FEDERAL COURT OF AUSTRALIA

Hayson v The Age Company Pty Ltd (No 2) [2020] FCA 361

ORDERS

THE COURT ORDERS THAT:

1.    Verdict and judgment for the applicant.

2.    The respondents pay the applicant the sum of $50,000.

3.    Within 14 days of the making of these orders, or such other period as may be fixed by the Court, the parties furnish agreed or competing orders:

(a)    for any evidence, submissions and other procedural steps proposed to adjudicate upon the question of costs, with the parties to indicate their views in the draft orders and/or in a covering email as to whether this can be determined on the papers, or also requires oral submissions by telephone or other remote means;

(b)    for any other matter requiring orders or adjudication.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMWICH J:

Introduction

1    This defamation proceeding concerns allegations and imputations of “match-fixing” of two rugby league matches in 2015 for the purposes of securing a favourable gambling result. It is helpful at the outset to outline the general context in which the imputations sued upon, both admitted and disputed, arose.

Gambling and sport

2    Gambling in general, and gambling on sporting events in particular, is an exercise in predicting the future and betting accordingly. At least for professional gamblers, it is a form of risk assessment which may have serious financial consequences if the wrong prediction is made. The range of sporting events and thus results and other outcomes that can be the basis for such a wager is effectively limited only by imagination. In the case of rugby league matches in the premier competition run by the National Rugby League (NRL), gambling has assumed a prominent role. Gambling is heavily advertised at sporting grounds and on television. The gambling interest in the outcome of NRL games is no longer confined to a win/lose dichotomy. The extent of a win (or loss), or some other statistic, can also be the basis for a wager.

3    For some gamblers, there is a temptation to improve upon the quality of the risk assessment by obtaining in advance important information that has a bearing on the prediction exercise, being information that is not held by other would-be gamblers on the same event, at least at the time that a bet is placed. Such conduct has been criminalised in New South Wales since 13 September 2012 by the insertion of s 193Q(2) into the Crimes Act 1900 (NSW) by the Crimes Amendment (Cheating at Gambling) Act 2012 (NSW). It is a serious form of cheating by way of insider trading because it involves gambling on “inside information” which the section defines as information that is not generally available, which if it was generally available, would (or would be likely to) influence persons who commonly bet on the event in deciding whether or not to place such a bet or make any other betting decision. Even before it was criminalised, this was seriously reprehensible behaviour, and was likely to be regarded as such by both honest gamblers and non-gambler observers.

4    Some gamblers take the notion of insider trading one step further than just obtaining extant important information that other gamblers do not have; some take steps, by various means, to bring into existence information that other gamblers will not know by rigging the outcome of the sporting event. This is another way of turning mere chance and prediction into something more certain. In the context of sporting matches between competing teams, this has become known as “match-fixing”. When match-fixing happens, the betting exercise is distorted to become a form of insider trading on created information rather than already existing information.

5    In both forms of insider trading, a farce is created because those gambling with better knowledge of what is likely to happen are no longer engaged in the same exercise of predicting the future and assessing the risk as other, honest, gamblers. A person who engages in match-fixing goes one step further to intervene in a material way to influence that result and therefore have more reliable inside information. Of course, there is an attendant risk that the rigged result will not eventuate. Extant inside information may be more or less valuable than created inside information. The value of either kind of inside information lies in the reduction of the gambling risk and thereby the improvement of the reliability of the prediction exercise.

6    An added feature of successful match-fixing is that the sporting event itself is no longer a true contest. Those who follow the sporting event for pure enjoyment, and not to gamble, are cheated as well. Match-fixing is likely to be more serious, and to attract more public scorn than insider trading that involves obtaining but not creating inside information, given that it undermines the integrity of the sport in question. Affecting the integrity of the game is something that society, through the New South Wales legislature, regards as significantly more serious than affecting the integrity of a wager. This distinction is recognised in s 193Q of the Crimes Act:

(1)    s 193Q(1) makes it an offence to bet on “corrupt conduct information”, being information about conduct that corrupts the outcome of an event, with a maximum penalty of 10 years imprisonment;

(2)    s 193Q(2) makes it an offence to deal with betting on inside information, being information that is not generally available and would or would be likely to influence a decision to bet on the event, with a maximum penalty of 2 years imprisonment.

These offences may be seen to echo what are likely to be more generally held opinions about the distinction between these two similar sorts of behaviour.

7    Despite the important distinction as to inherent seriousness referred to above, match-fixing for the purposes of sport-related gambling, and more conventional forms of insider trading for the same purpose, are not in entirely different categories. They both involve a form of cheating that perverts the betting process to the disadvantage of gamblers who are not privy to what is going on. A bad reputation for conventional insider trading for the purposes of sport-related gambling is therefore material to reputation in relation to match-fixing insider trading: both involve serious dishonesty in the same sector.

The applicant, the respondents and the admitted imputations

8    The applicant in this proceeding is Mr Edward “Eddie” Hayson. He has always lived in New South Wales, growing up on the Central Coast and for the last 30 years, from early adulthood, living in Sydney. He has been well known in sports-related gambling for many years, which is the general sector in which the imputations he sues upon arise.

9    The first respondent, The Age Company Pty Ltd, is the publisher of The Age newspaper, principally published in printed format in Melbourne, Victoria. The Age is also published in printed format elsewhere in Australia to a much lesser extent, including in the Australian Capital Territory (as relevant to this Court’s jurisdiction) and in New South Wales. The second respondent, Ms Kate McClymont, is a journalist employed by a company related to The Age Company.

10    Ms McClymont was the principal author of an article published about Mr Hayson in The Age on 3 June 2016 with the headline “Match-fixing link to gambler”. It is not in dispute that the gambler referred to was Mr Hayson. While The Age is published in print and online, this article was never published other than in print on a single day. It contains a subset of the information included in a more detailed larger article that was published about Mr Hayson online the previous day, and in print on the same day, in the Sydney Morning Herald newspaper. Neither version of the Sydney Morning Herald article is sued upon by Mr Hayson. The online version of the Sydney Morning Herald article is described in Mr Hayson’s closing written submissions as a longer version of the same story in The Age article. The publisher of the Sydney Morning Herald is different to, but associated with, The Age Company, being in the same corporate group.

11    In general terms, The Age article was about Mr Hayson on the topic of match-fixing for the purposes of improving gambling outcomes in certain rugby league games in the National Rugby League competition in 2015, and also about Mr Hayson’s being banned from betting at the TAB, and associated allegations. Mr Hayson alleges that he was defamed by way of five imputations in The Age article. Mr Hayson alleges that there was also republication arising out of subsequent radio interviews in Sydney with Ms McClymont, a point disputed by the respondents.

12    Both Sydney Morning Herald articles were admitted for the purpose of cross-examining Mr Hayson in relation to the hurt he claimed to have experienced. This hurt stemmed both from his own purported reaction to The Age article, and from the others’ reactions towards him, which he purported to believe arose from The Age article and not from the Sydney Morning Herald articles. Mr Hayson’s credibility as a reliable and truthful witness is a key issue dividing the parties.

13    The respondents up to and during the trial denied that any of the pleaded imputations were conveyed or were defamatory. In the alternative, the respondents pleaded contextual truth and mitigation of damages, a defence of qualified privilege having been abandoned in the lead up to the trial. In closing submissions, the respondents:

(1)    conceded the first two defamatory imputations arose, concerning details of payments made to match-fix a single rugby league game and a bet being placed on that game, but denied the remaining three imputations alleged were conveyed, being a further more general imputation as to match-fixing two rugby league games, an imputation that Mr Hayson was an “organised crime criminal” and an imputation that Mr Hayson breached a TAB gambling ban;

(2)    accepted that the defence of contextual truth had not been made out, but sought nonetheless to rely upon aspects they contend were made out in mitigation of damages.

14    Mr Hayson seeks damages by way of reparation for loss of reputation, for vindication of the falsehoods he asserts were published about him and for hurt feelings. He also seeks aggravated damages arising out of the respondents’ conduct in relation to, and since, the publication of The Age article and their conduct during this litigation. The respondents concede that Mr Hayson is entitled to an award of damages, but on a narrower basis than is sought and for a very modest sum. The respondents contend that there is no proper basis for any award of aggravated damages.

15    As a part of the respondents’ case on mitigation of damages, they plead Mr Hayson’s bad reputation in sporting and gaming communities, including by way of conventional insider trading in sports-related gambling. A live issue in the proceeding is whether the evidence has established that he had, at the time of publication of The Age article, a bad reputation for anything falling short of match-fixing within the same “sector” as conveyed by the imputations both admitted and denied.

The key events

16    The following is based on facts that are common ground, not seriously in dispute, or clearly established by the evidence. This summary provides context for the subsequent more detailed consideration of Mr Hayson’s and other witnesses’ evidence.

17    In 2015 and 2016, Ms McClymont had a number of meetings with a Mr Con Ange, during which she took notes of what he told her about Mr Hayson and many other people. Those notes were typed up, discovered by the respondents in this proceeding, and small portions directly relevant to this proceeding extracted cooperatively by the parties into a separate document and admitted into evidence. The rest of the notes remained as a document marked for identification, available for the purpose of context for the material that was in evidence, but not itself in the public domain. The reason for that approach is that the notes include adverse and unsubstantiated material concerning other persons who have nothing to do with this proceeding or Mr Hayson.

18    In part of a meeting in mid-2015, Ms McClymont recorded Mr Ange as saying that he had a falling out with Mr Hayson over a gambling debt that he claimed that Mr Hayson had not repaid him. Ms McClymont’s notes record that Mr Ange knew and hated Mr Hayson and gave an adverse assessment of his character which I will not repeat. It is fair to say that Mr Hayson has a correspondingly low opinion of Mr Ange and takes great umbrage at Mr Ange’s allegations about him being published.

19    In part of a meeting in early 2016, Mr Ange provided Ms McClymont with allegations about Mr Hayson which became part of The Age article sued upon, attributed to a source that was not named.

20    Later, on 1 March 2016, Mr Hayson met with Ms McClymont and another journalist who was a secondary author of The Age article, Mr Patrick Begley, during which certain other allegations that Mr Hayson had been kidnapped were put to him. He was told they were proposed to be published. A letter from Mr Hayson’s solicitor to the editor of the Sydney Morning Herald (not The Age), dated the next day, describes what had taken place at the meeting and emphasised Mr Hayson’s denial of those allegations.

21    Ms McClymont spoke to Mr Ange again on 23 May 2016, at which time he made a further allegation about Mr Hayson’s TAB ban that was also published in The Age article, being a disputed imputation concerning Mr Hayson and a Mr Kieran Foran, a well-known rugby league player.

22    The evidence does not disclose any relevant communications between Ms McClymont and Mr Hayson between 1 March 2016 and 1 June 2016, just before the publication of The Age article.

23    On 1 June 2016, at 9.30 pm, Ms McClymont posted on Twitter “Eddie Hayson embroiled in NRL match-fixing investigation” and a link to a Sydney Morning Herald online article of the same name. She did not attempt to contact Mr Hayson before doing so, but it needs to be remembered that this is not an article that is sued upon.

24    Between about 10.00 am and midday the next day, 2 June 2016, Ms McClymont left a voicemail message for Mr Hayson to call her, but did not say what it was about. At that time, Mr Hayson was at a meeting with his solicitor at the office of the regulator commonly known as Liquor & Gaming NSW. When he left the meeting and retrieved his mobile, he saw a lot of missed calls, including the call from Ms McClymont. The message was to the effect of “Can you call me, please? I have a few questions I would like to speak to you about.” He also noticed a text message from another journalist, at the Sydney Morning Herald, Mr Andrew Webster. Mr Hayson deposed to two different recollections as to the effect of the text, the first being to the effect of “check online” and the second being to the effect of or “Have a look online. The story has broke.”

25    Sometime around midday on 2 June 2016, so not long after his meeting at Liquor & Gaming, Mr Hayson went to the Sydney Morning Herald website and saw that there was a story about him by Ms McClymont. In his evidence-in-chief, Mr Hayson was not specifically asked about that article, or about the print version of that article published the next day, because, his senior counsel later said, it was not the article sued upon. A printout of the Sydney Morning Herald article online was in evidence, totalling just over three A4 pages in large font, including two prominent photographs of Mr Hayson and one of Mr Foran (it records that the article was “first published” at 11.51 am, which is slightly incongruous with it being featured in Ms McClymont’s tweet the night before, though nothing turns on this). Mr Hayson did not return Ms McClymont’s call.

26    The following morning, Friday, 3 June 2016, Mr Hayson obtained and read the very similar paper copy version of the online Sydney Morning Herald article, which was not sued upon either. It was all about Mr Hayson and was the lead story of the day. The story took up about 30% of page 1, and continued on page 4, where it took up about 40% of the area of that page and about 50% of the text of that page. Page 4 contained a small photograph of Mr Hayson.

27    Mr Hayson was asked specifically about the Sydney Morning Herald online and paper articles for the first time in cross-examination, as dealt with in the more detailed consideration of his evidence below. As will be seen, the two sides were sharply divided as to how hurt feelings and damage to reputation should be assessed in light of these articles which are not sued upon, and Mr Hayson’s evidence.

28    On the morning of Friday, 3 June 2016, I readily infer late that morning, Mr Hayson was contacted by telephone by a jockey acquaintance in Melbourne, Mr Danny Nikolic, and separately by two other callers from Melbourne (Mr Nikolic was a witness; the other callers were not). On Mr Hayson’s account, each of the callers did no more than tell him to go and buy The Age, which he did by going to a large newsagent that stocks interstate papers sometime early that afternoon.

29    The text of The Age article was as follows (with paragraph numbering added for ease of reference, as it is in the pleadings, and quotes italicised for ease of reading), with no photograph of Mr Hayson or anyone else:

30    Mr Nikolic gave different evidence from that of Mr Hayson about their telephone conversation late on the morning of Friday, 3 June 2016, to the effect that he had read The Age article out to Mr Hayson, and described his reaction, as detailed further below.

31    As circumstances said to warrant aggravated damages, Mr Hayson relies upon:

(1)    Ms McClymont’s knowledge of animosity between him and Mr Ange;

(2)    the fact that, when given a proper opportunity to meet and have allegations put to him, he had taken up that opportunity and refuted them;

(3)    the lengthy time Ms McClymont had between the 1 March 2016 meeting and the time of publication on 3 June 2016 to put to Mr Hayson the allegations that were published, and the assertion that she should have taken sufficient steps to check the allegations with him before they were published – he goes further, suggesting that Ms McClymont failed to put the allegations to him properly because she did not want to be burdened by any denials he might make; and

(4)    the way in which this proceeding was conducted by the respondents.

The pleaded imputations

32    On 2 June 2017, Mr Hayson commenced this proceeding in relation to The Age article only, as was his right. However, as will be seen, the Sydney Morning Herald articles online and in print, and the manner in which Mr Hayson gave evidence in relation to this, had a material impact on his claim for damages for hurt feelings.

33    Paragraph 4 of the statement of claim sets out the alleged imputations relied upon by Mr Hayson. It is convenient to reproduce that paragraph in full, but replacing the terminology used in practice in New South Wales of “matter complained of” with a direct reference to The Age article. The paragraph numbers in the particulars correspond to those in the reproduction of the text of the article in [29] above:

[The Age article], in its natural and ordinary meaning, was defamatory of the applicant.

Particulars of Imputations

[The Age article] carried the following defamatory imputations of and concerning the applicant:

(a)    The applicant engaged in a criminal scheme with a jockey to match-fix a South Sydney Rabbits versus Manly Sea Eagles rugby league match in 2015.

(b)    The applicant paid six rugby league players $50,000 each to underperform in a South Sydney Rabbits versus Manly Sea Eagles rugby league match so that he could make substantial profits by betting on that match.

 (c)    The applicant illegally match-fixed two NRL games.

 (d)    The applicant is an organised crime criminal.

(e)    The applicant, who was banned from gambling at the TAB, breached that ban by placing $75,000 in bets using Kieran Foran’s TAB account.

Particulars of parts of [The Age article]

The applicant relies on the whole of [The Age article] as giving rise to each of the imputations pleaded. In particular, the applicant relies on the following parts of [The Age article] … as follows:

Imputation 4(a): paragraphs 1, 4, 5, 6, 7 and 8;

Imputation 4(b): paragraphs 1, 4, 5, 7 and 8;

Imputation 4(c): paragraphs 1, 4, 5, 6, 7 and 8

Imputation 4(d): paragraphs 1, 4, 5, 6, 7 and 8

Imputation 4(e): paragraphs 12, 13 and 14.

34    In closing written submission, Mr Hayson narrowed the range of paragraphs relied upon to establish the imputations alleged, as set out below.

The imputations ultimately admitted and denied

35    In their closing written submissions, the respondents make it clear that they concede that imputations (a) and (b) were conveyed and were defamatory, but maintain that imputations (c), (d) and (e) were not conveyed (accepting that if they are found to have been conveyed, they are defamatory). No defence of justification is advanced by the respondents. Thus:

(1)    the respondents accept that they have defamed Mr Hayson by imputing to him by the publication of The Age article:

(a)    engagement in a criminal scheme with a jockey to match-fix a South Sydney Rabbits versus Manly Sea Eagles rugby league match in 2015 – Mr Hayson’s ultimate case was that this imputation was derived from [4], [5] and [6] of The Age article; and

(b)    payment of six rugby league players $50,000 each to underperform in a South Sydney Rabbits-Manly Sea Eagles rugby league match so that he could make substantial profits by betting on that match – Mr Hayson’s ultimate case was that this imputation was derived from [6] and [7] of The Age article; but

(2)    the respondents deny that The Age article carried any imputation (by implication rather than by express words) that Mr Hayson:

(c)    illegally match-fixed two NRL games;

(d)    is an organised crime criminal; and/or

(e)    was banned from gambling at the TAB, and breached that ban by placing $75,000 in bets using Kieran Foran’s TAB account.

36    Given the concession by the respondents that all of the imputations alleged, both admitted and denied, are defamatory if conveyed, there is no need to tarry on that topic. Once any given imputation is admitted or found to be conveyed, defamation is admitted and only the question of damages remains. It is therefore necessary to decide whether Mr Hayson has made good his case in respect of the disputed imputations being conveyed before proceeding further.

37    In closing written submissions, Mr Hayson relies upon the following paragraphs of The Age article in contrast to those pleaded as establishing the disputed imputations, by implication instead of direct words:

Imputation (c):    the headline ([1]), [4] and [5] (but not, as pleaded, [6], [7] and [8]) as giving rise to the imputation that he “illegally match-fixed two NRL games”;

Imputation (d):    [5] and [8] (but not, as pleaded, [4], [6] and [7]) as giving rise to the imputation that he “is an organised crime criminal”;

Imputation (e):    [12], [13] and [14] (as pleaded) as giving rise to the imputation that he, being “banned from gambling at the TAB, breached that ban by placing $75,000 in bets using Kieran Foran’s TAB account”.

38    The forensic choice in pleading imputations by a person bringing a proceeding for defamation may be a difficult one. If the direct assertions in a publication are pleaded as the imputations, there may be a danger that a successful defence will be able to be mounted, because that is what a publisher is most likely to have considered in framing the story by reference to the information available. Moreover, the direct assertions may not properly capture the real slur, or at least the more serious slur being conveyed by implication, such as guilt rather than mere suspicion of guilt. But the ever-present risk is that the implication relied upon, rather than the direct slur available to be relied upon, is not in fact there to be found. That is, if the bar set by the pleaded imputation is too high, it may not be successfully cleared.

39    The issue of the meaning conveyed to be determined arises out of the imputation alleged, not some other imputation that could have been pleaded, but was not: see Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; 371 ALR 545, especially at [31]-[32]; see also the advice of the Privy Council in Truth (New Zealand) Ltd v Holloway [1961] NZLR 22; [1960] 1 WLR 997, reproduced in the New Zealand Court of Appeal decision of Broadcasting Corporation of New Zealand v Crush [1988] 2 NZLR 234, and further reproduced in Chau at [73].

40    There is no dispute that the meaning to be derived from The Age article and measured against the disputed imputations is that of the hypothetical ordinary reasonable reader: Reader’s Digest Services Pty Ltd v Lamb [1982] HCA 4; 150 CLR 500 at 506. As more recently explained by the High Court in Trkulja v Google LLC [2018] HCA 25; 263 CLR 149 (at [31]-[32], omitting footnotes):

The test for whether a published matter is capable of being defamatory is what ordinary reasonable people would understand by the matter complained of. In making that assessment, it is necessary to bear in mind that ordinary men and women have different temperaments and outlooks, degrees of education and life experience. As Lord Reid observed in Lewis v Daily Telegraph Ltd [[1964] AC 234 at 259], “[s]ome are unusually suspicious and some are unusually naive”. So also are some unusually well educated and sophisticated while others are deprived of the benefits of those advantages. The exercise is, therefore, one of attempting to envisage a mean or midpoint of temperaments and abilities and on that basis to decide the most damaging meaning that ordinary reasonable people at the midpoint could put on the impugned words or images considering the publication as a whole.

As the Court of Appeal of England and Wales observed in Berezovsky v Forbes Inc [[2001] EMLR 45 at 1040 [16]], that exercise is one in generosity not parsimony. The question is not what the allegedly defamatory words or images in fact say or depict but what a jury could reasonably think they convey to the ordinary reasonable person; and it is often a matter of first impression. The ordinary reasonable person is not a lawyer who examines the impugned publication over-zealously but someone who views the publication casually and is prone to a degree of loose thinking. He or she may be taken to “read between the lines in the light of his general knowledge and experience of worldly affairs”, but such a person also draws implications much more freely than a lawyer, especially derogatory implications, and takes into account emphasis given by conspicuous headlines or captions. Hence, as Kirby J observed in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 574 [134], “[w]here words have been used which are imprecise, ambiguous or loose, a very wide latitude will be ascribed to the ordinary person to draw imputations adverse to the subject”.

41    In Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496, Wigney J summarised the burden of the authorities on the meaning of the “ordinary reasonable person” and the “natural and ordinary” meaning of a publication at [72]-[85]. This summary is a useful starting point in resolving whether the meaning advanced by the disputed imputations was the single, natural, and ordinary meaning of the words complained of, including by implication. In particular, his Honour observed, as to the approach towards comprehending how the hypothetical ordinary reasonable reader would derive the meaning from a publication (at [77]-[78]):

… [I]n determining what implications or imputations the ordinary reasonable reader would understand or draw from the words, the authorities suggest that the ordinary reasonable reader should generally be taken to approach or consider a publication in a particular way or ways. The ordinary reasonable reader is, for example, said not to be a lawyer who examines the publication overzealously, but rather someone who views the publication casually and is prone to a degree of “loose thinking”. The ordinary reasonable reader also apparently does not live in an “ivory tower” but can and does “read between the lines” in light of their general knowledge and experience of worldly affairs. While they do not search for hidden meanings or adopt strained or forced interpretations, they nevertheless draw implications, especially derogatory implications, more freely than a lawyer would. While they read the entire publication and consider the context as a whole, they take into account emphasis that may be given by conspicuous headlines or captions.

… [T]he mode or manner of publication can be a relevant matter in determining what was conveyed to the ordinary reasonable reader. The ordinary reasonable reader of a book, for example, is likely to read it with more care than he or she would read an article in a newspaper, particularly if that article is sensational. The ordinary reasonable reader of such an article is more prone to engage in loose thinking. That is all the more so where the words which are published are imprecise, ambiguous, loose, fanciful or unusual.

42    Some of the authority giving rise to the above summary is visited in greater detail below, especially because of the reliance placed on it by Mr Hayson.

Disputed imputation (c) that Mr Hayson “illegally match-fixed two NRL games”

43    It may be seen that disputed imputation (c) relies on a subset of the paragraphs of The Age article relied upon for admitted imputation (a) – that is, [4] and [5], but not [6]. The respondents:

(1)    accept that imputation (a) was conveyed – that Mr Hayson engaged in a criminal scheme with a jockey to match-fix the South Sydney Rabbits-Manly Sea Eagles rugby league match in 2015;

(2)    deny that the further imputation (c) was conveyed – that Mr Hayson also match-fixed a game between the Manly Sea Eagles and the Parramatta Eels in 2015.

Thus an imputation of match-fixing is admitted for one game, but denied for the other game.

44    The respondents submit that imputation (c), as to both games, is a strained interpretation of The Age article because an ordinary reasonable reader would not glean from it that not only were two games being investigated by police for match-fixing (a fact that was not in dispute), but that match-fixing had in fact occurred with both, and that Mr Hayson had been responsible for both. The respondents rely upon the article confining the fact of match-fixing to the South Sydney-Manly game, because that is the only game in relation to which reference is made to payments being made to players, being the means by which that game was said to be fixed, and in relation to which a bet was said to have been placed.

45    In arguing for a different conclusion in the context of a judge-alone trial, Mr Hayson focuses on well-established authority, summarised by the High Court in the passages from Trkulja reproduced at [40] above, and revisited below, as to the greater capacity of a layperson than a lawyer to find an implied defamatory meaning. That focus is necessary because the tribunal of fact in this case is not a jury of laypersons, but rather a judge equipped with a lawyer’s cautious interpretive techniques due to legal training and practice. Mr Hayson places reliance on Lewis v Daily Telegraph Ltd [1964] AC 234, especially the speeches of Lord Reid at 258 and of Lord Devlin at 277, and the application of Lewis by the High Court in Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; 221 ALR 186, especially at [10] to [12]. Favell was applied in Trkulja.

46    In Lewis, the approach of a layperson to the process of ascertaining a defamatory imputation was considered in some detail as follows:

(1)    Lord Reid observed (at 258):

The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs.

(2)    Lord Devlin said at the introduction to his speech (at 277):

My Lords, the natural and ordinary meaning of words ought in theory to be the same for the lawyer as for the layman, because the lawyer’s first rule of construction is that words are to be given their natural and ordinary meaning as popularly understood. The proposition that ordinary words are the same for the lawyer as for the layman is as a matter of pure construction undoubtedly true. But it is very difficult to draw the line between pure construction and implication, and the layman’s capacity for implication is much greater than the lawyer’s. The lawyer’s rule is that the implication must be necessary as well as reasonable. The layman reads in an implication much more freely; and unfortunately, as the law of defamation has to take into account, is especially prone to do so when it is derogatory.

(3)    Lord Devlin also discussed the distinction between suspicion of wrongdoing and guilt of having engaged in such conduct, using a much quoted metaphor of smoke and fire (at 285):

A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded.

47    In Favell, a newspaper article referred to a house burning down, to a prior planning dispute about an application by the owner to demolish the house, to a scheduled neighbourhood meeting about the demolition no longer being necessary because the house had gone, and to a police statement that the cause of the fire was not known and that all fires were treated as suspicious until proved not to be. The plurality in the High Court in Favell said (at [2]) that the article could be taken to imply that the destruction of the house by fire in fact facilitated the redevelopment, and thwarted local opposition to it. The issue was whether the article was also capable, as a matter of law, of bearing the pleaded defamatory imputations of arson, or reasonable suspicion of arson, or a related imputation of lying about neighbourhood reactions to the proposed development.

48    In Favell, the pleaded imputations were struck out by the trial judge, and an appeal to the Queensland Court of Appeal was dismissed, albeit that there was an option to re-plead. In allowing the appeal, and finding that the pleaded imputations were capable of being conveyed, the plurality in the High Court (at [10] and [11]) referred to, and quoted from, the speeches of Lords Reid and Devlin in Lewis reproduced above and said (at [12], omitting the footnote):

A mere statement that a person is under investigation, or that a person has been charged, may not be enough to impute guilt. If, however, it is accompanied by an account of the suspicious circumstances that have aroused the interest of the authorities, and that points towards a likelihood of guilt, then the position may be otherwise. There is an overlap between providing information and entertainment, and the publishing of information coupled with a derogatory implication may fall into both categories. It may be that a bare, factual, report that a house has burned down is less entertaining than a report spiced with an account of a suspicious circumstance. At this preliminary stage of the proceedings, the respondents have not yet had an opportunity to indicate why it was considered relevant to the story about the fire to link it with the development application. For that matter, the occasion has not yet arisen for a jury to decide what meanings the article would convey. We are concerned only with the anterior question of what the article is capable of conveying.

49    The above passage in Favell reinforces the need in a defamation proceeding to read an article sued upon as a whole to understand not just what it explicitly says, but what it also suggests, reading between the lines. Is there an undercurrent conveying more than what is overtly stated? What is the impression conveyed, including by any nod or wink, or by the proximity, juxtaposition or transition from one topic to another which may suggest a malign link between disparate items? While Favell was in terms dealing with capacity to convey a pleaded imputation, the reasoning also informs the resolution of the ultimate question of whether such an imputation has in fact been conveyed. Even if the first threshold of capacity is determined adversely, it may nonetheless be appropriate to address the second factual question, upon the alternative assumption that the capacity threshold has been met.

50    As Lord Reid pointed out in Lewis (at 260):

What the ordinary man, not avid for scandal, would read into the words complained of must be a matter of impression. I can only say that I do not think that he would infer guilt … merely because an inquiry is on foot.

51    In a similar vein, Lord Devlin in Lewis (at 286) observed that if an “ordinary sensible” person was “capable of thinking that wherever there was a police inquiry there was guilt, it would be almost impossible to give accurate information about anything”. There is no suggestion of inaccuracy in The Age article reporting on the fact of a police investigation, which was ultimately fruitless in respect of both rugby league games.

52    The problem for Mr Hayson is that while the fourth paragraph of The Age article refers to the police investigation into allegations of match-fixing in two NRL games in 2015 and to him being “embroiled” in that investigation, the fifth paragraph, reinforced by the sixth and seventh paragraphs, only suggests match-fixing had actually taken place in relation to one of the two rugby league games, as opposed to merely being investigated. Viewed in that way, The Age article is incapable of conveying an imputation even to an ordinary reasonable layperson that both games were not just under investigation for match-fixing, but that match-fixing had in fact taken place in relation to both. That would be to draw an implication from the mere fact of referring to an investigation of the Manly versus Parramatta game. The approach urged by Mr Hayson involves a search for a hidden meaning, rather than any meaning that can reasonably be implied. It follows that imputation (c) as to both games being fixed, and fixed by Mr Hayson, as pleaded, is not established even at the level of capacity.

53    Even if I had found that the imputation was capable of being conveyed, I would not, as the tribunal of fact, find that such an imputation was established. That is because on a plain and fair reading of the article there is no reference, either express or reasonably implied, to the match-fixing having in fact taken place in relation to the Manly-Parramatta game, let alone that Mr Hayson had been responsible. There was fire, and not just smoke, for the South Sydney versus Manly game, but only a wisp of smoke for the Manly versus Parramatta game given the lack of any information as to what was alleged to have occurred for that game.

54    For the South Sydney versus Manly game, the allegation grounding the imputation was more overt than the newspaper article in Favell; but for the Manly versus Parramatta game there was much less content than the newspaper article in Favell. While a layperson may more readily find a derogatory meaning than a lawyer, there must still be some reasonable foundation for that conclusion to be reached. No amount of loose thinking can reasonably turn only a wisp of smoke into a fire. The ordinary reasonable reader would understand The Age article to be saying that despite two games being at only an early stage of being investigated for match-fixing, and despite the warning from Mr Greenberg about not jumping to conclusions (at [11]), this had definitely taken place for the South Sydney versus Manly game, and Mr Hayson had been the person responsible. That is, The Age article implicitly suggests that its investigative journalists were well ahead of the police investigation in ascertaining that match-fixing of the South Sydney versus Manly game had in fact taken place, and that it had been done by Mr Hayson.

55    This factual conclusion does not require any clever finding of possible innocent explanations, but rather a simple, plain reading of the text, being ready to draw any reasonable implication available. This includes looking for any implied meaning beyond the express words used, but falls short, as required, of being avid for scandal.

56    The respondents were wise to concede the imputation of Mr Hayson match-fixing the South Sydney versus Manly game, but equally wise not to concede the imputation of Mr Hayson match-fixing the Manly versus Parramatta game. There was no imputation of match-fixing of two games, either as a matter of capacity, or alternatively if capable of being read that way, as a matter of fact. Mr Hayson has failed to establish imputation (c) as pleaded.

Disputed imputation (d) that Mr Hayson “is an organised crime criminal”

57    As noted above, the pleading of imputation (d) relies upon the paragraphs that have been numbered 1, 4, 5, 6, 7 and 8 of The Age article, but in closing written submissions Mr Hayson narrows that reliance to only the paragraphs numbered 5 and 8. The apparent reason for that narrowing is that the substance of this alleged imputation relies upon the reporting of the name of the police unit conducting the investigation, the Organised Crime Squad. The substance of Mr Hayson’s case is that an ordinary lay reader would understand that such a squad investigates the activities of organised criminals, Mr Hayson had match-fixed one of the games (or both games according to imputation (c)), and therefore The Age article conveyed by implication that he was an organised crime criminal. However, as will be seen, the overall effect of The Age article on this topic cannot be avoided by an artificial limitation to the fewer paragraphs now sought to be relied upon.

58    The respondents counter by submitting that the mere fact that the Organised Crime Squad was investigating match-fixing did not convey the impression that those being investigated were organised crime criminals. They submit that The Age article gives no hint that the conduct by Mr Hayson involved organised crime in the sense in which an ordinary reasonable reader would understand that term, principally because there was no suggestion of any criminal organisation being involved. In support of this proposition, they rely upon the Macquarie Dictionary definition of organised crime as a means of supporting this ordinary parlance, being “crime in which the acts of wrongdoing are part of the operation of a criminal organisation”: see the 4th edition. The respondents rely upon The Age article identifying Mr Hayson personally as organising the bet to be placed and the players to be paid, rather anything of a more organisational nature being referred to.

59    It is necessary again to distinguish between capacity to convey the alleged imputation, a question for the tribunal of law, and whether that imputation has in fact been conveyed, a question for the tribunal of fact. The former involves a much lower threshold, effectively requiring the tribunal of law to have regard to Mr Hayson’s case on this issue at its highest, and having no regard to competing conclusions that might be more likely to be reached by an ordinary reasonable reader as a matter of factual assessment.

60    The mere fact of the title of the Organised Crime Squad as the part of the New South Wales Police Force conducting the investigation was legally capable of conveying the imputation alleged when considered in the context of the remaining paragraphs of The Age article pleaded in support of this imputation. That conclusion as to capacity requires only acceptance that:

(1)    the Organised Crime Squad by reason of that name investigates organised crime criminals;

(2)    Mr Hayson was reported as being embroiled in that investigation; and

(3)    it was stated that Mr Hayson had engaged in the conduct that was being investigated in relation to the South Sydney-Manly game (which entails having regard to the additional paragraphs 6 and 7 of The Age article as pleaded, rather than the lesser number relied upon by Mr Hayson in closing submissions),

and therefore The Age article was capable of conveying the implication that Mr Hayson was an organised crime criminal.

61    When it comes to determining whether the imputation is made out, I reach a different conclusion. An ordinary reasonable reader, described by the High Court in Trkulja in the passage reproduced above at [40] as being at the midpoint of that disparate class, looking for the worst meaning reasonably available from that perspective, would undoubtedly accept that the Organised Crime Squad investigates organised criminals. But such a reasonable reader would also understand that not everything that such a squad investigates will necessarily involve organised crime criminals. Such a reader would, as authorities such as Lewis make clear, readily distinguish between an investigation and what such an investigation might discover, for otherwise every reference to an investigation of someone would be defamatory. That is so, no matter what the name is of the squad that is used to conduct the investigation. The distinction between what is being investigated and what is found can, in certain circumstances, be impermissibly blurred in a manner that infers guilt. The Age article itself, however, only refers to conduct by Mr Hayson that does not involve any criminal organisation.

62    Mr Hayson’s case on imputation (d) really turns on little, if anything, more than the title of the police squad. This focus ignores the influence on the ordinary reasonable reader of what The Age article said had in fact taken place, running ahead of the police investigation and any conclusion it might reach. Ordinary reasonable readers are not to be taken to be ignorant or naïve, or, as is well-established as going too far, to be avid for scandal.

63    Match-fixing could be carried out on an individual basis, with assistance, of the kind that Mr Hayson was described as doing, or at a higher level that involves some kind of criminal organisation. Which it is thought to be may not be apparent at the commencement of a police investigation. Here the imputation pleaded is not of suspicion, but of guilt – that Mr Hayson is an organised crime criminal, not just that he is suspected of being one. Mr Hayson chose to pitch his case at a higher, more serious, but more difficult to prove, imputation.

64    The mere fact of such allegations being allocated to the Organised Crime Squad to investigate does not mean that it is organised criminal activity that will be found to have taken place, even if match-fixing is found to have taken place. I consider that an ordinary reasonable reader would apply general knowledge and experience of worldly affairs and understand what Mr Hayson was wrongly described as having done off his own bat was a criminal scheme, being the substance of imputation (a), but not that he was being called, or implied to be, an organised crime criminal merely because that was the name of the police squad conducting the very early stages of an investigation. This is simple common sense well within the capacity of an ordinary reasonable reader to discern. The article, read fairly, reasonably, and as a whole, is not referring to Mr Hayson as part of an organisation of criminals, but rather, and ultimately without foundation, as a single man who has paid NRL players to help him ensure he would win his bet, and who has arranged for a bet to be placed for him on the strength of the effect those payments would have on the outcome of the game.

65    By analogy with Lord Devlin’s observation in Lewis (at 286) referred to above, if an ordinary sensible person was capable of thinking that there was suspicion or even guilt of a particular crime whenever there was a police inquiry by a particular part of a police force, it would be difficult to give meaningful or accurate, but careful, information about anything such a squad was looking into. The name of the squad would have to be avoided no matter what. The reading advocated for by the applicant is avid for a greater scandal than was being conveyed.

66    The pleaded imputation goes too far. Mr Hayson has failed to establish imputation (d).

Disputed imputation (e) that Mr Hayson, being “banned from gambling at the TAB, breached that ban by placing $75,000 in bets using Kieran Foran’s TAB account”

67    Imputation (e) relies upon the paragraphs of The Age article numbered 12 to 14. The pleaded imputation is not, in accordance with the actual language used, that Mr Hayson was the person behind bets being placed by Mr Foran, or that Mr Foran was placing bets on behalf of Mr Hayson. That is, the pleaded imputation is not that Mr Hayson was funding Mr Foran’s betting activities at the TAB, despite being banned from gambling at the TAB himself, which is the substance of what is directly stated. The pleaded imputation is more serious than that. It is that Mr Hayson was himself placing the bets referred to, using Mr Foran’s TAB account to do so. That was the case that the respondents had to meet; and that was the higher pleaded threshold that Mr Hayson set himself to prove. The respondents seek to meet that case by submitting that there is no suggestion in The Age article that money Mr Hayson gave Mr Foran (taking that to be conveyed by the use of the word “behind”) was for a bet to be made by Mr Hayson himself, in breach of the ban reported as being imposed upon him from gambling at the TAB. The pleaded imputation is not just an implication sought to be drawn from the terms of the article, but an imputation sought to be drawn contrary to the terms of the article. The article is not suggesting that Mr Hayson was the one doing the betting in Mr Foran’s name, but rather that Mr Foran was doing the betting using, at least in part, money provided by Mr Hayson.

68    Mr Hayson did not make any detailed submissions to explain how this imputation was to be derived from the words that were published. I am not satisfied that this imputation has been established at any level. Mr Hayson has failed to establish imputation (e).

Conclusion on the disputed imputations

69    None of the disputed imputations have been established.

Overview of the damages claim

70    On the basis of the admissions made by the respondents as to imputations (a) and (b), Mr Hayson is entitled to damages. The respondents accept that is so, although they did not do so until their closing submissions, based on how the trial unfolded. The debate is one of quantum, involving factual and legal differences between parties, with a particular dispute as to what the Court should make of the evidence.

71    As developed in the discussion of the relevant legal principles below, Mr Hayson seeks damages to cover hurt and distress (referred to in these reasons as hurt, or hurt feelings), reparation and vindication, and seeks to have the award elevated by a measure of aggravated damages. Damages for economic loss are not sought, and exemplary or punitive damages are not available by reason of s 37 of the Defamation Act 2005 (NSW), picked up and applied as surrogate federal law in this proceeding.

72    Mr Hayson submits that his reputation has been severely and significantly damaged and he has suffered, and continues to suffer, extreme hurt and embarrassment for which he seeks substantial damages, including aggravated damages, in a large enough sum to vindicate him in relation to the false allegation of match-fixing. He contends that his evidence should be accepted and that the cross-examination of him did not seriously affect this. The respondents recognise the importance of Mr Hayson’s evidence, but submit that he had no credibility as a witness, and that his evidence should not be accepted in the absence of corroboration unless it was against interest. The competing submissions on Mr Hayson’s credit are addressed in the detailed consideration of his evidence below.

Legal principles as to damages

73    General damages for defamation have been described by the High Court as addressing three overlapping purposes addressing personal hurt and distress (again, referred to in these reasons as hurt, or hurt feelings), reparation for harm done to reputation, and vindication of reputation: Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60-1; confirmed in Rogers v Nationwide News Pty Ltd [2003] HCA 52; 216 CLR 327 at [60] (see also [34]-[35], endorsing [60]). The respondents contend that there is no separate award for vindication. That is correct only insofar as vindication is a natural consequence of arriving at a decision to award damages, rather than a separate head of damages, as the High Court has made clear in both Carson and Rogers.

74    As also made clear in both Carson and Rogers, the first two aspects – hurt and reparation – focus on the wrong done. The third aspect, vindication, looks to the attitude of others and what is needed to signal the gravity of what has been wrongly said and its impact on social standing. It is essentially concerned with the community in which the person defamed lives and works, in the context of that person’s prior social standing and the standing of the wrongdoer in conveying the imputation. Vindication has been described as requiring a sum sufficient to convince a bystander of the baselessness of the allegation made in the publication: see Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [75], citing and applying Cassell & Co Ltd v Broome [1972] AC 1027 at 1071; see also Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652; 237 FCR 33 at [446] and the authorities there cited and summarised.

75    As noted by White J in Hockey at [446(a)], citing Bristow v Adams [2012] NSWCA 166 at [20]–[31], damage to reputation need not be proved as it is presumed. The applicant’s closing submissions stated that this presumption is practically irrebuttable, citing Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75; [2005] QB 946 at [32] per Lord Phillips of Worth Matravers MR, quoted in Bristow v Adams at [21]-[31] per Basten JA. It is worth noting, however, that Basten JA explicitly stated that it was not necessary to determine whether the presumption is irrebuttable under Australian law (at [29]), with Beazley JA (at [7]) and Tobias AJA (at [45]) agreeing with his Honour’s discussion of the relevant case law. This issue also does not arise in the present case.

76    The pragmatic object of the presumption, as articulated in Jameel at [31], is to avoid an evidentiary contest as to whether or not the publication in fact damaged reputation. That reasoning does not preclude evidence being relied upon which has the effect of limiting the scope for the presumption to work, for example regarding the nature, location and extent of the publication and thereby its capacity to do harm.

77    There are issues in dispute between the parties concerning the cross-examination of Mr Hayson on the Sydney Morning Herald articles and related issues that require closer than usual consideration of the written defamation (libel) damages case of Associated Newspapers Ltd v Dingle [1964] AC 371; [1962] 2 All ER 737. The English Court of Appeal had overturned the trial judge’s award of damages, substituting that award with a higher amount: Dingle v Associated Newspapers Ltd [1961] 2 QB 162; [1961] 1 All ER 897. This was done by reason of several identified errors of principle. One such error concerned the use of prior publications of the same defamatory material to reduce the award of damages. On appeal to the House of Lords, the publisher contended (at 376-7) that the Court of Appeal had misapprehended the true basis of the trial judge’s assessment of damages, characterising it as no more than seeking to isolate the damage done by the published article from that done by prior publications. Mr Dingle (at 383) contended that, rather, the trial judge impermissibly mitigated damages on the basis that prior publications of the same libel by other newspapers had already damaged his reputation.

78    The publisher’s appeal in Dingle was unanimously dismissed by the House of Lords, which accepted the characterisation of impermissible mitigation found by the Court of Appeal. It is necessary to look at the different House of Lords judgments in Dingle to understand not only the prohibition on using prior publications of the same defamatory material to mitigate damage, but also the permissibility of isolating the effect of the sued-upon publication from any other source of damage to reputation. As will be seen from a close consideration of the speeches, there would have been nothing wrong with the trial judge in Dingle isolating the effect of the impugned publication from the other defamatory publications, if that was possible, but this was not what had in fact happened.

79    Lord Radcliffe (with whom Lord Morton of Henryton agreed) said:

(1)    at 394-5:

I have come to the conclusion that what [the trial judge] intended to do was to mitigate the damages he was to award to [Mr Dingle] by the consideration that, though the “Daily Mail” had defamed him on June 16, the person it was defaming already possessed at that date a reputation tarnished to some extent by what had been said about him in the report and in its reproduction and, for all I know, embellishment in other newspapers. To do this is not merely to ascertain and isolate the actionable matter: it is to fix the damages arising from that matter by reference to similar (I do not say identical) allegations made by other persons in other publications.

In my opinion this is an inadmissible proceeding. There is more than one reason why it should not have been followed.

The first is that the newspaper extracts were put in evidence at the trial on an understanding as to their use, which excluded any reference to their contents for the purpose of mitigating damages.

(2)    at 396:

It is, I think, a well understood rule of law that a defendant who has not justified his defamatory statements cannot mitigate the damages for which he is liable by producing evidence of other publications to the same effect as his; and it seems to me that it would involve an impossible conflict between this rule and the suggested proof of tarnished reputation to admit into consideration other contemporary publications about the same incident. A defamed man would only qualify for his full damages if he managed to sue the first defamer who set the ball rolling: and that, I think, is not and ought not to be the law.

(3)    at 397-8, in considering Harrison v Pearce (1858) 1 F & F 567; 175 ER 855:

In my opinion that decision can be rather a misleading guide to the assessment of general damages for defamation. There the defamatory words had been published in two ways, by newspaper advertisement and on placards. The plaintiff had suffered an ascertained loss of circulation of his newspaper and it was therefore necessary for the judge, in directing the jury, to remind them that the part of the circulation loss attributable to the placard publication should not be visited upon the newspaper publisher, who was not responsible for the placard. That, I think, is the only real point of the case. In so far as it asserts that a defendant is only to pay damages for the defamatory words he has himself used, not for defamatory words used by others, it is commonplace: but, for the rest, I think that it is best understood in relation to what we should today characterise as an item of special damage (though it was not so regarded then), and that it does not contain a full expression of any general rule for the ascertainment of libel damages where they are at large.

80    Lord Cohen also agreed with Lord Radcliffe, and said (at 405-6):

The appellants contend that the trial judge did not mitigate the damage on account of the report and the publication in other newspapers and they rely on the fact that he pointed out the importance of isolating the damage done by the appellants’ publication from the damage done to the respondent by the report and by the printing of extracts from it in other newspapers. This, as Holroyd Pearce L.J. pointed out, [in the Court of Appeal [1961] 2 QB 162, 17] was the correct approach provided he was not mitigating the damages on account of injury done to the plaintiff by the publication of the report. … I do not think there was any evidence on which the trial judge was justified in treating [Mr Dingle’s] reputation as tarnished.

81    Lord Denning said:

(1)    at 410, emphasis in original:

Now comes the difficult point which I may state in this way: The “Daily Mail” are only responsible for the damage done to the plaintiff’s reputation by the circulation of the libel in their own newspaper. They are not responsible for the damage done to the plaintiff’s reputation by the report of the select committee or by the publication of extracts from it in other newspapers. If the judge isolated the damage for which the “Daily Mail” were responsible from the damage for which they were not responsible, he would have been quite right, see Harrison v. Pearce [(1858) 1 F & F 567; 175 ER 855]. But it is said that he did not isolate the damage. He reduced the damages because the plaintiff’s reputation had already been tarnished by reason of the publication of the report of the select committee and of the privileged extracts from it in the “Daily Mail” and other newspapers. I think he did do this and I think he was wrong in so doing.

(2)    at 411:

Newspapers in particular must not speak ill about people for the spice it gives their readers. It does a newspaper no good to say that other newspapers did the same. They must answer for the effect of their own circulation without reference to the damage done by others. They may not even refer to other newspapers in mitigation of damages.

82    Lord Morris of Borth-y-Gest said:

(1)    at 414-5:

How, then, did the judge proceed to assess the damages for what he regarded as a damaging libel, which as to its most material parts was devoid of foundation? The appellants submitted that he awarded damages on the basis of isolating and excluding the privileged or justified parts of the article, and also of excluding from consideration any publications in other news­papers for which the appellants were not responsible.

A study of the judgment has, however, led me to the conclusion that though the judge isolated and excluded the privileged or justified parts of the article, he proceeded to assess damages on the basis that the actionable defamatory parts of the article merely added further blemish to a reputation which, having regard to all that had happened, had to be regarded as already blemished.

(2)    at 417:

The judge referred to the case of Harrison v. Pearce [[(1958) 1 F & F 567; 175 ER 855]. It seems to me that the report of that case is somewhat too short to be helpful in declaring general principle. Though only general damages were claimed the ruling was concerned with what would today seem like an item of special damage. The jury were allowed, in assessing general damages, to consider whether loss of circulation of the plaintiff’s newspaper resulted from what the defendant published in his newspaper: they were correctly told that they must disregard any loss of circulation which resulted from a publication of the same words by others but in quite a different manner. Other actions were pending against such others. The report does not record any observations on the subject of general damages for loss of reputation. A correct ruling would, in my view, have been that the defendant could not seek to mitigate damages by a plea that he had only published what others had also published.

83    It can be seen that while Dingle forcefully deprecates any attempt to mitigate damage upon the basis that prior publications of the same defamatory material had already tarnished reputation, it is permissible to isolate the damage of the sued upon matter from the damage caused by these other publications, where this is possible. That approach is reinforced by the decision of the Full Court of the Supreme Court of South Australia in Cornwall v Rowan [2004] SASC 384; 90 SASR 269 (at 794]):

The publication of the defamatory material by the television stations was an independent and separate tort. Generally speaking, each several tortfeasor is liable only for the damage caused by his or her own publication: Harrison v Pearce (1858) 175 ER 855; Dingle v Associated Newspapers Ltd [1964] AC 371 at 410. The difficulty arises where there are numerous publications to the same or similar effect. It may be impossible to determine which publication caused what damage. In those circumstances, the law regards the injury to the plaintiff as the joint result of each publication and each publisher will be liable for that damage.

84    The Full Court in Cornwall v Rowan then (at [795]-[796]) quoted from the Court of Appeal judgment of Devlin LJ in Dingle v Associated Newspapers at 186-7 and 188-9. These passages are to the effect that, while each publisher will be made responsible for the publication to its own circle of readers or listeners and not beyond, libel may spread beyond the immediate circle to the point where “no one can identify each separate source of infection”. Secondly, mental distress due to repetition of the same libel may be such that the injury is indivisible; if there cannot be any meaningful separate assessment of the impact of different publications, each publisher who is a substantial cause of the injury must pay for the whole (subject now to statutory adjustment).

85    The damages assessment comes down to whether or not there is any capacity for divisibility, which turns on the facts in the case at hand, as established by the evidence.

86    In assessing damage, the Court is bound to take into account facts proved in support of a defence, even if the defence does not succeed, provided the facts pertain to the same “sector” of Mr Hayson’s reputation as the defamatory imputations admitted or proven: Channel Seven Sydney Pty Ltd v Fisher [2015] NSWCA 414 at [96], citing Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 and appellate authority in New South Wales in which the application of the Pamplin principle has been accepted. If Mr Hayson’s reputation in the relevant sector is proven to have been tarnished at the time of publication (excluding the parallel publications on the same topic), the damages assessment in relation to the publication sued upon might not encompass this prior tarnish insofar as the instant damage can be isolated from it.

87    Section 34 of the Defamation Act obliges the Court to ensure that there is an appropriate and rational relationship between the harm sustained and the amount awarded. Section 35 imposes a cap on damages for non-economic loss of $407,500 (as adjusted by gazetted declaration). This may be exceeded if and only if this court is satisfied that the circumstances are such as to warrant an award of aggravated damages.

88    Mr Hayson relies upon a table of comparative awards for damages, which provides a yardstick, but no more, for the award of damages in this case: see Rogers at [69]-[70]. I have had regard to those prior awards of damages to better appreciate the general landscape of such awards. I have also had regard to aspect of the recent New South Wales Court of Appeal decision that deals with damages: see KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig v Bowden [2020] NSWCA 28 at [141]-[151] per Payne JA (with whom Basten and White JJA agreed), especially at [146]-[147].

89    Section 38(c) of the Defamation Act requires the Court to take into account any recovery of damages for any other publication having the same meaning or effect, in this case a parallel publication by Nationwide News Pty Ltd in Sydney, the terms of settlement of which are before me on a confidential basis. In Chau v Fairfax Media Publications Limited [2019] FCA 185, Wigney J made a downward adjustment of damages of $25,000 to take account of such a separate publication and award of damages (at [359] to [360]).

90    In order to obtain an increase in the award of damages by reason of establishing an aggravated compensatory dimension to what has occurred then or since, usually but not necessarily associated with the hurt aspect of the damages awarded, Mr Hayson accepts that he must establish that any aspect of the conduct of the respondents relied upon was unjustifiable, lacking in bona fides or improper: see Hunt J in Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 497C-E, explaining Triggell v Pheeney (1951) 82 CLR 497 at 514.5. Bickel was subsequently endorsed by the New South Wales Court of Appeal in Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 at 653-C and in Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 75C-D; see more recently Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154; 56 VR 674; 361 ALR 642 at [66]. It is important not so lose sight of the fact that this basis for an increase in damages must always be compensatory in nature, not punitive, a distinction that is easy to forget in the adverse characterisation of the conduct relied upon. The focus must be on the damaging effect of the conduct relied upon, not as some sanction being imposed for that conduct: see Bauer Media v Wilson at [225].

91    Mitigation of damages that might otherwise be appropriate may be achieved in a number of different ways. First, and most obviously, are those expressly provided for in s 38 of the Defamation Act – apology, correction, and damages or compensation arising from other defamation involving imputations of the same meaning or effect. Only the last of these applies, by reason of the settlement of the parallel proceedings Mr Hayson brought against Nationwide News Pty Ltd. Other grounds for mitigation include criminal convictions or adverse findings in civil proceedings, and evidence primarily directed to an unsuccessful defence of justification or honest opinion, and relevant background context (known as the Burstein principle arising from Burstein v Times Newspapers Ltd [2001] 1 WLR 579; [2000] All ER (D) 2384; [2000] EWCA Civ 338 and discussed at some length by Wigney J in Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550; 359 ALR 564 at [32]-[46]).

Mr Hayson’s evidence

92    Mr Hayson was the primary witness in his case. The evidence of his only other witness, Mr Nikolic, concerned his reaction to having The Age article read to him (an event he did not himself depose to having taken place) and is discussed further below.

Mr Hayson’s background

93    Mr Hayson grew up on the New South Wales Central Coast and has been a resident of Sydney for the past three decades. He described being actively involved in sport since his early teenage years, including as a New South Wales squash champion at 13 years of age and then as a player of rugby league, golf and tennis up until early adulthood. His social life, discussed further below, was based predominantly in sporting and gaming circles.

94    As well as counting NRL players as friends, Mr Hayson described being friendly with prominent people in the horse racing industry, including Gai and Tom Waterhouse. He was also previously a co-owner of race horses alongside various NRL players. In 2001, in his early thirties, he purchased a hotel in Sydney which he converted to a brothel named Stiletto. Mr Hayson ceased being an owner of Stiletto in about 2014. He stated that he now earns money as a punter and by organising escorts. He thus has been actively involved in sports-related gambling for many years.

Evidence as to prior controversies involving Mr Hayson going to his credit

95    Before turning to the evidence specific to this case, it is convenient to address the challenge mounted to Mr Hayson’s credibility in cross-examination, as this has a material bearing on the conclusions reached as to the acceptance or otherwise of his evidence, especially on issues which turn on his account of events that that are difficult, if not impossible, to challenge directly.

96    The respondents sought to make much of prior controversies concerning the applicant, in order to discredit him as a witness. To a limited extent, Mr Hayson made admissions that some of these controversies had a negative impact on his reputation, addressed cautiously in further detail below.

97    During cross-examination, Mr Hayson admitted that he entered the main gaming area of Star Casino in June and September 2014, knowingly in breach of exclusion orders. On the second occasion, the duty manager told Mr Hayson he was not permitted there due to an exclusion order, to which he responded by falsely stating that the order had been overturned two years earlier.

98    The respondents submit that the “flagrant” commission of two criminal offences, by way of separate and deliberate contraventions of an exclusion order under the Casino Control Act 1992 (NSW), are exacerbated by a “bare-faced lie” to the duty manager. While Mr Hayson readily admitted this was so, the respondents submit that he did so because he must have been aware of documents the respondents had which meant they had him “cold”.

99    The better explanation is that Mr Hayson did not think that this mattered very much, which is not to his credit either. This is evidence of Mr Hayson’s willingness to lie when it is to his advantage. He pleaded guilty to summary charges for each incident and was given the benefit of not having a conviction recorded, an outcome which most commonly is only possible, or at least likely, with a guilty plea. They are relatively minor regulatory offences, but the necessary findings of guilt demonstrate that Mr Hayson, less than two years before the publication of The Age article, did not think he should have to comply with the exclusion orders, an important part of gambling regulation and control. More troubling than breaching the exclusion orders is lying about them so that they would not stand in the way of him entering the casino gaming area as was clearly intended by the orders being made. It indicates a determination to do as he pleases, and to lie about it if that is necessary to get what he wants. Lying to a duty manager at a casino is a very different matter to lying on oath in court. Nonetheless, Mr Hayson’s attitude towards legal obligations and to telling the truth when that was an impediment to getting what he wanted caused me to scrutinise his evidence more closely, and to be less willing to take what he said at face value.

100    Mr Hayson also admitted that he had placed a substantial bet on Auckland to beat Newcastle in an NRL game, knowing, prior to a public announcement, that a key Newcastle player, Andrew Johns, would withdraw from the match due to a neck injury. He insisted under cross-examination that this was perfectly honest behaviour, and then in re-examination stated “there was never [an] inquiry or any hearing … it was a storm in a teacup”. The respondents submit that Mr Hayson made knowing use of information about Andrew Johns’ neck injury because he knew that this information was not publicly available or known to the bookmakers with whom he bet. This is characterised by the respondents as dishonest by the standards of ordinary decent individuals, and has a material bearing on his credibility as a witness overall.

101    I do not accept Mr Hayson’s characterisation of his conduct as perfectly honest. It is troubling that he even viewed it in that way. Insider trading in sports-related gambling is inherently dishonest, and, as stated above, it has also been illegal in New South Wales since September 2012. This is evidence going to Mr Hayson’s credit, and thus to the assessment of the weight and value of his evidence.

102    Mr Hayson similarly denied in cross-examination that it was dishonest of him to have deliberately manipulated odds by placing bets on greyhounds that were not the favourite, in order to better the odds on the favourite over which he had already placed a substantial bet, in the moments prior to a race. In re-examination, Mr Hayson stated that although a South Australian bookmaker, Mr Curly Seal, initially refused to pay, he did so following an inquiry by South Australian Liquor & Gaming. The respondents submit this was dishonest despite not being illegal and further justifies the conclusion that he could not “be trusted rigorously to tell the truth”. I agree that, while this may not have been illegal, it was at least of questionable morality and was not honest behaviour, which goes to Mr Hayson’s credibility. But this evidence does not go to Mr Hayson’s reputation, which cannot be shown to be bad by reference to evidence of specific acts of misconduct.

103    Mr Hayson also denied that it was dishonest of him to have contacted a source within the stable of Gai Waterhouse and obtained confidential inside information regarding the fitness of her horse, More Joyous, prior to a race, following a tipoff from another source. In re-examination, Mr Hayson asserted that he did not put any money on the race. I regard that evidence with some scepticism, but there is no evidence to the contrary. In response to a formal request by the racing stewards to provide the names of these sources, Mr Hayson’s solicitor, on the instructions of Mr Hayson, wrote “My client advises he has never had contact with anyone within the Gai Waterhouse stable in relation to the welfare of More Joyous …”. Mr Hayson denied that this statement was false, as “they are contractors there, so they’re not on the payroll”.

104    It seems that the solicitor’s letter did not satisfy Racing NSW. After refusing to provide the name of his source, Mr Hayson was issued with a notice of warning off by Racing NSW in September 2013, meaning he was not to, among other things, attend any racecourses within the control of Racing NSW or have any interest or share in any bet on thoroughbred racing in Australia. He admitted that he nonetheless used TAB accounts in the name of third parties, which was a bypassing of the prohibition if not a direct breach of it, as well as placed bets himself, which was likely to have been a direct breach, as he viewed the warning as “the greatest joke of all time” and “frivolous”. Mr Hayson also suggested that he believed Tabcorp or one of its employees had the power to excuse him from compliance, which I do not find to be an honest or reasonable belief.

105    Mr Hayson admitted that he placed bets at another TAB in the days after receiving a further letter from Racing NSW, informing him that the warning off period had been extended. This warning off period lasted for approximately eight months, after which Mr Hayson was free to attend racing events again, and did so. The respondents submit that this conduct was “disgraceful and dishonest” and illustrated his lack of respect for the system of law and regulation which bound him, such that he could not be relied upon to give evidence in a court of law truthfully and rigorously.

106    The respondents also submit that Mr Hayson strayed so significantly outside the terms and conditions imposed by Tabcorp on his betting account that he was banned permanently from betting through Tabcorp. He then knowingly permitted others to transact on his betting account even though he well knew that to be contrary to the terms and conditions of the operation of that account. The respondents contend that it may safely be inferred that a permanent ban is not a sanction imposed on the ordinary punter and bears adversely on his credibility.

107    I do not accept that the solicitor’s letter to Racing NSW was other than a dishonest statement made on Mr Hayson’s behalf. He had been in contact with someone who was within the Gai Waterhouse stable in at least the physical sense of someone who was situated there at the time, yet his solicitor’s letter, which must have been sent with the benefit of his instructions given its content, on its face represented that no such conduct had taken place. It is highly unlikely that the recipient of that letter would have drawn a distinction between someone at the Gai Waterhouse stable who was on her payroll and such a person who was not on her payroll. The letter was, at best, a sly economy with the truth, at least on the part of Mr Hayson. It certainly is adverse to his credit as a witness and more generally, not least because he sought to defend the letter as not being false in its effect.

108    Mr Hayson admitted that he was asked to attend at least three other racing inquiries, in about mid-2006 (and thus 10 years before the publication of The Age article and 13 years before the trial in this proceeding), in which his betting records and communications with jockeys or stable representatives were in issue. That is, all of those inquiries must have been concerned with issues of propriety in sports-related gambling. He told the media at the time “The mud was being slung thick and fast” and that, despite his asserted innocence, “it sticks”. That amounts to evidence of his knowledge of the fact of some damage to his reputation in relation to insider trading-related matters in the sports-related gambling sector, going beyond individual events so as to be permissible evidence on that topic. While those inquiries were a long time ago, they evidently form part of Mr Hayson’s personal history beyond single incidents and bear on his reputation, and come into play when further events occur.

109    When pressed to accept that the much more recent More Joyous inquiry in 2013 also impacted negatively upon his reputation in the horse racing industry, he replied “a little bit”. I find that Mr Hayson’s reputation was, as he admitted, adversely affected by being required to attend the inquiry that pertained to More Joyous in particular, but also the much earlier inquiries. This was confirmed, at least in relation to the More Joyous inquiry, by Mr Nikolic’s evidence, discussed below. The evidence of the remaining witnesses indicates that those prior events, especially concerning the racehorse More Joyous, have not faded from memory and remain a part of Mr Hayson’s reputation in the sector.

110    Mr Hayson was less accepting of suggestions in cross-examination that he was already poorly received in the rugby league world as a matter of general reputation, due to his close relationship with some players, stating “[b]efore the story broke I was very well received in rugby league”. The phrase “the story broke” amounts to a reference to the match-fixing allegations more generally, rather than to The Age article specifically. Mr Hayson only gave specific evidence of relationships with New South Wales-based rugby league players, and I therefore infer that he only had a reputation in rugby league circles in New South Wales.

Evidence of reaction to The Age article

111    On the morning of 2 June 2016, Mr Hayson recalled being in an interview with the office of Liquor & Gaming between approximately 10 am and 12 noon. Upon leaving the interview, Mr Hayson checked his mobile telephone and noticed many missed calls, as well as a short voicemail from Ms McClymont asking him to call her. Mr Hayson also recalled seeing a text message from Mr Andrew Webster of the Sydney Morning Herald telling Mr Hayson to look online as “[t]he story has broke”. He then went online and saw the Sydney Morning Herald article by Kate McClymont headlined “Eddie Hayson embroiled in NRL match-fixing investigation”. The next day, Mr Hayson saw that substantially the same article had been reprinted on the front page of the paper edition of the Sydney Morning Herald, and continued on page 4.

112    The Sydney Morning Herald articles, which are not sued upon, were longer but covered substantially the same allegations as the The Age article which is sued upon.

113    Mr Hayson was asked how he became aware of The Age article. He stated that several friends and acquaintances from Melbourne called him and told him to buy the paper. These people included Mr Matt Tripp, the Chief Executive Officer (CEO) of CrownBet, a Mr Terry Board, and Mr Danny Nikolic (only Mr Nikolic was relied upon as a witness). Mr Hayson gave no evidence of his reaction upon hearing from these people that the article had been published in The Age. Mr Hayson stated that he then went to a large newsagency in Sydney and obtained a copy of The Age, along with other papers from around the country. He said he did so “because I was trying to work out what I was going to do with my life and how I was going to move forward here”. When asked in his evidence-in-chief “How did you feel when you read that article?”, referring only to The Age article, Mr Hayson responded “I was in total disbelief of how there could be a story so bad that I had nothing to do with”. Mr Hayson was then taken through the imputations as pleaded and asked “How did you feel when you realised that The Age newspaper was saying these things about you?”, to which he replied “I was in total shock” – his evidence as to shock is therefore necessarily about all of the imputations pleaded, including those which have not been made out. He said that people who fix matches are “the lowest form of life to ever exist”, and that he was very angry and very upset, both for himself and for his family.

114    Under cross-examination, however, Mr Hayson’s asserted reaction of shock to The Age article was revealed to be less than candid, partly by reason of the way in his which his evidence was led. First and foremost, it was not clear until cross-examination that the events he deposed to above concerning obtaining and reading The Age article, and the impact he said this had upon him, occurred on 3 June 2016, the day after he first read the Sydney Morning Herald article online, and the day upon which both the Sydney Morning Herald article and The Age article (sued upon) were published in print. Mr Hayson agreed that The Age article said substantially what he would have expected it to say, having already read the longer and significantly more prominent articles in the Sydney Morning Herald online and in print. Furthermore, the purported reaction of shock upon reading the article is somewhat inconsistent with the evidence of Mr Nikolic, which I accept and is discussed below, who said that he had earlier read The Age article to Mr Hayson over the telephone. That context also has an important impact on how Mr Hayson’s explanation for the reason for buying The Age is to be understood.

115    Given the above, I find that Mr Hayson’s comment that he bought The Age, along with “lots” of other newspapers, in order to figure out how he was going to “move forward” indicates that the purchase was part of an exercise conducted by him to assess the extent of the publication of match-fixing allegations. I further find, as was squarely put to him, and also relying upon his own explanation, that he purchased The Age for the purposes of considering pursuing legal action flowing from his reaction to the Sydney Morning Herald articles. Given that The Age article was read as part of this exercise, I infer that any emotional response to just The Age article would have been somewhat muted.

116    Mr Hayson said, regarding the decision to sue on The Age article but not the Sydney Morning Herald article, “I left it up to my lawyers”. This was an indication that the decision was based on viability as to content to sue upon, rather than a genuine perception that it was a dominant source of the high degree of hurt he experienced. Mr Hayson’s attribution of a high degree of distress and shock to reading The Age article therefore does not survive scrutiny. It casts doubt on the reliability of his evidence more generally, especially as to the asserted impact on his social and personal life, discussed below.

117    That said, following Dingle, there is no mitigation to be found in the publication of the Sydney Morning Herald articles, noting in particular the observations of Lord Radcliffe in the House of Lords, reproduced at [79] above, and Devlin LJ in the Court of Appeal, discussed at [84] above. Mr Hayson would undoubtedly have experienced a degree of hurt upon discovering the match-fixing allegations had also been published in The Age, and I find that to be the case. As was put to Mr Hayson in cross-examination, however, I find that The Age article was of a relatively trivial independent impact upon him in terms of hurt when isolated from the impact of the much more substantial Sydney Morning Herald articles, contrary to his assertions in the witness box which I find not to be genuine or credible. The onus was on him to establish a causal link between the tortious conduct proven and the damage suffered by way of hurt feelings, as for any other tort. As already discussed, damages by way of reparation for harm done to reputation, and damages for vindication of reputation, are in a different category.

Mr Hayson’s social and personal life before and after the publication of The Age article

118    Mr Hayson described going from having a rich social life in sporting circles prior to the publication of The Age article, to being a pariah. This rich social life included being invited to the box at Sea Eagles games and the dressing room after such games, as well as State of Origin functions and parties before and after games. When asked about other events he had attended in the five years up to 2016, Mr Hayson said that he was invited to the Australian Open Tennis on several occasions by the CEO of CrownBet, and the Melbourne Grand Prix as a guest of the Ferrari function room with two Sea Eagles players by a sponsor of both the Manly Sea Eagles and the Ferrari team. Mr Hayson counted Andrew Johns, Kieran Foran and other prominent NRL players amongst his friends.

119    When asked “what happened to your social life post publication of this article in The Age and, no doubt, the other articles published in the Sydney Morning Herald?”, Mr Hayson became clearly upset and needed time to compose himself. He responded “I didn’t exist after this article”, either not appreciating, or ignoring, the passing oblique reference to the Sydney Morning Herald articles. That is, his answer attributed all that had happened, and not happened, after early June 2016 solely to publication of The Age article. He reported that the invitations to sporting events dried up, and have remained that way, and that he has not since had contact with Mr Foran or Mr Johns. A live question is whether such a belief was genuinely held. I find it was not.

120    Mr Hayson’s evidence was that he had heard through a friend that Mr Johns is contractually prevented from talking with him by his employer, Channel 9. Similarly, Mr Hayson reports that he heard from Mr Foran’s manager that Mr Foran’s contract with the NRL prevents him having contact with the applicant, over which Mr Hayson feels “very distraught”.

121    Mr Hayson has not been to Derby Day in Melbourne since 2016, despite previously enjoying attending, but he did not expressly explain why.

122    Mr Hayson stated that he had been stopped and searched by the police five times since the publication of The Age article, which had never happened to him before, and that on three of those occasions they said to him “you’re the match-fixer”. Though Mr Hayson did not specify where this occurred, it can be inferred that this was in Sydney and therefore by the New South Wales Police. If it had happened anywhere else, such as in Melbourne, I would have expected him to say so.

123    When asked during his evidence-in-chief how publication of The Age article and (by way of a passing and imprecise reference) other articles in the same vein impacted his family, he stated that he did not see his then 12 year old son for eight months “[b]ecause he didn’t talk to me because of the harm it caused at school”. This harm apparently included bullying which specifically referred to his dad being a match-fixer. Mr Hayson stated “It’s the worst feeling in my life … the effect it had … .” The “it” being referred to in both quotes was, in context, a reference to only The Age article. Mr Hayson also alluded to his son’s mother not allowing his son to speak with him, suggesting that the estrangement was not just due to his son’s reaction to the match-fixing allegations.

124    Mr Hayson does not have to go so far as to prove that a causal relationship existed between the matter complained of and the decline in his social activities or personal relationships in order for this to be a basis for damages for hurt feelings, as “[t]he harm caused to applicants by defamatory material often lies more in their own feelings about what others are thinking of them than in any actual change manifest in the attitude of others towards them”: Hockey at [446(b)], citing Cassell & Company Ltd v Broome [1972] AC 1027 at 1125 per Lord Diplock. I must, however, be satisfied that his attribution was the product of a perception that he genuinely held – that it was his own feeling as to what had happened: see Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [72] and [115]-[116] (Tobias and McColl JJA), also citing Cassell). I am unable to do so. While I do not go so far as to find that Mr Hayson deliberately lied on oath, I do not find his evidence in this regard compelling or believable. As noted by the majority in Ali (at [115]), where there is something irrational about the holding of a belief about the consequences of a publication, this may be grounds for concluding that it was not actually held.

125    First, under cross-examination it became clear that there were other likely causes of Mr Hayson’s social downturn beyond The Age article, which were known to him and not revealed in his evidence-in-chief. In around 2014, Mr Hayson entered into a Pt X arrangement under the Bankruptcy Act 1966 (Cth), by way of a personal insolvency agreement. He admitted that he subsequently had much less money to spend generously on friends, including NRL friends who previously received free drinks at the Stiletto bar. Also, his role at Stiletto changed, such that he was no longer in the same position to dispense such favours, although he tried, unconvincingly, to maintain that he could still exert influence, without giving any evidence that this had actually happened. It was put to Mr Hayson that the gambling entities who had previously invited him to various sporting events did so in order to get his custom. Though Mr Hayson denied this, this too was unconvincing: it can be reasonably inferred that such entities would be much less inclined to invite Mr Hayson to these events when he was no longer able to make the substantial bets he once had. The oral evidence of Mr Hayson was not able to dispel this reasonable inference, due to the lack of specificity regarding when the change in circumstances occurred and due to the serious damage inflicted on his credit, detailed further below. The changes were simply phrased in his evidence in terms of being “prior to” or “after” the publication of The Age article, which avoided reference to his change of circumstances that were unrelated to match-fixing allegations in any article.

126    Secondly, Mr Hayson’s evidence failed to explain how or why he believed the article in The Age, a Melbourne-based paper, apparently impacted upon his predominantly Sydney-based life. The Age Company’s answers to interrogatories in evidence regarding circulation figures indicate that the publication of that newspaper in the whole of New South Wales is minor, being 682 copies on 3 June 2016, compared to 85,815 copies in Victoria. Those circulation figures conform with the well-known parochial nature of readers of both the Sydney Morning Herald and The Age, with residents of Sydney not generally reading The Age, and residents of Melbourne not generally reading the Sydney Morning Herald. This was not in doubt at the hearing.

127    Sydney has been Mr Hayson’s home city for some 30 years, and is where the large majority of his friends live. There was no suggestion in the evidence that his contact with Melbourne was other than transitory. The evidence did not disclose Mr Hayson knowing more than three people in Victoria. While Mr Hayson deposed to no longer being invited to sporting events in Melbourne, I have found that this was attributable to his changed financial circumstances, as discussed above at [125]. There was insufficient evidence to link his decision to no longer attend these Melbourne-based events on his own initiative to The Age article, as discussed above.

128    I accept that Mr Hayson’s social and personal lives were damaged by the publication of match-fixing allegations. However, there was no clear evidence, nor any reason to infer, that this harm was as a result of the match-fixing allegations contained specifically in The Age. In the absence of any sound evidentiary foundation, it is not possible to infer that it is likely that any of Mr Hayson’s Sydney-based NRL friends, nor members of the New South Wales Police who apparently targeted him, would read The Age, let alone an article that appeared only in print on a single date and on page 34. The same is true for Mr Hayson’s family and those known to them. The idea that The Age article was the source of the difficulties that his son experienced at school is not supported by the evidence. This conclusion is able to be reached without reference to cross-examination evidence, though it is supported by that evidence: Mr Hayson stated that he did not know exactly which articles his son and his son’s mother read regarding the match-fixing allegations. If The Age article had been the source, it would have been a very easy matter to call either of them to give that evidence. I do not draw any adverse inference from their absence from the witness box, but merely observe that there was no such evidence. Further, there was no basis for concluding that any of those engaged in adverse behaviour towards his son did so as a result of reading The Age article.

129    The overwhelmingly more likely source of match-fixing allegations that would impact upon Mr Hayson’s Sydney-based life was, to his almost certain knowledge, articles of a similar vein in Sydney-based media. It follows that the effect that an article in the Melbourne-based paper could have had on Mr Hayson’s predominantly Sydney-based social and family life, as well as the hurt attributed to The Age article for this downturn, were exaggerated to a high degree. This is not to attempt to mitigate damages by reference to other publications in violation of the principle in Dingle, but simply to isolate the effect of the sued upon article so that the respondents are only liable for the hurt that their libel caused. On the evidence, Mr Hayson had a very limited social life in Melbourne, and there is a correspondingly very small scope for that to have been damaged by The Age article.

130    It is reasonable to infer that the longer articles in the Sydney Morning Herald, both online and in print, and also the article in the Sydney Daily Telegraph, to Mr Hayson’s almost certain knowledge and genuine belief, caused all, or virtually all, of the hurt that he relies upon in relation to the downturn of his social life. Given the very different readership of the publication of The Age and the Sydney Morning Herald, and the former not being widely published where Mr Hayson’s life is predominantly based, there is clear divisibility in the damage caused by the articles. In these circumstances, Mr Hayson’s evidence did not adequately depose to a downturn in his personal life, and associated hurt, being attributable to The Age.

131    Although I accept that Mr Hayson’s emotions in the witness box were a genuine reflection of his feelings about his life as it is now compared to what it once was, his attribution of the source of this to The Age article cannot be accepted as genuine. I find that The Age article caused, at the most, a trivial amount of hurt, to the point of being de minimus. I would only award nominal damages for hurt feelings because there was an inadequate foundation for anything more. I therefore conclude that the totality of hurt feelings attributable to The Age article, by way of genuine direct hurt, and genuine perceived hurt by the reactions of others, to be nominal. It will be given limited weight in the final assessment.

Mr Hayson’s response to the alleged imputations

132    Mr Hayson asserted that The Age article statement that he collected $500,000 in cash to bet on the match was “a categoric lie”, that he bet “not one dollar” on the game between the Sea Eagles and the Souths, that it was “false” that he instructed a jockey, which he believed to be a reference to Danny Nikolic, to place money on the game, that he did not say any of the quotes attributed to him by an unnamed source, and that he did not pay six players $50,000 each. He stated that he was not behind Mr Foran’s gambling spree referred to in The Age article, nor did he meet Mr Foran at the Manly team hotel in Brisbane. Mr Hayson was then taken through each imputation as pleaded, and stated that each was false. I found no reason to doubt Mr Hayson’s evidence on this topic, especially as it was not challenged in cross-examination. Most importantly, it puts beyond doubt that imputations (a) and (b) were false. Doubtless that emphatic evidence, not disturbed in cross-examination, contributed to the respondents conceding imputations (a) and (b).

Hurt feelings regarding Ms McClymont

133    The applicant met with Ms McClymont on her request on 1 March 2016. Ms McClymont put the allegation that Mr Hayson had been kidnapped and put in the boot of a car, but declined to reveal the source of these allegations. Mr Hayson responded that it was a “complete and utter lie and has not happened”. Mr Hayson stated that Ms McClymont did not put to him any allegations regarding match-fixing. On Friday, 11 March 2016, Ms McClymont published an article headlined “The life and times of Eddie Hayson”. Mr Hayson said he had no contact with Ms McClymont between the 1 March 2016 meeting in relation to that article and the publication of the sued upon article in The Age on 3 June 2016. However, this was not completely accurate in that he also said that he received a voicemail from Ms McClymont on the morning of 2 June 2016 asking Mr Hayson to call her, but that this message gave him no warning of the match-fixing contents of the story. He did not return her call as requested, but neither did she follow up or persist.

134    Mr Hayson also stated that he later became aware of a tweet by Ms McClymont at 9.30 pm on 1 June 2016, which contained a link to the Sydney Morning Herald article titled “Eddie Hayson embroiled in NRL match-fixing investigation”. Mr Hayson said that this indicated Ms McClymont had no intention of hearing his side of the story, as she “had her mind made up”. He therefore chose not to say anything to Ms McClymont for a full day prior to the publication of The Age article. That is, the lack of contact, albeit in that narrow window, was not only due to a lack of any further activity by Ms McClymont, but also due to Mr Hayson’s decision not to respond.

135    Other aspects of Ms McClymont’s conduct were said by Mr Hayson to have aggravated his hurt. The allegations included in The Age article emanated from a Mr Con Ange, whom Mr Hayson described in highly pejorative terms, saying also that Ms McClymont’s reliance on Mr Ange, given this description of him, was “diabolical”. Ms McClymont’s notes show that she understood Mr Ange to hate the applicant. Mr Hayson also stated it was “complete[ly] mind boggling” that Ms McClymont did not attempt to contact Mr Nikolic regarding his alleged involvement in the match-fixing scheme. That was a valid point for him to take, addressed further below.

136    Mr Hayson stated that he only read “one minor article … one minor sentence” by Ms McClymont reporting that the police had dropped their investigation into the match-fixing allegations, and that he is still yet to receive an apology from her. It was put to Mr Hayson in cross-examination that an article published on the Sydney Morning Herald website on 3 June 2016, in which his side of the story and denials regarding the match-fixing allegations were quoted, would have reduced the hurt he felt regarding the article in The Age, to which he responded “[n]othing made me feel better”. I did not find this evidence convincing. It came across to me as contrived, rather than any genuine attribution of continued hurt to The Age article.

Aggravated damages

137    Mr Hayson alleges that the respondents’ conduct of the litigation has aggravated his hurt and distress. In re-examination, Mr Hayson stated that the suggestion by The Age Company’s counsel that he was dishonest about his reaction to The Age article was “upsetting”, and the suggestion that his evidence on hurt feelings was grossly exaggerated was “even more upsetting”. He was also asked more generally about how he felt about the matters put to him in cross-examination, to which he replied “I found them upsetting”.

138    Mr Hayson also alleges that he was hurt by the respondents’ service of eight outlines of evidence from persons said to be coming to the trial to give evidence of bad reputation, but who did not end up giving evidence. In particular, Mr Hayson was asked how he felt in relation to the outlines of evidence regarding Mr Tom Waterhouse and Ms Gai Waterhouse. For the period between these outlines being served and just prior to the trial, Mr Hayson was apparently under the misapprehension that they were going to say bad things about him. This was disappointing and upsetting to him, describing being on friendly terms with both. Mr Hayson was apparently told by Mr Waterhouse in the week prior to the trial that the potential witnesses were not actually aware of the proceedings, and did not intend to say anything negative about him.

The other witness for Mr Hayson – Mr Daniel Nikolic

139    Mr Daniel Nikolic, a resident of Melbourne and former jockey, was called to give evidence for Mr Hayson. During examination in chief, Mr Nikolic recalled The Age article as being about alleged match-fixing. When shown a copy of The Age article, he noted that he had received “a couple of texts and then a phone call” from friends, and subsequently purchased The Age published on 3 June 2016 and read the article. Mr Nikolic confirmed that he had not received any contact from Ms McClymont prior to publication. The respondents chose not to explain why this had not occurred.

140    Mr Nikolic denied putting any money on a game between South Sydney and Manly in 2015 or doing anything in relation to such a game on the instructions of Mr Hayson. Mr Nikolic also denied placing any money on the game referred to in The Age article. I infer that this evidence also contributed to the decision by the respondents to concede imputations (a) and (b).

141    Mr Nikolic recalled that he telephoned Mr Hayson “straight away that morning” after reading The Age article, which means that this took place after he had been contacted and told about the article, and had gone out and bought and read a copy of The Age. His evidence was that he said to Mr Hayson “You’re not going to be happy … I’ve just read an article in the paper … I’ve had a few mates ring me and text me”. Mr Nikolic also said that he “actually read the article out over the phone” to Mr Hayson, which was not referred to by Mr Hayson in his evidence. Upon reading the article aloud, Mr Nikolic noted that Mr Hayson said that he was “devastated” and “was just disgusted in the lies and what had been – and what I had just read out to him”. When asked whether he noticed anything about Mr Hayson’s emotions and how he sounded, Mr Nikolic noted that Mr Hayson “swore a bit, and he was pretty unsettled”. Thus, Mr Nikolic’s evidence went to the issue of the hurt to Mr Hayson’s feelings attributable to The Age article.

142    Mr Hayson’s senior counsel submits that Mr Nikolic was a very serious, calm and persuasive witness whose evidence should be accepted. He submits that the most compelling hurt to feelings evidence is the evidence of those who have observed the effect of the publication in question – here the effect of The Age article on Mr Hayson as witnessed over the telephone by Mr Nikolic.

143    With some hesitation, I accept Mr Nikolic’s evidence as to having read The Age out loud to Mr Hayson, despite Mr Hayson not giving evidence of that having occurred. In light of that finding, I also accept that Mr Nikolic’s evidence of Mr Hayson’s reaction can safely enough be attributed to finding out that his reputation had been attacked by The Age article. As such, it is not just corroborative evidence of the hurt that Mr Hayson deposed to, but also evidence that takes that evidence of hurt somewhat further. I find that Mr Hayson reacted with hurt, as well as a sense of outrage, upon discovering the further publications of the match-fixing allegations in The Age, and that Nikolic’s evidence supports this conclusion. However, it is of some moment that this expression of hurt and outrage must have been very transient for Mr Hayson to have apparently forgotten all about it, which is not surprising in light of his own evidence that what was published in The Age article was much as he expected it to be.

144    In cross-examination, Mr Nikolic affirmed that he had read the whole article to Mr Hayson. Mr Nikolic was asked about his periods of residence in Melbourne, and noted that he had lived in Sydney twice – once during the late 1990s and then again between approximately 2006 and 2009. It was not made clear whether his association with Mr Hayson came from his time in Sydney, but that seems far more likely than him being a Melbourne associate. Mr Nikolic agreed that while he was living in Sydney he was, in the words put by the respondents’ senior counsel, “frequenting a racing/jockey/gambling world”, which is reasonably necessarily associated with Mr Hayson’s reputation in the identified sector. Mr Nikolic was asked about his perception during that time of Mr Hayson’s reputation from being involved in the stewards’ inquiries led by Mr Ray Murrihy. Mr Nikolic noted that the only time he could recall Mr Hayson’s reputation being questioned was in relation to the More Joyous inquiry (in 2013), referred to in the summary of Mr Hayson’s evidence above. Mr Nikolic agreed that the More Joyous inquiry was, as put by the respondents’ senior counsel, “one example which led [to Mr Nikolic] perceiving [Mr Hayson’s] reputation, rightly or wrongly, justifiably or unjustifiably, taking a reasonably substantial hit by being dragged into those inquiries.” Mr Nikolic also agreed that he had perceived this hit to have, again in the words of the respondents’ senior counsel, “to some extent, filtered on and percolated on, fairly or unfairly, since then.” This was some evidence of a tarnished reputation in the sector.

145    Mr Hayson did not seek to re-examine Mr Nikolic.

146    Mr Nikolic did not give any evidence as to Mr Hayson’s good reputation. Accordingly there was no independent evidence of good reputation, but that is not required, even if it might help. I am not prepared to draw any useful inference, as urged by the respondents, that any evidence on this topic would not have assisted Mr Hayson.

Witnesses for the respondents

147    Ms McClymont was not called by the respondents. The three witnesses called by the respondents gave evidence which was supposedly directed, in a limited compass, to Mr Hayson’s reputation. The respondents effectively conceded in written closing submissions that this evidence was not of great moment. Its limited value lay in being read with the evidence in cross-examination of Mr Hayson and Mr Nikolic on this topic.

Mr Mark Jenkins

148    The respondents’ first witness, Mr Mark Jenkins, was, until his retirement in August 2019, Assistant Commissioner and Commander of the State Intelligence Command of the New South Wales Police Force. From mid-2013 to early June 2016, Mr Jenkins had been Commander of the State Crime Command. Mr Jenkins described the State Crime Command as the division of the NSW Police force that investigates all serious and organised crime. One of the units of the State Crime Command was described by Mr Jenkins as the “casino and racing investigations unit”, forming part of the Organised Crime Squad, which he had overall supervision of as Commander of the division.

149    Mr Jenkins was asked whether he was aware of the reputation of Mr Hayson during his role between mid-2013 and mid-2016. Mr Jenkins said that he was generally aware of Mr Hayson’s reputation within the casino and racing investigations unit, but his answer is not relevant to imputations (a) and (b) and therefore does not warrant reproduction.

150    In cross-examination, as relevant to Mr Hayson’s case for aggravated damages, Mr Jenkins was asked whether he was aware that an outline of evidence had been served in the matter for the evidence he was expected to give, which he was not, only becoming aware of the proceedings on the first day of the trial. Mr Jenkins was also asked whether he had spoken to the lawyers for the respondents prior to giving evidence, to which he responded that he had a discussion the night prior on the telephone. Mr Jenkins was finally asked whether he knew the second respondent, Ms McClymont, to which he noted that he “may have met her once”.

151    The respondents did not seek to re-examine Mr Jenkins.

Mr Nicholas Weeks

152    The respondents’ second witness, Mr Nicholas Weeks, is the Chief Operating Officer of the NRL. From July 2013, Mr Weeks was General Counsel of the NRL, and then his role changed to General Manager of Integrity from 2014. Mr Weeks was asked what areas are covered in the role of General Manager of Integrity. He noted that it was “really anything that can potentially affect the reputation and public confidence in a sport.” The areas that were commonly dealt with, he continued, included “player behaviour off the field; the conduct of our club officials, so coaches and other people that work at clubs; the risk associated with … performance-enhancing and illicit drugs; and the risks posed by, you know, wagering and betting-related corruption, which is a significant risk for our sport and all sports.”

153    Mr Weeks was aware of Mr Hayson as at June 2016. His perception of Mr Hayson’s reputation was as follows:

… he was a very significant gambler on rugby league and, I believe, racing; that he had a range of associations in his life that I would read about in the press through his ownership interest in the brothel in Camperdown and reports about purported associations with gambling-related issues in rugby league and elsewhere.

154    Mr Weeks was further asked about his perception of the general reputation of Mr Hayson in relation to his associations. He stated:

… we were aware of his ownership interest in the brothel at Camperdown, and that’s something that we would regard as someone involved in Rugby League as being … adverse to have. We were involved during 2016 in Mr Hayson’s association with at least one club official in Rugby League, which we looked into …”

155    Mr Weeks was also aware of Mr Hayson’s various prohibitions from gambling:

… we were aware of the exclusion order that had been issued by, I think, the Commissioner of Police in relation to Star Casino, and we were aware during 2016 of the fact that TAB had prohibited him from gambling with [them]. So we were certainly aware of those two aspects that we felt or would have felt at the time would have been relevant to his reputation.

156    Finally, Mr Weeks was aware of inquiries into Mr Hayson in relation to horse racing.

157    In cross-examination, Mr Weeks was asked whether he had become aware of match-fixing allegations against Mr Hayson in connection with the NRL from newspaper articles, to which he agreed. I am of the view that it is most unlikely that this awareness had anything to do with The Age article. Mr Weeks also noted that “[w]e took steps to limit the association between Mr Hayson and one NRL player”, being Mr Foran.

158    The respondents noted in submissions that Mr Weeks was not asked what the motivating factor was in relation to excluding contact between the applicant and Mr Foran – that it was after, but not necessarily because of, those allegations. The respondents submit that if it were the latter, it would have been traceable to the Sydney Morning Herald articles, not to The Age article. The question leading to the evidence of the decision to limit the association between Mr Hayson and Mr Foran did not contain any direct reference to The Age article, I infer anticipating that the evidence in response would not be helpful. However, the only obvious source of that awareness is the Sydney Morning Herald articles, putting aside the similar publication in the proceeding brought by Mr Hayson against Nationwide News Pty Ltd, of which there was no evidence beyond settlement documents, and which was not raised with any witness. I do not accept that this was shown to have been due to The Age article.

159    Mr Weeks was also asked whether he was aware of an outline of evidence that had been served in the matter and when he became aware of the proceedings. Mr Weeks noted that he received a subpoena to produce documents earlier this year, and then a further subpoena to appear to give evidence “some months ago”, that he had met with senior counsel for the respondents “a week or two ago” in chambers, and received a document the night prior to giving evidence that was a page and a half of “the type of things that they were likely to ask me.”

Mr Raymond Murrihy

160    The respondents’ third witness, Mr Raymond Murrihy, is a consultant on integrity matters for bodies in New South Wales, Tasmania and Queensland involved in the racing industry. From 1995 to August 2016, Mr Murrihy was Chairman of Stewards and Manager of Integrity for Racing NSW. Mr Murrihy noted in examination that he was aware of Mr Hayson as a part-owner of a number of horses and also a “very big punter”, betting “hundreds of thousands of dollars on occasions.” Mr Murrihy was also aware that Mr Hayson had been called by Racing NSW Stewards with respect to inquiries. Given his position, he must have been aware of what those inquiries involved. Mr Murrihy was asked of his perception of the reputation of Mr Hayson in June 2016. Mr Murrihy noted that he was “not sure how [h]e would answer that … I’m not trying to be evasive”, further noting:

I controlled [the stewards] whose duty it was to ensure the integrity of the industry, and that sharpened our focus in respect to people who won, bet large sums of money on racing. If there was to be breaches of integrity one would expect that it would be accompanied by some financial outcome for the people who perpetrated it, and, secondly, I knew Mr Hayson to be a person who had communications with licensed people. I don’t go out and ask owners or trainers or committee men what they think of Mr Hayson. You know, that’s not part of my role.

161    On clarification that he was being asked of his personal perception of Mr Hayson, Mr Murrihy noted that, “[m]y perception of his reputation was a person that I viewed his activities with some caution because of the two factors I mentioned there”. Mr Murrihy clarified that communication with “licensed people” referred to “[j]ockeys, trainers, stable employees”, which came to light in respect of inquiries the stewards were conducting into possible breaches of Racing NSW’s rules. Mr Murrihy also clarified that when he noted that he viewed Mr Hayson’s activities “with some caution”, he was referring to “the level of scrutiny you might apply to a person who was communicating with license[d] people, who was betting in pretty extraordinary sums, as opposed to someone who might be having 50 cents on a double or trifecta at the TAB and who didn’t know a license[d] person. So, obviously, our – our focus would be on that type of person”. I took this to be an oblique reference to concerns about insider trading. In the end, Mr Murrihy’s evidence was of limited assistance to the respondents, but read in a sensible way it does amount to some evidence of a tarnished reputation when it comes to sports-related gambling.

162    Mr Hayson did not seek to cross-examine Mr Murrihy.

Damages evaluation

Reputation – Reparation

163    The presumption of damage to reputation can only go a limited way in this case. First, The Age article was only marginally sensational, and was not prominent, being published only on a single day, without an accompanying photo, not online, and at page 34 (albeit in the sports section). Secondly, The Age in print is a trivial publication in Sydney, where Mr Hayson has lived and worked for 30 years, where he is somewhat generally known and where he has the great majority of his personal associations. It has not been shown, nor can it be presumed, that Mr Hayson had much of a reputation to be damaged in Victoria, where The Age is a major publication. The evidence only disclosed Mr Hayson knowing three people in that State and attending Melbourne for the occasional sporting event. These circumstances permit a substantial degree of isolation of the Melbourne article from the Sydney publications.

164    In relation to The Age article, Mr Hayson is in a broadly similar position to that in Oliver v Nine Network Australia Pty Ltd [2019] FCA 583. Mr Oliver lived overseas and damage to his reputation in Australia could only be viewed as quite limited. Reparation is not a significant feature for damages in this case, and goes no further than the barest application of the presumption that a defamatory publication will cause damage to reputation.

165    As part of his case on damages for reparation to reputation, Mr Hayson contends that he was entitled to rely upon a series of adverse events and consequences that, on his evidence, occurred after the publication of both The Age article and the Sydney Morning Herald articles, to the effect that he had in fact been shunned due to the publication of The Age article. He effectively contended that all he had to do was place those events after the publication of The Age article in order to make good a causal connection between that publication and what later happened (or did not happen) to him. As a matter of first principles in causation, that is a startling proposition, but defamation is a highly specialised tort, and it is necessary to proceed carefully.

166    The respondents do not rely upon the content of the Sydney Morning Herald articles to mitigate the damage caused to Mr Hayson’s reputation by the publication of The Age article, but rather dispute that he has successfully made any causal connection, in reality or in his reasonable perception, between the impugned publication and damage to reputation taking place. This approach does not infringe the principle in Dingle. In my view, Mr Hayson takes the principle in Dingle too far in seeking to use it to erect a shield around the evidence he relies upon to immunise it from challenges to causation. As Brennan J pointed out in Carson, after quoting from McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 at 107, emphasising the word “consequences” and thus causation (at 71, omitting footnotes; emphasis in original):

The consequences of publication include not only the insult publicly inflicted on the plaintiff but also the effect of the defamation on those to whom it is published, any diminution in the regard in which the plaintiff is held by others, any isolation produced (causing the plaintiff to be “shunned or avoided” is the traditional formula) and any conduct adverse to the plaintiff engaged in by others because of the publication of the defamatory matter. Damages are awarded also for the plaintiff's injured feelings, including the hurt, anxiety, loss of self-esteem, the sense of indignity and the sense of outrage felt by the plaintiff. Indeed, all those objective consequences and those subjective reactions which flow naturally from the publication of the defamatory matter are relevant factors. Of course, the subjective reactions are often produced by the objective consequences of the publication. The two categories are not cumulative heads of damage but descriptions of kinds of intangible factors which must be taken into account in assessing damages.

167    As discussed at [124], a defamed person need only show that they genuinely perceived they were shunned due to the matter complained of in order to obtain damages for hurt on this basis. However, the situation is different in terms of being entitled to be recompensed for a damaged reputation, albeit that the two are cumulative. There is nothing in the above passage reproduced from Carson to suggest that alleged collateral consequences of shunning or avoidance do not have to be proved as a matter of causation, including reasonably perceived causation, so as to go beyond the presumed damage to reputation and thereby the need for reparation and vindication.

168    The conclusion I have reached is that Mr Hayson has only established a weak case for reparation of damage to reputation actually, or reasonably perceived to have been, caused by the publication of The Age article.

Reputation – Vindication

169    Imputations (a) and (b) were, on any reasonable view, serious. In my view, vindication was the dominant consideration in this case. Enough has to be awarded to nail the lies at the heart of those imputations, but the damages must remain proportionate.

Hurt feelings

170    It was not in doubt that Mr Hayson was only entitled to recover damages for hurt that he genuinely believed was occasioned by The Age article, although he contends that his hurt from that article could not be meaningfully affected by the hurt he suffered from first reading the more extensive Sydney Morning Herald articles, both online the previous day, and in printed form earlier the same day. A live question in that regard was whether his attribution of The Age article as being a substantial source of the hurt he deposed to was truthful, reliable and not exaggerated to the point of not being able to be accepted. I have found against him in those respects. That said, I accept that Mr Hayson felt a measure of indignation and anger at the further publication of the false allegations in The Age, but do not accept that The Age article caused any feeling of being “shocked” or “sick”, or any genuine belief that this was the cause of the downturn of his social and personal life, including by being shunned.

171    As discussed above at [130], Mr Hayson has failed to convince me that he was genuine in attributing the hurt feelings in relation to the downturn of his social life to The Age article, and therefore cannot obtain any damages on this basis. Mr Nikolic’s evidence improved the situation somewhat, but not so much as to elevate the award of damages on this account much beyond a nominal amount.

Mitigation of damages

172    The respondents rely on a range of facts and matters in mitigation of any damages that I may find Mr Hayson entitled to. Mr Hayson submits that most of the pleaded matters in mitigation are not legitimate.

173    First, the respondents suggest that some of Mr Hayson’s hurt feelings would be soothed by the publication of his side of the story, in strong terms, in a Sydney Morning Herald online article on 3 June 2016. They submit that Mr Hayson’s rejection of this cannot be accepted given he was not a credible witness. Mr Hayson submits that the publication of his denials should not have any mitigatory effect, particularly given that there was little to no overlap in audience with The Age article. I accept Mr Hayson’s argument on this point and do not accept that the immediately subsequent Sydney Morning Herald online article had any measurable impact in mitigation of the publication of The Age article. This conclusion serves to reinforce the quite separate effects on Mr Hayson of the Sydney Morning Herald articles and The Age article.

174    The respondents’ main basis for mitigation of damages was that Mr Hayson had, at the time of the publication of The Age article, a reputation in sporting and gaming circles as a person who engaged in suspicious betting activities and had attempted to use inside information. The particulars relied upon were that he had a reputation as a person who had engaged in suspicious betting activities, had cultivated relationships with jockeys and NRL players for the purpose of obtaining (inside) information by offering them services at a brothel he owned, had attempted to obtain and use inside information when betting on horse racing and NRL matches and had engaged in conduct that had caused him to be warned off race tracks for six months by Racing NSW (being revealed in the evidence as being in the circumstance of him refusing to reveal a source of inside information obtained from a horse racing stable).

175    Mr Hayson submits that the pleaded particulars do not fall within the sector pleaded of “reputation as to his conduct in Australian sporting and gaming communities”. Mr Hayson characterises The Age article as accusing him of criminal conduct, grievous treachery and cheating on sporting matches, causing rugby league players to cheat in exchange for large sums of money. The particulars of bad reputation, he says, merely relate to his betting practices. I do not consider that this is a fair or accurate way to characterise the particulars that were pressed by the respondents, all of which sufficiently fall within the sector pleaded.

176    I consider that each of those aspects of bad reputation are made out. But as will be seen, this does not take the respondents very far. To be fair, the respondents did not contend that this would have any significant effect on the award of damages, but said it should produce some discount. That submission effectively acknowledges the force of Mr Hayson’s alternative submission next considered.

177    In the alternative, Mr Hayson submits that even if some element of bad reputation is proved within the relevant sector:

(1)    it cannot have any impact on hurt feelings or on aggravated damages, submitting that he did not accept (I take this to be in evidence) that he had any prior bad reputation, but rather had in the past been invited to many sporting and racing events, which dried up after the publication of The Age article, and NRL players were warned not to associate with him;

(2)    it cannot affect damages for vindication (being the area upon which he places greatest weight in its impact on quantum), because that is intended to “nail the lie” and to be an indication by the Court of the baselessness of the imputation, for which prior reputation is irrelevant. The applicants cite Chau at [87] in which the Full Court stated, adapting the passage in the speech of Lord Radcliffe in Dingle at 396 (reproduced above at [79]), “a defamation action is fundamentally an action to vindicate a person’s reputation on some point as to which the person has been falsely defamed, and the damages awarded are regarded as the demonstrative mark of that vindication” (emphasis in original);

(3)    thus, he correctly submits, any bad reputation that is established is confined to only a limited reduction of the damages that would have been awarded to compensate for damage to reputation, for the reason that he did not have a prior untarnished reputation, and should not be compensated for a reputation that he did not previously hold; and

(4)    the impact on damages should be nominal.

178    Mr Hayson drew a distinction between the insider trading that he had been involved in at least instigating in the past, which he regarded as being of absolutely no moment, and the false allegation of match-fixing made again him, which he regarded as conduct being carried out by “the lowest form of life to ever exist”. His stance has the obvious dual benefits of heightening the damage to his reputation occasioned by the admitted imputations in The Age article, while diminishing the impact on his reputation at the time of the publication. The distinction Mr Hayson draws is legitimate, but cannot be taken too far. I do not accept that his extant reputation for engaging in conduct by which he sought to obtain inside information is of no moment, or irrelevant, but nor do I regard it as being anything like as serious as the imputations now admitted as to match-fixing. Both are forms of cheating, and should travel together. The reputation for insider trading serves to diminish his reputation in the sector, and thereby reduce, the damaging effect of The Age article because of his already tarnished reputation. It affects only the award of damages insofar as it reflects reparation, but not to any great degree.

Aggravated damages

179    Mr Hayson relies upon four main factors in support of his claim for aggravated damages, which the respondents characterise as greatly exaggerated. Each of those factors, and the response, are as follows.

(1)    The conduct of Ms McClymont

180    Mr Hayson relies upon Ms McClymont’s dependence on Mr Ange as a source, whom she knew hated the applicant, read in the context of that source’s wild allegations made about many other people, the length of time that she had the allegations prior to publication, the fact that when Mr Hayson was contacted about other allegations he refuted them, the fact that he was contacted only a day before publication of The Age article, only after the publication of the same allegations in the Sydney Morning Herald article online, and in a perfunctory way, her failure to check the allegations with the other persons named (relevantly Mr Nikolic), and spruiking the story by giving media interviews said to be against Mr Hayson that were baseless and false.

181    The respondents contend that there is no evidence of the extent of the investigation of the accuracy of the story apart from Ms McClymont not having rung Mr Nikolic, noting that she did in fact ring the applicant a full day before publication. They submit that there was no reason why she should have phoned Mr Nikolic, given that she had set in train a conversation with Mr Hayson by leaving a message for him, and that the tweet she posted was in relation to the Sydney Morning Herald article online, not The Age article. They submit that the principles applicable to aggravated damages must accommodate the pressures of writing and re-writing a piece of investigative journalism, taking shape over time, such that requiring an earlier call was unrealistic.

182    I prefer Mr Hayson’s submissions on this issue. I readily infer that no real attempt was made by Ms McClymont to check or verify the story that was published, or to give Mr Hayson any real opportunity to comment, when it relied upon a person with a known personal animus towards him. While I am not prepared to infer that Ms McClymont feared the truth, and am concerned that the defamatory publication appears to be the product of an editorial decision to publish the bane without sufficient context to act as an antidote (apparently available given the more widely sourced story published in the Sydney Morning Herald articles is not sued upon), more was properly required to be done before The Age article was published. That is especially so when it was known that Mr Hayson would not be shy in denying an allegation that was incorrect, as he did with the kidnapping allegation. This is therefore a basis for some measure of aggravation of the damages to be awarded.

(2)    Sensational publication

183    Mr Hayson points to what he characterised as the inappropriately sensational nature of The Age article, placing particular reliance on references to the Organised Crime Squad, the quotes from Todd Greenberg, and the headline identifying him (not naming him as he incorrectly submits), when in fact Ms McClymont had nothing much more than the say so of Mr Ange to rely upon.

184    The respondents submit that each of these points should be given no weight. They contend that not naming the police squad involved would have constituted an extraordinary omission, and note that the article specifically stated that the investigation was at an early stage. In a similar vein, the respondents contend that there was nothing wrong with the quotes in The Age article from Mr Greenberg as the head of the NRL, part of which was objectively correct as to the seriousness of match-fixing, and part of which, they contend, had the effect of watering down what was said.

185    On this aspect, I am unwilling to find that the features identified by Mr Hayson give rise to a proper basis for aggravated damages in this case. As already observed in relation to imputation (d), there was nothing wrong with using the name of the Organised Crime Squad, especially where there was a statement attributed to the NSW Police Force that the squad was “in the early stages of examining information”, and the article (via Mr Greenberg’s quote) had warned against jumping to conclusions. The defamatory sting of The Age article comes from the specific falsity of imputations (a) and (b), cast in terms that unavoidably conveyed that Mr Hayson had match-fixed the South Sydney versus Manly game by paying six players $50,000 each and had caused a bet to be placed in that context. It is not an otherwise especially prominent or sensational article. It was on page 34, it was not accompanied by any photographs and it was otherwise quite matter-of-fact. The respondents submit that the quotes from Mr Greenberg in fact watered down the article rather than sensationalised it. I would not go that far, given the tenor of the article was that the respondents had stolen a march on the police in reaching a conclusion as to what had taken place, but nor do I accept that they were aggravating.

(3)    Failure to retract or apologise

186    Mr Hayson relies upon the failure of the respondents to retract or apologise, in circumstances in which the interrogatories admit that the respondents did not believe the truth of the imputations. He added in oral submissions by his senior counsel the fact that the Sydney Morning Herald online article has not been taken down (despite a different legal entity being the publisher). The respondents agree that this had not taken place, but submit that Mr Hayson gave no evidence that it had any impact on his feelings. That is, the indispensable nexus to hurt is absent. To that submission may be added the observation that it is difficult to see how such an apology or retraction would have been capable of being any balm to his hurt feelings in circumstances in which the same allegations authored by Ms McClymont, but published by a different legal entity, would not be affected and, as found elsewhere in these reasons, have been found to be the real source of the hurt he deposed to. No proper case has been made for aggravated damages upon this basis in the circumstances of this case.

(4)    Conduct of the litigation

187    Mr Hayson relies upon the conduct of the litigation as a substantial basis for aggravated damages. I record the particular features he identifies, and the conclusion I have reached in relation to each, in part relying upon the respondents’ counter arguments without reproducing them.

188    Mr Hayson relies upon the service of eight outlines of evidence as to bad reputation from persons who were not called and had not been spoken to. He gave evidence of distress at the prospect of such evidence being given, and the failure of the respondents to advise that they would not be called.

189    The central problem with this aspect of the claim for aggravated damages is that it suggests that the service of an outline of evidence is capable of constituting a fixed commitment to call a witness, when it plainly does not. The decision about whether or not to call a witness is a forensic choice. In the case of a respondent in particular, this decision will often be made by reference to the evidence ultimately adduced by the moving party, and what emerges in cross-examination. In any event, there was nothing stopping contact being made by or on behalf of Mr Hayson with such witnesses prior to the trial, within proper bounds. I am unable to accept that Mr Hayson’s misunderstanding in this regard is a proper basis for the award of aggravated damages.

190    Mr Hayson further relies upon the late and unexplained abandonment of the defence of qualified privilege, including his upset at being deprived of the opportunity to see Ms McClymont being cross-examined. There are two problems with this argument. First and most fundamentally, he did not give any evidence of being hurt or distressed at this defence not being pursued. Secondly, even if there had been such evidence, or this might somehow be inferred, the abandonment of a defence is a very fragile basis for obtaining aggravated damages, even if it takes place late in the piece or was misconceived in the first place. Not least, awarding aggravated damages on this basis provides a perverse incentive to maintain a defence despite anticipating it will not be successful. I am not prepared to countenance aggravated damages upon this basis in this case. I also add that being deprived of an opportunity to see someone suffer by being cross-examined was a most unworthy, if not malicious or otherwise improper, basis for seeking aggravated damages. It is not to Mr Hayson’s credit.

191    Mr Hayson also contends that the accusations in cross-examination of dishonesty in his evidence as to hurt feelings caused offence and thereby aggravated that hurt, citing Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674; 234 ALR 166 at [154]-[155], upheld in Fairfax Media Publications Pty Ltd v Pedavoli [2015] NSWCA 237; 91 NSWLR 485 at [36] and [83]. In that case, the improper suggestion put in cross-examination was that the plaintiff was not really in fear of her employment as a teacher being adversely affected by a lurking baseless accusation that she was a paedophile, in circumstances where she had been misidentified in the publication sued upon. An imputation that she was a sexual predator was made out, whereas an imputation that she was a paedophile was not. However in this case, the cross-examination on this topic was not only entirely proper, but most revealing. I have found that Mr Hayson at least exaggerated the hurt he claimed to emanate from the publication of The Age article.

192    Mr Hayson also relies upon the content of other aspects of his cross-examination, which he characterises variously as including improper questions, as not having any impact on his credit or on his evidence of the harm he deposed to, and as being designed only to “throw mud” on him and “humiliate and hurt him further”. I reject that criticism of the cross-examination of Mr Hayson as well. That cross-examination was nothing like that of Ms Pedavoli, reproduced in the trial judgment. I carefully observed Mr Hayson’s demeanour during cross-examination and noted evanescent features of the way in which he gave evidence, which are incapable of being fully reflected in the transcript. That included what I perceived to be elements of confected outrage or indignation, evidently intended to elevate his assertions of hurt arising from The Age article or offence at the questions that were put to him. The cross-examination performed its proper function, casting serious doubt upon aspects of Mr Hayson’s evidence-in-chief, and revealing him to be an unimpressive, misleading and unreliable witness, as well as being evasive at key points. The concessions he made were important, but they did not make up for the measurable damage done to his credit.

193    While I decline to go so far as to find that Mr Hayson’s evidence was itself dishonest as suggested to him in cross-examination, I saw nothing wrong with that being put to him. Doing so gave him a fair chance to respond. Mr Hayson’s exaggeration of his hurt in relation to The Age article to further his case for damages was reasonably manifest to me. The cross-examination legitimately revealed Mr Hayson to be a man who had in the past behaved dishonestly, on at least one occasion in the context of, and in aid of, committing summary criminal offences related to prudential gaming regulation. His credit was substantially damaged by cross-examination. There was no “lack of bone fides” in the respondents’ conduct, nor was it improper or unjustifiable: see Triggell v Pheeney (1951) 82 CLR 497 at 514. It affords no proper basis for criticism, and necessarily no proper foundation for aggravated damages.

Conclusion on aggravated damages

194    It follows from the above that a limited basis for aggravated damages has been established, confined to aspects of the conduct of Ms McClymont in preparing The Age article as being unjustifiable. The conclusion I reach is that the modest aggravation of damages exceeds, but only by a small measure, the limited mitigation of damages. The damages to be assessed therefore largely turns on the content of The Age article.

The quantum of damages

195    The final assessment of damages requires a synthesis of the entire evaluative process so that the competing considerations are able to be weighed and balanced to arrive at the final numerical result. The obligation imposed by s 34 of the Defamation Act to ensure that the amount of damages bears an appropriate and rational relationship between the harm sustained by Mr Hayson is a central consideration. The final step of arriving at a dollar amount therefore has an inevitably instinctive quality in weighing up the competing considerations. This does not readily lend itself to a simple process of addition and subtraction. Weighing up all the conclusions I have reached, I have concluded that an appropriate award of damages in all the circumstances is $50,000. This sum is arrived at after deducting $10,000 for the settlement achieved in the proceedings brought against Nationwide News Pty Ltd, in accordance with s 38(c) of the Defamation Act.

Conclusion

196    The respondents must pay Mr Hayson $50,000 in damages. I will hear the parties on costs.

Associate:

Dated:    19 March 2020