DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The plaintiffs claim damages for defamation. The first and second plaintiffs are married to each other. The second plaintiff is the mother and the defendant is the father of a female child born on 17 October 1991.

2. [2]
   The claims for defamation relate to statements alleged to have been made by the defendant to the second plaintiff, her grandparents and her employer to the effect that the first plaintiff is a paedophile and that the second plaintiff was protecting him. By his further amended defence, the defendant:

• denied making the alleged defamatory statements;
• denied the alleged defamatory imputations;
• raised defences of truth and public benefit,^[1] and qualified protection;^[2]
• contended that the alleged publications were made on an occasion and under circumstances when the plaintiffs were not likely to be injured thereby.^[3]

3. [3]
   By his pleadings^[4] the defendant requested that the action be tried by jury. 

4. [4]
   The trial was listed to commence on 18 February 2008. There was no appearance by or for the defendant. His non-attendance was consistent with comments made by him to registry staff in the week preceding the trial.

5. [5]
   The plaintiffs represented by Mr A. M. Hoare of counsel presented their evidence.

Background

6. [6]
   The child was interviewed by the police in the presence of the defendant.^[5]  About September 2000 the first plaintiff was charged with offences relating to the child.^[6]  The charges were later withdrawn, but as Mr Hoare acknowledged there was no evidence as to the reason for that.^[7]  The first plaintiff certainly denied that the allegations were true.^[8]

7. [7]
   The Department of Child Safety conducted an investigation that was completed on 8 June 2007. The Department wrote to the second plaintiff on 18 June 2007 stating:

“The outcome has been recorded as unsubstantiated.  An unsubstantiated outcome means that it has the effect that no harm has occurred to a child/ren or that there is no probability of harm occurring to a child/ren in the future.  This outcome is recorded based on the following:

• Information collected from the interviews which the family indicates that allegations are false.”^[9]

The defamatory statements

8. [8]
   On or about 11 November 2005 at the second plaintiff’s workplace the defendant is alleged to have said to her:

“I’ve got a message for you from your brother.  He wants to know what it’s like to fuck a kid fucker.  I will personally pay to fly your brother down to smash your white picketed fenced house.”^[10]

9. [9]
   The further amended defence filed 4 October 2006 simply denies that allegation. As the denial is not accompanied by a direct explanation for the defendant’s belief that the allegation is untrue, he is taken to have admitted it.^[11]

10. [10]
    Apparently on the same date, namely 11 November 2005 the defendant visited the residence of the second plaintiff’s grandparents to whom I will refer as RW and AW. According to the second plaintiff’s grandmother AW, the defendant had, what appeared to be an audio cassette tape and some documents. He asked her to read the documents and listen to the audio cassette tape, but she declined to do so. On a number of occasions the defendant said to her “[the first plaintiff] is a paedophile”. He also said “How would you like it if one of your children was married to a paedophile?”. The defendant then went downstairs to where the second plaintiff’s grandfather was sitting and made similar statements to him. The second plaintiff’s grandmother was present at that time.^[12]  

11. [11]
    The further amended defence filed 4 October 2006 admitted that the defendant attended the residence of RW and AW on 11 November 2005. However the defendant denied making the statements alleged by the second plaintiff’s grandparents.^[13]  The defendant’s denials are not accompanied by a direct explanation for his belief that the allegation is untrue and accordingly it is taken to have been admitted.^[14]

12. [12]
    On 12 November 2005 the defendant telephoned the second plaintiff’s employer and said that he had a complaint about one of his staff. The employer asked about the nature of the problem and the defendant said “[the second plaintiff] was protecting a child molester”. The employer asked what he was talking about and the defendant said “[the second plaintiff] is protecting a child molester”. The employer asked the defendant why he was trying to cause problems for the second plaintiff and her husband. He replied “to hurt the bitch”.^[15]  

13. [13]
    On or about 12 November 2005 the second plaintiff was at the Helidon Motel when she received a telephone call from the defendant. During the conversation the defendant said:

“You will pay for what you have done … I am printing flyers as we speak saying that your husband, [the first plaintiff], is a paedophile … I am first going to hand them out at your work and then call upon all your neighbours … I am printing the pages now.”^[16]

14. [14]
    The defence states:

“The Defendant does not admit the allegations in paragraph 5 of the Amended Statement of Claim on the basis that the Defendant is continuing to conduct reasonable investigations into the truth or falsity of the allegations that the events alleged occurred on 12 November and that the Second Plaintiff was at the Helidon Motel.  The Defendant denies the allegation in paragraph 5 of the Amended Statement of Claim that he spoke the words alleged because the allegation is untrue.”^[17]

15. [15]
    Once again the defendant is deemed by UCPR 166 to have admitted the allegation contained in paragraph 5 of the amended statement of claim filed 9 June 2006.

The defamatory imputations

16. [16]
    In respect of the first plaintiff it is contended by Mr Hoare that the natural and ordinary meaning of the words spoken, meant and were understood to mean that he was a man who:

1. (a)
   was a paedophile;

2. (b)
   was a child molester;

3. (c)
   had or would be engaged in paedophilic behaviour;

4. (d)
   had been or would be a child molester; or

5. (e)
   had engaged or would engage in unlawful sexual intercourse with a child or children.

17. [17]
    In respect of the imputation referred to at paragraph 16(e) Mr Hoare relied upon the words spoken by the defendant at the second plaintiff’s workplace on or about 11 November 2005.^[18]

18. [18]
    Mr Hoare conceded that the imputation depended on a literal interpretation of the words spoken. In the circumstances he did not press that particular implication.^[19]

19. [19]
    In respect of the second plaintiff Mr Hoare contended that the words spoken, meant and were understood to mean that she was a woman who was:

1. (a)
   married to;

2. (b)
   in a sexual relationship with; or

3. (c)
   immorally in a sexual relationship with;

a man who:

1. (a)
   was a paedophile;

2. (b)
   was a child sexual molester;

3. (c)
   had engaged or would engage in paedophilic behaviour;

4. (d)
   had been or would be a child molester; or

5. (e)
   had engaged or would engage in unlawful sexual intercourse with a child or children.

20. [20]
    Mr Hoare submitted that the imputations were damaging to the second plaintiff because they concerned her husband and:

1. (a)
   her reputation was likely to be injured; and/or

2. (b)
   others were likely to be induced to shun, avoid, ridicule or despise her.

The applicable law

21. [21]
    The law governing this action is the Defamation Act 1889.  The defamatory publications occurred prior to 1 January 2006 which was the date of commencement of the Defamation Act 2005. 

22. [22]
    The term “defamatory matter” is defined in s 4 of the Act:

“4 Definition of ‘defamatory matter’

3. (1)
   Any imputation concerning any person, or any member of the person’s family, whether living or dead, by which the reputation of that person is likely to be injured, or by which the person is likely to be injured in the person’s profession or trade, or by which other persons are likely to be induced to shun or avoid or ridicule or despise the person, is called ‘defamatory’, and the matter of the imputation is called ‘defamatory matter’.

3. (2)
   An imputation may be expressed either directly or by insinuation or irony.”

23. [23]
    The terms “defamation” and “publication” are defined in s 5:

“5 Meaning of ‘defamation’ and ‘publication’

3. (1)
   Any person who, by spoken words or audible sounds, or by words intended to be read either by sight or touch, or by signs, signals, gestures, or visible representations, publishes any defamatory imputation concerning any person is said to defame that person.

Publication

3. (2)
   Publication is, in the case of spoken words or audible sounds, the speaking of such words or making of such sounds in the presence and hearing of any other person than the person defamed, and, in the case of signs, signals, or gestures, the making of such signs, signals, or gestures, so as to be seen or felt by, or otherwise come to the knowledge of, any person other than the person defamed, and, in the case of other defamatory matter, the exhibiting of it in public, or causing it to be read or seen, or showing or delivering it, or causing it to be shown or delivered, with a view to its being read or seen by any other person than the person defamed.”

24. [24]
    The defences pleaded by the defendant require a consideration of the following provisions:

“15 Protection – truth

It is lawful to publish defamatory matter if the matter is true, and if it is for the public benefit that the publication complained of should be made.

16 Qualified protection – excuse

3. (1)
   It is a lawful excuse for the publication of defamatory matter-

…

3. (c)
   if the publication is made in good faith for the protection of the interests of the person making the publication, or of some other person, or for the public good;

…

5. (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, on 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;

…

3. (2)
   For the purposes of this section, a publication is said to be made in good faith if the matter published is relevant to the matters the existence of which may excuse the publication in good faith of defamatory matter; if the manner and extent of the publication does not exceed what is reasonably sufficient for the occasion; and if the person by whom it is made is not actuated by ill will to the person defamed, or by any other improper motive, and does not believe the defamatory matter to be untrue. 

17 Good faith

When any question arises whether a publication of defamatory matter was or was not made in good faith, and it appears that the publication was made under circumstances which would afford lawful excuse for the publication if it was made in good faith, the burden of proof of the absence of good faith lies upon the party alleging such absence. 

20 Trivial matters not in writing

In any case other than that of words intended to be read, it is a good defence to an action for defamation, or a prosecution for publishing defamatory matter, to prove that the publication was made on an occasion and under circumstances when the person defamed was not likely to be injured thereby.” 

Liability

25. [25]
    The question of whether any alleged defamatory matter is or is not capable of bearing a defamatory meaning is a question of law.^[20]  The question whether any defamatory matter is or is not defamatory is a question of fact.^[21] 

26. [26]
    The test for determining the meaning of the words spoken is whether an ordinary reasonable person would understand the words in a defamatory sense.^[22]  Mr Hoare submitted that the defamatory matter alleged serious criminal conduct and accordingly the words spoken were incapable of having any meaning except a defamatory one.^[23]

27. [27]
    There is a presumption that some general damage will follow from the publication of the defamatory matter.^[24]  The plaintiffs may of course lead evidence of any adverse impact upon their reputation.  However, Mr Hoare accepted that the reputation of both plaintiffs has not been diminished “in any person’s eyes”.^[25]

Specific consequences of the defamation

28. [28]
    The first plaintiff states in his affidavit^[26] that:

• He felt worthless as a result of the accusations;
• He became socially withdrawn and believed that his reputation had diminished in the eyes of others;
• He lost his ability to concentrate at work and his productivity diminished;
• He has become hyper-sensitive in respect of his dealings with children as a result of the unfounded allegations that were made and published by the defendant.

29. [29]
    The second plaintiff said in her affidavit^[27] that:

• She became withdrawn in respect of her social activities;
• She became trepidatious in respect of her day to day dealings with work colleagues;
• She became apprehensive about work colleagues knowing of the defamatory matters;
• She felt a need to rebuild her trust and good standing within the workplace.

30. [30]
    The second plaintiff’s employer noticed a marked change in her demeanour following the defendant’s defamatory statements. He said that whereas prior to the incident she had been bubbly and effervescent, she became extremely quiet.^[28]  In fact the second plaintiff left her employment approximately 12 months later.  She was experiencing difficulties in concentrating at work.^[29]

Conduct of the defendant

31. [31]
    The second plaintiff says in her affidavit that the defendant visited her at her workplace on the afternoon of 11 November 2005. He demanded that she pay him $3,508. According to the second plaintiff the defendant insisted that she meet him at her workplace again later that same afternoon.^[30]      

32. [32]
    When the defendant returned later that afternoon he made the defamatory statements alleged in paragraph 2 of the amended statement of claim filed 9 June 2006.^[31] 

33. [33]
    Mr Hoare tendered a transcript of proceedings in the Magistrates Court at Ipswich on 24 March 2006 in which the second plaintiff sought an order against the defendant pursuant to the Domestic and Family Violence Protection Act 1989.^[32]  It appears from the defendant’s evidence in those proceedings that the demand referred to by the second plaintiff may have related to an amount that the defendant asserted was overpaid child support.^[33]

34. [34]
    Mr Hoare submits that the demand made by the defendant illustrates that he was motivated by malice. The demand for money certainly indicates that the defendant may have had an ulterior purpose in making the defamatory statements and shows a lack of good faith on his part.

35. [35]
    Mr Hoare also relied on the defendant’s refusal to apologise to the plaintiffs. He called an employee of the plaintiffs’ solicitors who said that on 18 December 2007 the defendant telephoned the office and indicated that he would not apologise. The defendant stated that he would never apologise to a person who molested a child.^[34] 

36. [36]
    Mr Hoare also submitted that the defendant’s failure to lead any evidence in support of the pleaded defences indicated that the defences were not bona fide.

37. [37]
    I accept that the plaintiff has established the publication of the pleaded defamatory matters. Moreover I accept that the defendant has not established the pleaded defences. Accordingly there should be judgment for the first and second plaintiffs.

Principles applicable to the assessment of damages

38. [38]
    A frequently cited statement of the approach to the assessment of damages for defamation is that of Windeyer J in Uren v John Fairfax & Sons Pty Ltd:^[35]  

“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.” 

39. [39]
    The assessment of damages for defamation is not a question of mathematical calculation.^[36]  In Cassell & Co Ltd v Broome^[37] Lord Hailsham said:

“The whole process of assessing damages when they are ‘at large’ is essentially a matter of impression and not addition”.

40. [40]
    In Carson v John Fairfax & Sons Ltd^[38] the majority justices, Mason CJ, Deane, Dawson and Gaudron JJ said in relation to the purpose of an award of damages for defamation:

“Specific economic loss and exemplary or punitive damages aside, there are three purposes to be served by damages awarded for defamation. The three purposes no doubt overlap considerably in reality and ensure that ‘the amount of the verdict is the product of a mixture of inextricable considerations’. The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant’s personal and (if relevant) business reputation and vindication of the appellant’s reputation. The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant. Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant’s reputation. ‘The gravity of the libel, the social standing of the parties and the availability of alternative remedies’ are all relevant to assessing the quantum of damages necessary to vindicate the appellant.”^[39]

41. [41]
    In assessing damages for injury to reputation the Court must have regard to the serious nature of the imputations. As Samios DCJ said in Atholwood v Barrett:^[40]

“… to be called a paedophile is one of the worst possible things that could be said about someone if it were untrue.”

The assessment must also take into account the limited publication of the defamatory matters. There was no suggestion that any of the defamatory statements were republished and Mr Hoare recognised that the “grapevine effect” did not have any application in this case.^[41]

42. [42]
    Mr Hoare argued that aggravated damages should be awarded because the defendant’s conduct lacked bona fides or was improper or unjustifiable.^[42] 

43. [43]
    The factors that justify an award of aggravated damages in this case are:

• The defendant appeared to have been motivated by an ulterior purpose of extracting money from the second plaintiff. Moreover when asked by the second plaintiff’s employer why he was trying to cause problems for the plaintiffs he relied “to hurt the bitch”.
• The defendant has refused to apologise to the plaintiffs.
• The falsity of the allegations.

44. [44]
    The effect of an award of aggravated damages is to increase the amount for compensatory damages.

45. [45]
    In XL Petroleum (N.S.W.) Pty Ltd v Caltex Oil (Australia) Pty Ltd^[43] Brennan J (as he then was) explained the punitive nature of an award of exemplary damages:

“As an award of exemplary damages is intended to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff’s rights and to deter him from committing like conduct again, the considerations that enter into the assessment of exemplary damages are quite different from the considerations that govern the assessment of compensatory damages. There is no necessary proportionality between the assessment of the two categories. In Merest v. Harvey substantial exemplary damages were awarded for a trespass of a high-handed kind which occasioned minimal damage, Gibbs C.J. saying:

‘I wish to know, in a case where a man disregards every principle which actuates the conduct of gentlemen what is to restrain him except large damages?’

The social purpose to be served by an award of exemplary damages is, as Lord Diplock said in Broome v. Cassell & Co., ‘to teach a wrong-doer that tort does not pay.’”

Quantum decisions

46. [46]
    Mr Hoare referred to the decisions in Kilpatrick v Van Staveren,^[44] Shean v Chan,^[45] and Atholwood v Barrett.^[46] 

47. [47]
    The wide variety of factors that are relevant to the assessment of damages makes a direct comparison with other cases difficult. I note that in Gregory v Anderson^[47] Brabazon QC DCJ said: “Caution has to be used in looking at any other award of damages.”^[48]  

48. [48]
    Nevertheless the awards of damages in other cases may provide useful guidance.

49. [49]
    In Shean v Chan^[49] the plaintiff, a police officer intercepted the defendant’s vehicle for speeding. The defendant made written complaints about the plaintiff’s conduct to the Director General Department of Transport, the Human Rights and Equal Opportunity Commission and the Commissioner of the Queensland Police Service, alleging abuse of power, rudeness and racial prejudice. Apparently unbeknown to the defendant the plaintiff had tape recorded the conversation and was therefore able to establish that the allegations were untrue. In fact, the tape recording showed that the defendant was argumentative, uncooperative and attempted to raise a spurious defence. McGill SC DCJ awarded the plaintiff compensatory damages including aggravated damages totalling $17,000 and a further amount of $8,500 for exemplary damages.

50. [50]
    In Kilpatrick v Van Staveren^[50] the plaintiff, an employee at a mine was wrongly accused of stealing a length of electrical wire. The security manager at the mine sent a letter to the plaintiff’s employer stating that the plaintiff had been found leaving the mine whilst in possession of property from the mine. The plaintiff was awarded $40,000 including $10,000 for aggravated damages together with $10,000 for exemplary damages resulting in a total award of $50,000. Mr Hoare submitted that “There was limited republication, however other workers indicated their knowledge of the matter.”^[51]  However I note that Skoien SDCJ said:

“It is more probable than not that the contents of the letter did not remain confidential to those to whom the letter was published intentionally or to any other person who, in the expected ordinary course of employment, saw it. And, as I have said, it is more probable than not that once interesting information of that type and importance was abroad in Mount Isa it would spread widely.”^[52]  

His Honour referred to evidence that supported that conclusion. The plaintiff suffered emotional and physical symptoms following discovery of the publication of the defamatory letter. According to a medical practitioner the plaintiff suffered a depressive disorder that manifested itself in anxiety, weight loss, sleep disturbance, aggression and increased alcohol consumption. An appeal against the judgment was dismissed.^[53]  However Davies JA, with whom de Jersey CJ and Mackenzie J agreed, said:

“The award for compensatory damages, to include aggravated damages of $40,000 may seem a little high in the light of some authorities put before this court…, but given the serious effect of the defamation on the plaintiff’s health and the conduct of the defendants thereafter, I do not think that it was outside the range of a sound discretionary judgment, or to put it in terms of jury verdicts, such that no reasonable person could have awarded it.”^[54]

51. [51]
    In Atholwood v Barrett^[55] the defendant made serious defamatory statements alleging that the plaintiff, a businessman was the “head of a paedophile ring”, had interfered with a child of the defendant and killed another boy and placed him in a wheelie bin. As a consequence of the publication of the defamatory statements the plaintiff suffered a relapse of depression. It was accepted by Samios DCJ that there had been “a significant grapevine effect in this case.”^[56]  The defamatory statements were made to various people including the plaintiff’s business competitors. The plaintiff was awarded compensatory damages of $100,000 for the defamatory statements alleging his involvement in paedophilia. He was awarded a further $30,000 in compensatory damages for the defamatory statement that he had killed a child and placed him in a wheelie bin.

52. [52]
    In Gregory v Anderson^[57] Brabazon QC DCJ awarded the plaintiff $40,000 including $10,000 aggravated damages. There was no award for exemplary damages. The plaintiff and defendant were members of an association for incapacitated ex-servicemen and women. When the plaintiff was appointed secretary of the association he was provided with a computer. Shortly afterwards he discovered that the computer contained a considerable amount of child pornography. With the full knowledge of the state president and senior members of the committee, the plaintiff made a back-up record of the images on a disk before handing the computer to the police. The plaintiff told a general meeting of the association what he had done. The computer disk was stored at the plaintiff’s house. On one occasion when the defendant visited him, the disk was retrieved and images were displayed on a computer for a very brief period. Upon the return of the computer by the police the disk was destroyed. At a subsequent meeting of the association the defendant made statements that conveyed the natural and ordinary meaning that the plaintiff was a person who enjoyed looking at child pornography. After being asked to apologise, the defendant sent a number of emails to other persons that conveyed a similar meaning. The plaintiff suffered considerable anxiety that resulted in sleep disturbance. He was shunned by people with whom he would ordinarily speak.

Assessment of damages

53. [53]
    In assessing compensatory damages I have had regard to the serious content of the defamatory matter and the considerable distress that it caused to the plaintiffs.^[58]  However their distress seems to have largely abated. I must also have regard to the fact that the defamatory matter was published to a small number of persons who evidently rejected the allegations and there is no suggestion of republication.

54. [54]
    Mr Hoare did not suggest that it was necessary to make separate awards for each defamatory matter.

55. [55]
    In the first plaintiff’s case I have assessed compensatory damages at $25,000. In the second plaintiff’s case I have assessed compensatory damages at $15,000.

56. [56]
    On the evidence presented I am satisfied that the defendant lacked bona fides. On 12 November 2005 when the second plaintiff’s employer asked the defendant why he was trying to cause problems for the second plaintiff and her husband he replied “To hurt the bitch”. Moreover defamatory statements were made following a demand by the defendant for money.^[59]  The defence filed by the defendant alleged that the defamatory matters were true. However the defendant did not appear at the trial to lead evidence in support of that claim. I am satisfied that these matters have increased the distress to both plaintiffs which should be reflected by an award of $5,000 aggravated damages in each case.

57. [57]
    I am satisfied that the defendant’s contumelious disregard of the rights of the plaintiffs make this a suitable case for an award of exemplary damages. In each case I assess exemplary damages in the sum of $5,000.

Interest

58. [58]
    The plaintiffs claim interest on the compensatory damages at two percent per annum from the time of publication of the defamatory matter until the date of judgment. It is appropriate to award interest for that period and at that rate. (2 years 4 months at 2% per annum). This leads to a further award in the first plaintiff’s case of $1,400. In the second plaintiff’s case I assess interest at $930. Mr Hoare accepted that interest is not payable on exemplary damages because they do not reflect any loss suffered by the plaintiff.^[60]

Summary

Accordingly the awards are as follows:

First plaintiff:

Compensatory damages including

$5,000 aggravated damages30,000

Interest at 2% for 2 years 4 months1,400

Exemplary damages5,000

______

$36,400

═════

Second Plaintiff:

Compensatory damages including

$5,000 aggravated damages20,000

Interest at 2% for 2 years 4 months930

Exemplary damages5,000

______

$25,930

═════

Costs

59. [59]
    I will hear submissions in relation to costs.