Thomson v Hanson[1998] QDC 287

[Before Hinson ADCJ]

[R Thomson v TJ Hanson]

BETWEEN:

AND:

JUDGMENT

BETWEEN:

AND:

REASONS FOR JUDGMENT - HINSON A.D.C.J.

Delivered the 19th day of October 1998

In this action the plaintiff claims damages including aggravated and exemplary damages for defamation. The defendant denies publication of the words complained of, denies that those words were defamatory, and raises defences of qualified protection under ss.16(1)(c) and (e) of the Defamation Act 1889 and a defence under s.20 of that Act. In his reply, the plaintiff denies that the circumstances of the publication gave rise to those defences and denies that the publication was made in good faith.

Background

The plaintiff is a driving instructor. His company Glenrob Projects Pty Ltd holds a driving school franchise in the Strathpine, Boondall and Sandgate areas granted by the Australian Driving Academy. The franchisor operates a central telephone booking service on a free 1800 number. Persons wanting to book a driving lesson ring that number and speak to Ms Sharon Drayton. She would take the relevant details and then arrange with the franchisee in the relevant area for the provision of the lesson. Most of the plaintiff's customers are about 17 years old and many of them are still attending school. The plaintiff often gives driving lessons to schoolgirls. He had at relevant times a social and professional connection with the Pine Rivers State High School where he coached the basketball team and conducted road safety programmes.

The plaintiff and the defendant have known each other for about 10 years. The plaintiff and the defendant's daughter Joanne were in a defacto relationship which ceased in about June or July 1997. Their separation was not amicable.

The publication complained of was made on the 5th August 1997 to Ms Drayton. It is necessary to explain some of the events leading up to that publication to put it in context. That can most conveniently be done by reference to the defendant's evidence of those events, much of which was hearsay and much of which was not put to the plaintiff. The defendant gave this evidence:—

The plaintiff denied that he abused Joanne on the 18th July but did admit that he was forcibly removed from the defendant's premises later that night. The events of the 19th July, 27th July and 28th July were not put to the plaintiff. The defendant was not present at the incident on 4th August. The plaintiff's evidence in chief was simply that an incident occurred on that day whereby he retrieved the keys to his car from Joanne. The defendant did not put any specific details of this incident to the plaintiff, although he did allege that the plaintiff had either threatened his daughter's life or tried to kill her. In re-examination the plaintiff denied that he had threatened to kill Joanne or threatened any violence. The defendant's daughter did not give evidence.

One matter not mentioned by the defendant in his evidence is a telephone call he made to Mr Michael Thomson on the evening of the 4th August 1997 at the plaintiff's home. Mr Michael Thomson is not related to the plaintiff but was then living at the plaintiff's home. Mr Thomson's evidence was that the defendant told him that the plaintiff had just taken the keys to Joanne's car, that he was going back on his word, that he (meaning the plaintiff) was finished in business and that he (the defendant) was going to run him (the plaintiff) out of town. The defendant then said “I didn't make this call” and hung up. The defendant did not dispute Mr Thomson's evidence - indeed he said that if he had found the plaintiff that night “I'd have killed him probably”.

The Words Published

On the following day at about 12.42 p.m. the defendant telephoned the free 1800 number of the Australian Driving Academy and spoke to Ms Drayton. Within minutes after the call she made a note of the conversation. The caller was unknown to her at the time. The caller enquired if the plaintiff worked at the driving school and, upon being told that he did, said:—

Ms Drayton then asked the caller for his name and his daughter's name but the caller did not respond.

The defendant does not deny making the call but he does deny speaking those words. According to him the words he spoke were to this effect:—

In his evidence the defendant said that he spoke not those exact words but words to that effect “bearing in mind I was not only confused but also very, very upset”. The defendant did not suggest that he made a note of this conversation with Ms Drayton at any time, although he did make a contemporaneous note of a later telephone conversation with Ms Drayton in February this year.

I am satisfied that Ms Drayton's account of the telephone conversation of 5th August 1997 is accurate. She made a note of the conversation at a time when the conversation would have been fresh in her mind. She was shocked by the telephone call and regarded the allegation of molesting schoolgirls to be a serious allegation. There is no basis for supposing that Ms Drayton's recollection of the conversation is mistaken or for supposing that she is not telling the truth. I am not satisfied that the defendant's recollection of what he said is reliable. He was only able to recall the effect of what he said, and he was on, his own admission, confused and upset at the time.

I find, therefore, that on 5th August 1997 the defendant published to Ms Drayton the words she gave evidence about.

Defamatory Matter

The plaintiff pleads that in their ordinary and natural meaning those words contain twelve imputations concerning the plaintiff. The words published clearly impute that the plaintiff had molested the defendant's daughter and had molested schoolgirls. It is well settled that the ordinary and natural meaning of words includes any implication or inference which a reasonable listener guided not by any special but only by general knowledge and not fettered by strict rules of construction would drawn from the words: Jones v Skelton [1963] 1 WLR 1362 at 1371. An ordinary listener, hearing the words spoken and being guided by general knowledge, would understand the words complained of to have some, but not all, of the imputations pleaded in my opinion.

On their own, the words complained of do impute that the plaintiff was not a fit and proper person to be associated with females, that he was a molester of women, and that he was a molester of a woman. It is also pleaded that those words impute that the plaintiff was a child molester and that he was not a fit and proper person to be associated with school children. It may be that an ordinary listener would not be so analytical as to distinguish between children or schoolchildren on the one hand and girls or schoolgirls on the other, and would understand the words complained of to refer to children or school children generally rather than only to girls or schoolgirls. I am not convinced that that is so - I think an ordinary listener would understand the words complained of to convey that the plaintiff had a heterosexual interest in females including schoolgirls and that it was not being suggested that the plaintiff had any homosexual interest in schoolboys or male children. That being so, the words impute that the plaintiff was a molester of female children only rather than imputing that he was a child molester, and impute that he was not a fit and proper person to be associated with schoolgirls rather than school children generally.

The remaining seven imputations can conveniently be dealt with in three categories. The first category consists of two imputations that the plaintiff was not a fit and proper person to be a driving school instructor and was not a fit and proper person to be a driving school franchise owner. It was the plaintiff's company which held the franchise rather than the plaintiff personally, but I do not think that anything turns on that. In the context in which the words complained of were spoken, both imputations are made out in my opinion. That context is the introductory part of the conversation in which the defendant enquired and Ms Drayton confirmed that the plaintiff worked for the Australian Driving Academy. The evidence of each of them establishes that each of them knew the plaintiff to be a driving instructor and each of them believed him to be the franchise owner. The words complained of do impute, in my opinion, that he is unfit to be either an instructor or a franchise owner and would have been so understood by an ordinary listener.

The second category consists of an imputation that the plaintiff was a person to be avoided and had so conducted himself as to give rise to a reasonable suspicion as to not be a fit and proper person. This seems to be a “fall back” imputation if others are found to fail. I have no difficulty with the first part, that the plaintiff was a person to be avoided, but the second part supposes that an ordinary listener would regard the words complained of as not being statements of past fact but only as allegations giving rise to a reasonable suspicion. The failure of the caller to identify himself may have caused an ordinary listener to treat what was said as an allegation or a statement of belief about the plaintiff's conduct rather than as an assertion of fact about that conduct. It seems to me, however, that the words spoken are in the form of assertions of fact rather than statements of belief or mere allegations and impute something more than that the plaintiff had so conducted himself as to give rise to a reasonable suspicion of not being a fit and proper person.

The third category consists of four imputations, namely, that the plaintiff was a criminal, that the plaintiff was a deviant, that he was a sexual offender and that he had committed a criminal offence. The defendant argued that the word “molest” did not convey any connotation of sexual molestation and simply meant to annoy, harangue or harass. I reject that argument. It is fanciful in this day and age to suppose that an allegation of molesting schoolgirls would be understood as meaning only that schoolgirls were being annoyed, harangued or harassed in a non-sexual way. It would be clearly understood by an ordinary listener as meaning molestation of a sexual nature. In context, the allegation that the defendant's daughter had been molested would be understood in the same way. There was nothing said in the publication complained of which would have indicated to Ms Drayton that the defendant's daughter was an adult woman who had been, but no longer was, in a defacto relationship with the plaintiff, or that some incident had occurred between the plaintiff and the defendant's daughter the day before, and that the molestation of the defendant's daughter took the form of annoying, haranguing, harassing, attacking or threatening her in a non-sexual way. For the defendant to contend that the allegations he made would not be taken as allegations of sexual misconduct is simply untenable. An ordinary listener's general knowledge would include knowledge that sexual misconduct with schoolgirls is or is very likely to be a criminal offence in my opinion. An ordinary listener would know, I think, that there are laws which make it an offence to engage in sexual conduct with girls of certain ages and which make it an offence to engage in non-consensual sexual conduct with girls and women of any age. Precise details of those laws, such as the age of consent and what acts constitute particular offences, may not be generally known but in the present case that is not material. The words complained of do, in my opinion, impute that the plaintiff was a criminal, had committed a criminal offence and was a sexual offender. I do not think, however, that the words impute that the plaintiff was a deviant. The nature of the alleged sexual misconduct is not specified, and the only words from which an implication or inference that that misconduct was deviant could be drawn are the words “molests schoolgirls”. If it was or could be understood that the schoolgirls were very young (i.e. pre-pubescent girls) there might be some basis for this imputation. In context, however, those words would have been understood as referring to schoolgirls with whom the plaintiff came into contact in his capacity as a driving instructor. An ordinary listener would not regard sexual misconduct with young girls old enough to be learning to drive as deviant behaviour by reason only of the age of those girls in my opinion.

The imputations concerning the plaintiff which have been made out are, therefore, imputations that:—

Those imputations are plainly defamatory within the meaning of s.4(1) of the Defamation Act. They are likely to have each of the consequences described in that section.

Section 20 Defence

Section 20 of the Defamation Act provides as follows:—

In Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84 at 91, Griffith CJ noted that under the Act the unlawful publication of defamatory matter is an actionable wrong and that questions of damage are irrelevant except in cases in which the probability of damage may be negatived as s.20 provides. The defence under s.20 presupposes that what has been published is “defamatory matter” as defined in s.4(1) i.e. an imputation by which injury to the person defamed is likely. It then postulates that there may be occasions on which and circumstances under which the publication was not likely to injure the person defamed. If the imputation is either not capable of bearing a defamatory meaning, or, being capable of bearing a defamatory meaning, is not considered by the tribunal of fact to be defamatory, a plaintiff will fail because what has been published is not defamatory matter. But if there has been a publication of defamatory matter, proof that the person defamed was not likely to be injured by reason of the occasion and circumstance of the publication provides a good defence.

A defence under s.20 may exist, for example, when the occasion is a social one and the circumstances are such that the audience to whom the words are spoken expect the speaker to say something uncomplimentary. At a testimonial dinner for a sportsman, for example, the audience might expect a speaker to give a “warts and all” sketch of the guest of honour with a view to showing how he had triumphed over adversity or was otherwise to be admired or respected rather than with a view to injuring his reputation.

There is nothing about the occasion on which or the circumstances under which the publication in question was made which would suggest that the plaintiff was not likely to be injured by the publication of the defamatory matter. The occasion was a serious one. The complaints made about the plaintiff's conduct were serious complaints. The s.20 defence is plainly untenable.

Qualified Protection

The qualified protection which the law affords the publication of defamatory matter depends upon two things. The first is that the publication is made in certain circumstances as specified in s.16(1) of the Defamation Act. The second is that the publication made in those circumstances is made in good faith as defined in s. 16(2). Whether or not the circumstances of the publication fall within the circumstances specified in s.16(1) is a question of law, and whether or not a publication is made in good faith is a question of fact: see Calwell v Ipec Australia Ltd (1975) 135 CLR 321 at 329 - 330.

The defendant relies upon ss.16(1)(c) and (e) of the Defamation Act which are in these terms:—

So far as s. 16(1)(c) is concerned, the defendant pleads that the publication was made to protect his interests and/or the interests of his daughter. The nature of the interests sought to be protected are not identified. There is little recent authority on the nature of the interests which are capable of protection under s.16(1)(c) but on principle no narrow or restrictive view should be taken. In Evans v Davies [1991] 2 Qd.R. 498 a firm of accountants published to their former client a letter addressed to the client's new accountants in which it was imputed that the new accountants had acted unethically in accepting appointment as the client's new accountants. The Full Court held that the former accountants had an interest in regaining the client as a client which the publication sought to protect so that the defence under s.16(1)(c) should have been left to the jury. In Watt v Longsdon [1930] 1 KB 130 at 143 Scrutton LJ said that for a statement to be made for the protection of the interests of another person, the maker of the statement would have to be so situated in relation to that other person that the maker of the statement was under a legal or moral duty to protect that person's interests. The moral duty of a daughter to protect her deceased father's reputation was recognised in Bowen-Rowlands v Argus Press Ltd. discussed by Dixon J in Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 at 519-520.

In my opinion, there was no interest of the defendant's which the publication sought to protect. Indeed, throughout the hearing, the defendant repeatedly said that he did what he did to protect his daughter. Plainly, the publication was not made to protect his daughter's reputation. The defendant had a moral duty to protect his daughter's physical and emotional well-being in my opinion and part, at least, of the publication can be said to have been made in protection of the interests of his daughter in her emotional well-being and personal safety and security. The warning to Ms Drayton to watch out because the plaintiff also molests schoolgirls cannot be characterised as having been made to protect the interests of the defendant's daughter, in my opinion. It is more in the nature of a “collateral disparagement” to adopt the expression used by Macrossan CJ in Evans v Davies at 516. Accordingly, I conclude that the publication of the words “Well, I have a complaint. You tell him to stay away from my daughter and if he ever contacts her again, tell him to watch out” falls within the ambit of the protection afforded by s.16(1)(c) but publication of the words “You had better watch out because he also molests schoolgirls” does not. At most, the latter words might be said to be protective of the interests of Ms Drayton, but the defendant does not claim to have published those words to protect Ms Drayton's interests and I do not think that he had any legal or moral duty to protect Ms Drayton's interests. The latter words were not relevant to the circumstances giving rise to the protection under s.16(1)(c).

So far as s.16(1)(e) is concerned, the defence is in these terms:—

The subject matter identified in the defence as the subject about which information was being given and the subject in which Ms Drayton had an interest in knowing the truth is the conduct of the plaintiff whilst driving a motor vehicle displaying the logo of the driving school of which the plaintiff was a franchisee. The identified subject is not the plaintiff's conduct generally as a driving school instructor. Nor is it the plaintiff's fitness or suitability for employment as a driving school instructor. Had the defence identified either of those subjects as the subject about which information was being given and in which Ms Drayton had an interest in knowing the truth, the publication might have fallen within the ambit of the protection afforded by s.16(1)(e). But it is impossible, in my opinion, to say that the purpose of the publication was to give information to Ms Drayton with respect to the plaintiff's conduct whilst driving a vehicle displaying the driving school logo. The information contained in the publication related to the plaintiff's sexual conduct or misconduct towards the defendant's daughter and schoolgirls. That information is not information “with respect to” the identified subject within the meaning of s.16(1)(e). Nothing was said which related to the particularised incident on the 4th August 1997. It is not my function to amend the defence so as to substitute for the particularised subject some other subject. On the defence as pleaded, the defence under s.16(1)(e) fails.

Good Faith

Section 17 of the Defamation Act places the burden of proof of an absence of good faith on the plaintiff. To discharge that burden the plaintiff must establish that one of the three indicia of good faith described in s.16(2) is absent: Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 330. I am satisfied that the plaintiff has established that the defendant was actuated by ill will to the plaintiff and that the defendant believed the defamatory matter to be untrue. As to the other indicia, I do not consider that the manner and extent of the publication exceeded what was reasonably sufficient for the protection of the interests of the defendant's daughter, but part of the matter published was irrelevant to the matters the existence of which might excuse the publication. The matter published concerning the plaintiff's molestation of schoolgirls was not relevant to the other matter published in protection of those interests. Nor was it relevant to the subject matter identified under s.16(1)(e).

In cross-examination the defendant unequivocally agreed that the allegation that the plaintiff had molested schoolgirls was patently false. As I understood his evidence he also agreed that the allegation that the plaintiff had sexually molested his daughter was false. The defendant, as I have already said, denied that the word “molest” would be understood in a sexual sense.

The absence of any belief by the defendant in the truth of the defamatory matter, and the lack of relevance of that part of the defamatory matter concerning the molestation of schoolgirls to the other matter published in protection of the interests of the defendant's daughter are two circumstances which show that the defendant was actuated by ill will to the plaintiff when making the publication. The inclusion of irrelevant matter is some evidence but not necessarily conclusive evidence of ill will: see Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 228. When the irrelevant matter is not believed by the defendant to be true, the publication of that false and irrelevant matter provides a strong basis for the inference that the defendant's conduct in making the publication is actuated by ill will to the plaintiff. When regard is had to the defendant's conduct before the publication (as to which see Griffiths v Queensland Newspapers Pty Ltd [1993] 2 Qd.R. 367) that inference is irresistible.

The defendant's telephone call to Mr Michael Thomson on the evening of the 4th August is cogent evidence of the defendant's state of mind at that time. Accepting that the defendant believed what his daughter had told him about the incident with the plaintiff that afternoon, it is understandable that he would be upset and angry. He said in evidence-in-chief that he was still angry the next day. In cross-examination he said that he had no reason to hurt the plaintiff's business “except to get him out of our lives”. I am satisfied that the defendant's motivation for publishing to Ms Drayton the false allegations concerning molestation of schoolgirls and the defendant's daughter was to harm the plaintiff's business connections and thereby to demonstrate to the plaintiff that the defendant was a man of his word who was following up his threat of the previous evening. I reject entirely the defendant's statement in his evidence-in-chief that when he spoke to Ms Drayton he was attempting to leave a message which had obviously been misinterpreted. The defendant was not an impressive witness. Even allowing for his lack of forensic experience and his emotional involvement with the proceedings, his explanations for the circumstances of the two telephone calls were unconvincing.

Accordingly, I find that the publication of defamatory matter was not made in good faith and the defences under s.16 of the Defamation Act fail.

Damages

There are three purposes served by an award of damages for defamation, being consolation for personal distress and hurt caused by the publication, reparation for harm done to the plaintiff's personal reputation, and vindication of the plaintiff's reputation: Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60.

The plaintiff was understandably distressed and hurt by the defamatory matter published about him. The actual harm done to his reputation was relatively minor given that the publication was made only to Ms Drayton who did not give it any real credence. Nevertheless, the imputations were serious and Ms Drayton treated them as serious. Insofar as damages are awarded to vindicate the plaintiff's reputation, the plaintiff is entitled to an award which he can point to so as to convince a bystander of the baselessness of the allegation made against him: see Carson at 70. The sum awarded must be the minimum necessary to signal to the public the vindication of the plaintiff's reputation, but cannot exceed an amount appropriate to compensate the plaintiff for any harm he has suffered.

Aggravated damages are claimed. Such damages are, of course, compensatory in nature (unlike exemplary damages), and may be awarded where the harm done to the plaintiff has been aggravated by the defendant's conduct in making the publication or by the defendant's subsequent conduct. That conduct must be in some way unjustifiable, improper or lacking in bona fides rather than merely conduct which causes distress to the plaintiff: Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474. In the present case, the defendant's conduct in publishing that the plaintiff molested schoolgirls, an allegation which he did not believe to be true and which was motivated by ill will to the plaintiff, was unjustifiable, improper and lacking in bona fides and aggravated the distress and hurt of the plaintiff in my opinion. The defendant's subsequent conduct, being his conduct of the litigation generally and his failure to apologise, is not conduct which I would characterise as unjustifiable, improper or lacking in bona fides. Nor is it conduct which seems to me to have any real potential to aggravate the plaintiff's hurt and distress to any great extent. Were it not for the aggravating conduct associated with the publication, I would have assessed damages in the sum of $4,000.00. Taking that aggravating conduct into account, I consider that an award of $5,000.00 is appropriate.

The plaintiff also claims exemplary damages which are awarded for the purpose of punishing the defendant and deterring others. Exemplary damages are awarded when the defendant has acted in contumelious disregard of the plaintiff's rights: see Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 138. The defendant's conduct must go beyond conduct which aggravates the harm suffered and must be conduct which warrants punishment. In my opinion the defendant's conduct should be characterised as conduct in contumelious disregard of the plaintiff's rights warranting punishment. On the evening of the 4th August 1997, the defendant threatened to finish the plaintiff in business. On the next day he set about making good that threat by publishing to Ms Drayton false allegations about the plaintiff, not believing those allegations to be true. I do not overlook that the defendant was upset and angry and I accept that he believed what his daughter had told him about the incident involving the plaintiff the previous day. That may explain his conduct, but it does not excuse it or justify the publication of false allegations about the plaintiff's sexual conduct instead of making some complaint about what the defendant believed to be the plaintiff's conduct towards the defendant's daughter on the 4th August.

In the circumstances, an award of $2,000.00 exemplary damages is appropriate in my opinion.

Interest should be allowed on the sum of $7,000.00 at a rate of 4 per cent for 14 months. I calculate interest to be $326.66 which I would round off to $325.

Conclusion

I give judgment for the plaintiff against the defendant in the sum of $7,325.00. I will hear submissions on costs.