Random House Australia Pty Ltd v Abbott [1999] FCA 1538

Dated: 10 November 1999

FEDERAL COURT OF AUSTRALIA  

Random House Australia Pty Ltd v Abbott [1999] FCA 1538

DEFAMATION – meaning of publication – natural and ordinary – false innuendo – whether particulars of meaning required to be pleaded as imputations or false innuendos – whether publication conveyed imputations as pleaded – whether imputation of lacking personal integrity defamatory – whether imputation of shallow political commitment defamatory – whether imputation of being of weak and unreliable character defamatory – whether trial judge erred in reading “sexually promiscuous” as meaning “guilty of unchastity” – whether publication bore an imputation of unchastity – whether imputation of sexual promiscuity defamatory – whether imputation of unchastity defamatory – whether imputation of low moral standards defamatory – whether imputation of being a political manipulator was defamatory.

DEFAMATION – procedural fairness – whether the appellant was denied natural justice when trial judge found an imputation not pleaded was conveyed by the publication.

DEFAMATION – damages – whether award of damages excessive – whether failure to apologise justified an award of ordinary compensatory damages – whether failure to apologise gives rise to aggravated damages – whether respondent received double compensation for failure to apologise in award for ordinary compensatory damages and aggravated compensatory damages.

John Fairfax v Punch [1980] FCA 100; (1980) 31 ALR 624 referred to

Alexander v Jenkins [1892] 1 QB 797 cited

Chakravarti v Advertiser Newspapers (1998) 193 CLR 519 considered

Reader’s Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500 considered

Lewis v Daily Telegraph Ltd (1964) AC 234 cited

Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118 cited

Fletcher v Autocar and Transporters Limited [1968] 2 QB 322 cited

Rookes v Barnard [1964] UKHL 1; [1964] AC 1129 referred to

Broome v Cassell & Co Ltd [1972] UKHL 3; [1972] AC 1027 considered

Crampton v Nugawela [1996] NSWSC 651; (1996) 41 NSWLR 176 cited

Coyne v Citizen Finance Limited [1991] HCA 10; (1991) 172 CLR 211 referred to

Humphries v TWT Ltd [1993] FCA 577; (1994) 120 ALR 693 considered

Australian Broadcasting Commission v Comalco Ltd (1986) 68 ALR 259 cited

David Syme & Co Ltd v Grey [1992] FCA 479; (1992) 115 ALR 247 cited

Hadzel v De Waldorf (1970) 16 FLR 174 cited

Cairns & Morosi v John Fairfax & Sons Ltd [1983] 2 NSWLR 708 considered

Maisel v Financial Times Ltd (No 1) (1915) 84 LJKB 2145 cited

Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1 cited

Polly Peck (Holdings) Plc v Trelford [1986] QB 1000 cited

Clark v Ainsworth (1996) 40 NSWLR 463 considered

Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 cited

Cooke and The Australian Liquor, Hospitality and Miscellaneous Workers’ Union v Wood, unreported, Ormiston, Charles and Batt JJA, 11 December 1997, considered

Fleming, The Law of Torts, 9^th ed. 1998

Gatley on Libel and Slander, 8^th ed. 1981

McDonald, Irish Law of Defamation, 2^nd ed. 1989

Defamation and Related Action in Scots Law, 1^st ed. 1995

The Macquarie Dictionary, 2^nd and 3^rd eds.

The Oxford English Dictionary, 2^nd ed.

RANDOM HOUSE AUSTRALIA PTY LIMITED V THE HON ANTHONY JOHN ABBOTT AND MARGARET VERONICA ABBOTT

A 23 OF 1999

RANDOM HOUSE AUSTRALIA PTY LIMITED V THE HON PETER HOWARD COSTELLO AND TANYA PAMELA COSTELLO

A 24 of 1999

JUDGES: BEAUMONT, MILES & DRUMMOND JJ.

DATE: 10 November 1999

PLACE: SYDNEY (HEARD IN CANBERRA)

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

THE COURT ORDERS THAT: Appeals dismissed, with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

REASONS FOR JUDGMENT

BEAUMONT J:

INTRODUCTION

1 These are appeals from a judgment and orders of a Judge of the Supreme Court of the Australian Capital Territory (Higgins J) awarding damages in defamation actions brought by the present respondents, Mr and Mrs Abbott, and by Mr and Mrs Costello against the appellant, Random House Australia Pty Limited (“Random House”). Both actions, and the appeals, were heard together. His Honour’s reasons for judgment are now reported (see [1999] ACTSC 13; (1999) 137 ACTR 1). In order to understand the issues on the appeals, it will be necessary to refer, in some detail, to the claims made by Mr and Mrs Abbott and Mr and Mrs Costello in the pleadings at first instance, and to the trial Judge’s findings and conclusions on their claims.

2 By their writ of summons dated 3 April 1997, Mr and Mrs Abbott claimed damages from Random House for the publication of defamatory material of and concerning them by Random House in a book entitled “Goodbye Jerusalem: Night Thoughts of a Labor Outsider” (“the book”) written by Mr Bob Ellis.

3 By their statement of claim, Mr and Mrs Abbott alleged the following:

* Mr Abbott is, and was at all material times, the Commonwealth Parliamentary Secretary to the Minister for Employment, Education, Training and Youth Affairs, and the Member for the Commonwealth electorate of Warringah.

* Random House was the publisher of the book.

* The book was, in or about March 1997, published widely throughout Australia.

* The “matter complained of” in the book (appearing at 472 – 473) was as follows:

“We all of us have our big brother figures, or our father figures, discuss. If Mr Lang is in the lobby will he please contact a Mr Paul Keating. And so on. So it goes. At the launch [of a book written by another author] also was Tony Abbott, the Liberal thinker (hah!) and he greeted me as a fellow monarchist (carefully lying, I nodded) and though of another party `a fellow partaker of the comradeship of the trenches’. I liked him of course, the way one does, and determined to destroy him, the way one does, and remembered with pleasure Rodney Cavalier’s gutsy account of history.

`Abbott and Costello’, said Rodney Cavalier, pacing up and down his baronial mansion after serving me for dinner as was his custom bread and water, `they’re both in the Right Wing of the Labor Party till the one woman fucked both of them and married one of them and inducted them into the Young Liberals’.

`Abbott and Costello?’ I said, laughing.

`That’s what I said’, said Rodney. `Why are you laughing?’

Rodney was a monarchist too, and an Anglophile, and a fan of Asquith and Harold Nicolson and Maynard Keynes.

`What are the arguments for monarchism?’ I asked him.

`There aren’t any’, he said. `You must never argue for something that is intellectually unsustainable.’

`Why believe in it then?’

`Because the alternative’, he said with ferocity, `is UNTHINKABLE.’

Diaries, September 1994.”

4 Mr and Mrs Abbott made several alternative claims of defamation as follows:

5 First, they said that the matter was defamatory of each of them in its natural and ordinary meaning.

6 Particulars of this claim by Mr Abbott (“imputation A”) were as follows:

“A. PARTICULARS OF NATURAL AND ORDINARY MEANINGS IN RESPECT TO [MR ABBOTT](i) [Mr Abbott] so lacked personal integrity that, in return for sexual favours, he was willing to change his political allegiance.

(ii) [Mr Abbott’s] political commitment was so shallow that for sexual favours he was willing to abandon his principles for sex.

(iii) [Mr Abbott] was to be suspected of being of weak and unreliable character who allowed his political decisions to be dictated by his wife.”

7 Particulars of this claim by Mrs Abbott (“imputation B”) were:

“B. PARTICULARS OF NATURAL AND ORDINARY MEANINGS IN RESPECT TO [MRS ABBOTT](i) [Mrs Abbott] was to be suspected of being sexually promiscuous.

(ii) [Mrs Abbott] by virtue of having married [Mr Abbott] was to be suspected of being a person of such low moral standards that she was even prepared to use sexual relations to get others to change their political allegiance.

(iii) [Mrs Abbott] by virtue of having married [Mr Abbott] was to be suspected of being a political manipulator who used sex in order to recruit Labor Party members into the Liberal Party.

(iv) [Mrs Abbott] by virtue of having married [Mr Abbott] was to be suspected of so lacking respect for her partner that even being married to him did not stop her from trying to subvert his political beliefs.”

8 Secondly, Mr and Mrs Abbott claimed that, to the extent to which it may be held that any of the defamatory meanings claimed does not arise as a natural and ordinary meaning, then that meaning is “a true innuendo” which arises by reason of facts and matters (“the extrinsic facts”) known to readers of the matter complained of. Particulars of the extrinsic facts alleged were:

“(i) [Mrs Abbott] married [Mr Abbott] in 1988 and has been married to him ever since.(ii) [Mr Abbott] joined the Liberal Party after his marriage to [Mrs Abbott].”

9 Thirdly, Mr and Mrs Abbott claimed that, by reason of facts and matters known to readers (i.e. the extrinsic facts, above), the matter complained of conveyed meanings, which are true innuendos, defamatory of them. Particulars of the innuendos alleged (“imputation D”) were:

“D. PARTICULARS OF TRUE INNUENDOS(i) [Mr Abbott] was a person of weak and unreliable character whose political decisions were dictated by his wife.

(ii) [Mrs Abbott] was sexually promiscuous.

(iii) [Mrs Abbott] was a person of such low moral standards that she was even prepared to use sexual relations to get others to change their political allegiance.

(iv) [Mrs Abbott] was a political manipulator who used sex in order to recruit Labor Party members into the Liberal Party.

(v) [Mrs Abbott] was so lacking in respect for her partner that even being married to him did not stop her from trying to subvert his political beliefs.”

10 Mr and Mrs Costello made similar claims in their proceedings. Mr Costello is, and was at all material times, the Commonwealth Treasurer, the Deputy Leader of the Commonwealth Parliamentary Liberal Party and the Member for the electorate of Higgins. The “extrinsic facts” pleaded by them were:

“(i) [Mrs Costello] married [Mr Costello] in January 1982 and has been married to him ever since.(ii) [Mrs Costello] at the University of Sydney and thereafter was known publicly as an active supporter of the Liberal Party; and

(iii) [Mrs Costello] was the daughter of the Leader of the New South Wales Liberal Party and was a supporter of the Liberal Party prior to her first meeting … Mr Costello and Mr … Abbott.

(iv) [Mrs Costello] was acquainted with [Mr] Abbott at Sydney University prior to meeting her husband, [Mr] Costello.”

11 The trial was conducted upon the footing, unequivocally acknowledged by Random House at the trial, that Mr Ellis’ story was false. Of this, his Honour said (at 6):

“The story is falseIt is important to record … that [Random House] did not attempt to assert the truth of the facts asserted in this passage. The plaintiffs’ evidence that it was false, so far as it referred to them, or, in the case of Mrs Abbott, might be believed to refer to her, was not challenged.

Accordingly, … the following findings should be firmly stated:

1. Neither Mr Abbott nor Mr Costello were ever members of the Labor Party, whether in the right wing or otherwise.

2. Mr Abbott has, at no time, had any kind of sexual relationship with Mrs Costello (nee Coleman).

3. Mrs Costello did not induce either Mr Abbott or Mr Costello to join the Young Liberals or, indeed, the Liberal Party, whether by means of sexual favours, expectation of sexual favours or even friendship.

4. Mr Cavalier did not recount to the author the statements attributed to him, nor does he support in any way the truth of the apocryphal story.

In other words, the story about Mr Abbott, Mr Costello and Mrs Costello (or Mrs Abbott if she is taken to be referred to), is untrue, has no foundation in fact …”

12 Random House did not seek to justify its publication.

13 His Honour found that the following (but no other) imputations arose:

(i) That Mr Costello’s and Mr Abbott’s political commitment was so shallow that, in return for sexual favours, they were willing to abandon their principles (i.e. imputation A(ii)) (at 10).

(ii) That Mrs Costello and Mrs Abbott were guilty of unchastity (cf. imputation B(i)) (at 10 – 11).

(iii) That Mrs Costello and Mrs Abbott, by virtue of having married their husbands, were to be suspected of being people of such low moral standards that they were even prepared to use sexual relations to get others to change their political allegiance (i.e. imputation B(ii)) (at 11).

14 Higgins J then held (at 13) that the publication was defamatory of Mr Costello, and of Mr Abbott, as the ordinary reasonable reader would, in fact, conclude, first, that the anecdote does in fact convey the imputation of shallow political commitment; and, secondly, that such a story, if true, would rebound to their disadvantage. His Honour further held (at 17) that the publication was defamatory of Mrs Costello and Mrs Abbott, in so far as it accused one or other of them of unchastity.

15 The primary Judge awarded compensatory and aggravated damages as follows:

RANDOM HOUSE’S GROUNDS OF APPEAL

16 Random House now appeals from the whole of his Honour’s judgment on the following grounds.

17 On the issue of liability, Random House contends that the primary Judge should not have found that imputation A(ii) arose, or was defamatory. (It will be recalled that A(ii) was that Mr Costello’s (and Mr Abbott’s) “political commitment was so shallow that for sexual favours he was willing to abandon his principles”.) Random House further contends that his Honour should not have found that imputation B(i) arose. (By this imputation, Mrs Costello (and Mrs Abbott) “was to be suspected of being sexually promiscuous”.) Then Random House says that his Honour erred in finding that it was open to read the phrase “sexually promiscuous” in imputation B(i) as meaning “guilty of unchastity”. Random House also argues that the primary Judge erred in finding that the matter complained of was capable of bearing, and did in fact bear, an imputation to the effect either (a) that Mrs Costello and Mrs Abbott were to be suspected of being guilty of unchastity; or (b) that they were guilty of unchastity. The appellant further contends that the trial Judge should not have found that imputation B(i), as pleaded, or as his Honour formulated it, was defamatory of Mrs Costello and Mrs Abbott. Next, Random House argues that the trial Judge should not have found that imputation B(ii) arose either as pleaded or as otherwise expressed by his Honour. (By imputation B(ii), Mrs Costello and Mrs Abbott, “by virtue of having married [Mr Costello and Mr Abbott] was to be suspected of being a person of such low moral standards that she was even prepared to use sexual relations to get others to change their political allegiance”.)

18 Random House then contends that it was denied natural justice when his Honour found that the following imputation was conveyed by the matter complained of, and was defamatory: that Mrs Costello (and Mrs Abbott) was to be suspected of being, or was guilty of unchastity. Random House contends that such an imputation was not an issue at trial and no opportunity was afforded to Random House to meet it.

19 Random House also contends that the damages awarded were excessive and that the plaintiffs should not have been awarded any sum for aggravated damages.

MR AND MRS ABBOTT’S AND MR AND MRS COSTELLO’S NOTICE OF CONTENTION

20 For their part, Mr and Mrs Abbott and Mr and Mrs Costello contend that his Honour’s judgment should be upheld, for the reasons he gives, and for the following additional reasons:

* Imputation A(i) is capable of arising, and does arise, from the matter complained of, and is defamatory of Mr Abbott and Mr Costello. (A(i) is that Mr Abbott (and Mr Costello) “so lacked personal integrity that, in return for sexual favours, he was willing to change his political allegiance”.)

* Imputation A(iii) is capable of arising, and does arise, and is defamatory of Mr Abbott and Mr Costello. (A(iii) is that Mr Abbott (and Mr Costello) “was to be suspected of being of weak and unreliable character who allowed his political decisions to be dictated by his wife”.)

* Imputation B(ii), which his Honour found to arise, is defamatory of Mrs Abbott and Mrs Costello. (B(ii) is that Mrs Abbott (and Mrs Costello) “by virtue of having married [Mr Abbott and Mr Costello] was to be suspected of being a person of such low moral standards that she was even prepared to use sexual relations to get others to change their political allegiance”.)

* Imputation B(iii) is capable of arising, and does arise, and is defamatory of Mrs Abbott and Mrs Costello. (B(iii) is that Mrs Abbott (and Mrs Costello) “by virtue of having married [Mr Abbott and Mr Costello] was to be suspected of being a political manipulator who used sex in order to recruit Labor Party members into the Liberal Party”.)

* Imputation B(iv) is capable of arising, and does arise, and is defamatory of Mrs Abbott and Mrs Costello. (B(iv) is that Mrs Abbott (and Mrs Costello) “by virtue of having married [Mr Abbott and Mr Costello] was to be suspected of so lacking respect for her partner that even being married to him did not stop her from trying to subvert his political beliefs”.)

* Imputation D(i) is capable of arising, and does arise, as a true innuendo, by reason of the extrinsic facts pleaded, and is defamatory of Mr Abbott and Mr Costello. (D(i) is that Mr Abbott (and Mr Costello) “was a person of weak and unreliable character who allowed his political decisions to be dictated by his wife”.)

* Imputation D(ii) is capable of arising, and does arise, as a true innuendo, by reason of the extrinsic facts, and is defamatory of Mrs Abbott and Mrs Costello. (D(ii) is that Mrs Abbott (and Mrs Costello) “was sexually promiscuous”.)

* Imputation D(iii) is capable of arising, and does arise, as a true innuendo, by reason of the extrinsic facts, and is defamatory of Mrs Abbott and Mrs Costello. (D(iii) is that Mrs Abbott (and Mrs Costello) “was a person of such low moral standards that she was even prepared to use sexual relations to get others to change their political allegiance”.)

* Imputation D(iv) is capable of arising, and does arise, as a true innuendo, by reason of the extrinsic facts, and is defamatory of Mrs Abbott and Mrs Costello. (D(iv) is that Mrs Abbott (and Mrs Costello) “was a political manipulator who used sex in order to recruit Labor Party members into the Liberal Party”.)

* Imputation D(v) is capable of arising, and does arise, as a true innuendo, by reason of the extrinsic facts, and is defamatory of Mrs Abbott and Mrs Costello. (D(v) is that Mrs Abbott (and Mrs Costello) “was so lacking in respect for her partner that even being married to him did not stop her from trying to subvert his political beliefs”.)

21 Although they rely on the matters raised in their notice of contention on the issue of liability, Mr and Mrs Abbott and Mr and Mrs Costello do not seek any increase in the damages awarded at first instance.

CONCLUSIONS ON THE APPEALS – LIABILITY ISSUES

22 The test for what may be defamatory at common law is well established. A publication, without justification or lawful excuse, exposing a person to hatred, contempt or ridicule, calculated to injure that person’s reputation, is a libel. But this is not to be taken as an exhaustive statement. A person may be defamed by an imputation of a disability in the performance of the functions of his or her office, although the imputation does not expose him or her to hatred, contempt or ridicule. A false statement about a person to his or her discredit is defamatory. Thus to attribute to a person a want of capacity as the holder of an office will be defamatory. The mere imputation of a lack of ability to discharge the duties of that office is sufficient. It is not necessary that there should be an imputation of immoral or disgraceful conduct (per Brennan J in John Fairfax v Punch [1980] FCA 100; (1980) 31 ALR 624 at 632 – 633 citing Lord Herschell in Alexander v Jenkins [1892] 1 QB 797 at 800). Thus, the substantive legal issue here may be expressed as whether the material complained of was defamatory of the plaintiffs in that it was to his or her “discredit … [tended] to lower him [or her] in the estimation of others … to expose him [or her] to hatred, contempt or ridicule, or to injure his [or her] reputation in his [or her] trade or profession” (see Chakravarti v Advertiser Newspapers (1998) 193 CLR 519 per Gaudron and Gummow JJ at 545 quoting Gatley on Libel and Slander, 8^th ed. (1981), par 31).

23 Yet, as has been seen, both at first instance and on appeal, Random House raised questions that had adjectival as well as substantive aspects; that is, Random House argued that his Honour’s conclusions amounted to an impermissible, substantial departure from the plaintiffs’ pleading and thus a denial of natural justice. In order to understand the adjectival issues that arise here, reference should be made to the rules, at least of practice, in this area.

24 A defamatory imputation may be made by reliance upon the natural and ordinary meaning of the words published, or by innuendo (per Brennan J (Gibbs CJ, Stephen, Murphy and Wilson JJ agreeing) in Reader’s Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500 (at 505)). Where no (true) innuendo is pleaded, and the published words clearly relate to the plaintiff, the issue of libel or no libel, can be determined by asking whether hypothetical referees (described in the authorities as “reasonable” persons or “right-thinking members of society generally” or “ordinary (persons) not avid for scandal”) would understand the words in a defamatory sense. Two elements are involved here: (1) the meaning of the words used (the imputation); and (2) the defamatory character of the imputation. In their understanding, the hypothetical referees are taken (a) to have a uniform view of the meaning of the language used; and (b) to share standards, moral or social, by which they evaluate the imputation they understand to have been made, those being standards common to society generally (per Brennan J at 505 – 506). These moral or social standards are not amenable to evidentiary proof. Rather, it is pre-eminently a matter for the trier of fact to give effect to a standard which he or she considers to accord with the attitude of society generally (per Brennan J at 506). The basic question then is whether the matter complained of would tend to lower the subject in the estimate of the ordinary, reasonable, member of society (per Kirby J in Chakravarti at 573).

25 A related, and presently relevant, question is the effect of a plaintiff’s pleading, or failing to plead, an imputation by way of a false innuendo. In strictness, there is no rule which expressly requires a plaintiff to give particulars when the plaintiff relies simply on the “ordinary meaning” of the publication on which the claim is based. But, statute apart, the reason why a court may, in the management of a defamation case, require a plaintiff to provide particulars, even where the plaintiff intends to rely on ordinary meaning, is the need to define issues when more than one meaning may be inferred from the words. Sometimes, it is not necessary to go beyond the words themselves to understand their “natural and ordinary” meaning, as where the plaintiff is called a thief or a murderer. Yet more often the sting is not so much in the words themselves, as in what the ordinary person will infer from them, and that is also regarded as part of their ordinary and natural meaning (per Brennan CJ and McHugh J in Chakravarti (at 530 – 532) citing Lord Reid in Lewis v Daily Telegraph Ltd (1964) AC 234 (at 258)). Thus, it is said that the courts require plaintiffs to plead false innuendos, if needed to define the issues (per Brennan CJ and McHugh J at 532).

26 A plaintiff who pleads a false innuendo thereby confines the meanings relied on, and cannot seek a verdict on a different meaning which so alters the substance of the meaning pleaded that the defendant would have been entitled to plead a different issue, to adduce different evidence or to conduct the case on a different basis (per Brennan CJ and McHugh J at 532). However, form should not be sacrificed to substance, and minute differences from the meaning pleaded should not be elevated to the status of a substantial defence. A different nuance of meaning from the meaning pleaded may be permitted, provided it is not unfair to the defendant to allow the plaintiff so to depart from the meaning pleaded. The critical consideration is whether it is prejudicial, disadvantageous or unfair to the defendant, to allow a plaintiff to seek a verdict on the basis that the matter complained of bears a meaning different from that previously relied on (per Brennan CJ and McHugh J at 532; per Gaudron and Gummow JJ at 546; per Kirby J at 580 – 581).

27 It should be borne in mind, for present purposes, that the pleading of a particular meaning or meanings is no more (and no less) than a statement of the case to be made at trial. Pressures on court time and the cost of litigation ordinarily require that, at trial, a party (including a plaintiff in a defamation action) be held to those parts of the pleadings which specify the case to be made, if departure would occasion delay or disadvantage the other side. But words do not mean what parties choose them to mean and, at least ordinarily, the defamatory material will, itself, sufficiently identify and, thus, confine the meanings on which they rely; it would be most unlikely that the parties would fail to hit upon, at least approximately, all the reasonably open meanings (per Gaudron and Gummow JJ at 545).

28 In my opinion, these last observations are pertinent in the present case; that is, in my view, the matter complained of did, itself, sufficiently identify the meaning relied on by the plaintiffs. In other words, it was not, I think, necessary here for the plaintiffs to state their particulars or imputations. It was sufficient to identify the matter complained of. In my view, a reasonable reading of that material would convey the meaning relied on by the plaintiffs at the trial.

29 This emerges, clearly I think, from the following analysis of the material:-

* The matter complained of opens, and ends, with references, made in mocking overtones, to some well-known Australian and English political and public figures and their ideas. Particular emphasis is given to whether a person was seen, or claimed, to be a monarchist or an Anglophile or Right Wing.

* Focus is first concentrated upon Mr Abbott, who is introduced as “the Liberal thinker”, but with the addition of the derisory “(hah)!”.

* The contact between Mr Ellis and Mr Abbott is then described, including Mr Ellis’ apparently easy deception of Mr Abbott into believing that Mr Ellis was a “fellow monarchist”.

* Mr Ellis next states his determination to destroy Mr Abbott remembering “with pleasure” Rodney Cavalier’s “gutsy account of history”. (It will be recalled that Mr Cavalier is later described by Mr Ellis as a monarchist, and an Anglophile.)

* The sting in the passage complained of follows. Reference is made to Mr Abbott and Mr Costello together, and one or other of their wives in these derisory, contemptuous and mocking terms:

“Abbott and Costello … they’re both in the Right Wing of the Labour Party till the one woman fucked both of them and married one of them and inducted them into the Young Liberals.”

* Mr Ellis’ stated response to this piece of “history” was again derisory –

” `Abbott and Costello?’ I said, laughing.”

* Next, as has been noted, the references to monarchists, Anglophiles etc. follow.

30 In my opinion, a reasonable reader would react to this “story” with the response that the plaintiffs’ reputations for honour, honesty and integrity had been discredited and that the professional and official reputations of Mr Abbott and Mr Costello had also been discredited, with the consequence that members of the community generally would have thought less of the plaintiffs. It follows, in my opinion, that on a natural and ordinary reading, the matter complained of defamed the plaintiffs.

31 On behalf of Random House, it was contended, in essence, that the passage in question could not defame because (a) it should be read as no more than two independent statements: (1) that the plaintiffs engaged in pre-marital sex; and (2) that the male plaintiffs changed their political allegiances; and (b) as a question of law, or mixed fact and law, such statements could not discredit the plaintiffs. As has been seen, I cannot accept the argument. The statements sued on must be viewed in their context. So viewed, as the above analysis shows, the statements were not independent. On the contrary, they were integral parts of an attack upon the plaintiffs which made effective use of the weapon of ridicule to seriously discredit the plaintiffs in the eyes of reasonable members of the community.

32 That being so, it is strictly not necessary that I consider the matter by reference to the particulars or imputations actually pleaded. However, since we heard full argument on them, I will consider them.

33 It will be convenient to consider the arguments on the appeals by reference to the imputations in the sequence pleaded. In doing so, I bear in mind, as has been said, that defamation is not limited to aspersions upon an individual’s private character – his or her reputation for honour, honesty or integrity – but embraces also disparagements of his or her reputation in trade, business, profession or office (see Fleming, The Law of Torts, 9^thed. (1998) at 582). Both are, in my view, involved here. Moreover, defamation can be conveyed in any number of styles. What matters is the tendency of the utterance, not its form. Ridicule, for example, is a familiar weapon for attacking reputation (see Fleming, op. cit. at 584). This weapon, in my opinion, was effectively employed here to belittle Mr Abbott and Mr Costello, and to besmirch Mrs Abbott and Mrs Costello.

Imputation A(i) (that Mr Abbott (and Mr Costello) “so lacked personal integrity that, in return for sexual favours, he was willing to change his political allegiance”).

34 In holding that this imputation did not arise from the matter complained of, his Honour said (at 9 – 10):

“A(i) It is not necessary that the precise imputation be conveyed. However, to make out this imputation it requires an inference to be drawn of some sort of bargaining process having been undertaken with sex being offered for political defection. That inference, to my mind, is sheer speculation. It does not arise from the matter complained of.”

35 Mr Abbott and Mr Costello now contend that this imputation does, in fact, arise.

36 With all respect to the trial Judge, there is, in my view, substantial force in their contention. I think that the ordinary reader would read the matter complained of in the sense explained in A(i), which is, in truth, no more than a paraphrase. The ordinary reader would not, in my view, interpret the matter complained of so as to indicate, as his Honour thought, that a kind of bargaining process took place. In my opinion, A(i) is no more than a paraphrase of the central thrust of the passage complained of. As such, the imputation does arise.

37 The next question is whether such an imputation was defamatory. In my opinion, it was, for the reasons I have previously given; that is, such a statement would cast aspersions upon the private characters of Mr Abbott and Mr Costello, and would also disparage their professional and official reputations. Such a statement would discredit them and lower them in the estimation of others, and expose them to contempt or ridicule.

Imputation A(ii) (that Mr Abbott’s (and Mr Costello’s) “political commitment was so shallow that for sexual favours he was willing to abandon his principles for sex”).

38 As we have seen, Higgins J found that this did arise. Of Mr Abbott, he said (at 10):

“A(ii) This is precisely what the matter complained of means. The anecdote is clearly aimed at Mr Abbott. He is referred to as `the Liberal thinker’ – a person intellectually committed to that party or, at least, so regarded by his colleagues and the public. The anecdote is apparently perceived by the author as effective `to destroy him’; that is, to destroy the perception of Mr Abbott as a person intellectually and deeply committed to the Liberal Party. Instead, he is said to be a person who, as a result of a sexual liaison with a woman connected with the Young Liberals, or to facilitate that liaison, abandons his membership of the Labor Party and defects to the Young Liberals.The suggestion of `shallow political commitment’ is, in my view, one which does arise from the matter complained of, though I would read `for’ as meaning `by reason of’.”

39 Of Mr Costello, his Honour said (at 10):

“Although the primary target of the author’s anecdote is Mr Abbott, the imputation that strikes him, equally strikes Mr Costello. Imputation A(ii) therefore arises in respect of him, though neither of the other two does.”

40 In holding this imputation to be defamatory, Higgins J went on to say (at 13):

“In this case, the reader was positively invited by the preamble to the anecdote to assume that the anecdote relayed by the author would be to the discredit of Mr Abbott. It would `destroy him’ (exaggeration perhaps) as a `Liberal thinker’. Indeed the author appears to suggest that such a description, is, in any event, an oxymoron.I conclude, having regard to that consideration as well as the reasonable inference that might be drawn from the anecdote itself, that it does in fact convey the imputation of shallow political commitment. I further conclude, as the author invites the reader to do, that such a story, if true, would rebound to the disadvantage of Mr Abbott. I agree that the ordinary reasonable reader would, in fact, so conclude. It follows, it seems to me, that it equally rebounds in a similar manner to the disadvantage of Mr Costello. To hold them up, falsely, as persons of shallow political commitment would be libellous of them irrespective of their political profiles.”

41 Random House now appeals from each of these findings.

42 I agree with his Honour that this imputation did arise. Again, it is no more than a paraphrase of the central passage.

43 I also agree with the opinion of Higgins J that the imputation was defamatory, for the reasons his Honour gave.

Imputation A(iii) (that Mr Abbott (and Mr Costello) “was to be suspected of being of weak and unreliable character who allowed his political decisions to be dictated by his wife”).

44 His Honour refused to find that this arose, saying (at 10):

“A(iii) I have already noted that the anecdote does not imply any bargain or ultimatum so far as the woman is concerned. The remainder of the imputation is already contained within A(ii).This imputation does not arise as a separate inference from the matter complained of.”

45 Mr Abbott and Mr Costello now challenge this finding.

46 In my view, this imputation is a fair paraphrase of the text, and thus does arise.

47 I am further of the opinion that such an imputation was defamatory, essentially for the reasons given in respect of A(i) and (ii). The story would expose Mr Abbott and Mr Costello to contempt or ridicule, and their personal and official characters would be damaged in the eyes of ordinary reasonable members of the community.

Imputation B(i) (that Mrs Abbott (and Mrs Costello) “was to be suspected of being sexually promiscuous”).

48 In finding that this imputation arose, Higgins J said (at 11):

“Although the term used in this imputation is `promiscuous’, it only refers to two episodes of premarital sex. I have no difficulty in accepting that as an allegation of unchastity. Even with the use, in the matter published, of the word `fuck’ rather than `had sexual relations with’ or `made love to’, it does not impute the kind of serial conduct which seems to me to be properly described as promiscuity.Nevertheless, unchastity is necessarily conveyed both by the pleading and the matter complained of. I find that imputation is conveyed by the matter complained of. It is of lesser seriousness than that which is expressly pleaded. While not, perhaps, permissible in New South Wales (see Anderson v Mirror Newspapers Ltd (No. 2) (1986) 5 NSWLR 735), it can be regarded in this jurisdiction as a meaning relied on by the plaintiff in substance. It seems to me, therefore, that so to find does not offend against the principle of holding the plaintiff to her (or their) pleadings referred to in Hadzel v De Waldorf (1970) 16 FLR 174 at 181-2.

It was the defendant’s concession [but the making of the concession was disputed by Random House on appeal] that an inference of premarital sex was conveyed. It did not seek to justify that inference. It conceded that the same was untrue. It contended merely that to say of Mrs Abbott and Mrs Costello that they engaged in premarital sex was not defamatory. I conclude that there is no unfairness in finding that imputation B(i) is conveyed in relation to Mrs Abbott, though reading `sexually promiscuous’ as meaning `guilty of unchastity’ in the circumstances conveyed by the matter complained of.”

49 His Honour, then finding the allegation in the book defamatory, said (at 16):

“In the present case, the author of the book certainly does not take a censorious attitude to extramarital sex, no more than he does to drunkenness.However, while to say that society condemns such behaviour is perhaps to put too high a point upon it, it would, in the absence of explanation or some reason proffered to except it from the general rule, be regarded, if not with derision or contempt, then, at least, with disappointment.

The author himself invites the reader to treat the persons the subject of the anecdote with derision. That is partly because they are depicted not only as manipulative or manipulated, but also because they are falling below the preferred societal standard concerning extramarital sex.”

50 Higgins J went on to say (at 17):

“There is no doubt that the form and content of the publication may, as Hutley JA speculated in Cairns/Morosi, though alleging sexual misconduct, so present the occasion or circumstances of it that the reputation of the participants is positively enhanced. It may enhance one party to it but not another. It cannot, however, seriously be contended, in my view, that any such enhancement of reputation or standing has occurred in this case. The degree of offence, outrage, derision or contempt will vary. To some persons, it would be highly offensive, even outrageous, that a woman would be guilty of lack of chastity. Others might take the view that such conduct, while not ideal, is fairly commonplace. There would be some, perhaps, who would adopt the slogan, `if it feels good, do it’ and applaud such conduct.However, I have to abide by my view of the attitude, not of persons at either extreme, but of the ordinary reasonable reader generally. Even given the Labor bias likely among readers of the author’s works, there is every reason to suppose that such persons would predominantly adhere to what Mr Alfred Doolittle in My Fair Lady (a film based on the play, Pygmalion, by George Bernard Shaw) described as `middle class morality’.

Those persons would find nothing in the context of the anecdote to take away the view that the `woman’ had behaved immorally, surrendering her chastity not only to her future husband but also to another person.”

51 Random House now challenges each of these findings, submitting also that it was denied natural justice in the process.

52 In my opinion, there is substantial force in Random House’s argument that this imputation did not arise.

53 The Macquarie Dictionary (2^nd ed.) definition of “promiscuous” offers the following meanings:

“1. characterised by or involving indiscriminate mingling or association, esp. indulging in sexual intercourse with a number of partners. 2. consisting of parts, elements, or individuals of different kinds brought together without order. 3. indiscriminate; without discrimination. 4. casual; without particular plan or reason.”

54 Thus, all the ordinary meanings of the word reflect a notion of indiscriminate behaviour or conduct without any particular reason. But, in my view, an ordinary reader would reasonably interpret the matter complained of quite differently: the sting is in the suggestion that either Mrs Abbott or Mrs Costello planned, through the use of sexual relations, to manoeuvre or manipulate both Mr Abbott and Mr Costello into switching their political allegiances. This was not indiscriminate conduct. On the contrary, it was manipulative as his Honour found (at 16). It was not sexually promiscuous behaviour.

55 That being so, in my view, no issue of defamation, or of adjectival departure in that connection, arises.

Imputation (B(ii) (that Mrs Abbott (and Mrs Costello) “by virtue of having married [Mr Abbott (and Mr Costello)] was to be suspected of being a person of such low moral standards that she was even prepared to use sexual relations to get others to change their political allegiance”).

56 His Honour, in finding that this did arise, said (at 11):

“B(ii) The reference to `by virtue of having married [Mr Abbott]’ is not part of the imputation. It is the pleader’s explanation as to why the imputation is suspected to apply to her. Mere `low moral standards’ are already imputed by B(i). The additional matter is the suggestion of the `use of’ sexual relations to get others to change their political allegiance.The true imputation is that the woman exploited the sexual liaison, or the prospect of it, to achieve the result of changing the man’s political allegiance. In that sense, it seems to me that the imputation as pleaded arises from the matter complained of.”

57 However, Higgins J went on (at 13 – 14) to conclude that this was not defamatory:

“So far as Mrs Abbott or Mrs Costello is concerned, whichever of them is to be regarded as `the woman’, she is not directly stated to have used the occasion of the sexual liaison to entice the men to the Young Liberals. That she did so depends upon the drawing of an inference that she misused the occasion of their liaison to induce the men to join the Young Liberals.The question is whether that is defamatory of the woman in question. In my view it is not. The fact that a woman is committed politically and is persuasive, albeit to a weak-willed and sexually driven male, does not, I believe, cause the woman to be regarded less highly. It may be otherwise if the sexual liaison was commenced for that purpose but I have concluded that that inference does not arise.

It follows that while the inference arises that the woman used the occasion in question to promote the Young Liberals to her then partner, that inference would be taken by the average reasonable reader not to reflect adversely upon the woman. It is not defamatory.”

58 Mrs Abbott and Mrs Costello now challenge this conclusion.

59 I agree with the primary Judge that B(ii) is a fair paraphrase of the publication.

60 However, with respect, I cannot agree that such an imputation was not defamatory. An ordinary reasonable reader would react to this story as an aspersion upon the private characters of Mrs Abbott and Mrs Costello, specifically upon their honour, honesty and integrity and would think less of them accordingly.

61 His Honour did, at this stage, refer to a scenario that “a woman is committed politically and is persuasive, albeit to a weak-willed and sexually driven male …”. But, as has been noted, the primary Judge went on to find (at 16), correctly in my view, that the women “are depicted … as manipulative …”. To attribute this manipulative character to Mrs Abbott and Mrs Costello would discredit them by damaging their reputations in the eyes of ordinary reasonable members of the community.

Imputation B(iii) (that Mrs Abbott (and Mrs Costello) “by virtue of having married [Mr Abbott (and Mr Costello)] was to be suspected of being a political manipulator who used sex in order to recruit Labor Party members into the Liberal Party”).

62 Holding that this did not arise, his Honour said (at 11):

“B(iii) This adds to the former imputation an allegation of deliberation. That is, that the woman sought out sexual partners with a view to inducting them into the Young Liberals. That is, to my mind, a forced or strained interpretation, capable of being held only by a process of speculation rather than by inference.”

63 Mrs Abbott and Mrs Costello now challenge this finding.

64 There is, in my view, substantial force in their challenge. The imputation does, I think, amount to a fair paraphrase of the passage.

65 Is the imputation defamatory? In my opinion, it is, for reasons similar to those given in respect of B(ii).

Imputation B(iv) (that Mrs Abbott (and Mrs Costello) “by virtue of having married [Mr Abbott (and Mr Costello)] was to be suspected of so lacking respect for her partner that even being married to him did not stop her from trying to subvert his political beliefs”).

66 Higgins J held that this did not arise. He said (at 9):

“It is important to distinguish between inferences which the ordinary reasonable reader would draw from the matter published and speculation such as a reader might, even probably, engage in. …It is for that reason that I conclude that the matter published does not convey the meaning that `the one woman’ married Mr Abbott or Mr Costello before their alleged defection or so as to induce it. It is not clear whether the alleged defection is supposed to have followed the marriage or preceded it.”

67 His Honour went on to say (at 11):

“B(iv) I have already noted that any inference that the change of political beliefs was caused by, or followed, the marriage referred to, can only be derived by a process of speculation rather than reasonable inference.”

68 Mrs Abbott and Mrs Costello now dispute this conclusion, but I agree with it, for the reasons given by Higgins J.

Imputations D(i) to D(v)

69 His Honour found (at 7 – 8) that no “true innuendo” case arose here. The primary Judge said (at 8):

“I should say, at the outset, that this does not seem to me to be a case in which a true innuendo, in fact, arises. The matter complained of does not convey to me that the marriage of the `one woman’ to `one of them’ took place before the induction of Messrs Abbott and Costello into the Young Liberals. Thus the fact that Mr Abbott joined the Liberal Party after marrying Mrs Abbott would not assist the reader to identify, or not, Mrs Abbott with the woman referred to.Further, attendance or otherwise at the University of Sydney is not a matter referred to in the matter complained of. Whether the alleged sexual relations occurred during or before the parties completed their education seems also irrelevant. It is true that knowing that Mrs Abbott, a New Zealander, did not come to Australia until 1983 and did not have any prior connection with the Young Liberals or the Liberal Party would exclude the identification of her as the woman referred to. However, to those persons, the matter would not convey any of the pleaded imputations concerning her. It would, in fact, deny them.

So far as Mrs Costello is concerned, knowing that she had been a Liberal activist and had met, and was acquainted with, and, indeed, had joined in student politics with, each of Mr Abbott and Mr [ ]Costello, could assist in identifying her as the woman referred to, rather than Mrs Abbott. However, that does no more than the matter itself does in conveying the imputation that she had wooed both Mr Abbott and Mr Costello away from the Labor Party and towards the Liberal side of politics. Needless to say, there is no need for any extrinsic fact to convey whatever imputations arise in relation to either Mr Abbott or Mr Costello.”

70 Mr Abbott and Mr Costello now challenge this conclusion, but again I agree with Higgins J, for the reasons he gives.

___________

71 Overall, however, for the reasons I have previously stated, I would dismiss the appeal on the issue of liability.

CONCLUSIONS ON THE APPEALS – DAMAGES ISSUES

72 As has been mentioned, Random House challenges each of the awards of damages as excessive.

73 It will be convenient to consider the issues that now arise on the measure of damages in the order dealt with by his Honour.

(a) Ordinary compensatory damages

(i) Mrs Abbott

74 In awarding a sum of $30,000, his Honour said (at 44):

“Mrs Abbott was a case of collateral damage. It is likely that most readers would have assumed that `the woman’ was Mrs Costello. Most readers would have been persons interested in politics. Nevertheless, some would not have done so. The story appeared aimed at Mr Abbott. That could have led to a conclusion that he had been so besotted by `the woman’ as to not only leave the Labor Party for the Young Liberals, but also to marry her.There is no imputation of infidelity, of dishonesty or criminal conduct. The damages should be enough to be vindicatory without being extravagant, having regard to the defendant’s efforts, such as they were, to mitigate the harm.”

75 I agree with these conclusions. Moreover, in my view, his Honour’s award of this amount in vindication of Mrs Abbott’s reputation, was clearly within an appropriate range. In my opinion, no serious case for appellate interference here has been demonstrated.

(ii) Mr Abbott

76 Mr Abbott’s award was $40,000. Higgins J said (at 44):

“He was the target: `I determined to destroy him.’ Obviously, the author meant `destroyed’ as a serious political thinker. Mr Abbott was to be an object of ridicule. That can be a devastating political weapon. The accusation against him was of a submission to a political conversion for less than intellectually persuasive reasons. Of course, it may have been politically damaging to the plaintiff to have it suggested that, as a prominent Liberal, he had once been a Labor Party member. That is not, however, defamatory. It is the suggestion of the change being for reasons of personal pleasure, not genuine conviction, that is defamatory.In his case, I also note the early withdrawal of the book and the publicity given to it in mitigation.”

77 I agree with these conclusions. Further, an award of this amount was plainly open to his Honour. It is not excessive.

(iii) Mrs Costello

78 In awarding a sum of $40,000, the primary Judge said (at 45):

“Her position, so far as ordinary compensatory damages are concerned, is similar to that of Mrs Abbott. However, as I have noted, more readers would have assumed that she was the person referred to than would have suspected one or the other equally, or have assumed Mrs Abbott to be the one.”

79 I agree with his Honour’s approach. No real case for interference with this assessment has been made out. It is not excessive.

(iv) Mr Costello

80 His Honour was of the opinion, “on balance”, that $40,000 was “appropriate”, saying (at 45):

“His position is similar to Mr Abbott. On the one hand, I accept that he enjoyed a higher profile and reputation. His political prospects were at risk of greater damage. On the other hand, the author was clearly to be seen as aiming at Mr Abbott’s career prospects. The largest single group of book sales was in New South Wales.”

81 I agree with these conclusions. They could not be seriously challenged. In my opinion, this award was within range, and clearly open to the trial Judge.

(b) Injury to feelings

(i) Mrs Costello

82 In making an award of $30,000, Higgins J said (at 45):

“In the present case, I consider Mrs Costello to have been the most seriously wounded in her feelings. I found her to be a deeply religious woman, who would see herself, quite reasonably, as doing good for others. She is able and intelligent. I have no doubt that increased her perception of the harm that might follow and the outrage concerning it.”

83 His Honour’s approach was clearly justified by the evidence, which was not seriously challenged. This award was plainly within an acceptable range.

(ii) Mr Costello

84 His Honour assessed Mr Costello’s damages at $20,000, saying (at 45):

“The next most injured, I consider, was Mr Costello. His reaction was more controlled fury than emotional devastation. Much of his anger and outrage was that a political attack was made on him (and Mr Abbott) through his wife, accusing her of conduct of which she was entirely innocent. I do not feel obliged to consider that latter reaction irrelevant because it arises from the slur cast on Mrs Costello. That, to me, would be entirely artificial.”

85 I agree with his Honour’s approach. Again, no basis for appellate interference with the award here has been shown: it is not excessive.

(iii) Mr Abbott

86 In awarding $15,000, Higgins J said (at 45):

“Mr Abbott was angry. Part of his outrage was, as he said, that the relationship between him, a senior colleague and his wife was called into question and besmirched. His sense of unease and anger were, I accept, heightened when he realised that his wife also was inferentially traduced.I feel, however, that Mr Abbott’s sense of outrage and injury was lessened by the considerable local publicity given to the withdrawal and pulping of the book. No-one would have doubted it was because he had been libelled in it by a false story.

Nevertheless, I consider an additional award of $15,000 appropriate.”

87 His Honour’s inferences were consistent with the evidence, which was not really challenged. This award was clearly within an appropriate range in these circumstances.

(iv) Mrs Abbott

88 In making an award of $10,000, his Honour said (at 45 – 46):

“Mrs Abbott knew it was not her who was aimed at. Indeed, some of her `unease’ was due to the discomfort of knowing that the author had determined `to destroy’ her husband, politically, of course, not physically.It was unpleasant for her. There was the inevitable anxiety of the litigation. I consider an additional award of $10,000 is warranted.”

89 I agree with the approach taken by the primary Judge. Again, no reason for interference with this assessment has been shown.

(c) Aggravated compensatory damages

90 His Honour rejected a claim that Random House had acted with “express malice”, but went on to say (at 47):

“Its lack of proper apology and steps to recall the book might fall short of the ideal, but this was not, I believe, out of a desire to continue or exacerbate the injury to the plaintiffs or to achieve some collateral purpose.”

91 Higgins J found (at 48) that Random House’s failure to check the accuracy of the matter complained of was “negligent” but “not, in itself, reckless”.

92 With respect to the extent and mode of publication, his Honour noted (at 48) that over 3,000 copies of the work still remained “out there”; that, many who have it, or have read it, will now know that the story about the plaintiffs was false in every material particular; that Random House was a large, well-known and well-respected publishing house; and that the book was likely to attract the attention of “the politically aware, the opinion makers, those who have influence, inter alia, over the careers of current politicians”.

93 In regard to Random House’s failure to apologise, his Honour said (at 48 – 49):

“In the present case, though withdrawing the book, having ascertained with a high degree of certainty that the story concerning the plaintiffs was false, the defendant did not itself publicly endorse that finding. It offered no solace to the plaintiffs save an inference that it could not support the truth of the matter complained of. It did not dissociate itself from the occasional defiant rumblings attributed in the press to the author.It had no possible defence to the charge that the matter complained of was false and penned by the author with a view to destroying the reputation for serious political thought of Mr Abbott, and, necessarily, also for Mr Costello. It should have recognised that it cast a slur upon the reputation of the `one woman’.

A complete withdrawal and apology would have cost the defendant nothing. It did not have to concede that the story made defamatory imputations as a matter of law. It did make false imputations and it should have acknowledged that. Common decency demanded a full retraction and apology. It was not given.”

94 With respect to Random House’s conduct of the litigation, his Honour held that the failure to promptly and frankly admit the truth to be “unjustifiable”, saying (at 49):

“The defendant would not, by publishing an apology and retraction, necessarily be taken to admit that the matter complained of was defamatory if it genuinely, though mistakenly, believed otherwise.To quibble as to who should submit first the form of apology strikes me as unwarranted `fencing’. The defendant did the wrong. It should have, at least, started the process by suggesting specifically what it was prepared to do by way of amends.

That reluctance is even more reprehensible, even if contrary to its own interests, when it is recognised that a full apology and payment into court of `a sum of money by way of amends’ is not merely an offer of settlement, but a complete defence: see s 8 of the Defamation Act 1901 (ACT).”

95 Higgins J also held (at 49) that the steps taken by Random House to recall the book from libraries (copies were still held by at least twelve significant libraries) were “seriously inadequate”, and that this “tardiness” added to the plaintiffs’ “concern and frustration”.

96 It will be recalled that his Honour allowed aggravated damages as follows:

Mrs Abbott $5,000

Mr Abbott $7,500

Mrs Costello $15,000

Mr Costello $10,000

97 In my opinion, the factors mentioned by his Honour were appropriate considerations to be taken into account, as a question of principle, in deciding that it was proper to award aggravated damages in this case. With respect to the quantum of the specific awards, the amounts assessed were plainly within an acceptable range. They are not on their face excessive and no error of principle has appeared.

98 Random House further submitted that the primary Judge erred in awarding damages for failure to apologise both in the award for ordinary compensatory damages and the award for aggravated damages, and that this amounts to double compensation. I agree with what Drummond J has written on this question.

99 In my view overall then, the damages appeal also fails.

ORDERS PROPOSED

100 I propose that the appeals be dismissed, with costs.

Associate:

Dated: 10 November 1999

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURTOF THE AUSTRALIAN CAPITAL TERRITORY

REASONS FOR JUDGMENT

MILES J:

101 On issues relating to liability, I agree with the statements of principle set out in the judgments of Beaumont J and Drummond J, which I have read in draft form. To the extent that there is a conflict on the conclusions reached by their Honours (which appears to me to arise only in relation to imputation B(i) and innuendoes D(i) to D(v)) I agree, with respect, with those of Drummond J.

102 I wish to add that, in my view, there is considerable force in the reference by Beaumont J to the remarks of Gaudron and Gummow JJ in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 545 that words do not mean what the parties choose them to mean and that ordinarily the defamatory material will, itself, sufficiently identify and, thus, confine the meanings on which they may rely. I agree with Beaumont J that, in the present case, the matter complained of would convey the meaning relied on by the plaintiff at trial without the need for prolix “particulars” of meaning pleaded as imputations or false innuendoes. Furthermore, as Drummond J observes, debate about the meaning of the passage in question has become increasingly remote from the text as the case has moved progressively from pleadings to trial to appeal, so that, in the end, much time and effort has been taken up in concentrating on what the trial judge meant when he recast the imputation of “promiscuity” as one of “unchasteness” when neither word appears in the text at all. Such profitless exercises about the meaning of meanings may be difficult to avoid where the law provides (as it does in New South Wales, one of the places of publication) that each imputation provides a separate cause of action. In common law jurisdictions, such as the Australian Capital Territory, such exercises can and should be avoided.

103 In relation to damages, I agree, in the end, that the appellant has not shown that the award to any plaintiff was outside the range of a sound discretionary (or value) judgment, and for that reason I agree that the appeals against damages must fail. However, I do not agree that substantial issues on damages were not raised by the appellant and, in my view, they deserve attention.

104 The rationale of an award of damages for defamation at common law has been the subject of differing opinions and approaches over a long time. The historical background is explained by Windeyer J in Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118 at 149-151 and by McHugh J in Carson v John Fairfax & Sons Pty Ltd [1993] HCA 31; (1993) 178 CLR 44 at 102-103. At one end of the spectrum is compensation for the plaintiff and at the other is punishment of the defendant, each factor always being present but neither being entirely distinguishable from the other, since compensation for the purposes of defamation is not the same as compensation for the purposes of other, probably most, areas of the law. Compensation in the latter or usual sense is intended to place the plaintiff, as far as money is capable of so doing, in the position that the plaintiff would have been but for the defendant’s wrongdoing, a principle which has become so familiar that Diplock LJ described it as a platitude: Fletcher v Autocar and Transporters Limited [1968] 2 QB 322 at 340. The tort of defamation has a quasi criminal background and the liability of a defendant includes exposure to a monetary remedy which, to a variable extent, is supposed to express social disapproval, even if the defendant’s conduct falls short of warranting the award of exemplary or punitive damages, the latter being specifically directed towards punishment of the defendant and not compensation for the plaintiff.

105 Whatever be the continuing controversy amongst the academic writers and in other parts of the world, the High Court has spoken authoritatively for Australian courts.

106 The majority judgment of the High Court in Carson states at 60-61:

“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’: Uren v John Fairfax & Sons Pty Ltd, per Windeyer J at 150. 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: Carson (1991) 24 NSWLR at 296-299. The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant: Uren v John Fairfax & Sons Pty Ltd at 150; Coyne (1991) 172 CLR at 216; John Fairfax & Sons v Kelly (1987) 8 NSWLR 131 at 142; McCarey v Associated Newspapers Ltd [No 2] [1965] 2 QB at 107. 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: Fleming, Law of Torts, 8^th ed (1992) at 595.”

107 It appears that the component of consolation for hurt feelings plays an increasingly important part in defamation litigation. Windeyer J in Uren made it clear at 151 that that element of damages has always been available:

“That defamation may produce indignity and humiliation and that these can attract monetary compensation is no new doctrine. It goes back to the early Middle Ages …”

108 Until Rookes v Barnard [1964] UKHL 1; [1964] AC 1129 the distinction between aggravated compensatory damages and exemplary damages was regarded as of little importance. After the House of Lords decided in Rookes v Barnard that limits should be placed on the classes of cases in which exemplary damages may be awarded, the High Court in Uren declined to follow that decision. In doing so, it brought to bear a focus on the circumstances in which aggravated compensatory damages may be awarded, and made it clear that such damages are attached to and, in addition to, “ordinary” compensatory damages for hurt feelings.

109 Furthermore, in Broome v Cassell & Co Ltd [1972] UKHL 3; [1972] AC 1027, Lord Diplock lent encouragement to shifting the emphasis from loss of reputation to hurt to feelings. In a short but seminal passage he said at 1125:

“The harm caused to the plaintiff by the publication of a libel upon him often lies in his own feelings, what he thinks other people are thinking of him, than in any actual change made manifest in their attitude towards him.”

110 Although Lord Diplock appeared to confine this aspect of the damages to the plaintiff’s concern about the effect of the libel on others, that is to say indirectly, the damage to reputation, other pronouncements since then have made it clear that the damages under this head encompass a good deal more and extend to the subjective insult felt by the plaintiff who need not necessarily reflect upon what others think at all. For instance, in CarsonBrennan J said at 71 that the consequences of publication are not restricted to the insult publicly inflicted on the plaintiff and its effect on reputation. His Honour added:

“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 all those subjective reactions which flow naturally from the publication of the defamatory matter are relevant factors.”

111 Concentration at the trial on hurt to feelings and a failure on the part of juries to appreciate that that component, if substantial, provides vindication, may go to explain the excessive verdicts of juries which have been the subject of comment and concern by appellate courts in recent years. Defamation trials are seldom concerned with proof of damage to reputation. The plaintiff will typically give evidence of the effect on him or her on reading or hearing of the libellous material and witnesses will be called to give evidence of their own observations of the effects it has or had on the plaintiff. That will be followed by cross-examination of the plaintiff as to the genuineness or true cause of the plaintiff’s distress. If the cross-examination is unsuccessful, the plaintiff’s counsel will rely on it as an aggravating factor by virtue of which the damages are likely to be increased. There is a graphic description of evidence of this nature in the judgment of Mahoney A-CJ in Crampton v Nugawela [1996] NSWSC 651; (1996) 41 NSWLR 176 at 190.

112 This shift from loss of reputation to hurt to feelings is not confined to Australia. According to McDonald, Irish Law of Defamation (1989) at 287:

“The estimation which an individual enjoys before others is the pre-eminent value served by the present law of defamation. But it does not seem to be the only one. The relief of emotional distress caused by the publication is becoming increasingly recognised as a further object of the law’s protection. However, this secondary purpose does not rest comfortably with the first. Indeed, it has enveloped the action in such a cloud of uncertainty that now it is open to question just which of the two is the purpose which the action seeks to further.Quite often, from the way a plaintiff and his counsel bemoan his situation in court, and from the sympathetic way which the jury is encouraged to, and often does, respond, and from the fact that the legal presumption of damage to reputation avoids any necessity to show actual damage, it appears that the action is really about satisfying the plaintiff’s hurt feelings, and not vindicating his standing in the community. This suspicion is greatly strengthened by the fact that it is money – and not some rehabilitating redress – which is awarded to a successful plaintiff, and which he can do with as he pleases.”

113 In the United States, where “the doctrine of presumed damages invites juries to punish unpopular opinion rather than to compensate individuals for injury sustained by the publication of a false fact” the Supreme Court has ruled that “it is necessary to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth to compensation for actual injury”: Gertz v Welch [1974] USSC 144; 418 US 323 at 349-350.

114 In Scots law proceedings for hurt to feelings (solatium) were taken in the commissary courts and the element of loss to reputation was dealt with in the civil courts. Despite the merging of jurisdictions, an action for solatium may still lie although there has been publication to no one but the injured party: K Norrie, Defamation and Related Actions in Scots Law (1995) 164.

115 In Australia there has been no attempt judicially or legislatively to restrict or isolate damages for hurt to feelings. The mixture of “inextricable considerations”, which ultimately governs an award of damages for defamation, means, as McHugh J (although dissenting on other matters) put it in Carson at 115:

“The elements of an award of damages in a defamation action are so intangible and the criterion of value so vague that no two persons are likely to agree, even approximately, on what is a proper award for a defamation. This is so even in a case where exemplary damages cannot be awarded.”

116 Thus the assessment of damages by the tribunal of fact is not lightly to be set aside as excessive by a court of appeal. The cases that repeat that principle in relation to jury verdicts are referred to by Toohey J with whom Dawson and McHugh JJ agreed, in Coyne v Citizen Finance Limited [1991] HCA 10; (1991) 172 CLR 211 at 238-239. It is appropriate that a similar approach be taken to an appeal from assessment by a trial judge sitting without a jury unless the trial judge’s reasons reveal error. Nevertheless an appeal court will intervene to correct an award of damages which is manifestly excessive or inadequate although the reasons display no identifiable error. This Court did so in Humphries v TWT Ltd [1993] FCA 577; (1994) 120 ALR 693. In that case the Court said at 700:

“Where it is not shown that the trial judge acted upon a wrong principle of law or misapprehended the facts, the court will infer that the judge’s discretion miscarried only where it is satisfied that the amount is so high or so low as to be a wholly erroneous estimate of the damages to which the party is entitled. Where specific error in principle or fact cannot be identified, Fox J in Mirror Newspapers Ltd v Jools [1985] FCA 153; (1985) 65 ALR 174 at 176 said:`It then becomes a question of what matters his Honour could properly have taken into account in arriving at this amount, and whether, bearing these matters in mind, the award should be disturbed.'”

117 Furthermore, the advantage that the trial judge has in seeing and hearing from the plaintiff (and possibly other witnesses) must be acknowledged, especially where hurt to feelings forms a substantial part of the plaintiff’s claim as it does increasingly in defamation litigation. The present case is a further illustration of that tendency, as the trial judge acknowledged.

118 Because the law presumes harm to reputation from a libellous publication, a plaintiff does not have to prove or call evidence about actual harm. There was very little by way of evidence of damage to reputation in the present case. Much of the trial was taken up by examination and cross-examination of each plaintiff as to his or her reaction, both as to the publication and to the defendant’s conduct. The multiplicity of imputations pleaded contributed to the complexity and length of the trial in this regard. Counsel for the plaintiffs sought, as he was entitled to seek, from the plaintiff being examined, expressions of his or her understanding of the meanings of the words published. To the extent that the understanding more or less coincided with one or more of the imputations, the plaintiff was then able to describe his or her reaction in terms of outrage, affront, hurt, indignity and the like. Witnesses were called to give evidence as to what they had heard the plaintiff say about his or her feelings and what they observed about the plaintiff’s conduct and demeanour as an apparent consequence of the publication. Invariably, perhaps inevitably, such witnesses said that their own previous high opinion of the plaintiff was in no way affected by the defamatory content of the publication. Counsel for the defendant sought in cross-examination to confine the plaintiff’s understanding of the publication to a meaning or meanings least likely to cause substantial hurt, or least likely to be defamatory.

119 There is substance in the submission made on behalf of the appellant that the compensatory component of the award should reflect the likelihood that the reputations of all plaintiffs hardly suffered at all. The statements of claim lead with opening paragraphs declaring that Mr Costello is and was at all material times the Treasurer in the Government of the Commonwealth of Australia, the Deputy Leader of the Liberal Party in the Parliament of the Commonwealth and the Member for the electorate of Higgins, and that Mr Abbott is and was at all material times the Parliamentary Secretary to the Minister for Employment Education and Youth Affairs within the Government of the Commonwealth of Australia and the Member for the electorate of Warringa. During the hearing, Mr Abbott was sworn in as Minister. His Honour was reminded more than once of the need for both plaintiffs to absent themselves from the courtroom from time to time in order to attend to important affairs elsewhere. There could be and was no suggestion that their parliamentary careers had suffered as a result of the publication and there was no direct evidence that, as a result of the publication, anyone had ever questioned their private or public integrity.

120 There is also substance in the further submission that the tone of the matter complained of, in its context within the book, was such that the ordinary reader could hardly be expected to take it seriously. That does not mean that it was not defamatory, nor that being defamatory, it does not open up liability on the part of the publisher for damages under heads other than loss of reputation. But the fact of the matter is that the ordinary reader would come to the offending passage in the book after reading much of what goes before (472 pages of it), and apart from an initial reaction to the offending passage, would not come to any conclusions without reading further and, at least partly, into the remaining 133 pages. The ordinary reader would be aware that the matter complained of is preceded by a sensitive description of the author’s relationship with the poet Les Murray, particularly during the illness of the latter, with a lengthy extract from one of Murray’s poems. The matter complained of is immediately followed by an outrageous account of how Dame Nellie Melba prepared herself for her theatre appearances, an account so preposterous that no reader could begin to believe it, were it not presented as purporting to originate from the historian, Manning Clark, who vouched for its truth to another historian, Ian Turner. The book as a whole, as its subtitle suggests, is an almost structureless series of musings, recollections, anecdotes and the like, in which it appears to be the author’s intention to challenge the reader to distinguish between fact and fiction, reality and dreams, history and myth. The ordinary reader is likely to come away not knowing what to believe. The prurient reader who would read only the matter complained of might be prepared not to disbelieve some of it. In the classic language of defamation law the mud would stick, and the suspicion lurk, and for this the plaintiffs are entitled to damages.

121 As far as damage to reputation is concerned, the matter complained of appears to strike hardest at Mr Rodney Cavalier. The ordinary reader would be aghast at the idea of anyone telling such a story as the author attributes to Mr Cavalier, unless the story were true, and the ordinary reader, suspecting that the story was not true, would suspect the more that Mr Cavalier was indulging in a cheap, smutty lie at the expense of the plaintiffs. Furthermore, at the end of the litigation, one might note, almost in passing, that the person whose reputation is in tatters is the author. In seeking to “nail the lie” the plaintiffs did not seek an apology or explanation from him and did not sue him. It is a curious feature of the case that the outrage of the plaintiffs is directed against the publisher, Random House, and not against the author. That did not stop their counsel referring to the author in the most disparaging terms at various times during the trial, thereby assisting the process of vindication.

122 It was the conduct of the publisher, not that of the author, on which reliance was placed, successfully, for an award of aggravated damages. Clearly each of the plaintiffs impressed his Honour in giving an account of his or her reaction to learning about and reading the publication, talking about it to members of the family or close associates, or not talking about it as the case may be, and then, as further matters of aggravation, reacting to being told of the various steps in the litigation and the appellant’s conduct in relation to the demands for apologies and in relation to negotiations between the lawyers. His Honour took a very dim view indeed of the appellant’s failure to apologise, of the language in which the appellant’s solicitors conducted the negotiations (“pious cant”), and of what he considered to be desultory efforts to seek out and destroy copies of the book that had found their way into institutional libraries and other matters. His Honour was also less than impressed with the evidence of Ms Funnell, the literary editor of the appellant, who read the manuscript prior to publication with a view to excising anything libellous, and who said that it did not occur to her that the matter complained of was defamatory.

123 It was submitted for the appellant, as I understand it, that the law is that failure to apologise is not a matter that goes to aggravated damages. Reliance was placed on the majority judgment in the High Court in Carsonwhere it was said at 66:

“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. No doubt want of apology may be a relevant factor in establishing that a defendant is motivated by a desire to injure the plaintiff but that does not mean that want of apology itself aggravates the plaintiff’s injury.”

124 Notwithstanding that passage, as Drummond J points out, the New South Wales Court of Appeal held in Clark v Ainsworth (1996) 40 NSWLR 463 that damages for hurt to feelings may be assessed taking into account the plaintiff’s increased hurt brought about by the failure to apologise, and that aggravated damages may be awarded additionally for the same failure if it involves improper or unjustifiable conduct. That decision has been followed in the Victorian Court of Appeal. This Court in Humphries at 699 stated that a failure to apologise was relevant to general compensatory damages “even in the absence of circumstances of aggravation”. There are other cases impossible to reconcile with the statement in Carson, except upon the basis that failure to apologise is always relevant to subjective hurt to feelings but can be taken into account for the purpose of aggravated damages only if it is part of a pattern of conduct so unmeritorious by objective standards as to warrant increasing the plaintiff’s damages, but always stopping short of awarding damages in order to punish the defendant. On the other hand, if the conduct relied upon goes beyond the failure to apologise, as his Honour clearly thought it did in the present case, then the failure may then be taken into account as part of the overall pattern: but failure to apologise is never, without more, enough to warrant aggravated damages. Upon that basis, no error is shown in his Honour’s approach.

125 His Honour used strong language in his criticism of the appellant and its advisers, describing the latter as betraying “a disappointing moral bankruptcy”. He considered that the appellant and its advisers lacked “the ideals of honesty and accuracy”, which should have commended them to publish an apology. His Honour used colourful terminology in relation to what he considered to be the conflicting “frames of moral reference” of the parties. His Honour concluded that “the author and the defendant have managed to beguile the defendant’s legal advisers into believing that the current norms likely to be applied by this court, are now those of nineteenth century ale houses”. It was submitted that there was no evidence to support these and similar epithets and conclusions. That may well be, but it does not follow that his Honour was wrong in deciding that the conduct of the appellant and its advisers, taken in conjunction with the graphic evidence of the plaintiffs as to their reaction to that conduct, entitled them to aggravated damages. His Honour was clear in distinguishing between conduct which gave rise to aggravated damages and conduct which might have warranted an award of exemplary damages and specifically found (somewhat surprisingly in the light of the strength of his criticism of the appellant) that the conduct was not so serious as to fall within the latter category.

126 Then it was submitted that his Honour did not distinguish between hurt experienced by an individual plaintiff as a result of the libel of that plaintiff in contrast to the outrage resulting from the indignity and humiliation heaped upon that plaintiff’s spouse. The clearest example of this was perhaps in the case of Mr Costello where it was suggested that he was more concerned about the attack on his wife than that upon himself. However, his Honour did consider this aspect and concluded that it would be “artificial” to draw the distinction for the purpose of awarding damages. In any event, the transcript shows that, whilst Mr Costello’s initial concern was for his wife, it changed over time when he came to conclude that he himself was the true target of the publication and that political enemies were using his wife for that purpose. Indeed, both Mr Costello and Mr Abbott spoke at length about their concern for the health of the Australian political system if such publications were allowed to continue. It is highly doubtful whether that particular concern was a proper basis for damages (and it is hardly relevant to anything else) but his Honour appears not to have taken it into account. As a matter of principle, it is correct, as submitted on behalf of the appellant, that a person is not entitled to damages by being outraged at the defamation of somebody else. However, it has not been shown that his Honour proceeded erroneously in this regard.

127 In conclusion, it should be acknowledged that no point was taken on the appeal that his Honour should have made separate awards for each of the causes of action that accrued by publication in each of the States and Territories. The practice of awarding one lump sum for interstate publication appears to be accepted by this Court and was followed in Humphries as well as in Australian Broadcasting Commission v Comalco Ltd (1986) 68 ALR 259, cf David Syme & Co Ltd v Grey [1992] FCA 479; (1992) 115 ALR 247.

128 I agree that the appeals should be dismissed with costs

Associate:

Dated: 10 November 1999

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THEAUSTRALIAN CAPITAL TERRITORY

REASONS FOR JUDGMENT

DRUMMOND J:

129 These are appeals from a decision of a judge of the Australian Capital Territory Supreme Court sitting without a jury, who held that the publication by the appellant of a short passage in a book written by Mr Bob Ellis was defamatory of each of the four plaintiffs. His Honour awarded damages, including aggravated damages, to each. He declined, however, to award anything by way of exemplary damages.

130 Two actions were heard together by his Honour. In the first, the plaintiffs were Mr and Mrs Costello and, in the second, Mr and Mrs Abbott. At all material times, Mr Costello was the Treasurer in the Federal Government and Deputy Leader of the Parliamentary Liberal Party, while Mr Abbott was a prominent Liberal member of that Government.

131 Mr Ellis’ book is entitled Goodbye Jerusalem: Night Thoughts of a Labor Outsider. The learned primary judge described the book as “a series of reminiscences and stories generally about politics and, as the title implies, from a Labor perspective. The author has his heroes and villains. The latter are most frequently drawn from the conservative side of politics, though some Labor figures are also treated with scorn and derision.”.

132 The plaintiffs’ complaint is about one of these stories. It is set out in each statement of claim as follows:

“At the launch also was Tony Abbott, the Liberal thinker (hah!) and he greeted me as a fellow monarchist (carefully lying, I nodded) and though of another party `a fellow partaker of the comradeship of the trenches’. I liked him of course, the way one does, and determined to destroy him, the way one does, and remembered with pleasure Rodney Cavalier’s gutsy account of history.`Abbott and Costello’, said Rodney Cavalier, pacing up and down his baronial mansion after serving me for dinner as was his custom bread and water, `they’re both in the Right Wing of the Labor Party till the one woman fucked both of them and married one of them and inducted them into the Young Liberals.’

`Abbott and Costello?’ I said, laughing.

`That’s what I said,’ said Rodney. `Why are you laughing?’

Rodney was a monarchist too, and an Anglophile, and a fan of Asquith and Harold Nicolson and Maynard Keynes.

`What are the arguments for monarchism?’ I asked him.

`There aren’t any,’ he said. `You must never argue for something that is intellectually unsustainable.’

`Why believe in it then?’

`Because the alternative,’ he said with ferocity, `is UNTHINKABLE.’

Diaries, September 1994.”

133 It has never been in dispute that the “Abbott and Costello” here referred to are the two male plaintiffs; no criticism was made of the learned primary judge’s finding that “[t]he reader would infer that the `woman’ was the present wife of one of them”, ie, either Mrs Abbott or Mrs Costello.

134 As the learned primary judge noted early in his judgment, what Mr Ellis had to say about Mr Abbott and Mr Costello having once been members of the Labor Party and about there being a sexual relationship between either Mrs Abbott or Mrs Costello and both Mr Abbott and Mr Costello was false; moreover, Mr Abbott has never had any kind of sexual relationship with Mrs Costello. Nor did Mr Cavalier ever say any of the things which Mr Ellis attributes to him or support in any way the truth of the story recounted by Mr Ellis. The appellant now says that, soon after publication, it publicly acknowledged all that: although it did not apologise, it then took some steps to withdraw the book from circulation. A year or so later it took further steps designed to complete that exercise. They were not wholly successful. The appellant’s position at trial and on appeal, however, was that Mr Ellis’ story, though false in all these respects, is not defamatory of any of the plaintiffs.

135 The appellant thus put in issue two of the elements of the plaintiffs’ causes of action: the meaning of the words used and their defamatory character. Both elements depend upon the opinions of the ordinary reasonable reader: what is the meaning that such a reader would give to the words complained of and would that reader consider that the words, so understood, lower the plaintiffs in the estimation of others? See Reader’s Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500 at 505 – 506.

The cases made by Mrs Costello and Mrs Abbott

136 It is convenient to deal first with the appeals against the verdicts for Mrs Costello and Mrs Abbott. In each action, the female plaintiff pleaded by way of false innuendo that the matter complained of in its natural and ordinary meaning was defamatory of her because it conveyed the following imputations:

“B. PARTICULARS OF NATURAL AND ORDINARY MEANINGSIN RESPECT TO SECOND NAMED PLAINTIFF

(i) The second named plaintiff was to be suspected of being sexually promiscuous.

(ii) The second named plaintiff by virtue of having married the first named plaintiff was to be suspected of being a person of such low moral standards that she was even prepared to use sexual relations to get others to change their political allegiance.

(iii) The second named plaintiff by virtue of having married the first named plaintiff was to be suspected of being a political manipulator who used sex in order to recruit Labor Party members into the Liberal Party.

(iv) The second named plaintiff by virtue of having married the first named plaintiff was to be suspected of so lacking respect for her partner that even being married to him did not stop her from trying to subvert his political beliefs.”

137 In the Costello pleading, Mrs Costello also alleged that, if any of these imputations do not arise as a natural and ordinary meaning, then that meaning is a true innuendo arising by reason of facts and matters known to readers of the passage complained of. She relied on the following as extrinsic facts:

“(i) The second named plaintiff married the first named plaintiff in January 1982 and has been married to him ever since.(ii) The second named plaintiff at the University of Sydney and thereafter was known publicly as an active supporter of the Liberal Party; and

(iii) The second named plaintiff was the daughter of the Leader of the New South Wales Liberal Party and was a supporter of the Liberal Party prior to her first meeting the first plaintiff, Mr Costello and Mr Tony Abbott.

(iv) The second named plaintiff was acquainted with Mr Tony Abbott at Sydney University prior to meeting her husband, Peter Costello.”

138 In the Abbott pleading, Mrs Abbott pleaded a similar true innuendo and relied on the following as the relevant extrinsic facts:

“(i) The second named plaintiff married the first named plaintiff in 1988 and has been married to him ever since.(ii) The first named plaintiff joined the Liberal Party after his marriage to the second named plaintiff.”

139 The female plaintiffs thus pleaded that there were four imputations in the text, both by way of false and true innuendo, that each was to be suspected of having four attributes, including that of being sexually promiscuous. Counsel for the respondents explained the references here to “suspicion” because, by way of example, the text suggested that the woman, whoever she was, was in fact sexually promiscuous, did not name her but, in terms, identified her as the wife of either Mr Abbott or Mr Costello. It thereby raised in the mind of the reader the suspicion that each could be the woman in question. The learned primary judge dealt with these imputations on that basis.

140 In addition to the four imputations of suspicion, both female plaintiffs alleged, in reliance on the same extrinsic facts referred to, that the passage in question conveyed the imputations that each in fact possessed the four deficiencies of character, including sexual promiscuity, of which each was earlier alleged to be “suspected”.

The trial judge’s decision on the cases of the female plaintiffs

141 His Honour found that while the text complained of did not convey the imputation of sexual promiscuity pleaded in B(i), it did convey an imputation of unchastity, which his Honour held was defamatory. It was on these findings that his Honour gave judgment for the female plaintiffs. The learned primary judge refused to find that the text conveyed an imputation of sexual promiscuity about the female plaintiffs because reference was made to only two episodes of pre-marital sex. However, his Honour had no difficulty in accepting that the text was capable of conveying the meaning that each female plaintiff had been “… `guilty of unchastity’ in the circumstances conveyed by the matter complained of”. He justified his conclusion as to the imputation of unchastity, though different from the precise imputation pleaded, “as a meaning relied on by the plaintiff in substance”. He referred here to Fox J’s comments in Hadzel v De Waldorf (1970) 16 FLR 174 at 181 – 182.

142 His Honour also found that the text conveyed the imputation about the woman pleaded in par B(ii), but held that it was not defamatory. He refused to find that the text conveyed the imputations pleaded in pars B(iii) and (iv).

143 The learned primary judge refused to find that their case, in so far as it was based on any of the true innuendoes, was made out. Although the correctness of his Honour’s rejection of this part of their cases was challenged by Mrs Costello and Mrs Abbott in their notices of contention, their counsel did not advance any argument to support the challenge. It can therefore be taken to have been abandoned. It is unnecessary to consider it further.

The appellant’s attack on the decision based on the imputation of unchastity

144 Counsel for the appellant attacked this finding, firstly, on the ground that it was not open to the learned primary judge to make it because the imputation he found was a substantially different imputation from that of promiscuity pleaded: it was said, in effect, that in finding an imputation of unchastity, the learned primary judge found that the article conveyed nothing more about the sexual conduct of the woman than that she had had pre-marital liaisons only with her future husband and one other. Secondly, and as the consequence of finding an imputation different from that pleaded, his Honour caused serious and irremediable procedural unfairness to the appellant.

145 Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37 shows that both these propositions must be made out if the attack on the learned primary judge’s finding here in question is to succeed. The leading judgment was given by Gaudron and Gummow JJ. Their conclusion as to the correct principle to be applied in determining whether a plaintiff can succeed on the basis of a meaning in the form of a false innuendo different from that specifically pleaded appears at 546; [60]:

“As a general rule, there will be no disadvantage in allowing a plaintiff to rely on meanings which are comprehended in, or less injurious than the meaning pleaded in his or her statement of claim. So, too, there will generally be no disadvantage in permitting reliance on a meaning which is simply a variant of the meaning pleaded. On the other hand, there may be disadvantage if a plaintiff is allowed to rely on a substantially different meaning or, even, a meaning which focuses on some different factual basis. Particularly is that so if the defendant has pleaded justification or, as in this case, justification of an alternative meaning. However, the question whether disadvantage will or may result is one to be answered having regard to all the circumstances of the case, including the material which is said to be defamatory and the issues in the trial, and not simply by reference to the pleadings.”

146 Their Honours regarded this as guidance for the “fair and efficient practice” to be followed in the conduct of defamation trials, not as a prescriptive rule: see 544 – 545; [56]. The last sentence in this passage shows that their Honours did not consider that the text complained of becomes irrelevant when the question is: Can the plaintiff rely on a meaning said to be different from that pleaded? Kirby J makes the same point at 579 – 580; [139], where, after referring to this same rule of practice stated by Gaudron and Gummow JJ as, in part, arising “from the entitlement of the tribunal of fact always to examine the entire publication to see the matter complained of in its context”, his Honour said:

“An overly rigid rule, strictly confining a plaintiff to the pleaded imputations, would run the risk that the alleged wrong was forgotten or overlooked. Instead of measuring the damage done by the publication itself, the trial might be diverted to a different document, namely the pleading containing the imputations formulated by lawyers.”

147 Although Brennan CJ and McHugh J expressed agreement with the conclusions of Gaudron and Gummow JJ, and with their reasons generally, they qualified their agreement by putting a different emphasis on how the question whether a plaintiff is entitled to judgment on a meaning different from that specifically pleaded should be resolved. Their Honours, at 532; [18], considered the practice of courts requiring plaintiffs to plead false innuendoes “where the pleading of an innuendo is needed to define the issues for determination” to be well-founded. They also said at 532; [19]:

“A plaintiff who pleads a false innuendo thereby confines the meanings relied on. The plaintiff cannot then seek a verdict on a different meaning which so alters the substance of the meaning pleaded that the defendant would have been entitled to plead a different issue, to adduce different evidence or to conduct the case on a different basis.”

148 But, as their Honours made clear, at 534; [24], it is prejudice, not the mere existence of difference in meaning, that justifies holding a plaintiff to the meaning pleaded. Their Honours’ conclusion was:

“If the defendant is, or might reasonably be thought to be, prejudiced, embarrassed or unfairly disadvantaged by the departure – whether in pleading or preparing for trial, or adducing evidence or in conducting the case before verdict – the plaintiff will be held to the meaning pleaded. If the meaning pleaded goes to the jury and is not found by the jury, the plaintiff fails. If there be no unfair disadvantage to the defendant by allowing another defamatory meaning to be relied on and to go to and be considered by the jury – as where the plaintiff seeks to rely on a different nuance of meaning or, often times, merely a less serious defamation – the different defamatory meaning may be found by the jury.”

149 They did not, however, accept that there was a mechanical rule that a plaintiff could always succeed on a meaning less serious than that pleaded, because it is still possible for a defendant to be prejudiced, eg, by being denied the opportunity of raising a possibly good answer to a charge of defamation based on the less serious meaning.

150 Although the other member of the Court, Kirby J, considered that the answer to the question whether a plaintiff is entitled to a verdict on a meaning that departs from the meaning pleaded is governed by considerations of fairness, it is apparent from what his Honour said at 578 – 581; [139], that he would give more latitude, particularly to a judge sitting without a jury, than Brennan CJ and McHugh J would allow, “to consider the meaning of the entire matter complained of, notwithstanding the pleaded imputations” and to give judgment accordingly. His Honour’s opinion is close to that of Gaudron and Gummow JJ, who emphasised, in their discussion of the justification of the practice governing the extent to which a plaintiff can rely on meanings different from those pleaded at 545; [57], that the rule of practice is to be applied having regard to the fact that “the legal issue which has to be decided is whether the material complained of is defamatory of the plaintiff … [and that] [t]he pleading of a particular meaning or meanings … was no more than a statement of the case to be made at trial”.

151 Counsel for the appellant, in submitting that the learned primary judge was wrong in finding that the article defamed them, said that it was incapable of conveying anything defamatory of the female plaintiffs because it was concerned only with one woman’s pre-marital sexual experiences – limited, in any event, to just two men, one of whom she later married – and, moreover, it had nothing to do with politics. This submission can only be made because the debate about the meaning of the passage in question has become more and more remote from the text itself as forensic analysis has moved from the text, through the imputations said by the plaintiffs in their statement of claim to be contained in it, to the recasting of this particular imputation by the learned primary judge, and finally to the analysis by counsel on appeal of individual words not appearing in the text – “promiscuity” and “unchastity” – divorced from the literary context that has given rise to the litigation.

152 Authority shows the error in the approach of the appellant to attacking the judgment in so far as it is based on the imputation of unchastity found by the trial judge. It is sufficient to refer to two cases from jurisdictions other than New South Wales (where legislation attaches special significance to pleaded meanings because each imputation there gives rise to a separate cause of action).

153 In Chakravarti, the plaintiff pleaded two false innuendoes. The first imputed that he was involved in criminal or civil misconduct in respect of loans from the company to himself, whilst an executive of that company; the second was an imputation that the plaintiff’s conduct in receiving loans as an executive of a company, which loans were in excess of his entitlement, was such as to render him unfit to be an executive of that company. Neither the words emphasised nor the idea they encapsulate appeared in the article the subject of the complaint.

154 Gaudron and Gummow JJ, at 541 – 542; [48], rejected the defendant’s submission as to the first innuendo that the article imputed only non-actionable suspicion of conduct; they considered that the article imputed actual misconduct with respect to loans from the company, possibly criminal rather than civil in character. They further considered, at 542; [50], that, because the article imputed misconduct of that kind, “the ordinary reader would take the article to carry a distinct innuendo that, by reason of that misconduct, [the plaintiff] was not a fit and proper person to be or remain an executive of Beneficial”. In form, this second innuendo is quite different from the first innuendo pleaded by the plaintiff. Yet their Honours considered that it was necessarily conveyed because of the first imputation in the article. At 546; [61], their Honours said that they considered that “the article bears the first meaning pleaded by [the plaintiff] and a meaning substantially similar to the second [pleaded] …”.

155 At 545 – 546; [59], in a passage to which it is not necessary to refer, they identified one reason why the plaintiff could rely on the innuendo of unfitness they considered was conveyed without the defendant being exposed to relevant disadvantage. But it is apparent from what their Honours said at 542; [50] and from their comment at 546; [61] that they did not think that there was any significant difference between the first imputation of misconduct pleaded, which they considered that the article conveyed, and the imputation of unfitness different from that pleaded, which they also considered the article conveyed to the ordinary reader.

156 This reveals a much broader approach than that urged by the appellant to determining whether differences between imputations pleaded and imputations found to be conveyed are sufficiently substantial to require attention to be given to whether the defendant would be disadvantaged if the plaintiff were permitted to rely upon the latter kind of imputation rather than that pleaded. It also serves to emphasise the importance their Honours placed on the text, as the touchstone for identifying and thus confining at the trial the meanings on which the plaintiff can rely.

157 Brennan CJ and McHugh J expressly agreed, at 534; [25], that the plaintiff was entitled, inter alia, to a favourable finding on these meanings attributed to the article by Gaudron and Gummow JJ. The statements of general principle that all four of their Honours made, need to be understood against the background of their conclusions that none saw any significant difference between the meanings pleaded by the plaintiff in the two imputations he set up or between the meanings of the second of those pleaded imputations and the different imputation found to have been conveyed by the article to the ordinary reader, in the context of the article complained of.

158 So understood, Chakravarti lends no support to the approach upon which the appellant here relies of subjecting expressions in the text complained of and in the imputation pleaded and in that found to be conveyed by the judge to detailed comparative analysis in order to identify differences in meaning, which are then said to be highly significant. The appellant’s approach was one which was deprecated by Kirby J in Chakravarti at 578; [139]; it is also inconsistent with the decision of this Court, on appeal from the Australian Capital Territory Supreme Court in John Fairfax & Sons Ltd v Punch [1980] FCA 100; (1980) 31 ALR 624.

159 There, the plaintiff was the Parliamentary leader of the Country Party in the New South Wales Legislative Assembly. The article in question purported to be a report of a meeting of 250 dairymen-members of the Country Party held on the eve of the State election at which those dairymen called for the resignation of the plaintiff over his attitude to dairy industry restructuring and themselves resigned from the New South Wales Country Party, but were reported to have voted to maintain their affiliation with the Federal Country Party. The trial judge found the article defamatory of the plaintiff because it conveyed the meaning that he was a leader who had, in the eyes of 250 members of his party, exhibited such an incapacity that he was no longer fit to be party leader. That is, he held the report conveyed a meaning not expressed in any of the words appearing in the report, but a meaning nevertheless conveyed by those words. Blackburn and Northrop JJ rejected the attack on this conclusion, saying at 629:

“…In our opinion, it is capable in law of being defamatory to say of a politician who is a leader of his political party that he has lost the confidence of a significant number of members of his party, because that necessarily attributed incompetence to him. It is an essential part of the competence of the leader of a political party to hold the confidence of the members of his party. The imputation that the respondent had lost the confidence of some members of his party arises inescapably from the fact that those members have called for his resignation as leader, and that on the eve of an election.”

160 After making the finding that the article defamed the plaintiff, the trial judge went on to consider the five false innuendoes pleaded by the plaintiff. He held that the article was not capable of conveying the first three, but did convey the other two, viz:

“(iv) That the plaintiff so lacked the confidence of substantial numbers of members of the New South Wales Country Party that they were prepared on the eve of a State election in which that Party was fielding candidates for parliamentary office to embarrass the said Party (a) by calling upon the plaintiff to resign as Leader of the said Party and (b) by themselves resigning from the said Party.(v) That the plaintiff had lost the confidence of substantial numbers of dairymen and members of the New South Wales Country Party who lived and carried on business in New South Wales in relation to the issue of the milk quota system.”

161 Various attacks were made by the defendant’s counsel on appeal on this conclusion by the trial judge. Blackburn and Northrop JJ rejected all of them, saying, at 632:

“Imputations (iv) and (v) are statements that the plaintiff lacked the confidence of a substantial number of members of the party and are thus attacks on the plaintiff’s competence as a politician and party leader. We agree with his Honour’s decision on these imputations.”

162 Brennan J, in a concurring judgment, concluded, at 636:

“The learned trial judge’s finding as to the imputation conveyed by the articles is supported by the terms of the articles understood in the light of the known circumstances. That finding was, in my view, fairly within the ambit of the pleading of imputations (iv) and (v).”

163 Their Honours all held that the report and pleaded imputations (iv) and (v) each imputed incompetence as a political leader to the plaintiff, even though in terms, they made no reference to any such deficiency on his part and that the trial judge was right in finding the report defamatory of the plaintiff because of the aspersion it cast upon his competence as a political leader.

164 Punch, too, demonstrates the error of the appellant in subjecting the text here complained of and the imputations pleaded and those found by the trial judge to an over meticulous scrutiny to identify what are said to be relevant differences.

165 All their Honours in Punch and all the members of the Court in Chakravarti dealt with the question of whether a pleaded false innuendo differs impermissibly from the meaning found by the judge to be conveyed by the text by testing whether the pleaded imputation could be said, in a quite broad way, to have captured the message in the text, ie, the impression the ordinary reader would gather from it, that may have been more accurately described by the judge. If the pleaded imputation does that, the plaintiff will be entitled to rely on the more accurately described meaning found by the judge to be conveyed by the text, even though that meaning departs in much more than a minor way from the imputation pleaded, and it will be difficult for the defendant to persuade the Court that it will be prejudiced if the plaintiff is allowed to rely on that different hearing. Of course, the further the pleaded imputation departs from what the judge thinks is the ordinary meaning conveyed by the text, the easier will it be for the defendant to show relevant disadvantage.

166 A considerable difference in meaning can be conveyed by saying that a woman is promiscuous rather than unchaste: the promiscuous Messalina and the unchaste Heloise have quite different sexual reputations. But the word “unchastity” is capable, depending on the context, of conveying a wide spectrum of meanings. As reference to both The Macquarie Dictionary, 3^rd ed, and The Oxford English Dictionary, 2^nd ed, show, unchastity is capable of connoting the state of not being chaste or virtuous, but also of connoting sexual behaviour of a much more repugnant kind: it can convey the meaning of lasciviousness or of being marked by lewdness or sexual excess, ie, something not very different from the primary meaning of “promiscuous” in a sexual context, which The Oxford English Dictionary gives as “indiscriminate in sexual relations”. The appellant so argued, though only to emphasise the difference between the notions of unchastity and promiscuity, on the one hand, and the allegedly non-defamatory imputation of limited pre-marital sexual activity, on the other, which it contended was all that the text conveyed and all that the judge found was conveyed about the woman.

167 It is not always clear what his Honour had in mind in holding that the text conveyed an imputation of unchastity though not what he regarded as the more serious imputation pleaded of sexual promiscuity. At various places in the reasons there are statements suggesting that his Honour was concerned with a publication imputing to the woman nothing more by way of her sexual behaviour than involvement in two pre-marital experiences. At other places, he acknowledges that the text is not confined to that but imputes to the woman much grosser sexual behaviour, viz, a preparedness to use her sexual favours to entice two men from one political party to the opposing party.

168 If his Honour did think that the article conveyed nothing more about the woman’s sexual conduct than that she had limited pre-marital sexual experience, he could only have arrived at that conclusion by ignoring the context in which the woman’s two liaisons are described. It is so plain that the article, in referring to the woman, is not directed to recounting pre-marital liaisons with her future husband and one other, but rather to the woman’s manipulative use of her sexual favours with those two men that I am not prepared to accept that the learned primary judge did seriously misread what the text had to say about the woman’s sexual conduct.

169 In my opinion, the better view of the learned primary judge’s reasons is that he did not find that the imputation of unchastity conveyed was that which the appellant conceded, viz, “an inference of pre-marital sex”, but rather a different imputation of much grosser sexual misconduct. He expressly found that “imputation B(i) is conveyed in relation to Mrs Abbott [and to Mrs Costello] through reading `sexually promiscuous’ as meaning `guilty of unchastity’ in the circumstances conveyed by the matter complained of” and that the imputation of unchastity was “a meaning relied on by the plaintiff in substance” in the pleaded imputation of sexual promiscuity. Elsewhere in his reasons, he correctly recognised that the reference in the text to the woman’s sexual conduct was made in a particular context that controlled the way that reference should be understood. He spoke of the ordinary reasonable reader inferring from the article that the woman “used the occasion of her sexual dalliance” with the two men to persuade each to change parties; in dealing with pleaded imputation B(ii), he said “[t]he true imputation is that the woman exploited the sexual liaison, or the prospect of it, to achieve the result of changing the man’s political allegiance”.

170 The sense in which his Honour used the term “unchastity” can also be gathered from his reasons for holding that the imputation of unchastity “in the circumstances conveyed by the matter complained of” was defamatory of the female plaintiffs. In this part of his judgment, he spoke of the woman’s conduct portrayed in the text as being sexually manipulative. He also referred to some comments by Hutley JA in Cairns & Morosi v John Fairfax & Sons Ltd [1983] 2 NSWLR 708 at 710 to the effect that the form and content of a publication, though alleging sexual misconduct, may so present the occasion of it that the reputation of the participants is enhanced, but said that “[i]t cannot, however, seriously be contended, in my view, that any such enhancement of reputation or standing has occurred in this case”.

171 In saying that the text imputed “unchastity” to the female plaintiffs, his Honour, I think, should be understood as having used that term to describe loose or shameless sexual conduct which did not qualify as promiscuity only because he considered that a woman would have to have more than two sexual partners before she could be said to be promiscuous. When he said pleaded imputation B(ii) expanded upon imputation B(i) because the latter already conveyed the imputation of “[m]ere `low moral standards'”, he was not, I think, using that as an expression synonymous with engaging in limited pre-marital sex, but rather as synonymous with the kind of sexual behaviour that is described as promiscuous. His Honour, in finding the imputation of unchastity in lieu of that of sexual promiscuity, was doing no kindness to the target of the text: he was only holding that, while the text did not convey the imputation of sexual promiscuity, it did convey a meaning of sexual misconduct close enough to promiscuity as not to alter the substance of the imputation pleaded.

172 The appellant’s attack on the verdict in favour of Mrs Costello and Mrs Abbott that was based on imputation B(i) therefore fails at the first hurdle.

173 But the appellant’s complaint that it was prejudiced by the way the learned primary judge resolved this issue is an empty one.

174 Senior counsel, who appeared for the appellant before this Court, asserted, in support of his argument that the learned primary judge found a significantly different imputation in the text from that pleaded, that if an imputation of unchastity based on very limited pre-marital sexual experience had been pleaded, the appellant may have conducted its case differently, both as to the defence it may have raised and on the question of damages.

175 It is not possible to accept that submission. The appellant argued that it was prejudiced in defending because, even though the statement was false in asserting that the woman had pre-marital liaisons with both male plaintiffs, if an imputation of unchastity had been pleaded, a defence of justification may have been available to it. This means that the appellant would or at least might have considered whether it could justify such an imputation of unchastity by proving that the female plaintiffs had each engaged in acts of pre-marital sex with other than the male plaintiffs. If an imputation of unchastity based solely on allegations of pre-marital sex with two named persons had been relied on, then the appellant may have been entitled to justify the defamation, so confined, in the way suggested in argument. The same may be true if an unqualified imputation of unchastity had been pleaded. See Maisel v Financial Times Ltd (No 1) (1915) 84 LJKB 2145.

176 But to deal with the appellant’s submission of prejudice on the basis that the imputation found was of unchastity in the sense of nothing more than a mild kind of unchaste behaviour, would be to consider the matter on a wholly fictitious basis.

177 For the reasons given, the imputation found by his Honour was not of unchastity in the abstract or in general, but unchastity with a quite specific connotation of sexual misconduct much more gross than conduct confined to limited pre-marital sex, ie, of conduct analogous to that which can be described as sexually promiscuous. The appellant had every opportunity, but did not attempt to justify the latter imputation. It has not therefore been deprived by the judge’s finding of unchastity, with the connotation I think he attached to it, of any opportunity that it might, even in theory, have utilised to justify that particular imputation.

178 In any event, the appellant ran its case at trial on the basis that the text conveyed nothing more than the imputation that the woman had limited pre-marital sexual experience before marriage with two men, one of whom she later married, and that imputation was incapable of being defamatory of her: counsel cross-examined and addressed on this basis. The appellant could also, if it wished, have pleaded that the text conveyed only the narrow imputation it relied on at trial and then sought to justify it: Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1. In Chakravarti, Brennan CJ and McHugh J, at 526 – 530; [6] – [13], held that such a course is not open to a defendant. But Gaudron and Gummow JJ, at 543, accepted it as a permissible one. The other member of the Court, Kirby J, did not consider the point. In this state of authority, the appellant could, if it wished, have raised by way of defence and persuaded the trial judge to entertain a plea of “Polly Peck” justification (see Polly Peck (Holdings) Plc v Trelford [1986] QB 1000). It did not attempt to do that.

179 In these circumstances, it is unconvincing for the appellant now to submit that, if only the plaintiffs had pleaded, or if only the judge had given the appellant notice of his intention to find, an imputation of unchastity with this particular narrow connotation, as the appellant says this finding should be understood, it would not have suffered the prejudice it claims to have suffered because of the finding on which the trial judge based his judgment for the female plaintiffs. The appellant can safely to be taken to have elected, from an early stage of the proceedings, not to justify the narrow imputation of unchastity which it so persistently but unsuccessfully sought to persuade the judge was the only one conveyed by the text about those women.

180 Its submission at trial on the quantum of damages was that even if the text was defamatory, the imputations were so inoffensive that no more than modest, compensatory damages only should be awarded to each plaintiff: the appellant at trial ran the very case on damages that it now claims it was deprived of the opportunity to try to make out.

181 The hollowness of the claim of prejudice now made is further exposed by the fact that the appellant conceded early in the trial that the publication was false both in that Mr Cavalier never said what it attributes to him and in that the statements of fact which it puts in Mr Cavalier’s mouth are untrue too. There is therefore no room left for the appellant to say that if an imputation of unchastity had been pleaded, the appellant may have sought to justify the publication, the only new defence mentioned by counsel that might have been raised. All that could have been justified was the truth of what Mr Cavalier is said to have told Mr Ellis. Yet the appellant conceded at the trial that that was false. Its concession, not relevantly qualified in any way, can only be understood as a concession of the falsity of whatever might be the ordinary meaning or meanings conveyed by the statements Mr Ellis put in the mouth of Mr Cavalier. Moreover, the appellant sought an advantage, in mitigating damages, from having made that concession. It is hopeless for it now to suggest that it lost the opportunity to justify the very imputation of mild unchastity, that it has long asserted was all that was capable of being conveyed by the words said to have been uttered by Mr Cavalier, which it deliberately and for its own forensic advantage acknowledged to be untrue.

182 Having held that the text imputed to each of the female plaintiffs unchastity connoting sexual conduct similar in character, though not in quantity to that which can be characterised as promiscuous, his Honour turned to whether that imputation was in fact defamatory of these particular plaintiffs. It appears from his reasons that his Honour found this question not free of difficulty.

183 Appellant’s counsel submitted that the ordinary reasonable Australian reader would not now regard it as defamatory of a woman to say that she was unchaste, in that she had engaged in limited pre-marital sex. But even if that is correct, the passage of text complained of goes far beyond conveying that relatively innocuous imputation.

184 In the course of considering whether the imputation was defamatory, his Honour, at some places in his reasons, seemed to think it necessary to consider whether an imputation of unchastity is defamatory, if all that is said about the woman is that she surrendered “her chastity not only to her future husband but also to another person”. At other places in the course of reasoning to his conclusion that it was defamatory, he makes it clear that he appreciated that the text conveys an imputation of much grosser sexual activity on the part of the woman than that. For example, his Honour said:

“The author himself invites the reader to treat the persons the subject of the anecdote with derision. That is partly because they are depicted not only as manipulative or manipulated, but also because they are falling below the preferred societal standard concerning extramarital sex.”

185 It is only the woman in the article who can be described, quite justly, as manipulative: it is the men who are manipulated. And the only way the article suggests the woman is manipulative is in the way she uses her sexual favours to lead both men into changing from the Labor Party to the Liberal Party.

186 Once the learned primary judge correctly recognised that the article described not just pre-marital sex, but sex being used repeatedly by the woman in this manipulative way, it would, in my opinion, have been perverse of him to have reached any conclusion but that the imputation in the particular sense found by him – that the woman was “`guilty of unchastity’ in the circumstances conveyed by the matter complained of” – was defamatory of each of the female plaintiffs.

Mrs Costello and Mrs Abbott’s Notices of Contention

187 As to the second imputation against each of the women plaintiffs set out in par B(ii) above, his Honour found that the text complained of contained a different imputation in that it was capable of conveying to the reader the meaning “that the woman exploited the sexual liaison, or the prospect of it, to achieve the result of changing the man’s political allegiance”. This is merely a paraphrase of the imputation pleaded; it does not, in my opinion, involve any significant departure from that imputation. It is a meaning conveyed by the text.

188 His Honour, however, held that though the text conveyed the imputation that the woman had “exploited” the sexual liaisons to change the two men’s political allegiances, that was not defamatory of the woman. He considered that it may have been defamatory if she were said to have commenced each liaison for that purpose. But he thought it would involve impermissible speculation to read the text in that way.

189 His Honour appears to have reached his conclusion that this imputation, though it or something very like it was conveyed, was not defamatory on the basis that the ordinary reader would not think less of a woman because she was politically committed and persuasive enough to be able to change two men’s political allegiances. His Honour, with respect, here ignores that which he has already found, viz, that the text identifies her willingness to use her sexual favours as that which made her persuasive: it was that, not the cogency of her arguments about matters of political principle, that she is said to have used to turn the two men from the Left to the Right of politics. If his Honour was prepared to find in the text, correctly in my opinion, an imputation involving the exploitation by the woman of the sexual liaisons in the way referred to, the conclusion that that imputation was defamatory of the woman is inescapable.

190 I would therefore uphold the challenge to this finding raised by the respondents’ notices of contention.

191 As to the imputation against each of the women plaintiffs set out in par B(iii), his Honour said that this added “an allegation of deliberation” to the imputation pleaded in par B(ii). That is, it conveyed that “the woman sought out sexual partners with a view to inducting them into the Young Liberals”. His Honour held that the text did not convey that meaning, which he considered “a forced or strained interpretation, capable of being held only by a process of speculation rather than by inference”. I do not think that there is anything in the imputation in B(iii) which justifies reading it as suggesting that the woman “sought out sexual partners” for any purpose. The allegation here is that the woman in question was “a political manipulator” because she used sex to recruit members of one political party into the other. In my opinion, this imputation is well capable of arising from the text: although the text refers to the woman engaging in only two sexual liaisons, she is said to have used both to recruit two Labor Party members into the Liberal Party. That is conduct well capable of conveying to the ordinary reader the imputation that the woman is a political manipulator.

192 Imputation B(iii) differs, in my view, from imputation B(ii) only in so far as the latter identifies her use of sex to lead men into changing political parties as evidencing the woman’s low moral standards, while the former identifies her use of sex to lead men into changing political parties as evidencing her character as a political manipulator.

193 Once it is accepted that imputation B(iii) is conveyed by the text, it is inescapable that such an imputation must be defamatory of the female plaintiffs.

194 The imputation in B(iv) appears to have been pleaded to cover the conclusion that the text might be read as meaning that both men only became political converts after the woman had married one of them, not before, when the sexual liaisons both occurred. I agree with the learned primary judge’s reasons for refusing to find that this imputation was conveyed: to read the text as suggesting that the defection was caused by, or followed, the marriage would involve impermissible speculation, ie, it would make the appellant liable for a meaning not clearly conveyed by that which it published.

The cases made by Mr Costello and Mr Abbott

195 In each action, the male plaintiff pleaded by way of false innuendo that the matter complained of in its natural and ordinary meaning was defamatory of him because it conveyed the following imputations:

“A. PARTICULARS OF NATURAL AND ORDINARY MEANINGSIN RESPECT TO FIRST NAMED PLAINTIFF

(i) The first named plaintiff so lacked personal integrity that, in return for sexual favours, he was willing to change his political allegiance.

(ii) The first named plaintiff’s political commitment was so shallow that for sexual favours he was willing to abandon his principles for sex.

(iii) The first named plaintiff was to be suspected of being of weak and unreliable character who allowed his political decisions to be dictated by his wife”.

196 Both these plaintiffs also plead the same imputations as true innuendoes and rely on the same extrinsic facts relied on by the female plaintiffs set out above. Each also pleads, in reliance on those extrinsic facts, a true innuendo that each in fact possessed the character defect which it is said by imputation A(iii) he was to be suspected of having.

The Judge’s decision on the cases of Mr Costello and Mr Abbott

197 His Honour declined to find that the text conveyed imputations A(i) or (iii) for the reason that each could be established only if the reader draws an inference from the text of some sort of bargaining process having been undertaken with sex being offered for political defection. That, his Honour held, would involve impermissible speculation by the reader. His Honour also declined to find that any of the true innuendoes were made out; despite what is said in the notice of contention, it is unnecessary to review his Honour’s rejection of this part of the male plaintiffs’ case: no argument was put to challenge it.

198 But his Honour found imputation A(ii) was conveyed by the text, saying “this is precisely what the matter complained of means”. In making this finding in relation to Mr Abbott, his Honour said:

“The anecdote is apparently perceived by the author as effective `to destroy him’; that is, to destroy the perception of Mr Abbott as a person intellectually and deeply committed to the Liberal Party. Instead, he is said to be a person who, as a result of a sexual liaison with a woman connected with the Young Liberals, or to facilitate that liaison, abandons his membership of the Labor Party and defects to the Young Liberals.”

199 In finding that imputation A(ii) was also made out in Mr Costello’s action, his Honour, while recognising that “the primary target of the author’s anecdote is Mr Abbott”, considered that “the imputation that strikes him, equally strikes Mr Costello”.

200 In making the finding that the pleaded imputation was conveyed by the text, his Honour said that the suggestion of “shallow political commitment” was one which does arise from the matter complained of “though I would read `for’ as meaning `by reason of'”. His Honour’s gloss on the imputation here pleaded may well have followed from his view that imputations A(i) and (iii) were not made out because he considered that they conveyed the suggestion that the defection was the quid pro quo for sex and the text could not be so read. But I do not think this gloss on imputation A(ii) is warranted: to say that the abandonment of principles was “for” sex does not necessarily suggest that the one was the agreed price paid for the other. Such a statement may mean only that the opportunity for a sexual liaison was enough to cause the man to abandon the political principles he hitherto held.

201 The message conveyed by the text about both male plaintiffs is that, although both are now prominent members of the Liberal Party, the political commitment of each is shallow, as is shown by the fact that each was once a member of the opposing party, but changed from the Left of politics to the Right for nothing more important than the opportunity for a sexual liaison. The pleaded imputation succinctly states that meaning. His Honour’s finding here in question was correct, even if his gloss on imputation A(ii) is ignored.

202 His Honour found this imputation defamatory because, in his view, it would subject each plaintiff to derision or ridicule, though not alleging reprehensible conduct. He held that, having regard to the fact that the reader is “positively invited by the preamble to the anecdote” to assume that it would be to the discredit of Mr Abbott as a Liberal thinker and having regard to the reasonable inference that might be drawn from the anecdote, the text “does in fact convey the imputation of shallow political commitment” to the ordinary reasonable reader. His Honour further held the text so understood was defamatory of each because it holds each up: “falsely, as persons of shallow political commitment [something] libellous of them irrespective of their political profiles”.

203 The appellant had conceded the falsity of what was said about both male plaintiffs. But despite his Honour’s reference here to falsity, that does not affect whether the statement complained of is defamatory, something recognised by the learned primary judge in another context in [92] of his reasons. The appellant, however, can get no comfort from this inappropriate reference to falsity.

204 In holding that this imputation was defamatory of both male plaintiffs, his Honour accepted the appellant’s argument that it was not defamatory to say of a person that they have changed their political commitment, even if influenced by their then current sexual partner to do so. His Honour, concentrating on the allegation of change of political commitment and ignoring the reason given for the change in both cases, said that should not lower either plaintiff in the eyes of ordinary members of society: “Many respected political figures have done so”, ie, changed their political allegiances. His Honour said that, while such a change would no doubt lower their reputations in the eyes of their former political colleagues, the ordinary reasonable reader would neither praise nor condemn such a change, which is “neither immoral, deceitful nor otherwise reprehensible”.

205 That may be true if the change is made for reasons which ordinary members of the community are prepared to accept are reasons of principle. It is very likely to provoke a quite different reaction by the general public to the defector in any other circumstances. The learned primary judge treated reference in the text to changing political parties in isolation from the immediate context, which purports to explain why that change occurred. The point of the passage in the text is that both male plaintiffs changed parties not on an issue of principle, but for nothing more than the opportunity for a sexual relationship with the woman.

206 In my opinion, to say of a politician that he changed his political allegiance from one party to the opposing party for a reason as trivial as the opportunity for a sexual liaison with a woman associated with the opposing party is plainly defamatory as tending to hold him up to derision and ridicule and so to lower the politician in the estimate of the ordinary reasonable member of society. The matter complained of is defamatory of both male plaintiffs. The sting is sharper for Mr Abbott because the article invites the reader to recall his reputation as a Liberal thinker – yet he only changed from one party to the opposing party in which he is now an intellectual leader because of the opportunity for sex.

207 His Honour said that the male plaintiffs’ political profiles were relevant only to damages, not to whether the anecdote in question was defamatory of them. I doubt that this is correct: the targets of the anecdote, as men who changed their political allegiance just for sex, are men who are now prominent Liberal politicians, not two nonentities. A person in an important political position would, I think, readily be regarded by the community as an object of ridicule, if not also of contempt, if he was said to have changed, even as a young man, from the opposing party to the party in which he has risen to prominence for a reason as trivial as sex: whether the community would react in the same way to a political unknown said to have made a similar change is less clear.

208 But the respondents did not challenge this particular finding and the learned primary judge did take the plaintiffs’ current political standing into account in assessing damages. The plaintiffs did not plead the political offices now held by the male plaintiffs as extrinsic facts. It is not necessary to express any opinion on whether the fact that both are now prominent members of the Liberal Government is a matter within the general knowledge of the ordinary reader, ie, “the hypothetical referee” referred to in the Reader’s Digest case, and as such a matter that referee would take into account in considering how the article affects the reputations of each.

Mr Costello and Mr Abbott’s Notices of Contention

209 In my opinion, imputation A(ii) does nothing more than draw from the text a more limited reflection on the male plaintiffs than that conveyed by imputation A(i): the latter asserts that the text conveys that the willingness of the men to change political allegiance for sex shows a want of personal integrity. The former asserts that that shows the shallowness of their political commitment. That is but an aspect of the want of personal integrity. Both imputations are conveyed by the text. Imputation A(i) is defamatory of each for the same reason that imputation A(ii) is defamatory of them.

210 Imputation A(iii) is but another manifestation of the shallow political commitment the subject of imputation A(ii). Both meanings are conveyed by the text, something recognised by the learned primary judge. His Honour, however, concluded that imputation A(iii) was not made out because the text does not convey the notion of the woman extracting from the man the political response she required in return for sex: I do not think either the text or imputation A(iii) conveys any such meaning. Once it is accepted that imputation A(iii) arises, its defamatory nature is manifest.

211 I would uphold the complaints made in the notice of contention about the learned primary judge’s rejection of the male plaintiffs’ cases in so far as they were based on imputations A(i) and (iii).

Damages

212 In my opinion, the only issues raised by the appellant that are of any moment are that the learned primary judge was wrong in allowing anything by way of ordinary compensatory damages in respect of the appellant’s failure to apologise and that he was also in error in that he allowed twice over for the appellant’s failure to apologise – once in the awards to each respondent of ordinary compensatory damages and again in the awards to each of aggravated compensatory damages. These two issues apart, I consider that the reasons given by the learned primary judge for his awards show that they are well within the range of damages appropriate to the wrongs done by the appellant to the respondents.

213 In the course of dealing with damages, the learned primary judge examined in detail what the appellant did “by way of apology and mitigation”. He was highly critical of the appellant’s open offer to the respondents to publish not an apology but “an explanatory statement”, against the background of the appellant’s conduct after publication. His Honour concluded that the respondents were entitled to reject this offer as inadequate and that “there was a continued and unreasonable failure to apologise as well as a failure, otherwise, to make amends for the serious wrong done to the plaintiffs”. Nor did his Honour accept that the appellant’s action in recalling, without any relevant public explanation, unsold copies of the book from book sellers and copies from libraries operated to mitigate to any significant degree the damages to which publication of the book exposed the appellant.

214 His Honour took the view that failure to apologise was relevant to both ordinary compensatory damages and to aggravated compensatory damages. He said:

“[304] The other matter relied upon, both as to ordinary compensatory damages, and aggravated damages, is failure to apologise. Whatever may be the case with aggravated damages, to which I will later refer, a plaintiff’s resentment at a failure of a defendant to offer an adequate apology will properly add to the hurt of the plaintiff’s feelings: see Rantzen v Mirror Group Newspapers (1986) Ltd [1993] EWCA Civ 16; [1994] QB 670; Clark v Ainsworth (1996) 40 NSWLR 463. In this case, I am satisfied that the defendant’s failure did add to the hurt of these plaintiffs.”

215 In explaining how he arrived at the awards he made to each respondent by way of ordinary compensatory damages, he did not expressly refer to making an allowance for the failure to apologise. But it is clear enough from the last sentence in this part of his reasons, that his Honour did include such an allowance in this part of his award to each.

216 In the course of assessing the aggravated compensatory damages which he awarded to each respondent, his Honour said:

“[413] A failure to enquire before publication or to apologise after it may also be relied upon as a circumstance of aggravation. However, that consideration may not, as I have said, increase damages beyond the fair limits of compensation. Care must be taken not to doubly compensate a plaintiff. Hurt to feelings, for example, may have been partially compensated for before the question of aggravation arises. It may warrant an increase in damages only insofar as the aggravating conduct lacked justification, propriety or bona fides”.

217 It is clear that one of the several matters which his Honour did consider justified an award to each respondent of aggravated compensatory damages was the appellant’s “Failure properly and promptly to fully apologise”. His Honour said:

“[433] …The failure itself, of course, also forms part of the award of ordinary compensatory damages adding to injury to feelings and, perhaps, to the damage to reputation in some cases.[434] If, in addition to being inadequate or deficient or grudging or belated, the failure fully and unqualifiedly to apologise is `improper, unjustifiable and/or lacking bona fides’, then an additional sum for aggravated damages may be warranted.”

218 His conclusion here, fully justifiable in my opinion, was:

“[438] …I consider that the failure promptly and frankly to admit the truth – that the story was false – whilst no doubt within its legal rights, was, nevertheless, `unjustifiable’.”

219 There is authority for his Honour’s approach in allowing for the respondent’s failure to apologise in both his awards by way of ordinary compensatory damages and of aggravated compensatory damages. In Clark v Ainsworth (1996) 40 NSWLR 463, the Court of Appeal held that an allowance could be made in the award of ordinary compensatory damages for the defendant’s failure to apologise for the reason that “the harm from the original publication may be prolonged and intensified by the absence of apology” (466 and see also 474). The Court also recognised that an additional allowance could properly be made by way of aggravated compensatory damages for the defendant’s failure to apologise, provided such a failure involved conduct by the defendant that lacked bona fides or was otherwise improper or unjustifiable. Ibid at 465 and 473. The Court considered that Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 did not stand in the way of such an approach.Clark v Ainsworth was applied by the Victorian Court of Appeal in Cooke and The Australian Liquor, Hospitality and Miscellaneous Workers’ Union v Wood (unreported, Ormiston, Charles and Batt JJA, 11 December 1997). Charles JA, with whom the other members of the Court agreed, there referred to what Sheller JA said in Clark v Ainsworth at 468 about the circumstances in which both ordinary compensatory damages and aggravated compensatory damages could be awarded in defamation in respect of the defendant’s failure to apologise and said:

“His Honour’s careful examination of the relevant cases, and his conclusions, with all of which I would, with respect, agree, demonstrate first that Cooke’s failure to apologise was a matter that the judge was entitled to take into account as something which extended the vitality and capability of the publication to cause injury to Wood [ie, by way of ordinary compensatory damages]; and, secondly, that, if the failure to apologise was part of the course of conduct on the part of Cooke and the Union, which lacked bona fides or was otherwise improper or unjustifiable, then it was permissible for the judge to take it into consideration on the issue of aggravated damages.”

220 I respectfully agree with these two decisions as correctly stating the law.

221 Nor was there any “doubling up” of damages in respect of the failure to apologise. Although his Honour did allow something in his awards of both ordinary compensatory and aggravated compensatory damages to each respondent for this reason, it is clear from his Honour’s express comments that he was fully alert to the need to avoid giving the respondents double compensation by including in the award of aggravated compensatory damages an excessive allowance for the failure to apologise. The very modest amounts which his Honour allowed by way of aggravated compensatory damages in respect not only of the appellant’s failure to apologise, but a range of other conduct dealt with by the judge, in my opinion, shows that his Honour gave effect to his recognition of the need to avoid any doubling up of damages here.

222 I would dismiss both appeals, with costs.

Associate:

Dated: 10 November 1999