Supreme Court New South Wales Medium Neutral Citation: Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 Hearing dates: 27, 28, 29 October 2014 Decision date: 27 November 2014 Before: McCallum J Decision: Judgment for the plaintiff in the sum of $350,000. Catchwords: DEFAMATION - defences - offer to make amends - requirements of a valid offer - whether offer reasonable in all the circumstances DEFAMATION - damages - prominent article in major newspaper - imputations attributed to female teacher of sexual impropriety with boys - case of wrongful identification - plaintiff not named in matter complained of but identified by the inclusion of incorrect detail - proper approach for assessing extent of harm - factors aggravating damages Legislation Cited: Defamation Act 2005, s 13, 15, 18, 20, 34, 35 Evidence Act 1995, s 69 Cases Cited: Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 Carson v John Fairfax & Sons [1993] HCA 31; (1993) 178 CLR 44 Chase v Newsgroup Newspapers Ltd [2002] EWHC 2209 (QB) Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; (2010) 278 ALR 232 Hayward v Thompson [1982] QB 47 Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327 Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497 Category: Principal judgment Parties: Melinda Pedavoli (plaintiff) Fairfax Media Publications Pty Ltd (first defendant) Anne Davies (second defendant) Representation: Counsel: B R McClintock SC, M Richardson (plaintiff) T Blackburn SC, R A Jedrzejczyk (defendants) Solicitors: Johnson Winter & Slattery (plaintiff) Banki Haddock Fiora (defendants) File Number(s): 2014/52580 Publication restriction: Non-publication order in respect of "the teacher concerned". There is no constraint on publication of the name of the plaintiff, who is not "the teacher concerned". Judgment 1HER HONOUR: Melinda Pedavoli has been grossly defamed by The Sydney Morning Herald. 2In December 2013, a female teacher resigned from a prestigious private school amidst allegations of unlawful sexual misconduct with a number of boys. In January 2014, The Sydney Morning Herald published an article which, by the careless inclusion of incorrect information, identified Ms Pedavoli as the teacher concerned. That was completely false. The article was featured on pages 2 and 3 of the newspaper and was promoted as one of the "editor's picks" on the internet. The publication occurred during the first week of the new school term and attracted a considerable amount of attention. 3This judgment determines Ms Pedavoli's claim for damages. I have concluded that the only defence relied upon by the newspaper must fail. The defamation greatly damaged Ms Pedavoli's impeccable reputation and caused her immense hurt. She is entitled to a large award of damages and to have the court declare to all the world the falsity of that which has been imputed to her by the newspaper. Circumstances in which the defamatory article was published 4Ms Pedavoli is a teacher at St Aloysius College, a Catholic high school for boys. The allegations were made against a different female teacher at that school, accusing her of inappropriate contact with a number of students in their final year. The name of that teacher is known but cannot be published in these proceedings (she has been referred to throughout the proceedings as "the teacher concerned"). It is not Melinda Pedavoli. 5According to documents tendered by the defendants, the students in question were contacted and an internal investigation undertaken. Following that investigation, one matter was reported to the New South Wales Police. The teacher concerned was asked to resign, which she did. 6To be clear, that teacher was not Melinda Pedavoli. It was a different female teacher who, for legal reasons, is not named in this judgment. 7At the time of the allegations, Ms Pedavoli was in her late twenties and taught both English and drama. The teacher concerned in the allegations did not meet either of those descriptions. 8In late December 2013, a rumour about the alleged sexual misconduct came to the attention of a Fairfax journalist, Ms Kate McClymont. She passed the information on, via a colleague, to another journalist, Ms Anne Davies, who is the second defendant in these proceedings. 9In early January 2014, Ms Davies asked Ms McClymont whether she had any further information about the matter. Ms McClymont told Ms Davies that she "had heard" the teacher concerned was a 29-year-old English teacher and that she had also tutored children outside of the school. The evidence does not disclose the source of Ms McClymont's information on that issue. 10Ms Davies went on annual leave at around that time. Before she left, she suggested that another journalist should continue making inquiries into the matter in her absence. The other journalist, after consulting the school website, a website known as "Rate My Teacher" and Facebook, formed the view that the teacher concerned "might be" Melinda Pedavoli. The basis for that conclusion was said to be "comments on Rate My Teacher and information on her Facebook site, which showed that she had numerous students and ex-students as friends" (exhibit T, answers to interrogatories, answer 3B(8)). There was, in truth, no proper basis for the conclusion. It was purely speculative. 11Upon returning from leave, Ms Davies undertook her own searches of the internet sites mentioned to her by the other journalist. According to her sworn answers to interrogatories, Ms Davies identified Ms Pedavoli as one of a number of persons who "could fit the description of the teacher concerned". However, the evidence did not establish the content of "the description" Ms Davies was relying on at that point (unless the answer to the interrogatory was intended to refer to the description Ms Davies had received from Ms McClymont before Ms Davies went on leave - as already noted, Ms McClymont had conveyed to Ms Davies what she had heard, which was that the teacher concerned was "a 29-year-old English teacher and that she had also tutored children outside of the school"). Ms Davies did not give evidence in the proceedings. 12On 29 January 2014 Ms Davies contacted the Rector of St Aloysius, Fr Hosking. He confirmed that a teacher had resigned from the school after an investigation into inappropriate contact with students and had now left the school. According to her answers to interrogatories, Ms Davies asked the Rector "whether the teacher concerned was an English and/or drama teacher of approximately 28 or 29 years of age". For reasons of privacy, he declined to confirm the age of the teacher or the subjects she taught. It may be noted that the description put to the Rector differs slightly from the description Ms Davies had received from Ms McClymont ("28 or 29"; "English and/or drama"). There was no evidence as to the explanation for that different description. The difference is not unimportant, since the teacher concerned did not teach drama. Only Ms Pedavoli did. 13After her conversation with Fr Hosking, Ms Davies called the school switchboard and asked to speak to Melinda Pedavoli. The person who answered the phone said that they would put the call through. At that point, according to her answers to interrogatories, Ms Davies realised that, because Ms Pedavoli was still teaching at the school, she could not be the teacher concerned. Unfortunately, Ms Davies decided to hang up without speaking to Ms Pedavoli. A conversation with Ms Pedavoli would have given her the opportunity to learn that the description of a female teacher at St Aloysius aged in her late twenties who taught both English and drama would in fact exclude the teacher concerned and point unequivocally (and wrongly) to Ms Pedavoli. 14Ms Davies next contacted a former colleague who had a daughter at Loreto Kirribilli, a Catholic high school for girls in a suburb near to St Aloysius, asking whether she knew the name of the teacher who had left St Aloysius as a result of alleged inappropriate conduct with students. She was given a name very similar to the correct name of the teacher in fact concerned in the allegations of sexual impropriety. Only the last letter was wrong. Ms Davies returned to her previous sources, the school's website and Facebook, and even consulted the telephone directory. However, without the correct spelling of the surname, she says was unable to obtain "any concrete information" about the teacher concerned. 15The published article identified the fact that the allegations related to a female teacher at St Aloysius College. It stated without qualification that the teacher concerned "was in her late twenties". The article further stated, "it is believed the teacher taught drama and English" but did not say by whom that belief was held - it appears to have been the belief of the journalist herself, based in turn on what another journalist had "heard", perhaps informed by inconclusive searches on the internet. As already noted, those descriptors (age and subjects taught) excluded the teacher concerned. They accurately described Ms Pedavoli and only Ms Pedavoli. 16The description Ms Davies was acting on at the time she called the Rector (the day before publication of the matter complained of) had led her to conclude, mistakenly, that the teacher concerned in allegations of the most serious sexual misconduct was Ms Pedavoli. Only by phoning the school had she come to realise that she was wrong. But so far as the evidence reveals, no steps were taken by the newspaper to ensure that readers did not make the same mistake. Undoubtedly many did. The matter complained of 17Ms Davies wrote an article which was published in the print edition of the Sydney Morning Herald on 31 January 2014 and made available for downloading on the newspaper's tablet app and on its website the night before. Apart from a difference in the headlines, the articles were in the same terms, as follows: A teacher has resigned from one of the north shore's leading Catholic boys schools, St Aloysius College, after an internal investigation revealed she had been having "inappropriate relationships" with a number of boys in year 12 last year. It is understood the teacher, who was in her late 20s, had sex with at least two boys at the school, including one who was a member of the school's leadership group. The boys were over the age of 16 but, because of the student-teacher relationship, the alleged contact contravened the rules of the school and child protection legislation. It is believed the teacher taught drama and English at the school and that events came to light at the school after a parent became aware of the teacher's relationship with the son. The rector of St Aloysius, Peter Hosking, who is responsible for pastoral care at the Jesuit school, confirmed the teacher had left the school after an internal investigation into "inappropriate contact." Two processes had been undertaken once the school became aware of the allegations, Father Hosking said. "The first was an investigation by the school and the findings have been reported to the NSW Police," he said. "There have also been reports to the Ombudsman." The Ombudsman has oversight of the child protection laws. Schools are obliged to notify him of "reportable conduct" as it affects students in NSW schools. "This is the first time I have been involved with something like this," Father Hosking said. "It's unusual." He declined to say how many students were involved, citing privacy, but said that the school was taking the matter very seriously and had written to parents. "Pastoral care of our students is really important to us and we remain steadfast in our commitment to providing a nurturing environment for the boys," he said. 18In the print edition of the newspaper, the article was published under the headline "female teacher quits top Catholic school after claim of sex with boys" (exhibit A). That is the first matter complained of in the proceedings. The defendants admit that the first matter complained of was also made available for download via the tablet app (paragraph 3(b) of the defence filed 1 April 2014). 19Separately, the article was made available for downloading from the Sydney Morning Herald website via a link labelled "Sydney teacher quits amid year 12 sex claims". By clicking on the link, the reader was taken to the article, which appeared under the headline "Sex with students claims: female teacher quits top Catholic boys school." The online version is the second matter complained of in the proceedings. Identification of the plaintiff 20That the article identified Ms Pedavoli was apparently denied on the pleadings (see paragraphs 4(a) and 6(a) of the defence) but was not ultimately in issue. Although Ms Pedavoli was not named in the article, I am satisfied that it identified her as the teacher concerned, by reason of the inclusion of the identifying details to which I have referred. The more difficult task is to determine the number of people who read the article and understood it to refer to Ms Pedavoli. It will be necessary to return to that issue. Defamatory meaning of the article 21Ms Pedavoli contends that the articles conveyed the following defamatory imputations about her: (a) that she is a sexual predator who used boys at the school at which she taught for her sexual gratification; (b) that she is a paedophile; (c) that she committed a criminal offence by having sex with at least two boys at the school at which she taught; or, in the alternative, (c)(i) that she breached child protection laws by having sex with at least two boys at the school at which she taught; (d) that she had so seriously misconducted herself as a teacher as to deserve to have her employment terminated by the school at which she taught. 22The defendants did not dispute that the article conveyed imputations (c)(i) and (d). I am satisfied that it did. It is necessary to determine whether the article also conveyed imputations (a), (b) and (c). 23The defendants submitted that imputation (a) is "an absurd and florid pleader's flourish" which finds no support in the matter complained of. Mr Blackburn SC, who appears with Mr Jedrzejczyk for the defendants, noted that the article identified the boys in question as having been in year 12 at the time the allegations were made, meaning that they were most likely 17 or 18, whereas it is well-known that the age of consent is 16. He noted that boys of that age (men, in the case of 18-year-olds) can have lawful sexual relations and said "it is hardly a secret that many do". So much may be accepted. 24The article, however, is not presented as the story of the lawful sexual encounters of young men. It relates to the conduct of a teacher at the school at which she was teaching. It deals with boys who, while evidently nearing the age of sexual choice, are nonetheless described as boys. It accuses their teacher of having had "inappropriate relationships with a number of boys in year 12" and "sex with at least two boys". The references to multiple boys and to "relationships" suggest that the conduct was ongoing. The article notes that it was a parent who first raised the issue after becoming aware of the teacher's "relationship with the son". 25The article states that the teacher resigned after an internal investigation. It speaks not in the language of suspicion or allegation but fact: "an internal investigation revealed"; "the findings have been reported". It characterises the teacher's conduct as being a contravention of child protection legislation with the findings being reported both to police and to the ombudsman, who has "oversight" of the child protection laws. The ordinary reasonable reader would readily perceive that the purpose of child protection laws is to protect children from sexual predators. 26Finally, rather than condoning the conduct as ordinary sex of the kind lawfully engaged in by many a young man (at least in aspiration), the article describes the conduct of this female teacher as being irregular, quoting the words of the Rector, "This is the first time I have been involved with something like this. It's unusual." He declined to say how many boys were involved but said the school was taking the matter "very seriously"; had written to parents and remained committed to providing "a nurturing environment for the boys". 27In my view, rather than being understood as an unexceptional cluster of lawful sexual encounters with different young men, the conduct of the teacher in question would be understood by the ordinary, reasonable reader to be predatory, sexual and self-interested. I am satisfied that the article does convey substantially the meaning captured in imputation (a). 28Imputation (b) is that the plaintiff is a paedophile. I accept that the conduct described in the matter complained of falls within the literal meaning of that word, which describes someone who engages in sexual activity with children or who displays a sexual interest in children. The article describes the students in question as "boys", suggesting they were not yet 18 and so, at law, were to be regarded as children. But it is made clear that they were in year 12. In my view, the ordinary reasonable reader would understand the term "paedophile" to refer to a person who engages in sexual activity with or shows a sexual interest in younger children than those evidently referred to in the matter complained of. Whilst I am persuaded that the reader would understand the conduct attributed to the teacher in the article to be predatory and sexual, I do not think it would be understood that she is a paedophile in the sense in which that term is commonly used and understood. 29Imputation (c) is that the plaintiff committed a criminal offence by having sex with at least two boys at the school at which she taught. As already noted, the defendants do not dispute that the article conveyed the alternative meaning that she breached child protection laws by having sex with at least two boys at the school at which she taught. 30In my view, imputation (c) is conveyed. As already noted, the article speaks in the language of fact rather than mere allegation. It specifically reports two processes undertaken by the school after the allegations came to light: an investigation by the school (with findings reported to NSW police) and reports to the Ombudsman. In my view, the statement that the school's findings, made after an investigation, had been reported to police clearly imputes that the conduct uncovered amounted to a criminal offence. The proposition that the conduct warranted reference to police is not presented as the ill-considered view of an observer on the sidelines but the conclusion reached by a senior figure at the school after a process of internal investigation. 31Accordingly, it is appropriate to determine the claim on the basis that the matter complained of conveyed imputations (a), (c) and (d). Offer to make amends 32The only defence relied upon by the defendants is the statutory defence created by s 18 of the Defamation Act 2005 of failure to accept an offer to make amends. 33The defence under s 18 is relatively new and has received little judicial consideration. Its operation must be considered in the context of the objects stated in s 3 of the Defamation Act, which are: "(a) to enact provisions to promote uniform laws of defamation in Australia, and (b) to ensure that the law of defamation does not place unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance, and (c) to provide effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter, and (d) to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter." 34The defence under s 18 serves those objects (particularly the object of promoting speedy and non-litigious methods of resolving disputes) by creating a powerful incentive for defendants to make amends rather than to fight the cause. The making of a reasonable offer has the potential, one way or the other, to stymy the litigious path to vindication of reputation. If the offer is accepted, the plaintiff cannot pursue proceedings in court: s 17. If the offer is rejected then, provided the requirements of s 18 are satisfied, there is a complete defence, notwithstanding the establishment of an otherwise actionable defamation. Whereas a defendant can apologise, in aid of the defence, with impunity (see s 13(4) and s 20 of the Act), a plaintiff who fails to accept a reasonable offer to make amends risks everything. 35In the face of that draconian sanction for failure to accept an offer, it is unsurprising that the Act is quite prescriptive as to its content. Section 15 of the Act provides: "15 Content of offer to make amends (1) An offer to make amends: (a) must be in writing, and (b) must be readily identifiable as an offer to make amends under this Division, and (c) if the offer is limited to any particular defamatory imputations-must state that the offer is so limited and particularise the imputations to which the offer is limited, and (d) must include an offer to publish, or join in publishing, a reasonable correction of the matter in question or, if the offer is limited to any particular defamatory imputations, the imputations to which the offer is limited, and (e) if material containing the matter has been given to someone else by the publisher or with the publisher's knowledge-must include an offer to take, or join in taking, reasonable steps to tell the other person that the matter is or may be defamatory of the aggrieved person, and (f) must include an offer to pay the expenses reasonably incurred by the aggrieved person before the offer was made and the expenses reasonably incurred by the aggrieved person in considering the offer, and (g) may include any other kind of offer, or particulars of any other action taken by the publisher, to redress the harm sustained by the aggrieved person because of the matter in question, including (but not limited to): (i) an offer to publish, or join in publishing, an apology in relation to the matter in question or, if the offer is limited to any particular defamatory imputations, the imputations to which the offer is limited, or (ii) an offer to pay compensation for any economic or non-economic loss of the aggrieved person, or (iii) the particulars of any correction or apology made, or action taken, before the date of the offer. (2) Without limiting subsection (1)(g)(ii), an offer to pay compensation may comprise or include any one or more of the following: (a) an offer to pay a stated amount, (b) an offer to pay an amount to be agreed between the publisher and the aggrieved person, (c) an offer to pay an amount determined by an arbitrator appointed, or agreed on, by the publisher and the aggrieved person, (d) an offer to pay an amount determined by a court." 36The defendants' offer was made in response to a letter dated 3 February 2014 from Ms Pedavoli's solicitor to the editor-in-chief of the Sydney Morning Herald. The solicitor's letter drew the editor's attention to the fact that the article referred to the teacher who had resigned from St Aloysius after claims of sex with boys as being "in her late 20's" and as being believed to have "taught drama and English at the school". The letter stated that Ms Pedavoli was the only teacher in drama and English at the school; that she was aged 27 and that there were no other female teachers at the school aged in their 20's. The letter requested an apology in the following terms (my emphasis): "On Friday 31 January 2014 the Sydney Morning Herald published an article titled "Female teacher quits top Catholic school after claim of sex with boys". The teacher identified in the article was not the teacher the subject of the allegations. The age and subjects taught by the teacher as described in the article, were not confirmed by the journalist and should not have been published. The Herald unreservedly apologises to the teacher wrongly identified in the article for the hurt and embarrassment caused by the article and the subsequent references to it in social media." 37The offer of amends, dated 5 February 2014, offered to publish an apology in substantially the same terms except that it omitted the words underlined in the quote set out above. Mr McClintock SC, who appears with Mr Richardson for Ms Pedavoli, accepted that the omissions were not significant. The newspaper also offered to pay Ms Pedavoli the sum of $50,000 and to pay her reasonable legal expenses. The offer did not take advantage of the options under s 15(2) of offering to pay an amount to be agreed or determined by an arbitrator or the court. 38The offer also included reliance upon action taken by the defendants before the date of the offer (as allowed under s 15(1)(g)(iii) of the Act), which was that the incorrect identifying words had been promptly removed from the online version of the article early on 31 January 2014. That had occurred as a result of a communication between Ms Pedavoli and a friend of hers who knew an editor employed by the newspaper. The friend contacted the editor to point out the misidentification. The editor promptly arranged for the removal of the identifying words from the online version of the article (it was common ground that the change was made shortly before 9am on Friday 31 January 2013). 39Ms Pedavoli did not accept the offer. She contends that it was not a valid offer for the purposes of the defence, since it did not comply with the mandatory requirements of s 15. Ms Pedavoli further contends that the defence must fail because the offer was not one which was reasonable in all the circumstances. Whether the offer was a valid offer to make amends 40Section 15(1)(e) imposes a mandatory requirement in cases where "material containing the matter has been given to someone else by the publisher or with the publisher's knowledge". In that event, the offer must include an offer to take, or join in taking, reasonable steps to tell the other person that the matter is or may be defamatory of the aggrieved person. 41The content of that requirement must be considered in the context of the section as a whole. It sits alongside s 15(1)(d), which imposes a mandatory requirement to offer to publish, or join in publishing, a reasonable correction of the matter in question (or of particular defamatory imputations). The two subsections taken together evince an intention that, in order to make amends, a publisher must cooperate in the achievement of two objects, which are treated as being separate - the publication of a reasonable correction and the identification of any other person to whom material containing the matter has been "given" with a view to putting that person on notice of the defamation or potential defamation. 42In my view, the section plainly contemplates that the first object (the publication of a reasonable correction) should be calculated, to the extent possible, to reach the same audience as those to whom the matter complained of was published. 43The drawing of a distinction between those to whom the matter complained of was "published" and those to whom it has been "given" is difficult. At common law, it is a distinction which, for the most part, is illusory or at least elusive. Nevertheless, that is the distinction drawn by the statute and some sense must be made of it. 44Assuming that distinction, the reasons for imposing the second requirement (to join in taking reasonable steps to tell any other person to whom the matter has been given that it may be defamatory) are not difficult to discern. In my view, the Act acknowledges that, in order truly to make amends for having defamed someone, a publisher must actively cooperate in stemming all of the harm done by the defamation. In some instances, it will not be enough to publish a correction to all of those to whom the publisher published the matter complained of. If the publisher has made the matter available to someone else (who may in turn have distributed it further) the original publisher may not be in a position to reach all recipients of the matter complained of by publishing its own correction. 45The identity of all of the people to whom the publisher has given the matter in question is something likely to be peculiarly within the knowledge of the publisher (rather than the person defamed). Section 18 would not operate fairly if a defamed person were expected to consider an offer, at risk of losing his or her cause of action altogether by rejecting it, without the means to know how far the poison had spread. The reasonableness of an offer is necessarily informed by at least some capacity to assess the likely reach of the defamatory publication. That is a reason for construing the requirement strictly. 46Conversely, the Act evinces a plain intention to encourage the early, non-litigious resolution of defamation claims. To that end, the section should not be construed in an overly punctilious way. 47The plaintiff submitted that the offer made in the present case was not an offer to make amends within the meaning of the Act because it failed to comply with the mandatory requirement of s 15(1)(e). Specifically, it was contended that material containing the matter was "given to someone else" (within the meaning of the section) in the following ways: (a) by being made available for download via the tablet app; (b) on Twitter; (c) by being made available for publication in The Age. 48With great respect to the parties, the argument at times seemed to conflate the separate requirements of s 15(1)(e) and s 15(1)(d). For example, as to the tablet app recipients, the plaintiff submitted that the defence failed under both s 15(1)(e) and s 18 because offer did not refer to them and because there was no evidence that the apology was ever published to any of them (T187). However, if the tablet app recipients were within the class of persons described in s 15(1)(e), there was no requirement to offer to publish a correction to them - the content of the requirement was to offer to join in letting them know that the matter was or may be defamatory. The plaintiff did not allege any failure to comply with the requirement of s 15(1)(d). 49In any event, the task raised by the argument is to consider, in each case, whether it is correct to say that material containing the matter was "given to someone else" by the publisher or with the publisher's knowledge and, if so, whether the defendants' offer should be understood to have included the mandatory offer to take, or join in taking, reasonable steps to tell that other person that the matter was or may be defamatory of the plaintiff. The Sydney Morning Herald tablet app 50On 31 January 2014 the number of subscribers to the tablet app was 49,628. There were 9,129 unique page views of the first matter complained of using the tablet app. 51As I understood the plaintiff's argument, the contention was that, in order to comply with s 15(1)(e), the offer to make amends had to include explicit reference to the recipients of the newspaper via the tablet app (T187.20). The submission did not draw a distinction between the total number of people who subscribed to the app and those within the number of unique page views. 52As I have endeavoured to explain above, the Act appears to draw a distinction between those to whom the matter complained of has been published (the intended audience for the mandatory correction under s 15(1)(d)) and those to whom it has been "given" by the publisher (dealt with in s 15(1)(e)). I do not think s 15(1)(e) contemplates that, in order to make a valid offer, a publisher should necessarily have to spell out all of the different ways in which it distributes its newspaper in the ordinary course. That would ordinarily be comprehended within the notion of publication of the matter complained of. 53In the present case, the plaintiff pleads, and the defendants admit, that the first matter complained of was published in the print edition of the newspaper and made available for download via the tablet app. In my view, the fact that the first matter complained of was made available for download via the tablet app is properly viewed as an aspect of the publication of the matter complained of, which is properly the subject of the requirement of s 15(1)(d) rather than 15(1)(e). 54The offer to make amends offered to publish the apology (which included a correction) "on page 2 of the Sydney Morning Herald and online". There was no evidence in the proceedings as to the technology entailed in receiving the newspaper on a tablet app. Accordingly, it is not possible for me to know whether the offer to publish the apology "on page 2" makes sense in the context of the tablet app. The point, however, is that I do not think people who downloaded the newspaper via the tablet app are to be regarded as people to whom the matter was "given" for the purposes of s 15(1)(e) - rather, they are within the class of people to whom the matter complained of was published, who ought accordingly to have been included within the offer to publish a correction in accordance with s 15(1)(d). As already noted, no point was taken that the offer was invalid for failure to comply with that provision. 55Two things follow from that conclusion. The first is that the offer is not vitiated by reason of the omission of any offer to take, or join in taking, reasonable steps to tell the tablet app recipients that the matter was or may be defamatory of Ms Pedavoli. 56The second consequence of my analysis, however, is that it will be relevant in the context of my consideration of the defence under s 18 of the Act to consider whether the apology (which contained the correction) was in fact published to recipients of the tablet app. Twitter 57In a letter sent to the plaintiff's solicitor shortly before the hearing, the defendants admitted that the second matter complained of was made available by the first defendant to Twitter followers of the Twitter account for the Sydney Morning Herald on 30 and 31 January 2014. The admitted estimate of the number of persons who read the matter complained of via Twitter is 1,155 (exhibit N). 58A screen shot of what are described as "Twitter republications" of the second matter complained of is annexed to Ms Pedavoli's affidavit read in the proceedings (annexure DD). 59The first question is whether, by tweeting the second matter complained of to followers of the Sydney Morning Herald Twitter account, it may be concluded that "material containing the matter has been given to someone else by the publisher". 60Mr Blackburn submitted that, by tweeting the link, the defendants did not give the matter complained of to someone else. He submitted that Twitter should be regarded as being in the nature of a billboard outside a newsagent, serving as an advertisement for the newspaper. Although I was initially attracted to that argument, upon reflection I do not think it can be right. A billboard advertises the newspaper but it does not provide access to any part of it. Twitter provides access to particular articles by sending a link to followers of the relevant Twitter account. It is a way of disseminating material to a wider audience, an audience which is unlikely to overlap completely with those who buy or subscribe to the newspaper in other forms. It sends particular parts of the newspaper, chosen by the first defendant, into a different public forum, inviting comment. 61As already noted, an estimated 1,155 people read the matter complained of via Twitter. It may safely be concluded that the Defamation Act would regard the matter complained of as having been either "published" or "given" to those persons. In other words, in order to be effective, the offer of amends had to include the Twitter followers either under s 15(1)(d) or under s 15(1)(e). 62The plaintiff has argued that they fall within s 15(1)(e). In my opinion, that is the preferable analysis. I have concluded that, by tweeting the article to its Twitter followers, the first defendant gave "material containing the matter" to "someone else" for the purpose of s 15(1)(e) and so was required to offer to tweet, or join in tweeting, a communication to the same followers to the effect that the matter complained of was or may be defamatory of Ms Pedavoli. 63Even if that analysis is wrong, I do not think it follows that the Twitter followers could be overlooked. If they were not people to whom the matter complained of was "given", it must follow, in my view, that the first defendant was required under s 15(1)(d) to offer to publish a correction calculated to reach the 1,155 Twitter followers who in fact downloaded the matter complained of via Twitter (the evidence did not address whether it would have been possible to achieve that other than by tweeting the correction to all followers). 64If my analysis is correct, it follows that the offer did not satisfy the mandatory requirements of the Act, since it did not include any offer in accordance with s 15(1)(e) in respect of the Twitter followers. I think it follows that the defence must fail. The Age 65As to The Age, the defendants admit "that the second matter complained of was made available and/or provided to the publisher and/or operator of [the website for The Age] for publication and/or republication" (exhibit N). 66Mr Blackburn valiantly resisted the proposition that the admission amounts to the same thing as saying that material containing the matter complained of was given to the publisher of The Age. He sought to draw a distinction between giving material (in the sense of handing it over) and making it available for someone else to access or collect. 67I do not accept the defendants' submissions on that issue. I do not have any difficulty concluding that, by making the article available for publication or republication by The Age, the defendants can be said to have given it to that newspaper in the sense contemplated in s 15(1)(e). Whether it was in fact published in The Age (that is, whether any reader in fact downloaded it) is a different question. 68A consideration of the consequences of that conclusion is complex. Since the determination of those issues will not affect the outcome of these proceedings, they can be addressed briefly. The first question is whether it follows that the offer did not satisfy the mandatory requirements of the section, since it made no express offer in accordance with s 15(1)(e) in respect of The Age. Mr Blackburn submitted that, since The Age and The Sydney Morning Herald are known to syndicate their news stories, the offer of amends should be construed as implicitly extending to The Age. While there is some force in that argument, there was no evidence as to the actual relationship between the two newspapers. Accordingly, it is difficult to draw any confident conclusion on this issue. On balance, I am not persuaded that it is enough, in the case of a syndicated news group, to leave to inference or implication the important requirement of s 15(1)(e). 69Secondly, however, I think it follows that there was no requirement under s 15(1)(d) to offer to publish the correction in The Age. It is not suggested that the defendants to these proceedings publish The Age. 70My conclusion as to the issues raised in respect of s 15(1)(e) is that the matter complained of was given (rather than being published) to the Twitter followers and to The Age and, accordingly, that the defendants' offer to make amends was not a valid offer within the meaning of the Act, since it did not include the mandatory offer to take, or join in taking, reasonable steps to tell those other persons that the matter given to them was or may be defamatory of the plaintiff. 71However, in case those conclusions are wrong, especially noting the novelty of these issues, it is appropriate to proceed to consider the defence on the assumption that the offer was not invalidated on that account. Defence of failure to accept an offer to make amends 72One issue can be dealt with briefly. The plaintiff submitted that the offer of amends was of no avail to the second defendant, the journalist. The submission was based on s 13(3) of the Defamation Act, which provides: "If 2 or more persons published the matter in question, an offer to make amends by one or more of them does not affect the liability of the other or others." 73I do not think that section was intended to mean that an employee of a publisher, such as a journalist or an editor, should have to make a separate offer of amends in order to avail herself of the defence. A publisher cannot know, at the time an offer is made, who will ultimately be joined as a defendant in any subsequent proceedings. In my view, the offer made by the first defendant in the present case should be construed as being extended on behalf of the publisher's employees and agents. Elements of the defence 74In accordance with s 18(1) of the Act, the elements of the defence of failure to accept an offer of amends are: (a) that the publisher made the offer as soon as practicable after becoming aware that the matter was defamatory, and (b) that, at any time before the trial the publisher was ready and willing, on acceptance of the offer by the plaintiff, to carry out the terms of the offer, and (c) that in all the circumstances the offer was reasonable. 75The third element presents a challenge for the philosophy of space and time. On its face, s 18(1) appears to require proof that the offer was reasonable in all the circumstances as they existed at the time when the offer was made. However, subs (2) provides a list of considerations (some mandatory, some permissible) for determining whether the offer "is" reasonable. The temporal glitch within the section is apparently not accidental. One of the mandatory considerations is "any correction or apology published before any trial". In terms, that provision would require the court, in determining the reasonableness of an offer, to have regard to a correction or apology published after the plea of failure to accept a reasonable offer had been put on. The section thus entails an element of paradox, requiring the court to make a determination as to circumstances at a fixed point in time with mandatory reference to later events. 76It was suggested in the plaintiff's written submissions that the offer was not made as soon as practicable in the present case. However, the evidence established that, during part of the relevant period, the defendants were awaiting a response from the plaintiff's solicitor to correspondence in respect of the offer. Whilst I accept that a defendant must act promptly in making an offer of amends, I do not think the period that passed between publication of the matters complained of and the making of the offer detracted from its reasonableness in the present case. 77Ms Pedavoli does not dispute that the defendants were ready and willing, upon acceptance of the offer, to carry out its terms. Whether the offer was reasonable 78The real contest is as to whether, in all the circumstances, the offer was reasonable. 79Mr Blackburn addressed that issue by asking, rhetorically, how is the defendants' offer unreasonable? At the risk of boxing at semantic shadows, I think it is preferable to address the question in the terms posed by the statute, which requires the defendants to prove that in all the circumstances the offer was reasonable. 80As already noted, s 18(2) guides the determination of that issue. It is appropriate to set out the full text of the subsection: "(2) In determining whether an offer to make amends is reasonable, a court: (a) must have regard to any correction or apology published before any trial arising out of the matter in question, including the extent to which the correction or apology is brought to the attention of the audience of the matter in question taking into account: (i) the prominence given to the correction or apology as published in comparison to the prominence given to the matter in question as published, and (ii) the period that elapses between publication of the matter in question and publication of the correction or apology, and (b) may have regard to: (i) whether the aggrieved person refused to accept an offer that was limited to any particular defamatory imputations because the aggrieved person did not agree with the publisher about the imputations that the matter in question carried, and (ii) any other matter that the court considers relevant." 81The starting point is to consider that for which amends are to be made. The reasonableness of an offer will be critically informed by its capacity to address the hurt and harm done by the publication in question, both as to its seriousness and its extent. The extent to which the defendants' apology was brought to the attention of the audience of the matter complained of is a mandatory consideration which must take into account the prominence given to the apology as published in comparison to the prominence given to the matter complained of: s 18(2)(a)(i). The reach and prominence of the apology 82An important consideration in assessing that issue in the present case is that the matter complained of did not name Ms Pedavoli. Rather, it identified her by the inclusion of a wrong description of the teacher concerned. It follows that her reputation was harmed only among those who read the matter complained of and understood it to refer to her. That undoubtedly complicated the task of making amends. On the one hand, a reasonable correction only had to be brought to the attention of a smaller audience than the whole audience to whom the matter complained of was published. However, in order to be reasonable, the correction had to be calculated in some way to attract the attention of that smaller audience. 83Newspaper editors understand as well as anyone the capacity of a headline to draw the attention of the reader. Each of the matters complained of was published under a headline likely to attract the attention of a large number of readers, including many who knew Ms Pedavoli ("female teacher quits top Catholic school after claim of sex with boys"; "Sex with students claims: female teacher quits top Catholic boys school"). The correction was less gripping. It was published under the headline "apology". The headline contained no words to indicate the subject matter of the apology, such as "apology to female teacher at Catholic school" or "correction of article on sex with boys". 84Further, the prominence given to the apology was unequal to the prominence given to the matter complained of. It was, in my view, highly unlikely to draw the attention of anything like the audience of the matter complained of. The first matter complained of (as it appeared in the print newspaper) stretched over pages 2 and 3 of the Sydney Morning Herald, on a Friday. In addition to the compelling headline, it was visually stark, appearing under a large photograph (illustrating a different story). 85The estimated readership for the newspaper that day was 769,000. For obvious reasons, it is not possible for the defendants to estimate the portion of the readership that read the matter complained of, but the overwhelming likelihood is that many readers opened the newspaper to read page 2. 86The online version of the article was first uploaded onto the Sydney Morning Herald website at approximately 8.57 pm on 30 January 2014. It remained online in its defamatory form until it was amended at approximately 8.42am the following morning in response to Ms Pedavoli's approach to her friend who knew an editor. The defendants do not hold information which enables them to distinguish between the estimated viewing or downloading of the article prior to its amendment. In their answers to interrogatories, the defendants provided an estimated number of unique page views of the article, both in its initial form and as subsequently amended (from 31 January 2014 until it was taken down altogether on 13 February 2014). Based on those estimates, the article was downloaded 18,693 times in New South Wales alone before the incorrect information was removed. 87Of course, only a subgroup of each audience (print and online) would have identified Ms Pedavoli but, as already explained, the apology was not well aimed to reach those subgroups. 88As published, the apology was barely noticeable. On the website, it was available for download via a link at the very bottom of the homepage headed "apology". In the case of the online apology, the absence of any headline such as to invite the attention of readers who had read the matter complained of is all the more significant. The difference between the interest likely to have been generated by the headlines of the matters complained of and the unobtrusive "apology" could scarcely be more stark. In my view, it did not have sufficient prominence to bring it to the likely attention of roughly the same audience, or even a small percentage of the audience who read the matters complained of and understood them to refer to Ms Pedavoli. 89Further, there is no evidence that the apology was published to all of the audience of the matter complained of. Even if the apology published in the printed newspaper and online was of sufficient prominence to reach roughly the same audience as the matter complained of in those two forms of publication (which I do not accept), there was no evidence that it was published to the recipients of the tablet app. Mr Blackburn submitted that it was enough that it was published online. He went so far as to suggest (at T209.41) that the onus was on the plaintiff to prove "that what was published in the iPad was different to what the reader would have seen when one went on the computer". He submitted that the fact that the apology was published online was "the end of that issue". I do not accept that submission. There were 9,129 unique page views of the first matter complained of using the tablet app. There is no evidence whatsoever to establish any prospect of the apology having reached that audience. This is an issue on which the defendants bear the onus of proof. 90On my analysis of the issue raised by s 15(1)(e), the defendants did not have to offer to publish the apology to the Twitter followers or in The Age. I would nonetheless regard it to be a relevant and significant consideration, in determining whether the offer was reasonable, to determine whether any steps were taken to tell those persons that the matter complained of was defamatory of Ms Pedavoli. Further, for the purposes of s 18(2)(a) (the mandatory requirement to consider any correction or apology published before any trial), it is relevant to determine whether any apology or correction was in fact published to those persons (accepting that there was no express statutory requirement to offer to do so). 91No correction was tweeted to the Twitter followers and no step was taken to tell them that the matter complained of was defamatory of Ms Pedavoli. Whatever the correct analysis of the requirements of s 15(1), I consider the fact that there was no relevant tweet whatsoever to be a significant additional reason for reaching the conclusion that the offer was not reasonable. 92As to The Age, the position is complicated by a measure of confusion in the evidence. Mr Blackburn submitted that there is no evidence that the matter complained of was downloaded by any person via The Age website. There was evidence of a search conducted by the solicitor for the plaintiff suggesting that a link to the defamatory version of the article was available on The Age website as at 9.52pm on 30 January 2014 (affidavit of Andrea Rejante sworn 3 October 2014, exhibits W and X). Notwithstanding Mr Blackburn's protestations to the contrary, I am satisfied as to the reliability of that evidence. However, unless I have missed something, I think it is correct to say that there was no direct evidence that the article was in fact downloaded via that link or from The Age website by any reader. A conclusion as to publication (downloading) from The Age could only arise as a matter of inference. 93The confusion arises from a document tendered by Mr Blackburn, produced on subpoena by The Age (exhibit 2). The document appears to be a screenshot of the non-defamatory version of the article (that is, the version that remained after the incorrect information had been removed) together with the apology, all on the same page. As I understood the purpose of the tender, it was to prove that the apology was published, even though it was denied that the article was published. 94With no witness to explain the precise implications of the document, it is difficult to draw any firm conclusion on that issue. It seems likely that the apology was made available for downloading on The Age website in some form at some time, but there was no evidence as to how one would find it or whether anyone did. 95In the result, there is no evidence on the strength of which I could be comfortably satisfied as to either the likely audience of the article or the likely audience of the apology on The Age website. I would observe that the complexity surrounding this issue highlights the need for a plaintiff to be told at an early point the identity of all other persons to whom the matter complained of has been given, which is the clear object of s 15(1)(e). 96In any event, even leaving aside the position of Twitter and The Age, in my view the measures taken by the defendants were unlikely to bring the apology to the attention of anything near the audience of the matter complained of (by which I mean those to whom the matter was published who understood it to refer to Ms Pedavoli). That is a factor which strongly militates against a finding that the offer was or is reasonable. 97For completeness, I should record a submission put by the plaintiff that the offer was not reasonable because it was subjectively insincere and intended not to correct the damage done but to avoid liability. I do not think a basis has been established for drawing that inference. Other components of the offer 98It is of course necessary to consider all of the elements of the offer taken together. The offer included reliance upon the steps that had already been taken at the request of Ms Pedavoli to correct the online version of the article. I accept that that was a prompt and significant step towards making amends. Offer to pay damages 99The offer also included an offer to pay damages in the sum of $50,000. Having regard to the seriousness of the defamatory imputations conveyed by the article, I consider that a monetary payment was essential to achieve a reasonable offer in the present case, even if the apology had been of equal prominence to the matter complained of and carefully targeted to reach roughly the same audience (which I am not persuaded it was). There may be cases in which the publication of a reasonable correction combined with a contrite apology (entailing acceptance of responsibility for the defamation) might obviate the occasion for payment of damages as well, but this is not such a case. The defendants' submissions implicitly acknowledged that, in order to repair the hurt suffered by Ms Pedavoli, some monetary payment was required. 100Mr Blackburn submitted that the adequacy of any monetary offer as part of an offer of amends should not be judged by reference to the range of damages the plaintiff would have received at trial. If what was meant was that a reasonable offer does not have to include an offer to pay an amount within the range of a full assessment of damages as if after a trial, that is undoubtedly correct. Apart from anything else, that would overlook the reparation achieved by the mandatory components of the offer, particularly the requirement to publish a reasonable correction. The reasonableness of any monetary offer is necessarily informed by the reasonableness of the correction, including the extent of its reach. To adopt any different approach would subvert the object of the Act of encouraging the non-litigious resolution of defamation disputes. But the seriousness of the defamation undoubtedly remains a relevant factor in assessing the reasonableness of the monetary component of an offer. 101I also accept, as submitted by Mr Blackburn, that the Court must be mindful of the fact that the grounds of aggravation now relied upon by the plaintiff were not known to her at the time the offer was made (and hence had not aggravated her damage). However, even at the time the offer was made, the defendants ought to have appreciated that the defamation was such as to cause extreme hurt and distress to Ms Pedavoli. 102The seriousness of the defamation could scarcely be any worse. But for the fact that the plaintiff was not named in the article and the prompt correction of the online edition, this defamation would clearly have fallen within the worst class of case. Accepting that the assessment as to the adequacy of the sum offered must be informed by the other components of the offer and the fact that acceptance of it would have made amends and obviated the need for a trial, I do not think the sum offered was enough to bring the whole of the offer, with all its components, up to the mark of being one which could be characterised as reasonable in all the circumstances. That conclusion is based upon both my assessment as to the inadequacy of the correction and apology and my assessment of the seriousness of the imputations (with the extreme hurt they would inevitably have caused). 103For those reasons, I am not satisfied that the defence of failure to accept an offer of amends is established. Damages 104It remains to assess the damages to be awarded to Ms Pedavoli. 105The purposes of an award of damages for defamation are "consolation for the personal distress and hurt caused to [the plaintiff] by the publication, reparation for the harm done to [the plaintiff's] personal and (if relevant) business reputation and vindication of [the plaintiff's] reputation": Carson v John Fairfax & Sons (1993) 178 CLR 44 at 60 per Mason CJ, Deane J, Dawson and Gaudron JJ. 106Section 34 of the Defamation Act requires the Court to ensure that there is "an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded". In Rogers v Nationwide News Pty Ltd [2003] HCA 52, Hayne J said (in respect of s 46A of the Defamation Act 1974, which imposed a similar requirement): "In the end, what s 46A draws to attention is that damages awarded for defamation must take their proper place in the administration of justice. In particular, they must stand in a proper relationship with awards for the non-economic consequences of personal injury. The relationship which s 46A(2) identifies is not, however, some precise or mathematical relationship between particular cases of defamation and personal injury or between particular classes of such cases. To do that would compare the incomparable." 107Section 46A(2) of the 1974 Act required the court to take into consideration "the general range of damages for non-economic loss in personal injury awards in the State (including awards made under, or in accordance with, any statute regulating the award of any such damages)". There is no such requirement in the 2005 Act, but damages for non-economic loss are capped. The present maximum is $366,000 (New South Wales Government Gazette, no 57, 27 June 2014 at 2322). The Court may award damages exceeding that amount "if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages": s 35(2) of the Act. 108Many of the considerations relevant to the assessment of damages in the present case have been addressed above. In my view, the assessment must begin with the proposition that, but for the fact that the plaintiff was not named in the article, the seriousness of the defamation and the degree of hurt in fact suffered by Ms Pedavoli would place this case within the worst class of case, calling for an award of damages at or near the statutory cap, subject to any relevant factors of mitigation and aggravation. Extent of publication 109The defendants submitted that the present case is towards the lower end of the scale in terms of the extent of harm to the plaintiff's reputation. Specifically, it was submitted that, although the imputations are serious, the number of persons who are likely to have identified the plaintiff as the teacher concerned was "quite limited". 110In order to assess that contention, it is necessary to determine a threshold question of principle. As already noted, the issue of identification was not in dispute (T179.36). The matter complained of wrongly identified Ms Pedavoli as the teacher concerned by the description of a teacher at St Aloysius College who "was in her late 20s" and by the statement "It is believed the teacher taught drama and English at the school". To anyone who knew the identifying facts, that description pointed unequivocally to Ms Pedavoli. It also excluded the real teacher concerned, but it is not necessary to complicate the legal issue I am about to consider with reference to that fact. 111The matter complained of would be understood in a defamatory sense in respect of Ms Pedavoli by any person who knew she answered the description in the article. However, the defendants submitted that her cause of action is limited to publication to those persons who had that knowledge at the time of publication. That was said to follow inexorably from the general principle that the cause of action in defamation is complete upon publication of the matter complained of, the scope of publication being limited to the persons who, at that time, had the knowledge required to understand the matter complained of in its defamatory sense. It was accordingly submitted that Ms Pedavoli cannot recover damages in respect of publication to any person who acquired that knowledge at a later point in time, such as by undertaking searches on the internet. 112The difference is potentially significant, since there was evidence as to an apparent spike in interest in the school's website when the article was published online (the admissibility and significance of that evidence is considered below), suggesting that a number of people went onto the website after reading the article in order to ascertain the identity of the teacher concerned. As at that date, the website identified Ms Pedavoli as the only teacher of both drama and English at the school. That information could have expanded the number of people who understood the article in a sense defamatory of her. 113Mr McClintock disputed the correctness of the defendants' statement of the applicable law. He submitted that the plaintiff is entitled to recover damages for publication to the larger group (including persons who ascertained the identifying facts and made the connection with Ms Pedavoli only after the matter complained of was published). The case accordingly squarely raises an issue as to the circumstances in which a plaintiff can rely upon the reader's knowledge of extrinsic identifying facts where that knowledge was acquired after publication of the matter complained of. 114Mr Blackburn submitted that the position is governed by the decision of Hunt J in Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85. As stated by Mr Blackburn, that decision has stood for a long time and has been applied on many occasions. 115Baltinos was an unusual case. The matter complained of was an article in a Greek language newspaper. For the purpose of the argument, the following translation of the article was accepted: "Migrants victims of rapacious con-men. Many foreign visitors have at all times fallen prey to a number of slickers who posture as specialists having, for a substantial reward, the means to arrange permanent residence for them." 116The article went on to announce that a television programme to be broadcast on SBS that evening would "deal with this very interesting topic" and recommended that readers watch the programme. 117The question determined by Hunt J (as a separate question in the proceedings) was whether the matter complained of was capable of identifying the plaintiff. The particulars of identification were that the plaintiff was involved in giving assistance to immigrants in obtaining permanent resident status in Australia and the fact that the SBS broadcast referred to in the matter complained of contained a segment naming the plaintiff as a person engaged in assisting immigrants in obtaining permanent resident status in Australia. As stated in the judgment, those particulars were provided in circumstances where the plaintiff was not named or directly identified by description in the matter complained of (whereas in this case it is conceded that the plaintiff was directly identified by description). 118In determining the application, Hunt J began (at 88F) with the basic principle that a plaintiff's cause of action must arise at the time of the defendant's act of publication and not later. His Honour said: "If a plaintiff relies upon the reader's knowledge of extrinsic facts in order to understand what was published by the defendant in a defamatory sense, that knowledge must exist at the time of the defendant's publication to that reader." 119His Honour noted a qualification to that principle, recognised in Hayward v Thompson [1982] QB 47 at 60, 67 to 68, that a plaintiff may rely upon a subsequent publication made by the defendant, where the matter complained of was defamatory on its face and the subsequent publication was used only to identify the plaintiff as the person referred to. His Honour explained that the qualification recognised in Hayward v Thompson is justified on two grounds. The first (the correctness of which his Honour doubted but felt bound to accept) is that a subsequent publication by the same defendant tends to establish that the defendant actually intended to refer to the plaintiff in the matter complained of. The second is that such a publication may lead the reader to infer from what was published that the defendant had intended to refer to the plaintiff (regardless of whether that was the publisher's actual intention). 120Mr Baltinos argued for an extension to that qualification to the general principle by reference to the second ground explained by Hunt J. He submitted that he should be entitled to rely upon the defendant's apparent invitation to the reader to watch the SBS programme in order to ascertain the identity of those to whom the defendant intended to refer, notwithstanding that that programme was published subsequently and by someone else. 121Hunt J said (at 97F): "The defendant could be understood from the matter complained of as itself pointing the finger at the person or the group of persons to whom it intended to refer. There could be no objection in principle to a plaintiff relying upon such an apparent intention on the part of the defendant where the identity of the person so identified became known as soon as the matter complained of was published." 122Ultimately, his Honour rejected the defendant's application on the basis that the plaintiff's reliance upon the SBS programme in aid of the case on identification "does not infringe the policy behind the decision in Hayward v Thompson (at 98C). 123Mr Blackburn submitted that, in accordance with the principles stated by Hunt J in Baltinos, there are two ways in which a defendant can be responsible for the identification of a plaintiff even though the identification was "not complete" at the time of publication of the matter complained of. The first is where the defendant itself subsequently identifies the plaintiff. The second is where the defendant indicates that, in some future publication (although not its own) the plaintiff will be identified (T203-204). 124With great respect to Mr Blackburn, that merely describes the factual result in those earlier cases without identifying the governing principle. I acknowledge, however, that the articulation of the relevant principle as a statement of law is difficult. 125Mr Blackburn submitted that the present case is quite different from either of the circumstances drawn from Baltinos. He submitted that to hold the defendants responsible for publication to readers who went away to make their own inquiries to ascertain the identity of the plaintiff would require a further qualification to the general principle which is not warranted. He submitted that to recognise that further qualification would "put the whole principle on its head", since it would be difficult to conceive of a case where the inclusion of the identifying facts would not enable readers who did not know the plaintiff to go away and find out who the plaintiff was. 126The decision in Baltinos was considered in the English decision of Chase v Newsgroup Newspapers Ltd [2002] EWHC 2209 (QB). That is a decision of Mr Justice Eady determining an application for summary dismissal of a claim in defamation to the extent that the claim relied upon identification of the plaintiff by events occurring after the publication of the matter complained of. His Honour rejected the application, for two primary reasons. The first was that the law as to the precise extent to which subsequent events can be relied upon to inform the reader's understanding of a newspaper article was at that moment uncertain and "may require refinement in due course". The second was that the determination of the issue raised required investigation of the facts. 127In considering the state of the law, Eady J made the following remarks (at page 4 of the printout from Westlaw): It seems to me that there is no logical reason, as opposed to a quasi-moral reason, why reliance on subsequent matter should be confined to subsequent articles published by the same defendant or in the same newspaper. If the test is whether subsequent publications lead the reader to infer that the defendant had intended in the original article to refer to the claimant, as Hunt J. suggested in Baltinos at p.89, there would appear to be no reason in principle why such an inference could not be drawn from third party publications. 128His Honour concluded (at page 5): If a defendant has, by publication of an article or articles of a sensational character, lit a fuse which is, objectively judged, going inevitably to lead to the claimant's identification, it may well be that the law should afford a remedy. Alternatively, the test may be, as Mr Suttle has argued, that a remedy would be available if it is foreseeable that the claimant will be identified as a result of the defendant's actions. In Baltinos, as I have indicated, the court was concerned with an invitation to readers to view a certain television programme. An invitation can of course be extended by implication or by nudges and winks. It does not seem to me to be clear that the principle which was being exemplified in the Baltinos case is necessarily confined to express or direct invitations." 129Those remarks, although couched in the cautious language of an interlocutory determination, provide a cogent and compelling analysis of the relevant principle. I would respectfully adopt the remarks of Eady J as the proper basis on which the present case should be determined. 130The matter complained of reported sensational allegations. I do not mean to say that it did so in an inappropriately sensational way - it was a serious, important piece (and was all the more damaging for that). But the article was bound to excite interest as to the identity of the teacher concerned, particularly within the relevant school community. In my view, the article did implicitly invite readers to ascertain who she was. The article offered enough tantalising detail to encourage that course: the reader knew that it was a teacher at St Aloysius College who was in her late 20s. Without naming her, the newspaper offered this: "It is believed the teacher taught drama and English at the school". Implicit, I think, was the next question: "do you know who she is?" 131Alternatively, I think there is force in the suggestion of Eady J that liability should attach where it is reasonably foreseeable that the plaintiff will be identified as a result of the defendant's actions. That was undoubtedly the case here. As already noted, the author of the article had herself made the very mistake that ought to have been foreseen. 132For those reasons, I am satisfied that the defendants are liable for publication to all persons who read the matter complained of who either knew the identifying detail (so as to make the connection with Ms Pedavoli at the time of publication) or ascertained it from the St Aloysius College website. 133The plaintiff tendered a document produced on subpoena by St Aloysius College (exhibit P). The document was relied upon to prove that there was a spike of interest in the St Aloysius College website (and, in particular, the list of staff in the senior school), in response to the publication of the matter complained of. Mr Blackburn objected to the admission of the document into evidence. Following extensive argument I determined that the document was admissible as a business record of St Aloysius College: s 69 of the Evidence Act 1995. It plainly forms part of the records belonging to the College for the purpose of its business and contains representations as to access to the website. 134The documents the subject of the tender were plainly produced by a computer (using Google Analytics). In accordance with s 146 of the Evidence Act I consider it to be reasonably open to find that the process used is one that, if properly used, produces the outcome of identifying the number of page views for the senior school staff page of the website on the dates in question. The irresistible inference is that there was a dramatic spike in attention to the staff page, which identified the fact that Ms Pedavoli taught both English and drama, at the time of publication. I am satisfied that a large number of people consulted the website for the purpose of ascertaining the identity of the teacher described in the article. 135Accordingly, I do not accept that the extent of publication is as limited as the defendants contend. As submitted on behalf of Ms Pedavoli, it is likely that the Sydney Morning Herald was commonly read in the circles in which she mixed - educated people and people involved in higher education in Sydney. 136A focus of the defendants' submissions as to damages was the contention that, even among people who knew that the description in the article described Ms Pedavoli, only a limited number of people would have been in fact been misled into believing or suspecting that she was (or might be) the teacher concerned. It was submitted that, of that limited number, a considerably smaller subset would have continued to labour under that misapprehension for any length of time. 137Of course it is never possible for a plaintiff to know or directly prove the full extent of the reach of a publication such as the matter complained of in the present case. That said, there is a body of cogent evidence to support the conclusion that the article was widely read and widely understood to refer to Ms Pedavoli. The evidence included specific instances of people both within and outside Ms Pedavoli's immediate circle of family, friends and colleagues who plainly understood the matter complained of to refer to her. She was the subject of vicious, otherwise inexplicable attacks on the internet, in comments on a Youtube recording and on the Rate My Teacher website. 138One aspect of the evidence on that issue was particularly compelling. Mr McClintock took me to the example of a comment posted on Twitter included in exhibit DD to Ms Pedavoli's affidavit, where one reader referred to the teacher concerned as a university medallist (which Ms Pedavoli is). The evidence undoubtedly did not provide the complete universe of such instances. 139In my assessment, the defendants' case as to the extent of publication rested on the bland, unrealistic assertion that the circle of people who read the matter complained of and understood it to refer to Ms Pedavoli coincides almost exactly with the circle of people who know for a fact that she is not the teacher concerned. Only on that premise could it be concluded that the extent of harm to reputation is as minimal as suggested by the defendants. I reject the premise. The overwhelming likelihood, in my view, is that many people understood the matter complained of to refer to Ms Pedavoli and did not know it to be false. I consider it likely that a substantial number of those people remain under that misapprehension. 140The people who read the matter complained of and understood it to refer to Ms Pedavoli are likely, in the main, to be those among whom her reputation is everything to her: people with whom she went to school and university; those who taught her at school and university; friends and associates from that period of time; former students; friends and parents of former students; parents and students at schools associated with St Aloysius College; students, teachers and educators with whom she has associated through other schools; other people involved in the teaching profession, particularly in the fields of English and Drama. In my assessment, the overwhelming likelihood is that that group of people is likely to be considerable larger than the group of people who know and accept that Ms Pedavoli is not the teacher concerned. I am satisfied that the publication of the matters complained of, in their various forms, did considerable harm to Ms Pedavoli's reputation. Hurt to feelings 141Teaching is everything to Melinda Pedavoli. It was her life ambition to become a teacher. She completed her Bachelor of Education at Sydney University and was awarded the University Medal. She teaches at a prestigious Sydney private high school for boys and, until publication of the matter complained of, enjoyed the undoubted pleasure of being talked about only in favourable terms. 142Upon publication of the matter complained of, Ms Pedavoli suffered extreme hurt to her feelings. Although she impresses as a person of robust personality, the hurt was as extreme as might be expected for a publication of this kind. She gave evidence that, when she read the article, she felt "disgusted and hurt" and could not understand how it could have come about. She felt powerless, with "a deep sense of embarrassment and shame" for something she had no involvement in. She felt shocked and terrified that some of her closest friends and those she thought knew her best needed to ask whether she was the teacher subject of the allegations. She thought that, if people she worked with who knew the true identity of the teacher concerned still identified her from the article, "what chance did I have of defending myself against the general public?" She felt scared, worried, anxious, distressed, alone, depressed, angry and insecure. 143She felt worried about her mother and the effect on her if other relatives thought that it was Ms Pedavoli who was the subject of the allegations. It hurt and upset her having to discuss the issue with her mother. 144After seeing the comments under the Youtube clips referred to above, Ms Pedavoli felt physically ill, suffering from erratic breathing, abdominal pain and diarrhoea. 145The hurt to feelings suffered by Ms Pedavoli is ongoing. Asked during the trial how she feels about the defamation, she said: "I'm still in a very confused state of mind. I I feel trapped. I don't know how to rectify my reputation in the eyes of people who have clearly assumed that the article described me. I feel bound to maintaining my position at St Aloysius in fear of leaving the school and confirming any suspicion that I'm the person described and, therefore, no longer at the school. I'm still scared about the prospect of my clear [scil: career] and my reputation and immensely hurt." 146I do not have any difficulty accepting Ms Pedavoli's evidence on the issue of hurt to feelings. As explained below, the defendants' challenge to one aspect of that evidence must be rejected. Mitigating factors 147By way of mitigation, the defendants rely upon the prompt removal of the incorrect detail from the online article on the morning of 31 January 2014, the removal of the online article altogether on 13 February 2014 and the apology. Those steps (particularly the first) undoubtedly stemmed the harm to Ms Pedavoli's reputation. 148The defendants submitted that the absence of any ongoing or lasting harm to reputation is evident in the fact that the plaintiff has maintained her employment as a teacher at St Aloysius College and the fact that she enjoyed a promotion to Acting Assistant Head of English earlier this year. That is evidence of her ability as a teacher and the fact that it is recognised by the relevant decision-makers at the school, among whom no one could be under any misapprehension as to whether she is in fact the teacher concerned. In my view, it says little as to the likely reach of the defamation. 149The defendants also rely, by way of mitigation, upon the fact that Ms Pedavoli has received compensation for defamation from the publishers of an article in the Daily Telegraph and an article on the News website. Strictly speaking, that is not a circumstance that affects the measure of damages in respect of the present action but I accept that care must be taken not to duplicate compensation for hurt or harm that has already been compensated. Aggravated damages 150The damages to be awarded to a plaintiff in a defamation action may be aggravated by conduct of the defendant toward the plaintiff which is found to be improper, unjustifiable or lacking in bona fides: Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497. 151The plaintiff relied on a lengthy list of matters in aggravation of her damages, set out in a letter to the defendants (exhibit L). It is not necessary to set out each line item of that correspondence, but only to address the salient matters. 152At the conclusion of the hearing, the plaintiff also provided a list of features of the conduct of the trial alleged to have aggravated her hurt to feelings. 153Probably the most significant aggravating feature of the circumstances of the publication is the fact that the publisher took no steps to prevent the reader from falling into the same error the journalist herself had fallen into, and identified, while preparing the story. I have already summarised the relevant circumstances. Mr McClintock submitted that the defendants' whole approach smacked of reckless indifference. Much of the argument on that issue was directed to whether that was an appropriate label, but it is enough to record my conclusion that the defendants' conduct in publishing the matter complained of was unjustifiable in the sense discussed in Triggell v Pheeney. It beggars belief, in my view, that the newspaper proceeded to publish the article including details known to identify Ms Pedavoli after the journalist had made a deliberate choice not to speak to her. For fear of what? Whilst I have some sympathy for the difficulties faced by investigative journalists, the approach on this occasion was unjustifiable, in my view. As noted on behalf of the plaintiff, it is not as though there was any urgency about the story. It was almost two months old at the time of publication. 154I must also record that there was one aspect of the conduct of the hearing which, in my assessment, was unjustifiable. It relates to the following exchange during the cross-examination of the plaintiff (T53-54): Q. In the first sentence you say that publication of the matters has made you concerned about your future employment, and then in the second sentence you say, "I fear that any resume I submitted to another school would immediately raise concerns that a potential paedophile was seeking employment." Do you see that? A. Yes. Q. Now, Ms Pedavoli, really, you don't have that fear at all, do you? A. I wouldn't have written it if I didn't. Q. I think in your evidence earlier this morning you said that any teacher who had done this kind of thing, their career would be finished or words to that effect? A. Yes. Q. You agree with that proposition? A. Yes. Q. Now, any resume that you submitted to another school would indicate very clearly, wouldn't it, that you had not been dismissed by St Aloysius College for paedophilia or anything like that, wouldn't it? A. That hasn't stopped the teacher complained of applying for other positions. Q. Will you ask my answer question, please. MCCLINTOCK: That is an answer. BLACKBURN: No, it's not. Q. Will you ask my question, please? Do you want the question again? A. Yes, please. Q. Any resume that you submitted would show very clearly, wouldn't it, that you were not dismissed from St Aloysius College for paedophilia or anything like paedophilia, wouldn't it? A. If I were dismissed, but not if I had resigned, as she did. Q. Is the answer to my question yes? A. No. HER HONOUR: I think that was an answer, Mr Blackburn. BLACKBURN Q. Can I suggest to you that there is no basis at all for the concern that you have expressed in paragraph 75? A. You can express that. MCCLINTOCK: Seeing as this is being taped, your Honour, perhaps it should be made clear that that was actually a denial HER HONOUR: It was a denial, and it should also be made clear potentially for another purpose, Mr McClintock, but in the course of that exchange the witness began crying again. 155The evidence Ms Pedavoli had given related to a subjective fear. In my view, it is a rational fear, in the circumstances. To put to her in cross-examination that she did not have that fear at all amounted, in substance, to an accusation of dishonesty or, at best, disingenuity. I do not think there was any warrant for the defendants to put that proposition to the plaintiff. It reflected the weary scepticism of a frequent defendant which, in my view, was wholly unjustifiable in the present case. Ms Pedavoli was visibly upset by the exchange and I accept that it aggravated the hurt occasioned to her by the defamation. 156In all the circumstances, I am of the view that Ms Pedavoli is entitled to an award of damages, including aggravated damages, that approaches the statutory cap. The assessment must reflect the fact that, since she was not named, this was not a publication to the world at large, but it must also reflect the likely interest sparked by the matter complained of in working out who the teacher was, particularly in the circles in which Ms Pedavoli's reputation counts most. In my view, there should be a verdict in favour of Ms Pedavoli in the sum of $350,000. 157Ms Pedavoli seeks an award of interest at the rate of 3 per cent. The defendants did not dispute her entitlement to such an award. I am satisfied that it should be allowed. 158At the request of the plaintiff, I will hear the parties as to costs. ********** 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: 27 November 2014