The fact of the internet publication itself, the plaintiffs' awareness of its continued publication on the internet over a considerable period and the need to set about explaining the position has, I find, caused each of the plaintiffs significant upset and distress. 273Publication by internet website is, of course, all pervasive not being confined or restricted by territorial boundaries and is readily accessible to anyone through the use of various search engines. I am satisfied that the ongoing publication by this medium, that is its availability to anyone (including friends and relatives of the plaintiffs), has increased the harm caused by the original publication. 274The contextual background against which the continued publication on the internet of the review has occurred is that these proceedings, originally commenced in 2004, and ongoing over years, have unfortunately for all parties had a very protracted and no doubt expensive history both at first instance and at appellate levels. The continued internet publication is another ongoing aspect that has resulted in the exacerbating effects to which I have referred. (c) Exemplary Damages 275The plaintiffs claim exemplary damages in respect of the publication of the defamatory material in other States of Australia (that is excluding New South Wales) and Commonwealth Territories. 276In relation to exemplary damages Mr Evatt acknowledged that such damages in defamation cases are very hard to obtain with respect to publication in the other States and Territories: T 208:1-5. He acknowledged that, in the present proceedings, the basis for an award of exemplary damages could only be founded on the fact of the continued publication on the internet: T 208:5-12. 277In the Plaintiffs' Written Submissions in Reply dated 1 March 2013, it was submitted that the continued publication on the internet warrants exemplary damages. In that respect it was contended that the amount of exemplary damages awarded should serve as a warning to the first defendant that it will be punished financially "... if they won't take down [the] matter which the Court of Appeal and the High Court have established [was] wrong" at [32]. 278In the Defendants' Closing Submissions on Damages dated 25 February 2013 it was submitted for the defendants that the claim for exemplary damages must be rejected with reliance being placed upon the reasons advanced in oral argument. 279In the Defendants' Written Submissions dated 30 January 2013, it was submitted for the defendants that the court would have to conclude that the defendants had engaged in contumelious disregard of the plaintiffs' rights. In that respect it was contended that there was no evidence to support such a conclusion. In support, reference was made to the evidence said to establish that Mr Evans did not intend to convey anything about Roco and expressly informed the reader that he had not dined there. There was no evidence, it was further submitted, that conveyed some ulterior motive, contumeliously disregarding the interests of the plaintiff. Carelessness, so far as statements that could apply to Roco, it was argued, is not coextensive with a contumelious disregard of the plaintiffs' rights: at [40]. 280As noted above, it was also submitted for the defendants that there was no evidence that the review had been given any prominence, or that it could be discovered otherwise than as a consequence of diligent efforts to search for them. 281In this latter respect, it was submitted for the plaintiffs that the latter proposition was contradicted by the unchallenged evidence of the plaintiff, Aleksandra Gacic, as to the ease with which the typing in of key words brings up the publication: Plaintiffs' Submissions in Reply at [33]. It was further submitted for the plaintiffs that it was unfair to them for the defendants to retain the publications on their website: at [34]. 282In Uren v John Fairfax & Sons Pty Ltd [1965]-[1966] 117 CLR 118 at 149, Windeyer J stated: "... first, it is necessary to notice that, whatever be the position in torts other than defamation, the distinction between aggravated and exemplary damages is not easy to make in defamation, either historically or analytically; and in practice it is hard to preserve. The formal distinction is, I take it, that aggravated damages are given to compensate the plaintiff when the harm done to him by a wrongful act was aggravated by the manner in which the act was done: exemplary damages, on the other hand, are intended to punish the defendant, and presumably to serve one or more of the objects of punishment - moral retribution or deterrence." 283In Uren, Windeyer J at p 153 also stated that the decision in Rookes v Barnard [1964] AC 1129 emphasised that exemplary damages must always be based on something more substantial than a jury's mere disapproval of the conduct of a defendant. His Honour further observed: "... the decision makes clear too, if it was ever in any doubt, that all matters that may aggravate compensatory damages do not of themselves justify the addition or inclusion of the further purely punitive element ... The wrong must be one of a kind for which exemplary damages might be given; and the facts of the particular case must be such that exemplary damages could properly be given ... There must ... be evidence of some positive misconduct to justify a verdict for exemplary damages. There must be evidence on which the jury could find that there was, at least, a 'conscious wrongdoing in contumelious disregard of another's rights'. I select that particular phrase out of many, because it has been used more than once in this Court ..." 284In Gray v Motor Accident Commission (1998) 196 CLR 1 at 6, the High Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) observed that: "Exemplary damages are awarded rarely. They recognise and punish fault, but not every finding of fault warrants their reward. Something more must be found. Although they are awarded rarely, they have been awarded in very different kinds of cases: ranging from abuse of governmental power ... through defamation cases of the kind considered in Uren, to assault cases ..." 285Accordingly, it is now well established that the award of exemplary damages is an exceptional remedy in cases of conscious wrongdoing in contumelious disregard of a plaintiff's rights. 286In the present proceedings, the first defendant's actions in reinstating the article on its internet website, and its failure, and on some evidence its refusal to remove it, is conduct that could be said to warrant disapproval and even censure. 287That said, it is, however, necessary to take into account as a modifying factor that the review on the first defendant's website is not the equivalent of widespread publication by a print media as it requires specific search terms to be employed to activate publication of it. That does not, of course, wholly address the possibility of relatives, friends and others with some knowledge of the defamatory review, from actively searching for the defamatory material as the evidence indicates has been done from time to time. 288Taking into account all matters associated with the internet publication and the matters to which I have referred above, I do not consider that this is a case in which it can be said that the required form of conscious wrongdoing that is necessary has been established. As earlier stated, the continued presence of the review on the SMH website is a matter, in my opinion, properly to be taken into account in determining aggravated damages. 289In the circumstances, I determine the amount of damages that should be awarded to the plaintiffs, including aggravated damages, as follows: (a) In respect of the first plaintiff, Aleksandra Gacic, the amount of $160,000. (b) In respect of the second plaintiff, Ljiljana Gacic, the amount of $160,000. (c) In respect of the third plaintiff, Branislav Ciric, the amount of $160,000. Orders 290I make the following orders: 1. That judgment be entered in favour of the first plaintiff on the basis of an award of damages in the amount of $160,000. 2. That judgment be entered in favour of the second plaintiff on the basis of an award of damages in the amount of $160,000. 3. That judgment be entered in favour of the third plaintiff on the basis of an award of damages in the amount of $160,000. 4. I direct the plaintiffs to bring in Short Minutes of Order to give effect to these reasons for judgment. 291I will hear the parties as to costs and any other ancillary orders. ********** 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: 07 January 2014