Jamieson v Beattie[2005] QDC 405

DISTRICT COURT OF QUEENSLAND

INTRODUCTION

1. [1]
   The plaintiff, William Jamieson, a semi-retired accountant, asserts that he was defamed in three letters sent at different times between 23 July 2002 and             12 December 2003 to unit owners in the St Tropez North unit complex in Surfers Paradise by the defendant, a real estate agent and St Tropez North body corporate committee member.  The correspondence asserted by the plaintiff to be defamatory was circulated in the context of “electioneering” by the defendant in respect of elections for positions on the St Tropez North body corporate committee.

THE EVIDENCE

2. [2]
   The plaintiff was, at trial, a 55-year-old man.  He was born in Scotland and raised in an orphanage there until he was 15, when he came to Australia.  He subsequently grew up in country New South Wales.  In the late 1960s he joined the Australian Defence Force where he worked as an infantry soldier and subsequently an instructor, and after retirement, remained a member of the Army Reserve.  When he left the army, he went to work for W A Flick & Company (in pest control) and, having received accountancy training in the army, he undertook accountancy duties with W A Flick & Company.  After two years working for     W A Flick & Company, he moved into business for himself in various areas including pest control, heavy transport and a large cleaning business.  The plaintiff came to Queensland, semi-retired, as a single parent with two small children around 1995.  The plaintiff was invited to work for Goodwin Poole, solicitor, undertaking bookkeeping and accounts work.  The plaintiff undertook the budgeting program for the DET program for the long-term unemployed.  In 1998 the plaintiff purchased a unit at St Tropez South where he opened an insolvency practice with a qualified accountant, Ms Glenis Mapp^[1].

3. [3]
   The defendant, Peter Beattie, has been a real estate agent since 1983, and first became associated with the St Tropez unit complex around 1994-1995 when a company whose properties he managed had a major investment in St Tropez North^[2].

4. [4]
   The two buildings, St Tropez North and St Tropez South, are located at 27-35 Orchid Avenue, Surfers Paradise and were built in two stages in about 1983 by the Raptis group.  The buildings appear as one building from the outside but have a legal structure of two separate bodies corporate.  St Tropez North has shops on the ground floor, with offices and residential accommodation above the shops.  St Tropez South has shops on the ground floor, but only residential accommodation above the shops^[3].  Because these bodies corporate share a common area, the committees of the two bodies corporate have had regular interaction^[4] over the years.  The plaintiff was elected chairman of St Tropez South in January 2000^[5] and the defendant had been a member of the committee of St Tropez North since 1994-1995^[6].  The position of the defendant as a committee member of St Tropez North arose because, as a licensed real estate agent, he was the nominee for Sunshine Hill Nominees, the owners of three commercial units in the St Tropez North body corporate.

5. [5]
   It appears that the plaintiff and the defendant came into conflict over issues initially relating to the expenditure of funds for blinds for St Tropez North^[7].  The plaintiff became concerned about a proposal by the then manager which could have raised tax avoidance issues.  Consequently the plaintiff sought a private ruling from the Australian Tax Office on 10 December 2001^[8], with a response being provided from the Australian Tax Office dated 22 January 2002^[9].

6. [6]
   In January 2002 the plaintiff was elected chairman of St Tropez North^[10] and was at that time, therefore, chairman of both the St Tropez North and St Tropez South body corporate committees.  On election to the St Tropez North committee, the plaintiff became concerned about the financial situation at St Tropez North, which appeared to have virtually no funds, in comparison to St Tropez South, which at that time had some $130,000-140,000 in the bank.  The plaintiff was concerned to try and identify whether the poor financial situation was a result of misappropriation or bad management^[11] and he subsequently formed the view that it was mismanagement by the body corporate manager^[12].

7. [7]
   An extraordinary general meeting (“EGM”) of St Tropez North body corporate was called for 17 May 2002 to discuss a proposed transfer of management rights to a company called “S8” and various other expenditure items including painting^[13].

8. [8]
   On 22 April 2002, the plaintiff’s firm, Will Jamieson & Co, consultants and accountants, presented an account dated 22 April 2002^[14] to the St Tropez body corporate which was considered at a combined St Tropez North and St Tropez South committee meeting held on 17 May 2002^[15].  During the course of the committee meeting on 17 May 2002, the minutes^[16] indicate that the engagement of the plaintiff’s company “was questioned” and a motion that the account not be paid by the body corporate until such time as the body corporate was in receipt of payment of the costs by Carla Zampatti Pty Ltd, was carried with a dissenting vote by Mr Herb Baptist.  The plaintiff gave evidence that Will Jamieson & Co had been authorised by the body corporate committee to find out why the body corporate levies had not been paid and to move on by winding up the company of Carla Zampatti if the arrears of levies were not paid^[17].

9. [9]
   A circular to the unit owners of St Tropez dated 3 May 2002 was sent by Herb Baptist.  This circular made reference to various matters including the sale by S8 of its management rights, the proposed removal of Body Corporate Services (the body corporate manager) and their replacement by Body Corporate Consultants, issues in respect of painting and awnings, and the Will Jamieson & Co account in respect of the Carla Zampatti levy arrears^[18].

10. [10]
    The plaintiff responded with a five-page letter to the relevant owners dated 8 May 2002^[19].  In that letter, the plaintiff replied to what he described as the “vexatious misinformed and libellous statements” made by Mr Baptist in his circular of 3 May 2002^[20].

11. [11]
    The proceedings of the EGM of St Tropez North and St Tropez South on 17 May, 2002 were recorded by a dictation machine and a transcript of the meeting proceedings was prepared^[21].  The defendant sought to raise, at the start of the EGM, a perceived conflict of interest by the plaintiff relating to a proposed purchase of the body corporate management rights of the building by a person known to the plaintiff.  The plaintiff explained that he had received a contract in respect of management rights on behalf of a client but that he had no interest in that contract and consequently there was no conflict^[22].  Despite the plaintiff giving a personal undertaking to the effect that he had no interest in the purchase of the management rights and therefore there was no conflict, the defendant refused to accept this undertaking^[23].  The St Tropez North and St Tropez South body corporate committee meeting held on 17 May 2002 (immediately after the EGM that same day) approved the payment of the account from Will Jamieson & Co^[24] upon recovery of the outstanding levies from Carla Zampatti Pty Ltd^[25].  This was a ratification of previous unminuted discussions at the St Tropez North and St Tropez South body corporate committee meeting in December 2001^[26]. 

12. [12]
    In a document dated 1 June 2002 a proposal was put forward by owners to convene an EGM of St Tropez South at which various motions were to be put including “that the current chairman [the plaintiff] be removed from that office and from the committee because of his improper conduct administering body corporate affairs.”  The document also included a motion proposing that Herb Baptist be elected interim chairman of the St Tropez South body corporate^[27].

13. [13]
    In a fax from Dianne Cervetto of Body Corporate Services Pty Ltd to the defendant dated 11 June 2002, Ms Cervetto outlined two proposed motions of an EGM of St Tropez North, namely:

“(1)That the current chairman [the plaintiff] be removed from that office and from the committee because of his improper conduct administering body corporate affairs;

1. (2)
   That Herb Baptist, a letting owner of St Tropez, be elected to the office of chairman of St Tropez North body corporate until the next AGM.^[28]”

14. [14]
    On 18 June 2002, Bruce Thomas Lawyers (then acting for the plaintiff) wrote to Body Corporate Services Pty Ltd seeking “details of the alleged improper conduct^[29]” and on the same date a letter^[30] to each of the owners/proposers requesting “full particulars of :- (a) the alleged improper conduct … and (b) the respects in which it [was] alleged that conduct [was] improper.”  On 24 June 2002 Ms Cervetto, from Body Corporate Services Pty Ltd, wrote to the plaintiff’s lawyers stating that she had “not been provided with details of the alleged improper conduct” and further, that she was “not required [to ask for such details]”^[31].  On 25 June 2002 the plaintiff wrote to “fellow unit owner[s]” in respect of the EGM “requisitioned by Mr Baptist and Mr Moffett” addressing various issues including, in particular, the recovery of outstanding arrears in the amount of $53,000 (clearly a reference to the recovery action against Carla Zampatti Pty Ltd) and pointing out that there had been no cost to the body corporate^[32].

15. [15]
    On 27 June 2002, Mr Baptist wrote^[33] to “fellow unit owners, St Tropez and             St Tropez North” asserting (among other things) that there had been “questionable administration of … body corporate affairs by … Mr Jamieson,” that Mr Jamieson “was exposed as having in his possession a contract of sale or sale offer to purchase the management rights to St Tropez from S8,” that (with respect to Mr Jamieson) “there could have been serious conflicts of interest in decision-making” and describing as “exorbitant”, fees the plaintiff’s firm proposed to charge to pursue outstanding levies without earlier committee approval.  It is submitted on behalf of the plaintiff that this statement (in respect of the recovery of outstanding levies from Carla Zampatti Pty Ltd) was untrue and that the costs had been recovered from the tenant at no cost to the body corporate^[34].

16. [16]
    The EGM of St Tropez South proceeded on 11 July 2002 and the plaintiff was removed as chairman pursuant to a motion “that the current chairman                [Mr Jamieson] be removed from that office and from the committee because of his improper conduct administering body corporate affairs.”  The resolution was carried 22 votes in favour, 4 votes against and 1 abstention^[35].  The minutes of the EGM reveal that a Mr Taradilis “questioned why there were no particulars of the ‘improper conduct’” and why the secretary did not “vet” the motion, nor “refer motions to the committee”.  The minutes record that “the secretary advised that there was no requirement to do so and the adjudicator in is order stated that the substance of the motions were adequately set out, and that owners can choose not to vote or vote ‘no’ if they are not adequately informed.^[36]”  The decision of the adjudicator, P J Hanley, dated 10 July 2002 dismissed an application by the plaintiff and Ms Valerie Lindsay (owner of Lot 23) “for an interim order that the Extraordinary General Meeting scheduled for 11 July 2002 be adjourned” and also dismissed an application that the EGM be declared void for irregularity^[37].  The defendant received a copy of the minutes of this EGM held on 11 July 2002 “within weeks^[38]”, having previously been advised of the outcome by Mr Baptist.

17. [17]
    On 23 July 2002, the defendant and Herb Baptist sent a letter^[39] to owners of            St Tropez North entitled “Important information for owners of St Tropez North – Extraordinary General Meeting 9 August 2002” the contents of which are asserted by the plaintiff to be defamatory and are referred to in the Amended Statement of Claim as “the first publication.”

18. [18]
    On 2 August 2002, the defendant sent a further letter^[40] to St Tropez North owners headed “Urgent information” and this letter is described in the Amended Statement of Claim as “the second publication.”

19. [19]
    On 9 August 2002, at the EGM of St Tropez North the plaintiff was removed as chairman pursuant to a motion which asserted “that the current chairman          [Mr Jamieson] be removed from that office and from the committee because of his improper conduct administering body corporate affairs.^[41]”

20. [20]
    On 11 August 2002, the plaintiff wrote to the defendant seeking a retraction of what was described as “defamation^[42].”  The relevant letter^[43] is dated 11 August 2003, but the plaintiff gave evidence that it was, in fact, sent on 11 August 2002^[44].  The defendant denies having ever received that letter^[45].  It does not appear in any event that the defendant has ever resiled in any way from the alleged defamatory conduct.

21. [21]
    On 12 December 2003, the defendant sent a letter^[46] to owners in St Tropez North in respect of upcoming elections at that time.  This letter is described in the Amended Statement of Claim as “the third publication”.

22. [22]
    On 5 January 2004, the plaintiff commenced proceedings in this Court seeking damages for defamation.  The defendant subsequently wrote on 30 June, 2004 to the secretary, St Tropez North body corporate^[47], again canvassing issues in respect of the plaintiff and a dispute about painting of the building.  It is submitted on behalf of the plaintiff that this correspondence is a continuation of earlier defamatory correspondence and, as a consequence, is relied upon as a basis for aggravated damages.

23. [23]
    On 19 July 2004, the plaintiff sent a letter^[48] to Crowther Lawyers, solicitors for the defendant, enclosing a copy of the letter of 30 June 2004^[49] and requesting a “complete apology and retraction of the allegations made.”  The evidence does not reveal any response to that correspondence, and it is apparent that no retraction has ever been made, nor any apology offered, by the defendant.

THE LAW

24. [24]
    It is clear that for a publication to be defamatory, the plaintiff must be clearly identifiable.  Each defamatory imputation in a publication is a separate cause of action, and a defamatory imputation may be conveyed by the natural and ordinary meaning of the words comprising the matter complained of, or may be conveyed by insinuation as well as by direct statement^[50].

25. [25]
    It is a question of law as to whether a specific matter complained of is capable of conveying the imputation or imputations pleaded, but it is a question of fact as to whether or not a particular publication is defamatory.  The relevant test is whether:

1. (a)
   the ordinary reasonable reader would, in fact, have read the matter complained of as conveying the imputations pleaded; and
2. (b)
   that reader would, in fact, have understood such imputations as being such as to cause ordinary decent folk in the community, taken in general, to think less of the plaintiff^[51].

26. [26]
    The Court is not bound to construe the language of the alleged defamation literally in determining whether, in fact, it conveys the imputations pleaded^[52].

THE DEFENCE

27. [27]
    The defendant acknowledges publishing the three letters forwarded to other owners in St Tropez North body corporate on 23 July 2002^[53], 2 August 2002^[54] and 12 December 2003^[55].  The three publications clearly identify and refer tot eh plaintiff.  The defendant denies the pleaded defamatory imputations in respect of each of the three publications^[56].  In the alternative, it is submitted on behalf of the defendant that if the publications, in fact, convey defamatory imputations, then the defendant “should be excused from publishing defamatory matter” by reason of s 16(1)(e) of the Defamation Act (Qld) 1889.  Section 16(1)(e) relevantly provides:

“(1)it is a lawful excuse for the publication of defamatory matter -

…

1. (e)
   if the publication is made in good faith for the purpose of giving information to the person to whom it is made with respect to some subject as to which that person has, or is believed, upon reasonable grounds, by the person making the publication to have, such an interest in knowing the truth as to make the person’s conduct in making the publication reasonable under the circumstances.”

28. [28]
    Section 16(2) of the Defamation Act (Qld) 1889 relevantly provides that:

“(2)For the purposes of [s 16], 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.”

29. [29]
    Section 17 of the Defamation Act (Qld) 1889 provides:

“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.”

APPLICATION OF THE LAW TO THE IMPUGNED PUBLICATIONS

The First Publication – Letter to Owners in St Tropez North Body Corporate - 23 July 2002

30. [30]
    The first publication is the letter^[57] dated 23 July 2002 forwarded under the hand of Peter Beattie and Herb Baptist to the owners of St Tropez North^[58].  The imputations asserted by the plaintiff are as follows^[59]:

1. (a)
   the plaintiff had been found guilty of “improper conduct” and had been removed from office because the alleged “improper conduct” had been proven;
2. (b)
   the plaintiff had organised a group of owners (“the Jamieson group”) to support him in “improper conduct”;
3. (c)
   the plaintiff, if not removed as chairman, would continue to engage in “improper conduct”;
4. (d)
   the plaintiff ought to be removed as the chairman as the plaintiff could not be trusted with the body corporate funds;
5. (e)
   the plaintiff was dishonest in his conduct;
6. (f)
   the plaintiff was of bad character;
7. (g)
   the plaintiff lacked moral probity; and
8. (h)
   the plaintiff was corrupt.

31. [31]
    It is submitted on behalf of the plaintiff that the context of this publication is as follows:

1. (a)
   the letter was to the owners of St Tropez North (some 40-odd people);
2. (b)
   the letter followed the defendant’s proposed motion for the EGM of St Tropez North which stated “that the current chairman [the plaintiff] be removed from that office and from the committee because of his improper conduct administering body corporate affairs”^[60], which the defendant did not particularise to the recipients of the letter of 23 July 2002;
3. (c)
   the letter was sent by the defendant as part of his electioneering for office holders and to get the recipients to vote in favour of his motion to remove the plaintiff as chairman^[61].
4. (d)
   the letter was intended to advise owners of St Tropez North what had happened at the St Tropez South EGM (the removal of the plaintiff as chairman of that committee) in order to persuade the recipients of the letter of 23 July 2002, without being advised of any particularised impropriety, to also remove the plaintiff as chairman of St Tropez North^[62].

32. [32]
    In my opinion, the defamatory imputations pleaded and set out above, do clearly arise from the publication of 23 July 2002.  It is submitted on behalf of the defendant that the words used did not in any way infer that there had been a finding or hearing in relation to the plaintiff in respect of “improper conduct” nor that such conduct had been proven.  In my view, such a submission is completely insupportable given, in particular, the text on page 2 of the letter of 23 July 2002^[63] under the heading “Re Motion 2 – removal of current chairman” which states, “You may or may not be aware the then chairman, Mr Will Jamieson, was removed from office, because of improper conduct, at the recent EGM of St Tropez (South) held on July 11^th 2002.”

33. [33]
    It is submitted on behalf of the defendant that if (as I have found) there are defamatory imputations arising from the publication of the letter of 23 July 2002, then the defendant is entitled to the defence available under s 16(1)(e) of the Defamation Act (Qld) 1889, i.e. that the owners of units in St Tropez North had an interest in knowing that the chairman of their committee had recently been removed as chairman of the committee of St Tropez South for the same reason (i.e. “improper conduct”) as was contained in the motion put forward by the defendant in respect of the upcoming St Tropez North EGM.

34. [34]
    The difficulty with this submission on behalf of the defendant is the way in which the information is sought to be communicated to the recipients of the letter of 23 July 2002.  The letter asserts, clearly, that it was “improper conduct” which had caused the plaintiff to be removed from his position as chairman of St Tropez South, and, by implication, that the same “improper conduct” (which I note was never particularised at any time) was asserted as the reason for having the plaintiff removed as the chairman of St Tropez North.  The motive asserted by the defendant for these claims was “electioneering^[64]”.  The defendant, in cross-examination, agreed that the object of the relevant part of the letter was “to effectively tell the recipients ‘It’s happened once before, you should vote that way as well’^[65]” and the defendant further asserted that he “wasn’t required” to tell the recipients “what the alleged improper conduct [was].”^[66]  The defendant conceded in cross-examination that what he was doing was passing on his conclusions rather than the information on which persons receiving the correspondence might be able to form their own conclusions^[67].

35. [35]
    It is clear, in my view, that this was not a publication made in good faith and was obviously designed to achieve the defendant’s ends (having the plaintiff removed as chairman from the St Tropez North body corporate committee) by any means whatsoever, including admitted untruths^[68].  In summary, in my opinion, the first publication^[69] carries the defamatory imputations asserted on behalf of the plaintiff, and the qualified protection excuse asserted by the defendant under s 16(1)(e) of the Defamation Act (Qld) 1889 is not made out.

The Second Publication – Letter to St Tropez North owners dated 2 August 2002

36. [36]
    The defamatory imputations which the plaintiff asserts arise from this publication pleaded at paragraph 15 of the Amended Statement of Claim, namely:

“The said words in their natural and ordinary meaning meant and were understood to mean that the plaintiff:

1. (a)
   was of bad character;
2. (b)
   lacked moral probity;
3. (c)
   engaged in illegal activities;
4. (d)
   was corrupt;
5. (e)
   had a conflict of interest in acting as chairman for the body corporate in circumstances in which the plaintiff preferred his interests and the interests of others to the interests of the body corporate;
6. (f)
   was party to a contract and had acted in an inappropriate, improper or dishonest way to gain some improper benefit for himself at the expense of the body corporate; and
7. (g)
   should be removed as chairman as the plaintiff could not be trusted with the body corporate funds.”

37. [37]
    It is submitted on behalf of the defendant that the imputations set out above (as pleaded in paragraph 15 of the Amended Statement of Claim) do not arise on a plain reading of the relevant publication.  Again, it is clear, in my view, that the defamatory imputations arise from the relevant correspondence and, as submitted on behalf of the plaintiff, “the tenor of the letter insofar as it relates to the plaintiff, is one of impropriety on his part in body corporate affairs,” and asserts “the need to remove [the plaintiff] from office.”^[70]

38. [38]
    It is submitted on behalf of the defendant that the defence of qualified protection^[71] is made out.  Although it is unarguable that the defendant was entitled to communicate information to the St Tropez North owners, the publication was, in my view, clearly not made in good faith, but was again part of the electioneering^[72] campaign by the defendant in which he was plainly prepared to use any means to achieve what he saw as the appropriate ends (i.e. the removal of the plaintiff from the position of chairman of St Tropez North body corporate committee).

39. [39]
    It is submitted on behalf of the plaintiff^[73] that the defendant “could not have reasonably held the view that the plaintiff, as only one committee member, was responsible for the failure to repair the roof when that motion was put to an EGM and defeated by lot owners^[74]”, similarly, in respect of the painting^[75] and further, that the evidence of Ms Cervetto indicates that the defendant could not have held that relevant belief^[76].  It is also asserted by the plaintiff that “the defendant could not have reasonably held the view that the plaintiff was devaluing the value of the owner’s assets^[77].”  I accept these submissions on behalf of the plaintiff.  The defence of qualified protection is clearly not available to the defendant, who has not acted in good faith.  In summary, in my opinion, the second publication^[78] carries the defamatory imputations asserted on behalf of the plaintiff, and the qualified protection excuse asserted by the defendant under s 16(1)(e) of the Defamation Act (Qld) 1889 is not made out.

The Third Publication – Letter to St Tropez North unit owners – 12 December 2003

40. [40]
    The defendant wrote to the St Tropez North unit owners on 12 December 2003^[79].  The plaintiff asserts the following defamatory imputations^[80] in respect of that correspondence:

“(a)the plaintiff was involved in some form of illegal or dishonest activity that would directly diminish the value of St Tropez;

1. (b)
   the plaintiff was responsible for major body corporate spending during the period he was not a member of the committee of St Tropez North, and had been negligent and dishonest with St Tropez owners;

1. (c)
   the plaintiff and the chairman, Warwick Fordham, were conspiring for some illegal or corrupt purpose with the express aim of defrauding owners of St Tropez North;

1. (d)
   the plaintiff had engaged in improper conduct in the past when associated with the committees of St Tropez, and would continue to act improperly;

1. (e)
   the plaintiff could not be trusted with body corporate funds;

1. (f)
   the plaintiff was dishonest in his conduct;

1. (g)
   the plaintiff was of bad character;

1. (h)
   the plaintiff lacked moral probity;

1. (i)
   the plaintiff was corrupt.”

41. [41]
    It is submitted on behalf of the defendant that the defamatory imputations asserted by the plaintiff do not arise on this publication.  However, in my view, it is utterly inescapable that an unsupported assertion that the plaintiff (and another person) had “some type of agenda … to diminish the value of St Tropez North” is a clear and blatant defamation.  The balance of the defamatory imputations asserted above are also, in my view, clearly made out.

42. [42]
    In my opinion, the defence of qualified protection^[81] is, again, not made out.  The letter was not sent for the purpose of giving information to the persons to whom it was addressed, but was conveying the defendant’s conclusions or beliefs about alleged impropriety (rather than the facts on which such a conclusion could be drawn^[82]).  The letter was not a “publication in good faith”^[83] but was part of an electioneering campaign^[84] designed to create bad impressions about the plaintiff^[85].

43. [43]
    I accept the submission on behalf of the plaintiff^[86] that “the defendant could not have believed the plaintiff had been thrown out by ‘all’ owners of [St Tropez North]” as this was untrue, and the defendant also could not have believed, and had no basis to believe, that the plaintiff and Mr Fordham had an agenda to diminish the value of St Tropez North^[87].  In summary, in my opinion, the third publication^[88] carries the defamatory imputations asserted on behalf of the plaintiff, and the qualified protection excuse asserted by the defendant under s 16(1)(e) of the Defamation Act is not made out.

SUMMARY

44. [44]
    In conclusion, each of the first^[89], second^[90] and third^[91] publications carries the defamatory imputations asserted by the plaintiff, and the defence of qualified protection has not been made out by the defendant in respect of any of the three publications.

MALICE

45. [45]
    It is asserted on behalf of the plaintiff^[92] that the relevant defamatory publications were published maliciously, in that they were designed to embarrass the plaintiff, to cause damage to his business and personal reputation and to enhance the defendant and his supporters’ opportunity to be appointed to the committee of     St Tropez North^[93].  I accept that none of the three impugned publications sought to provide information, as such, to unit owners, but were part of an “electioneering” campaign, during the course of which the defendant considered that the ends (removing the plaintiff and his supporters from the St Tropez North body corporate committee) justified the means, which included the supply of information and/or assertions by the defendant which were untrue and could not, in my view, have been believed by the defendant to be true.  Malice has, I conclude, been demonstrated by the defendant towards the plaintiff.

DAMAGES

46. [46]
    The plaintiff seeks damages for vindication, and as compensation for injury to his reputation and injury to his feelings by reason of the damage to his reputation^[94].

47. [47]
    It would appear that the three separate defamatory publications were made to approximately 40 unit holders in St Tropez North, which brought responses from some 10 or 12 owners^[95].  I accept that there is evidence that the plaintiff was “emotionally upset”, that he “felt bad”, “embarrassed”, “phobic about walking down the street”, felt “as if [his] whole insides had been taken away from [him]^[96]”, and was “dismayed^[97]”, “gutted” and felt “terrible^[98]”.

48. [48]
    The plaintiff claims general damages for hurt feelings and also aggravated or exemplary damages because of the defendant’s repeated conduct.  I have accepted the plaintiff’s submission that the defendant’s conduct demonstrated malice, and that it was unjustifiable, improper and/or lacking in bona fides.  The conduct was repeated over a significant period of time (from 23 July 2002 until 12 December 2003).

49. [49]
    One aspect of the evidence which does, however, cause me concern in respect of the plaintiff’s behaviour was the rendering of the account from the plaintiff’s firm, Will Jamieson & Co, consultants and accountants, dated 22 April 2002^[99] in respect of the recovery of outstanding arrears by Carla Zampatti Pty Ltd.  The cross-examination of the plaintiff in respect of this exhibit^[100] raised significant issues as to how the quantum and contents of the account was derived.  In particular, the cross-examination indicates that much of what, on the face of the account^[101], appears to be work undertaken by Will Jamieson & Co, was in fact the undisclosed work of a firm of solicitors, Abbott Tout.  Balanced against these particular concerns about Exhibit 17, however, is the fact that the committee meeting on 17 May 2002^[102] endorsed the debt recovery action taken by the plaintiff’s firm, and noted that the account should not be paid until the funds had been recovered from Carla Zampatti Pty Ltd.  Ultimately it appears that it was Carla Zampatti Pty Ltd which met the payment of that relevant account^[103].  The issues related to this account are, in my view, relevant to the quantum of damages, given the plaintiff’s apparent willingness to prepare and provide to the body corporate an account that clearly lacked transparency in its calculations, and the potential for conflict in undertaking this recovery action through the plaintiff’s own firm.  I accept that the potential issue of conflict was resolved by the decision of the committee on 17 May 2002^[104] to confirm the retention of the plaintiff’s firm for the purpose of recovery the outstanding levies, subject to the condition that the body corporate not be out of pocket in respect of that recovery.

50. [50]
    It is submitted on behalf of the defendant^[105] that, if damages were awarded, the appropriate quantum would be no more than $500 for each alleged defamation, and that there should be no aggravated or exemplary damages.  It is submitted by the plaintiff^[106], relying on a schedule of comparative decisions ranging between O'Shea v Everingham in 1985 through to Thompson v Robinson in 2004, that an appropriate quantum would be between $45,000-$60,000 for general damages (representing between $15,000-$20,000 for each publication) and $12,000-$18,000 for aggravated and exemplary damages (representing between $4,000-$6,000 for each publication).

51. [51]
    In assessing damages it is clear that I have to balance the restricted nature of the publication (to some 40 unit owners) against the repeated nature of the publication and the clear potential detrimental effect on the plaintiff both personally and in respect of his business affairs.  I also take into account the concerning aspects detailed above in respect of the account for the recovery of the Carla Zampatti Pty Ltd outstanding levies^[107].  In all of the circumstances, I consider that the appropriate sum for general damages is a sum of $30,000 (representing $10,000 for each publication) and for aggravated and exemplary damages (which I consider are appropriate and justifiable in the circumstances given the demonstrated malice, and the repeated nature of the defamation) an amount of $6,000 (representing $2,000 for each publication). 

52. [52]
    In arriving at this figure for general damages, I have been guided, in particular, by the decision in Kilpatrich v Van Staveren & Chubb Security Australia Pty Ltd^[108], which had a similar level of circulation, seriousness of the defamatory imputations, and a failure to retract or apologise.

53. [53]
    The plaintiff is, in my view, entitled to interest on the compensatory damages at 2% from the date of the first publication (23 July 2002) up to the date of trial^[109], but is not entitled to interest on the aggravated/exemplary damages^[110].  I calculate interest at $1,821.37.

54. [54]
    Accordingly, I give judgment for the plaintiff against the defendant in the sum of $37,821.37.

COSTS

55. [55]
    I will hear the parties on costs.