McMahon v Markwell
[1997] QDC 280
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- McMahon v Markwell[1997] QDC 280
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McMahon v Markwell[1997] QDC 280
McMahon v Markwell[1997] QDC 280
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Plaint No. 2440 of 1995 |
[Before McMurdo DCJ]
[EW McMahon & Hawkley P/L v. AI Markwell]
BETWEEN:
EDWARD WARREN McMAHON | First Plaintiff |
AND:
HAWKLEY PTY. LTD. (ACN 010609542) | Second Plaintiff |
AND:
ANTHONY IRVINE MARKWELL | Defendant |
JUDGMENT
Judgment delivered: 7 November 1997
Catchwords:
Defamation - s. 367 Code (truth) s. 377 Code (excuse absence of good faith) Sinclair v. Bjelke-Petersen (1984) 1 Qd.R. 484 - Damages - Clift v. Timms, unreported 1995/1996 Court of Appeal Queensland delivered 25 March 1997 followed - company may be defamed - South Hutton Coal Co Ltd. v. North - Eastern News Association Ltd [1894] 1 Q.B. 133 and Bognor Regis UDC v. Campion [1972] 2 QB 169 followed - exemplary damages - Uren v. Fairfax (1967-1968) 117 C.L.R. 118 Lamb v. Cotogno (1987) 164 C.L.R. 1 followed
Advocates: | Mr Perry for the plaintiffs |
| Mr R Keller, solicitor advocate for the defendant |
Solicitors: | Lees Marshall Warnick for the plaintiff |
| Mr Richard Keller for the defendant |
Hearing Date(s): | 13, 14, 15 October 1997 |
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Plaint No. 2440 of 1995 |
BETWEEN:
EDWARD WARREN McMAHON | First Plaintiff |
AND:
HAWKLEY PTY. LTD. (ACN 010609542) | Second Plaintiff |
AND:
ANTHONY IRVINE MARKWELL | Defendant |
REASONS FOR JUDGMENT - McMURDO D.C.J.
Delivered the 7th day of November, 1997
The first plaintiff is an architect and was, at the relevant times, licensee of the Lighthouse Restaurant, North Cleveland. The second plaintiff was, at the relevant times, the owner and operator of the Lighthouse Restaurant. The first plaintiff was a major shareholder and director of the second plaintiff. The restaurant was purchased as “Markwell's Fisherman's Wharf Restaurant” in about February 1986. At the relevant times, the defendant lived next to the restaurant. The parties' local authority was the Redland Shire Council. The plaintiff claims he was defamed in seven letters, the publication of which is admitted by the defendant, as is the distribution to households of the first six letters. The tendered interrogatories establish that the matters published in those letters were published about the first and second plaintiffs.
Answer to Interrogatory 1(b) establishes the publication of the first six letters was initially to the persons to whom they were addressed and then to the general public once the defendant believed the public officials to whom the letter were addressed had failed or refused to investigate the matters properly. The answer to that interrogatory is the only evidence in the case that the defendant believed the public had a right to be informed of the failure of those public officials to discharge their duty when he distributed the pamphlets and the letters. The defendant did not give or call evidence, although some exhibits were tendered.
Mr. Keller, the solicitor acting for the defendant, conceded for the first time in his address that the letters were defamatory, that feet being denied in the pleadings and remaining an issue at trial until addresses.
LIABILITY
The Facts
The first letter in which admitted defamatory statements were made was dated March 8, 1991 and sent by the defendant to the Shire Clerk, Redland Shire Council. The defamatory words are:
“I wish to lodge a private complaint and enquiry of why the Lighthouse Restaurant Proprietor - a Mr. McMahon...a qualified architect, can build extensions and additions as he pleases without requirements to Council By-Laws.
If the Council has no knowledge of these extensions and infringements and undertakes in writing the removal of such building and extentions (sic), the matter will be overlooked and will go no further and will be clearly seen that Mr. McMahon has carried out such work at his own discretion with no regard to the By-Laws of his neighbours”.
The evidence both from the first plaintiff and from the now Mayor of the Redland Shire Council, Edward Santagiuliana, who has been a councillor since March 1982 and was Chairman of the Building Committee from about March 1991, is that all extensions and additions carried out on the Lighthouse Restaurant by the first and second plaintiffs were in accordance with plans approved by the Council and in accordance with Council by-laws. The defamatory letter also included the following statement:
“Below is the list of some infringements without permission or in different (sic) to Council By-Laws:—
- Front entry extentions (sic)
- Gazebo built directly on boundary.
- Storage area built on boundary.
- Pergola.
- Take-Away shop alterations.
- Removal of dishwasher to boundary.
- Public foot path area concreted for Take-Away shop.
- Industrial bin containment of sound pollution and smell.
- Inadequate soundproofing.”
Only the alleged infringements numbered 1, 2, 3, 6 and 9 seemed to be in issue at the trial.
The front entry extensions; the gazebo and the storage area were all included in plans approved by the Council in 1986. The building of those structures was in compliance with the Council plans.
There was no evidence that a dishwasher had been removed to the boundary of the plaintiffs' property. The kitchen area had been extended, in accordance with the approved Council plans, and the dishwasher placed within that extension, 1.8 to 2 metres from the boundary. This was consistent with the approved Council plans.
The uncontested evidence from the first plaintiff is that there was no excessive noise coming from the restaurant through its operation or its patrons. On 15th November 1993 the Licensing Commission wrote to the manager of the second defendant requiring him to abide by an order of 29 November 1993 in the following terms:
“1. All doors and windows in the kitchen area to remain closed at all times so as to contain noise emanating from this area.
- Relocate the refrigeration motor situated on the boundary fence line and enclose it in a soundproof enclosure.
- Place the refrigeration motor on the icemaking machine in a soundproof enclosure.
- Submit a detailed technical report of actual tasks performed by a qualified acoustic engineer that items 2 and 3 have been achieved in accordance with the attached schedule.”
This is no evidence on its own of the truth of the allegation of inadequate soundproofing infringing Council By-Laws in March 1991.
As to allegation 8: “Industrial bin containment of sound, pollution and smell”, the uncontested evidence from the first plaintiff is that a large industrial bin was in position outside the restaurant partly on the restaurant's land and partly on the footpath. It was in this position at the time the restaurant was purchased. The plaintiffs screened the bin to try to make it more attractive. Mr. Santagiuliana said that as soon as this infringement was brought to the notice of Council, the plaintiffs were required to move the bin to an area within the restaurant boundary, although this was inconvenient for them. Prosecution was threatened if they failed to do so. The Council instructions were complied with.
The next defamatory statement is in a letter dated 27th April 1991 to the ratepayers which has attached to it a letter from the defendant dated 12th April 1991 to the Shire Clerk, Redland Shire Council asking that it be brought to the attention of the councillors. That letter contained the following:—
“Do we have a set of laws for the ordinary citizen and separate laws for others?
The general opinion I have from the business community is that if the newly formed Council is to be engaged in special privileges that is fine, provided it is accessable (sic) to all.
A good example of special priviledges (sic) is the case of the Lighthouse Restaurant and the proprietor and architect Mr. McMahon. For example to be given:
– special priviledge to acquiring public road to be added to the front of his restaurant holdings.
– the granting of an extension to the Lighthouse Restaurant to be built on an existing car park and the wavering (sic) of the existing car park area.
– special priviledge of wavering $19,000 contribution for upgrading and improvement of a parking and recreational space on public land on Cleveland point, where monies were to be paid prior to release of buildings. Application for extensions were wavered according to Mr. Blake from the building department in the presence of Councillor Groom for a special priviledge of 2 years. Non payment of monies with special condition of approval for construction to take place prior to payment.
– special priviledges to be able to gain concent (sic) to proposed extentions on a commercial site surrounded by residential area, without any provisions for soundproofing or privacy to adjoining residences.
– special priviledge to be able to construct without permission a commercial rubbish bin enclosure on the footpath encroaching onto a residential property with noise and obnoxious odours, polution (sic) from industrial waste contained within after the Chief Health Inspector, Mr. Cleary, was notified in writing in regard to the matter. A copy of which letter is enclosed with no response.
– special priviledge given Mr. McMahon, after being given advice that he had built structures without approval or plans and the Council building inspector had investigated a complaint and found the complaint to be true, on top of it all to again be given special priviledge and priority over other applications by the ordinary citizen who had lawfully lodged his building application and plans with appropriate fees and have to wait six weeks or more to be put aside for a person who deliberately built extension without plans or approval.
– to be given special priviledges to have his applications and plans rushed through all the normal channels.
– special priviledges to build a gazebo on an adjoining residential fence and part of Harbour Marine property.
– special priviledge to have plans approved by council in a residential area adjoining a residential property without permission to soundproofing kitchen and adjoining dining room walls. (provision)
– privileged without permission to concrete the footpath area onto the take-away area with or without concent to build a service area on take-away area without concent directly on footpath or to open sump below.
– special priviledge with engineer to finish kerbing leading to the western entry of the restaurant, how someone hasn't broken their necks I will never know or how it was passed.”
The uncontradicted evidence of Mr. Santagiuliana is that all complaints made by the defendant were investigated and with two exceptions found to be unsubstantiated. The first related to the commercial rubbish bin with which I have already dealt; the second related to the building of a pergola or gazebo on land which was subsequently found not to be the property of the plaintiffs.
At the time the restaurant was purchased, the plaintiffs believed all the land between the restaurant and Moreton Bay was the property of the restaurant. The first plaintiff had surveys conducted on the three boundaries neighbouring other land but not in respect of the boundary to Moreton Bay. In addition, he had obtained a map from Sun Map (Exhibit 7) which showed his property as not including any vacant Crown land, although vacant Crown land was marked on the foreshore of the defendant's neighbouring property. Prior to the first plaintiff purchasing the restaurant, the defendant had built a two metre high masonry fence along the boundary and this was subsequently found also to be on vacant Crown land. At the time the first plaintiff put his plans for extensions to Council, he believed all the land belonged to the restaurant. At the time Council approved the plans it also believed this to be the case. When the gazebo was built, the plaintiffs believed it was built on restaurant property and that the liquor licence covered the entire gazebo area, unaware that a small portion of triangular shaped land, about 9 metres × 3-4 metres, on which part of the gazebo had been built was vacant Crown land. When the error was brought to the attention of the plaintiffs and the Council, the first plaintiff purchased the land from the State Government.
At a meeting of the Building Committee in May 1991, Council directed the second plaintiff as follows:
“You are advised that the building application has been refused as an investigation has found that the proposed structures are not wholly contained within the property boundaries, although should you be able to provide proof of ownership over the land in which the structures encroach, then an assessment will be provided under the Standard Building By-laws.”
The letter of 7 May 1991 from the Council also required the second plaintiff to rectify the position as regards the refuse bin.
The uncontradicted evidence from Mr. Santagiuliana is that the plaintiffs have never been given special treatment, indeed they were at times disadvantaged because of the defendant's vociferous complaints. The Council was not aware of the gazebo being built on vacant Crown land until May or June 1991. The plaintiffs were treated like all other applicants: they were not given special privileges.
The third letter containing defamatory statements is undated but is headed “A PUBLIC LETTER TO MR. BRISKEY, M.L.A., REDLANDS”. The admitted defamatory statements contained therein are as follows:—
“I am sure you would be aware that your government found its way out of the wilderness of opposition, not on its own merit, but only because the National Party and its cronies betrayed the people of Queensland's trust. As revealed to the public by Mr. Fitzgerald with the National Party policy of cronyism and corruption in the past.
You have on your file in excess of approximately 150 single pieces of correspondence I have forwar(d)ed and received from various government departments, and documented evidence of Hawkley Pty. Ltd. deliberately misleading the Council and Licencing Commission...
...
Does the Licencing Minister, Mr. Gibbs, condone plans submitted to the Licencing Commission by Hawkley Pty Ltd deliberately misleading the Commission?
Does the Minister, Mr. Gibbs, condone the serving of liquor in an unlicensed area causing a general nuisance in a residential area?
Why has the Minister, Mr. Gibbs, on 2 July 1991 in a letter of correspondence to your office state: “The construction has been inspected by the Licencing Commission staff who are satisfied the complete work is in accordance to the plan”, when on 16th May 1991 I forwarded via your office documented proof by Solicitors' letter and survey plan that the Commission was deliberately mislead in favour of Hawkley Pty Ltd.”
The uncontested evidence of the first plaintiff is that the restaurant was at all relevant times licenced; liquor was not served in an unlicensed area causing a general nuisance, and he at no time deliberately misled the Council or the Licensing Commission. No evidence was called by the defendant to establish the truth of any of his allegations.
The fourth letter containing defamatory statements was dated 16 December 1991, headed “PUBLIC LETTER” and addressed to Mr. Gibbs, Minister, Licencing Commission. It contains the following defamatory statement:
“I presume that you, Mr. Gibbs, are fully aware by now of the countless pieces of correspondence to your office about the gazebo which Mr. Santajuliano (sic) of the Redlands Shire Council and Mr. Keogh of the Redland Shire Council, along with yourself were the prime movers pushing Mr. McMahon's barrow, the Proprietor and Architect of the Lighthouse Restaurant, after being made aware of his fraudulent plans misleading the Commission and the Council in regard to plans lodged after April 1st, 1986, and who had deliberately engagedin building an illegal gazebo on my private residential fence line and protruding on Harbour Marine property to be used illegally for commercial use with obvious environmental and noise pollution problems. For you, Mr. Keogh and Mr. Santajuliano to be notified in writing disclosing these infringements and the devastating stress the gazebo has caused myself and family with past noise emanating from the gazebo area and also the open air area. I noted in your correspondence the 9th Dec ‘91 that you in your letter accept that the Licensee had encroached upon Harbour and Marine property with the gazebo and that now Mr. McMahon is in the process “to purchasing additional land and this is proceeding”. WHY? And if so, it is evident that if the purchase is proceeding as you stated in your letter dated 9th Dec ‘91, the gazebo is very unlikely to be a fully licenced area on 13th Dec which would clearly indicate that the whole of the gazebo would not be licenced. In view of this being so I officially forward a complaint to your office in regard to Mr. McMahon personally serving liquor in an unlicensed area being that of the gazebo on 13th Dec 91 between 12.30 p.m. and 3.30 p.m. to the Chief Health Inspector of the Redland Shire Council, Mr. Cleary and his six fellow Officers of the Crown in the presence of the Manager of the Redland Times of Rural Press, who was not only another witness and knew everyone in the group but bought a free round of drinks for all and joined the party himself for a period of time.”
The uncontradicted evidence from the first plaintiff is that he did not submit fraudulent plans to mislead the Licencing commission or the Redland Shire Council in 1986 or at any other time. He did not knowingly build the gazebo on vacant Crown land. He subsequently purchased the land from the government through normal channels. The uncontradicted evidence is that the restaurant was at all times licenced there was no excessive noise coming from the gazebo or surrounding area.
Mr. Santagiuliana recalled the afternoon in December 1991 when he was at the restaurant. He cannot recall whether he was in the gazebo area on that occasion. It was always his belief the restaurant, including the gazebo area, was licenced. He understood that the plaintiffs, either by that time or shortly afterwards, had purchased the portion of land belonging to the Queensland Government to regularise matters.
The fifth letter containing defamatory statements was dated January 22nd, 1992, headed “PUBLIC LETTER” and addressed to the Clerk, Redland Shire Council, Chairman of Building and Subdivision Committee, Mr. Santagiuliana. The defamatory statements contained therein are as follows:
“In regard to your involvement in the Light House Restaurant affair, I wish you to give cause why, after being given documented evidence that the Council and Licencing Commission were misled deliberately by the proprietor and architect of the Light House Restaurant with the submission of fraudulent plans, why you in your capacity as the Building and Subdivision Chairman, have not made haste to have the gazebo dismantled. After being given the courtesy of my time and hospitality of my home to point out to you in person the real property boundaries and survey pegs clearly showing that the gazebo was illegally positioned for one and, for another, a health hazard with the noise emanating from that gazebo from past patrons and staff from which myself and family have suffered great stress with illegal drinking parties in an unlicensed area of the gazebo for years. As recent as Friday, 13 December, 1991, where I had the occasion to instruct you in person at Council chambers at 3 p.m. to have the Chief Health Inspector, Mr. Cleary, and six other officers of the Crown to have them removed from the gazebo who were drinking there from 12.30 p.m. to 3.00 p.m. during working hours with the proprietor in an unlicensed area making a general nuisance of themselves”.
The uncontradicted evidence from the first plaintiff is that he did not deliberately mislead the Redland Shire Council with fraudulent plans for extending the restaurant. He was not aware at that time that the land on which the gazebo was to be built was vacant Crown land. As soon as he found this out, he set in motion aprocedure to purchase it. He was always careful to instruct staff to keep noise within reasonable levels and was courteous of the requirements of his neighbour, Mr. Markwell. There were no illegal drinking parties. The restaurant was at all times licenced. On no occasion was anyone drinking in an unlicensed area making a general nuisance of themselves.
He is unaware of any instances where either plaintiff has deliberately misled the Council or acted fraudulently. He has found the first plaintiff at all times to be of excellent character and, if anything, timid in dealing with the Council. No special privileges were given to the plaintiffs on account of occasional lunches consumed by Councillors, Council officers and business people.
On 25 February 1992, the defendant, through his solicitors, provided an undertaking to the plaintiff's solicitors “to refrain from publishing any statement defamatory of your clients.”
The sixth letter containing defamatory statements was dated 20 May 1992, headed “PUBLIC LETTER” and sent to Mr. Gibson, Chief Inspector, Licencing Commission and then distributed generally in the Redland Shire. The defamatory statements are as follows:
“As a matter of record, after my appealing to the Commission in writing dating back to 1 August 1991, to have the illegal activities from the Lighthouse Restaurant stopped and brought before the Licencing Court of Queensland on my behalf, and also my rejection of the Minister's correspondence, Mr. Gibbs, dated 2 July 1991 as untruthful.
As a matter of record, on the 13th August 1991, I personally visited your office in George Street and was interviewed in the presence of yourself and a fellow inspector, where I presented unquestioned evidence of the fraudulent misconduct of the licensee and architect of the Lighthouse Restaurant to the detriment of my person and family. Detailed survey plans and solicitor's letters from Lippiatt and Co of George Street was brought to your attention at that meeting proving without doubt that the architect and licensee knew of his true freehold property boundaries prior to any plans submitted to the Commission of the illegal gazebo submitted to the Commission for licencing.
The illegal serving of liquor in the unlicensed area among other serious breaches to the Liquor Act and at that meeting, my request of you to see that the then proposed future extensions could be window free on the southern wall to avoid any future encroachments on to my private residential property by virtue of noise and privacy infringements.”
The uncontradicted evidence of the first plaintiff is that he did not deliberately mislead the Licensing Commission, nor did he breach the Liquor Act.
On 29 July 1992 the defendant personally gave a further undertaking “That I will not, whether by myself, my servants or agents or whosoever make any publications defamatory of either Edward Warren McMahon or Hawkley Pty Ltd.”
The final letter containing defamatory statements was not tendered. The defendant admits that the letter was published on January 15, 1993 to Darryl Briskey, M.L.A. The admitted defamatory statements are as follows:
“I am directed to seek a give cause notion from yourself as the elected member for Cleveland and Mr. Longland, the Director of the Liquor Licencing Division, as to the reason why the Licensee and architect of the Lighthouse Restaurant was permitted to leave the structure of the gazebo illegally encroaching on to my private property after documentation was presented to your office and that of the then Licencing Commission Chief Licencing Inspector, Mr. Gibson, in person, of proof by virtue of solicitors' letters from Lippit (sic) and Co, and survey plans. That the Licensee in full knowledge of his true freehold boundaries fraudulently misrepresented the position of the gazebo to the Commission and the Redland Shire Council to the detriment of my private property.
... to give cause why the Inspectors of the Licencing Commission have not charged the Licensee for breaches of the act - causing continual assaults from drinking parties, the illegal serving of liquor and falsifying of plans, causing aggravated assault to the adjoining neighbour by virtue of condoning these activities along with deliberate assault to my person after clear approaches were made to your office and that of the then Mr. Yoe and the Redland Shire Council of the stench and unpleasantness the placement of the industrial bin at that time was causing myself and my family to the detriment of our wellbeing, not to be enacted on immediately to have the industrial bin removed but was a matter of ignoring my continual request.”
The uncontradicted evidence of the first plaintiff is that all allegations contained in this letter against the plaintiffs are false.
The Defences
It is accepted by all parties that the applicable law at the time is Chapter XXXV Criminal Code ss. 365-389.
Protection: Truth - s. 376:—
“It is lawful to publish defamatory matter if the matter is true, and if it is for the public benefit that the publication complained of should be made.”
The defendant has pleaded truth in respect of all these letters. This claim was not seriously persisted with during Mr. Keller's address on behalf of the defendant, however I must deal with it. The uncontested evidence before me is that the defamatory allegations are untrue. In these circumstances, I accept McMahon's evidence. This defence must fail in respect of each defamation.
Qualified Protection: Excuse
“S. 377 Qualified protection: Excuse. It is a lawful excuse for the publication of defamatory matter -
...
(2) If the publication is made in good faith for the purpose of seeking remedy or redress for some private or public wrong or grievance from a person who has, or whom the person making the publication believes, on reasonable grounds, to have, authority over the person defamed with respect to the subject-matter of such wrong or grievance;”
Mr. Keller, on behalf of the defendant, submitted this section applied as a defence to the defamatory statements. The section was not pleaded, at least in respect of the first six letters. The first six letters were published not only to persons in authority over the plaintiffs, but to the general community in the Redland Shire. As this excuse was not pleaded, it would be unfair to the plaintiffs in the circumstances to have it raised only at the address stage.
In any case, the publication must be made in good faith. The final paragraph of s. 377 continues:
“For the purposes of this section, a publication is said to be made in good faith if the matter published is relevant to the matters, the existence of which may excuse the publication in good faith of defamatory matter; if the manner and extent of the publication does not exceed what is reasonably sufficient for the occasion; and if the person by whom it is made is not actuated by ill-will to the person defamed, or by any other improper motive, and does not believe the defamatory matter to be untrue”.
Section 378 Code states:
“Good Faith: When any question arises whether a publication of defamatory matter was or was not made in good faith, and it appears that the publication was made under circumstances which would afford lawful excuse for the publication if it was made in good faith, the burden of proof of the absence of good faith lies upon the party alleging such absence.”
The burden of proof therefore lies on the plaintiffs. Once a privileged occasion has been established the plaintiffs must demonstrate an improper motive, which will not lightly be inferred: see Sinclair v. Bjelke-Petersen 1984 1 Qd.R. 484.
On the evidence before me, it cannot be said that the manner and extent of the publication does not exceed what is reasonably sufficient for the occasion. Even if the defendant as a neighbour had some grievance about noise or smells coming from the neighbouring restaurant, it cannot justify the highly defamatory statements made by him in respect of the plaintiffs, which do not allege merely noise and smells, but claim the receipt of special privileges from and fraudulent applications to Council. The defamation was published throughout the Shire in six instances.
In the absence of any evidence from the defendant, there is no evidence that the defamatory matter was true and whilst this is not fetal to an allegation of good faith, it is a significant factor.
The only helpful evidence for the defendant comes in his answers to interrogatories which were tendered by the plaintiffs. He claims “the circumstances of the publication of those letters were that they were initially published to the persons to whom they were addressed, and not published to members of the general public until the public officials to whom they were addressed had failed or refused to investigate the matters contained therein, including the Defendant's complaints. Their distribution to members of the public was undertaken in circumstances in which the defendant believed the public had a right to be informed of the failure of those public officials to discharge their duties;”. In circumstances where the defendant has not given sworn evidence, this answer to interrogatories can have little weight.
On the evidence before me, the allegations of fraudulent misrepresentations by the plaintiffs are false and the irresistible inference is that the defendant made the allegations either knowing they were false or recklessly, without caring or bothering to find out whether they were true or false. Enquiries at the Council or the Licensing Commission should have clarified matters. Such a finding is usually conclusive of malice: see Sinclair v. Bjelke-Petersen (supra) at 500. A finding of ill-will or improper motive is also supported by the fact that the defamatory statements continued after two undertakings were given by the defendant.
The extent of the publication is relevant to good faith. Here the publication was not only to the officials who could assist the defendant, but also, on six occasions, to the general Redlands community who elected those officials. Mr. Santagiuliana estimates from the reaction he got to the letters that two or three thousand were distributed each time one of the first six letters was published. They were distributed quite widely within the Redlands area. He saw the defendant distributing letters at Cleveland, putting them under car windscreens, at Capalaba and Old Cleveland Road and on Santagiuliana's own property.
In these circumstances, even though the inference is not lightly drawn and in the absence of any evidence to the contrary from the defendant, I am satisfied the defendant was actuated by ill-will or improper motive towards the plaintiffs in his outlandish claims. On the evidence before me, this is the only sensible inference to draw from the defendant's claim that the plaintiffs had deliberately acted fraudulently.
Any defence pursuant to s. 377(2) Code must fail in respect of each defamation as it was not made in good faith.
S. 377(3) Code:—
“377 Qualified protection: Excuse. It is a lawful excuse for the publication of defamatory matter-
...
(3) the publication is made in good faith for the protection of the interests of the person making the publication, or of some other person, or for the public good;”.
This defence was not specifically pleaded, at least in respect of the first six letters, however the facts upon which the defence is based were sufficiently pleaded to raise it.
Whilst there is slight evidence from the tendered answer to interrogatories that the defendant published the letters to protect his own interests and those of the public, I am not prepared to accept that as true, in the absence of sworn evidence from the defendant.
In any case, for the reasons already stated, I am satisfied the defendant was not acting in good faith and therefore any defence pursuant to s. 377(3) of the Code fails in respect of each defamatory statement.
S. 377(8) Code:
“377. Qualified protection: Excuse. It is a lawful excuse for the publication of defamatory matter -
...
(8) If the publication is made in good faith in the course of, or for the purposes of, the discussion of some subject of public interest, the public discussion of which is for the public benefit, and if, so far as the defamatory matter consists of comment, the comment is fair.”
If the allegations made by the defendant were true or the defendant believed they were true, it may well have been in the public interest to have the allegations aired. That is not, however, the accepted evidence in this case. In the absence of sworn evidence from the defendant, I am not prepared to accept even if the publications were made by the defendant in the course of or for the purposes of the discussion of a subject of public interest the public discussion of which is for the public benefit, that the comments made about the plaintiffs in the letters were fair. I am not satisfied he believed the serious allegations of fraudulent and deliberate misleading of the Council and Licensing Commission were true.
In any case, a defence under s. 377(8) must be made in good faith. As I am satisfied good faith was absent in this case for the reasons already stated, this defence must also fail in respect of each defamatory statement.
The defendant has failed to raise any of the defences which would afford him an excuse or defence for his defamations and is therefore liable in damages.
Damages
The First Plaintiff
The letters in which the defamatory statements are contained are primarily complaints to elected councillors and members of Parliament. Without doubt, in the course of those letters the first plaintiff was defamed. The letters suggest that he, as a qualified architect, was building extensions as he pleased without obeying council by-laws; that he was receiving special privileges from the council; that he was building structures without approval or plans; that he was given priority over ordinary citizens; that the Licencing Commission had been deliberately and fraudulently misled by him in favour of Hawkley Pty Ltd; that he had misled the Licencing Commission and the Redland Shire Council with fraudulent plans in 1986; that he was causing environmental and noise pollution problems; that he was serving liquor in an unlicensed area to council officials; that he allowed illegal drinking parties in an unlicensed area of the gazebo to continue for years; that he drank with council officials in an unlicensed area whilst making a general nuisance; that he had built a structure illegally encroaching on to the defendant's private property; and that he had breached the law relating to licencing, causing continual assaults from drinking parties.
Actual damage need not be proved. It is presumed once the defamation is established.
Damages should take into account natural grief, distress and hurt feelings. Mr. Santagiuliana had known the first plaintiff since the early seventies through his involvement as architect of the Star of the Sea church. He was not a particular friend of the first plaintiff. He strongly admired his architectural skills. He has always found the plaintiff to be scrupulously honest. The first plaintiff was better known in the Redlands community as an architect than a restauranteur; if anything, he was a little timid as a restauranteur. The first plaintiff had told him he was interested in building up his architectural business in the Redlands area and was especially interested in historical work, although he had not done any architectural work in the area from the time he had the restaurant until the time of the defamations.
The first plaintiff was born on 10 October 1936. He purchased this restaurant in February/March 1986. He qualified as an architect in 1962 and has worked as an architect since that time. His practice included ecclesiastical work and schools. Apart from running the restaurant business, he was interested in using it as a vehicle to make contact with local business people who could give him work as an architect in the future. He was on the verge of opening his architect's office at the restaurant complex when these letters were circulated. He did not open such an office as he believed people with whom he would be dealing, especially church people, would be very conscious of the sorts of claims made by the defendant and would not patronise him. The letters made him angry at the untruths they contained and afraid for the damage that would be done to the restaurant and to his reputation through the letters.
He has practised continually as an architect since 1962, having his own office from about 1967 or 1968 through until 1987 or 1988 when he worked as an architect from his home. As the restaurant became successful, he did less architectural work. He estimates he spent 60% of his time from 1986 to 1991 on the restaurant and 40% on his architectural practice. In around 1991 he hoped to build up his architectural practice, particularly in the Redlands area, and work for another ten years in it. His practice as an architect now is “very part time”: he has taken up creative writing. The first plaintiff's tax returns show that in 1990 he netted from his architectural practice $43,173; in 1989 $17,258; 1992 $2,356; in 1993 a loss of $1,068 and in 1994 a loss of $474.
No other evidence was called by the plaintiff in respect to the damages claim.
The defamation was quite serious in that it reflected upon the first plaintiff's honesty and integrity, not only as an individual but also directly on his professionalism as an architect. Many fair minded people would not have taken any notice of the letters distributed by the defendant, simply regarding him as a crank. Mr. Santagiuliana told people they were “silly” letters and to disregard them. Nevertheless, the defamation is significant. It had a direct effect on the first plaintiff's decision not to build up his architectural practice in the Redlands Shire. It may have made it more difficult for him to get work associated with the Redlands Council or the State Government. It may have also influenced other people who may have considered giving him work. It is impossible to know if, had the first plaintiff set up an architectural practice, it would have been successful or not: it may or may not have been. It certainly should not have had any effect on any practice outside the Redlands area and it seems from his tax returns and from his evidence in this court that he has now been content to let his architectural practice become very part time. In these circumstances the only appropriate award is a global one which reflects these factors.
The defendant has done nothing to mitigate damages, only admitting the defamation during his closing address. He maintained allegations of fraud, even though he did not give evidence. There has been no apology. The damages to be awarded are at large. On the evidence before me, the defamation was untrue. I award by way of compensatory damages (including aggravated compensatory damages: see Clift v. Timms, unreported 1995/1996 Court of Appeal Queensland delivered 25 March 1997, at 16-17) the sum of $35,000.
Exemplary Damages
Exemplary damages are awarded to punish a defendant, not to compensate a plaintiff. It is only in special circumstances that exemplary damages are awarded - see Uren v. John Fairfax and Sons Pty Ltd (1967-8) 117 C.L.R. 118, which was cited with approval by the High Court in Lamb v. Cotogno (1987) 164 C.L.R. 1 per Mason CJ, Brennan, Deane, Dawson and Gaudron JJ at 7-8:
“In Uren v. John Fairfax and Sons Pty Ltd. a libel action, this court affirmed that in actions for tort exemplary damages may be awarded for conduct of a sufficiently reprehensible kind. In so doing it rejected for Australia the restriction placed by the House of Lords in Rookes v. Barnard upon awards of exemplary damages:”.
The defamatory allegations relating to the first plaintiff are false. They were maintained up until the close of evidence. There was no apology. Allegations of fraudulent conduct were stated in the pleadings, and even during the course of the trial, to be fact. The defendant gave no evidence. The evidence before this court is that the allegations were false. The defendant repeated the defamatory allegations after entering into undertakings to refrain from so doing. The defendant must have either known the allegations were false, or made them recklessly, not caring whether they were false, and made absolutely no effort to find out if they were true. It would have been a simple matter to ascertain from the Council whether the 1986 plans for extending the restaurant were approved by the Council. There has been nothing put to the first plaintiff to suggest that at the time he put the plans into Council he was aware that a small portion of land was vacant Crown land, and not the property of the second plaintiff. The respondent is a neighbour who believed he had a grievance and who has acted unlawfully and shabbily to try to remedy that grievance, in complete disregard of the plaintiffs' rights.
In these circumstances, this is an appropriate case to award exemplary damages to punish the defendant. In all the circumstances I award $10,000 by way of damages under this heading.
Second Plaintiff
It is well established that a trading corporation may bring proceedings for defamation on the basis of a publication which has the capacity to injure its trading or business reputation without proof of special damage: South Hutton Coal Co Ltd v. North-Eastern News Association Ltd [1894] 1 Q.B. 133 at 141 and 148; Bognor Regis UDC v. Campion [1972] 2 Q.B. 169 at 175. The defamatory statements made here clearly have the capacity to damage the second plaintiff's trading reputation. Patrons may well prefer not to attend a restaurant which has shown disregard for council regulations and its neighbour; which serves liquor in unlicensed areas; which allows a general nuisance to be caused in a residential area; which has presented fraudulent plans to the council; which has misled the Licencing Commission and the Shire Council; which has illegally used property for commercial use and which has caused environmental and noise pollution problems.
Patrons may well have been concerned that if they attended the restaurant they too may be defamed by the defendant in letters distributed in the shire. According to Mr. Santagiuliana, the Redland Council and those who worked for it stopped frequenting the restaurant after the letters circulated, for that reason. It is possible other business or political patrons also did so. The Redlands Strawberry Festival was not launched there after August 1991 for fear of controversy affecting a worthy charitable cause.
The profit and loss statements of the second defendant indicate a steady increase in trade from the time of purchase. The first plaintiff says that after the defamatory statements were circulated he had to work hard through advertising to change the clientele from a Redlands one to a Brisbane one, in order to maintain profitability.
In all the circumstances I award $20,000 by way of damages under this heading.
Interest
The first letter was published in March 1991 and the last in January 1993. A suitable mid-point from which to award interest is the defamatory letter of 20 May 1992, in breach of the defendant's undertaking. I allow interest from that date until judgment at 11%.
Order
I give judgment for the first plaintiff in the sum of $45,000. I give judgment for the second plaintiff in the sum of $20,000. I allow interest on those sums at 11% from 20 May 1992 until judgment.