# Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) (2023, FCA)/Part 5

​PART 5 — CONCLUSION WITH RESPECT TO THE PROCEEDINGS
2613 Each proceeding should be dismissed. In the ordinary case, costs would follow the event.
2614 As the defences have been successful, the question of damages does not arise.
​2615 The issues attending damages were reasonably complex and included the following issues:
    (1) the proper construction of s 35(2) of the Defamation Act and whether the words, "the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages" limit the relevant circumstances to a subset of the circumstances which might otherwise justify an award of aggravated damages at common law;
    (2) whether the six matters identified by the applicant, or any of them, (and which) justify an award of aggravated damages;
    (3) factual issues relating to the applicant's reputation prior to the publication of the matters complained of and the hurt to his feelings as a result of the publication of the matters complained of; and
    (4) the effect on the applicant's earning capacity of the publication of the matters complained of and, in particular, on his public speaking business and his potential position as a partner of Price Waterhouse Coopers (PwC).
2616 As to the last matter, accountants were engaged by each side and those accountants prepared individual reports and a joint experts report. The effect of the global COVID-19 pandemic and the effect of the Federal Government's establishment on 7 November 2020 of the Office of the Special Investigator (and an investigation by the AFP) are relevant to both past loss of earning capacity and future loss of earning capacity. The experts identified a number of "Decisions" which needed to be made and provided options as to those decisions, before final calculations in terms of monetary loss could be performed. The point of mentioning these particular matters is as follows. Even if I considered that it was appropriate for me to assess damages on the hypothetical basis that I am wrong, I would not be able to indicate a figure in these reasons because I would have to make the various "Decisions" (e.g., an allowance in percentage terms for the COVID-19 pandemic) and the matter would be referred back to the experts for the final calculations to be performed.
2617 A more important point in terms of whether I assess damages on the hypothetical basis that I am wrong is the following.
2618 I had assumed for a time in preparing these reasons that I would assess damages on the hypothetical basis that I was wrong and I had considered a number of matters associated with damages. I had proceeded on that assumption because it is generally desirable for the Court ​hearing the proceedings to resolve as many issues as is possible. However, on working through the issues, it has become apparent to me that largely because of the significant number of possible alternative outcomes if I am wrong and to a much lesser extent (but relevant nevertheless) the extreme difference between the decision I have reached and the assumptions I would need to make, that that would not be an appropriate or useful exercise. Neither of these matters are decisive in themselves as judges not infrequently consider matters on alternative bases, including that they might be wrong. However, the force of the matters together in this case has led me to conclude that I will not embark on an assessment of damages on a hypothetical basis.
I certify that the preceding two thousand six hundred and eighteen (2618) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Besanko.
Associate:
Dated: 1 June 2023