267 Section 36 of the Act is headed "State of mind of defendant generally not relevant to awarding damages" and provides:
In awarding damages for defamation, the court is to disregard the malice or other state of mind of the defendant at the time of the publication of the defamatory matter to which the proceedings relate or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff.
Submissions
268 In his closing address, Mr Smark accepted that "much of the evidence of hurt to feelings is entirely unchallenged, and it is completely apparent that Mr Greenwich was hurt in a significant way by the primary tweet in particular, but also, one assumes and the evidence is … by The Daily Telegraph article carrying the quotes". Mr Smark continued in relation to the hurt to feelings component of general damages as follows:
The extent of assessment of that evidence – this is the hurt to feelings component – is really in quite a limited compass, and it really is the extent to which as time moved on, the continuing impact of the publications was disabling of, or continuingly really significantly impacting on Mr Greenwich, and your Honour has read what he has to say about that. We would say that it's an overall assessment, and your Honour would have regard to Mr Greenwich's evidence in the witness box, but your Honour would approach with caution his evidence that he was still, in effect, really weighing up whether he can go on being a politician; that was the substance of his affidavit evidence in paragraph 155, I think.
Your Honour may recall yesterday I put the question to him a few times, and in respect of that part of his evidence, he came across as something of an advocate. That doesn't mean that he was being dishonest. He was being asked something that's inherently sort of evaluative, it's not a question of fact, so I'm not inviting your Honour to find that he was a dishonest witness. But I am inviting your Honour to approach his evidence of the extent of the disablement he experienced, particularly as time moved on from July last year onwards, with caution.
And we would suggest that when one has a look at the evidence as to him continuing to be able to meet his responsibilities in a general sense, as both a parliamentarian and as an advocate, and the fact that he was apparently – and he accepted this – able to go out with his husband or with friends, and really the limited nature of evidence of how his life was before and there being a change, because that's what one's looking for, if he doesn't go out to lots of functions now, there's no evidence really that he used to go out to lots. He doesn't – I don't say this critically in any way, his evidence wasn't he was an extrovert party-loving person before this and now he's a recluse. That's not the tenor of his evidence at all. His evidence is that he has said no to some engagements, and he still or has felt uneasy going out to large gatherings. That's evidence of hurt to feelings – an impact – but we would say that it's something that has been not transitory, but recovering in the way that defamation plaintiffs often do – not always, but often do, and we would invite your Honour to approach hurt to feelings on that basis.
269 Mr Greenwich was cross-examined about the evidence he gave in his affidavit concerning his political future. The high point of it was that his evidence that he "[has] to now consider
