Shean v Chan[2000] QDC 319

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an assessment of damages in a defamation action. By a plaint filed on 6 October 1998 the plaintiff claimed $250,000 damages for defamation, including aggravated and exemplary damages, from the defendant, together with interest by statute. No Entry of Appearance and Defence was filed, and on 15 December 1998 judgment in default was signed by a Deputy Registrar, that the plaintiff recover against the defendant damages to be assessed. The judgment was signed under r. 144 of the former District Court Rules. That judgment is, for some reason, not on the court file, but a photocopy of the sealed judgment provided to the plaintiff’s solicitors has been provided to the court by those solicitors.

2. [2]
   I proceed on the basis that the plaintiff is confined, so far as material facts are concerned, to the material facts pleaded in the plaint, but that matters which go purely to the quantum of unliquidated damages may be amplified by means of the evidence given in the course of the hearing. Oral evidence was given at the hearing by the plaintiff and some additional witnesses.

3. [3]
   The plaintiff was at all material times a police officer. At about 6 p.m. on 12 November 1995, he was driving south along the South East Freeway through an outer Brisbane suburb when a vehicle which proved to be driven by the defendant overtook him at a high rate of speed: p. 20. The plaintiff was wearing a uniform at the time, but his vehicle was not identified externally as a police vehicle: photo in Exhibit 8. It was, however, equipped with a siren. The plaintiff monitored the speed of the defendant’s vehicle at up to 136 kilometres per hour. The plaintiff subsequently activated the siren and eventually the defendant’s vehicle came to a halt at the side of the road. The plaintiff issued the defendant a traffic infringement notice for the offence of driving a motor vehicle at the speed of 136 per hour in a 100 kilometre per hour speed zone; in ordinary parlance, gave him a speeding ticket. On 6 December 1996 the defendant pleaded guilty to the offence and was punished by the imposition of a fine.

4. [4]
   Prior to that, however, on about 21 November 1995, the defendant made a complaint against the plaintiff by forwarding a statement to each of the Director General, Department of Transport, the Human Rights and Equal Opportunity Commission and the Commissioner of the Queensland Police Service. The statement was written in the Chinese language, and was accompanied by an English translation. A copy of the statement in Chinese is annexure “A” to the plaint; another copy became Exhibit 4. A copy of the English translation was annexure “B”; another copy became Exhibit 6. I was also provided with an English translation of Exhibit 4 by an independent translator: Exhibit 5. By doing this, the statement and translation were published to officers of the Department of Transport, officers of the Queensland Police Service, and officers of the Human Rights and Equal Opportunity Commission.

5. [5]
   In the document the defendant expressed a wish to make a formal complaint against the plaintiff “for abusing his power, for being rude and showing racial prejudice”: Exhibit 6. The defendant claimed that he had been pursued by a vehicle which he had not identified as a police vehicle until it had drawn alongside so that he could see that the driver was a uniformed policeman who was signalling him to stop. He said that after he stopped he asked the plaintiff why the plaintiff was chasing him and that the plaintiff immediately swore at him and made an offensive remark with reference to his apparent ethnic origin. He said that in the course of the conversation “he abused me verbally” and that the plaintiff had refused to listen to an explanation offered by the defendant. He adds that the policeman “smelt like he had had a few drinks too many”.

6. [6]
   Subsequently on 16 June 1996 the defendant wrote to the Queensland Police Service a letter, a copy of which is annexure “C” to the plaint, thereby publishing the letter to officers of the Queensland Police Service. Another copy of the letter is Exhibit 7. The letter is written in English and refers to “the offensive behaviour I experienced” and claimed that he considered the treatment as racial discrimination. This letter is also sued on as defamatory of the plaintiff.

7. [7]
   The complaint to the Queensland Police Service was investigated by a commissioned officer who concluded that the complaint had not been substantiated. The complaint made to the Department of Transport was forwarded to the Queensland Police Service to be handled by that agency (p. 9), and therefore it would have come to the notice of the same officers who had received the complaint direct. There was some investigation of the complaint by the officers of the Human Rights and Equal Opportunity Commission, but that was not taken far because of the failure on the part of the defendant to respond to that agency’s further inquiries: p. 18, Exhibit 8.

8. [8]
   On 25 February 1997, the plaintiff’s solicitors wrote to the defendant asking him to apologise and to retract the allegations: Exhibit 1. No apology or retraction was forthcoming. The failure to apologise is a feature which may be regarded as aggravating compensatory damages: Herald and Weekly Times Ltd v. McGregor (1928) 41 CLR 254 at 263.  The failure to withdraw the complaints, so that they remain on the plaintiff’s record with the Police Service on the one hand and the files of the Human Rights and Equal Opportunities Commission (where there has never been a determination favourable to the plaintiff) is, in my opinion, in the same situation. 

9. [9]
   The plaintiff tape-recorded the exchange between himself and the defendant on the occasion when the defendant was given the speeding ticket. The tape is Exhibit 10 and a transcript Exhibit 9. It is clear from that tape that the matters to which I have referred in the complaint were false. The plaintiff dealt patiently with the defendant, in spite of the fact that the defendant was extremely argumentative, was persistently attempting to raise the spurious defence that he had not been speeding until the plaintiff began to pursue him, and made various other attempts to talk his way out of the ticket, or to persuade the plaintiff to attribute to him a different and lower excessive speed. During the exchange the defendant was consistently attempting to overbear the plaintiff and was persistently uncooperative, failing to respond to numerous requests to produce his driver’s licence or to state his full name and address, to the point where the plaintiff had to threaten to arrest him for failing to provide his name and address in order to persuade him to produce the licence. Indeed, my impression from the tape was that the plaintiff displayed considerable patience when faced with a very difficult and uncooperative motorist.

10. [10]
    The statements are alleged in the plaint to be defamatory of the plaintiff, and my understanding of my function when assessing damages is that I simply proceed on the basis that they were, although if it were necessary for me to make a finding on the point I would find that they were defamatory. It is also alleged that the defendant published the statement in contumelious disregard of the rights of the plaintiff; particulars of this which are pleaded are that the defamatory materials were published falsely and maliciously, that they were published in a dishonest attempt to secure the discontinuance of the proceedings against him for the offence, and that the defendant had failed to apologise to the plaintiff. Again, I think the correct approach is for me to proceed on the basis that that allegation is correct, but if it were necessary for me to make a finding on this matter, I would make a finding that the allegation is made out.

11. [11]
    One classic statement of the basis on which damages for defamation are assessed is found in the judgment of Windeyer J in Uren v. John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 150:

“When it is said that in an action for defamation damages are given for an injury to the plaintiff’s reputation, what is meant?  A man’s reputation, his good name, the estimation in which he is held in the opinion of others, is not a possession of his as a chattel is.  Damage to it cannot be measured as harm to a tangible thing is measured.  Apart from special damages strictly so called and damages for loss of clients or customers, money and reputation are not commensurables.  It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation.  He gets damages because he was injured in his reputation, that is simply because he was publicly defamed.  For this reason, compensation by damages operates in two ways – as a vindication of the plaintiff to the public and as consolation to him for a wrong done.  Compensation is here solatium rather than a monetary recompense for harm measurable in money.  The variety of the matters which it has been held may be considered in assessing damages for defamation must in many cases mean that the amount of a verdict is a product of a mixture of inextricable considerations.  One of these is the conduct of and the intentions of the defendant, in particular whether he was actuated by express malice.”

On p. 151 His Honour added:

“Damages being at large, it became in time indisputable that a jury could in all cases consider not only what the plaintiff should receive but what the defendant should pay”. 

12. [12]
    Damages for defamation are therefore damages payable because the plaintiff’s reputation has been injured, and include an element of vindication for the plaintiff: Carson v. John Fairfax & Sons Ltd (1993) 178 CLR 44 at 61.  The amount awarded must be large enough to indicate the falseness of the defamation, so as to protect his reputation in the future. Aggravated damages are awarded where a defendant’s conduct is improper, unjustifiable, or lacking in bona fides and are compensatory because of additional harm suffered by the plaintiff by way of insult and humiliation as a consequence of this, rather than punitive: Lamb v. Cotogno (1987) 164 CLR 1 at 8. A relevant feature here is the failure to apologise and withdraw the allegations when called upon to do so.  Failure to apologise and retract may aggravate compensatory damages: Herald & Weekly Times Ltd v. McGregor (1928) 41 CLR 254 at 263.  In view of the fact that the allegations will remain on the files in the absence of a retraction (p. 14), I think this feature is of some significance in the present case, and justifies some award of aggravated damages.  Aggravated damages should not be assessed separately from compensatory damages: Timms v. Clift [1998] 2 Qd.R. 100 at 104.

13. [13]
    Exemplary damages are essentially punitive, and are intended to punish the defendant for conduct showing a conscious and contumelious disregard of the plaintiff’s rights and to deter the defendant and others from like conduct in the future: Lamb v. Cotogno (supra) at p. 8-9. Exemplary damages may be awarded where a defendant did not have an honest belief in the truth of the matters published, and published the defamation to advance his own interest at the expense of the respondent’s position: Corse v. Robinson (Full Court of Western Australia, Appeal FUL9/97, 8.12.97, unreported). They are commonly awarded in circumstances where a tort involves the abuse of power by the powerful, and that is not a feature of the present case.  The defendant is an individual, and there is no evidence as to his means, at least none which dealt with the issue directly.  The defendant said in Exhibit 6 that he had several thousand dollars in cash in his vehicle at the time, and there was mention of a restaurant in the course of the conversation: see Exhibit 9, p. 7.  There is a public interest in discouraging people who are breaking the law from making false and malicious complaints against police officers who are simply doing their duty, although it is also important to bear in mind that the award should not spill over so as to discourage people who have genuine complaints against the police from pursuing them in the proper way.

14. [14]
    There are a number of features of the publication which are relevant to the assessment of damages. The first is that the publication was to a relatively limited number of people, so that the case is not comparable with a case where a defamatory statement is published in a newspaper. A number of police officers were aware of it: p. 12, 14. On the other hand, the people to whom the defamatory material was published were either people in positions of authority over the plaintiff or people who had the power to investigate the plaintiff, and people who might be expected to take the statement seriously and to investigate the matter, so that potentially the plaintiff was exposed as a result of the making of the defamatory statement to at least some investigation, and potentially some disciplinary action or whatever might be done in accordance with the appropriate legislation by the Human Rights and Equal Opportunity Commission. In fact, because of the presence of the tape recording of the conversation, the plaintiff was able to defend himself from the complaint so far as the Police Service was concerned, although the complaint remains on his record and potentially might be of some significance in the event of his applying for promotion, or if other complaints came to be made against him: p. 14.

15. [15]
    The publication of the material in this way was therefore likely to be troublesome to the plaintiff and I accept that that was intended by the defendant. Indeed, presumably the defendant was unaware that the exchange had been tape recorded, and therefore may have expected that the position would have been even more troublesome and inconvenient to the plaintiff. The allegations made in the defamatory material, particularly the allegations of racial discrimination, were particularly serious allegations to make against a person in the position of the plaintiff, and were allegations which were likely to be taken particularly seriously by the various people to whom the material had been published, particularly the Queensland Police Service, as indeed it was: p. 13. It might otherwise have resulted in successful disciplinary action or some other successful action against him. In these circumstances, they were more serious than a mere personal disparagement, potentially much more serious. They were hurtful and distressing to the plaintiff: p. 24.

16. [16]
    By way of comparable decisions, I was referred to Corse v. Robinson (supra) where an award of $30,000 compensatory damages and $15,000 exemplary damages was not interfered with on appeal.  The defendant sent a letter to the police making defamatory assertions about a trade union official, which letter subsequently came to the attention of a number of other officials within the union.  The letter carried the imputation that the plaintiff was guilty of criminal misconduct.  It appears that there was no further police action, but the matter did come to the attention of the newspapers, although a reference to it in an article was essentially favourable to the plaintiff.  There had been some history of illwill within the union between the plaintiff and the defendant. 

17. [17]
    In Timms v. Clift [1998] 2 Qd.R. 100, the Court of Appeal set aside an assessment of damages by a jury in a defamation action on the ground that the verdict was excessive.  The plaintiff was a police officer and the defendant had sent to a newspaper a defamatory statement alleging that he was using his police position to make a private profit, as a result of which a story about the plaintiff appeared in the newspaper.  The plaintiff sued separately in respect of the publication to the newspaper and by the newspaper, and in respect of each the jury assessed compensatory damages of $7,500, aggravated damages of $60,000 and exemplary damages of $15,000.  The court held that in respect of the first publication where it was necessary to assess damages without regard to the consequences of the republication, because that was the subject of a separate assessment, so that the only relevant communication was to the number of employees at the newspaper company, the award was indefensible.  Reference was made to some other cases where particularly high awards had been made.

18. [18]
    Another recent decision, in a matter something like this, is Stewart-Gray v. Gray (Toowoomba Plaint 163/93, Samios DCJ, 28.4.99, unreported).  In that case the defendant failed to appear at the trial.  The defendant was the stepmother of the plaintiff who was an army officer and made a false complaint to the army about him, alleging that he was stealing from the army and mistreating his children, both matters that were particularly likely to be taken seriously by the army and to prompt an investigation.  The allegations had not been substantiated but there was evidence that they would remain on the army files. Perhaps because it was more difficult for that plaintiff to demonstrate his innocence, it caused a great deal of personal distress to him, and there was objective evidence that the performance of his duties in the army had suffered as a result of his becoming emotionally distressed.  There was also evidence that he had actually lost a promotion opportunity, and consequently lost income.  Compensatory and aggravated damages were assessed at $40,000, together with exemplary damages of $7,500.00.  It seems to me that the effects on that plaintiff were rather more serious and substantial than the effects on the present plaintiff. 

19. [19]
    In all the circumstances I assess compensatory damages (including aggravated damages) in respect of the first defamatory statement (referred to in paragraph 5 of the plaint) at $15,000, and exemplary damages in respect of the statement at $7,500. I assess compensatory damages (including aggravated damages) in respect of the defamatory letter (the letter referred to in paragraph 11 of the plaint) at $2,000, and exemplary damages in respect of the letter at $1,000.

20. [20]
    I will allow interest on the compensatory damages of $17,000 at 2% per annum for a period of 4½ years, making allowance for the fact that the letter was not published until June 1996 and the request for a withdrawal and apology was not sent until February 1997: John Fairfax & Sons Ltd v. Kelly (1987) 8 NSWLR 131;  Thompson v. Australian Capital Television Pty Ltd (1998) 133 ACTR 1. I do not think it appropriate to award interest on exemplary damages, which do not reflect any loss the plaintiff has suffered in being kept out of his money: The Commonwealth v. Murray [1988] Aust.Torts Reports 68,038.   So interest comes to $1,530, making the total assessment $27,030.