Randwick Labor Club Limited v Amalgamated Television Services Pty Limited [2000] NSWSC 906

New South Wales Supreme Court

CITATION : Randwick Labor Club Limited v Amalgamated Television Services Pty Limited [2000] NSWSC 906 FILE NUMBER(S) : SC 20024/98 HEARING DATE(S) : 14/08/00, 15/08/00, 16/08/00, 17/08/00, 18/08/00, JUDGMENT DATE : 18 September 2000

PARTIES : Randwick Labor Club Limited & Ors v Amalgamated Television Services Pty Limited JUDGMENT OF : James J

COUNSEL : M Neil QC/RA Campbell - Plaintiffs TEF Hughes QC/K Rees - Defendant SOLICITORS : Messrs Bowen & Gerathy - Plaintiffs Mallesons Stephen Jaques CATCHWORDS : Defamation - Damages DECISION : Damages assessed.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JAMES J

ENTER DATE

20024/98 - Randwick Labor Club Limited & Ors v Amalgamated Television Services Pty Limited

JUDGMENT 1 HIS HONOUR: These are proceedings in defamation brought by eight plaintiffs against the defendant Amalgamated Television Services Pty Limited, the proprietor and operator of the television station ATN Channel 7, arising out of part of a news bulletin known as The Sydney Nightly News broadcast by the defendant between 6 pm and 6.30 pm on 5 June 1997. 2 The first plaintiff in the proceedings is the Randwick Labor Club Limited ("the Club"), which was incorporated as a company limited by guarantee in 1963 and which since 1963 has functioned as a licensed club at one or other of two premises in Alison Road, Randwick. The second to eighth plaintiffs, Ken Murray, Kevin Scott, John Francis Ford, Lena Bridge, Peter Robert Bell, Joseph Riordan and Leslie Frederick Bridge, were at the time of the broadcast on 5 June 1997 and have since remained, directors of the Club. Three other individuals who were at the time of the broadcast and who have continued to be directors of the Club did not join in the proceedings. 3 The relevant part of the Seven Nightly News bulletin broadcast on 5 June 1997 (I will henceforth refer to this part of the bulletin as ("the program") consisted of spoken words and visual images ("camera shots"). The words were spoken by two newsreaders, Ann Sanders and Adam Walters, and by Mr Richard Bull, who at the time the program was broadcast was a National Party member of the New South Wales Legislative Council and the shadow minister for gaming. The transcript of the words spoken in the program and a brief description of some of the camera shots in the program were set out in a schedule to the plaintiffs' statement of claim. The accuracy of this schedule was not challenged by the defendant. The schedule reads as follows:- " Schedule A Ann Sanders: A Sydney Club run by senior Labor Party figures may be charged with breaching licensing laws 13,000 times. The astonishing figure is being investigated by detectives who raided the Randwick Labor Club. Adam Walters: (Camera shots of Club from outside). It is not just another poker machine palace, it's as close as it gets to the New South Wales ALP's inner sanctum but the Labor Party's back rooms have been gate-crashed by the police investigating more than 13,000 alleged breaches of the Liquor and Licensing Act. (Single camera shot of photograph of all Board Members). (Close up camera shot of certain Board Members with names printed underneath). The Club's board reads like who's who of Labor Party number crunchers including right wing power broker and former Upper House President, John Johnno Johnson and senior ALP strategist, Ken Murray. Richard Bull: If these alleged 13,000 breaches are to be found, then these Directors are going to have to … mount a … answer to a please explain. Adam Walters: The alleged breaches relate mainly to irregularities in record keeping and book work. Senior police have confirmed the Club continues to undergo audits and other checks by detectives from the Licensing Enforcement Agency. (Camera shots of NSW Premier Bob Carr meeting patrons). The Club's patrons include Premier Bob Carr - seen here revelling in his election victory at what's become the traditional venue for ALP celebrations. (Camera shots of documents). Official documents on election funding show that between November 1991 and January 1995 the Club donated $125,000 to the Labor Party. Richard Bull: It is obviously their slush fund Club in the eastern suburbs. This is in Bob Carr's heartland. Adam Walters: Adam Walters - Sydney Nightly News". 4 A fuller description of the camera shots shown in the program would be as follows. Ms Sanders is shown reading the first two paragraphs of the transcript. The voice of Adam Walters is then heard reading the third paragraph in the transcript, while views of the exterior of the Club's premises, on which its name appears in prominent letters, are shown. After the camera shot of a group photograph of all the directors, separate photographs of Mr Riordan, Ms Ann Bowen a director of the Club who did not join in the proceedings, Mr Ford, Mr Bridge and Mr Murray are shown in succession. The name of each of these directors is shown at the foot of his or her photograph. Mr Ford is described as "vice-president" and Mr Murray as "president". While it is being shown, each of the photographs of the individual directors occupies the whole of the television screen. 5 Mr Bull is then shown, saying the words referring to 13,000 alleged breaches. He is described by words appearing in the camera shot as the shadow minister for gaming. Adam Walters is then shown saying the words commencing "the alleged breaches relate…". When Adam Walters says the words in the paragraph of the transcript commencing with the words "Senior police have confirmed", he is shown outside a grey building on which the words "Sydney Police" are clearly visible. 6 There are then camera shots of the Premier Mr Carr greeting patrons in a club. A number of witnesses, including Mr Carr himself, gave evidence, which I accept, that the club the interior of which is shown in the program is not the Club (that is the Randwick Labor Club) but the South Sydney Junior Rugby League Club. 7 When the camera shots of "documents" are shown, an area at the top and an area at the bottom of the picture are blacked out and the lighting of the remainder of the picture is fairly dim. What appears to be some kind of record with rows of entries is shown. In one row of entries there appear, from left to right, the name of the Club, the address of the Club and an amount in dollars. All of the entries relating to the Club are highlighted in yellow. 8 Mr Bull is then shown speaking the words "it is obviously their slush fund club in the eastern suburbs. This is in Bob Carr's heartland". As Mr Walters says the final words in the program, there is another camera shot of the same highlighted record shown earlier. 9 It is obvious that the program was compiled from a variety of sources. Although the program was broadcast at night, the camera shots of the exterior of the club, of Adam Walters outside the Sydney Police building and of Mr Bull were taken in daylight. 10 Evidence about the broadcasting of the program and the viewing audience of the program was supplied by the defendant, by Prime Television Limited and by AC Nielson media research. The program was broadcast by the defendant on one occasion only to metropolitan Sydney. The estimated number of viewers of the program in metropolitan Sydney was 322,000. 11 The program was broadcast once by Prime Television, an affiliate of the defendant, in its 6.30 pm news bulletin on 5 June 1997 to regional New South Wales and the Australian Capital Territory. The area described as regional New South Wales included the Gold Coast in Queensland. The estimated number of viewers of the program in the Northern New South Wales regional area, including the Gold Coast, was 119,000. The estimated number of viewers of the program in the southern New South Wales regional area, which included the Australian Capital Territory, was 154,000. 12 It was submitted by counsel for the plaintiffs, and not disputed by counsel for the defendant, that it could be inferred from information supplied by Prime Television and AC Nielson that there would have been about 33,000 viewers of the program on the Gold Coast in Queensland and about 25,000 viewers of the program in the Australian Capital Territory and I have proceeded on the basis that those figures are roughly correct. 13 At the time the program was broadcast by the defendant a meeting of the Board of Directors of the Club was in progress. The manager of the Club, who was not at the meeting and who had seen the program as it was broadcast, telephoned the boardroom and spoke to Mr Murray, informing him that a program about the Club had been shown by the defendant. About a week after the program was broadcast, members of the Board of the Club viewed a recording of the program. 14 On 19 June 1997 the solicitors for the Club prepared a letter to the defendant. In this letter the solicitors said that they were acting for the Club, they complained that the program was defamatory of the Club and, without prejudice to the Club's right to bring court proceedings, demanded the broadcasting of an apology. 15 There was no admission by the defendant that this letter had been received by the defendant. However, a clerk employed by the Club's solicitors gave evidence on affidavit that, in accordance with the solicitors' usual practice, a letter to the defendant had been recorded in the solicitors' mail book on 19 June 1997 as an item of outgoing mail and I am satisfied that the letter was posted and that it would have been delivered to the defendant. 16 Possible defamation proceedings arising out of the broadcasting of the program were discussed at a meeting of the Board of Directors of the Club on 25 June 1997. At a meeting of the Board on 14 August 1997 a resolution was moved and carried "that the Club take legal action for defamation against ATN seeking damages. Further, any individuals wishing to take action against ATN should consider their own position with respect to solicitors and counsel". The minutes of a meeting of the Board held on 11 September 1997 record that senior counsel had recommended "collective action by the directors". Correspondence from the Club's solicitors about the proposed proceedings was noted at meetings of the Board held on 16 October 1997 and 15 January 1998. 17 These proceedings were commenced by the Club and the seven individual plaintiffs in February 1998. 18 After the proceedings were commenced, objection was taken by the defendant's legal representatives to the pleading of some of the imputations allegedly conveyed by the program. In interlocutory proceedings reference was made to a definition of the expression "slush fund" in the Macquarie Dictionary, namely "a fund for use in campaign propaganda or the like, especially secretly or illicitly, as in bribery". 19 An amended statement of claim was filed on 22 December 1998. To this amended statement of claim the defendant filed a defence in which it traversed certain elements of the plaintiffs' causes of action and raised defences of common law and statutory qualified privilege but did not raise any defence of justification. In their reply the plaintiffs alleged, in relation to the defence of qualified privilege, that the defendant had been actuated by express malice in the publication of the program and that the conduct of the defendant in publishing the program had not been reasonable. 20 A hearing pursuant to s 7A(3) of the Defamation Act was conducted before Abadee J and a jury on 29 and 30 March 2000. The jury found that in the program the following defamatory imputations had been conveyed:- "Regarding the first Plaintiff - (Randwick Labor Club Limited) 1. the first plaintiff was a slush fund Club for the Labor Party. 2. the first plaintiff had donated $125,000 of tainted money to the Labor Party. Regarding the second Plaintiff to the eighth plaintiff - (the Directors of the Club) 1. the plaintiff was a director of Randwick Labor Club Limited whilst knowing it to be a slush fund club for the Labor Party. 2. the plaintiff's conduct as a director of the Randwick Labor Club was such as to warrant the plaintiff being reasonably suspected of being involved in the Club committing a large number of serious licensing offences. 3. the plaintiff as a Director of the Randwick Labor Club had been involved in the donation of $125,000 of tainted money to the Labor Party". 21 About the time of the hearing pursuant to s7A of the Defamation Act the solicitors for the plaintiffs sought particulars of the extent of the publication of the program. By successive letters of 28 March, 29 March and 30 March the solicitors for the defendant informed the solicitors for the plaintiffs that the program had been broadcast once by the defendant to the metropolitan area of Sydney in its 6 pm news, that the program had been broadcast once by Prime Television to regional New South Wales and the Australian Capital Territory in its 6.30 pm news and that Prime Television had also broadcast the program to the Gold Coast in Queensland. 22 On or about 2 May 2000 the Freedom of Information Unit of the New South Wales Police Service wrote to the Club, advising that an application under the Freedom of Information Act had been received from the defendant's solicitors seeking access to documents relating to any investigation into alleged breaches of the liquor licensing laws by the Club, undertaken by the Licensing Enforcement Agency in 1996 and 1997. 23 On 30 May 2000 the plaintiffs' solicitors wrote to the defendant's solicitors, asking whether the defences of qualified privilege which had been pleaded would be pursued at the further trial of the proceedings or whether they would be withdrawn. By their letter of 23 June 2000 the defendant's solicitors said "our client has no intention of withdrawing its defence of qualified privilege and we are preparing for the trial on that basis". 24 As regards the application under the Freedom of Information Act, the defendant's solicitors said:- "Given that one of the particulars of malice pleaded in the reply filed on behalf of your clients… is the falsity of the matter complained of…, the truth or falsity of the statements made in the broadcast are in issue and … the documents requested by the defendant in its freedom of information application are relevant to that issue". 25 There was further correspondence between the solicitors for the parties in August. In their letter of 3 August 2000 the defendant's solicitors set out the terms of a proposed apology. In their letter of 8 August the plaintiffs' solicitors set out an amended form of apology, in which some additions were made to the form of apology proposed by the defendant's solicitors. The plaintiffs' solicitors required that an apology in the amended form be broadcast by the defendant as part of the 6 o'clock news to the same audience as there had been for the matter complained of and also be read in open court. 26 In a letter of 9 August the defendant's solicitors, for the first time, informed the plaintiffs' solicitors that "the defendant does not intend to rely upon either of the defences of qualified privilege as pleaded". In this letter the defendant's solicitors also said that the defendant proposed to broadcast an apology in the evening news bulletin at 6 pm on Thursday 10 August. 27 In a letter of 10 August the plaintiffs' solicitors said, in regard to the withdrawal of the defences of qualified privilege, "our clients' initial reaction is outrage that your client has subjected them to the publication, the s 7A trial and insistence on pursuing a defence until trial is imminent". The plaintiffs' solicitors added:- "As to the apology our clients are most concerned that an apology could be detrimental to them. Even a full and complete apology at this time, although better than no apology, will have very little effect upon the position". 28 The plaintiffs' solicitors said that if an apology was published it should be in the same terms as were set out in an enclosure, which was itself in the same terms as the form of apology enclosed with the earlier letter of 8 August. The form of apology was in these terms: "Apology In the Seven Nightly News program of 5 June 1997 there was a segment referring to the Randwick Labor Club and Directors of the Club. In the course of that segment statements were published to which the Club and seven of its Directors took exception as being defamatory. The Club and those Directors have sued this station for damages. The Directors concerned are: Ken Murray Kevin Scott John Francis Ford Lena Bridge Peter Robert Bell Joseph Riordan Leslie Frederick Bridge The station accepts that it published defamatory statements about each of the plaintiffs. A jury has so found. We accept that each of the plaintiffs enjoyed a good and well deserved reputation at the time of publication and that they still have such reputation. We also accept that the statements were completely without foundation. We apologise unconditionally to each of the plaintiffs for having published the statements". 29 No apology was broadcast on 10 August. On 11 August the defendant's solicitors wrote a letter to the plaintiffs' solicitors in the following terms:- "No apology was broadcast last night. Our client remains willing to broadcast an apology in the form attached to your letter, but in view of your clients' expressed concerns, will forbear to do so pending some further expression of your clients' wishes". 30 On 14 August, the first day of the hearing before me, an apology was broadcast by the defendant in the news bulletin commencing at 6 pm in the evening. No recording of this apology was tendered by either side. However, oral evidence was given that the apology broadcast was in the terms requested by the plaintiffs' solicitors. An apology in those terms was read in open court by counsel for the defendant on 18 August. 31 On 15 August 2000 Prime Television, which had received a subpoena for production from the plaintiffs' solicitors, wrote a letter to the Court supplying information about the extent of the publication of the program by it. 32 The defences of qualified privilege not being pursued by the defendant, the only matter remaining is the assessment of damages. 33 In the hearing before me all of the seven individual plaintiffs gave evidence. The plaintiffs also called a fairly large number of other witnesses, who could be broadly classified as falling into two classes (1) past or present politicians or local government councillors or judges (2) other witnesses. 34 A large amount of documentary evidence was also tendered on behalf of the plaintiffs. Most of this documentary evidence was tendered for the purpose of establishing the good, and indeed high, reputation of each of the plaintiffs at the time the program was broadcast. Counsel for the defendant stated that it was accepted by the defendant that all of the plaintiffs had been persons of good reputation at the time the program was broadcast. 35 The defendant did not call any evidence or otherwise go into evidence. 36 I have taken into account all of the evidence which was adduced at the hearing, whether or not it is referred to in the necessarily condensed summary of the evidence I will now give.

Mr Murray's Evidence 37 Mr Murray was born in 1942. 38 At the time the program was broadcast he was a director and the president of the Club. He had been a director since 1980 and the president since 1988. 39 At the time of the broadcast Mr Murray was a departmental head at Patrick Stevedoring at the Port Botany Terminal. 40 Mr Murray has been a prominent member of the Australian Labor Party. He has been a member of the Labor Party since 1971. Since 1976 he has been the Party's campaign director for the State seat of Maroubra, which is the Premier's seat. Since 1977 he has been the Labor Party's campaign director for elections to the Randwick City Council. He has been president of the State Electoral Council for Maroubra since 1995. He has been a member of the New South Wales Rules Committee of the Australian Labor Party for the last twelve years and has been the chairman of the Committee for the last five years.. He is the vice-president of the Maroubra Branch of the Labor Party. 41 Mr Murray gave evidence about the Club. It was formed in 1963 and has been on its present site in Alison Road since 1972. The Club occupies a four storey building, the second floor of which is a gaming area. The Club has about 6,000 members. Only about 1 per cent of the members of the Club are members of the Australian Labor Party. However, to be a director of the Club it is necessary to be a member of the Australian Labor Party. More than 60 per cent of the members of the Club are over fifty-five years old. 42 The Club has supported a number of charities, particularly a charity for the relief of muscular dystrophy, to which over a period of thirty years it has given more than $300,000. The Club has made legitimate donations to the Labor Party, as is permitted by its constitution. 43 Before the program was broadcast, police had come to the Club and had taken documents away from the Club. Mr Murray had not known what the police were investigating. 44 At the meeting of Directors on the evening of 5 June 1997 Mr Murray had received a telephone call from the Club's manager, who had been watching the Channel 7 news at his home. Mr Murray turned on the television set in the boardroom but by that time the broadcast of the program had finished. 45 After the meeting of the Board had ended, persons at the Club said to Mr Murray words to the effect "we saw you on TV. What's going on?" 46 The following morning Mr Murray's father telephoned him. Mr Murray's father had not seen the broadcast but had received telephone calls from relatives and friends regarding the broadcast. Mr Murray's father asked Mr Murray whether everything was all right and whether Mr Murray needed money. Mr Murray understood his father to be offering him bail money. 47 Mr Murray went to work on the morning of 6 June. At work comments were made in his presence such as "here's the slush fund" - "here's the corporate crook". Mr Murray was "shattered". 48 On 6 June Mr Murray received a telephone call from Mr Bastick, the then Mayor of the Randwick City Council, who was seeking clarification concerning the program. 49 On the afternoon of 6 June Mr Murray received a telephone call from Sergeant Rogerson of the licensing police, who expressed concern about the program. Mr Murray was "outraged" and accused the police of leaking information to the media. 50 A meeting of representatives of the Club and the police was held on or about Tuesday 10 June. No proceedings were ever brought against the Club or any of its directors. 51 Mr Murray saw a video of the program about a week after the program was broadcast. He gave evidence:- "I was completely outraged when I saw the allegations that appeared on the video and my own face very prominent there and spoken about as part of the item. It caused me quite a deal of distress". 52 Mr Murray gave evidence that when he was out shopping, he would strike persons who would say "we saw it on TV, you know. What's it all about?" Mr Murray would reply "there is no substance in these allegations. We will be, at the end of the day, vindicated". 53 Comments to Mr Murray about the program went on "probably off and on for a number of months". 54 When asked what he thought the program was saying about him and the Club, Mr Murray replied:- "Well, I had a distinct impression that we were guilty of organising or running some sort of slush fund, as quoted in the item, and the idea of tainted money; and while it didn't actually say that, we were portrayed in a very poor light. The idea of slush fund and tainted money…". 55 Mr Murray had felt "very concerned coming up to the jury verdict" but felt somewhat vindicated by the jury's verdicts. 56 He had been concerned by the defence of qualified privilege, because he thought it might be "a chink in our armour. Maybe we were going to get rolled on that issue". He was "outraged" by the late withdrawal of the defence of qualified privilege, after he had been "put through the stress" up to that time. 57 He had observed that at the time of the s 7A hearing Mrs Bridge had been "generally agitated". 58 On 10 August he had watched the Channel 7 news, expecting an apology to be broadcast and was "outraged" when no apology was broadcast. 59 Mr Murray said that the Club, the interior of which was shown on the program, was not the Club (that is the Randwick Labor Club) but the South Sydney Junior Rugby League Club. After the 1995 state elections the Premier Mr Carr had been at the Randwick Labor Club only for fifteen to twenty minutes. 60 Mr Murray was cross-examined about the delay of eight months in instituting proceedings. He said:- "I would consider that our Board, after the program, wanted to look at all aspects of the program and all aspects of our legal options, prior to proceeding". 61 Mr Murray also said:- "We… wanted to make a very thorough investigation ourselves as to what our options would be, what our likely opportunities for success would be and we wanted to obviously make sure that we were proceeding in a proper legal manner and getting everything absolutely right before we proceeded with the case". 62 Mr Murray had been the president of the Club since 1988. Since 1991 he had each year been re-elected unopposed as a director of the Club. Since 1991 all directors of the Club had been re-elected unopposed. Mr Murray gave the following evidence:- "Under our constitution nominations are placed on the board for a period of fourteen days. This takes place some fifty-six days prior to the annual general meeting. Members of the Club have the opportunity to nominate. As it is, since 1991, nominations have only equalled the number to be elected, we have been returned unopposed". 63 All the persons who were directors of the Club at the time the program was broadcast had been re-elected unopposed at the annual general meeting of the Club held in February 1998.

Mr Scott's Evidence 64 At the time the program was broadcast Mr Scott was the joint national secretary of the Finance Sector Union of Australia. He had held that position since 1994. Between 1988 and 1994 he had been the federal secretary of the Commonwealth Bank Officers Association. He had joined the Commonwealth Bank in 1958 and in 1968 had become an official in the Commonwealth Bank Officers Association. 65 Mr Scott has been a member of the Club since 1966 and a director since 1980. For a number of years up to the time of the broadcast Mr Scott had been the honorary secretary of the Club and was "classed" as the chief executive officer of the Club. He has been a member of the Australian Labor Party for more than thirty years. 66 Some months before the program was broadcast, police had come to the Club and had requested that documents be supplied to them. This request was complied with. 67 Mr Scott gave further evidence that in April 1997- "Detective Senior Sergeant Mike Edgeton came to see me and apologised for non-return of the documents. He said that nothing was wrong. He said that Owen Rogerson had a few housekeeping matters to bring to our attention and the reason there had been some delay is because our work had been put aside, once they realised nothing was wrong and it didn't take them very long to realise that". 68 Mr Scott was shown a blank record book called "Jackpot and Short Pay Record", of a kind used to record jackpots and short pays for persons playing poker machines. The record book had ruled columns. The first column on the left was headed "Date". Mr Scott then gave evidence:- "What we were told (by the police) was that the date had to go in next to each entry and what we had been in the habit of doing was putting the date, say today's date, and then ticking underneath that date and that is my understanding of the housekeeping matters". 69 Mr Scott was present at the Board meeting on 5 June 1997. After the meeting had finished, some members of the Club came up to Board members, including Mr Scott, and said:- "We saw you on TV. What's going on? What's happening? Are you in trouble?" 70 Mr Scott gave the following evidence:- "Being what was termed at the time chief executive officer I felt that, you know, the buck stops with me and I'd always been diligent about my duties about honorary secretary of the Club. I was shocked, particularly having been told by Detective Senior Sergeant Mike Edgeton that nothing was wrong, there were no problems, just a few housekeeping matters to be tidied up. So I was quite shocked and felt quite humiliated by the fact that people had seen me being what you might say inefficient, breaking the law…". 71 The following day 6 June 1997 Mr Scott participated in a telephone hook-up with members of the executive of the Finance Sector Union. He was asked about the program. He felt compelled to give a full explanation of the facts as he knew them. 72 Mr Scott's wife and children, his staff, members of the Finance Sector Union and members of other clubs all raised the broadcast of the program with him. Mr Scott's connection with the Club was well known in banking circles. Mr Scott welcomed the opportunity to try and give an explanation but feared that "some of the mud would stick". He felt very humiliated and hurt. 73 A particular concern of Mr Scott's was that he was up for re-election to his position with the Finance Sector Union and he feared that the broadcasting of the program might provoke an electoral challenge but in fact no such challenge eventuated. 74 Mr Scott found the court proceedings a strain. He had actually hoped that, because a defence of qualified privilege had been raised, it might be possible to discover who was responsible for the program. When he was informed that the defence of qualified privilege had been withdrawn, "in some ways" it was a relief. 75 He had watched the Seven Nightly News on 10 August and had felt "let down", when no apology was shown. 76 Mr Scott gave further evidence:- "My position was chief executive officer. I felt it was a personal slur on me that we had the so called slush funds, the so called tainted money, and, of course, the Club's constitution allows it and, in fact, there is some deal of obligation on the Club to support the views and ideals of the Australian Labor Party and it certainly was no slush fund. The various donations, grants given, have all been published and, in fact, we take quite some pride in them and to call it tainted money, you know, that to me was absolute slander". 77 Mr Scott also said:- "And then these 13,000 odd breaches of licensing laws, of course, you know that really hits you between the eyes, because being in the position I was in, who is responsible, I was. I was the licensee…" 78 In May 2000 Mr Scott on behalf of the Club attended at Police Headquarters in response to the letter from the police service concerning the application made by the defendant's solicitors pursuant to the Freedom of Information Act. "I felt that the TV station was attempting to dig up some dirt on us". 79 Mr Scott gave evidence that all of the imputations were false. 80 In cross-examination Mr Scott said that he had seen the apology broadcast on 14 August. In re-examination he said that he thought the apology was very late and, being so late, was of little effect. The apology was right at the end of the Seven Nightly News and there were no "visuals". The words of the apology were what the plaintiffs had required.

Mr Fords Evidence 81 Mr Ford was born in 1914. 82 He joined the Fire Brigade in 1932 and completed forty-two years of highly distinguished active service with the Fire Brigade. He was appointed to the Board of Fire Commissioners and became president of the Board. 83 Mr Ford was an alderman of Randwick City Council for eighteen years and served as Mayor of Randwick. 84 He is a member of the Order of Australia and has received a number of awards and medals for distinguished service in the Fire Brigade and for services to the community. 85 He has been a director of the Club since 1964 and was a vice-president of the Club at the time the program was broadcast. 86 Mr Ford was asked what his reaction to the program had been, when he saw the program, and he replied:- "I was very upset when I saw it. It disturbed me greatly. I didn't think it was very fair at all". 87 He was asked what he thought the program was saying about him and he replied:- "I considered that the program was saying that I was crooked and I felt that my immediate friends could think that I was crooked and that upset me because all my life I have endeavoured to get the respect of everybody and I think I did have or have got the respect of everybody that I have come in contact with". 88 Mr Ford said that all the imputations were "lies". The Club had made donations to the Labor Party but the money given was not "tainted". 89 Channel 7 had "fallen further" by raising, and then withdrawing, the defence of qualified privilege. 90 He had not seen the apology broadcast on 14 August. 91 After the program had been broadcast, no one had spoken to him about the program, "but I don't think they would be game to have raised the matter with me". Mr Ford had dropped out of a painting course and out of playing bridge at the Club, because he felt that he was not being treated the same way as he had been previously. 92 He had no recollection of Mr Scott reporting back to the Club after going to Police Headquarters. 93 In cross-examination Mr Ford said that he had been told that an apology in the form required by the plaintiffs' solicitors had been broadcast, although he himself had not seen it. Mr Ford thought that by the time of the apology the damage had already been done.

Mr Bridge's Evidence 94 At the time the program was broadcast Mr Bridge was retired. His working life had begun in the 1930's as a street sweeper employed by the City Council. He had become a truck driver and had then been placed in charge of trucks operated by the City Council. 95 In 1937 he had married the fourth plaintiff Lena Bridge. He and his wife had carried on a delicatessen and then a small hotel and had then carried on an undertaking of buying and renovating houses. Of recent years Mr Bridge had helped his son, who is a race horse trainer. 96 Since 1982 Mr Bridge has been a Trustee of Randwick Race Course. He described his functions as a Trustee as "giv(ing) permission for everything that has to be done on the course". 97 Mr Bridge has been a member of the Australian Labor Party since 1937. He was an alderman on Randwick City Council and was Mayor of Randwick. He has been a member of the Club since 1963 and a director since about 1974. He was president of the Club from 1980 to 1988. 98 Mr Bridge was at the Board meeting on 5 June 1997. When he was told that the program had been broadcast, he felt "devastated". When he saw the program "it felt worse". 99 When Mr Bridge went to the racecourse in the early morning of 6 June, a number of young men at the racecourse had said words to the effect "it's a nice way to get your photo on TV". 100 Mr Bridge gave evidence that his wife had been very upset by the program. She had been unable to sleep and had had to take sleeping tablets. Mr Bridge said "she is still not right about it". 101 Mr and Mrs Bridge have acted as hosts at a table at luncheons held by the Australian Jockey Club. After the program was broadcast, they kept away from the lunches for a couple of weeks but after that they went back. "Everything is all right now". 102 Mr Bridge had "a funny feeling" about going to court. When asked about the defendant raising, and then withdrawing, the defence of qualified privilege, he said "I don't understand it that much but from what I have learnt about it, it is not good". 103 He did not watch the Seven Nightly News on 10 August or 14 August. The apology broadcast on 14 August was "a bit late, I think". 104 There was no cross-examination of Mr Bridge.

Mrs Bridge's Evidence 105 Mrs Bridge gave evidence, after her husband had given evidence. She confirmed some of the evidence her husband had given. 106 Mrs Bridge has acted for many years as a hostess at luncheons of the Australian Jockey Club, entertaining interstate and overseas guests. She had acted as a hostess, when her husband was an alderman or mayor. 107 Mrs Bridge has been a member of the Australian Labor Party for sixty-four years. She has been a member of the Club for many years. She has been a director of the Club since about 1980 and for the last twelve years she has been the junior vice-president. 108 When she found out the program had been broadcast, she was very upset. When she saw the program, she was "very angry". All the imputations conveyed by the program were false. 109 For a couple of weeks after the program was shown, she stayed out of sight and did not go to the races. When she resumed going to the races, "groups of people, when I walked up, they would stop talking". 110 Since the program was broadcast, she has slept very poorly. She felt stressed during the s 7A hearing and during the hearing before me. She did not understand the legal implications of the defences of qualified privilege. She watched the Seven Nightly News on 10 August and afterwards felt "just the same". She thought that the apology broadcast on 14 August, which she had not seen, was "a little too late". 111 Mrs Bridge was not cross-examined.

Mr Bell's Evidence 112 At the time the program was broadcast Mr Bell was retired. He had been an employee of the Australian Taxation Office for thirty-three years between 1963 and 1996, when he took a voluntary redundancy. He had for a time been secretary of a sub-branch of the Federated Clerks Union. 113 Mr Bell has been a member of the Club for thirty-six years and a director for the last eighteen years. After he stopped working the Club became his main interest in life. 114 Mr Bell became "most concerned", when he was told about the program by Mr Murray on the evening of 5 June 1997. 115 On the following morning he spoke to the manager of the Club, who told him that the police had said "we had not put a date against every item on each page and we had only done at the top, we should have completed that exercise every time". 116 Mr Bell was asked what his reaction had been, when he saw the program. He replied:- "I couldn't believe it. I mean it was unbelievable, you know.. we were told, you know, there was no problems and next minute we have got 13,000 things against us. As the treasurer, they basically said I was running a slush fund. I mean I'm the treasurer…". 117 Mr Bell thought that the program was saying "we were acting dishonestly". 118 After he had seen the program, Mr Bell spoke to friends and acquaintances about the program, saying "it's rubbish". 119 When asked how he felt about the defendant raising, and then withdrawing, a plea of qualified privilege, he said:- "I thought we had won… I couldn't believe we were going through all this, what I thought, nonsense, again". 120 Mr Bell watched the Seven Nightly News on 10 August. He was "curious" to know whether an apology would be broadcast. Whether an apology was broadcast "really didn't matter". The apology broadcast on 14 August was "too little, too late". The weather forecast had been shown, before the apology was broadcast, and Mr Bell had thought the news was over and had left the room where the television set was. He returned to the room but did not see all of the apology. 121 In cross-examination Mr Bell said that, insofar as he had seen the broadcast of the apology, the apology had followed the terms of the apology sought by the plaintiffs' solicitors.

Mr Riordan's Evidence 122 At the time the program was broadcast Mr Riordan was retired, although, as he explained, he was far from inactive. 123 As a young man Mr Riordan had joined the Federated Clerks Union and had been involved in fights for the control of the union between a Labor Party group and a Communist group. These factional fights had been "vicious" and Mr Riordan had been subjected to all sorts of attacks. 124 Mr Riordan stood as a Labor Party candidate in five Federal elections. He was a member of the Federal Parliament between 1972 and 1975, becoming a minister. 125 Between 1979 and 1982 he was vice-chairman of the Electricity Commission of New South Wales. Between 1982 and 1986 he was departmental head of the Department of Industrial Relations in New South Wales. Between 1986 and 1995 he was a senior deputy president of the Australian Industrial Relations Commission. 126 Mr Riordan's present activities include being the chairman of the board of Work Cover in New South Wales. He acts as a mediator and had conducted a number of enquiries. He is the president of an association of former members of the Federal Parliament. 127 Mr Riordan is a life member of the Club and has been a director since 1980. 128 Mr Riordan had been aware, before the program was broadcast, that there had been a police investigation regarding the Club. He was concerned about police entering the Club but "we opened our doors. We didn't take any issue". It was not true that the police had "gatecrashed" the Club. Police had attended at the Club's premises without notice and requested documents and they had been given boxes of documents, which they had taken away. 129 Mr Riordan was at the Board meeting on 5 June 1997. Mr Murray appeared to Mr Riordan to be "shaken", when he told the other directors about the telephone call from the manager of the Club. 130 Mr Riordan gave evidence:- "That is an enormous accusation. 13 thousand breaches. One would wonder, the mind boggles at how you can possibly have not noticed undetected breaches of 13 thousand, that was my first reaction. How could this possibly be? What were they? No one was very clear about what the alleged breaches were supposed to have been. There was a great deal of confusion about it. I must say I suspected that something was wrong by the police or the administration, my emphasis was this was set up by the police, there was something wrong… it was my immediate reaction but I also had a doubt. Maybe something was wrong in the Club but I couldn't think of what it could possibly be". 131 Mr Riordan told the other directors "this cannot be allowed to go unchallenged" and that it would be necessary to get back from the police the documents the police had taken. 132 Mr Riordan was asked what his reaction had been, when he saw the program and he said:- "I was absolutely horrified. I was hit hard and hurt more than I can ever remember. The question that we would, as a club, each of us, be involved in trafficking tainted money and paying that to the ALP, that we had some kind of a dirty underhanded fund, called a 'slush fund' out of which we were paying money over to the Labor Party, shocked me beyond my description". 133 When he had been a member of the Industrial Relations Commission, Mr Riordan had always left the room at any meeting of the directors of the Club, if there was to be any discussion about a donation to the Labor Party. 134 Mr Riordan gave further evidence:- "Nobody said a word to me about that, no one asked me for a comment or advice before that went to air. I am used to, when people attack me in the newspaper, as a rule, of being asked by the reporter or the chief of staff or an editor or sub-editor 'what about this accusation'. Nothing. Not a word. Simply emblazoned with my photograph on the front of the television screen, spread throughout areas where I am known…". 135 Mr Riordan was asked to compare the program with other attacks that had been made on him in his political or union career and he said "I think it is the worst attack ever made on me". 136 Mr Riordan spoke to his sister, who had seen the program. He told his sister that what was alleged in the program was not true but felt "sobered" when his sister said that whenever mud is thrown some of it sticks. 137 The program was discussed at a lunch meeting of former members of Parliament which Mr Riordan attended. Otherwise, no one raised the program with Mr Riordan between the time of the broadcast and the time he himself saw the program. He said:- "My worry is that all the people who I know and know well, relations and friends and others, who did not raise it with me, are the ones I suspect believed it". 138 Mr Riordan gave evidence about inaccuracies in the program. The Club was not "a poker machine palace"; poker machines were confined to one floor of the Club premises. The Club was not "the inner sanctum" of the Labor Party or the Labor Party's "backroom". The Club did not control the State Labor Party or the State Labor Government. Mr Riordan did not engage in right wing power broking or strategic planning. The camera shots of the interior of a club were shots of the South Sydney Junior Rugby League Club. 139 As regards the "documents" shown in the program, Mr Riordan said:- "They were shady and hard to read, appeared as though they were some sort of secretive document". 140 Mr Riordan formed the view that the Club and the individual directors should sue. "It had to be set right. It could not be allowed to go unchallenged". 141 The s 7A hearing "was a tense and difficult time for all of us, particularly me, because several of my colleagues were very, very apprehensive and kept badgering me about it: what was happening and how was it going and were we going to win…". 142 As regards the defence of qualified privilege, Mr Riordan said:- "For the last three years I have lived with the apprehension… that they knew something that I didn't know. Highly reputable firm of solicitors, acting for a very responsible company….". 143 Mr Riordan thought that the withdrawal of the plea of qualified privilege was "an extraordinary thing". 144 Mr Riordan had not watched the Seven Nightly News on 10 August. When he had arrived at the Club that evening, he was told that no apology had been broadcast. He thought it was "some tactic". 145 Mr Riordan saw the apology broadcast on 14 August. He thought it was "a very poor effort". He said that television can be a very powerful medium, but depending on how the material is presented. Two news readers, and not one, had read the apology, so that the apology appeared disjointed. The apology had been broadcast at the end of the news, after the weather. Mr Riordan had already walked away from the television set, when the apology began to be shown. 146 Mr Riordan gave evidence that all the imputations were false. 147 Since the program was broadcast Mr Riordan has received fewer telephone calls and requests to him for references had "reduced dramatically". People had raised the program with him, but only very infrequently as from some time ago. 148 There was no cross-examination of Mr Riordan.

Other Witnesses - present or former Politicians or Local Government Councillors or Judges 149 Evidence was given in the plaintiffs' case by a large number of present or former Labor Party politicians, present or former members of Local Government Councils and present or former judges. In the order in which they gave evidence, these witnesses were Mrs Grosovin, a member of State Parliament; Mr McMahon, a former member of the Federal Parliament; Justice Einfeld of the Federal Court; Justice O'Connor of the Federal Court; Mr Smith, a former mayor of South Sydney; Mr Macken, a former judge of the Industrial Commission; Mr Sullivan, the present mayor of Randwick; Mr Bowen, a former State and Federal member of Parliament and a former Deputy Prime Minister; Mr Egan, the New South Wales Treasurer; Mr Cleary, a former member of State Parliament; Mr McClelland, a former senator; Mr Carr, the Premier of New South Wales; Mr Bastic, who at the time the program was shown was the mayor of Randwick. 150 All of these witnesses gave evidence that the individual plaintiffs, or such of them as they knew, were persons of high reputation. None of them, with the possible, very qualified and temporary exception of Mr Sullivan, gave evidence that their estimate of the reputation of any plaintiff had been adversely affected by the program. 151 Mrs Grosovin said that comments about the program had been made in her presence a number of times in the first few weeks after the program was broadcast and subsequently from time to time. She said that Mr Murray, Mr Scott and Mr Riordan continue to have a high reputation in her estimation but "in politics a little bit of mud tends to stick" and she could not account for others in the community who might have some lingering doubts about the plaintiffs' reputations. 152 Mr McMahon had been asked by someone "what are your mates doing over in Randwick?" Mr McMahon had not known what the questioner was referring to. He had spoken to Mr Riordan, who had appeared upset, and Mr McMahon had refrained from saying anything more to Mr Riordan. 153 Justice Einfeld said that Mr Riordan had told him about the broadcast, soon after it had occurred. Mr Riordan had been very upset about the attack on his integrity and honesty. 154 Justice O'Connor, who had known Mr Riordan as a deputy president of the Industrial Relations Commission, described Mr Riordan as "a man of very high integrity". 155 Mr Smith said that for him the reputation of Mr and Mrs Bridge had not been diminished "but I can't speak for other persons in the community". A number of people had spoken to Mr Smith about the program, asking whether he had seen the program and what he thought of it. 156 Mr Macken had first got to know Mr Riordan when they were both in the Federated Clerks Union. To him Mr Riordan was a man of "unequalled reputation". He had heard discussion about some trouble involving the Club and a television program but he did not know the details. 157 Mr Sullivan gave evidence that he had seen the program broadcast. He could recall the program, without having to have a recording of the program played in the courtroom. When he had seen the program, he had been concerned by the allegations about breaches of the licensing laws and the "slush fund". The following questions and answers occurred in Mr Sullivan's evidence in chief:- "Q. At the time you saw the program… did you think there might be any truth in the allegations? A. At first, yes, there were doubts that did cross my mind. The number of alleged licensing breaches obviously raised questions as to what was going on. Q. Anything else? A. Well, there were suggestions also as to some sort of dodgy relations between the club and a major political party…". 158 Members of Mr Sullivan's family, fellow members of the Randwick City Council and members of the public asked Mr Sullivan what he knew about the allegations in the program and whether they were true. In the early days after the program was broadcast Mr Sullivan had not been able to give any response to these questions. Most of the discussion was "in the days and early weeks after, but it did continue for some months afterwards". 159 At a dinner a Liberal Party councillor asked Mr Sullivan whether there was any truth in the allegations and how it was that there had been 13,000 breaches of the law. 160 In cross-examination Mr Sullivan said that he had spoken to Mr Murray about the program, that Mr Murray had assured him that there was no substance in the allegations and that he had been satisfied by Mr Murray's assurance. In subsequent conversations with persons about the program Mr Sullivan had stressed that he was confident that there was nothing in the allegations. In his mind the reputations of the individual plaintiffs remained undiminished "but I can't speak for other people". 161 Mr Bowen, particularly in his capacity as a solicitor, had helped set up the Club. He has been a member of the Club since its inception and is the patron of the Club. 162 Mr Bowen and Mr Riordan had been present at a lunch held after the program had been broadcast. The program was discussed at the lunch. Mr Bowen said that "he (that is Mr Riordan) was very upset to think that everybody in that program had been maligned on the basis that they were dealing with slush funds and handling matters in an illegal way". 163 Mr Cleary gave evidence that he had heard comments about 13,000 breaches by the Club and a slush fund. 164 Mr McClelland gave evidence that he had been present at a lunch, which Mr Bowen had attended. He said that Mr Riordan had not been present. At the lunch there had been discussion about a television program about alleged discrepancies at the Club. 165 Mr Carr gave evidence about the "exemplary" or "spotless" reputation of the individual plaintiffs. He said that the Club, the interior of which was shown in the program, was the South Sydney Junior Rugby League Club, which he had visited on the Friday night before the 1995 State election. The Club had not been the scene of any victory party which Mr Carr had attended, after any State election. He said that of the plaintiffs only Mr Murray could, arguably, be described as "a number cruncher". 166 Mr Bastic described the Club in the following terms:- "It is one of the best clubs in the City of Randwick, it gives a tremendous amount of money to voluntary organisations, always assists people, a sort of working persons club and it would be probably the most popular club in the whole area". 167 Mr Bastic saw the program when it was broadcast and could remember it sufficiently to give evidence about it, without needing a recording of the program to be played. When he saw the program, he could not believe that anything as sinister as what was alleged could be broadcast. What particularly impacted on him were the photographs of the directors. The program had had no effect on his estimate of the reputations of the individual plaintiffs, because he knew them all as highly regarded persons and knew that what was being alleged would not have been true. 168 In the two to three weeks after the program Mr Bastic received numerous telephone calls from persons saying things like "what's the story with the Labor Club? They're in trouble". After two or three weeks "it sort of dropped off a bit". 169 Mr Bastic spoke to Mr Murray, who assured him that there was no basis in the allegations. Before he spoke to Mr Murray, Mr Bastic had told people that he did not know what the position was but that he was sure that everything was above board. After he spoke to Mr Murray, he told people that the broadcast was a total fabrication and that they should not believe what they had seen. People had reacted by saying "Oh yeah, Oh interesting, see what happens". 170 In cross-examination Mr Bastic said that he thought that the people he spoke to "still had some lingering doubt in their mind".

Other Witnesses 171 A number of witnesses who had not held any political, local government or judicial position also gave evidence in the plaintiffs' case. 172 Mr Ian Murray, a brother of Mr Ken Murray, gave evidence that on 6 June 1997 at the canteen at the Port Botany Terminal, where he also worked, some snide remarks were passed about Mr Ken Murray, such as "there's a bloke running a slush fund". Mr Ken Murray had been upset and had said that he would stop going to the canteen. 173 About twelve months ago Mr Ken Murray had said to his brother:- "You never know what happens, mate. You can go into court today and you can come out without a house or that sort of thing. You never know the way the jury goes". 174 Mr Presdee, an officer of the Finance Sector Union, who saw the program broadcast, did not have as positive a view of Mr Scott's reputation after he had seen the program and felt that he needed to see Mr Scott. After seeing the program he thought that "they all (the plaintiffs) had a question to at least answer". He spoke to Mr Scott, who told him that the allegations were not true and he was satisfied by what Mr Scott said. 175 At a meeting of a committee of the Finance Sector Union Mr Scott was interrogated about the program and whether the allegations made in the program were true. 176 Ms Brennan, who was employed by the Club as a bar attendant, saw the program and could remember it. After the program was shown on a television set at the Club, a couple of people asked her whether she believed what was alleged in the program. She would have thought less of the plaintiffs, if they have been involved in what the program said they had done. There was discussion about the program in the Club for "weeks, months, maybe more" after the program was broadcast. 177 In cross-examination Ms Brennan said no one had told her that the police had not brought any proceedings against the Club or any of its directors. She agreed that, having received that information, she realised that there was no factual basis for the program. 178 Mr Peter Riordan, a son of Mr Riordan and an officer of the Finance Sector Union, saw the program broadcast. He was shocked and distressed by the program. He spoke to his father and to Mr Scott and he received assurances, which he accepted, that what was alleged in the program was not true. 179 Ms Rudge was, at the time the program was broadcast, an employee of the Finance Sector Union. On 6 June 1997 there had been a discussion about the program in Mr Scott's office. This discussion lasted between a quarter of an hour and half an hour. Mr Scott was upset. All persons present at the discussion knew that he was a director of the Club. Mr Scott denied that there had been any wrongdoing. He convinced Ms Rudge and appeared to her to have convinced the others. 180 Mr Thompson, who was a colleague of Mr Bell at the Australian Taxation Office, said that at work on 6 June 1997 people joked about the program, saying "looks like Dinger (Bell) is going overseas again". Mr Thompson, who had not seen the program, was told that there had been a program on television the previous night about a slush fund. It was known by Mr Thompson that Mr Bell was the treasurer of the Club. 181 In a conversation Mr Thompson had with Mr Bell, Mr Bell had complained "nobody had come to them and got their side of the story". 182 Mr Downey, a member of the Club, saw the program when it was broadcast. He was "stunned" and could not believe what was alleged. From time to time he saw someone who knew that he was a member of the Club and who spoke to him about the program. He said that "people were all surprised and mostly unbelieving or disbelieving". 183 Mr Downey had discussed the program with Mr and Mrs Bridge. Mr and Mrs Bridge were disgusted by the program. Mr Downey said:- "I think they were distressed by it. I don't think that it altered their type of life or anything but they were very unhappy about it". 184 Mr Downey's wife, Mrs Downey, saw the program when it was broadcast. She gave evidence:- "And the thing that I really remember, that I thought was terrible, when the photographs came, they came out at you from the television screen, they seemed to come at you and it was very clear who the people were… it just looked as though they were doing something terrible, as though they were like, like criminals, that type of thing". 185 Mrs Downey said that not a lot of people had discussed the program with her. She had had a conversation with Mrs Bridge. She had told Mrs Bridge that she thought the program was "terrible". Mrs Bridge had replied "how do you think I feel. People think you've really done those things". Mrs Bridge had mentioned the program on other occasions. Mrs Bridge was "very nervy" and very concerned about her reputation. 186 Mrs Downey had accepted assurances by Mrs Bridge and Mr Murray that the allegations in the program were not true.

The Evidence of the Plaintiffs and the other witnesses for the Plaintiffs generally 187 There was very little cross-examination of the plaintiffs or the other witnesses for the plaintiffs and I generally accept the evidence of the plaintiffs and the other witnesses for the plaintiffs.

Some Principles of Assessment of Damages 188 The plaintiffs claimed damages for the broadcasting of the program in New South Wales, Queensland (the Gold Coast) and the Australian Capital Territory. It was not disputed by counsel for the defendant that the plaintiffs were entitled in these proceedings, brought in the Supreme Court of New South Wales, to claim damages for the broadcasting of the program in Queensland and the Australian Capital Territory, as well as for the broadcasting of the program in New South Wales 189 The assessment of damages for the publication of defamatory matter in New South Wales is governed mainly by the common law but also by certain sections of the Defamation Act 1974 (New South Wales). 190 In John Pfeiffer Pty Ltd v Rogerson 172 ALR 625 the High Court decided that the lex loci delicti is the governing law for all matters of substance with respect to torts committed in Australia which have an interstate element and that all questions about the kinds of damage or the amounts of damages that may be recovered in actions in tort are substantive and not procedural matters and are accordingly governed by the lex loci delicti. It was submitted by counsel for the plaintiffs and not disputed by counsel for the defendant, and I hold, that, in accordance with the decision of the High Court in Pfeiffer, the sections of the New South Wales Defamation Act which pertain to the assessment of damages apply to the assessment of damages for the publication of defamatory matter in New South Wales but do not apply to the assessment of damages for the publication of defamatory matter in a State or Territory outside New South Wales. 191 The leading High Court authority on the assessment of damages for defamation is Carson v John Fairfax & Sons Limited (1992-1993) 178 CLR 44. All seven judges of the Court sat in Carson. The leading judgment is the joint judgment of the majority consisting of Mason CJ, Deane, Dawson and Gaudron JJ. 192 In Carson there was no claim for damages for any economic loss (Carson at p60). Similarly, in the present case none of the individual plaintiffs claimed that he or she had suffered any economic loss or might suffer any economic loss as a result of the publication of the program. There was no evidence that the Club had suffered any economic loss as a result of the publication of the program. 193 At pp 60-61 the majority in Carson said in their joint judgment:- "Specific economic loss and exemplary or punitive damages aside, there are three purposes to be served by damages awarded for defamation. The three purposes no doubt overlap considerably in reality and ensure that 'the amount of a verdict is the product of a mixture of inextricable considerations'... The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant's personal and (if relevant) business reputation and vindication of the appellant's reputation…. The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant… Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant's reputation. 'The gravity of the libel, the social standing of the parties and the availability of alternative remedies' are all relevant to assessing the quantum of damages necessary to vindicate the appellant…". 194 Brennan J was one of the dissenting judges in Carson but a passage in his Honour's judgment at p 71 is in accordance with well established authority. His Honour said:- The consequences of publication include not only the insult publicly inflicted on the plaintiff but also the effect of the defamation on those to whom it is published…, any diminution in the regard in which the plaintiff is held by others, any isolation produced (causing the plaintiff to be 'shunned or avoided' is the traditional formula) and any conduct adverse to the plaintiff engaged in by others because of the publication of the defamatory matter. Damages are awarded also for the plaintiff's injured feelings…, including the hurt, anxiety, loss of self-esteem, the sense of indignity and the sense of outrage felt by the plaintiff. Indeed, all those objective consequences and those subjective reactions which flow naturally from the publication of the defamatory matter are relevant factors. Of course, the subjective reactions are often produced by the objective consequences of the publication. The two categories are not cumulative heads of damage but descriptions of kinds of intangible factors which must be taken into account in assessing damages". 195 If the publication of defamatory matter is proved, some general damage to the plaintiff's reputation is presumed. Readers Digest Services Pty Limited v Lamb (1981-2) 150 CLR 500 at 507 per Brennan J. 196 A solatium for the injured feelings of the plaintiff may form a large element in the total damages award. Broome V Cassell & Co Limited (1972) AC 1027 at 1125 per Lord Diplock. 197 The assessment of damages in defamation is "at large". I was referred by counsel for the plaintiffs to what Lord Atkin said in Ley v Hamilton (1935) 153 L.T.384 at 386, which was quoted in Kornhauser v John Fairfax & Sons Pty Limited (1964-5) NSWR 199 by Sugerman J at 219. Lord Atkin said:- "It is precisely because the 'real' damage cannot be ascertained and established that the damages are at large. It is impossible to track the scandal, to know what quarter the poison may reach: it is impossible to weigh at all closely the compensation which will recompense a man or a woman for the insult offered or the pain of a false accusation". 198 In Broome v Cassell & Co Limited Lord Hailsham said at 1072:- "The whole process of assessing damages.. when they are 'at large' is essentially a matter of impression and not addition". 199 An award of damages for defamation may include aggravated compensatory damages. Compensatory damages and aggravated compensatory damages were distinguished by Hunt J (as his Honour then was) in Bickel v John Fairfax & Sons Limited (1981) 2 NSWLR 474 at 496 as follows: "Compensatory damages are given to compensate the plaintiff for the harm done to him by the publication of the matter complained of; aggravated compensatory damages (which are also known as merely "aggravated damages") are given to compensate him when that harm has been aggravated by the defendant's conduct in publishing that matter or by his subsequent conduct". 200 A tribunal in assessing damages for defamation is entitled to look at the whole conduct of the defendant from the time the defamatory matter was published down to the time of giving its verdict. The conduct of the defendant may lead to aggravated compensatory damages being awarded, if there was a lack of bona fides in the defendant's conduct or if the defendant's conduct was improper or unjustifiable. See Triggell v Pheeney (1951) 82 CLR 497 at 513-514. 201 In Uren v John Fairfax & Sons Pty Limited (1965-1966) 117 CLR 118 Windeyer J said at 151-2:- "It seems to me that in truth a punitive or vindictive element does lurk in many cases in which the damages were aggravated by the defendant's conduct". 202 In Carson the majority in their joint judgment said at 66 that in New South Wales, by reason of s 46 of the Defamation Act, it is necessary to confine an award of aggravated damages to what is truly compensatory. Section 46 of the New South Wales Defamation Act is in the following terms:- "46(1) In this Part relevant harm means, in relation to damages for defamation: (a) harm suffered by the person defamed, or (b) where the person defamed dies before damages are assessed, harm suffered by the person defamed by way of injury to property or financial loss. (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 so far as that malice or other state of mind affects the relevant harm". 203 The general subject of aggravated compensatory damages in New South Wales, including the effect of s 46 of the Defamation Act, was dealt with by Hunt J in Waterhouse v Station 2GB (1985) 1 NSWLR 58 at 74-75 as follows:- "Aggravated damages are more properly called aggravated compensatory damages. They are awarded where either the circumstances of the publication of the matter complained of or the defendant's conduct then or subsequently make the injury to the plaintiff worse - when the ordinary compensatory damages awarded for the publication itself may be increased. They are not awarded as a separate amount. Aggravated compensatory damages are usually awarded only in relation to the injury to the plaintiff's feelings:… They are not, however, necessarily so limited, and there may be conduct which has the effect of increasing the injury to the plaintiff's reputation as well. What were sometimes called aggravated damages in the older cases have been discovered upon later analysis to be in reality punitive damages: see Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118 at 151-152. Since the abolition of punitive damages ( Defamation Act 1974, s 46(3)(a), such damages may no longer be awarded. Damages for defamation are now limited to compensation for the harm actually suffered by the plaintiff. Section 46(2) is intended to ensure that only truly compensatory damages are awarded. To underline that limitation, s 46(3) not only provides for the abolition of punitive damages but it also restricts an award which includes aggravated damages based upon the malice or other state of mind on the part of the defendant to the situation where the plaintiff is aware of that state of mind:… Conduct on the part of the defendant which is relevant to the issue of aggravated damages need not be malicious, but it must be capable of amounting to conduct which was in some way unjustifiable, improper or lacking in bona fides…". 204 As indicated earlier in this judgment, s 46 applies in the present case to the assessment of damages for the broadcasting of the program in New South Wales but does not apply to the assessment of damages for the broadcasting of the program in Queensland and the Australian Capital Territory. 205 An important issue in Carson was whether an appellate court, in determining whether an award of damages by a jury in a defamation case should be set aside, could have regard to the pattern of awards of damages in personal injury cases. The majority of the High Court held that it was legitimate, in considering whether an award of damages for defamation was so large that no reasonable jury could have arrived at such a figure if they had applied proper principles, to consider the kinds of figures which had been held to be proper in cases of disabling physical injury. Since Carson was decided, s 46A has been inserted in the New South Wales Defamation Act. Section 46A is in the following terms:- "46A Factors relevant in damages assessment (1) In determining the amount of damages to be awarded in any proceedings for defamation, the court is to ensure that there is an appropriate and rational relationship between the relevant harm and the amount of damages awarded. (2) In determining the amount of damages for non-economic loss to be awarded in any proceedings for defamation, the court is to take into consideration the general range of damages for non-economic loss in personal injury awards in the State (including awards made under, or in accordance with, any statute regulating the award of any such damages)". 206 In Costello v Random House Pty Limited (1998-1999) 137 ACTR 1 (affirmed on appeal: Random House Pty Limited v Abbott (1999) 167 ALR 224), Higgins J of the Supreme Court of the Australian Capital Territory expressed the view that, while s 46A of the New South Wales Defamation Act did not apply to an assessment of damages to be made in accordance with the laws of the Australian Capital Territory, nevertheless the provisions of s 46A did not go beyond the approach to the assessment of damages for defamation suggested as appropriate by the majority of the High Court in Carson and I propose to follow what his Honour said, so far as the assessment of damages for the broadcasting of the program in the Australian Capital Territory is concerned. 207 As regards the assessment of damages for non-economic loss or general damages in personal injury cases, where there is no applicable statute limiting the amount which may be awarded, counsel for the plaintiffs suggested that a maximum award could be as high as $450,000, whereas counsel for the defendant suggested that a maximum award would be in the vicinity of $350,000. I will proceed on the basis that a maximum award would fall somewhere within the range defined by the figures suggested by counsel. 208 Under s 79A of the Motor Accidents Act the maximum amount of damages which may be awarded as damages for non economic loss where the motor accident occurred after 26 September 1995 is now $273,000 (in "a most extreme case"). Under s 151G(3) of the Workers Compensation Act the maximum amount of damages which may be awarded as damages for non-economic loss, if a plaintiff had been injured on 5 June 1997 and had sued his employer, would be $221,650 (in "a most extreme case"). 209 It was submitted by counsel for the plaintiffs that the amount of damages which should be awarded to a plaintiff to serve the purpose of vindication is not subject to s 46A of the Defamation Act. 210 I accept that, as the majority of the High Court said in Carson, the amount of damages awarded to a plaintiff must be at least the minimum necessary to signal to the public the vindication of the plaintiff's reputation. In Broome v Cassell & Co Lord Hailsham said at 1071 that the amount of damages awarded to a plaintiff must be sufficient "to convince a bystander of the baselessness of the charge". This requirement continues to apply, after the insertion in the Defamation Act of s 46A. However, I reject the submission by counsel for the plaintiffs, insofar as it implies that an award of damages should include as a separate head of damages an amount to serve the purpose of vindication, which would not be subject to s 46A. While vindication is a purpose to be served by the overall award of damages, there is no separate head of damages being damages for vindication. Vindication is a purpose which overlaps with, and is inextricably connected with, the other purposes to be served by an award of damages. An amount of damages which is sufficient to compensate a plaintiff for loss of reputation and injury to feelings may be sufficient to amount to a proper vindication of the plaintiff, without the need for any further damages. 211 It was pointed out by counsel for the plaintiffs that under s 9 of the New South Wales Defamation Act a person defamed has a separate cause of action against the publisher of the defamatory matter for each defamatory imputation published. Accordingly, in the present case the Club has two causes of action and each of the individual plaintiffs has three causes of action against the defendant and I have the task of determining what damages should be awarded to each plaintiff on all of its, his or her causes of action. 212 Section 46 of the Defamation Act makes clear that in New South Wales damages for defamation are to be limited to damages for "relevant harm" suffered by the person defamed and are not to include exemplary damages. 213 In Jones v TCN Channel Nine Pty Limited (1992) 26 NSWLR 732 Hunt CJ at CL held that s 46 of the New South Wales Defamation Act prevented a claim for exemplary damages being made for a publication of defamatory matter outside New South Wales, where the plaintiff had sued in a New South Wales court. However, it was submitted by counsel for the plaintiffs, and not disputed by counsel for the defendant, that, even if it were not so previously, as a result of the decision of the High Court in Pfeiffer the plaintiffs could claim exemplary damages in these proceedings for the broadcasting of the program outside New South Wales, that is in Queensland and the Australian Capital Territory. In my opinion, this submission is supported by the principles stated by the High Court in Pfeiffer. The authors of Australian Defamation Law and Practice express the opinion at (par 22180):- "It would seem to follow, however, (from Pfeiffer ) that exemplary damages may now be obtained in proceedings in New South Wales for a publication in a jurisdiction that allows such a claim". 214 In Uren v John Fairfax & Sons Pty Limited the expression "conscious wrongdoing in contumelious disregard of another's rights" was used to describe the kind of conduct in which a defendant must engage before exemplary damages can properly be awarded. 215 The purposes of an award of exemplary damages are to punish and deter. The considerations that enter into an award of exemplary damages are quite different from the considerations that enter into an award of compensatory damages and there is no necessary relationship between an amount awarded for compensatory damages and an amount awarded for exemplary damages. XL Petroleum (NSW) Pty Limited v Caltex Oil (Australia) Pty Limited (1985) 155 CLR 448 at 471 per Brennan J; Lamb v Cotogno (1987) 164 CLR 1 at 9. 216 In order for a plaintiff to obtain an award of exemplary damages, it is not necessary for the plaintiff to establish actual malice on the part of the defendant. In Lamb v Cotogno the High Court said at p13:- "… the absence of actual malice did not disentitle the plaintiff to exemplary damages. Whilst there can be no malice without intent, the intent or recklessness necessary to justify an award of exemplary damages may be found in contumelious behaviour which falls short of being malicious or is not aptly described by the use of that word…".

217 In The Herald & Weekly Times v McGregor (1928) 41 CLR 254 it was held that a defendant in defamation proceedings could be liable for exemplary damages by reason of the filing of a plea of justification, provided it was done recklessly, without any regard as to the truth or falsity of the plea, and I consider that this decision throws light generally on the sense in which "recklessness" is to be understood in the context of exemplary damages. 218 In Costello v Random House Higgins J, in rejecting a claim for exemplary damages, held that the literary editor of the defendant, who had read the defamatory manuscript before it was published, had been negligent but "she did not deliberately advert to the defamatory nature of the matter complained of and decide to publish notwithstanding" (par 456 at p 50). 219 What I have said so far on the subject of damages applies to the assessment of the damages to be awarded to the individual plaintiffs. Much of what I have said applies also to the assessment of the damages to be awarded to the Club. However, the Club is a non-natural legal person and, as such, is taken not to have feelings which are capable of being injured. As Lord Reid said in Lewis v Daily Telegraph Limited (1964) AC 234 at 262: "A company cannot be injured in its feelings, it can only be injured in its pocket. Its reputation can be injured by a libel but that injury must sound in money. The injury need not necessarily be confined to loss of income. Its goodwill may be injured". 220 A company can obtain exemplary damages. Steiner Wilson & Webster Pty Limited v Amalgamated Television Services Pty Limited (2000) Aust Torts Reports 81-538. 221 On the subject of damages I was referred by counsel for the plaintiffs to the section on damages in Australian Defamation Law and Practice at pars (22,001-22,220) and I have taken into account what is there stated. 222 I was referred by counsel to a number of particular cases in which particular awards of damages for defamation had been made. However, most of these cases are of very limited value in determining what amounts of damages should be awarded in the present case. In many of the cases the award of damages had been made by a jury and the question for the appellate court was whether the amount awarded by the jury was such that no reasonable jury applying proper principles could have arrived at such a figure. A number of the cases preceded the decision of the High Court in Carson and the enactment of s 46A of the Defamation Act. In some of the cases a large award of damages included compensation for serious economic loss or the chance of serious economic loss in consequence of the publication of the defamatory matter. In some cases there was evidence of an actual serious and enduring loss of reputation or evidence of serious ill health occasioned by the publication of the defamatory matter. I was referred to a handful of cases in which, following the enactment of s 7A of the Defamation Act, single judges of this Court have assessed damages for defamation, including Goldsworthy v Radio 2UE Sydney Pty Limited (NSWSC Dunford J 9 June 1999); Vacik Distributors Pty Limited & Anor v Australian Broadcasting Corporation & Anor (2000) NSWSC 732 - Sperling J, 8 August 2000; Lam v Nationwide News Pty Limited (2000) NSWSC 792 - Studdert J, 11 August 2000. Such cases are of some assistance but the amount of damages which should properly be awarded in the present case cannot be arrived at by an attempted point by point comparison of the present case with some other case.

The Assessment of Damages in the Present Case 223 A preliminary question is whether I should attempt to differentiate between the various individual plaintiffs in the amounts of damages I award. 224 It is clear that I should differentiate between the individual plaintiffs on the one hand and the Club on the other, because the defamatory imputations conveyed about the individuals are not the same as the defamatory imputations conveyed about the Club and because the basis on which damages are to be awarded to the individual plaintiffs differs from the basis on which damages are to be awarded to the Club as a non-natural legal person. 225 The individual plaintiffs have the important things in common with each other that they were all directors of the Club at the time of the broadcast and the jury found that the same defamatory imputations relating to their conduct as directors of the Club were conveyed by the program about all of them. All of the individual plaintiffs have continued to be elected, unopposed, as directors of the Club. 226 On the other hand, there are differences between the individual plaintiffs with respect to their positions in life at the time of the broadcast, the ways in which they were dealt with in the program and what were the consequences to them of the broadcasting of the program. 227 Counsel for the plaintiffs, who of course appeared for all of the plaintiffs, did not submit that I should differentiate between the individual plaintiffs but at times in his address he indicated that it would be open to me to differentiate in favour of some of the individual plaintiffs by "topping up" their awards. He did not advocate any basis on which I might make this differentiation. 228 Counsel for the defendant suggested that it might be appropriate to differentiate between those plaintiffs whose individual named photographs were shown in the program and those plaintiffs who were not so singled out and identified. Counsel for the plaintiffs, while not supporting the making of this suggested distinction between the individual plaintiffs, did not oppose it. 229 It seems to me that it would be appropriate to distinguish between the individual plaintiffs, on the basis suggested by counsel for the defendant. There is, in my opinion, an important difference between those plaintiffs whose individual named photographs are shown in the program so as to occupy the whole of a viewer's television screen and the remainder of the plaintiffs who are merely shown in a group photograph and this difference should be reflected in different awards of damages. 230 I do not, however, propose to endeavour to distinguish between the individual plaintiffs on any other basis, particularly in the absence of any submission from counsel as to the basis on which I should make such a distinction. There are undoubtedly some differences between the individual plaintiffs, although some of the differences tend to offset each other. As I previously noted, the assessment of damages in defamation is "at large" and is not the result of a precise calculation. 231 A further preliminary question is whether I should simply award one global amount in favour of each plaintiff or whether I should attempt to break-up the damages awarded to each plaintiff into amounts awarded for various elements. 232 In Costello v Random House Higgins J showed the separate amounts he had decided to award each plaintiff for injury to reputation, injury to feelings and aggravated damages. 233 I do not consider that I should follow such a course. As the majority of the High Court said in Carson in the passage which I have quoted, the three purposes served by an award of damages in defamation overlap considerably in reality and the amount of any verdict is a product of a mixture of inextricable considerations. In Waterhouse v Station 2GB Hunt J said that aggravated compensatory damages are not awarded as a separate amount. 234 If I was to decide to award exemplary damages, then I would consider that I should show the amount of exemplary damages separately, because the considerations that enter into an award of exemplary damages are different from the considerations that enter into an award of compensatory damages. 235 It was submitted by counsel for the plaintiffs that I should show separately the amounts I had decided to award for the broadcasting of the program in New South Wales, the broadcasting of the program in Queensland and the broadcasting of the program in the Australian Capital Territory. 236 I do not consider that I should adopt this course. The overwhelming majority of the viewers of the program were in New South Wales and viewers in New South Wales were, in general, those likely to pay the greatest attention to the program. In Costello v Random House Higgins J did not show separately the amount of damages he was awarding for the interstate publication of the offending book. On the appeal to the Full Court of the Federal Court, Miles J noted in his judgment that on the appeal no point had been taken that Higgins J should have made separate awards for each of the causes of action that accrued by publication in each of the States and Territories. Miles J said that the practice of awarding one lump sum when defamatory matter has been published in more than one State or Territory "appears to be accepted by this Court" (par 127 at p 250). 237 There was no dispute at the hearing about a number of matter relevant to the assessment of damages. These matters included that at the time of the broadcast all the individual plaintiffs were directors of the Club, that at the time of the broadcast all the individual plaintiffs were persons of good, and indeed high, reputation, that all the individual plaintiffs have continued to be elected, unopposed, as directors of the Club, that no individual plaintiff has suffered any economic loss or incurred any risk of suffering economic loss as a result of the broadcasting of the program and that none of the plaintiffs, with the limited exception of Mrs Bridge who has been agitated and who has had difficulty in sleeping, have suffered any serious ill health as a result of the broadcasting of the program. As for the Club, it has continued carrying on business and there was no actual evidence that the Club has suffered any adverse effect as a result of the broadcasting of the program, although it was conceded that some damage could be presumed. 238 I will note some of the more salient features of the broadcasting of the program. 239 The program was shown on television as part of a news bulletin between 6 pm and 6.30 pm or between 6.30 pm and 7 pm, in prime viewing time. Television is a powerful, but at the same time a fleeting, medium. A number of the witnesses who had seen the program broadcast said that they could remember the program well enough to give evidence about it, without having to see a recording of the program played. 240 The program was watched by an estimated viewing audience of more than half a million in New South Wales and by a much smaller, but not inconsiderable, number of viewers in Queensland and the Australian Capital Territory. There would be a multiplier effect, in that some persons who did not actually view the program would get to know about it. 241 The program conveyed the serious defamatory imputations about each of the individual plaintiffs, that the plaintiff had been a director of the Club, while knowing it to be a slush fund club for the Labor Party; that the plaintiff's conduct as a director of the Club had been such as to warrant the plaintiff being reasonably suspected of being involved in the Club committing a large number of serious licensing offences; and that the plaintiff as a director of the Club had been involved in the donation of $125,000 of tainted money to the Labor Party. Each of these imputations about each director was untrue, to the knowledge of each director. 242 There had been no attempt by the defendant, before the program was broadcast, to communicate with any of the plaintiffs to check the accuracy of the allegations in the program. There would have been an opportunity for the defendant to do so. There was no apparent reason why the program, in order to be newsworthy, had to be shown on the night of 5 June 1997 and not on some later occasion. 243 The program consisted of words and pictures compiled from a variety of sources. The program conveyed the impression of being authoritative, containing inter alia camera shots of the exterior of the Club on which its name appeared, camera shots of the premier, camera shots of, and words spoken by, the shadow minister for gaming, camera shots of an official looking financial record, camera shots of a police service building and an allegation that senior police had "confirmed" that the Club was continuing to undergo audits and checks by the police. 244 In the program the number of alleged breaches of the licensing laws is stated, three times, to be the very large figure of 13,000. 245 A group photograph of the directors is shown in the program and then separate photographs of the plaintiffs Mr Riordan, Mr Ford, Mr Bridge and Mr Murray are shown, with their names shown at the foot of these photographs. While it is being shown, each of the photographs of the individual directors occupies the whole of the television screen. 246 A financial record is shown twice in the program. To viewers it would appear to be an official record. The way in which the record is shown, with shading of part of the picture, dim lighting of the rest of the picture and highlighting of the entries relating to the Club, would suggest that something sinister and significant and hitherto hidden had been discovered by the defendant. 247 The program shows as being part of the interior of the Club part of the interior of another club and the program wrongly asserts that the Club is the venue for Labor Party election victory celebrations. As stated later in this judgment, I do not consider that these errors are significant. 248 Features of the program having some tendency to mitigate the damage which would be done to the plaintiffs by the broadcasting of the program include that Adam Walters says that the alleged breaches "relate mainly to irregularities in record keeping and book work" and that the allegation that the Club is a "slush fund club" for the Labor Party is made by someone (Mr Bull), who is identified as the shadow minister for gaming and who many viewers would have realised was a political opponent of the Labor Party, whose utterances should, for that reason, be, to some extent, discounted. The first set of assertions made by Mr Bull in the program are rather incoherent and end rather lamely. However, the second set of assertions made by Mr Bull are spoken by him with much more apparent authoritativeness. 249 There is little evidence of a loss of reputation of any of the plaintiffs in the circles in which they move. For example, Mr Downey gave evidence that people who spoke to him about the program were "all surprised and mostly unbelieving or disbelieving". Some witnesses, such as Mr Sullivan and Mr Bastick, may have had initial doubts but these doubts were soon resolved. Persons to whom the plaintiffs gave denials of the allegations made in the program accepted these denials. Any changes in the lifestyle of the plaintiffs as a result of the broadcasting of the program were fairly brief. For example, Mr and Mrs Bridge resumed acting as hosts at AJC lunches, within a short time after the program was broadcast. 250 I was, however, reminded by counsel for the plaintiffs of Lord Atkin's words in Ley v Hamilton. A number of witnesses said that, while in their estimation the reputation of the plaintiffs had not been diminished by the broadcast, they could not speak for people who moved in different circles from the witnesses. The witnesses at the hearing were mainly members of the Labor Party, who knew the plaintiffs well and who would be unlikely to give credence to the allegations against the plaintiffs. It is much more likely that the plaintiffs would have suffered a loss of reputation among their political opponents or persons who were politically disinterested or persons who did not hear any rebuttal of the allegations made in the program. Mr Sullivan gave evidence of the program having been brought up in conversation by a political opponent. It is likely that some persons who gave the allegations some credence might have been diffident, as Mr Riordan feared, about speaking to the plaintiffs about the allegations. 251 I have already stated that I accept the evidence of the plaintiffs and the plaintiffs' witnesses about the plaintiffs' injured feelings and I keep in mind the need for each award of damages to serve the purpose of vindication. 252 The plaintiffs are entitled to claim aggravated compensatory damages ("aggravated damages") in all jurisdictions, that is New South Wales, Queensland and the Australian Capital Territory. In New South Wales, by reason of s 46 of the Defamation Act, aggravated damages must be confined to what is truly compensatory. 253 Particulars of the individual plaintiffs' claims to aggravated damages were supplied. Without any protest by counsel for the defendant, certain further matters which had not been particularised were in fact relied on in support of the claims for aggravated damages. 254 It was conceded by counsel for the defendant that the individual plaintiffs were entitled to some aggravated damages, at least on the bases that the defamatory imputations conveyed by the program were, to the knowledge of all the plaintiffs, untrue and that no attempt had been made by the defendant to communicate with any of the plaintiffs, before the program was broadcast, in order to check the accuracy of the allegations in the program, although clearly the defendant would have had an opportunity to check with the plaintiffs. 255 Apart from these matters, which were conceded by the defendant, it was alleged on behalf of the plaintiffs that a number of other matters had been proved to exist, which would have the effect of increasing the amount of aggravated damages. 256 It was submitted that I should infer that the failure on the part of the defendant to communicate with any of the plaintiffs before the program was broadcast, was deliberate or reckless. I am not, however, persuaded that I should draw this inference. In my opinion, the failure to communicate can readily be attributed, and should be attributed, to negligence, rather than deliberate or reckless conduct. 257 It was submitted that the untrue assertions in the program that the interior of the club which was shown was the interior of the Club and that the Club was a place where Mr Carr or the Labor Party celebrated election victories warranted the awarding of aggravated compensatory damages. However, these untrue assertions do not appear to me to be related to the defamatory imputations for the publication of which I am awarding damages and, in any event, I am not satisfied that the making of either of these assertions aggravated the injury to any plaintiff's feelings or the injury to any plaintiff's reputation. 258 Mr Scott gave evidence that he felt that the defendant by making an application through its solicitors under the Freedom of Information Act was attempting "to dig up some dirt on us". However, none of the other plaintiffs gave evidence such as would support a finding that this matter gave rise to a claim for aggravated damages. I do not consider that the step taken by the defendant was unjustifiable, improper or lacking in bona fides and hence I would not award aggravated damages on this basis. 259 It was submitted that the plaintiffs had been put to trouble in obtaining figures for viewing audiences for the program and especially figures for the estimated audience to which Prime Television had broadcast the program. However, the solicitors for the defendant had by successive letters of 28, 29 and 30 March 2000 promptly supplied substantial information about the broadcasting of the program, after information had been requested by the plaintiffs' solicitors. It has not been established that the defendant was already in possession of the information which Prime Television supplied, after it had been served with a subpoena. 260 I consider that the raising of the defence of qualified privilege, the statement by the defendant's solicitors in their letter of 23 June 2000 that the defendant had no intention of withdrawing its defence of qualified privilege and was preparing for the trial on that basis and the failure by the defendant to notify the plaintiffs before 9 August that the defence of qualified privilege would not be relied on, do support a claim for aggravated compensatory damages. In reaching this conclusion I have taken into account inter alia the evidence of a number of the plaintiffs that they had little real understanding of the nature of a defence of qualified privilege. 261 As regards the subject of an apology, I was referred to what the judges in the majority said in Carson at p 66:- "..we have difficulty in understanding how the mere absence of an apology can aggravate damages. Whereas publication of an apology may mitigate damage, thereby reducing the harm suffered by a plaintiff in a defamation case, and so reduce the damages awarded, the failure to publish an apology does not increase the plaintiff's hurt or widen the area of publication". 262 Notwithstanding the decision in Carson, it was held by the Court of Appeal in Clark v Ainsworth (1996) 40 NSWLR 463 that a mere refusal or failure to apologise is relevant to general compensatory damages and is capable of being included as a component of such damages. The Court of Appeal would also appear to have held that a refusal or failure to apologise can be relevant to aggravated compensatory damages, if the condition for the award of such damages laid down in Triggell v Pheeney is satisfied. In Costello v Random House Higgins J took into account the failure of the defendant to apologise in both his award of ordinary compensatory damages and his award of aggravated compensatory damages. On appeal, his Honour was held not to have erred. See especially per Drummond J at pars 219-221 at pp266-267. 263 In my opinion, whether the additional damages should properly be described as ordinary compensatory damages or aggravated compensatory damages, the damages to be awarded should be increased to some extent by reason of the defendant's conduct in regard to an apology. I have found that the letter of 19 June 1997 asking for an apology was posted by the plaintiffs' solicitors and received by the defendant. No apology was then broadcast by the defendant. No apology was broadcast within a short time after the conclusion of the section 7A hearing. It was not until 3 August 2000 that the defendant first indicated a willingness to give an apology, by submitting through its solicitors a proposed form of apology. I take into account the correspondence which was exchanged and the events which occurred in August 2000, which I have summarised in pars 25-30 of this judgment. 264 The defendant relied on the apology which was ultimately broadcast and repeated by counsel in open court, as operating in mitigation of damages. The apology when broadcast (in the terms required by the plaintiffs' solicitors) was, as counsel for the defendant submitted, unconditional, fulsome and it recognised the excellence of the reputations of the individual plaintiffs. However, the apology was very late, more than three years after the original broadcast. According to the oral evidence, the apology as it was broadcast consisted of words spoken by two announcers, without camera shots. The apology was broadcast late in a news bulletin, after the weather forecast had already been broadcast. 265 It was not suggested by counsel for the plaintiffs that anything done in the conduct of the case in the courtroom would have justified an award of aggravated damages. At the hearing there had been no challenge to the reputation of any of the plaintiffs and no cross-examination of any plaintiff or any other witness of such a kind as could give rise to a claim for aggravated damages.

Exemplary Damages 266 As I indicated earlier in this judgment, exemplary damages would be available, only for the broadcasting of the program in the Australian Capital Territory and Queensland. 267 The same particulars were relied on in support of the claim for exemplary damages, as were relied on in support of the claim for aggravated damages. 268 Counsel for the plaintiffs submitted that I should infer that the defendant had consciously, that is intentionally or recklessly, acted in contumelious disregard of the plaintiffs' rights. 269 It was submitted by counsel for the defendant, and I accept, that the allegation by the plaintiffs that the defendant had consciously acted in contumelious disregard of the plaintiffs' rights is a grave allegation, bringing into operation s 140(2) of the Evidence Act. Counsel for the defendant submitted that while the defendant's conduct could be found to have been careless, insensitive and even stupid, I should not infer that the defendant had consciously acted in contumelious disregard of the plaintiffs' rights, even accepting that it would be sufficient that the defendant had acted recklessly and not maliciously. 270 I am not satisfied that the plaintiffs have established that the defendant consciously (that is, intentionally or recklessly) acted in contumelious disregard of the plaintiffs' rights. An inference which can readily be drawn, and which I consider that I should draw, is that the defendant merely acted negligently. 271 I have decided that I should not award any exemplary damages. 272 It is unnecessary for me to consider the further argument put by counsel for the defendant, which was based on what was said in Broome v Cassell by Lord Halsham at 1082 and Lord Reid at 1089, to the effect that, even if a case is an appropriate case for exemplary damages, a further sum should not be awarded, unless the tribunal considers that the amount it has fixed for compensatory damages is not sufficient to serve the purposes of punishment and deterrence.

Decision 273 Taking into account the evidence, the principles governing the assessment of damages, the submissions put by counsel, the findings I have made and the distinction I have decided I should make between the plaintiffs Mr Murray, Mr Ford, Mr Riordan and Mr Bridge on the one hand and the plaintiffs Mr Scott, Mrs Bridge and Mr Bell on the other hand, and recognising that the assessment of damages in defamation is "at large", I have decided that I should award the following global amounts:- 274 Randwick Labor Club $25,000.00 Mr Murray $90,000.00 Mr Scott $70,000.00 Mr Ford $90,00000 Mrs Bridge $70,000.00 Mr Bell $70,000.00 Mr Riordan $90,000.00 Mr Bridge $90,000.00 275 I will not as yet enter any verdicts, because interest may have to be added to arrive at the amounts of the verdicts. There is also the question of the costs of the proceedings. **********

Last Modified: 09/27/2000 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.