HIGH COURT OF AUSTRALIA
BRENNAN CJ,
GAUDRON, McHUGH, GUMMOW AND KIRBY JJ
MANOBENDRO CHAKRAVARTI APPELLANT
AND
ADVERTISER NEWSPAPERS LIMITED RESPONDENT
Chakravarti v Advertiser Newspapers Limited (A41-1996)
[1998] HCA 37
20 May 1998
ORDER
Appeal allowed with costs.
Cross-appeal dismissed with costs.
Set aside the orders of the Full Court of the Supreme Court of South Australia.
Remit the appellant's cross-appeal to the Full Court to that Court for further hearing and determination in accordance with the reasons of this Court.
Remit Ground 6 of the respondent's appeal to the Full Court to that Court for hearing and determination in accordance with the reasons of this Court. Otherwise dismiss the appeal to that Court with costs.
On appeal from the Supreme Court of South Australia
2.
Representation:
T A Gray QC with P A Heywood-Smith and R J Bradshaw for the appellant (instructed by Johnston Withers)
B R McClintock SC with A R Harris and G O'L Reynolds for the respondent (instructed by Lawson Downs)
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Chakravarti v Advertiser Newspapers Limited
Defamation - Defence of fair and accurate report - Meaning to be determined before considering fairness of report - Whether newspaper report of meeting of Royal Commission fair and accurate - Whether letter or statement by way of contradiction or explanation is reasonable which inaccurately controverts the fairness or accuracy of report - Whether assessment of reasonableness of letter or statement by way of contradiction confined to consideration of facts known at time of writing.
Defamation - Practice - Pleadings - Whether plaintiff should plead all distinct meanings to be relied on - Whether the defendant can plead different meanings and justify them - Whether the plaintiff should be confined to meanings pleaded - Relevance of considerations of delay, disadvantage, prejudice and embarrassment of fair trial of action - Reliance by plaintiff on different meanings pleaded by defendant - Reliance by plaintiff on meanings comprehended in or less injurious than meanings actually pleaded - Reliance by parties on variants of meanings pleaded.
Defamation - Common law privilege - Whether privilege extends to publication of a fair report of the proceedings of a royal commission.
Damages - Defamation - Applicability to report that is not fair or accurate of approach of subtracting effect of non-actionable parts of defamatory article from defamatory parts in calculating damages - Requirement of special damage in law of slander - Evidence of general loss of business as proof of special damage - Lost earning capacity as special damage in defamation law - Recovery for lost earning capacity productive of actual loss.
Civil Procedure - Pleadings - Defence to respond to Statement of Claim - Embarrassment arising from introduction of a false issue.
Words and Phrases: "fair and accurate report", "meeting of any royal commission", "reasonable letter or statement by way of contradiction or explanation".
Wrongs Act 1936 (SA), s 7(1).
Supreme Court Rules (SA), r 46.19(1).
BRENNAN CJ AND McHUGH J. Subject to the two matters which appear below, we agree with the orders proposed by Gaudron and Gummow JJ and the reasons which they give for making those orders.
The first matter is that, in our view, where a defendant pleads a defence of fair and accurate report in answer to an action for defamation, it is necessary for the tribunal of fact to determine what meanings the publication has before it determines the fairness of the report. The reason for that is that, until the defamatory meaning of the publication is determined, it is not possible to know whether the report is an answer to the plaintiff's claim. A defendant does not lose a defence of fair and accurate report because it is inaccurate in respect of a distinct defamatory imputation which the plaintiff does not sue upon. A plea of fair and accurate report is a plea in confession and avoidance of the plaintiff's claim. Until the plaintiff's claim is defined, the tribunal of fact cannot know what the plea confesses and avoids. Nor can the Court determine whether the report in defaming the plaintiff is nevertheless fair. As Herron CJ and Ferguson J pointed out in Thom v Associated Newspapers Ltd[1]:
"The report need not be verbatim, but to be privileged it must accurately express what took place. Errors may occur; but if they are such as not substantially to alter the impression that the reader would have received had he been present at the trial, the protection is not lost. If, however, there is a substantial misrepresentation of a material fact prejudicial to the plaintiff's reputation, the report must be regarded as unfair and the jury should be so directed." (emphasis added)
[1](1964) 64 SR(NSW) 376 at 380.
In Anderson v Nationwide News Pty Ltd[2], Asprey JA pointed out:
"A report which contains an untrue statement in a material particular of the result of judicial proceedings prejudicial to a plaintiff's reputation must be regarded as an unfair report of those proceedings as far as that plaintiff is concerned". (emphasis added)
[2](1970) 72 SR(NSW) 313 at 318.
Where a defamatory imputation is alleged to arise out of a word or phrase or its implication, it may make little practical difference whether the tribunal considers the fairness of the report before it considers the meaning of the word or phrase. But where, as is often the case, the imputation is an inference drawn from various paragraphs or sections of a publication, it invites error, in our view, to attempt to determine whether the report is fair before determining the defamatory imputation.
In this case, however, both imputations pleaded by the plaintiff in respect of the first article were made out and, for the reasons given by Gaudron and Gummow JJ, the report did not fairly and accurately describe the proceedings in so far as the report gave rise to the imputations pleaded and proved. We also agree with the judgment of Gaudron and Gummow JJ as to the imputations which arise in respect of the second article and that the article was not a fair report of the proceedings in so far as the report gives rise to those imputations.
The second matter arising out of the judgment of Gaudron and Gummow JJ concerns a defendant pleading and justifying meanings which the plaintiff has not pleaded. Since the decision of the English Court of Appeal in Polly Peck Plc v Trelford[3], courts in England and Australia have sanctioned a practice of permitting a defendant to plead a meaning different from that contended for by the plaintiff and then justifying that different meaning[4].
[3][1986] QB 1000.
[4]Gumina v Williams (No 2) (1990) 3 WAR 351; Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1; Viscount De L'Isle v Times Newspapers Ltd [1988] 1 WLR 49; [1987] 3 All ER 499; Prager v Times Newspapers Ltd [1988] 1 WLR 77; [1988] 1 All ER 300; Morrell v International Thomson Publishing Ltd [1989] 3 All ER 733; Control Risks Ltd v New Library Ltd [1990] 1 WLR 183; [1989] 3 All ER 577.
The authority for this practice is found in the judgment of O'Connor LJ in Polly Peck[5] where his Lordship said:
"In cases where the plaintiff selects words from a publication, pleads that in their natural and ordinary meaning the words are defamatory of him, and pleads the meanings which he asserts they bear by way of false innuendo, the defendant is entitled to look at the whole publication in order to aver that in their context the words bear a meaning different from that alleged by the plaintiff. The defendant is entitled to plead that in that meaning the words are true and to give particulars of the facts and matters upon which he relies in support of his plea, as he is required to do by RSC, Ord 82. It is fortuitous that some or all of those facts and matters are culled from parts of the publication of which the plaintiff has not chosen to complain.
Where a publication contains two or more separate and distinct defamatory statements, the plaintiff is entitled to select one for complaint, and the defendant is not entitled to assert the truth of the others by way of justification.
Whether a defamatory statement is separate and distinct from other defamatory statements contained in the publication is a question of fact and degree in each case. The several defamatory allegations in their context may have a common sting, in which event they are not to be regarded as separate and distinct allegations. The defendant is entitled to justify the sting, and once again it is fortuitous that what is in fact similar fact evidence is found in the publication.
What I have said in the context of justification can be applied by a parity of reasoning to fair comment, subject to what I say at the end of this judgment."
[5][1986] QB 1000 at 1032.
With great respect to his Lordship, such an approach is contrary to the basic rules of common law pleadings and in many contexts will raise issues which can only embarrass the fair trial of the action. Leaving aside technical pleas such as pleas in abatement, defences are either by way of denial or confession and avoidance. A defence which alleges a meaning different from that of the plaintiff is in the old pleading terminology an argumentative plea of Not Guilty. Under the principles of pleading at common law, it could tender no issue and would be struck out as embarrassing. Under the modern system, articulating an alternative meaning could conceivably make explicit the ground for denying a pleaded imputation. But it would be only in such a case that a defendant's plea of a new defamatory meaning might be supportable as a plea which prevents the plaintiff being taken by surprise. A plea of justification, fair comment or qualified privilege in respect of an imputation not pleaded by the plaintiff does not plead a good defence. It is immaterial that the defendant can justify or otherwise defend the meaning which it attributes to the publication. In our view, the Polly Peck defence or practice contravenes the fundamental principles of common law pleadings. In general it raises a false issue which can only embarrass the fair trial of the actions. This was the view of the Court of Common Pleas in Bremridge v Latimer[6]. In Bremridge[7] Byles J, a common law judge of great authority, said:
"The law is plain that, if you wish to dispute the sense given to the words in the libel, you must do so by the plea of not guilty, and, if you wish to justify, you must confess and avoid. ... Now, the issue raised by these pleas is plainly calculated to prejudice the plaintiff, who has a right to have the charge of 'treachery' tried, and not to be compelled to take part in an irrelevant inquiry."
[6](1864) 12 WR 878.
[7](1864) 12 WR 878 at 879-880.
A similar view was taken by Blackburn J, another great common law judge, in Watkin v Hall[8] where his Lordship said:
"I think the decision in Bremridge v Latimer correct, because in that case a portion of a newspaper article being set forth in the declaration, with an innuendo, the defendant endeavoured to shew that if the whole article was taken, the plaintiff would have had a different cause of action, and he sought, by his plea, to set out the whole article, and, so, to justify it as true in fact. That was a matter utterly irrelevant to the question at issue, whether he had published the libel charged in the declaration. The Court of Common Pleas refused to allow the plea."
[8](1868) LR 3 QB 396 at 402.
Bremridge was applied by the Court of Appeal of New Zealand in Templeton v Jones[9]. Cooke J, speaking on behalf of the Court, said[10]:
"In the present case, however, the allegation that the plaintiff despises Jews is not reasonably capable of being treated as other than a distinct charge. It is obviously different, for instance, from the allegation that he despises women. It is true that many of the allegations in the passage quoted in para 5 of the statement of claim are variations on or illustrations of a theme: namely that the plaintiff indulges in the politics of hatred. They are specific and severable allegations nonetheless.
It is important to note that the plaintiff is not suing on all the words set out in para 5. In para 6 it is made clear that only the allegation about Jews is sued on. The defendant on the other hand, as is made plain by the opening words of para 7 of the amended statement of defence, wishes to prove that all the words set out in para 5 of the statement of claim are true. That is not permissible, because of the limited nature of the plaintiff's complaint."
[9][1984] 1 NZLR 448.
[10][1984] 1 NZLR 448 at 452.
This passage highlights what we regard as the fundamental defect in the reasoning in Polly Peck. Cooke J rejected the notion that the defendant can take severable parts of a publication each containing defamatory imputations, link them together, and give the publication a meaning at a sufficiently high level of abstraction to subsume the meanings of the severable parts. That is, a defendant cannot take a part of an article that wrongly alleges that the plaintiff has convictions for dishonesty and a part that imputes that the plaintiff has defrauded shareholders, assert that the article means that the plaintiff is dishonest, and then justify that meaning, perhaps by proving that the plaintiff had in fact defrauded the shareholders. On that hypothesis, it would be outrageous if the defendant could obtain a finding that the article was true in substance and in fact when it plainly was not. Yet that is the sort of finding that must result from applying the central proposition of Polly Peck. That proposition is that[11]:
"The several defamatory allegations in their context may have a common sting, in which event they are not to be regarded as separate and distinct allegations. The defendant is entitled to justify the sting".
[11][1986] QB 1000 at 1032.
This proposition is contrary to the principle stated by Gatley on Libel and Slander[12] which was approved by Evatt J in Howden v "Truth" and "Sportsman" Ltd[13]. That principle is:
"The plea of justification must be not only as broad as the literal language of the libel, but as broad as the inferences of fact necessarily flowing from the literal language."
[12]2nd ed (1929) at 551.
[13](1937) 58 CLR 416 at 425.
No injustice is done by holding a defendant to the fundamental principles of pleading by requiring a defence to respond to the statement of claim. The Rules of the Supreme Court of South Australia require that a defence "specifically admit or deny every allegation of fact (including particulars) in the pleading to which the defence ... relates, and allegations which are not specifically denied shall be deemed to be admitted"[14]. The rules thus confirm the common law principle that the defence must plead to the allegations in the statement of claim. Although the rules also require that a party should "specifically plead any fact or matter which raises issues of fact or any mixed question of fact and law not arising out of the preceding pleading"[15], the issues to which this rule applies do not include issues which are irrelevant or embarrassing.
[14]r 46.12(2), but cf r 46.21 relating to close of pleadings.
[15]r 46.12(4)(c).
A distinct but related question is the effect of a plaintiff's pleading or failing to plead an imputation by way of a false innuendo. Rule 46.19 of the Supreme Court Rules contains a number of provisions specific to pleadings in actions for defamation. Sub-rule (1) reads as follows:
"In an action for defamation where the plaintiff alleges that the words or matters complained of were used in a defamatory sense other than their ordinary meaning he shall give particulars of the facts and matters on which he relies in support of such sense."
There is no rule which expressly requires a plaintiff to give particulars when the plaintiff relies simply on the "ordinary meaning" of the article on which the claim is based. Before the enactment of rules relating to the pleading of false innuendoes in New South Wales, Wallace P said in Packer v Mirror Newspapers Ltd[16]:
"I am of opinion that the pleader has acted with perfect propriety and quite sufficiently in setting forth the whole of the article complained of without assigning any innuendoes and simply relying on the natural wording of the words used and, in other words, he claims - correctly enough I think - that the meaning thereof is patent and free from subtleties or necessities for background information or the like."
Wallace P concluded by saying[17]:
"it is possible the wording of s 61[18] could be used to obtain particulars, if required, or it may even be that some rule of court might be helpful to meet the case of a long defamatory article which did not, however, require an innuendo, but all that is for another day."
[16](1969) 90 WN (Pt 1) NSW 308 at 309-310.
[17](1969) 90 WN (Pt 1) NSW 308 at 310.
[18]Common Law Procedure Act 1899 (NSW). Section 61 (now repealed) read:
"If any pleading is so framed as to prejudice, embarrass, or delay the fair trial of the action, the opposite party may apply to the Court or a Judge to strike out or amend such pleading, and the Court or Judge shall make such order respecting the same and also respecting the costs of the application as the Court or Judge thinks fit."
Statute apart, the reason why particulars may be required where the plaintiff intends to rely on the ordinary meaning of the words complained of is the need to define issues when more than one meaning may be inferred from the words used in the material complained of. In Lewis v Daily Telegraph Ltd, Lord Reid said[19]:
"What the ordinary man would infer without special knowledge has generally been called the natural and ordinary meaning of the words. But that expression is rather misleading in that it conceals the fact that there are two elements in it. Sometimes it is not necessary to go beyond the words themselves, as where the plaintiff has been called a thief or a murderer. But more often the sting is not so much in the words themselves as in what the ordinary man will infer from them, and that is also regarded as part of their natural and ordinary meaning."
Herein lies a difficulty, as Lord Reid perceived[20]:
"Ordinary men and women have different temperaments and outlooks. Some are unusually suspicious and some are unusually naive. One must try to envisage people between these two extremes and see what is the most damaging meaning they would put on the words in question."
[19][1964] AC 234 at 258.
[20][1964] AC 234 at 259.
As "the most damaging meaning" or meanings may be a matter in dispute, it is oftentimes necessary for a plaintiff to provide particulars of the meaning or meanings on which reliance will be placed. The necessity arises because the defendant must be able to plead not only a denial of the defamatory meaning assigned by the plaintiff but (if so advised) a plea of confession and avoidance (fair report, justification or qualified privilege). By requiring the plaintiff to plead meaning or meanings upon which the plaintiff relies, the defendant is enabled to plead a defence to the particular defamation that is alleged. Then, when the action comes to trial, the meanings assigned by the plaintiff may be needed to allow the judge to identify the issues for determination: first, whether evidence is relevant to and admissible on an issue for determination and, secondly, whether the article pleaded by the plaintiff is capable of bearing the defamatory meanings which the plaintiff has assigned and which the jury is asked to find. Unless particulars be given of the meanings on which the plaintiff intends to rely, a bare pleading of the words complained of may prejudice or be embarrassing to the defendant in pleading a denial of the defamation or a plea of confession and avoidance and may prejudice the trial judge's ability to determine objections to evidence or to rule effectively on the meanings which may be put to, and be found by, the jury.
Where the plaintiff pleads a false innuendo, the plaintiff gives a shape and focus to the cause of action. If the trial judge rules that the matter complained of is capable of giving rise to the meaning pleaded, the first question for the jury is whether the meaning is made out. If it is, and only if it is, questions then arise as to whether the defendant has a defence to that publication.
The courts require plaintiffs to plead false innuendoes where the pleading of an innuendo is needed to define the issues for determination[21]. It would be an invitation to return to the days of "trial by ambush" in defamation actions if courts did anything which might discourage plaintiffs from pleading such innuendoes. One of the vices of the old forms of pleading was that a plaintiff relying on a false innuendo could go to trial simply by relying on the publication without being required to specify the particulars. At the trial, defendants sometimes found themselves in the invidious position of preparing a case that did not arise because the plaintiff did not rely on meanings which the defendant assumed would be relied upon. In such a case, the defendant may have spent much time, effort and money in marshalling the proofs of a defence which did not arise. Worse still from the defendant's point of view was that the plaintiff might be able to persuade the trial judge to let a meaning go to the jury which the defendant had thought could not reasonably arise. The defendant might then find itself in a position where, without an adjournment (often requiring the discharge of the jury and an order paying the costs of a part-heard but lengthy trial), the defendant would not have available to it defences that were in fact available to it.
[21]Allsop v Church of England Newspaper Ltd [1972] 2 QB 161.
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.
In Slim v Daily Telegraph Ltd[22], Diplock LJ and Salmon LJ expressed views which, at least textually, appear to conflict. Salmon LJ said that a plaintiff is bound by his or her pleading - "otherwise it may prove to be nothing but a snare for the defendant"[23]. Diplock LJ said that a plaintiff could rely on any meaning which was less injurious than the pleaded meaning. In Sungravure Pty Ltd v Middle East Airlines Airliban SAL[24], Stephen J referred to both views, saying that the plaintiff "was not free thereafter to rely upon some quite different meaning which he might seek to read into the words complained of ... at least not one more injurious".
[22][1968] 2 QB 157.
[23][1968] 2 QB 157 at 185.
[24](1975) 134 CLR 1 at 14.
The proposition advanced by Salmon LJ in Slim is too rigorous: it appears to sacrifice form to substance and to elevate minute differences from the meaning pleaded to the status of a substantial defence. On the other hand, a less injurious meaning than the meaning pleaded is not always without significance as Diplock LJ seems to imply. A defendant who could not justify or otherwise defend a publication having the meaning pleaded by the plaintiff might have been able to justify or otherwise defend a defamatory publication having a less injurious meaning. But a different nuance of meaning from the meaning pleaded may go to, and be found by, the jury provided it is not unfair to the defendant to allow the plaintiff so to depart from the meaning pleaded.
Thus, Fox J in Hadzel v De Waldorf[25] said that:
"a judge can find for the plaintiff on a nuance of meaning not put by him, but it would be a strange reversal of ordinary practice, and possibly very unfair to one or both parties, for the judge to find that the plaintiff was defamed in some way not averred by the plaintiff." (emphasis added)
The critical consideration is whether it is prejudicial, embarrassing or unfair to the defendant to allow a plaintiff to amend the statement of claim or otherwise to raise as an issue or to seek a verdict on the basis that the matter complained of bears a meaning different from the meaning previously pleaded or relied on by the plaintiff.
[25](1970) 16 FLR 174 at 182.
In Prichard v Krantz[26], King CJ, with whom Millhouse and Prior JJ agreed, was of the view that:
"a plaintiff is in some sense bound by the meanings which he attributes to the words in his statement of claim. ... An allegation of the meanings to be attributed to the words used ... serves no good purpose, and may perhaps be a trap for a defendant, if those meanings can be ignored at trial and other meanings relied upon. The purpose of pleadings and of particulars is to define the issues at trial and to give the opposing party fair notice of the case to be made against him. A defendant needs to know the meanings attributed to the words by the plaintiff in order to decide whether to assert that the words do not bear those meanings, to justify the meanings or to apologise.
A plaintiff would not, of course, be confined to a precise nuance and shade of meaning pleaded or particularized. Modern judges, in any class of case, have a considerable discretion as to the rigour with which they will confine a case presented by a party to the precise language of the pleadings. In many cases, moreover, the more serious allegation can be regarded as including the less serious. In that sense, the court is free to attribute to the words a less injurious meaning than that attributed to them in the pleading. ... It seems to me, however, that it would be contrary to the purpose of pleadings and particulars if a plaintiff could obtain a judgment upon the basis of a meaning of the words used which was not merely a less serious form of the imputation pleaded, but amounted to an imputation of a substantially different kind."
Similarly, Mahoney ACJ in Crampton v Nugawela[27] said:
"where the imputation specified by the plaintiff is not the imputation made by the published material, the plaintiff will fail, even though another and different imputation was made by the published material and the plaintiff could have pleaded that imputation.
But, in my respectful opinion, that should not mean that the plaintiff should fail where the published material is before the jury, the imputation which it makes may be seen from it, and the plaintiff's error is merely that his pleading of the imputation errs in that it does not with complete accuracy state in the pleading the imputation that is in the published material. ... Where ... the complaint is not that the published material conveys one imputation and the pleading pleads a quite different one, but that the pleader has erred in attempting to translate the imputation from the published material to the pleading, I do not think the law to be that a plaintiff's claim must necessarily fail. It would be sad if the law held the plaintiff's claim defeated because, in pleading, he did not precisely translate from the letter to the pleading the imputation as precisely as should have been done."
[26](1984) 37 SASR 379 at 386. And see Taylor v Jecks (1993) 10 WAR 309 at 317-318.
[27](1996) 41 NSWLR 176 at 183.
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, oftentimes, merely a less serious defamation - the different defamatory meaning may be found by the jury.
The defendant suffered no prejudice, embarrassment or unfair disadvantage in this case. The plaintiff was entitled to a favourable finding on the meanings attributed to the first and second articles by Gaudron and Gummow JJ.
Orders
We agree with the orders proposed by Gaudron and Gummow JJ.
GAUDRON AND GUMMOW JJ. The appellant, Manobendro Chakravarti, sued the respondent, Advertiser Newspapers Limited ("the Advertiser"), for defamation in the Supreme Court of South Australia. He sued on two separate articles published in The Advertiser newspaper, the first on 15 July and the second on 18 July 1992 ("the first article" and "the second article" respectively). The articles were based on evidence given to the Royal Commission established in March 1991 to investigate the near collapse of the State Bank of South Australia ("the State Bank").
The first article was based on oral evidence given to the Royal Commission by Mr David Simmons, a former chairman of the State Bank. The second was based on a file note made by Mr Simmons and received in evidence by the Royal Commission. The oral evidence and the file note were directed to the affairs of Beneficial Finance Corporation Limited ("Beneficial"), a subsidiary of the State Bank, and four of Beneficial's former senior executives. Mr Chakravarti was one of those executives.
The pleadings
In his Amended Statement of Claim, Mr Chakravarti set out those parts of the articles upon which he sued, assigning particular meanings to each article. The relevant parts of the articles and the pleaded meanings will be set out later in these reasons. The Advertiser contended in its Third Further More Explicit Defence ("the Defence") that the articles did not bear the meanings pleaded or any other meaning defamatory of Mr Chakravarti. Alternatively, it pleaded that the articles each bore a specific meaning different from those pleaded in the Amended Statement of Claim and that, so understood, they were true in substance and in fact. It also pleaded that each article was a fair and accurate report of the proceedings of the Royal Commission, and, thus, privileged both under s 7 of the Wrongs Act 1936 (SA) ("the Act") and at common law.
So far as is presently relevant, Mr Chakravarti's Fourth Further Amended Reply ("the Reply") denied that either article was a fair and accurate report of the proceedings of the Royal Commission and asserted that, in any event, the Advertiser could not claim protection under s 7 of the Act because it failed to publish letters he had written by way of reply as required by that section. The terms of s 7, so far as they are relevant, will be set out later in these reasons.
The proceedings
The matter came on for hearing before Cox J who, in accordance with South Australian practice in these matters, sat without a jury[28]. Without making specific findings as to the meanings pleaded in the Amended Statement of Claim, his Honour held that both articles bore imputations which were defamatory of Mr Chakravarti[29]. He further held that the Advertiser had not made good its defences of justification and fair report[30]. In the result, damages were awarded in the sum of $225,000 for the first article and $25,000 for the second, $175,000 being apportioned as "economic loss" or "special damages" for both articles and $75,000 as general damages. Interest was allowed in the sum of $18,000 and judgment entered for $268,000[31].
[28]Chakravarti v Advertiser Newspapers Limited (1995) 181 LSJS 218.
[29](1995) 181 LSJS 218 at 230, 235.
[30](1995) 181 LSJS 218 at 225, 234.
[31](1995) 181 LSJS 218 at 240.
The Advertiser appealed from the decision of Cox J to the Full Court. Mr Chakravarti cross-appealed on the ground that the amount awarded by way of general damages was manifestly inadequate. The Full Court held[32], by majority (Perry and Williams JJ, Doyle CJ dissenting), that Mr Chakravarti was not entitled to succeed on the first article because it was not capable of bearing the meanings pleaded in his Amended Statement of Claim[33]. However, the Full Court was unanimous in the view that he was entitled to succeed on the second[34]. It was held, again unanimously, that, although he was entitled to succeed on that article, he could recover damages only in respect of the imputations which arose from those parts which did not fairly report the proceedings of the Royal Commission[35]. In the result, the Advertiser's appeal was allowed in part, Mr Chakravarti's cross-appeal was dismissed, and a verdict of $40,000 plus interest[36] substituted for that entered at first instance. Mr Chakravarti now appeals to this Court and the Advertiser cross-appeals[37].
[32]Chakravarti v Advertiser Newspapers Limited (1996) 65 SASR 527.
[33]Williams J also held that the Advertiser was entitled to succeed on its defences of justification and fair report: (1996) 65 SASR 527 at 559-560.
[34](1996) 65 SASR 527 at 550-551 per Doyle CJ, 557 per Perry J, 560-561 per Williams J.
[35](1996) 65 SASR 527 at 552 per Doyle CJ, 557 per Perry J, 561 per Williams J.
[36]Interest was allowed in the sum of $9,900 to the date at which judgment was entered by Cox J.
[37]Special leave to cross-appeal was granted during the hearing of the appeal.
The issues
Six distinct issues are involved in this appeal. The central issue is whether the articles fairly and accurately report the proceedings of the Royal Commission. That issue is raised in respect of the first article by a Notice of Contention filed on behalf of the Advertiser and, in respect of the second, by its Notice of Cross-Appeal. If the Advertiser succeeds to any extent on that issue, it will be necessary to consider whether it can rely on s 7 of the Act. If it cannot, there is a further question whether it can rely on a like common law defence.
If the question of fair and accurate report is decided against the Advertiser in respect of either article, it will be necessary to consider whether, and to what extent, that article bears the meanings pleaded in the Amended Statement of Claim. That issue is presented in respect of the first article and the first meaning pleaded with respect to the second article by Mr Chakravarti's Notice of Appeal. Certain of the other meanings pleaded with respect of the second article are put in issue by the Advertiser's Notice of Cross-Appeal. If the first article does not bear the meanings pleaded, there is a further issue whether it bears some other defamatory meaning upon which Mr Chakravarti can rely.
The final issue in the appeal is whether the Full Court was correct in its approach to damages.
The proceedings of the Royal Commission
Before turning to the newspaper articles, it is convenient to give an account of the evidence which was given by Mr Simmons to the Royal Commission and upon which the first article was based.
As already mentioned, Mr Simmons was Chairman of the State Bank. He was also Chairman of Beneficial. He gave evidence on 14 July 1992 of a meeting he had on 30 July 1990 with Mr Bannon, the then Premier of South Australia. During that meeting he provided the Premier with information as to the affairs of Beneficial and four of its senior executives, Messrs Baker, Reichert, Martin and Chakravarti. The matters discussed at that meeting were set out in the file note to which reference has already been made.
Mr Simmons was referred by Counsel to the file note of his meeting with the Premier. In answer to a question from his Counsel, he said that he gave details of the matters referred to in that note to the Premier. Counsel then asked Mr Simmons this question:
"I don't want to read out all that is in [the file note] on those two topics but did you make it clear to the Premier that with reference to Messrs Baker, Reichert, Martin and Chakravarti there was a question of either civil or criminal misconduct to be looked at."
Initially, no answer was recorded to that question. However, the transcript of proceedings was subsequently amended to indicate that it was answered "Yes". It is no longer in issue that the question was, in fact, answered that way. It is, however, necessary to mention the matter because it has some bearing on the question whether the Advertiser can rely on s 7 of the Act.
Immediately following his affirmative answer to the question whether he had informed the Premier that there "was a question of either civil or criminal misconduct" in relation to Messrs Baker, Reichert, Martin and Chakravarti, Mr Simmons was asked by the Royal Commissioner whether he had been involved in the events leading to the resignation of Messrs Baker and Reichert. He said that he had. There then followed further questions from the Royal Commissioner as to the reason given publicly for the resignations of Messrs Baker and Reichert, namely, a difference of opinion between them and the Board as to the direction of Beneficial. Those questions led to this exchange, the questions still being asked by the Royal Commissioner:
"Q The fact was, to put it in its blandest form, there had been a difference of opinion between the Board and these officers as to their conduct.
A Yes.
Q The reason it was announced publicly - I am going to put it quite bluntly; it really just wasn't true, was it.
A The difficulty -
Q I'm not sure where it was announced, but the reason you just gave that there had been a difference of opinion as to the direction, that really wasn't the reason at all, was it.
A Not really, but to give any other reason at that stage could have prejudiced any position that was being taken.
Q Could have prejudiced.
A Well, the investigation wasn't completed at that stage and there was I believed, as I had said to the Premier, it may be criminal rather than civil.
Q I mean, it would have been closer to the mark to have said something like there was a difference of opinion between these officers and the Board as to what was appropriate conduct for officers of the company. That would be pretty bland and somewhere near the truth, wouldn't it.
A Yes.
Q But there was no hint, was there, of anything like that at all, in what was said.
A No."
The following questions were then asked by Counsel for Mr Simmons:
"Q But the Premier knew from what you told him.
A Well, I had gone through the whole scenario and had told him all I knew at that stage.
Q When you told the Premier that their conduct may be criminal rather than civil.
A Yes.
Q And told him of your summary of what Beneficial had learnt they had been doing.
A Yes.
Q Did the Premier respond in any way.
A Well, as I said yesterday, I think he was very angry, particularly with the reference to the Melbourne joint venture."
The first article
The first article was headlined "Bannon accused on resignations" and commenced by referring to the resignations of Messrs Baker and Reichert, reporting that the public reason given for their resignations "was not right and that Mr Bannon knew the real reason." The article then proceeded as follows:
" Mr Simmons said he told Mr Bannon on July 30, 1990, there was a 'question' of either criminal or civil misconduct to be looked at in relation to four Beneficial executives, including Mr Baker and Mr Reichert.
He said he told Mr Bannon about loans to Beneficial executives and Mr Bannon reacted angrily.
Mr Simmons confirmed he told Mr Bannon the question of criminal or civil misconduct was in reference to Mr Baker, Mr Reichert, Mr Garry Martin and Mr Manob Chakravarti.
'I had gone through the whole scenario and had told him (Bannon) all I knew at that stage,' Mr Simmons told the commission.
Mr Bannon told Parliament on August 7, 1990, that Beneficial's managing director Mr Baker had retired after 'differences of opinion' with the board over the 'direction' of Beneficial.
The Royal Commissioner, Mr Samuel Jacobs, QC, said yesterday the public explanation that there had been a difference of opinion over direction was not true.
Mr Jacobs: 'The fact was, to put it in its blandest form, there had been a difference of opinion between the board and these officers as to their conduct.'
Mr Simmons: 'Yes.'
Mr Jacobs: 'The reason ... announced publicly - I am going to put it quite bluntly - it really just wasn't true, was it? It really wasn't the reason at all, was it?'
Mr Simmons: 'Not really, but to give any other reason at that stage could have prejudiced any position that was being taken.
'The investigation wasn't completed at that stage and there was I believed, as I had said to the Premier, it may be criminal rather than civil.'
Mr Jacobs: 'It would have been closer to the mark to have said something like there was a difference of opinion between these officers and the board as to what was appropriate conduct for officers of the company.
'That would be pretty bland and somewhere near the truth, wouldn't it?'
Mr Simmons: 'Yes.'
Mr Simmons said he was involved in the 'events' that led to the resignation of Mr Baker and Mr Reichert, but it was another executive, Mr Michael Hamilton, who sought their resignation.
Mr Simmons was asked how Mr Bannon responded when told the conduct of those involved may be criminal rather than civil and what Beneficial had learnt they had been doing.
'I think he was very angry, particularly with the reference to the Melbourne joint venture,' Mr Simmons said.
[No explanation of 'the Melbourne joint venture' was given in the commission.]
Mr Simmons agreed the bank had been concerned that Beneficial may be sued for unfair dismissal.
The Advertiser reported last year that Mr Martin left Beneficial in September, 1991, after his job was axed.
Mr Chakravarti also left Beneficial late last year."
The article then reported other matters which do not concern Mr Chakravarti and which were not sued upon.
The first article: fair and accurate report
It is well settled that to be fair and accurate, a report need not be a complete report of the proceedings in question. Nor need it be accurate in every respect. It must, however, be substantially accurate[38]. And the question whether it is substantially accurate is a question of fact[39]. It is not suggested that Cox J erred in principle in determining whether the articles in question in this appeal were fair and accurate. Thus, the question that arises is whether it was open to his Honour to find that they were not.
[38]See Thom v Associated Newspapers Ltd (1964) 64 SR (NSW) 376 at 380 per Herron CJ and Ferguson J, 385 per Sugerman J; Anderson v Nationwide News Pty Ltd (1970) 72 SR (NSW) 313 at 318 per Asprey JA, 323-324 per Mason JA. See also Cook v Alexander [1974] QB 279.
[39]See, generally, Leslie v Mirror Newspapers Ltd (1971) 125 CLR 332.
So far as is presently relevant, Cox J found that the first article accurately reported the evidence that Mr Simmons had made it clear to the Premier that "there was a 'question' of either criminal or civil misconduct" with respect to four named executives, Messrs Baker, Reichert, Martin and Chakravarti but was inaccurate in its reporting of the evidence as to the difference of opinion between the Board and its executives and, also, the evidence as to the Melbourne joint venture[40]. His Honour took the view that the evidence on those last matters related solely to Messrs Baker and Reichert but was reported in the article as if it related to all four senior executives, including Mr Chakravarti[41].
[40](1995) 181 LSJS 218 at 225.
[41](1995) 181 LSJS 218 at 223, 225.
The evidence as to the difference of opinion between the Board of Beneficial and its executives was given by way of answer to questions which referred solely to Messrs Baker and Reichert and, thus, related solely to them. However, in reporting that evidence, the article refers to "these officers", a reference that can only be understood as a reference to the officers last named. And they were Messrs Baker, Reichert, Martin and Chakravarti. The article is, thus, inaccurate in this respect.
Similarly, the article is inaccurate in its reference to "the Melbourne joint venture". Although there is nothing in the terms of the questions asked of Mr Simmons to indicate to whom the evidence of "the Melbourne joint venture" related, the questions followed immediately upon the questions asked by the Royal Commissioner with respect to Messrs Baker and Reichert and arose out of those questions. Accordingly, the questions and answers, including the answer with respect to "the Melbourne joint venture", can only be understood as referring to Messrs Baker and Reichert. However, the article links "the Melbourne joint venture" to "those involved [whose conduct] may be criminal rather than civil", a clear reference back to all four Beneficial executives, not simply Messrs Baker and Reichert.
The inaccuracies in the first article are substantial, indicating that not only Messrs Baker and Reichert but, also, Messrs Martin and Chakravarti had been in conflict with the Board with respect to the conduct appropriate to their positions as well as the conduct in which they had actually engaged. The article is also substantially inaccurate in its indication that Messrs Martin and Chakravarti were involved in "the Melbourne joint venture" which, although not explained, was a matter of sufficient seriousness to have been reported to the Premier and to have provoked him to anger. Accordingly, the finding of Cox J that the first article was not a fair and accurate report of the relevant part of the proceedings of the Royal Commission must stand.
The meanings pleaded with respect to the first article
Mr Chakravarti pleaded two meanings with respect to the first article, namely, that:
"(a) the plaintiff was involved in criminal or civil misconduct, whilst an executive of Beneficial Finance, in respect of loans from Beneficial Finance to himself.
(b) The plaintiff's conduct in receiving loans direct to himself as an executive of Beneficial Finance which loans were in excess of his entitlement was such as to render him not a fit and proper person to be or remain a Beneficial Finance executive or to be or remain in any other position of trust."
As already indicated, the majority in the Full Court found that the first article did not bear either of the meanings pleaded in the Amended Statement of Claim. As to the first of those meanings, Perry J and Williams J each took the view that the article merely imputed suspicion of misconduct, not actual misconduct[42]. That view must be rejected. By stating that there "was a 'question' of either criminal or civil misconduct to be looked at" and by postulating that that conduct "[might] be criminal rather than civil", the article clearly conveys the meaning that Mr Chakravarti and his fellow executives engaged in some form of misconduct, merely leaving it uncertain whether it was civil or criminal.
[42](1996) 65 SASR 527 at 556 per Perry J, 559 per Williams J.
As to the second meaning pleaded with respect to the first article, Perry J held that that meaning could not arise out of the first article as "[it] does not refer to loans 'in excess of his entitlement'"[43]. Williams J expressed the view that it added little to the first meaning pleaded by Mr Chakravarti[44].
[43](1996) 65 SASR 527 at 556.
[44](1996) 65 SASR 527 at 559.
It is true that the first article does not refer in terms to loans "in excess of ... entitlement". It is also true that the second meaning pleaded by Mr Chakravarti adds little to the first in the sense that, subject to one matter which will be mentioned shortly, it arises out of and is dependent on the first. So far as is presently relevant, the article imputes misconduct which may be criminal rather than civil with respect to loans from Beneficial. Because it imputes misconduct of that kind, the ordinary reader would take the article to carry a distinct innuendo that, by reason of that misconduct, Mr Chakravarti was not a fit and proper person to be or remain an executive of Beneficial. The matter that should be mentioned is that that innuendo differs from the pleaded meaning in that it omits any reference to the loans being "in excess of his entitlement". That difference, although slight, leads to a consideration of the consequences of Mr Chakravarti's having pleaded specific meanings with respect to the first article.
The effect of pleading specific meanings
The majority in the Full Court took the view that, in relation to the first article, Mr Chakravarti could rely only on the meanings pleaded in his Amended Statement of Claim[45]. That view was taken in a context in which the Advertiser pleaded, in relation to that article, that it did not bear either of the meanings set out in the Amended Statement of Claim but meant only that Mr Chakravarti "was suspected of being involved in criminal or civil misconduct ... in respect of loans from [Beneficial]" and, that, so understood, it was true in substance and in fact[46].
[45](1996) 65 SASR 527 at 556 per Perry J, 559 per Williams J.
[46]A similar defence was also pleaded in respect of the second article.
Although there is no requirement in that regard, it is now common practice for a plaintiff to specify in his or her Statement of Claim the meaning or meanings which, as a matter of ordinary language, are said to be conveyed by the material upon which he or she sues[47]. Whilst the pleading of different shades of meaning is not to be encouraged, distinct or specific meanings should be pleaded and one indication of distinctness or specificity "would be whether the justification would be substantially different"[48]. And since the decision in Lucas‑Box v News Group Newspapers Ltd[49], a defendant who seeks to justify a different meaning has generally been required to plead or give particulars of that other meaning[50].
[47]No question arises in this case respecting so-called "true innuendos" which depend on extrinsic circumstances showing, for example, that words not on their face referring to the plaintiff would be understood to refer to the plaintiff, or that words not ex facie defamatory would be understood in a defamatory sense owing to the existence of further facts known to the persons to whom the words were published: see Report of the Committee on the Law of Defamation, (1948) Cmd [7536], pars 162-166. Rule 46.19(1) of the South Australian Supreme Court Rules states:
"In an action for defamation where the plaintiff alleges that the words or matters complained of were used in a defamatory sense other than their ordinary meaning he shall give particulars of the facts and matters on which he relies in support of such sense."
In Lewis v Daily Telegraph Ltd [1964] AC 234 at 272, Lord Hodson said:
"[T]he true innuendo has been treated as a separate cause of action from that which arose from the words in their natural and ordinary meaning (with or without inferential meanings commonly called false innuendoes)".
[48]Lewis v Daily Telegraph Ltd [1964] AC 234 at 282 per Lord Devlin.
[49][1986] 1 WLR 147; [1986] 1 All ER 177.
[50]See, for example, Gumina v Williams (No 2) (1990) 3 WAR 351 at 354-355 per Malcolm CJ, 364-367 per Seaman J; Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1 at 24 per Miles CJ; Viscount De L’Isle v Times Newspapers Ltd [1988] 1 WLR 49 at 58 per May LJ, 60 per Mustill LJ, 63 per Balcombe LJ; [1987] 3 All ER 499 at 505, 507, 509; Prager v Times Newspapers Ltd [1988] 1 WLR 77 at 82-83, 85-86, 87 per Purchas LJ, 91 per Nicholls LJ; [1988] 1 All ER 300 at 303-304, 305-306, 308, 310-311; Morrell v International Thomson Publishing Ltd [1989] 3 All ER 733 at 736-738 per May LJ, 739 per Nicholls LJ; Control Risks Ltd v New Library Ltd [1990] 1 WLR 183 at 189 per Nicholls LJ; [1989] 3 All ER 577 at 581; Polly Peck Plc v Trelford [1986] QB 1000 at 1032-1033 per O’Connor LJ.
The consequences of a plaintiff pleading a specific meaning are far from settled. In Slim v Daily Telegraph Ltd, Salmon LJ expressed the view that a "plaintiff is bound by his pleading - otherwise it may prove to be nothing but a snare for the defendant"[51], while Diplock LJ took the view that a plaintiff could rely on any natural or ordinary meaning which is less injurious than the pleaded
meaning[52]. It was later held in Polly Peck Plc v Trelford[53] that "where differences of meaning are proposed by the parties, the issue as to the possible meanings of the words [is] confined to those pleaded." More recently, however, in Prager v Times Newspapers Ltd (a case in which the plaintiff asserted one meaning and the defendants wished to justify another), Russell LJ expressed the view that "[a]ny 'conceivable meaning which a jury might find' ... must be left for the jury's consideration."[54][51][1968] 2 QB 157 at 185.
[52][1968] 2 QB 157 at 176.
[53][1986] QB 1000 at 1033 per O’Connor LJ.
[54][1988] 1 WLR 77 at 93; [1988] 1 All ER 300 at 312 quoting Waters v Sunday Pictorial Newspapers Ltd [1961] 1 WLR 967 at 972 per Willmer LJ; [1961] 2 All ER 758 at 762.
The Australian authorities follow much the same pattern as that to be found in the United Kingdom. Thus, in Sungravure Pty Ltd v Middle East Airlines Airliban SAL, Stephen J said that, having pleaded an innuendo, "the plaintiff was bound by it, and by such others as he also relied upon[55], and was not free thereafter to rely upon some quite different meaning which he might seek to read into the words complained of ... at least not one more injurious"[56]. An even stricter view was taken in Hadzel v De Waldorf where Fox J stated that "a judge can find for the plaintiff on a nuance of meaning not put by him, but it would be a strange reversal of ordinary practice, and possibly very unfair to one or both parties, for the judge to find that the plaintiff was defamed in some way not averred by the plaintiff"[57].
[55]The plaintiff had pleaded six other innuendos.
[56](1975) 134 CLR 1 at 14, citing Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 175 per Diplock LJ, 185 per Salmon LJ; Simmons v Mitchell (1880) 6 App Cas 156 at 162 and Ryan v Ross (1916) 22 CLR 1 at 27 per Isaacs and Gavan Duffy JJ. See also Prichard v Krantz (1984) 37 SASR 379 at 385-386 per King CJ.
[57](1970) 16 FLR 174 at 182. See also Slim v Daily Telegraph Limited [1968] 2 QB 157 at 185 per Salmon LJ; Magnifax Publishers Pty Ltd v Incentive Pty Ltd (1970) 18 FLR 100 at 102 per Fox J.
More recently, however, it was said in National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd that the practice of pleading some specific meaning or meanings "could not alter the position at law that the judge was to decide what meanings were fairly open and was to leave to the jury all such meanings". It followed, in the view taken in that case, that "neither the judge nor the jury were ... confined to the meanings asserted by the parties"[58].
[58][1989] VR 747 at 768. See also Gumina v Williams (No 2) (1990) 3 WAR 351 at 355 per Malcolm CJ; Kelly v Special Broadcasting Service [1990] VR 69 at 74 per Murphy J; Taylor v Jecks (1993) 10 WAR 309 at 317-318 per Anderson J (although his Honour adverted to contrary authority that a party is confined to meanings it has pleaded).
In the authorities concerned above, there has been a tendency to translate into rules what are best seen as considerations going to fair and efficient practice. More cogently, it has been said that, if a defendant seeks to justify a meaning which is different from that asserted by the plaintiff, it should plead that alternative meaning because "[l]ibel law ought not to be an exception to the modern rules of pleading which are directed to precisely defining the issues between the parties, providing the benchmarks against which the relevance of evidence is to be assessed and deciding those issues on their merits"[59]. The alternative meaning pleaded by the defendant may make plain the ground upon which the defendant denies the imputation pleaded by the plaintiff. But the view quoted may be accepted without supporting a general conclusion that, in a defamation action, the parties always should be held to the meanings they have pleaded.
[59]Pizza Pizza Ltd v Toronto Star Newspapers Ltd (1996) 2 CPC (4th) 394 at 400 per Cameron J. On 22 September 1997 this decision was affirmed by the Ontario Court of Appeal (Finlayson, Osborne and Austin JJA): unreported, [1997] OJ No 3891; Lucas-Box v News Group Ltd [1986] 1 WLR 147 at 151; [1986] 1 All ER 177 at 181; Viscount De L’Isle v Times Newspapers Ltd [1988] 1 WLR 49 at 59 per May LJ, 63 per Balcombe LJ; [1987] 3 All ER 499 at 505-506, 509.
Modern pleadings fulfil the function performed by traditional pleadings and particulars, traditional pleadings identifying the legal issues to be determined and particulars specifying the case to be made at trial. The South Australian Supreme Court Rules appear to give a special status to particulars. Rule 46.12 requires a specific admission or denial of every allegation of fact "(including particulars)" in the pleading to which the pleader is responding and allegations which are not specifically denied are deemed to be admitted. So far as is relevant to the matter now under consideration, the legal issue which had to be decided was whether the material complained of was defamatory of the plaintiff in the sense that it was to his "discredit ... [tended] to lower him in the estimation of others ... to expose him to hatred, contempt or ridicule, or to injure his reputation in his ... trade or profession"[60]. The pleading of a particular meaning or meanings, whether by Mr Chakravarti or the Advertiser, was no more than a statement of the case to be made at trial.
[60]Gatley on Libel and Slander, 8th ed (1981) par 31.
Doubtless, the pressures on court time and the cost of litigation ordinarily require that, at trial, a party be held to the particulars or those parts of the pleadings which specify the case to be made if departure would occasion delay or disadvantage the other side. The same considerations apply to defamation proceedings. Words do not mean what the parties choose them to mean and, at least ordinarily, the defamatory material will, itself, sufficiently identify and, thus, confine the meanings on which they may rely. Moreover, as was pointed out in National Mutual Life Association of Australasia v GTV Corporation Pty Ltd, "[i]t would be most unlikely that the parties would between them fail to hit upon, at least approximately, all the reasonably open meanings"[61].
[61][1989] VR 747 at 768.
There can be no disadvantage to the Advertiser in allowing Mr Chakravarti to rely, even at this stage, on an innuendo that, by reason of loans received from Beneficial, he was not a fit and proper person to be or remain an executive of that company, notwithstanding the more specific meaning pleaded in his Amended Statement of Claim, namely, that he was unfit by reason of the receipt of loans in excess of his entitlement. The more specific meaning simply limits the innuendo to a factual basis which the Advertiser itself particularised in relation to its plea of justification with respect to the first article[62]. And although the majority in the Full Court held that Mr Chakravarti could not rely on the lesser meaning which the Advertiser asserted, namely, that he was suspected of being involved in criminal or civil misconduct, which lesser meaning it sought to justify and defend, there could have been no disadvantage to the Advertiser in allowing him to do so.
[62]By par 10(a)3 of its Defence, the Advertiser provided the following particular:
"Mr Simmons believed that a preliminary audit of loans to executives of [Beneficial] revealed that the plaintiff, Baker, Eric Reichert and Gary Martin all had loans which were not approved and not authorised and in excess of agreed benefits."
As a general rule, there will be no disadvantage in allowing a plaintiff to rely on meanings which are comprehended in, or are 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.
If Mr Chakravarti's action were confined to the first article, reliance on a meaning imputing misconduct with respect to the Melbourne joint venture - a meaning which was not pleaded but which the trial judge thought was conveyed by that article[63] - might well have resulted in disadvantage to the Advertiser. However, as will later appear, the pleadings with respect to the second article specifically raised misconduct with respect to the Melbourne joint venture and, it may be that, on that account, it could not be said that any disadvantage would result. And if the article did not bear the meanings pleaded or meanings to much the same effect, it may be that the Advertiser would be correct in its complaint that Mr Chakravarti should not be allowed to rely on the other meanings found by the trial judge because it was disadvantaged in that it had no opportunity to address on them. However, as the article bears the first meaning pleaded by Mr Chakravarti and a meaning substantially similar to the second, the question whether he can rely on the meanings found by the trial judge need not be pursued.
[63](1995) 181 LSJS 218 at 224, 225 and 230.
The file note
The file note which was received in evidence and which formed the basis of the second article is as follows:
"Loans for Executives
1. Prior to last Board meeting Baker asked me to approve a loan of $2M to several executives including himself.
2. Said was not prepared to and should go to the Board.
3. Board said would approve of it provided that it had Audit sign off.
4. The loan concerned me.
5. In telling management on [sic] investigation of Beneficial suggested we should see all loans.
6. Preliminary audit reveals Baker, Reichardt [sic], Chakravarti and Martin have all loans which were not approved, and were not authorised and are in excess of agreed benefits. The loan I looked at was a joint venture and it appears that this joint venture with a Melbourne developer, Tribe and Crispaulie is in default and the account is in default at a level of $37M. rather than within the approved Board 30M. May be criminal rather than civic [sic].
7. There also appears to be loans from a company called Pegasis [sic] which is a joint venture company between Beneficial and Alastair McGregor.
8. The effect[s] of these loans are:
a)Baker could not exercise proven control over Reichert who arranged structured finance which has proven to be a disaster.
b)Board presentations were pulled and not accurate.
c)Internal audit reports were screened.
d)The Board of Beneficial did not get the true picture.
e)Accountant was told want $10M. profit and accounts were adjust[ed].
f)Conspiracy of silence.
g)Believe that Baker, Reichert, Martin and Chakravarti will have to go - question when.
h)Clark, John Sulan, at my suggestion, are seeing Chakravarti - now feel he will be weakest."
The second article
The second article, which bears the headline "Loans may be criminal: bank chief's diaries", appeared on the front page of The Advertiser and was continued on the second page under the heading "Loans may be criminal - diaries". The reference to diaries is a reference to notes of the kind set out above. There is a photograph of Mr Simmons on the front page, underneath which there is what is described as "[a]n excerpt from Mr Simmons' diaries". The so-called "excerpt" was referred to in the pleadings as a "graphic", a term which it is convenient to adopt. The graphic contains the following:
"Preliminary audit reveals Baker, Reichart [sic], Chakravarti and Martin have all loans which were not approved, and were not authorised and are in excess of agreed benefits....May be criminal rather than civic [sic]."
Mr Chakravarti sued on the headline, the heading on the second page, the graphic, the first part of the article and some later paragraphs. The first part is as follows:
" Sensational allegations of a conspiracy within the State Bank group and multimillion-dollar unauthorised loans involving senior executives have been revealed in diary notes kept by former bank chairman Mr David Simmons.
Mr Simmons says the circumstances surrounding the loans 'may be criminal'.
The loans include unapproved loans to four senior Beneficial Finance Corporation executives and a $37 million joint venture arrangement with a Melbourne developer.
Mr Simmons's diaries also refer to a 'Beneficial conspiracy', how board presentations had been 'pulled' and how internal audit reports were 'screened'.
Several hundred edited pages of diary notes kept by Mr Simmons were released yesterday by the State Bank Royal Commission."
The later paragraphs upon which Mr Chakravarti sued were as follows:
" In notes dated July 30, 1990, concerning a meeting with the Premier, Mr Simmons claims the group profit would be substantially down on the figure of $58 million to $60 million given earlier to Mr Bannon by the managing director, Mr Tim Marcus Clark.
His notes reveal the likely profit as $33 million of which $30.6 million was a tax adjustment.
Mr Simmons records details of loans to executives: 'Prior to last board meeting (then Beneficial chief John) Baker asked me to approve a loan of $2 million to several executives including himself.
'(I) Said was not prepared to and should go to the board.
'Board said would approve of it provided that it had Audit sign off. The loan concerned me.
'In telling management of investigation of Beneficial, suggested we should see all loans.
'Preliminary audit reveals (John) Baker, (Erich) Reichert, (Manob) Chakravarti and (Garry) Martin (all Beneficial Finance executives) have all loans which were not approved and were not authorised and are in excess of agreed benefits.
'The loan I looked at was a joint venture and it appears that this joint venture with a Melbourne developer is in default and the account is in default at a level of $37 million rather than within the approved board $30 million.
'May be criminal rather than civic (civil misconduct).
'There also appears to be loans from a company called Pegasis (sic) which is a joint venture company between Beneficial and Alastair McGregor.'
Mr Simmons writes that the effect of these loans was that Mr Baker could not exercise proven control over his deputy, Mr Reichert, who 'arranged structured finance which has proved to be a disaster'.
He says board presentations were pulled and not accurate, that internal audit reports were screened, that the Beneficial board did not get the true picture, and there was a conspiracy of silence.
Mr Simmons records that when a profit of $10 million was wanted, the accounts were adjusted.
'Believe that Baker, Reichert, Martin and Chakravarti will have to go - question, when?' he says."
The second article: fair and accurate report
The considerations which arise on the question whether the second article is a fair and accurate report are somewhat different from those which arose on the first. The file note on which the second article is based clearly links the conduct which may be "criminal rather than civi[l]" to "the Melbourne joint venture", not to the loans to the four named Beneficial executives. However, the graphic juxtaposes the passage in the file note dealing with those loans with that postulating "criminal rather than civi[l]" misconduct, separating them, however, by an ellipsis to indicate that something has been omitted. It is clear that, if there were no ellipsis, the words in the graphic would convey the meaning that all four Beneficial executives had engaged in conduct which "[might] be criminal rather than civi[l]". However, the Advertiser contends that the ellipsis indicates otherwise. That contention must be rejected. As a matter of ordinary usage, an ellipsis simply indicates that words have been omitted, not that, in their proper context, the words bear a different meaning or have a different point of reference.
The Advertiser has a further argument. It contends that even if the graphic, standing alone, conveys the meaning that all four executives engaged in conduct which "[might] be criminal rather than civi[l]", the article must be read as a whole and, when so read, that is not the meaning it conveys. The Advertiser is correct in its contention that the article must be read as a whole. In this regard, it is sufficient to note that it is the article, not the graphic, which it defends as a fair and accurate report of the proceedings of the Royal Commission. However, it is not correct in its contention that, when read as a whole, the article conveys a different meaning from that conveyed by the graphic.
The meaning conveyed by the graphic is, to a large extent, reinforced by the opening paragraphs of the second article which refer to "multimillion-dollar unauthorised loans involving senior executives", state that Mr Simmons said that "the circumstances surrounding the loans 'may be criminal'" and then assert that "[t]he loans include unapproved loans to four senior Beneficial Finance Corporation executives and a $37 million joint venture arrangement with a Melbourne developer". And the meaning thus reinforced is not changed by the subsequent quotations from Mr Simmons' file note.
As already indicated, the file note clearly links the conduct that may be "criminal rather than civi[l]" with the Melbourne joint venture. However, the article does not. The article severs the relevant paragraph in the file note into three distinct paragraphs, the first of which deals with loans to the four named executives and the second with the Melbourne joint venture. There then follows a third and separate paragraph in these terms:
" May be criminal rather than civic (civil misconduct)".
Thus disjoined, the third paragraph is ambiguous in that it may refer to the loans, to the Melbourne joint venture or to both. Because it is ambiguous, it does nothing to modify the opening paragraphs of the article or the meaning of the words in the graphic.
Contrary to the submissions made on behalf of the Advertiser, the second article, when read as a whole, indicates that, by reason of unauthorised loans, all four named Beneficial executives, including Mr Chakravarti, engaged in conduct which might be "criminal rather than civi[l]". In this respect, the article departs significantly from the file note and, thus, it was also open to Cox J to find that it was not a fair and accurate report of the proceedings of the Royal Commission.
The meanings pleaded with respect to the second article
The following meanings were pleaded with respect to the second article:
"(a) the plaintiff had engaged in criminal conduct in connection with a loan or loans made to him;
(b) the plaintiff was a party to a conspiracy within the State Bank group in connection with multimillion dollar unauthorized loans;
(c) the plaintiff had received one or more loans which were not approved or authorized and which provided greater benefits to him than those to which he was entitled and that the plaintiff had been involved in criminal, or at least civil, misconduct in connection with obtaining those loans;
(d) the plaintiff had received a loan which had not been approved or authorized and which provided benefits in excess of his entitlement, in relation to a joint venture with a Melbourne developer, which loan was $37 million in default;
(e) the plaintiff had engaged in criminal, or at least civil, misconduct in connection with that loan;
(f) [t]he plaintiff's conduct in relation to the stated loans was such as to render him not a fit and proper person to be or remain a Beneficial Finance executive or to be or remain in any other position of trust."
It was held by majority in the Full Court that the second article does not bear the first of the pleaded meanings, but bears the others[64]. So far as the first of the pleaded meanings is concerned, the Full Court was clearly correct in its view that the article does not convey the meaning that the plaintiff had engaged in criminal misconduct. As pointed out by Doyle CJ, "[t]he distinction between 'may be' and 'is' is significant"[65] and the article is consistent in its statement that the conduct in issue "may be criminal rather than civi[l]". Accordingly, Mr Chakravarti cannot succeed on this issue.
[64](1996) 65 SASR 527 at 549-550 per Doyle CJ, 557 per Perry J. Williams J found that the second article bore only the fourth and fifth meanings and to a limited extent the sixth meaning: at 560-561.
[65](1996) 65 SASR 527 at 549.
The Advertiser contends by its cross-appeal that the article does not bear the second, fourth, fifth and sixth of the meanings pleaded by Mr Chakravarti, conceding only that it bears the third meaning, namely, that he "had been involved in criminal, or at least civil, misconduct in connection with obtaining [unapproved or unauthorised loans]". The second of the meanings pleaded is that Mr Chakravarti "was a party to a conspiracy ... in connection with multimillion dollar unauthorized loans". The article refers, in its opening sentence, to a conspiracy and to "multimillion-dollar unauthorised loans involving senior executives", identifies the four named Beneficial executives as persons who have loans in excess of agreed benefits, and records that they "will have to go". There is nothing to suggest that the conspiracy related to anything but the loans to which the article refers and there is nothing to suggest that any of the four named executives was not a party to that conspiracy. In these circumstances, it was clearly open to the majority of the Full Court to conclude that the article bore the second of the meanings pleaded by Mr Chakravarti.
The fourth of the pleaded meanings asserts that Mr Chakravarti "received a loan ... in relation to a joint venture with a Melbourne developer". The article does not, in terms, state that that loan was made to Mr Chakravarti or to any of the other named executives. Rather, the article distinguishes between the Melbourne joint venture and loans to Beneficial executives in the statement that the loans which Mr Simmons said might be criminal "include unapproved loans to four senior Beneficial ... executives and a $37 million joint venture arrangement with a Melbourne developer". In the circumstances, it was not open to the Full Court to find that the second article bore the fourth of the meanings pleaded in the Amended Statement of Claim.
The fifth of the pleaded meanings is that Mr Chakravarti "had engaged in criminal, or at least civil, misconduct in connection with [the Melbourne joint venture] loan". Given that the article clearly indicates that the loans which "may be criminal" include the Melbourne joint venture and also indicates, without distinguishing between them, that the four named executives "will have to go", it was open to the Full Court to conclude that the article bears the meaning pleaded.
The sixth of the pleaded meanings, namely, that Mr Chakravarti is not a fit and proper person to be an executive, is, in effect, an innuendo which follows from the other meanings pleaded. That innuendo arises notwithstanding that Mr Chakravarti cannot rely on the first and fourth of the other meanings pleaded.
Section 7 of the Act
Although it is not strictly necessary, it is convenient to deal with the issues which arise out of s 7 of the Act and which were argued in this Court. Moreover, it is convenient to deal with them before dealing with the questions raised with respect to damages.
Section 7(1) of the Act relevantly provides:
" A fair and accurate report published by newspaper, radio or television of the proceedings of-
...
(c) a meeting of any royal commission ...
...shall be privileged unless it is proved that the report or publication was published or made maliciously:
Provided that-
...(b)the protection intended to be afforded by this section shall not be available as a defence in any proceedings if it is proved that the defendant has been requested to publish by the same newspaper or radio or television station, as the case may be, a reasonable letter or statement by way of contradiction or explanation of such report or other publication and has refused or neglected to do so:
(c)nothing in this section shall be deemed or construed to limit or abridge any privilege now by law existing, or to protect the publication of any matter not of public concern and the publication of which is not for the public benefit."[66]
[66]Section 7(1) also provides that a "fair and accurate report" published by newspaper, radio or television of the proceedings of:
"(a)a public meeting; or
(ab)either House of Parliament; or
(b)(except where neither the public nor any reporter is admitted) ... any meeting of a municipal or district council, school board of advice, board of health, board or local authority formed or constituted under the provisions of any Act of Parliament, or of any committee appointed by any of the abovementioned bodies; or
(c)a meeting of any ... select committee of either House of Parliament; or
(d)a meeting of shareholders in any bank (within the meaning of the Banking Act 1959 [(Cth)]) or incorporated company,
and the publication by newspaper, radio or television at the request of any Government office or department, Minister of the Crown, or Commissioner of Police, of any notice or report issued ... for the information of the public, shall be privileged unless it is proved that the report or publication was published or made maliciously".
It was suggested in the course of argument that the articles do not report a meeting of the Royal Commission, it being put that the expression "a meeting of [a] royal commission" does not encompass the public proceedings of a royal commission. That suggestion does not withstand scrutiny. It is to be noted that s 7(1)(c) is relevantly directed to the proceedings of a meeting of a royal commission and it would have little, if any, work to do if its operation were confined to the proceedings of a private meeting of a royal commission. And although it is not usual to speak of "a meeting of [a] royal commission", there is no difficulty in describing what occurred on 14 July 1992, when Mr Simmons gave evidence to the Royal Commission, as having occurred in the course of the proceedings of a meeting of the Royal Commission.
The second matter raised with respect to s 7 concerns proviso (b). As already indicated, Mr Chakravarti submitted a written reply to the Advertiser with respect to each of the articles with which this appeal is concerned. In his letter in response to the first article, he referred to the substance of the report, denied that there had been any misconduct on his part and asserted that any loans he had with Beneficial "were within the criteria for such loans ... and at commercial rates of interest". The letter continued:
"Moreover, I do not believe that Mr Simmons either intended to or did make any allegation to the Premier (or to the Royal Commission) of criminal or civil misconduct which extended to me."
Mr Chakravarti's reply to the second article was not as measured in its tone as his reply to the first. He began by referring to the publication of Mr Simmons' "purported diary notes" and described the second article as "grossly unfair and inaccurate".
Before replying to the first article, Mr Chakravarti checked the transcript of the proceedings of the Royal Commission and ascertained that it did not record any answer to the question whether Mr Simmons had made it clear to the Premier that "with reference to Messrs Baker, Reichert, Martin and Chakravarti there was a question of either civil or criminal misconduct to be looked at". However, the Advertiser's reporter believed that the question had been answered affirmatively and, as earlier indicated, the transcript was later amended to record that that was so.
The Advertiser declined to publish either of Mr Chakravarti's letters. At first instance, Cox J expressed the view that the question whether the letter forwarded by way of reply to the first article was reasonable was "to be judged objectively". His Honour held that it was not reasonable because for the Advertiser "to have published the letter as it stood would have amounted ... to an admission of seriously inaccurate reporting and could well have invited protests, if not more, from its reporter and from Mr Simmons"[67]. His Honour also held that the reply to the second article was not reasonable because it was "marred by [the] description of the article as 'grossly unfair and inaccurate'" and by "[a subsequent] ... reference ... to 'your inaccurate and unfair reporting'". His Honour also noted the reference to the "purported" diary note[68].
[67](1995) 181 LSJS 218 at 228.
[68](1995) 181 LSJS 218 at 235.
In the Full Court, it was said by Doyle CJ that the letter by way of reply to the first article was not reasonable "because it denied that Mr Simmons had given the evidence which he in fact gave"[69]. And his Honour endorsed the reasons of Cox J for concluding that failure to publish the letter by way of reply to the second article did not deprive the Advertiser of the protection of s 7 of the Act[70].
[69](1996) 65 SASR 527 at 546.
[70](1996) 65 SASR 527 at 551.
The appellant's argument concerning the second letter appears to have been rejected by all of the judges below[254] because the appellant described Mr Simmons's diary notes as "purported diary notes" and referred to the article as "grossly unfair and inaccurate". On neither count could such words remove from an otherwise publishable letter the quality of reasonableness as that word has been explained. The use of the word "purported" was perfectly reasonable. When examined, the "diary notes" of Mr Simmons appear much more likely to have been aides-mémoire for his discussions with the Premier rather than a true diary record of what was discussed. That this is so appears from the total absence of the slightest mention in the "diaries" of the Premier's responses to the various points listed by Mr Simmons. In any case, it was open to the appellant to describe those records as "purported", indicating his dispute of them as a "diary".
[254](1995) 181 LSJS 218 at 235; (1996) 65 SASR 527 at 551, 557, 561.
Likewise, in the context of the heat which is commonly generated by the publication of matter claimed to be defamatory, the allegation in the second letter that the article was "grossly unfair and inaccurate" seems hardly extravagant. As it happens, I am of the opinion, alike with the primary judge and the Full Court, that in material respects the second article was indeed inaccurate and unfair reporting. But that could only ultimately be determined after hearings at three levels of the Australian judicial hierarchy, the passage of almost six years and the expenditure of very large sums of money. Proviso (b) is intended to operate peremptorily in the heat of the aftermath of a publication which causes the alleged hurt. With every respect to the judges below, I regard the second letter, as the first, as reasonable by way of contradiction or explanation by a person clearly affected. Not only should it have been published. The failure to do so meant that the defence of privilege, provided by s 7, was "not ... available" to the respondent in respect of the second article.
I should make it plain that I rest my conclusion concerning the rejection of the respondent's reliance on the defence of fair and accurate report upon the two grounds each of which I would hold to have been made out. The defence was not available because neither report published was fair and accurate. Even if it were, the defence would not apply because the respondent refused to publish a reasonable response.
The economic loss issue
In light of the foregoing conclusions, the appeal must be allowed and the matter returned to the Full Court. The appellant is entitled to succeed upon both articles. In my view, he is entitled to succeed upon all of the imputations pleaded. His cross-appeal to the Full Court, by which he complained about the inadequacy of the general damages awarded to him by the primary judge, must be re-determined by the Full Court. In view of the fact that damages will have to be addressed in the Full Court, it may be helpful to deal with some of the issues argued in relation to damages. It is necessary to do so in respect of the general damages because of the terms of the respondent's cross-appeal to this Court.
I turn first to the component of the appellant's damages which the primary judge awarded for economic loss. The matter became unnecessarily complicated because of the use of the term "special damages"[255] to describe the award for economic loss. The primary judge found this item in the sum of $175,000 for the two articles. He found composite general damages of $75,000 making a total judgment (before interest) of $250,000 which he divided: as to $225,000 for the first article and $25,000 for the second. The Full Court unanimously concluded that the claim for economic loss was not made out in the evidence. There are therefore two questions to be considered. The first is whether, as the primary judge thought, the evidence called at trial was sufficient, in fact, to sustain a claim for damages for loss of employment and reduced prospects of re‑employment. The second, if the requisite factual nexus is established, is whether the correct approach was taken to the calculation of that loss and, specifically, whether the correct classification is one of general or special damages.
[255](1995) 181 LSJS 218 at 240.
The factual difficulty arises out of the sparsity of the appellant's evidence concerning his termination by Leal Boss. He described the way in which he was summarily dismissed two days after the publication of the first article and the subsequent efforts, substantially futile, to obtain equivalent, or other, employment. He did not call evidence from Leal Boss to establish affirmatively that officers of the company had read the first article and decided that it could not have in its employ a person such as the appellant. He did not seek to give evidence of anything said to him by his superior at the time of his termination. Effectively, he left it open to inference that the publication of the article in such a prominent place in Adelaide's daily newspaper was a cause of the termination and the difficulty he there faced in obtaining comparable or better employment elsewhere. He relied upon the nature of the publication, the description of the financial responsibilities which he had with Leal Boss, the absence of any other demonstrated cause and the sudden circumstances of the termination. It was argued, successfully at first instance, that this evidence was sufficient to sustain a conclusion that the publication of the first article was a cause, if necessary the cause of the loss of his job.
The Full Court was not prepared to draw the inference which the primary judge drew that, but for the articles, the appellant would have been able to find employment. Nor did it agree that it was "unrealistic to criticise [the appellant] for not calling someone from Leal Boss to say why they dismissed him"[256]. Doyle CJ, in a passage criticised by the appellant, explained his rejection of the claim for economic loss thus[257]:
"I do not consider that one can conclude on the balance of probabilities that the defamatory imputations were the cause of the dismissal. I would not favour a pedantic approach on this issue, nor would I call for strict proof on such a difficult issue. But I cannot accept the soundness of a finding for the [appellant] in the light of what the defendant reported in the first article without incurring liability, and knowing nothing at all about the reasons for the dismissal.
In my opinion the [appellant's] evidence does not provide a basis for an award of economic loss in respect of his employment with Leal Boss. On the scant evidence given it is moreover, impossible to say what effect the defamatory imputations had had on the [appellant's] employment prospects since his employment with Leal Boss came to an end.
In the end, the issue is one of causation. Did the [appellant] prove that the defamatory imputations caused the loss of his employment and subsequently damaged his prospects of re-employment? ...
It is on this issue ... that I am unable to agree with the trial judge."
[256](1995) 181 LSJS 218 at 240.
[257](1996) 65 SASR 527 at 552.
Because Perry J was of the view that the first article was not actionable, the question did not arise for him in that instance. However, in respect of the second article he expressed his agreement with Doyle CJ that "the claim for economic loss was not made out"[258]. Williams J was in the same position. He found it unnecessary to deal with the question with respect to the first article and, with respect to the second, he expressed the opinion that the claim for special damages for economic loss had not been made out. He did not consider that "a nexus has been established"[259] between the publication of the matters mentioned in the imputations found in respect of the second article and the termination of the appellant's employment. The appellant criticised this conclusion of Williams J on the basis that the termination of employment with Leal Boss occurred before the publication of the second article. It is not entirely clear but it may be that Williams J was merely saying that no economic loss, after termination, could be attributed to the second article upon which only he was obliged to calculate damages.
[258](1996) 65 SASR 527 at 557.
[259](1996) 65 SASR 527 at 561.
With all respect to the Full Court, I consider that the approach taken to the proof of the economic loss of the appellant indicates error. The assessment of the probabilities in a matter of this kind would ordinarily be left to the trial judge with the advantages usually ascribed to that position where the drawing of inferences is concerned. The suggestion for the respondent that the reason for the termination by Leal Boss was the absence of the appellant from his duties on the two days immediately following the publication of the first article borders on the absurd. Such absence, in a senior executive, would not warrant peremptory termination. The inference that the termination was somehow connected with, and flowed from, the article, on the other hand, is extremely strong. Clearly, it was open to the primary judge to so infer. In any case it was open to him to conclude that the publications had a seriously adverse consequence on the appellant's employability. In reaching the opposite conclusion, it would appear that, despite remarks to the contrary, Doyle CJ may have demanded too strict a proof. His Honour's suggestion that the appellant was obliged to prove that the defamatory imputations in the first article were the cause of his dismissal mis‑states, with respect, the burden resting upon the appellant. It was enough that he should establish that the actionable parts of the article were a cause of the injury to his reputation and all of the consequences that flowed from it[260].
[260]March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 at 509, 524, 530.
Viewed in this way, I regard it as overwhelmingly probable that the publication of the first article was a cause of the termination of the appellant's employment and of the difficulty which he thereafter experienced in obtaining employment in the finance industry. There may have been other contributing causes. They may, for example, have included the appellant's mere association with the Bank and BFC during their troubles. But the appellant was entitled to damages for the effect which the publication of both articles had on his economic capacity.
The appellant asked for restoration of the primary judge's finding that he was entitled to damages for loss of employment and reduced prospects of re‑employment. At first instance, his Amended Statement of Claim included a specific demand[261], properly particularised[262], claiming such damages as economic loss. In this Court, however, counsel for the appellant submitted that such damages could come under the head of either general or special damages[263]. My own view is that, contrary to the observations of the primary judge, this allowance should be regarded not as special damages but as general damages resulting from the kind of injury which the appellant sustained[264]. If the question is whether particular earnings are lost as a result of the publication of a defamation, I see no reason why, if properly pleaded, particularised and proved, such earnings could not be recovered as special damages in the sense of quantifiable economic loss[265]. However, in this case, the real gravamen of the appellant's complaint was one of general damage to his reputation and hence to his employability as a senior finance executive. In this sense, the damage was to his economic capacity. It therefore sounded in general damages. Its calculation would have regard to the considerations which the appellant pleaded and which the primary judge appears to have accepted[266]. As the Full Court must recalculate the entirety of the appellant's damages, it is enough to say that, in my opinion, there is no reason why the appellant should not recover damages for loss of employment and reduced prospects of employment. The respondent still has formally outstanding its ground of appeal to the Full Court (ground 6) that the award of $175,000 for "special damages" was manifestly excessive. It will be apparent that I do not see any substantive merit in the complaint; but it is appropriate that it receive its quietus from the Full Court to which the whole issue of damages must be returned.
[261]Amended Statement of Claim, par 8 [AB43-44].
[262]cf Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 235-236, 251-252.
[263] Chakravarti v Advertiser Newspapers Limited, High Court of Australia, 3 September 1997, Transcript of Proceedings at 206-207.
[264] cf Harrison v Pearce (1859) 32 LTOS 298 at 298 per Pollock CB; Gatley on Libel and Slander, 9th ed (1998) at pars 32.47-32.48.
[265] Duncan and Neill on Defamation, 2nd ed (1983) at par 18.11. Note the different senses in which "special damages" are used: Ratcliffe v Evans [1892] 2 QB 524 at 528-529 and the criticisms of the expression in Broome v Cassell & Co [1972] AC 1027 at 1073.
[266] (1995) 181 LSJS 218 at 239-240. The following figures are all exclusive of interest.
The general damages issue
That leaves, finally, the residual questions of general damages. The primary judge found $75,000 for both articles and then apportioned them between the first and the second[267]. The Full Court, having rejected that part of the claim for damages which related to economic loss, substantially reduced the judgment, which was then one for general damages only. On this footing, Doyle CJ would have found judgment in the sum of $45,000 for the first article and $40,000 for the second. Perry J and Williams J, having found that the first article was not actionable, agreed in the assessment of general damages at $40,000 for the second article. Doyle CJ described the primary judge's assessment of $75,000 general damages for both articles as "a high one"[268]. However, he expressly recognised that the defamatory imputations were "quite serious"[269]. I agree that the imputations which both articles carried were serious. They were especially so for a senior finance executive whose earning capacity depended upon a reputation for probity and personal integrity. However, I cannot agree that the award for general damages found by the primary judge, or that favoured by the Full Court, was a "high" one. It may have been so regarded in South Australia where defamation actions are tried by judge alone and appear to be comparatively rare. But in comparison with judgments returned in other parts of Australia, the award for general damages appears insufficient to the wrongs which were found[270].
[267](1995) 181 LSJS 218 at 240.
[268](1996) 65 SASR 527 at 554.
[269](1996) 65 SASR 527 at 554.
[270]Compare for example Crampton v Nugawela (1996) 41 NSWLR 176.
It is possible that the inadequacy arose from the approach which Doyle CJ took to the calculation of general damages, having regard to the fact that some parts of each of the matters complained of were found not to be actionable. His Honour referred to the decision of the House of Lords in Dingle v Associated Newspapers Ltd[271]. In that case, which concerned a series of newspaper articles highly critical of the plaintiff, only one of which was objected to and found to be defamatory, their Lordships made it plain that the publisher was liable only in respect of those parts of its articles which were not found to be privileged or which had not been justified[272]. But this did not diminish the plaintiff's entitlement to vindication for a proved defamation. That entitlement could not be lost by the publisher's seeking to establish that others were similarly defaming the plaintiff so that he had less reputation to lose[273]. The correctness of the approach in Dingle was not doubted. However, the passage in the reasoning of Doyle CJ, which was criticised, was as follows[274]:
"[T]he [respondent] is only liable for that part of the article which is not privileged. Therefore one must subtract from the defamatory effect of the article that effect which derives from the non-actionable parts".
[271][1964] AC 371.
[272][1964] AC 371 at 394 per Lord Radcliffe.
[273][1964] AC 371 at 396 per Lord Radcliffe, at 410 per Lord Denning.
[274](1996) 65 SASR 527 at 554 (emphasis added).
The appellant suggested that the stated process of subtraction involved an unnecessary diminution of his entitlement to general damages for the defamatory effect of the article as a whole. I am by no means convinced that this complaint is justified. Doyle CJ went on to say[275]:
"However, one may not reduce the award of damages which would go to vindicate the [appellant] in relation to a false imputation, merely because other statements have been made (either in the same article or in other previous articles) which are almost as discreditable but which are justified or privileged."
[275](1996) 65 SASR 527 at 554.
Nevertheless, thinking in terms of "subtraction" or "reduction" may lead to errors of calculation of general damages which would inappropriately diminish the plaintiff's just entitlements. The decision-maker should never lose sight of the objective of the award of damages, once entitlement is established. It is to vindicate the reputation of the party wronged, to compensate that person for the hurt caused by the wrong proved[276] and, at least in some cases, to resolve such matters before the public which may have its own interest to know the outcome. The damages must be such as to sustain the law's assumption that, once they are awarded, there will be no future loss[277]. Irrelevant considerations such as the existence of other discreditable matter which might have been published of the plaintiff, but was not, or the existence of some accurate allegations in the midst of unsustainable ones must simply be put out of mind[278]. The plaintiff is only entitled to recover damages for the actionable wrongs proved. But for them, the plaintiff is entitled to full recovery without subtractions and without reductions. In the present proceeding, a relevant consideration is the fact that the appellant's potential employment market was not confined to South Australia. He had already demonstrated a willingness to move in search of advancement. His employment market in the financial sector was national or regional, if not international.
[276] Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 150; Dingle v Associated Newspapers Ltd [1964] AC 371 at 396; cf Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 at 215.
[277] John Fairfax & Sons v Kelly (1987) 8 NSWLR 131 at 142 per McHugh JA approved by Brennan J in Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 77.
[278]Bunker v James (1980) 26 SASR 286 at 291.
When this approach is applied to the awards of general damages found for the appellant, their extreme modesty is demonstrated in sharp relief. This is particularly so given that the primary judge found that there were at least some circumstances of aggravation (notably a degree of intransigence found on the respondent's part in the conduct of the proceedings)[279] which had to be taken into account in deciding the amount of general damages[280].
[279](1995) 181 LSJS 218 at 239.
[280](1995) 181 LSJS 218 at 240.
The appellant's cross-appeal to the Full Court in challenge to the award of general damages having been dismissed by that Court, it will now fall to the Full Court to reconsider the general damages awarded to him. There may be reasons for variations in damages awards for particular wrongs in different parts of Australia. But variations in the award of general damages in defamation to the extent evident in this case is not justified. Least of all is it justified given that the primary judge thought that the wrongs found demanded "substantial damages"[281]. By modern Australian standards the awards of general damages made here were parsimonious[282].
[281](1995) 181 LSJS 218 at 240.
[282] This is particularly so when regard is had to the fact that it is now an established principle that attention may be called to the levels of general damages in personal injury awards as a foundation for guidance and to ensure proportionality: Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at 219-221; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 56-60.
Conclusion and orders
The result is that the orders of the Full Court cannot stand. Nor is it possible simply to restore the orders of the primary judge.
I therefore agree in the orders proposed by Gaudron and Gummow JJ.