Abbott And Costello Defamation Action

This is the full text of the Judgement by Mr. Justice Higgins in the Abbott and Costello defamation action against Random House, publishers of “Goodbye, Jerusalem”, by Bob Ellis.

The Hon. Peter Howard Costello and Tanya Pamela Costello v Random House Australia Pty Limited

and

The Hon. Anthony John Abbott and Margaret Veronica Abbott v Random House Australia Pty Limited

[1999] ACTSC 13
Defamation


IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

HIGGINS, J

File nos – Nos. SC 224 & 228 of 1997

No. of paras – 469

CATCHWORDS:

DEFAMATION - Publication of defamatory matter – False allegations of shallow political commitment and lack of chastity – Whether matter capable of conveying alleged imputations – Test of ordinary reasonable reader – Natural and ordinary meaning to apply – Mere speculation of reader not relevant – Whether inferences defamatory in fact – Whether ridicule of plaintiffs’ political commitment defamatory in fact – Whether allegation of lack of chastity defamatory in fact – No requirement for special damage where allegation of unchastity – Standard of middle class morality to apply – Imputations held defamatory.

DEFAMATION - Publication of defamatory matter – True innuendos – Whether extrinsic facts sufficient to convey alleged true innuendos – Innuendos held not to arise.

DEFAMATION – Compensatory damages – Extent of damage to reputation where plaintiff is public figure – Whether damage mitigated by defendant – Extent of injury to feelings – Whether aggravated damages appropriate – Whether defendant’s conduct unjustifiable, improper or lacking bona fides – Aggravated damages awarded.

DEFAMATION – Exemplary damages – Whether defendant acted in contumelious disregard of plaintiffs’ rights – Whether negligence of defendant sufficient to justify exemplary damages – Exemplary damages not awarded.

PRIVATE INTERNATIONAL LAW - Choice of law – Defamation action – Defamatory publication distributed in NSW while action commenced in ACT – Whether liability determined according to ACT or NSW law – Whether s46(3) Defamation Act 1974 (NSW) restricting exemplary damages is applicable to proceedings in ACT – Whether exemplary damages categorised as substantive or procedural law – Procedural law of NSW not applicable in ACT – Law substantive where it constitutes a head of damage and procedural if a mere step in the quantification of damage – s46(3) held to affect quantification of damages and not applicable in ACT.

Evidence Act 1995 (Cth), s79

Defamation Act 1901 (ACT), s3

Defamation Act 1974 (NSW), s46A, 46(3)

Defamation Amendment Act 1989 (NT), s4

Wrongs Act 1936 (SA), s5

Wrongs Act 1958 (Vic), s8

Reader’s Digest Services Proprietary Limited v Lamb (1982) < !A HREF="/html/highcourt/0/82/0/HC000430.htm">150 CLR 500, at 505-507, applied

Mirror Newspapers Limited v Harrison (1982) < !A HREF="/html/highcourt/0/82/0/HC000220.htm">149 CLR 293, applied

Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, at 169, applied

Aboriginal Nations Pty Limited v John Fairfax Publications Pty Limited and West Australian Newspapers Limited (Supreme Court of the ACT, Higgins J, 23 November 1998, unreported), referred to

Speight v Gosnay (1891) 60 LJ QB 231, referred to

Anderson v Mirror Newspapers Ltd (No.2) (1986) 5 NSWLR 735, referred to

Hadzel v De Waldorf [1970] 16 FLR 174, at 181-182, applied

Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443, followed

Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449, considered

Berkoff v Burchill [1996] 4 All ER 1008, considered

Kontis v Barlin (1993) < !A HREF="/html/actdec/0/93/0/AC000440.htm">115 ACTR 11, applied

McIntosh v Southern Meats Pty Ltd (1997) Aust Torts Reports 81-424, applied

Cairns v John Fairfax & Sons Ltd; Morosi v John Fairfax & Sons Ltd [1983] 2 NSWLR 708, at 710, 717, 720-721, considered

Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386, at 403-404, considered

Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153, considered

Stevens v Head (1993) < !A HREF="/html/highcourt/0/93/0/HC000080.htm">176 CLR 433, at 457, applied 

Carson v John Fairfax & Sons Limited; Carson v Slee (1993) < !A HREF="/html/highcourt/0/93/0/HC000330.htm">178 CLR
44, applied

Timms v Clift [1998] 2 Qd R 100, considered

Crampton v Nugawela (1996) 41 NSWLR 176; (1997) Aust Torts Reports
¶81-416, considered

Humphries v TWT Ltd (1994) < !A HREF="/html/feddec/0/93/1/FD005690.htm">120 ALR 693, considered

Kelson v David Syme & Co Pty Ltd (Supreme Court of the ACT, Crispin
J, 3 July 1998, unreported), considered

Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418 (note),
referred to

Cassell & Co Ltd v Broome [1972] AC 1027, at 1125, considered

Hughes v Mirror Newspapers Ltd (1985) 3 NSWLR 504, referred to

Rigby v Associated Newspapers Ltd [1969] 1 NSWR 729, referred to

Rantzen v Mirror Group Newspapers (1986) Ltd [1994] QB 670, referred to

Clark v Ainsworth (1996) 40 NSWLR 463, referred to

Thompson v Australian Capital Television Pty Ltd (1997) 71 ALJR 131, referred to

Breavington v Godleman (1988) < !A HREF="/html/highcourt/0/88/0/HC000410.htm">169 CLR 41, applied

Australian Broadcasting Corporation v Waterhouse (1991) 25 NSWLR 519, referred to

Waterhouse v Australian Broadcasting Corporation (1992) 27 NSWLR 1, not followed

McKain v R W Miller & Co (South Australia) Pty Ltd (1992) < !A HREF="/html/highcourt/0/91/0/HC000560.htm">174 CLR 1; 104 ALR 257, applied

Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1, referred to

Uren v John Fairfax & Sons Pty Limited (1967) < !A HREF="/html/highcourt/0/66//HC000040.htm">117 CLR 118, applied

Waterhouse (RW) v Australian Broadcasting Corporation (1989) 86 ACTR 1, distinguished

Chaplin v Boys [1971] AC 356, referred to

Anderson v Eric Anderson Radio & TV Pty Limited (1965) < !A HREF="/html/highcourt/0/65/0/HC000520.htm">114 CLR 20, referred to

Thompson v Australian Capital Television Pty Ltd (1997) < !A HREF="/html/actdec/0/97//AC000480.htm">129 ACTR 14, referred to

Packer v Australian Broadcasting Corporation (Supreme Court of the ACT, Higgins J, 25 November, 1993, unreported), considered

Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225, at 250, applied

Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58, at 74-75, applied

Triggell v Pheeney (1951) < !A HREF="/html/highcourt/0/51/0/HC000710.htm">82 CLR 497, applied

Lamb v Cotogno (1987) < !A HREF="/html/highcourt/0/87/0/HC000500.htm">164 CLR 1, applied

Walker, S., “Choice of Law in Defamation Actions”, (1994) 3 Torts Law Journal 228, at 245

CANBERRA, 19, 20, 21, 22 October; 9, 10 November, 1998 (hearing), 5 March 1999 (decision)

#DATE 5:3:1999

REPRESENTATION:

Counsel for the plaintiffs:       Mr T K Tobin QC with Mr P W Gray

Solicitors for the plaintiffs:       Colquhoun Murphy

Counsel for the defendant:       Mr W H Nicholas QC with Mr G O’L Reynolds Solicitors for the defendant: Phillips Fox

Order:

1.       In matter No. SC 224 of 1997, there will be judgment for the plaintiffs, for Peter Howard Costello, in the sum of $74,000, and for Tanya Pamela Costello in the sum of $90,000.

In matter No. SC 228 of 1997, there will be judgment for the plaintiffs, for Anthony John Abbott, in the sum of $66,000 and for Margaret Veronica Abbott, in the sum of $47,500.

HIGGINS, J:

1.       In March, 1997, the defendant published a book entitled Goodbye Jerusalem: Night Thoughts of a Labor Outsider. The author was Mr Bob Ellis, a noted writer of plays and novels. As the book describes him:

“He has written and broadcast in all media, and as a film, theatre and television critic, political correspondent, song lyricist, after-dinner speaker, and political candidate against Bronwyn Bishop has achieved in Australian folklore a perhaps enduring name.”

2.      The book is a series of reminiscences and stories generally about politics and, as the title implies, from a Labor perspective. The author has his heroes and villains. The latter are most frequently drawn from the conservative side of politics, though some Labor figures are also treated with scorn and derision.

3.       The defendant is, of course, responsible for the form of the publication and its promotion to the reading public. It portrayed the book as:

“A portrait of the heart of the True Believers… For over three decades Bob Ellis has trod the fringes of the corridors of power. Here he gives a personal insight into the tribe that is the Australian Labor Party: the personalities, the quirks, the fabled anecdotes and the grand ideals. Goodbye Jerusalem is a reflection on the nature of Labor politics in Australia, its flaws, its heroes, its victories and its bitter defeats.”

4.       The front cover features a quotation attributed to Mr Bob Carr, Premier of New South Wales, “At long last, a book that tells it as it really is”.

5.       The presentation of the book raises some expectations concerning the nature and characteristics of the “ordinary reasonable reader” of it. It is also relevant to note that the publisher does not suggest that the work is one of fiction. It is presented as a work of interest, as “a portrait of the heart of the True Believers”.

6.       It is not presented, therefore, as a serious history of the Labor movement. Nevertheless, the personal anecdotes, the factual accounts of events, though a montage rather than an ordered story, would still be thought by the ordinary reasonable reader, to be essentially true. The opinions expressed, favourable or not, temperate or not, would be accepted as the author’s alone. It would be expected that those opinions would be politically biased. Thus Liberal party figures, such as the plaintiffs, would not be surprised to find adverse criticism of their policies, philosophy, motives and even their characters. The ordinary reasonable reader would make due allowance for that before passing adverse judgment on such persons. The offending passage may be assumed to be read in context, not merely in isolation, although some readers may be interested only in some contemporary political figures and “skip over” other parts of the book.

The book is launched

7.      Early March, 1997, Goodbye Jerusalem was launched. The author, in doing so, was obliged to read an apology to Mr David Spicer, an ABC radio journalist. At page 34 of the book, the author gave an account of a press conference given by Mr Carr. He said of Mr Spicer:

“David Spicer of PM – a black-eyed little unctuous turd, one who I was unsurprised to learn sang tenor in Chatswood choirs, and never figured in John Howard’s allegations of left-wing bias – then asked if the Opposition Leader was aware that he was flying in Kerry Packer’s jet, and what favours the Great He-Warthog would ask in return. Containing an impulse to rip the sneering viper’s throat out, Bob said the jet was hired for the media’s convenience, an act which, in view of their present ingratitude, he might not fucking repeat, through an unremarkable middle man who had, as it happened, not revealed it was Packer’s.”

8.       Although he had been present at this press conference, it appears that the author’s recollection was inaccurate. Whatever the provenance of his opinion concerning Mr Spicer’s objectivity as a reporter, the latter had not asked the offending question. The author retracted and apologised at the launch.

9.       The passage the subject of these proceedings appears at page 472, though part of the context appears on page 473.

10.       In a Chapter entitled “TWELVE DAYS OF LITTLE SIGNIFICANCE”, at page 469, the author refers to the launch of a book of poetry by the well-known Australian poet Mr Les Murray. Its title was Subhuman Redneck Poems.

11.        At page 472, the author refers to Mr Tony Abbott, the first-named plaintiff:

“At the launch also was Tony Abbott, the Liberal thinker (hah!) and he greeted me as a fellow monarchist (carefully lying, I nodded) and though of another party ‘a fellow partaker of the comradeship of the trenches’. I liked him of course, the way one does, and determined to destroy him, the way one does, and remembered with pleasure Rodney Cavalier’s gutsy account of history.

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

‘Abbott and Costello?’ I said, laughing.

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

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

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

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

‘Why believe in it then?’

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

Diaries, September 1994.

12.       As published by the defendant, this passage refers to the story about the first plaintiffs in each action, Messrs. Costello and Abbott, as a “gutsy account of history”. The story is attributed to Mr Rodney Cavalier. It therefore carries not merely the author’s endorsement as a true story, but also that of Mr Cavalier. Further, the source of the story is said to be “Diaries, September 1994″. It conveys also, therefore, an assurance that the author has correctly recorded what Mr Cavalier told him.

The story is false

13.      It is important to record, at the outset, that the defendant did not attempt to assert the truth of the facts asserted in this passage. The plaintiffs’ evidence that it was false, so far as it referred to them, or, in the case of Mrs Abbott, might be believed to refer to her, was not challenged.

14.       Accordingly, although I will later refer in more detail to the evidence given, the following findings should be firmly stated:

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

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

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

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

15.       In other words, the story about Mr Abbott, Mr Costello and Mrs Costello (or Mrs Abbott if she is taken to be referred to), is untrue, has no foundation in fact, and should be totally deleted from the annals of Australian political mythology if, indeed, it still lingers there.

IS THE PUBLICATION DEFAMATORY ?

16.      This was the central issue put into contention by the defendant. It acknowledged the story was false. It accepted that, for that reason, the story could be hurtful to the men and women to whom it could be taken to refer. It acknowledged that, even had it been true, the story would have been a “nasty” invasion of privacy.

17.       It is apparent from the form and content of the passage referred to, that the author is moved to recall something adverse to Mr Abbott’s reputation as a “Liberal thinker”. He is depicted as one of two men, connected by their surnames with the famous comedy team, whose capacity for intellectual adherence to political thought is so shallow that it is driven by, or capable of being influenced by, sexual favours or the prospect thereof. In doing so, the author makes, of course, a similar aspersion concerning the other man, Mr Costello.

18.       Further, though for persons who know them, it is apparent that the woman referred to could only be Mrs Costello, the imprecision of the reference could lead to a mistaken view that the author was referring to Mrs Abbott.

19.       It is also apparent that the passage implies that each of the men and the women, whichever is referred to, had sexual relations before marriage.

20.       However, it does not seem to me to convey a further meaning, suggested in the course of the matter, that the marriage referred to was induced by any less than the full commitment between a man and a woman usually implied by marriage.

21.       The question whether the publication is defamatory of the plaintiffs or any of them, first requires an examination of the meanings alleged and relied upon by the plaintiffs. Each of Mr and Mrs Abbott and Mr and Mrs Costello relies upon the natural and ordinary meaning of the matter complained of. The matter complained of is that which appears above, though some of the introductory words are omitted. It includes the “thirty-three” words relating the “Abbott and Costello” story. The imputations alleged to arise and to be defamatory in relation to Mr Abbott and Mr Costello are:

A(i)       The first-named plaintiff [Mr Abbott/Mr Costello] so lacked personal integrity that, in return for sexual favours, he was willing to change his political allegiance.

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

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

In relation to Mrs Abbott and Mrs Costello, the imputations alleged to arise and to be defamatory are:

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

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

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

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

22.       True innuendoes are also pleaded. The innuendoes are the same for each plaintiff. The pleaded extrinsic facts differ.

23.       In the case of Mr and Mrs Abbott, they are that they married in 1988 and have remained married to each other since that date, and that, following their marriage, Mr Abbott joined the Liberal Party.

24.       In the case of Mr and Mrs Costello, they are that they married in January, 1982 and have remained married to each other since. Whilst at the University of Sydney, and thereafter, Mrs Costello was, and was known to be, an active Liberal Party supporter. She was the daughter of the leader of the New South Wales Liberal Party and a supporter of the Party. She had, at Sydney University, become acquainted, inter alia, with Mr Abbott and, later, Mr Costello.

25.       By reason of those extrinsic facts, it was alleged that the following true innuendos were conveyed:

(xxv)       The first-named plaintiff [Mr Abbott/Mr Costello] was a person of weak character and unreliable character who allowed his political decisions to be dictated by his wife.

(xxvi)       The second-named plaintiff [Mrs Abbott/Mrs Costello] was sexually promiscuous.

(xxvii)       The second-named plaintiff was a person of such low moral standards that she was even prepared to use sexual relations to get others to change their political allegiance.

(xxviii)       The second-named plaintiff was a political manipulator who used sex in order to recruit Labor Party members into the Liberal Party.

(xxix)       The second-named plaintiff was so lacking in respect for her partner that even being married to him did not stop her from trying to subvert his political beliefs.

26.       I should say, at the outset, that this does not seem to me to be a case in which a true innuendo, in fact, arises. The matter complained of does not convey to me that the marriage of the “one woman” to “one of them” took place before the induction of Messrs. Abbott and Costello into the Young Liberals. Thus the fact that Mr Abbott joined the Liberal Party after marrying Mrs Abbott would not assist the reader to identify, or not, Mrs Abbott with the woman referred to.

27.       Further, attendance or otherwise at the University of Sydney is not a matter referred to in the matter complained of. Whether the alleged sexual relations occurred during or before the parties completed their education seems also irrelevant. It is true that knowing that Mrs Abbott, a New Zealander, did not come to Australia until 1983 and did not have any prior connection with the Young Liberals or the Liberal Party would exclude the identification of her as the woman referred to. However, to those persons, the matter would not convey any of the pleaded imputations concerning her. It would, in fact, deny them.

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

Are the pleaded imputations conveyed by the matter complained of ?

29.       This is partly a question of fact. Whether or not the matter is capable of conveying the alleged imputations is a question of law for a judge. Whether the tribunal of fact is satisfied that they are, in fact, conveyed is a matter for that tribunal. I exercise both functions in the present matter. The first enquiry is prefatory to the second.

30.       The test for determining the meaning of the publication is an objective one. Evidence of the meaning others – whether the plaintiffs themselves, journalists, friends, acquaintances, colleagues or mere bystanders – have attributed to the publication is not admissible for the purpose of determining the meaning actually conveyed. The correct test, as summarised by Brennan J in Reader’s Digest Services Proprietary Limited v Lamb (1982) < !A HREF="/html/highcourt/0/82/0/HC000430.htm">150 CLR 500, at pages 505-506, requires the Court to determine what meanings or inferences as to meaning the hypothetical ordinary reasonable reader would draw.

31.       It is important to distinguish between inferences which the ordinary reasonable reader would draw from the matter published and speculation such a reader might, even probably, engage in. An example of that is Mirror Newspapers Limited v Harrison (1982) < !A HREF="/html/highcourt/0/82/0/HC000220.htm">149 CLR 293. The statement that the plaintiff was, after investigation, arrested and charged by police, may reasonably have led a reader to an inference, though a lawyer might refrain from drawing it, that the plaintiff was reasonably suspected of criminal conduct, but the reader would merely be speculating if, from that, he or she concluded that the plaintiff was guilty. Hunt CJ at CL sought to explain that concept further in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158. I referred to the issue recently in Aboriginal Nations Pty Limited v John Fairfax Publications Pty Limited and West Australian Newspapers Limited (Supreme Court of the ACT, 23 November 1998, unreported).

32.       It is for that reason that I conclude that the matter published does not convey the meaning that “the one woman” married Mr Abbott or Mr Costello before their alleged defection or so as to induce it. It is not clear whether the alleged defection is supposed to have followed the marriage or preceded it.

33.       However, the matter complained of does clearly convey the inference that the two men were, each of them, enticed away from the Labor Party to the Young Liberals by reason of their sexual liaison, not necessarily a simultaneous one, with the woman referred to.

34.       It is, to my mind, purely speculative to infer that the woman is being said to have entered into the sexual liaisons in question with a view to inducting the men into the Young Liberals. Rather does it indicate that the occasion was one which led to the men deciding to defect, presumably persuaded by a desire to conform to the woman’s principles, so as to commence or continue a sexual relationship with her. An ordinary reasonable reader, however, would infer, in relation to the woman, that she used the occasion of her sexual dalliance with each of the men to promote the virtues of their transferring their political allegiances so as to accord with hers, either before or after sexual relations had been engaged in.

35.       The reader does not need to infer that Mr Tony Abbott, MHR for Warringah and current Minister for Employment Services, is the “Abbott” referred to. There is a need for inference that Mr Peter Costello, present MHR for Higgins and Federal Treasurer, is the “Costello” referred to, but that inference would readily be drawn. The reader would infer that the “woman” was the present wife of one of them.

36.       It is apparent that the same conduct in the same circumstances is attributed to each of Messrs. Abbott and Costello. Mrs Abbott and Mrs Costello would each fall under some substantial degree of suspicion of being the “one woman” referred to. She is depicted as having had more than one sexual liaison before her marriage, albeit one having been with her future husband. It would be purely speculative to infer that she is alleged to have had other sexual liaisons with other men.

Inferences in relation to Mr Abbott

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

38.       A (ii) - This is precisely what the matter complained of means. The anecdote is clearly aimed at Mr Abbott. He is referred to as “the Liberal thinker” – a person intellectually committed to that party or, at least, so regarded by his colleagues and the public. The anecdote is apparently perceived by the author as effective “to destroy him”; that is, to destroy the perception of Mr Abbott as a person intellectually and deeply committed to the Liberal Party. Instead, he is said to be a person who, as a result of a sexual liaison with a woman connected with the Young Liberals, or to facilitate that liaison, abandons his membership of the Labor Party and defects to the Young Liberals.

39.       The suggestion of “shallow political commitment” is, in my view, one which does arise from the matter complained of, though I would read “for” as meaning “by reason of”.

40.       A (iii) – I have already noted that the anecdote does not imply any bargain or ultimatum so far as the woman is concerned. The remainder of the imputation is already contained within A (ii).

41.       This imputation does not arise as a separate inference from the matter complained of.

Inferences in relation to Mr Costello

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

43.       There is no complaint by either man that they are defamed by the imputation, not pleaded, that they each engaged in sexual relations before their respective marriages.

Inferences in relation to Mrs Abbott

44.       The reference to “suspicion” is because the author leaves it open to regard whatever adverse inferences may arise as applicable to one or other of the women who have married Mr Abbott and Mr Costello respectively.

45.       B (i) – It is certainly suggested that the woman engaged in sexual intercourse before marriage. It could be for mere enjoyment rather than commitment, but it is also open to infer that, whilst not with a view necessarily to marriage, though that happened later with one of the men, it was not an act serially performed with whomsoever was available.

46.       The question is whether that equates with being “sexually promiscuous”.

47.       At common law a woman could sue for damages for defamation merely because of an allegation of unchastity. Speight v Gosnay (1891) 60 LJ QB 231 acknowledged that. However, prior to the Slander of Women Act 1891 (UK), special damage was required. The same result has been achieved in the Territory by the abolition of the distinction between libel and slander (see s3, Defamation Act 1901 (ACT)).

48.       There seems implicit in the defendant’s approach to the editing of the author’s work, a view that no cause of action lies in defamation for an imputation of unchastity in a woman (or a man for that matter). It seems to have been assumed that such an imputation was defamatory only if it also conveyed either adultery, promiscuity or, at least, moral hypocrisy.

49.       Although the term used in this imputation is “promiscuous”, it only refers to two episodes of premarital sex. I have no difficulty in accepting that as an allegation of unchastity. Even with the use, in the matter published, of the word “fuck” rather than “had sexual relations with” or “made love to”, it does not impute the kind of serial conduct which seems to me to be properly described as promiscuity.

50.       Nevertheless, unchastity is necessarily conveyed both by the pleading and the matter complained of. I find that imputation is conveyed by the matter complained of. It is of lesser seriousness than that which is expressly pleaded. Whilst not, perhaps, permissible in New South Wales (see Anderson v Mirror Newspapers Ltd (No.2) (1986) 5 NSWLR 735), it can be regarded in this jurisdiction as a meaning relied on by the plaintiff in substance. It seems to me, therefore, that so to find does not offend against the principle of holding the plaintiff to her (or their) pleadings referred to in Hadzel v De Waldorf [1970] 16 FLR 174 at pages 181-2.

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

52.       B (ii) – The reference to “by virtue of having married [Mr Abbott]” is not part of the imputation. It is the pleader’s explanation as to why the imputation is suspected to apply to her. Mere “low moral standards” are already imputed by B (i). The additional matter is the suggestion of the “use of” sexual relations to get others to change their political allegiance.

53.       The true imputation is that the woman exploited the sexual liaison, or the prospect of it, to achieve the result of changing the man’s political allegiance. In that sense, it seems to me that the imputation as pleaded arises from the matter complained of.

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

55.       This imputation does not arise.

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

57.       It does not arise.

58.       It follows that I find that imputations B(i) and B(ii) are conveyed by the matter complained of.

Inferences in relation to Mrs Costello

59.       The same inferences arise in relation to Mrs Costello as arose in relation to Mrs Abbott; that is, lack of chastity and exploitation of two sexual partners to induce their defection from the Labor Party to the Young Liberals.

Are the imputations found to arise defamatory?

60.       Often this is self-evident. To refer again to Brennan J in Reader’s Digest v Lamb (supra) at pages 505-506, it is whether the meaning of the matter complained of conveys a defamatory sense according to the moral and social standards of the society generally. The
defendant contends that none of these imputations which I have found to be conveyed are, in fact, defamatory.

61.       It is important to distinguish between a statement which is to a person’s discredit and may cause damage and one which is untrue, but not disparaging of the plaintiff’s reputation, though it may cause damage.

62.       The defendant contends that it is not, in the modern era, defamatory to say of a woman, absent any special extrinsic facts – for example, vows of chastity by a person in religious orders – that she had sex with more than one person before her marriage to one of them.

63.       The inferences that the male plaintiffs were sufficiently shallow in their political commitments in their younger days that they could be influenced by their sexual liaison with a woman to follow her into the Young Liberals is said by the defendant not to be defamatory.

64.       The converse of that is that inference, of course, that the woman in question used undue influence, taking advantage of their vulnerability, to woo the two men into the Young Liberals away from the Labor Party.

65.       These are the inferences which arise. It therefore remains to be considered whether those inferences are defamatory.

Imputation that Messrs. Abbott and Costello had shallow political commitment

66.       It was contended by Mr Nicholas QC, that it is not defamatory to say of a person that they have changed their political commitment, even if influenced by their then current sexual partner to do so. There is the additional aspect of that imputation that they were unduly influenced by the sexual nature of the relationship to do so.

67.       The anecdote relayed by the defendant does not accuse the plaintiffs of any unlawful conduct, nor should it lower them in the eyes of ordinary members of society that Messrs. Abbott and Costello were alleged to have changed their political allegiances. Many respected political figures have done so. No doubt their former political colleagues might have considered them to be “rats”. Their subsequent political colleagues would, no doubt, have said that they had “seen the light”. It is neither immoral, deceitful nor otherwise reprehensible to do so. The ordinary reasonable reader would take a middle position of neither praise nor condemnation.

68.       Yet matter may be defamatory if it exposes its subject to derision or ridicule, though it does not allege reprehensible conduct.

69.       That was the basis upon which Hunt J concluded that the plaintiff could succeed in Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443. In that case, the plaintiff had been photographed, somewhat artistically, leaving a shower. His genitals were faintly visible. Nevertheless, on the basis that, as a result of that exposure, the plaintiff had thereby, at least arguably, been held up to ridicule, the photograph was, in his Honour’s view, capable of conveying a defamatory imputation.

70.       Hunt J in Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449, considered that a statement implying that a Rugby League footballer was “fat” was capable of defaming him by holding him up to ridicule.

71.       More recently, in Berkoff v Burchill [1996] 4 All ER 1008, the Court of Appeal, by majority, held that to say of a public figure that he was not only unattractive but physically repulsive in appearance, comparing him unfavourably to Frankenstein’s monster, was capable of being defamatory.

72.       Given that Ettingshausen (supra) was upheld as to liability on appeal following a favourable jury verdict, albeit that the damages awarded were found excessive, it is not open to me to conclude that merely to hold a person up to ridicule cannot be defamatory.

73.       The question for me is whether this anecdote published by the defendant does hold Messrs. Abbott and Costello up to ridicule in disparaging their political commitment. Mere capacity to defame is not enough for present purposes.

74.       Some guidance may be obtained from the observations of the Court of Appeal in Amalgamated Television Services Pty Ltd v Marsden (supra). Hunt CJ at CL, with whom both Mason P and Handley JA agreed, pointed out, at page 169:

” … if the publisher invites the adoption of a suspicious approach, it is reasonable for him to be responsible for at least some conclusions reached for which it would not otherwise have been reasonable to make him [or she or it] responsible.”

75.       In this case, the reader was positively invited by the preamble to the anecdote to assume that the anecdote relayed by the author would be to the discredit of Mr Abbott. It would “destroy him” (exaggeration perhaps) as a “Liberal thinker”. Indeed the author appears to suggest that such a description, is, in any event, an oxymoron.

76.       I conclude, having regard to that consideration as well as the reasonable inference that might be drawn from the anecdote itself, that it does in fact convey the imputation of shallow political commitment. I further conclude, as the author invites the reader to do, that such a story, if true, would rebound to the disadvantage of Mr Abbott. I agree that the ordinary reasonable reader would, in fact, so conclude. It follows, it seems to me, that it equally rebounds in a similar manner to the disadvantage of Mr Costello. To hold them up, falsely, as persons of shallow political commitment would be libellous of them irrespective of their political profiles. Their respective political profiles, and the extent of them, is a matter relevant to the quantum of damage. It makes no difference as to whether the matter is, or is not, defamatory.

77.       Messrs. Abbott and Costello thus succeed in establishing that the matter complained of is defamatory of them substantially as alleged in para 5A(ii) of the statement of claim, though not otherwise.

Is it defamatory to accuse Mrs Abbott or Mrs Costello of using the occasion of a sexual liaison to induce Mr Abbott and Mr Costello to join the Young Liberals?

78.       So far as Mrs Abbott or Mrs Costello is concerned, whichever of them is to be regarded as “the woman”, she is not directly stated to have used the occasion of the sexual liaison to entice the men to the Young Liberals. That she did so depends upon the drawing of an inference that she misused the occasion of their liaison to induce the men to join the Young Liberals.

79.       The question is whether that is defamatory of the woman in question. In my view it is not. The fact that a woman is committed politically and is persuasive, albeit to a weak-willed and sexually driven male, does not, I believe, cause the woman to be regarded less highly. It may be otherwise if the sexual liaison was commenced for that purpose but I have concluded that that inference does not arise.

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

Is it defamatory to accuse Mrs Abbott and Mrs Costello of lack of chastity?

81.       I have already referred to the seriousness with which such an imputation was regarded in 1891. It was sufficiently serious for the UK Parliament to dispense with the requirement of special damage if that imputation was conveyed by slander only. In each State and Territory where the special damage requirement remains for slander generally, the same amendment has been made in relation to allegations of unchastity (see Wrongs Act 1958 (Vic) s8, Wrongs Act 1936 (SA) s5, Defamation Amendment Act 1989 (NT) s4). Each other State adjudges slander, whether imputing unchastity in a woman or not, to be actionable as if it was conveyed by means of a libel; that is, without proof of special damage.

82.       In any event, given that defamation by means of such an imputation is actionable in any State or Territory of Australia, the law applicable to determine liability is that of the lex fori; that is, this Territory (see Kontis v Barlin (1993) < !A HREF="/html/actdec/0/93/0/AC000440.htm">115 ACTR 11; [1993] ACTSC 26 (31 March, 1993) and McIntosh v Southern Meats Pty Ltd (1997) Aust Torts Reports 81-424; [1997] ACTSC 11 (26 February, 1997)).

83.       The issue of whether an imputation of unchastity is defamatory of a woman is, in any event, determined according to the same principles of law in each of the other States and Territories.

84.       However, if a community standard is to be considered, it follows that in relation to any area of publication, paradoxically, it is the standards of the Territory community which provide the moral yardstick. That makes it easier for the court of course. How else would I, or a jury of ACT citizens, be expected to pass judgment on such a question? That is not to say that guidance cannot be found in similar and related communities. I would assume that standards in such matters would not greatly differ in other Australian jurisdictions.

85.       This is a different question from whether, in some groups or classes within the community, there would be an adverse impact not discernible amongst the general community. Such an impact will, of course, exacerbate damage, but only if the imputation is, to whatever extent, defamatory according to the standards of the community generally (see Reader’s Digest Services v Lamb (supra) at page 507). Otherwise, it is irrelevant, so far as the ascertainment of the natural and ordinary meaning is concerned. In neither Mrs Abbott’s nor Mrs Costello’s case is it pleaded that they belong to a special class or group of persons for whom an accusation of having engaged in premarital sex would lead to a diminution of their reputation and standing therein, where it does not do so in the eyes of the ordinary reasonable reader.

86.       Whatever may have been the perception of the Parliaments of the United Kingdom and Australia between 1891 and 1958, the defendant contends that standards have changed. Mr Nicholas QC points particularly to Cairns and Morosi v John Fairfax & Sons Ltd [1983] 2 NSWLR 708.

87.       In that case, the jury had accepted that the matter complained of alleged that the plaintiffs had had “an improper sexual association” contrary to their respective marriage obligations but found that the same was not defamatory of them. The plaintiffs appealed, complaining, understandably, that those findings were not consistent.

88.       By majority, the Court of Appeal rejected that appeal. The question before the court was not whether the imputation was capable of defaming the plaintiffs. It was accepted that it was. However, for Hutley JA, the issue depended on what meaning the jury had placed on the word “improper”. The question was whether it was possible to reconcile the apparently inconsistent findings. As to that question, his Honour concluded, at page 710:

“… the fact that so intelligent and glamorous a woman as Miss Morosi…developed a romantic interest in him may raise his [Dr Cairns’s] standing in public eyes, and the fact that so important a figure as the Treasurer of the Commonwealth reciprocated her interest may raise her standing
in public eyes.

The imputation of an improper adulterous relationship would be harder to justify as not being defamatory, but the reputations of Anthony (sic) and Cleopatra have not been lowered in the eyes of the public by their romance, and in other days, the title of the King’s Mistress was one of honour.

….the simultaneous finding that there was the allegation of improper adultery between the two appellants and the finding that this is not defamatory is unusual, but not perverse in these days.”

89.      Mahoney JA agreed, expressing himself somewhat less theatrically:

(720) “… it would be open to the jury to conclude, for example, that the general community standards by which a sexual association is to be judged are not those of current religious or ethical principles. In my opinion, it would be open to the jury to conclude that a reasonable or right-thinking member of the community would take the view that religious or ethical principles, as currently understood or propounded, impose too high or too rigid a standard of sexual morality and that the standards by which the community judges sexual associations are, if not lower and more flexible, at
least different.

(721) At one time, a sexual relationship between unmarried persons was, I think, seen as necessarily discreditable. At the present time, at least a substantial part of the community would not see it as discreditable. And, more important for present purposes, the general community view would, in my opinion, be that whether such a relationship should be seen as discreditable will depend upon the case and the circumstances of it. At least, I think that it was open to the jury to see this as the current community standard.”

90.       There are a number of observations to be made in relation to this decision, even before the minority opinion is considered. First, it is not a decision that to allege that a sexual relationship has been engaged in outside of marriage is not defamatory. It decides only that such a finding is not perverse. Second, highlighted in the judgment of Hutley JA, was the inherent ambiguity of the imputation. Not every “improper” relationship between persons married, but not to each other, will be sexual or even adulterous. The third observation is that much will depend on the context. If it is, as with Antony and Cleopatra, portrayed in a sympathetic, even approving, manner by the author, it may be seen as beautiful or romantic, notwithstanding the lack of morality. Further, with due respect to Hutley JA, the “King’s Mistress” is probably now regarded with less favour than was the case in the seventeenth and eighteenth centuries. Fifthly, it is not merely a question of raising or lowering the “reputation” of a person or, indeed, of determining that the alleged conduct is “discreditable”. Of course, that may well make the accusation of such conduct defamatory, but it might also be so even if the effect is merely to render the person liable to derision or the subject of scandal.

91.       The dissent of Samuels JA makes, in my view, a number of valuable observations. These observations are not points of principle with which the majority in any way disagreed.

92.       The first is that a statement, such as one imputing lack of chastity in a person, does not cease to be defamatory because it is made about a person with a reputation for engaging in sexual activity outside of marriage. It may be that such a person would neither wish, nor care, to sue. It may be the damages, if suit was brought, would be nominal, even derisory. That does not affect the question as to whether the statement in question is defamatory.

93.       The second is that whilst his Honour was in conflict with the opinions of Hutley and Mahoney JJA as to whether the jury must have been unreasonable to find for the defendant, even though the pleaded imputation was found to have been conveyed, it is apparent that no member of the court considered the result to have been positively correct or even preferable.

94.       I consider that Samuels JA was correct in that sense when his Honour said, at page 717:

“… it seems to me that to charge a failure to keep a bargain, or a want of fidelity or fair dealing, is plainly defamatory, in the absence of exculpatory circumstances – and there were none proved here.”

95.       The decision itself has been the subject of some criticism. That criticism centres not so much on the essential findings, but on the lack of clarity of reasoning.

96.       Hunt J in Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386, described the Cairns/Morosi case as “an unfortunate muddle”. His Honour pointed out, at pages 403-404:

“The difference between the views expressed by the members of the Court of Appeal related not to how the matter complained of should have been construed … but to how the imputation which the jury accepted would have been construed by that jury.”

97.      The decision, in his Honour’s view, merely meant that:

“… even if there be a general condemnation of such associations within the community, it is possible to find exceptions to that condemnation, thus justifying the jury’s finding that the imputation was not defamatory of the plaintiffs.”

98.       With respect, I agree.

99.       In the present case, the author of the book certainly does not take a censorious attitude to extramarital sex, no more than he does to drunkenness.

100.       However, whilst to say that society condemns such behaviour is perhaps to put too high a point upon it, it would, in the absence of explanation or some reason proffered to except it from the general rule, be regarded, if not with derision or contempt, then, at least, with disappointment.

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

102.       In my view, publishers of matter alleging sexual misconduct should not assume, as it seems to me, from the text and tone of exhibits Q and 6, this publisher did, that the Cairns/Morosi case is some sort of licence to make such allegations free from the fear of a libel action, provided it falls short of an allegation of wanton adultery or promiscuity.

103.       There is no doubt that the form and content of the publication may, as Hutley JA speculated in Cairns/Morosi, though alleging sexual misconduct, so present the occasion or circumstances of it that the reputation of the participants is positively enhanced. It may enhance one party to it but not another. It cannot, however, seriously be contended, in my view, that any such enhancement of reputation or standing has occurred in this case. The degree of offence, outrage, derision or contempt will vary. To some persons, it would be highly offensive, even outrageous, that a woman would be guilty of lack of chastity. Others might take the view that such conduct, whilst not ideal, is fairly commonplace. There would be some, perhaps, who would adopt the slogan, “if it feels good, do it” and applaud such conduct.

104.       However, I have to abide by my view of the attitude, not of persons at either extreme, but of the ordinary reasonable reader generally. Even given the Labor bias likely among readers of the author’s works, there is every reason to suppose that such persons would predominantly adhere to what Mr Alfred Doolittle in My Fair Lady (a film based on the play, Pygmalion, by George Bernard Shaw) described as “middle class morality”.

105.       Those persons would find nothing in the context of the anecdote to take away the view that the “woman” had behaved immorally, surrendering her chastity not only to her future husband but also to another person. The degree of condemnation or disappointment such a reader would feel in the conduct of the woman is not material for present purposes.

106.       It is enough to say that I find that the allegation that the “woman” had been guilty of unchastity is defamatory of her. Each of Mrs Abbott and Mrs Costello is held out as being “the woman”, in the sense that it is one or the other of them. Each is therefore tainted by the suspicion, reasonably arising, that she is the one referred to.

107.       I am fortified in that approach by the decision of Hunt J in Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153. Allegations of sexual misconduct had been made against Greg Chappell, former Australian Test Cricket Captain. He sought an injunction to restrain publication. It was opposed on the basis that the matter complained of merely made allegations of sexual misconduct. Thus, the defendant said, the decision in case of Cairns/Morosi implied that the plaintiff had no reasonable prospects for success. Hunt J rejected that submission. The injunction issued.

108.       The plaintiffs seek damages for the injury suffered to their reputations, for the injury to their feelings aggravated by the conduct of the defendant in failing or refusing to apologise, and in failing to take steps reasonably sufficient to recall the offending copies.

109.       I have found that each of the plaintiffs has been defamed. It becomes necessary, therefore, to consider the issue as to damages.

THE EVIDENCE OF THE WITNESSES

Anthony John Abbott

110.       Mr Abbott is the Federal Member for Warringah. He is Minister for Employment Services.

111.       He studied Economics and Law at Sydney University between 1976 and 1980. Miss Tanya Coleman, as she then was, shared some classes with him. They were both active in student politics. Mrs Costello in fact stood against Mr Abbott for a position on the University Senate. She won. He was a delegate to the Australian Union of Students (AUS) from 1977 to 1979. He met Mr Costello as a “fellow activist”.

112.       Mr Abbott, though a member of the Liberal Club, was friendly with many such activists. Some were Liberal Club members, such as Mrs Costello, others were in the Right Wing of the Labor Party, or not of any particular political commitment.

113.       Mr Costello, he said, impressed him then as “charismatic” and “a Christian visionary”. (Mr Costello seemed somewhat surprised by this description).

114.       After university, Mr Abbott was a Rhodes Scholar. He took an MA at Oxford. After that he trained for the Catholic priesthood for two years, and served for one year as a pastoral assistant.

115.       He did not complete those studies.

116.       For a time he was a journalist. He joined the Liberal party after his marriage and also joined Dr Hewson’s staff as an adviser. The latter was then leader of the Liberal Party Opposition in the Parliament. He subsequently gained more of a public profile, prior to his election as a member of Parliament, as executive director of Australians for Constitutional Monarchy.

117.       On 5 March 1997, he was contacted by Mr Christopher Pearson, a Sydney journalist, who told him, “You have been seriously defamed”. Mr Pearson sent a copy of the relevant pages from “Goodbye Jerusalem” to Mr Abbott.

118.       When he first heard it read to him by Mr Pearson, Mr Abbott said his first reaction was “Who’d drag up this old story?”. He considered it “pretty bizarre, weird and hateful”.

119.       He also considered it “appalling” to bring Mrs Costello into it. He then reflected that, in truth, it was not clear that the passage did appear to refer to her. It could refer to Mrs Abbott, though he did not doubt Mrs Costello was intended to have been referred to.

120.       Mr Abbott himself wrote to the defendant that same day after discussing the publication with Mrs Abbott and Mr Costello.

121.       A response was received dated 6 March 1997. It was an unsigned copy. It now appears it was sent by accident. It denied the words were “actionable”. The fact that the words also told a lie did not seem important to the author of the draft letter.

122.       Nevertheless, Mr Abbott, shortly thereafter, became aware that the book was, notwithstanding this letter, being withdrawn from sale.

123.       He knew Mr Cavalier, the alleged source of the story, and believed him to be an honourable man. Mr Abbott felt it unlikely he would have told such a story but was concerned that Mr Cavalier’s name was mentioned as the source, thus giving it credibility.

124.       Mr Abbott continued to be offended by the defendant’s apparent attitude that it had done nothing wrong.

125.       Although some steps were taken by the defendant which could have been interpreted as conceding the untruth of the anecdote in question, Mr Abbott found it “incomprehensible” that the defendant never admitted that the matter was false and defamatory.

126.       He was gratified by Mr Cavalier’s prompt rebuttal of the story. He did, to his discomfort, meet Mr Ellis, the author of the book, at a function for St Patrick’s Day on 17 March, 1997. He commented to him that he felt the author had been “badly served”. That statement he intended as a reference to the publisher permitting the passage in question to be published. Mr Ellis merely responded that he thought he could “count on Cavalier to get it right”.

127.       Mr Abbott has heard some comment on the matter. Mr Leo McLeay, a Labor member of Parliament, he says, referred to him in the House of Representatives as “a book-burner” to the amusement of other Labor Party members. He has been asked to accept that the story is “true, isn’t it?”. He found that upsetting.

128.       Much of Mr Abbott’s concern was as to the effect on his wife. She was, he says, a “conscript” whereas he was a “volunteer” in the public political process. Some of his discomfort, he conceded, is due to the taking of legal proceedings.

129.       However, he does feel it necessary to have taken proceedings. An abject apology and compensation, as well as withdrawal of the offending passage were all necessary, he felt, to show that a defendant “can’t tell lies and get away with it”.

130.       It was suggested to Mr Abbott that he should accept that the defendant had done all it could to withdraw the book. He did not.

131.       It was also suggested that he, or his solicitors, could have written to libraries asking for withdrawal of the book from circulation.

132.       Mr Abbott responded that he did not consider that to have been his responsibility, nor had it occurred to him. He conceded that some steps by way of offers of amends had emanated from the defendant. It did not, however, seem to him to have been adequate.

Margaret Veronica Abbott

133.       Mrs Abbott was born and educated in New Zealand. She did not come to Australia until 1983. She met Mr Abbott in 1987. They married in September, 1988, and now have three daughters.

134.       Since Mr Abbott’s election in 1994, Mrs Abbott herself has become reasonably well-known, particularly in Mr Abbott’s electorate. She has also been active in school and local support groups.

135.       On 5 March 1997, she received a call from Mr Abbott saying that Bob Ellis had published a book which contained “nasty allegations” concerning him and the Costellos. He showed it to her the following day.

136.       She felt anger and disbelief and was uneasy and shaking when she read it. She felt concern about the phrase “determined to destroy him”. She was not physically concerned; she was worried what lies might be told, or used, against her husband. She assumed that it was Tanya Costello who was being portrayed as “the one woman”. However, she subsequently realized that it could be taken to refer to her by people who did not know her background, but knew only that she had married Mr Abbott.

137.       The story has been raised with her a few times since. She has not wanted to discuss it. Needless to say, the need to sue and give evidence has been particularly distressing for her.

138.       She accepted that politicians, to some extent, expect some “exposure”, even if unwelcome, and that this inevitably affects their families. However, this matter, she felt, was “beyond the call of duty”.

139.       Mrs Abbott did not consider, when asked by Mr Nicholas QC for the defendant to accept it, that the defendant had done its best to withdraw the offending passage.

Jean Francis Hay

140.       Mrs Hay has, since 1987, been both a councillor and newspaper columnist in the Manly area. She is a member of many local committees for various worthwhile causes. The Abbotts are, variously, members or patrons of many of them.

141.       It may be concluded, and I do, that the Abbotts, each in his or her own right, are well-known in the Northern Beaches area of Sydney. Their activities are frequently reported. I conclude that they would, as with most local Federal Members and their spouses, be regarded as community leaders.

142.       It follows from that, of course, that any scandal such as that related in the book would receive widespread attention.

143.       In Mrs Hay’s view, Mr Abbott is regarded as an “approachable” and “hard-working” local Member. Mrs Abbott is “highly thought of” and “very involved in the community”. There was, as she stated, “never a bad word for her”.

Josephine Ul

144.       Mrs Ul had known Mr Abbott when he was parish co-ordinator at Emu Plains. She later came to know Mrs Abbott. She has maintained a friendship with them since.

145.       When the book was published, Mrs Ul bought a copy to read. She came to page 472 and read the anecdote. She apparently understood that the “woman” was not Mrs Abbott but she wondered, she said, if Mr Abbott was having an affair. She discounted the thought almost immediately.

146.       However, the story did cause concern and comment in the parish. Some people asked, “Could it have happened? Was he pretending to be something he wasn’t? Had he been having an affair with the girlfriend of a friend?”. Some considered whether it meant that Mrs Abbott had had an affair with each of the two men.

147.       I appreciate that some of these questions would result from a process of speculation which is not part of the libel, though the libel sparked it off. Obviously, not every actual reader, or confidant of a reader, will be fair-minded. It does add to the hurt to the feelings of the defamed. It does not, of course, evidence what the defamatory meaning is.

148.       Mrs Ul has spoken to each of Mr and Mrs Abbott about the matter complained of. Mr Abbott was angry about it, denouncing the story as “absolute lies”. Mrs Abbott, she said, “gets emotional”.

149.       Before 1997, Mrs Ul said, Mr Abbott enjoyed a reputation for loyalty, integrity, honesty and high ideals. Mrs Abbott is held in high esteem for her honesty, integrity and high moral character.

Tanya Pamela Costello

150.       She has been married to Peter Howard Costello since 1982. They have three children aged 11, 10 and 4. Mrs Costello attended Sydney University between 1976 and 1980, graduating in Arts and Law, and from the College of Law, in 1981.

151.       She is the daughter of William Peter Coleman. Mr Peter Coleman was a member of the New South Wales Legislative Assembly. Between 1977 and 1978 he was leader of the New South Wales Parliamentary Liberal Party, then in Opposition.

152.       Mrs Costello was active in student politics. She was involved in the University Liberal Club. Her student activities included the Evangelical Union and the Union Board. She was a delegate from Sydney University, in 1978 and 1979, to the Australian Union of Students.

153.       At that time, students with moderate to conservative political beliefs had become concerned with what they perceived as extremist Left Wing students pushing revolutionary causes rather than issues of real concern to students. There was a coalition of opponents to those extremists. They ranged from the Right of the Labor Party to Right Wing Conservatives. Many such students were not particularly aligned either to the Labor or Liberal side of politics. She knew Mr Tony Abbott at university. He was then President of the Student Representative Council (SRC).

154.       She met Mr Peter Costello through her AUS activities. He was a student then at Monash University.

155.       Mrs Costello, since her marriage, has been actively involved with her local Anglican Church. She is now a member of the Liberal Party. Since her husband became a member of Parliament in 1990, she has attended with him many Party and electorate functions. She has worked both as a solicitor and legal adviser. Currently she is a part-time research officer with the Scrutiny of Bills Committee of the Victorian Parliament.

156.       On 5 March, 1997, Mrs Costello received a message from her father, Mr Peter Coleman. He said Mr Christopher Pearson had told him of the launch, on 3 March, of Goodbye Jerusalem.

157.       He said to her:

“Darling, I’ve tried to ring Peter. Christopher Pearson has told me of a scurrilous statement about you and Peter. I can’t read it to you. I’ll fax it.”

158.       He did so. She read it and was understandably shocked. She was shaking. She said she “could not believe such disgusting lies were being told by some apparently reputable person”.

159.       It is apparent to me that Mrs Costello was genuinely and deeply hurt and offended by this anecdote published in the matter complained of. She is, I am satisfied, a deeply religious person who valued her reputation not only as a person who would not manipulate others, but also as a person who would not lightly depart from the canons of sexual morality as the anecdote suggests. I appreciate that I do not find that the imputation of manipulation would have been conveyed to the ordinary reasonable reader, but that meaning did occur to Mrs Costello and caused her distress.

160.       I also infer that she was additionally the more hurt because the story was attributed to Mr Rodney Cavalier, who won the seat of Fuller from her father. My impression was that, though obviously his politics differed from hers, she considered Mr Cavalier to be an honourable man.

161.       That hurt was relieved when she heard that Mr Cavalier had denied being the author’s source for the story and had denied its truth.

162.       Mr and Mrs Costello agreed that they would have to confront the defendant and demand a retraction and apology. She has, of course, read the correspondence in the matter between the parties. She feels that it has been “very poor” of the defendant not to apologise even though it acknowledged that the story was false. She does not feel the defendant took seriously enough the task of recalling the books from libraries. There were three in her local library, though they are listed as “missing”.

163.       Mrs Costello found the story “shameful”. She was concerned that she was held up as immoral to her family, her friends, her children and her local church community. She felt it necessary to talk to her local Minister, Rev Neil Bach, personally, to tell him it was untrue, lest he hear of it on the grapevine.

164.       Since 1996, she had been on the board of Ridley College, an Anglican Church school. It was also on her mind that the school authorities might think her an inappropriate person to be on the board if the anecdote was not refuted.

165.       She had also been upset to be told by a friend of hers, Mrs Theana Thompson, that her husband, Mr Murray Thompson, had attended a function at the Melbourne Sports and Aquatic Centre and had overheard a “sniggering” conversation about the case and the matter complained of. That was well after the plaintiffs had sued and only a few months before the trial. It seemed to have been triggered by news that the case was due to be heard.

166.       Mrs Costello still suffers from a lurking anxiety that the story, false though it is publicly acknowledged to be, might be out there somewhere and resurface.

167.       In cross-examination, Mrs Costello conceded that she had read only the references in the book concerning herself. However, she did not accept that the work was to be regarded as the random musings of a “methylated” outsider.

168.       Mrs Costello also responded to Mr Nicholas QC, and I accept her response as both genuine and reasonable, that what offended her most about the story was the imputation of unchastity. She was concerned that people might even go further and speculate that she had been “promiscuous”.

169.       As I have said, I do not think the ordinary reasonable reader of the book would think that, even if accepting the story as true, but it is reasonable, I think, for Mrs Costello to fear that they might.

170.       Of course, as she conceded, no-one who really knew her would have believed the story. Nevertheless, she did hear that Mr Bill Hayden, former Governor-General, had asked if it was true. That added to her distress.

Peter Howard Costello

171.       Since graduating in Arts/Law in 1979, Mr Costello has been a practising solicitor and then, between 1984 and 1990, a barrister. In 1990, he was elected to Federal Parliament as the member for Higgins. He became Deputy Leader of the Parliamentary Liberal Party in 1994 and, since 1996, has been Treasurer of Australia. He has, in the absence of Mr John Howard and Mr Tim Fischer, acted as Prime Minister of Australia from time to time.

172.       During his time as a student he had taken an active role in a campaign to wrest control of AUS from those of the far Left. He was not a member of a specific political club or party. He met Miss Tanya Coleman, as she then was, in the course of AUS political activity. She was a Liberal Club member (Sydney) and known, of course, as the daughter of Mr Peter Coleman, himself well-known as the New South Wales Liberal Party Leader.

173.       He recalled that, in March 1997, he was in Canberra and received a ‘phone call from his wife. She was “highly distressed”. She said that the author, Bob Ellis, had published the “most foul lies” about her. She told Mr Costello the substance of what the author had written. She said something had to be done about it; she could not bear the thought of the lie being “out there”.

174.       Mr Costello then arranged for a staff member to get him a copy of the book. That was done. He read the part referring to him. He was shocked. He rang Mrs Costello and attempted to console her.

175.       When he saw her the next day, she was pale, withdrawn, teary, furious and angry. The effect on her, he said, was the most dramatic he had observed since a serious illness several years before.

176.       Mr Costello, in my view, commendably, was more concerned for his wife than himself. He was angry, of course, at the effect on her. However, he was also angry that it was an attack on him and his political integrity, but through denigrating his wife. He felt it was a “new low” in the level of personal attacks from an apparently respectable publisher.

177.       He felt outraged and helpless; “anybody can do anything to you”, he said.

178.       At first, his upset was worsened by the thought that it did, in fact, emanate from Mr Rodney Cavalier who had known them for nearly twenty years. When he learnt that Mr Cavalier had not said it, he was further outraged that Mr Cavalier’s name had been used to give the story a false air of credibility.

179.       Mr Costello rang a lawyer, Mr Peter Bartlett, whom he knew from his time in practice. He told him of the book and his concerns about it. He felt uneasy about the responses. Mr Bartlett, he felt, was not being frank with him. He asked Mr Bartlett if he acted for the publisher. Mr Bartlett replied, “I don’t have instructions yet”.

180.       If accurately recalled, that answer was misleading. As the evidence discloses, Mr Bartlett had, in fact “legalled” the book for the defendant. That is, he had advised on the possible exposure of the publisher to defamation or breach of copyright actions.

181.       Next day, Mr Bartlett and Mr Costello spoke again. Mr Bartlett said that he believed he could get the defendant to issue a corrigendum and correct the story in the second edition. That, Mr Costello told him, was not satisfactory; it would only draw attention to the libel.

182.       He then asked Mr Bartlett, “Are you putting this on behalf of me and my wife or Random House?” Mr Bartlett said, “Both”. Mr Costello responded, “I don’t see how you can”. That, of course was an understatement.

183.       Mr Costello did become aware of the withdrawal of the book, reported on 14 March, 1997. It did not, as his checks of book stores by his staff revealed, cause its immediate removal from sale.

184.       Despite several communications from his solicitor to the defendant, no apology was forthcoming. That caused Mr Costello concern. He regarded the steps taken to get libraries to withdraw copies as inadequate.

185.       Nor was he at all comforted by advice from the defendant, through its interrogatories, that it relied on Mr Ellis alone for its acceptance of the truth of the story, nor by the revelation that not only was the book vetted by a lawyer, but by Mr Bartlett, who had failed to consider the story libellous though the latter knew him well.

186.       In short, he found the entire affair both stressful and distasteful, including the bringing of these proceedings as part of the ordeal.

187.       A number of matters were raised by Mr Nicholas QC, for the defendant, with Mr Costello in cross-examination. Mr Costello did agree that he was, to some extent, pleased that the book had been recalled and the story debunked, though he remained concerned that copies were out there and “the rumour mill” had started.

188.       He regarded it as the defendant’s responsibility to apologise, though he agreed it had offered to consider doing so. He remained offended, however, at the defendant’s insistence, which was maintained throughout the proceedings, that the story was not defamatory. It appeared to him that the defendant was only prepared to apologise because the matter complained of had been “misunderstood”.

189.       Mr Costello considered that the legal action, though an ordeal in itself which also, regrettably, drew attention to the terms of the libel, was necessary. It was necessary, he believed, to “nail the lie”. He considered it legitimate to seek compensation.

190.       There was no challenge to the evidence Mr Costello gave. However, it should be said that the law does consider it legitimate for a person libelled to “nail the lie”. Further, although I will refer to this in more detail later, it is incumbent on a publisher of matter it knows to be untrue to correct it. The defendant seemed to consider it need not do so if the lie, though hurtful and damaging, was either not defamatory or, even if defamatory, not likely to lead to legal action.

191.       I do not agree with the defendant’s implied suggestion that there is something discreditable in a plaintiff seeking damages and expecting a defendant to make amends for the wrong it has done.

Theana Thompson

192.       Mrs Thompson is a solicitor and the wife of Mr Murray Thompson, formerly a solicitor but now a Liberal member of the Victorian Parliament for the electorate of Sandringham.

193.       She had known Mr Costello at Monash University through the Evangelical Union. She had been in the Liberal Club. He was a member, not of that group, but of the Law School’s Christian group.

194.       Mrs Thompson has known Mrs Costello for the past seventeen years. She had attended the Costellos’ wedding.

195.       In April 1997, Mrs Costello first mentioned the book. She had said that Bob Ellis had written a book containing a passage she found offensive and disgusting. She said that it referred to Tony Abbott and his wife as well, but to those who knew her (Mrs Costello), it was an attack upon her.

196.       From Mrs Thompson’s description of Mrs Costello’s demeanour, I conclude that Mrs Costello was still genuinely and deeply upset.

197.       The incident at the Aquatic Centre was much later. It was Mr Thompson who overheard the conversation on 20 February, 1998. Mrs Thompson’s recollection of what she was told is relevant only insofar as she communicated it to Mrs Costello. She told Mrs Costello that Mr Thompson had overheard mention of the names “Abbott and Costello” in the context of a “sexual innuendo”. Mrs Costello, she said, seemed both “angered” and “aghast” at this subsequent emergence of the matter in public discussion.

198.       Mrs Thompson gave evidence of Mrs Costello’s reputation. She is highly regarded as both intelligent and well-read, and as the “back-bone of her church community”. Her character and morals are regarded as “impeccable”. She has a broad circle of friends.

199.       She also knew of Mr Costello’s reputation in the same circles. He is regarded as professional; an able and intelligent man who is a man of his word. He values the truth highly. He has high moral principles. His conduct is proper at every level.

200.       That evidence was not challenged. Mrs Thompson was only questioned as to whether she had read the book in question. She had only read the two pages: 472 and 473. She did not believe the anecdote to be true. It seemed to her to be “drunken drivel”.

Murray Ross Thompson

201.       Mr Thompson is a former solicitor and has been the Victorian State member for the seat of Sandringham for the past six years. He had known Mr Peter Costello at university, though he was a contemporary of the latter’s elder brother, Reverend Tim Costello. He did attend Mr Peter Costello’s wedding, and there, naturally enough, met Mrs Tanya Costello. He is chair of the Parliamentary Committee for which Mrs Costello is a legal officer.

202.       He gave an account of the function he attended at the Melbourne Sports and Aquatic Centre in February 1998. Members of the legal profession and the Parliament were among the guests. He overheard a conversation in which the words “Costello” and “fuck” occurred apparently frequently. He asked the person speaking what it was that he was talking about: was it about a court case involving Costello?

203.       The reply was to the effect that there was a case involving Abbott and Costello. It involved what the word “fuck” meant. There was, apparently, great play made of that and the fact that Messrs. Abbott and Costello were serving alongside each other in Parliament.

204.       It appears that the tone was of ribald amusement at the expense of Mr Abbott and Mr Costello.

205.       Mr Thompson passed on a sanitised version of this conversation to Mrs Thompson who, in turn, told Mrs Costello of it.

206.       In Mr Thompson’s view, Mr Costello enjoys a high reputation amongst those who know him. He is a man of integrity who takes his Christian faith seriously.

207.       Mrs Costello is highly respected, a woman with high principles, a prominent and practicing Anglican.

William Peter Coleman

208.       Mr Peter Coleman is the father of Tanya Costello. He was, between 1977 and 1978, Leader of the Liberal Opposition in New South Wales. From 1979 to 1981 he was Administrator of Norfolk Island. Between 1981 and 1987 he was Federal Member for Wentworth.

209.       In the late 1970s, he came to know Mr Abbott and Mr Costello as friends of his daughter.

210.       It was following the launch of Goodbye Jerusalem on 3 March, 1997, that he was contacted by Mr Christopher Pearson. Mr Coleman had been a journalist and an editor of both Quadrant and the Bulletin and knew Mr Pearson. Mr Pearson said that there was a passage in the book that defamed Messrs. Abbott and Costello and Mrs Costello. He read it out and faxed a copy to Mr Coleman, as he also did to Mr Abbott.

211.       Mr Coleman considered the passage “despicable fiction”. He tried to contact Mr Costello. He could not do so, but did contact Mrs Costello. He introduced it to her as “a disgusting lie” about her. He could not bring himself to use the language in the passage. He faxed her a copy. They spoke later. Mr Coleman urged Mrs Costello to take action.

212.       He described his daughter’s reaction to the passage as “controlled rage”. It was as if, he said, she had been “punched by a stranger”.

213.       Mr Coleman has not discussed it much with Mr Costello but senses that he, too, reacted with “controlled rage”.

214.       Knowing Mr Cavalier, he had found it difficult to accept that the latter was the source.

215.       He did take it upon himself to check bookshops for the book for some time after it was officially withdrawn. He last noticed it on sale some time into April, 1997.

216.       Mr Coleman considered Mr Costello’s reputation as being that of a man of strict principle and commitment. Mr Abbott he knew as a man of conviction, with a reputation for being open and candid.

Reverend Neil Sebastian Bach

217.       Reverend Bach is the Vicar of St Colin’s Anglican Church, Hawthorn, Victoria. That is the church the Costellos attend.

218.       In early 1997, Mrs Costello raised with him the story told in Goodbye Jerusalem. She said it was “troubling” and that they would have to take action. He was of the view from that, and two other conversations about the matter, that Mrs Costello was genuinely troubled by the story. She was in a state of disbelief. Her demeanour was subdued.

219.       He considered that Mrs Costello’s reputation was of the highest standing. She is a woman of “deep compassionate faith” and moral integrity.

220.       Mr Costello, he regards, perhaps unusually for the image usually bestowed upon a Treasurer, as warm and compassionate; a man who lives according to Christian principles.

221.       This evidence was not challenged. I have no hesitation in accepting Reverend Bach’s evidence.

Anthony David Smith and Mitchell Peter Fifield

222.       Anthony Smith and Mitchell Fifield were political advisers to Mr Costello. They had been despatched to buy copies of the book with the offending passage in it.

223.       They confirmed the genuine upset and outrage of which Mr Costello himself gave evidence. That was not challenged.

224.       That some book stores were slow to respond to the defendant’s recall notices would be concluded from their evidence. They also heard, not surprisingly, gossip about the matter around Parliament House.

Rodney Mark Cavalier

225.       Mr Cavalier is a statutory office holder. He has been a state organiser for the Miscellaneous Workers’ Union. He was the New South Wales Member of the Legislative Assembly for Fuller. He won the seat from Mr Peter Coleman on behalf of the Labor Party. He was member for Gladesville from 1981. From 1984, until he retired, he held ministerial office in the NSW State Government.

226.       He stated that he had known the author, Bob Ellis, since about 1986. He had moved to Bowral in 1992 and the author had visited him there. They worked on a film script together. He also knew Mr Abbott.

227.       In March 1997, he saw the text of Goodbye Jerusalem. It was launched, he recalled, by the Hon. Neville Wran QC, a former Premier of New South Wales.

228.       He saw the words attributed to him at page 472 of the text. It was his evidence that “nothing like that was said by me”. No-one had sought, before publication, to check the story with him. After publication, he recalled, a woman had rung him to check the accuracy of the publication. He told her it was inaccurate. There was no reason, he said, why he could not have been contacted before publication. His ‘phone numbers were listed.

229.       Importantly and essentially, he stated in evidence:

“The story is not true and I did not tell it”.

230.       After the publication of the book, Mr Abbott discussed the matter with him. To Mr Cavalier, he appeared angry and distressed by the anecdote concerning him.

231.       Various people had subsequently asked Mr Cavalier about the story, in terms such as “Did you say it?”, “Is it true?”.

David Anthony Spicer

232.       Mr Spicer is the journalist referred to by the author in less than flattering terms on pages 34 and 52. He is a current affairs journalist employed by the Australian Broadcasting Corporation (ABC).

233.       Not surprisingly, he heard a number of comments about the Abbott and Costello story.

234.       Commentary amongst journalists is probably not typical of the community generally. Amongst journalists, he said, Mr Costello has a reputation as a talented achiever.

William George Hayden

235.       Mr Hayden, who disarmingly described himself as a “farmer”, had been a member of the House of Representatives. He had served as the last Treasurer in the third Whitlam Government. He was leader of the ALP Opposition between 1977 and 1983. Until 1988, when he resigned from Parliament to take up office as Governor-General, he had been Australia’s Foreign Minister.

236.       He obviously has had a great deal of experience of public political life. He was called for two purposes.

237.       The first was to attest to his understanding of the matter complained of. He had read the book in April 1997, so far as it related to him. Later, alerted by an article written by Mr Pearson, he read the references to Messrs. Abbott and Costello.

238.       He knew Mr Abbott. He first met Mrs Abbott at the launch of a book written by Mr Abbott. He wondered if Mrs Abbott was “the one” referred to as “sexually licentious”. He “strongly suspected”, however, that the story was untrue. He felt that he was invited to consider that the woman was “a schemer” who caused two men to betray their principles to go to bed with her. He felt the story would be politically damaging for all of them.

239.       That evidence is not admitted to prove the meaning of the matter complained of. Indeed, my assessment is that the ordinary reasonable reader would conclude that some of Mr Hayden’s view of it was as to the speculation which rumour mongers might adopt.

240.       Nevertheless, it does suggest that damage might occur due to the very process of repetition of the rumour by those interested in politics and politicians.

241.       The second reason for calling Mr Hayden was to establish the need for deterrence. This was objected to. Mr Hayden said that the fact that such rumours are started, though without foundation, (he, perhaps unwisely, gave some examples) would deter people of talent and repute from entering political life. The price may seem too high.

242.       I do not consider that this matter is properly the subject of “specialised knowledge” within the meaning of s79 of the Evidence Act 1995 (Cth). Matters of public policy are essentially community standards for the tribunal of fact to apply, as that tribunal perceives them to be. The matters referred to by Mr Hayden would, in my view, be relevant considerations, only if exemplary damages are to be considered. They are not relevant to the assessment of compensatory damages.

243.       If I had been sitting with a jury I would have excluded this evidence. It could be unduly prejudicial if coming from a person of such eminence as Mr Hayden. I do, therefore, emphasise that I do not have regard to this evidence, or like evidence from Mr Oakes in considering the matter. Even if exemplary damages are to be considered, the court must use its own knowledge and understanding of the need for deterrence. It is not a matter that should be the subject of evidence.

244.       I say that with no disrespect to either of those witnesses. Nor is it because I consider their opinions ill-founded. Far from it. I would have come to the same view myself.

245.       It was suggested to Mr Hayden that the story was too preposterous to cause serious offence, and that it was plain that there was no truth in it. Not surprisingly, Mr Hayden did not accede to those suggestions.

246.       I am not sure what purpose would have been served had Mr Hayden agreed with those suggestions. After all, it is the likely reaction of the ordinary reasonable reader which is relevant to the presumed damage. It may affect actual damage if it was suggested that Mr Hayden had formed an adverse view of any of the plaintiffs.

Laurence Edward Oakes

247.       Mr Oakes is a pre-eminent political journalist. He co-edited Honi-Soit, the Sydney University student newspaper, with the author of the book.

248.       He heard gossip about the Abbott and Costello story for a few days before the book was pulped. He bought a copy of the book at Manuka in the Territory.

249.       As he said, journalists love stories of sex and political defections. Journalists also like to assume gossip to be fact. So it was with this story.

250.       Mr Oakes assumed the “woman” to be Mrs Costello. He did not believe the story but felt it had added credibility because Mr Cavalier was quoted as its source. He considered that the story would be damaging, if believed. It portrayed Messrs. Abbott and Costello as moral and political hypocrites. That is, I would interpolate, the view of an informed journalist. The ordinary reasonable reader would be, as I have noted, less scathing.

251.       Those had not been imputations which had occurred, it seems, to the plaintiffs. They are not imputations which naturally arise from the matter complained of. That is, of course, no criticism of Mr Oakes. He knows of extrinsic facts not in the public arena; presumably the espousal of high religious and moral standards by the plaintiffs.

252.       In his view, more relevantly, the story has aroused doubts about the political sincerity of the two men. I agree that that is the essence of it so far as the average reasonable reader is concerned.

253.       Mr Oakes was also called to give evidence as to the deterrent effect on would-be politicians, of unfounded rumours of misconduct, including sexual misconduct, against politicians and their spouses. As with Mr Hayden’s evidence, I reject this evidence as inadmissible but, as I said, I happen to agree with Mr Oakes. People who relay unfounded rumours, discreditable to others – it used to be called backbiting and calumny – engage in conduct which is not only hurtful to others, but destructive of the community good. If persons engaging in such conduct find themselves paying substantial damages, then that does not seem to me to be a result destructive of freedom of speech. It encourages responsible speech. There are other protections for the responsible airing of allegations which, however, turn out to be untrue or are unproved. No defence of fair comment or qualified privilege of any kind has been raised in these proceedings.

Dr Warwick Scott Cathro

254.       Dr Cathro is the Assistant Director-General of Services to Libraries in the National Library. It was his evidence that had he, or someone senior in library services, been consulted, a list of stocks of the first edition of Goodbye Jerusalem held by 800 libraries, including about 200 public libraries, would have been obtainable.

255.       Additionally, a person seriously interested in that information could:

*       enquire of library supply companies (there are only six or so);

*       access library catalogues on the Internet (although time-consuming); and

*       enquire of regional networks for State and school libraries.

256.       Of course, that information might not be completely accurate.

257.       Nevertheless, it seems to me to warrant a conclusion that the defendant was less than diligent in recalling library stocks, given that it did not take any of those steps until nearly twelve months after publication or, at least, none which were particularly effective.

Andrew Ronald Leake

258.       Mr Leake is the Business Manager for the defendant. He had been appointed to that position in February, 1998. Mr Leake was given the task of recalling copies of the first edition of the book from libraries.

259.       He was advised to contact the State Library. He did so. He was directed to the list Dr Cathro referred to. That yielded a list of libraries identified as having the book. He then telephoned and faxed various libraries to discover whether they still held the first edition and, if so, offering to replace it with a second edition on return. At four to six weekly intervals, the stocks of first edition books would be sent to Melbourne for destruction.

260.       Mr Tobin QC, for the plaintiffs, did not challenge Mr Leake’s efforts. However, he did, understandably, explore the question as to why it took so long to commence the process.

261.       Unfortunately, Mr Leake had little or no knowledge of any prior action to access libraries or the half-dozen library suppliers. However, he believed the recall notice would have gone to those suppliers.

262.       Of course, that action might have yielded undistributed copies. It was unlikely to have caused the supply companies to tell their client libraries to return the copies they held.

263.       It appears that Mr Leake’s efforts were not entirely successful. About half of the libraries which listed the first edition amongst their holdings still did so as late as April, 1998.

Linda Clare Funnell

264.       Ms Funnell is a literary editor with the defendant. She negotiates with authors and their agents. Perhaps ironically, she was at the time she dealt with this book, Fiction Publisher.

265.       In May, 1996, in that capacity, she took over management of the proposed book, Goodbye Jerusalem. There was a contract with the author. Somewhat optimistically, it contained a warranty by the author that:

“… to the best of the Author’s knowledge it contains nothing obscene or libellous and the Author will indemnify the Publisher against any loss injury or damage (including any legal costs or expenses properly incurred) occasioned to the Publisher in consequence of any breach (unknown to the Publisher) of this warranty.”

266.      However, as Ms Funnell read carefully each part of the manuscript as it was from time to time presented, the defendant cannot claim that there was anything in it that it did not know of. Whether material would be characterised as “obscene” or “libellous” is a question of law. However, it would usually be the case that, if a publisher is aware of what was to be published, it could not excuse itself under this clause simply because it did not define the matter in question as “obscene” or “libellous”.

267.       It could not be claimed that the Abbott and Costello story passed unnoticed by Ms Funnell.

268.       The original manuscript was altered, not merely as to format:

*       “…Rodney Cavalier’s gusty account of history” became “gutsy”;

*       “…we’re both in the Right Wing of the Labor Party” became “… they’re both …”; and

*       in the final line of the story, the word “ABOMINABLE” became “UNTHINKABLE”.

269.       Whether the changes resulted from Ms Funnell’s own efforts or the suggestions of the author is not clear. It does, however, indicate that Ms Funnell could not claim that she had not noticed or not understood the passages in question.

270.       By 12 December, 1996, most of the manuscript had been received. The remainder followed shortly. Ms Funnell sent it to Mr Peter Bartlett, of Minter Ellison Morris Fletcher, Lawyers, at Melbourne. Ms Funnell understood Mr Bartlett to be an experienced defamation lawyer.

271.       She asked him to read the manuscript, “… and advise of any passages that are defamatory and may be actionable”.

272.       That request contains some ambiguity. A libellous statement may be well known to have been true or, even if untrue, published on a privileged occasion. It could be based on admissions or statements published by the subject of the libel. Some passages in the book were, indeed, in that category. It appears though, that Ms Funnell’s concern was not as to whether the subject of a libellous statement had a good cause of action, but whether they were likely to sue.

273.       A response was received from Mr Bartlett on 2 January, 1997. It covered seven pages. It identified over fifty names of persons who might consider themselves defamed and take action. Most of them were well-known political figures, present and past. Changes, or at least, inquiries, were advised.

274.       Ms Funnell discussed the suggested changes and queries with Mr Ellis, the author. It is not entirely clear from the notations who suggested what, but it is clear that a number of deletions were agreed upon. Some of the passages referred to in Mr Bartlett’s letter simply do not appear in the final version. For that reason, I restricted access to the document lest unfounded rumours, not even deemed publishable by the defendant, be placed in the public arena.

275.       Those comments were then further discussed with Mr Bartlett. Some further notes were made. It was Ms Funnell’s evidence that if Mr Bartlett had suggested that material was libellous (by which she meant likely to be sued upon), she would have had it deleted or changed accordingly.

276.       It was Ms Funnell’s assertion that, whilst she read and understood the matter complained of, she did not consider it defamatory. She accepted that it was presented as a factual story told by Mr  Cavalier. However, she did not check with Mr Cavalier nor, of course, with either of Messrs. Abbott or Costello. She was aware that Mr Ellis often applied the word “methylated” to himself in the book. She took that to mean “drunk”. He had, she agreed, described himself frequently therein as having been the worse for wear for drink on a number of occasions referred to in the book. There were “facts” which, when checked, turned out to be untrue, though otherwise asserted. The author confused Mr Spicer with another journalist who asked the offending question referred to on page 34, and had to apologise for it.

277.       She said she did not consider it defamatory to suggest that the persons referred to had “fucked” before their respective marriages. She was reluctant to concede that the passage conveyed the meaning that the two men had been induced, by their relationship with “the one woman”, to change political allegiances.

278.       If, as Ms Funnell says, that meaning did not occur to her, then her powers of comprehension of the English language must temporarily have deserted her. None of the subsequent readers whose views have been drawn to my attention, nor, indeed, the author in his preamble to the anecdote, had any such difficulty. She ultimately conceded that the “woman” was portrayed as the catalyst for the political conversion of the two men. The truth is, I think, that both Ms Funnell and Mr Bartlett assumed the story to be true, and, so, unlikely to be sued upon.

279.       Even so, Ms Funnell did concede to Mr Tobin QC that she was aware that publication of the story would cause consternation to the plaintiffs. It was intended, she agreed, to “needle” them. As it is false, she now concedes that it has been damaging, in fact, even if not libellous.

DAMAGES – COMPENSATORY

280.      So far as such damages are concerned, the method of calculation is to be performed in accordance with the laws of this Territory; that is, notwithstanding that the publication occurred throughout Australia: see Stevens v Head (1993) < !A HREF="/html/highcourt/0/93/ /HC000080.htm">176 CLR 433. Thus, the limitations imposed by recent amendments to the Defamation Act 1974 (NSW) have no direct application. The first of them (damages to be assessed by the judge, not the jury) is not relevant to this trial. The second requires that there be an “appropriate and rational relationship between the relevant harm and the amount of damages awarded” and that the judge “take into consideration the general range of damages for non-economic loss in personal injury awards …” (ss 7A and 46A). It does not seem to me that those provisions go beyond the approach suggested as appropriate in Carson v John Fairfax & Sons Limited (1993) < !A HREF="/html/highcourt/0/93/0/HC000330.htm">178 CLR 44.

281.       There are some inherent differences from personal injury awards which prevent a direct correlation. The amount of damages must be sufficient, not only to compensate for wounded feelings, but also to vindicate the plaintiff’s reputation. In the present case, the plaintiffs did not produce any evidence of actual damage to their reputations. Some damage is presumed. Whether s46A alters that position in any way is not entirely clear. However, fortunately, I do not need to consider that question. (see Amalgamated Television Services Pty Ltd v Marsden (supra)).

282.       In Timms v Clift [1998] 2 Qd R 100, the court reduced a verdict of $165,000 to $82,500 after consideration of the admonitions in Carson (supra).

283.       Crampton v Nugawela (1996) 41 NSWLR 176; (1997) Aust Torts Reports ¶81-416, pointed to the difficulties inherent in reducing a high award by a jury. There are no reasons. A complex range of considerations may well have been open. As Mahoney ACJ saw it, there is a “wide scope for inferences” including complex contingencies. Even the sum for distress and anguish involves a social judgment. A reputation cannot readily be compared to a leg.

284.       There are few instances where a verdict has been increased for inadequacy. Humphries v TWT Ltd (1994) < !A HREF="/html/feddec/0/93/1/FD005690.htm">120 ALR 693, was such a case. The imputation disparaged a government minister’s frugality concerning official expenses. There was no imputation of “rorting”. The error was corrected the same day. The total for these expenses had been mis-stated as being considerably larger than they really were. The trial judge awarded $8,000 for compensatory damages. A Full Court of the Federal Court increased that award to $28,000.

285.       The court must bear in mind the extent of circulation, the gravity of the imputations, the apparent authority of the publication, its context and the circumstances of aggravation.

286.       Of assistance also is the recent decision of Crispin J in Kelson v David Syme & Co Pty Ltd (Supreme Court of the ACT, 3 July 1998, unreported). A sum of $75,000 (including aggravated damages) was awarded in respect of a publication imputing guilt of harassment in the work place. There had been an apology four weeks after publication.

(i)       Injury to reputation

287.       It is legitimate, in assessing general damages, to have regard to the nature and extent of the reputation enjoyed by the plaintiff before he or she was traduced. This may have the apparent effect that those who have high community profiles, such as politicians, lawyers, actors and public commentators, will receive a higher award than a person with a lesser public profile, though similarly traduced. That perception can be misleading. A person may have earned a reputation which has negative aspects to it that are well-known. I will not give examples. Mr Hayden found, to his embarrassment during the hearing, that to do so may cause offence. Nevertheless, such negative aspects may actually depress damages. Suffice to say that the matters referred to by Brennan J in Reader’s Digest Services Proprietary Limited v Lamb (supra) at page 507, are clearly relevant.

288.       The imputations concerning Mr Abbott and Mr Costello were, in my view, potentially very damaging. I take that view independently of the evidence of those involved in politics and journalism. A politician depends very much on the popular perception of his or her reputation. Damage to it can lead to lack of political advancement within his or her Party or support groups. It can lead to political demise. It is also necessary, given the nature of the duties of a parliamentary member, that the spouse of a member be seen as “above suspicion”. Nor is it trivial because the general effect of the imputations is to cause ridicule, rather than hatred or loathing. A lessening of admiration and respect may be seriously damaging even if it does not cause a person to be shunned or avoided.

289.       Yet at the same time, for some groups amongst whom the plaintiffs move, their political colleagues and church groups, the imputations would have been regarded more seriously than by the general public. The plaintiffs could have been regarded, so far as the men were concerned, as potentially politically disloyal, as well as likely to be distracted from their principles by sybaritic attractions. The women might have been regarded as lacking the strong religious convictions they appeared to possess or, at least, having a tendency to fall from moral rectitude.

290.       However, whilst much damage might have been done, I am satisfied that, by now, most, if not all, political journalists, politicians, Party members and persons actively interested in matters political, would now accept, if they did not before, that the matter complained of had no truth in it. The same may be said of those who interact with the plaintiffs in the church and community groups to which they belong.

291.       In this case, the defendant did not contradict or seek to qualify the evidence supportive of the high reputation enjoyed by each of the plaintiffs. Any actual diminution of those reputations caused by the libel has, in my view, been transient. That has, in part, been due to the action taken by the defendant to withdraw the book from circulation. That must be given due weight in mitigation of the damage which might otherwise have flowed from the publication.

292.       Details of circulation of the book are not entirely clear. It seems that 8,189 copies were invoiced out to various book shops, or book departments in larger stores. Mr Ford, Finance and Operations Director of the defendant, deposed in his affidavit that 4,795 were returned unsold. It appears that most were sold in New South Wales.

293.       The total stock produced was 8,760. How many went to, or came back from, library suppliers is not clear. Nor is it clear how many libraries that held copies returned them. The State Library of Victoria, for example, decided to keep its stock but to keep it out of public access. Some copies marked as “held” had, in fact, been stolen.

294.       A book is, of course, more of a permanent record than is a newspaper though, no doubt, archives could be accessed to find a libel in a newspaper. It is not entirely lost to circulation after the day of issue. A book also can be passed from reader to reader. Extracts from newspapers may also, but less commonly. The fact that this book contained a libel will no doubt enhance its desirability as a collector’s piece. Further, various newspaper reports have, albeit with rebuttal thereof, repeated the text or substance of the offending matter. The difficulty of the “bane and antidote” created by that mode of publication is illustrated by Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418 (note).

295.       Further, those passing on rumours, maliciously or otherwise, will quite often disclaim belief in their truth, not always genuinely, thus ensuring that the adverse rumour reaches many others, some of whom will accept it as true or, at least, possibly true. In this case, as I have said, the damage to reputation may have in fact been minimised, but the “flow-on” injury effect remains at least among those who, not knowing the plaintiffs, hear the adverse rumour and place some belief, however tentative, in it.

296.       The other relevant element of ordinary compensatory damages is as to injured feelings.

(ii)       Injury to feelings

297.       This may, in many cases, constitute the greater part of the damage.

298.       Lord Diplock explained in Cassell & Co Ltd v Broome [1972] AC 1027 at page 1125:

“The harm caused to the plaintiff by the publication of a libel upon him [or, of course, her] often lies more in his own feelings, what he thinks other people are thinking of him, than in any actual change made manifest in their attitude towards him. A solatium for injured feelings, however innocent the publication by the defendant may have been, forms a large element in the damages … even in cases in which there are no grounds for “aggravated damages”…”

299.       The grief or distress at being defamed will, no doubt, vary from person to person.

300.       It was the defendant’s submission that, if liable, it ought not to be held responsible for hurt arising from the plaintiffs’ view of what the matter might be taken to mean if that meaning did not arise from the matter complained of.

301.       I accept that to be so if the plaintiffs’ belief was not reasonable. I also accept, as I have already said, that the plaintiffs’ belief is not relevant in establishing what the defamatory meaning is.

302.       In that regard, I respectfully agree with Hunt J in Hughes v Mirror Newspapers Ltd (1985) 3 NSWLR 504. In fairness, I think Mr Nicholas QC was not asserting to the contrary. Rather he was, quite properly, urging caution and moderation.

303.       It must have aggravated the hurt to the plaintiffs’ feelings that the matter complained of was false in fact. Indeed, I am positively satisfied that it did. It would have been presumed so in any event. In that regard, I would agree with Jacobs JA in Rigby v Associated Newspapers Ltd [1969] 1 NSWR 729. The plaintiffs were entitled to “nail the lie”. They did so. That it was a lie increased the hurt.

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

305.       The defendant, in mitigation, says it acted reasonably in recalling the book, that it offered to consider whatever apology the plaintiffs wanted, and that it is therefore entitled to mitigation of damages.

306.       It is appropriate, therefore, to consider in detail what the defendant did by way of apology and mitigation.

307.       It was, on 5 March 1997, that Mr Abbott, having read pages 472-473 of the book, wrote to the defendant. He protested that:

“The author’s claim calls into question the nature of my friendship with a senior colleague and his wife in a way which is very seriously damaging, plainly malicious and utterly untrue.”

308.      He sought, pending further advice, “immediate retraction” and withdrawal of the book.

309.       That was preceded by a phone call to Ms Funnell who referred to Mr Abbott stating that the matter in the book was “tasteless and hurtful”.

310.       Mr Abbott spoke later to the Chief Executive of the defendant, Mr Ernie Mason. Mr Mason was not called as a witness by the defendant. The letter Mr Abbott sent to Mr Mason on 6 March, 1997, I accept as an accurate account, therefore, of that conversation so far as it is referred to.

311.       Mr Abbott said of the anecdote concerning him:

“… the relevant passage is a complete figment of the author’s imagination and casts a grave slur on people who have done nothing to deserve it. It’s a most damaging lie which demands to be corrected immediately.

My lawyer will make contact with Peter Bartlett …”

312.      It is interesting to note that, as early as 6 March 1997, Mr Mason apparently conveyed the impression that Mr Bartlett acted for the defendant, rather than any of the plaintiffs, or in some conciliatory capacity.

313.       As mentioned, Mr Abbott did get a reply. It was dated 6 March, 1997. It was faxed to him on 11 March. The defendant says it was a draft, faxed in error. That may well be so. It was not signed. It was a copy.

314.       The text, however, seems to reveal at least Mr Bartlett’s thinking. It accords with the defendant’s case, as put even at final submissions. It denies the words are “actionable”. It asserts:

“The only imputation that arises is that you and Mr Costello, many years ago, had sexual relations with the same woman, and this woman subsequently married Mr Costello. There is no suggestion of infidelity on your behalf at the time, no suggestion that you have acted improperly, and no suggestion that this sexual relationship is ongoing.”

315.       The motive for the anecdote was said not to be “vindictiveness” by the author. The draft letter asserted that it was merely the author being “colourful”.

316.       No mention is made, by the author of the letter, concerning the allegation that the “sexual relations” referred to formed the catalyst for a surprise political conversion. There is no acknowledgment that premarital sexual relations, in the absence of some justification such as the depth of the relationship or other circumstances, might be regarded by most
right-thinking people as evidencing moral laxity. Moral laxity may not lead these days to persons being shunned and avoided, but it is likely to lessen their reputations to some extent.

317.       Most importantly, the document seemed to regard the truth, or not, of the words complained of, as a matter of complete indifference.

318.       That reply, quite reasonably, added to Mr and Mrs Abbott’s sense of hurt and frustration, even if the defendant had not intended them to receive it.

319.       That is reflected in Mr Abbott’s response of 12 March, 1997. He made the following, quite reasonable, observations:

“… the letter neglects the book’s claim that the woman in question used her sexual prowess to change my political allegiance.

… the letter neglects Mr Ellis’ stated (and obviously malicious) determination to destroy me.

… the letter ignores the fact that the book’s claim is
completely and utterly untrue. I was never in the Labor Party. I never “shared a woman” with Peter Costello. I would never allow sexual favours to change my political allegiance.”

320.      Shortly before 13 March, 1997, the defendant became aware that Mr Abbott was right in asserting that the anecdote complained of was a lie. Mr Cavalier told Ms Funnell that he did not say the words and that they were untrue in any event.

321.       To its credit, the defendant promptly sent out a “PRODUCT RECALL” notice to book sellers who had been supplied with stocks of the book. It cited “legal reasons” for doing so. No doubt the retailers would assume some libel was probably contained therein.

322.       It is fair to observe that this notice did not identify the matter complained of. That, the defendant says, was done to avoid drawing attention to the libel. However, it also failed to alert stockists as to the reason for the withdrawal; that is, that there was a false story on page 472.

323.       However, whatever mystery there might have been was resolved by the media. The Sydney Morning Herald on 14 March, 1997, told all of its readership what the “legal reasons” were. The book, it stated, “…defames several political figures”.

324.       Mr Ellis was quoted, whether accurately or not, as having a different view of the matter:

“…a passage of half a page, a funny story that was reported to me in good faith and I believe is not libellous”.

325.      The reporter who wrote the article seemed to have no difficulty in discerning the defamatory meaning of the offending passage:

“It suggests that “Abbott and Costello…were wooed from the ALP to the Young Liberals by a woman, apparently Tanya Coleman, who later married Mr Costello.”

326.       Mr Cavalier was quoted as saying, “The story is not true and I did not tell it”.

327.       Mr Ellis is cited as being unrepentant. He describes “the Liberals” as “humourless”. The decision to withdraw the book is ascribed by the author to “how much it would cost… to defend” the book. That, of course, is not evidence that the author said what is reported of him. The article has some effect in debunking the story. That quotation qualifies that disavowal to some extent. However, neither the author nor the defendant is then, or since, quoted publicly as expressly disowning the truth of the story, let alone apologising for disseminating it.

328.       In the Australian of the same date, whilst the defendant is said to have declined to comment on the withdrawal “for legal reasons”, the author is quoted as saying:

“My belief is that it’s not so much Tony Abbott as the entire Liberal Party which is comprehensively and eloquently defamed in the book … This is their way of getting it off the shelves.”

329.      That would not have offered any additional solace to the plaintiffs. The Daily Telegraph similarly cited the author’s defiance. He is quoted as saying:

“I mean, all that is alleged is no more unlovelier a rumour than let’s say Andrew Peacock and Shirley MacLaine shared for a time a toothbrush…The book contains worse things about myself, it contains a lot worse things about the Labor Party, but Labor can take it.”

330.       Again, whether or not the author was accurately quoted, the defendant would, no doubt, have drawn the conclusion that these comments were both not consistent with the facts as they knew them to be, and displayed a monumental lack of sensitivity towards the feelings of the plaintiffs. It allowed the impression to be given that, despite Mr Cavalier’s forthright and complete rejection of the story, the defendant did not necessarily accept its falsity. It tended to support the view, attributed elsewhere to the author, that it simply wished to avoid litigation, or, at least, limit its (and its insurer’s) exposure to liability.

331.       There was a reminder of the recall in the Weekly Book Newsletter of 19 March, 1997. It was on page 5. This merely asked for “all stock” to be returned. It did not, for example, suggest to library suppliers that they should advise libraries to return their copies. The newsletter may have come to the attention of some libraries but it would be unlikely to have engendered any sense of urgency.

332.       The defendant sought, through Ms Funnell, to explain that, as she understood it, the defendant was reluctant to reveal the true reason for the recall lest the libel be thereby emphasised. The defendant was, it was explained, reluctant to make what could be construed as admissions. No doubt, it was also acting in conformity with legal advice.

333.       Of course, a defendant has a right to “reserve its defence”. It will not evidence malice unless it does so unreasonably. Even then, that would, probably, not suffice by itself. However, a defendant who promptly confesses untruth and offers, with due publicity, an early and suitably grovelling apology will save much in the longer term. It goes a long way towards lessening the hurt to a plaintiff, apart from lessening the potential damage to reputation.

334.       The defendant cannot claim to have been unaware of the falsity of the story. Mr Cavalier said as much and its relevant officers accepted that. The solicitors for each of Mr and Mrs Costello (exhibit 2) and Mr and Mrs Abbott (exhibit 7) complained not only that copies of the offending book remained available for sale as at 18 March and 19 March respectively. They complained also, in the clearest possible terms, of the defendant’s silence in response to their request to acknowledge that the story was baseless, and of their refusal to publish a retraction and apology.

335.       They also expressed surprise that no check with Mr Cavalier had been made before publication.

336.       A further and similar broadside was delivered by the solicitors for the plaintiffs on 21 March 1997 (exhibits 3 and 8). In addition, the defendant’s attention was drawn to various libraries where, it was asserted, the book was listed as being held for access by the public or members of the library clientele, as the case may be. Approximately twenty libraries were referred to.

337.       Given the absence of any evidence on the matter other than from Mr Leake, I draw the inference that the defendant chose to ignore that avenue of dissemination of the work. Indeed in cross-examination, Mr Nicholas QC suggested, in effect, that the plaintiffs could, or should, have written to those libraries rather than expecting the defendant to have done so. That is further support for that inference.

338.       Of course it was open to the plaintiffs to have written to the libraries. If they then sued and succeeded in their action for defamation, the solicitor/client costs of writing to, or contacting, libraries might well be recovered from the defendant. However, the defendant was the tortfeasor. It had the duty to make amends. The trouble and cost should have been theirs rather than the plaintiffs’.

339.       Its failure to respond to the plaintiffs’ quite reasonable request undoubtedly added to the plaintiffs’ sense of hurt, outrage and frustration.

340.       The response from the defendant’s solicitors was, in my view, less than accurate. It said:

“… our client has taken every reasonable step to ensure that all copies of the book have been withdrawn from sale or library loan.”

341.       Whilst withdrawal of the book from book stores was, probably, as well addressed as was reasonably possible, given that the defendant could not compel a return, it had done nothing effective about libraries. It had, in any event, not given the obvious incentive to sellers to return the book by warning them that it may contain defamatory matter and that they risked being sued if they sold copies after being so advised: see Thompson v Australian Capital Television Pty Ltd (1997) 71 ALJR 131 (applicability of defence of innocent publication).

342.       Proceedings were commenced on 2 April, 1997. That was reported in various newspapers the same day. Of course, the reports referred specifically to pages 472 and 473 of the book. However, such a report, although drawing attention to the libel, also warned the public that the plaintiffs were prepared to sue and regarded the matter referred to not only as false but also defamatory.

343.       So far as Mr Abbott is concerned, there was a sympathetic article by Mr Christopher Pearson (also a target of derision in the book) in the Courier-Mail of 5 April, 1997. It no doubt gave some satisfaction to the plaintiffs in that it prevented, in some small measure and limited geographic area, a worsening of hurt and damage. However, it evoked no expression of support from the defendant.

344.       On 25 March, 1997, new solicitors for the defendant continued the attitude of the old. “Each outlet”, they somewhat piously intoned, “has been requested to remove the book from shelves and return it to our client at its cost.”

345.       That representation remained unfulfilled till Mr Leake commenced his duties in early 1998. He, I accept, did his best, though he seems to have been given less than fulsome support by his superiors in terms of their previous efforts.

346.       There was further public debate. On 26 April, 1997, articles by the author and Mr Pearson in reply were published in the Courier-Mail. Apparently unaware that Mr Abbott had sued, the author is recorded as writing:

“…and Tony Abbott threatened to sue and then didn’t, in part because the content isn’t libellous of him (of course it isn’t), in part perhaps because (as Chris himself prefigures) of his fear of whatever else in his past might emerge in court.”

347.       The latter seems to be a reference to Mr Pearson’s account in his article, apparently with Mr Abbott’s consent, of a story that, whilst at university, his long standing girlfriend became pregnant with his child. Though a moral lapse, it is portrayed as an instance where both parties behaved responsibly and in the interests of the child. It is not a matter which, had it been proved or relied upon, would significantly have lessened Mr Abbott’s reputation. The author, if correctly cited, got it right only in reporting that legal action had, by that date, been threatened – a strike rate of only one in four factual propositions.

348.       These published comments are relevant only to evidence public discussion to which, as a tortfeasor, the defendant might contribute so as to counter or lessen the hurt and damage to the plaintiffs.

349.       In evidence, also, was a transcript of an interview between the author and Mr Bert Newton, a well-known TV show host, on Good Morning Australia, on 23 June, 1997. The second edition of Goodbye Jerusalem had been obtained by Mr Newton. The author explained the difference between the two:

“There are three filthy sentences that aren’t there any more, and ah possibly the better for it, and ah … was the result of ah legal action by people that I am not empowered to say are connected with the Liberal Party.”

350.       I accept that evidence for the same limited purpose as I have accepted the newspaper articles.

351.       On 5 August, 1997, the defendant’s solicitors addressed an open offer to the plaintiffs. They cited the withdrawal of the book as evidence of the defendant’s “good faith” and continued:

“Without admission of liability on the part of our client to any of your clients, our client is prepared to go further and publish an explanatory statement in any national newspaper of your clients’ choice in a form to be agreed. That statement would make clear that the suggestions exemplified by the imputations relied upon by your clients are not true, withdraw them and apologise for their publication. Furthermore, our client is willing to pay your clients’ reasonable legal costs to date.”

352.      A twenty-eight day limit for acceptance was imposed with the ominous threat that, if the offer was not accepted:

“… our client will continue to defend the proceedings on the basis that the matter complained of is not defamatory of your clients, a view now confirmed by senior counsel.”

353.     
 The plaintiffs, for various reasons, found this proposal less than comforting. Mr Costello, for instance, felt that a failure to admit liability was “mealy-mouthed”.

354.       I think the defendant trapped itself within the illogicality of its acceptance that the matter complained of was untrue, yet, at the same time, denying that it was defamatory. The result was to threaten the plaintiffs with continued anxiety unless they accepted that the defendant’s perception of the real world was contrary to theirs. “Senior counsel” allegedly agreed with this alien concept. That must have, and, I infer, did, increase the plaintiffs’ worry and frustration.

355.       The response of the plaintiffs, in fact, was moderate. The Abbotts, for example, were prepared to accept $50,000 plus solicitor/own client costs.

356.       That was not accepted. I do not consider that it represents, nor is it suggested that it did represent, a reasonable estimate of the loss suffered by the plaintiffs. It was an offer of compromise.

357.       The defendant’s counsel criticised the plaintiffs for not, at least, formulating the apology they required. It is true that they might have done so. It seems to me unlikely that consensus would have been reached.

358.       The parties were as far apart in their frame of moral reference as the customers of a nineteenth century East End London ale house with the membership of the Anglican Synod of the same era. Of course, times have changed. No longer is it regarded as cause for social ostracism that a person, particularly female, has engaged in sexual intercourse outside of marriage. Nor that persons have, even to please their sexual partner, changed political or other allegiance. However, whilst the consequences are less severe, the perpetrators will be regarded less well by “right thinking” members of this society. Some may take pride in their rejection of social norms. That is their affair. These plaintiffs are not in that category. Somehow the author and the defendant have managed to beguile the defendant’s legal advisers into believing that the current norms, likely to be applied by this court, are now those of nineteenth century ale houses. They are wrong. It illustrates, however, that consensus was unlikely as to the terms of a suitable withdrawal and apology.

359.       The depth of their division is illustrated by exhibit B, dated 15 October, 1998. It is a response from the defendant’s solicitors to letters from the solicitors for the plaintiffs.

360.       It recited, firstly, that the book had been withdrawn within a week of publication which, it said, “was in fact contrary to the legal advice…[the publisher] received at the time”.

361.       I pause to comment that if this advice was as stated, it betrays a disappointing moral bankruptcy on the part of the adviser. The “filthy” story complained of, hurtful and damaging to the plaintiffs, as the defendant knew it to be, was a lie and the defendant then knew it. Perhaps the ideals of honesty and accuracy did not commend themselves to the defendant or its advisers as a reason to correct the lie and apologise for telling it. The letter continued:

“In keeping with the wish to keep this matter out of the public forum, our client has not published any public retraction without the consent of your clients. If it had done so, we consider that your clients would have interpreted this as an attempt to republish the matter and thereby aggravating damage.”

362.       To my mind, this statement is pious cant. It represents merely a transparently contrived attempt to justify the indefensible. As a matter of law, an apparently sincere apology, whether satisfying the plaintiffs or not, would have been significantly mitigatory.

363.       It is true that the defendant made an “open offer to apologise”. For the reasons I have stated, it was not unreasonable for the plaintiffs to reject it as inadequate. The statement, “So far this matter has remained out of the public arena”, is as far removed from reality as the defendant’s perception of the moral norms of the average member of society.

364.       In my view, there was a continued and unreasonable failure to apologise as well as a failure, otherwise, to make amends for the serious wrong done to the plaintiffs.

365.       However, the defendant submits that, even if a case was made out for damages, even aggravated damages, no cause had been made out for exemplary damages.

366.       As nearly 40 per cent of the distribution of the book had been in New South Wales, a question arose as to the application of s46 of the Defamation Act 1974 (NSW).

DAMAGES – EXEMPLARY

Section 46 Defamation Act 1974 (NSW)

367.       Section 46 provides:

“(1) In this Part relevant harm means, in relation to damages for defamation:

(a) harm suffered by the person defamed, or

(b) [not relevant]

(2) Damages for defamation shall be the damages recoverable in accordance with the common law, but limited to damages for relevant harm.

(3) In particular, damages for defamation:

(a) shall not include exemplary damages, and

(b) shall not be affected by the malice or other state of mind of the publisher at the time of the publication complained of or at any other time, except so far as that malice or other state of mind affects the relevant harm.”

368.       No question arises as to the actionability of the publication of the book in this Territory. Some of the copies in question were distributed, bought and sold here. A publication, libellous under the laws of this Territory, would also be libellous under the laws of each other Australian jurisdiction. It matters not, for that purpose, whether a defence might succeed in one or more of those jurisdictions (for example, truth alone) but not in the Territory. Despite initial confusion, the High Court has affirmed that Breavington v Godleman (1988) < !A HREF="/html/highcourt/0/88/0/HC000410.htm">169 CLR 41, does not require of the courts of the forum that they apply the lex loci delicti to the determination of liability. The contrary view had been accepted by the Court of Appeal in Australian Broadcasting Corporation v Waterhouse (1991) 25 NSWLR 519 (see also Waterhouse v Australian Broadcasting Corporation (1992) 27 NSWLR 1). However, it was almost immediately effectively overruled by McKain v R W Miller and Company (South Australia) Pty Limited (1992) < !A HREF="/html/highcourt/0/91/0/HC000560.htm">174 CLR 1; 104 ALR 257.

369.       As a result, the laws of a State or Territory going only to matters of defence, or of procedure, but not to the actionability of the tort in question, will not govern liability in the courts of the forum. It is unnecessary in this case to determine whether it is possible that there is some “flexible exception” to that position. Miles CJ certainly adverted to that possibility in Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1.

370.       It had also been assumed, until the decision of the High Court in Stevens v Head (1993) < !A HREF="/html/highcourt/0/93/0/HC000080.htm">176 CLR 433, that laws which limited the recovery of damages would be regarded as substantive, thus restrictively defining the foreign tort which is to be recognised by the lex fori. That would have lead to the result, for example, that, if the lex loci delicti forbade general damages beyond, say, $10,000, but allowed exemplary damages, and the lex fori forbade exemplary damages, a plaintiff would be limited in the forum to $10,000, though, if damages were calculated under the law of the forum, they would be at large for general damages, though exemplary damages were not available.

371.       In Stevens v Head, the High Court drew a distinction between a law of the place of commission of a tort, at page 457:

“… which denies a remedy in respect of a particular head of damage in negligence (a substantive law) and a law which affects the quantification of damages in respect of a particular head of damage (a procedural law).”

372.       So, for example, a law which denies general damages for bodily injury caused by negligence arising out of the use of a motor vehicle will be “substantive” (Breavington v
Godleman
(supra)) but a law which imposes limits on the components making up such an award will not be (Stevens v Head (supra)).

373.       The issue is whether exemplary damages for tortious conduct, including defamation, is “a particular head of damage” or merely “the quantification of damages in respect of a particular head of damage”.

374.       Although not decisive of the point, the latter construction seems to be assumed by the terms of s46(3) Defamation Act (NSW). “Damages for defamation” is regarded as a single concept inclusive of possible exemplary damages, rather than the latter being a separate award.

375.       The circumstances in which exemplary damages may be awarded were referred to by the High Court in Uren v John Fairfax & Sons Pty Limited (1967) < !A HREF="/html/highcourt/0/66/0/HC000040.htm">117 CLR 118. The formula adopted was “conscious wrongdoing in contumelious disregard of another’s rights”.

376.       It is true that Hunt CJ at CL in Waterhouse v ABC (1992) 27 NSWLR 1, at page 3(E), did describe the provisions of s46(3) of the NSW Defamation Act as affecting the “…right to recover punitive damages…a right to such damages not being merely a matter of procedure”. However, it seems his Honour achieved this result by reference to the cross-vesting legislation, not the application of the rules of private international law.

377.       Counsel for the plaintiffs also referred to Waterhouse (RW) v Australian Broadcasting Corporation (1989) 86 ACTR 1 at page 19. There, Kelly J was concerned, not with the effect of s46(3) per se, but, rather, with the applicability of interstate defences, to the extent that interstate publication had been sued upon. That decision preceded Stevens v Head (supra). It may well be that the views then expressed by his Honour would require modification in the light of that decision.

378.       It has not been suggested by the High Court that a claim in respect of an extra-jurisdictional tort may be defeated, not only by a substantive defence (for example, truth) available in the lex loci delicti, but also by a different defence (for example, apology and amends) available under the lex fori, which was not a defence under the lex loci delicti. Breavington v Godleman (supra) seemed to suggest that the claim should be treated by the law of the forum no differently than if it was heard in the place of the commission of the tort, whether or not that result was to be qualified by a “flexible exception” if the law of the delict could not justly be applied (for example, Chaplin v Boys [1971] AC 356).

379.       However, as I noted in McIntosh v Southern Meats Pty Ltd (supra), the High Court has now reverted to the original doctrine that the substantive law of the delict merely determines the justicability in the forum of the extra-jurisdictional tort. The test is one of dual actionability; that is, is there a civil liability not extinguished, or a cause of action not destroyed, in each jurisdiction? Some apparent matters of defence may go to deny an element of the cause of action. In my view, in a civil action for assault, self-defence would deny the cause of action. By contrast, where the plea of contributory negligence admits negligence, but then qualifies the right to damages for negligence, it pleads a matter of defence, not a denial of the original cause of action (see, for example, Anderson v Eric Anderson Radio & TV Pty Limited (1965) < !A HREF="/html/highcourt/0/65/0/HC000520.htm">114 CLR 20.)

380.       The defendant also referred to the views expressed by Professor Walker in her article, “Choice of Law in Defamation Actions”, (1994) 3 Torts Law Journal 228, at page 245.

381.       Professor Walker takes the view that s46(3) does not:

“… merely deal with the quantification of damages in respect of heads of damage; it abolishes a head of damage.”

382.      Thus, in Professor Walker’s opinion, a plaintiff cannot receive in an action brought, whether within or outside New South Wales, exemplary damages for defamation where, or to the extent that, the defamation sued upon occurred in New South Wales.

383.       One test as to whether exemplary damages are merely a step in the quantification of damages or a separate “head” of damage is to ask whether a separate action could be maintained for the same. It is possible to do so in relation to, say, property damage and personal injury sustained by a plaintiff as a result of the one act of negligence.

384.       However, in the present case there is only one cause of action in respect of each publication. Each of them simultaneously entitles the plaintiff to compensatory damages, to special damages (if any) and to aggravated damages, not because of any separate harm inflicted by the tort, but because of the nature and quality of the harm. Exemplary damages attach to a further aspect of the nature or quality of the tortious conduct inflicting the same harm. It would not be possible for a plaintiff to have damages only for the “high-handed” or “wanton” nature of the tortious conduct, having compromised, or not sued upon, any claim for compensatory damages.

385.       It is convenient to expose the reasoning which leads to a total award of damages and thus to explain the global award. The deliberate or contumelious nature or quality of particular tortious conduct is simply a circumstance relating to it which may cause the quantum of the award to be increased to punish and deter the tortfeasor as well as to compensate the plaintiff.

386.       In my view, s46(3) affects and limits the quantification of damages in defamation cases, as does s46A. It does not, though it affects the legal rights of a plaintiff suing in New South Wales, affect those rights in any way differently than the Motor Accidents Act in New South Wales affects the right of a litigant to damages at large in an action heard and determined in this Territory. It may be that this view conflicts with that of Hunt J as expressed in Waterhouse v ABC (supra). His Honour’s view, however, predated Stevens v Head (supra). It may, therefore, now be differently expressed.

387.       Defamation is merely a tort like any other. In the case of any tort, the judge or jury may, in assessing quantum, add a punitive element if that course is open on the facts as found. It follows that, if the facts warrant it, exemplary damages may be awarded in this court even in respect of publication in New South Wales.

MEASURE OF DAMAGE

(i) Ordinary compensatory damages

388.      I have noted the various matters as to the nature of the meanings conveyed by the matter complained of and the injury to the feelings of each of the plaintiffs as they deposed to it in evidence. It was those meanings that caused the hurt to the feelings of each of the plaintiffs. I will now turn to that aspect of damage in relation to each of them.

(a) Mrs Abbott

389.      Mrs Abbott was a case of collateral damage. It is likely that most readers would have assumed that “the woman” was Mrs Costello. Most readers would have been persons interested in politics. Nevertheless, some would not have done so. The story appeared aimed at Mr Abbott. That could have led to a conclusion that he had been so besotted by “the woman” as to not only leave the Labor Party for the Young Liberals, but also to marry her.

390.       There is no imputation of infidelity, of dishonesty or criminal conduct. The damages should be enough to be vindicatory without being extravagant, having regard to the defendant’s efforts, such as they were, to mitigate the harm.

391.       In my view, $30,000 is an appropriate award.

(b) Mr Abbott

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

393.       In his case, I also note the early withdrawal of the book and the publicity given to it in mitigation. However, I would observe that in Humphries v TWT (supra) the imputation of profligacy in relation to travel expenses was corrected the same day. A fulsome apology was given a week later. Miles CJ awarded $8,000. The Full Court of the Federal Court considered that award inadequate. The point was made, at page 701:

“… it is unlikely that a substantial correction or apology will completely eradicate the effect on reputation of the person in the community.”

394.       The sum of $28,000 wasconsidered appropriate.

395.       Though nowhere near as loathsome as the false allegations made in Thompson v Australian Capital Television Pty Ltd (1997) < !A HREF="/html/actdec/0/97/0/AC000480.htm">129 ACTR 14 (incest), the allegations against the plaintiffs in this case are seriously potentially damaging.

396.       I consider $40,000 to be appropriate for Mr Abbott.

(c) Mrs Costello

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

398.       I consider $40,000 to be appropriate for Mrs Costello.

(d) Mr Costello

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

400.       I consider $40,000 would be appropriate, on balance, for the libel of Mr Costello.

(ii) Injury to feelings

401.      The evidence of each of the parties as to their reactions has been set out already. I had the advantage of each of the parties giving evidence before me. I did not have that advantage in the case of Packer v Australian Broadcasting Corporation (Supreme Court of the ACT, 25 November, 1993, unreported). Nevertheless, there was there indirect evidence of hurt to feelings which warranted the inclusion of $5,000 in the general damages award.

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

403.       I consider that, in her case, an additional award of $30,000 is warranted.

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

405.       I would award, in his case, an additional $20,000 for injury to feelings.

406.       Mr Abbott was angry. Part of his outrage was, as he said, that the relationship between him, a senior colleague and his wife was called into question and besmirched. His sense of unease and anger were, I accept, heightened when he realised that his wife also was inferentially traduced.

407.       I feel, however, that Mr Abbott’s sense of outrage and injury was lessened by the considerable local publicity given to the withdrawal and pulping of the book. No-one would have doubted it was because he had been libelled in it by a false story.

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

409.       Mrs Abbott knew it was not her who was aimed at. Indeed, some of her “unease” was due to the discomfort of knowing that the author had determined “to destroy” her husband, politically, of course, not physically.

410.       It was unpleasant for her. There was the inevitable anxiety of the litigation. I consider an additional award of $10,000 is warranted.

(iii)       Aggravated compensatory damages

411.       Such damages may be awarded if the conduct of the defendant, up to and including the trial, has improperly aggravated the injury to the plaintiff. That will be so if that conduct demonstrates a lack of bona fides or if it has been improper or unjustifiable. The concept of “aggravated” damages is not, whether calculated separately or not, a different “head” of damage. It focuses on the circumstances of the wrongdoing which have made the impact of it worse for the plaintiff. It is not to go beyond compensation for the aggravation of the harm to repute or feelings. It is not a means for punishing a defendant.

412.       Glass JA in Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225, referred to the standard to be met before damages should be assessed on an aggravated basis. His Honour said, at page 250 D:

“Malice is, of course, one basis for such an award, but so too is conduct which the jury may judge to be unjustifiable, improper or lacking in bona fides…”

413.       A failure to enquire before publication or to apologise after it may also be so relied upon as a circumstance of aggravation. However, that consideration may not, as I have said, increase damages beyond the fair limits of compensation. Care must be taken not to doubly compensate a plaintiff. Hurt to feelings, for example, may have been partially compensated for before the question of aggravation arises. It may warrant an increase in damages only insofar as the aggravating conduct lacked justification, propriety or bona fides. Such aggravating circumstances may, of course, also warrant an award of exemplary damages at common law. Again, overlapping of those aspects of damages must be avoided.

414.       Nevertheless, the two concepts are different. To cite the words of Hunt J in Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58, at pages 74-75 (referred to by counsel for the plaintiffs):

“Aggravated damages are more properly called aggravated compensatory damages. They are awarded where either the circumstances of the publication of the matter complained of or the defendant’s conduct then or subsequently make the injury to the plaintiff worse – when the ordinary compensatory damages awarded for the publication itself may be increased. They are not awarded as a separate amount. Aggravated compensatory damages are usually awarded only in relation to the injury to the plaintiff’s feelings … They are not, however, necessarily so limited, and there may be conduct which has the effect of increasing the injury to the plaintiff’s reputation as well.”

415.       His Honour went on to consider matters he regarded as capable of supporting the increase of an award by reason of aggravation of the damage suffered. Falsity of the matter complained of is such a matter. The calculation of damages is a matter for the lex fori. Thus, the admissibility or not of evidence of falsity under Victorian, South Australian or Northern Territory law need not be considered. The focus being on the harm to the plaintiff, knowledge of falsity on the part of the defendant is irrelevant save insofar as that is communicated to the plaintiff and affects his or her sense of outrage or injury.

416.       Failure to make prior enquiry will be relevant only if that failure was unjustifiable. If the source of the false story was not unimpeachable, but instead one which was palpably fallible, there may be an obvious need to enquire before publication. The same comment Hunt J applied in Waterhouse v 2GB (supra), to suggestions of failure to forewarn the plaintiff, though it is also commented that forewarning would not usually be required. A failure to allow a reply or explanation, then or subsequently, could be unjustifiable but, again, there would usually be no obligation so to do.

417.       Likewise, with failure to withdraw and apologise. A failure to correct may go to lack of good faith or to aggravate the injury. If it does have that effect it may exacerbate the damages.

418.       The plaintiffs rely on a number of aspects which they claim constitute aggravation and which may warrant also an award of exemplary damages.

Express malice

419.       Malice involves an intention to injure the plaintiff, which may or may not be itself justifiable, for an improper motive. It is not enough, nor even necessary, that the defendant is pleased by the plaintiff’s discomfiture at the defamation; it must have been published in order to achieve an improper objective.

420.       The matters relied on by the plaintiffs not only go to whether there was actual malice, but also to whether the conduct of the defendant may be characterised as “improper”. I take the rule in Triggell v Pheeney (1951) < !A HREF="/html/highcourt/0/51/0/HC000710.htm">82 CLR 497 to imply that, whilst express malice will suffice to warrant an award of aggravated damages, it is not a necessary finding to enable such an award to be made. By way of contrast, it is difficult to conceive of “conscious wrongdoing in contumelious disregard of another’s rights” (Uren v John Fairfax (supra)) which would not also be malicious. Of course, malice alone might not suffice, and some other forms of conduct, even absent malice, might suffice to warrant an award of exemplary damages: see Lamb v Cotogno (1987) < !A HREF="/html/highcourt/0/87/0/HC000500.htm">164 CLR 1. It depends on whether the tortious conduct in question was intentional or, if not intentional, committed with such recklessness as to be “contumelious”.

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

Falsity of the matter complained of and of the imputations

422.       The defendant knew the matter complained of was untrue as at 12 March, 1997. Ms Funnell had, before then, assumed it to be true, though she had only the author’s assertion to support that assumption. Surprisingly, neither she nor Mr Bartlett, who knew Mr Costello reasonably well, considered it a matter the accuracy of which should be checked.

423.       It was the matter itself which inevitably conveyed those imputations which I have found defamatory. However, it conveyed another damaging, though non-defamatory suggestion, namely, previous membership by each of Messrs. Abbott and Costello of the Labor Party.

424.       The matter was clearly false in fact. There was a failure to check the accuracy of the matter complained of.

425.       It would have been simple enough, Ms Funnell conceded, to have rung Mr Cavalier. It is not likely, I would think, that she would have needed to speak thereafter to the plaintiffs. Of course, had Mr Cavalier agreed that he had said it, but did not know if it was true or just a rumour, further enquiries may then have been called for. That, however, is purely hypothetical.

426.       If the matter complained of had been the only potentially defamatory statement in the book, it may well have been reckless not to check its accuracy, at least, before publication.

427.       Given that there were many other passages in the book calling for enquiry, the failure to check accuracy I would characterise as “negligent”, not, in itself, reckless.

428.       There was another failure. The reference to the “one woman” necessarily cast a slur on one of them which was unwarranted, even had the matter complained of been otherwise accurate. Failure to perceive that also was negligent. The editor, Ms Funnell, should have either removed the ambiguity or deleted the reference. She was negligent in not doing so.

The extent and mode of publication

429.       There still remain “out there” over 3,000 copies of the first edition. Many who have it, or who have read it, will by now know that the story about the plaintiffs is false in every material particular.

430.       The publisher is, as the plaintiffs submit, a large well-known and well-respected publishing house. Ms Funnell knew it was her duty to be “very, very careful”. It is clear that she was not.

431.       The book deals, sometimes fondly, sometimes harshly, with many political and community figures. Some are not well-known. Most are. It was likely to attract the attention of the politically aware, the opinion makers, those who have influence, inter alia, over the careers of
current politicians.

432.       That is a factor in considering the quantum of damage but, to my mind, it is a neutral or background factor to be considered as relevant only if, otherwise, aggravation of damages, or a case for exemplary damages, is established.

Failure properly and promptly to fully apologise

433.       Any apology is mitigatory. However, as I noted in Packer v ABC (supra), a failure unreasonably to recognise the wrong done and to make proper public amends must, usually, aggravate the damage to the plaintiffs. The failure itself, of course, also forms part of the award of ordinary compensatory damages adding to injury to feelings and, perhaps, to the damage to reputation in some cases.

434.       If, in addition to being inadequate or deficient or grudging or belated, the failure fully and unqualifiedly to apologise is “improper, unjustifiable and/or lacking bona fides”, then an additional sum for aggravated damages may be warranted.

435.       In the present case, though withdrawing the book, having ascertained with a high degree of certainty that the story concerning the plaintiffs was false, the defendant did not itself publicly endorse that finding. It offered no solace to the plaintiffs save an inference that it could not support the truth of the matter complained of. It did not dissociate itself from the occasional defiant rumblings attributed in the press to the author.

436.       It had no possible defence to the charge that the matter complained of was false and penned by the author with a view to destroying the reputation for serious political thought of Mr Abbott, and, necessarily, also of Mr Costello. It should have recognised that it cast a slur upon the reputation of the “one woman”.

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

Conduct of the litigation

438.       I have reviewed the conduct of the litigation by the defendant. I would not characterise it so harshly as to say that it was “improper”. However, I consider that the failure promptly and frankly to admit the truth – that the story was false – whilst no doubt within its legal rights, was, nevertheless, “unjustifiable”. The defendant would not, by publishing an apology and retraction, necessarily be taken to admit that the matter complained of was defamatory if it genuinely, though mistakenly, believed otherwise.

439.       To quibble as to who should submit first the form of apology strikes me as unwarranted “fencing”. The defendant did the wrong. It should have, at least, started the process by suggesting specifically what it was prepared to do by way of amends.

440.       That reluctance is even more reprehensible, even if contrary to its own interests, when it is recognised that a full apology and payment into court of “a sum of money by way of amends” is not merely an offer of settlement, but a complete defence: see s8 Defamation Act 1901 (ACT).

Defendant’s failure to ensure complete withdrawal of the book

441.       It is true, as I have noted already, that the steps taken to withdraw the first edition of the book were not as effective as they might have been. I do not think that the statement used in taking those steps, “for legal reasons”, would convey anything other than that the book contained matter considered libellous. It could possibly have conveyed that there had been a breach of copyright but I think most persons would opt for libel as the reason.

442.       It did not, however, alert the bookseller to the particular libellous matter. There were so many potentially libellous statements in the book that the reader would have difficulty knowing which one was being referred to.

443.       However, I accept that the defendant did genuinely believe that to draw attention to pages 472 and 473 might exacerbate the injury. That may have been an error of judgment, but it was not “improper, unjustifiable or lacking bona fides”.

Failure to cause recall from libraries

444.       It seems to me that the steps taken by the defendant were seriously inadequate. It did not even write to, or fax directly, those libraries the plaintiffs pointed out as stocking the book. The defendant also knew which library suppliers it had consigned books to. It did not enquire of any of them, save one, as to the libraries they had supplied. The one exception is that referred to by Mr Ford in paragraph 32 of his affidavit. The defendant did not make the enquiries Mr Leake ultimately made nearly twelve months after the original publication and distribution. I accept the possibility that some libraries were aware of the defendant’s recall notice, but that did not constitute reasonable steps to recall the book from libraries. It was much less likely with libraries than with booksellers to result in a return of stock.

445.       Dr Cathro’s evidence indicates that some copies of the first edition were still listed as held by at least twelve significant libraries as at October, 1998.

446.       The tardiness of the defendant, I accept, added to the plaintiffs’ concern and frustration.

Conduct of the proceedings – false answer to interrogatory 14(b)

447.       The plaintiffs rely upon the proposition that the answer to interrogatory 14(b) was false. It had denied possession of the original draft manuscripts but it produced five boxes thereof within a week prior to the trial.

448.       This has not been shown to be a result of any impropriety on the part of the defendant. Indeed, if the defendant had intended to be deceptive, it could have ignored the discovery of the drafts. It may be that its records were in less than a satisfactory state. However, it would, I think, be unfair speculation to attribute any adverse inference to this event.

Cross-examination of Mr Costello – that the story was apparent fantasy

449.       This refers to the cross-examination of Mr Costello, to the effect that the passage in question would not be read by him (and, presumably, others) as literally true.

450.       If that had been so, of course, Mr Costello might have been less offended than he was by the matter complained of. However, whilst putting the question may have represented a triumph of hope over expectation on the part of counsel, I do not see how it would aggravate the harm to the plaintiffs.

451.       In any event, even if the suggestion was to be rejected, as it was, it is not an improper or unjustifiable question, nor was it designed merely to irritate Mr Costello.

452.       Nevertheless, some cause for an award of aggravated damages has been established as appears from the foregoing reasons.
The sums so allowed will be:

Mrs Abbott:       $5,000

Mr Abbott:       $7,500

Mrs Costello:       $15,000

Mr Costello:       $10,000

(iv)       Exemplary damages

453.       I have determined that this issue is able to be decided in accordance with Territory law even in relation to publication in New South Wales.

454.       The test for, and purposes of, such an award have already been referred to. The presence or absence of express malice is relevant, but its presence or absence is not determinative (see Lamb v Cotogno (supra).

455.       The plaintiffs submit that “recklessness” will suffice to justify a finding of “conscious wrongdoing in contumelious disregard of another’s rights”.

456.       It is my view, for reasons I have already adverted to in assessing Ms Funnell’s evidence, that whilst she was negligent and, regrettably, less than frank in some parts of her evidence, she did not deliberately advert to the defamatory nature of the matter complained of and decide to publish notwithstanding. She did not advert to the falsity of the matter complained of, even as a matter of serious likelihood, though negligent in not doing so.

457.       The defendant was tardy and less than diligent in making amends but it did not do so with a view to aiding the author’s destructive intent, though it may have had that effect.

458.       There is an additional consideration urged by counsel for the plaintiffs. Mr Tobin QC submits that the defendant, in publishing this story about the plaintiffs:

“… acted in violation of the general standards of political discussion in publishing a false and offensive allegation concerning the private life of the spouse of a public figure …”

459.      Thus, submit the plaintiffs, the court should award exemplary damages:

“… to protect the privacy of the plaintiffs and the families of all engaged in public life from similar libels.”

460.      Mr Costello protested, quite properly in my view, about the “…new low level of personal attack. I had never seen somebody’s wife falsely attacked like this before…”.

461.       It was submitted that to allow a libel such as the present to escape an award of exemplary damages would “…undermine good public debate and undermine the willingness of good people to come forward and offer themselves for service in public life”.

462.       I have no doubt that these public policy considerations are important. Plaintiffs’ counsel is right. To allow public debate to descend to the levels of the gutter is not in the public interest, however amusing it may be to those politically opposed to those discomfited by it.

463.       There ought to be protection of privacy from intrusion that cannot be justified in the public interest. A person about whom factually false material is published should be entitled, in the interests of historical truth, to have the falsity corrected, hopefully summarily, even if it is not defamatory.

464.       However, those matters do not entitle me either to rewrite the law or to punish the defendant simply to deter others outside the limits of the law as it presently stands.

465.       The plaintiffs’ submission, very properly, highlights why, if the defendant has so acted as to attract exemplary damages, those damages should be apparently substantial. However, it is and remains the law that exemplary damages will not be awarded unless the defendant has acted so as to attract that sanction.

466.       In my view, the negligence of the defendant does not, even after consideration of each aspect of it, amount to a “conscious wrongdoing in contumelious disregard of another’s rights”, even allowing that “reckless” may suffice for “conscious” in that phrase.

(v)       Interest

467.       I consider that most, if not all, of the actual damage occurred shortly after publication, though injury to feelings continued somewhat longer. Future damage is minuscule but I allow 10 per cent to account for it. Interest is therefore payable only on 90 per cent of the sums awarded. To take account of the unevenness in the suffering of injury, I calculate interest, though approximating the result, at 3 per cent over the two years since the publication. That results in the following additional sums:

Mrs Abbott:       $2,500

Mr Abbott:       $3,500

Mrs Costello:       $5,000

Mr Costello:       $4,000

Summary

468.       The sums so awarded to each plaintiff are, therefore, as follows:

Damages ($) Mrs Abbott Mr Abbott Mrs Costello Mr Costello
Injury to reputation 30,000 40,000 40,000 40,000
Injury to feelings 10,000 15,000 30,000 20,000
Aggravated damages 5,000 7,500 15,000 10,000
Interest 2,500 3,500 5,000 4,000
Total 47,500 66,000 90,000 74,000

469.       Each of those sums seems appropriate on a global basis. I direct the entry of judgment accordingly. I will hear the parties as to costs.

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