Stewart-Gray v Gray[1999] QDC 108

CIVIL JURISDICTION

JUDGE SAMIOS

and

TOOWOOMBA

DATE 28/04/99

JUDGMENT

HIS HONOUR: This is an action in which the plaintiff, who is a member of the Australian Army and a captain in the Australia Army, claims $49,000 for damages for defamation occurring on 14 December 1992. The defendant is the plaintiff's step-mother.

At the time of the defamation the plaintiff was a member of the Australian Army having the rank of sergeant and stationed at the School of Army Aviation at Oakey. The defendant did not appear yesterday when this action was called on for hearing.

I was satisfied as to service of the plaint and that the plaint disclosed a cause of action and that the defendant was aware that these proceedings would take place before the Court, therefore I gave judgment for the plaintiff against the defendant and then proceeded to hear evidence from witnesses and received documentary evidence relating to the question of damages.

To put the action in its context, the plaintiff, it should be said at the outset has been the victim of a most malicious defamation. As one of his witnesses said, “when mud is thrown some can stick.” In fact that, perhaps on the evidence is an understatement of the damage caused to the plaintiff.

At approximately 11.15 a.m. on 14 December 1992, the defendant in a telephone conversation with Sergeant Eastcott of the Royal Corps Military Police Security Section in the Australia Army said that the plaintiff had been beating his son and that he had been stealing from the Army for 18 years. The defendant asked if he would go to her home to discuss the thefts with her. Sergeant Eastcott told her that he would be in to see her straight after lunch.

Then at approximately 1.45 p.m. at the residence of the defendant in Toowoomba and in the presence of the plaintiff's former wife, the defendant made reference to the plaintiff and spoke words to the following effect, that the plaintiff had been beating up his son for a number of years and the welfare authorities had been notified and that the plaintiff's son had been taken away from the plaintiff and was not to be returned. Further, that the plaintiff was a evil man and was very vindictive and that the defendart's life and that of her husband and the plaintiff's former wife were all in danger. Further that the police had raided the plaintiff's residence and had confiscated all of his weapons. Further that the plaintiff had stolen various items from the Army and a list was provided.

This list included Army trunks, dog mesh, white paint for a car, pocket knives, garden gloves, tap fittings, detergent, gas, kitchen wipes, garbage bags, asbestos sheeting and also a dead man's clothing and other personal items. The defendant also said to Sergeant Eastcott that the plaintiff had a phoney South African identification card. She further said to Sergeant Eastcott that the plaintiff had been involved in the theft of some weapons at an armory in Sydney approximately three and a half years ago and that he had helped to sell those weapons. Further, that the plaintiff had told her that he was involved in that theft.

The defendant also said of the plaintiff to Sergeant Eastcott that the plaintiff was particularly violent with his family and that the plaintiff's son, who was a young boy, had black eyes and a lot of bruising.

I heard evidence from the plaintiff and he denied categorically that there was any truth whatsoever in these statements made by the defendant to Sergeant Eastcott. Further, that the plaintiff gave the defendant no basis whatsoever to make these statements to Sergeant Eastcott.

I am satisfied on the evidence that the publication of these words by the defendant is not protected or justified or excused by law.

Of relevance regarding the statements made to Sergeant Eastcott is the fact that the plaintiff held a very responsible position in the Army. He was in control of stores and therefore in the Army the allegation of theft against someone in the plaintiff's position would be a very serious allegation indeed.

To understand the significance of what the defendant did in committing these wrongs against the plaintiff, once these allegations were made to Sergeant Eastcott, he was obliged in the performance of his duties to report these allegations to superior officers, which he did.

Also, in the performance of his duties, he made inquiries of other persons about the general reputation of the plaintiff. He found from those inquiries that the persons thought well of the plaintiff. Needless to say, I was very impressed with Sergeant Eastcott. Needless to say, I was very impressed with the plaintiff and felt great sympathy for him. I also was very impressed with his partner, Ms Saunders and Major Murie.

What Sergeant Eastcott told me was that statements like this are detrimental; they are kept on a file relating to the person against whom they are made and that is in fact what has happened with respect to the plaintiff. Further, that with respect to the future if anything happens, you are suspected even if you are cleared of the allegations.

Evidence before me shows that in 1993 when circumstances arose relating to thefts in the Army, the plaintiff was considered because of these previous allegations made against him and notwithstanding he had been cleared and he was again interviewed on 2 March 1993 and 6 July 1993.

Sergeant Eastcott said, and I accept he would be in a position to know, that these allegations can have a lasting impact. The plaintiff's name, with these allegations, are on computer and when issues arise regarding the plaintiff's dealings in his occupation, access can be made to that information and is likely to be made to that information.

Sergeant Eastcott also referred to a circumstance where, for example, night vision goggles were misplaced. An officer whom Sergeant Eastcott described as “his word was unquestionable” claimed the night vision goggles had been handed back to the plaintiff. The plaintiff claimed they had not been handed back. Later these night vision goggles turned up at the airport in Sydney. The officer had left them in a bag at the airport. Therefore Sergeant Eastcott confirmed the need for a good reputation in a position like that held by the plaintiff because of these misunderstandings that can arise, that is, word against word and imbalance between rank may mean that someone who previously has come under suspicion may not have their word accepted.

I also have evidence before me that the defendant communicated her allegations to other persons. Although, those publications are not the subject of this action, I consider they are relevant to the general circumstances surrounding the publications sued upon by the plaintiff. That is to Captain Sinnick, the defendant in a telephone conversation asked Captain Sinnick to do something about her son. In the telephone conversation the defendant told Captain Sinnick that the plaintiff was beating his son and that she had informed the police and that they conducted a search of the house.

In fact, in about October of 1992, the police did raid the plaintiff's house to confiscate weapons on an allegation apparently made by the defendant's husband that there was fear that the plaintiff would kill members of the family. The defendant told Captain Sinnick that the family were fearful for their lives.

The defendant also told Captain Sinnick that the plaintiff was a bad father and, in Captain Sinnick's words, “carried out a thorough character assassination”.

Although Captain Sinnick encouraged the defendant to seek some form of counselling, Captain Sinnick did inform Major Murie, the then second-in-command of School Army Aviation, of the conversation. Major Murie was a superior to the plaintiff, and had responsibility for the plaintiff.

In a further statement by Captain Sinnick dated 11 June 1993 she makes the point that in the conversation the defendant did not make any allegations in relction to any theft of property. All the allegations were made really in relation to the plaintiff's fathering ability, and his relationship with his family, and that he was not fit to be a father.

Although I may not be putting matters in chronological order, it is necessary to go back even further in time and note that the evidence before me shows that the defendant complained to the Department of Children's Services in early 1992 about the alleged conduct of the plaintiff. It would appear on the evidence that although the plaintiff had a good relationship with the defendant in early 1991 problems arose in the relationship. Exactly what the reasons may have been I do not think anyone will ever know, however the plaintiff had formed a relationship with Ms Saunders and in that relationship his son, Luke, bonded extremely well with Ms Saunders. It would appear that in the past the defendant and her husband had a good relationship with the plaintiff's two children, including the young boy, Luke.

However, at about the Carnival of Flowers time in 1991, when the defendant and her husband were visiting the plaintiff and his partner, and the family that was formed by their relationship, it appeared to the plaintiff that the defendant became antagonistic and the relationship suffered.

The next event, though, is that towards the end of January 1992 the defendant and her husband came to live in Toowoomba. They had previously resided, it appears, in South Australia. This was a surprise to the plaintiff, but nevertheless he visited the defendant and her husband. Notwithstanding the past good relationship, it appears matters soured between the parties because the defendant and her husband appeared to seek to change the young boy, Luke's, loyalties away from the plaintiff and his partner and the children that then made up the family, that is, the plaintiff's partner had children of her own, and together there was a family of about six.

It would appear, on the evidence, that the young boy, Luke, changed in his attitude then, after having contact with his grandparents. The plaintiff was concerned that young Luke's behaviour had changed and that he violently objected to his partner, which had not been the case prior to Luke's grandparents coming to live in Toowoomba. Further, Luke's behaviour deteriorated and he became unsociable, and would scream and even attack the plaintiff's partner, Susan.

If it needs to be said, I accept all the evidence in its entirety that has been put before me. I therefore conclude that the defendant, through her actions, had turned Luke against the plaintiff and the plaintiff's partner.

The plaintiff having sensed that this had caused problems for not only Luke but himself and his partner, told the defendant that he would prevent access unless the defendant's conduct changed. Unfortunately, matters deteriorated and the defendant went on the offensive and engaged the assistance of the plaintiff's former wife. The plaintiff's former wife then mounted a custody application, which was discontinued in early 1993, four days before the Court was to hear the application.

As I have mentioned there is the evidence of the Department of Children's Services being involved on the basis of allegations of child abuse against the plaintiff. While some of these matters may appear on their own to be extraneous to the defamation that occurred on 14 December 1992, those matters place the circumstances in their context, and have particular relevance to the submission made by counsel for the plaintiff that the plaintiff's damages are aggravated in the circumstances. Further, that the plaintiff would also be entitled to recover exemplary damages.

Dealing a little further with the evidence before me, Sergeant Eastcott confirmed that the plaintiff's reputation was damaged after this defamation. He had witnessed snide remarks being made about the plaintiff.

There was also tendered before me copies of annual confidential reports regarding the plaintiff. In the report for the year 1992 to 1993, the assessing officer's comments include the remark that the plaintiff was a mature, dedicated soldier who, despite his suffrage of personal hardships, has continually maintained an above average level of performance.

Further, in the annual confidential report relating to the plaintiff for the year 1993 to 1994, the assessing officer's comments include a reference to the plaintiff being consistent and applying himself to all tasks given, with the additional comment that the plaintiff's personal life has caused a lot of unwanted pressure, which has obviously affected his work performance.

I am satisfied on these confidential reports which have been tendered, including the years 1994 to 1995 and 1995 to 1996, and then 1996 to 1997, that the plaintiff clearly had been affected by this defamation in terms of his advancement. It is clear, and I accept the evidence, that he had the qualifications to warrant promotion, however he was not promoted at a time he ought to have been promoted. I will refer to that a little later when I refer to the evidence of Major Murie.

With respect to these allegations, even the chaplain of the Army was made aware of these allegations against the plaintiff by the defendant. The chaplain, though, found nothing that could substantiate these accusations being made against the plaintiff. Again that is evidence, though, of the extent to which the plaintiff has come under the attention, as it were, of other persons because of the defendant's conduct.

While the chaplain may not have directly been informed of these allegations by Sergeant Eastcott, the defendant did publish to the chaplain the same allegations.

The plaintiff joined Australia's defence forces in 1972 as a recruit. He has spent a significant time in the Army. He was finally made a captain on 18 January 1999. I find that he would have been promoted to a higher ranking, at least a warrant officer, at an earlier point in time than he was and also he would have been promoted to captain at an earlier time than he was.

What has contributed to the hurt felt by the plaintiff is that this defamation was by someone very close to him. Until these events, he thought the defendant was his mother. He does not know whom his natural mother is. He left home when he was about 17 and a half years of age and has had some sadness in his life. He referred in evidence to marrying and having two children surviving. The young boy, Luke, in fact was a twin and the twin brother was lost.

His marriage was dissolved and the persons described as the grandparents, which is the defendant and her husband, had the two children from time to time. He met Ms Saunders and a relationship developed and his life with Ms Saunders and with the defendant and her husband was amiable and things looked like they would be good for the future. Unfortunately, I have described earlier how things turned out.

I accept the evidence of Ms Saunders that the impact upon the plaintiff was significant when the defamation occurred. Not only was the raid by the police a significant event for the plaintiff, the thought that he was the victim of this terrible wrong committed by the defendant when she made the allegations to Sergeant Eastcott even further affected him. I accept the evidence of the plaintiff that he was shocked and humiliated by this defamation.

He referred to theft being an abhorrent crime in the Army and aware that it would be damaging. He was shattered. His integrity was important to him because he had made the Army his life and it was very hard for him to let due process take place. He also felt superiors were looking at him suspiciously and I am satisfied that his thoughts in that respect were well-founded because of the evidence of Sergeant Eastcott and Major Murie.

He referred to the importance of trust in the Army and that self-doubt can be destructive. He also saw evidence that he was not freely accepted as he was and people were not as friendly as before. His relationship with his partner was affected and he turned to drink and his sleep was affected. The effect was so significant because he felt he could not control what was happening but he would even work back so he would not go home. Sadly, he even contemplated doing himself in.

I accept all of that evidence. I have no doubt that this defamation has had a significant impact upon the plaintiff. I will refer to authorities soon ragarding what damages should do in a case like this.

To show the character of the plaintiff, it is important to refer to the fact that he turned his attention to study in the area of occupational health and safety. The effect of this was to help him to get out of the quartermaster's area where these suspicions and doubts obviously were lingering. He could see his career was in tatters and that his career would go nowhere. I am satisfied that his promotional prospects were reduced.

He took on this tertiary study. Major Murie encouraged him to do that and, as a consequence, as confirmed by Major Murie, the plaintiff was able to avoid, to some measure but not entirely, the damage done to his promotional prospects. I refer to this because it demonstrates, in my opinion, that in no way can it be suggested that the plaintiff is not a genuine and bona fide person. He has been significantly affected by these events and the effect was not even over during the course of his giving evidence. I observed the emotion rising in him on several occasions as he tried to give his evidence in this court.

In money terms, of course, the differences between particular levels could amount to anywhere between $8,500 to $10,000 that is, levels of authority in the Army. The best estimate that can be made is that he has been held out for at least two to three years from obtaining the rank of captain. He did experience, from one superior officer, indications that the allegations had not been put aside.

There has been no retraction or apology from the defendant. He has been very personally affected by someone he loved and trusted. It has affected his family. Ms Saunders gave evidence that the police raid was very traumatic for not only herself and the children in the family but for the plaintiff. This trauma again occurred when the allegations the subject of this action were made.

I have referred to Major Murie. In fact, he retired on 1 May 1998. He had been with the Army for over 25 years and 20 of those years were with a commission. Before these allegations arose, his opinion of the plaintiff was that the plaintiff's service was exemplary. The plaintiff held a very responsible position in a very large undertaking and performed those functions to Major Murie's satisfaction so much so that the plaintiff was awarded “Soldier of the Year” for the year ended 1991. This was awarded to him in 1992. Major Murie made the point that this was an award that was not just given out for the sake of giving out an award. It was something, I infer, that must be earned.

He became aware of the problems the plaintiff was having with the custody dispute in early 1992. He also was aware of the October 1992 police raid. Further, in December 1992, he was contacted by Sergeant Eastcott with respect to these allegations, the subject of this action. In fact, Sergeant Eastcott's evidence was that he searched the house of the plaintiff. This was the instruction by Major Murie to Sergeant Eastcott that there be a search immediately. Therefore, it can be seen the allegations were treated seriously.

In fact, Sergeant Eastcott's evidence was that he told the plaintiff that he could obtain a search warrant if he wished. He came to the house unannounced. The plaintiff co-operated and allowed the search. Nothing whatsoever was found to justify the allegations made by the defendant. A protective suit was found. However, the plaintiff properly had this recorded for it to be in his possession.

Major Murie confirmed that the two things that are very important in the Army are truth and trust. If one is considered a thief, then that person is held in low regard. Further, the peer group can bring significant pressure upon such a person. He confirmed that it takes years for accusations to diminish and they sometimes never do. He also confirmed that, after these allegations were made by the defendant against the plaintiff, some people were vilifying the plaintiff.

He confirmed that, from time to time, he found the plaintiff to be in tears. Major Murie said that some of the people that did vilify the plaintiff were superiors who should have known better. He confirmed that, for the plaintiff's sake, the plaintiff made the right choice to try and move sideways and then up.

He confirmed in evidence that the plaintiff should have been promoted earlier than he was. He confirmed that there will always be the question mark over the plaintiff. In that respect some of the reasons behind an award of damages is relevant.

In Carson v. John Fairfax & Sons Limited 1992-1993, 178 Commonwealth Law Reports, page 44 at page 60, Mason CJ, Deane J and Dawson J and Gaudron J said:

Further in Carson, Brennan J, as he then was, at page 70 said:

Dealing with aggravated damages, I note the observations of the Court of Appeal in Timms v. Clift, 1998 2 Queensland Reports, page 100 at page 104 where the Court supports the view that aggravated damages need not be assessed as a separate item and ought to be assessed with the general damages being compensatory in nature. Exemplary damages can be awarded as a separate item.

With respect to exemplary damages, although the limitations placed upon awards of damages referred to in Rookes v. Barnard and Others, 1964 Appeal cases 1129, is not the common law in Australia, the House of Lords' reference to exemplary damages at page 1128 is appropriate in the present matter. That is, that in a case in which exemplary damages are appropriate, although the House of Lords were referring to a jury being directed in a particular manner, if the sum the jury has in mind to award as compensation is inadequate to punish the defendant for his outrageous conduct or to mark the jury's disapproval of such conduct and to deter the defendant from repeating it, then the jury could award a larger sum.

I do not take this to mean that the award for exemplary damages is to be included in the figure for compensatory damages in terms of the law in Australia.

There are numerous principles that one might extract from the authorities regarding aggravated damages and these are conveniently set out in the work of Gillooly, The Law of Defamation in Australia and New Zealand at pages 282 to 291.

I am satisfied on the evidence that the plaintiff has suffered personal distress and hurt by the publications by the defendant, that the harm that has been done to him has not only been personal, but also has been damaging to his occupation, an occupation that values truth and trust and justifies reparation and finally that his reputation ought to be vindicated. This is particularly so because I am satisfied on the evidence that other people in positions of authority and others generally have, because of this defamation, had a different attitude about the plaintiff, an attitude, I should hasten to say, is not justified whatsoever.

In my view the sum awarded must at least signal to the public the vindication of the plaintiff's reputation. In my opinion this has been a malicious defamation on the part of the defendant. The evidence satisfies me that the defendant tried through allegations to the Department of Childrens Services and then through her husband, through allegations made to the police, to damage the plaintiff to get the defendant's way with respect to the plaintiff's children and in particular the young boy, Luke.

I am satisfied that the defendant, not having satisfaction through those two attempts, then in a most malicious way attacked the plaintiff at his place of work, a place where he could be vulnerable and indeed he was vulnerable and has suffered significantly.

These losses, in my view, are aggravated because of the nature of the allegations; that is, they were allegations of dishonesty and child abuse, allegations that experience tells one are very difficult to refute and which the evidence shows have lingering consequences.

I am also satisfied that the damages are aggravated because the attack was made upon the plaintiff to his employer whom the defendant, I find, would reasonably know would treat the allegations seriously and indeed they did.

The damages are aggravated because of the plaintiff's previous good character and the baselessness of those allegations and the maliciousness of the defendant's conduct. It is clear there was this campaign against the plaintiff. On the evidence, the defendant engaged the plaintiff's former wife to assist in the campaign.

It is evident from the custody proceedings brought by the plaintiff's former wife, discontinued four days before the hearing, that the defendant was conscious of using the legal system to cause the plaintiff trouble and then use the Army system, if I may describe it as such, to cause the plaintiff further trouble.

The damages are particularly aggravated because of the relationship between the parties in that the parties were close, to all intents and purposes, and as far as the plaintiff was concerned this was his mother, who then was causing him significant difficulties in his occupation, an occupation he had made his life.

While an apology itself may not aggravate damages, the fact is that the proceedings were defended and then the defendant took her file away from the solicitors representing her, and on the evidence I infer left no forwarding address as a deliberate attempt to make life difficult for the plaintiff in the pursuit of these proceedings.

The defendant has not appointed another solicitor to represent her, and has left the matter to proceed as it has to the final conclusion before me.

While one might compare a publication in a newspaper, and the publication made in these circumstances, and agree a publication in a newspaper is more damaging because of the potential for a newspaper to have a wide circulation nevertheless, in this matter the serious consequences are evident on the evidence. These black marks have remained on the plaintiff's file, and have been insidious in the effect upon him over a period now of over six years.

I have been referred to the awards of damages in Timms v. Clift, and also in the further authority of Kendall v. The North Queensland Newspaper Co Limited (1994) Australian Torts Reports, 81-272. I was not referred to these authorities as necessarily providing a guide, or that similar considerations necessarily ought to apply, but to demonstrate what the Courts did in those matters to the extent that it might be of assistance to me.

I should also add that in terms of the defendant's conduct the statement of Captain Sinnick showed that although allegations were made about the plaintiff's fathering ability, no allegations were made about theft. One would have thought that complaints to the Army would be about theft, if they were legitimate, or actuated by legitimate concern.

As I have said, perhaps on more than one occasion, this was a malicious defamation of the plaintiff. He is entitled to damages and to be vindicated by an award of damages. Further, in my view, the defendant ought to be punished and that the Court must show its condemnation of the defendant's conduct, and to deter the defendant.

In the circumstances, though, there are two defamations, even though they were close in time, as to the first, for compensatory damages, I award $5,000, and as to the second, I award $35,000, making in total a sum of $40,000. For exemplary damages, which I award with respect to the second defamation, I award the sum of $7,500.

Even though arguably exemplary damages ought to be awarded for the first defamation, I consider that the first defamation was in the nature of an initial contact with Sergeant Eastcott, and that the defendant's conduct is to be deplored when she continued offending against the plaintiff when Sergeant Eastcott called upon her at her house.

I should also make the observation that in our law it is unlawful to publish defamatory matter. A person who unlawfully publishes defamatory matter commits an offence. If the person knows the defamatory matter is false, the maximum penalty is two years' imprisonment.

I allow interest on the sum of $40,000 at five per cent per annum from 14 December 1992 to 28 April 1999, which I calculate is a sum of $12,720.

The total, then, inclusive of interest, is $60,220.

I give judgment for the plaintiff against the defendant for the sum of $60,220.

I order the defendant to pay the plaintiff's costs of and incidental to the action, including any reserved costs, to be taxed on the scale in which the sum recovered is in excess of $50,000.

...

I will add to the cost order that those costs be taxed on a solicitor and client basis, and I need not necessarily specify that they are for the whole act on because the order is that the defendant pay the plaintiff's costs of and incidental to the action, including reserve costs, to be taxed on the scale in which the sum recovered is in excess of $50,000, and that those costs be taxed on a solicitor and client basis. So, the intention is that the plaintiff have his costs for the whole action, I make the addition that the costs be taxed on a solicitor and client basis because the plaintiff made two offers to settle the action to the defendant for sums far less than the plaintiff has recovered upon the trial of the action. These two offers to settle were for $17,500 made on 12 October 1994 and $16,000 made on 9 July 1998.