After a 6 day trial a jury found for the plaintiff in the defamation proceeding of Sheales v The Age & Ors [2017] VSC 380.  The Court awarded damages in the sum of $175,000.  The current maximum amount awardable for non-economic loss is $381,000.

FACTS

The Plaintiff, Sheales, is a Victorian barrister practicing mainly in criminal law and sports law. The Third Defendant, Patrick Bartley, was a journalist who wrote an article about the Plaintiff’s appearance before a Racing Victoria stewards hearing on 2 August 2015. An issue before the steward’s hearing that day concerned the alleged use of the chemical element cobalt by the plaintiff’s clients [1]. Fairfax Digital Australia and New Zealand Pty Ltd, the second defendant, published the article online. The first defendant, The Age Company Pty Ltd, the owner and publisher of The Age newspaper, published the article, with some small differences on 3 August 2015 [2].

The Plaintiff alleged that he had suffered injury to his professional reputation and feelings, had been humiliated, embarrassed or held up to ridicule and contempt, and had suffered loss and damage. The defendants denied his claims [3].

 Verdicts were sought from the jury in relation to two alternate imputations.

(a) That acting in his capacity as a lawyer appearing before a Racing Victoria stewards hearing, the plaintiff deliberately misled the stewards about the effects of cobalt on racehorses (imputation A); or

(b) That in making submissions to a Racing Victoria stewards hearing in his capacity as a lawyer, the plaintiff acted negligently in misstating facts about whether cobalt is performance-enhancing in horses and whether it is harmful (imputation B).

The defendants disputed that the publications carried the alleged imputations, but did not contest that, if they did, the articles were in that meaning defamatory of the plaintiff. The defendants also contended that imputation B was substantially true [5].

The jury found that both the online and print articles in their ordinary and natural meaning only conveyed imputation B and rejected the defence of substantial truth [6].

DECISION

The Court restated, at [11], the well known, to defamation practitioners at least, purpose of a damages award in a defamation action as:

“..to compensate the plaintiff for the consequences of the attitude adopted towards him by other persons as a result of the diminution of the esteem in which they hold him because of the defamatory statement, the grief or annoyance caused to the plaintiff himself by the defamatory statement and to vindicate his reputation.

At [12] – [16] his Honour considered the three principal functions in a review of Belbin v Lower Murray Urban and Rural Water Corporation, and Dods v McDonald being:

1.  reparation for the harm done to the plaintiff’s reputation,
2. solatium for the distress and embarrassment occasioned to the plaintiff by reason of the publication; and
3. vindication of the plaintiff’s reputation.

These principles were addressed in  Carson v John Fairfax & Sons Ltd  as being:

• the three purposes no doubt overlap considerably in reality and ensure that ‘the amount of the verdict is the product of a mixture of inextricable considerations’;
• consolation for the personal distress and hurt caused by the publication and reparation for the harm done to the reputation are frequently considered together and constitute consolation for the wrong done; and
• Vindication looks to the attitude of others to the plaintiff and the sum awarded must be at least the minimum necessary to signal to the public the vindication of the plaintiffs reputation.

Regarding damages the relevant principles are:

• ;the Plaintiff  gets damages  as a vindication of the plaintiff to the public and as a consolation to him for a wrong done which is the product of a mixture of inextricable considerations” [14];
• the harm, that is recompensed by an award of damages, extends beyond compensation for the damaged reputation [15]; and
• it has been long recognised that an important component of an award of damages in an action for defamation consists of compensation for the distress, embarrassment and humiliation occasioned as a result of the publication to other people of the defamatory material about that plaintiff [16].

The Court considered the Plaintiff’s background and reputation and relevantly stating that the Plaintiff:

• was called to the Bar in 1993 where he accepted briefs in criminal law and after 10 years or so, he began to be offered briefs in sports law;
• has since 2003 appeared in all courts and many tribunals, including, from the mid 1990’s, interstate work;
• was twice Secretary of the Criminal Law Bar Association; and
•  is presumed to have a good reputation [19].

The defendants did not challenge his reputation at trial. Evidence was led that he had a reputation for competence and diligence as a barrister at the time of the publications.

Seriousness of the imputation

The Court accepted the defendants’ submission that imputation B was considerably less serious than imputation A. Imputation B was pleaded as a false innuendo and neither party contended that the word ‘negligently’ carried its legal meaning [23]. The defendants also submitted that there was no foundation for assessing the seriousness of imputation B by reference to matters such as barristers’ professional standards obligations.  The imputation itself was not at the serious end of the spectrum [25]. The court rejected this submission and found that it was a serious matter to publish to the readers of The Age that a barrister acted negligently in misstating facts [26].

Extent of publication

While the Defendants’ submitted that the unique page views of the online articles of 2,254 total page views was very low by mainstream media standards the Court noted that the online articles remained online until shortly after the jury returned its verdict [28].

Reactions to the publications

In response to the Plaintiff’s evidence of suffering humiliation the the Defendants argued that he presented in the witness box as a combative person who likes a fight. Accordingly  the evidence of the plaintiff’s grief and annoyance should be weighed against what the court observed of the Plaintiff during the course of the tribunal hearing and the trial [39], that the Plaintiff gives as good as he got based on:

1. from the transcript of the plaintiff’s appearance before the racing stewards that he cast serious slurs on a number of third parties [40];
2. the plaintiff in giving evidence at trial made seriously defamatory slurs under the protection of absolute privilege [41]; and
   
3. in evidence, the plaintiff incorrectly accused senior counsel for the defendants of mischaracterising his earlier evidence, before again asserting that a witness was ‘a liar and a fabricator’ [42]

The court accepted that it could take account of the plaintiff’s performance in the witness box and before the tribunal in assessing his professional reputation but would not to draw adverse conclusions that were not distinctly put to the plaintiff in cross-examination.  His Honour was satisfied that the Plaintiff was both  a robust character but also  strongly felt the hurt and distress that he suffered from the publications [44].

The defendants also submitted that only a small number of those who read the article either in its print or online forms was likely to have known the plaintiff or to have altered their views about him as a result of having read the articles [46].

Mitigation

The defendants argued the following matters went to the mitigation of damages warranting only a nominal award:

• the contradiction inherent in the Plaintiff seeking damages for articles imputing that he made negligent misstatements in the course of submissions to a stewards hearing when, during the course of the trial, he was a person prone to making serious misstatements that were, at least, negligent [50];
• matters that were properly admitted in support of the rejected truth defence. The court should assess what level of damages bears an appropriate and rational relationship to the harm in fact suffered by the plaintiff in the context of an imputation going to the plaintiff’s reputation for making statements in the course of his profession [51].  The plaintiff’s submissions to the stewards hearing were not immune from legitimate and serious criticism, and there were misstatements made not caught by the imputation found by the jury [52]; and
• the Plaintiff had sworn incorrect answers to interrogatories which warranted an inference that the plaintiff did not apply due care and attention to ensuring that there was a proper basis for each allegation in the statement of claim or in preparing his sworn answers to interrogatories [53].

Vindication

The Plaintiff relied on the recent decision of Bell J in Dods,regarding the principles relating to vindication, at [55], which in essence states that:

The purpose of vindication has been described as’ nailing the lie’.As a consideration relevant in the assessment of damages, vindication of the plaintiff’s reputation might count for much more than other considerations, such as the relatively narrow scope of the publication.

The plaintiff submitted that vindication was important with the award sufficient to ‘nail the lie’ in case the libel emerges at some future date. The award must be able to point to a sum sufficient to convince a bystander of the baselessness of the charge [56].  The defendant submitted that if  the imputation was mild and the extent of publication was limited, vindication only called for a modest component of the award [58].

Aggravated damages

Aggravated damages may be awarded where the conduct of the defendant has increased the subjective hurt suffered by the plaintiff. The defendant’s conduct must have been lacking in bona fides, unjustifiable or improper [58].

In support of an award of aggravated damages the Plaintiff submitted:

•  that the Defendants published the articles knowing them to convey a false imputation or with reckless indifference as to the truth or falsity of the imputation, and without having made any sufficient inquiries as to their truth or falsity. The Defendants’ submission that there was an arguable foundation in the transcript of the stewards hearing for each statement attributed to the Plaintiff was rejected with his Honour finding that the conduct was unjustifiable [60];
• that the Defendants’ motive was confirmed by the variations between the two versions of the article. The original article, the online version, was a personal attack on the Plaintiff. The court was satisfied that it was not justifiable for the publications to fail to attribute responsibility for the defence where it belonged, with the persons who were called to show cause rather than their advocate [61];
• the Defendants’ persistence with its justification defence that failed and their abandonment at trial of the defences of fair report and honest opinion [62];
• the conduct of The Age’s sports editor Chloe Saltau. The Plaintiff informed Ms Saltau by leaving a message on her phone that the article was wrong in material respects but she never returned his call [65];
• the continued publication of the articles caused him further injury. The Plaintiff gave evidence that on 19 March 2017, during the trial, he had looked online and saw that the third entry under his name on a Google search was the defendants’ article, ‘Lawyer’s defence misses the facts’. He clicked on the link and said that it took the reader to the article which says he is an incompetent lawyer. The articles were removed from the internet following the jury’s verdict; and
• the defendants’ failure to apologise or publish retractions [67].

The award of damages

The Court stated that in complying with  Section 34 of the Defamation Act 2005,  that there is an appropriate and rational relationship between the harm sustained and the amount of damages awarded  that relationship is necessarily informed by the statutory cap, being $381,000, not including aggravated damages [70].

The Court found that each of the three purposes for an award of damages for defamation were significant in the case – reparation for harm done, solatium for distress and embarrassment, and vindication. Also relevant was the seriousness of the imputation and the extent of publication. The Court also acknowledged some mitigating factors [71].

The court found:

• the ‘negligence’ aspect of imputation B was a serious matter that the ordinary reasonable reader would understand to be something more than just mere carelessness [72].  The imputation directly concerned the conduct of the plaintiff in his professional work as a barrister, rather than any personal capacity. It was more than mild to impute that he had acted negligently, albeit in a general rather than legal sense.  It was a serious matter [73].
• publication of an article in The Age newspaper with a circulation of over 100,000 copies, followed shortly by an online article read by over 2,000 people was not modest [74].  The breadth of interest in the story should not be underestimated. As the Plaintiff acted for high profile race horse trainers in Victoria and more broadly, as a sports lawyer the article in the racing section of the sports pages was likely to have been of interest to, and read by, people who had some knowledge of the plaintiff’s involvement in racing and sports law more generally [75];
• while there was some strength to the Defendants’ submission that the ferocity of the Plaintiff’s attacks on the reputations of others was unnecessary and at times bordered on conduct unbecoming for a member of counsel this did not mitigate the damages significantly [78]. When giving evidence the Plaintiff was not acting as counsel making submissions about a matter in which he was briefed as a dispassionate advisor. He was in the witness box as an aggrieved Plaintiff in a defamation action, in which he has ultimately been successful [79] The sting of the submission touching on his professional reputation was not put distinctly to the plaintiff when he was cross-examined.  The court will not infer that  professional reputation can be challenged by submission when it was not distinctly challenged by cross-examination [80];
• the mitigating factor of errors and misstatements in what the Plaintiff said at the stewards hearing, put during the trial as evidence in support of their failed justification defence were not properly matters going to mitigation [83].  That said some of the Plaintiff’s statements criticising academic commentary about cobalt science were rather unrestrained and of more significance [83];
• the plaintiff’s erroneous answers to interrogatories regarding a phone while it is regrettable did not bear on the question of mitigation of damage in a substantial sense [84];
• the defendants’ failure to apologise at any time and their failure to remove the online articles from the internet until after the jury returned its verdict were aggravating factors [87]; and
  
• the defendants’ maintenance of a justification defence that failed before the jury and the abandonment of other defences during trial also aggravated the plaintiff’s hurt [88].

The court restated the principle that there is limited utility in having regard to comparable damages awards in other cases [91].

The court found, at [92] that the publications amounted to

an unwarranted personal attack upon his competency as a barrister in the manner they found to have been conveyed. I accept that the impact of the hurt upon him personally has been substantial. He was, understandably, incensed. The articles were completely unfair and a personal attack upon him. They were certainly, in that respect, unusual articles in the sense that the conduct of a barrister is not typically accorded the prominence of being more newsworthy than the conduct of the party showing cause…

The court award damages, including aggravated damages, in favour of the Plaintiff against the defendants  in the sum of $175,000 [94].

ISSUE

The decision is a very methodical analysis of how the court will consider the assessment of damages after a jury finds for the Plaintiff.  In this case the Defendants took issue on most material issues.  It was clearly a hard fought case.  The decision makes clear that if the Defendant wishes to put the Plaintiff’s conduct in issue on the question of damages the Defendant must put those matter directly to the Plaintiff.  In this case the Defendant relied on transcript of hearings to make submissions on the question of damages.  The Court also reinforced the need to make respond to a complaint and remove an offending article unless the Defendant is willing to take the risk of aggravated damages.

The Defendants’ full throated claim for mitigation was generally ineffective.  Some of them were quite peripheral issues in the greater scheme of things.  Sometimes less is more in making arguments about mitigation.  That is easier said than done sometimes but parsimony in submissions is a virtue.  Also clear is that the importance of a finding for the Plaintiff on imputations. Whatever submissions are made about mitigation must be on a significant issue to justify reduced or nominal damages.

On the question of damages the award of $175,000 is significant but still less than half of the maximum award of $381,000.  The court did not make clear what portion of that award was aggravated damages.