DISTRICT COURT OF QUEENSLAND

Introduction

2. [2]
   In the months of May to July 2008 posters were placed on various noticeboards, posts and other available public surfaces, with an increasing degree of permanent attachment, in the Samford/Ferny Grove area on the outskirts of Brisbane.  The posters were photocopies of a “Crime Stoppers” poster concerning the well-publicised and well-known case of the missing child Daniel Morcombe, to which were added the handwritten words, in large block letters, “YOU WILL BE BROUGHT TO JUSTICE MICHAEL HOCKEN”.

3. [3]
   The plaintiff in this proceeding is Michael Anthony Hocken. On the evidence led at this trial, there was no-one else in the Samford and Ferny Grove area who bore that name at the time.

4. [4]
   As a consequence of the placements of those posters, the plaintiff sued for damages for defamation. The trial was by Judge alone.

5. [5]
   The defendant is a neighbour of, but in relative terms (i.e. beyond recognition) is unknown to, the plaintiff.

Background

6. [6]
   When this trial was called on for hearing at approximately 10:00am on 3 June 2011 the defendant, initially, did not appear, although his name had been called three times outside the court.  Around 10.16 am, the defendant made an appearance.  After an application by the defendant to adjourn the trial, which I refused to accede to, the trial proceeded in the presence of the defendant who was unrepresented.  The defendant had on 15 April 2011 filed in this Court a Notice that he was acting in person and was no longer represented by his former solicitors, Burchill & Horsey Lawyers.  I explained to him that I had allowed an amendment to the Statement of Claim to allege that the relevant publication occurred from in or about May 2008 until July 2008.  I also explained to him certain other aspects of the running of this trial and, during the trial, indicated to him relevant applicable principles, such as the rule in Browne v Dunn.

7. [7]
   The trial lasted for one day. The plaintiff, as well as his supporting witnesses, gave evidence, as did the defendant, after being informed that it was entirely up to him as to what course he wished to take with respect to giving, or not giving, evidence.

Plaintiff

8. [8]
   I accept the plaintiff’s evidence to a large extent. The reservation primarily extends to hearsay statements made by him, particularly concerning the extent of the placement of the relevant posters. Furthermore, while I am not convinced that the whole of the circumstances involving the background, prior to May 2008, between the plaintiff, his wife and the defendant were fully disclosed to the Court, I accept that the events described by the plaintiff for the period from May to July 2008 occurred in the way in which he detailed in evidence.

9. [9]
   The plaintiff, at the relevant times, was a university lecturer who lived at 4 Winchester Avenue, Whites Mountain, in an area more commonly known as Samford.  In May 2008 he was married – and still is – and had four children whom he indicated were from 10 to 16 or 17 years old then.  He had lived at 4 Winchester Avenue for approximately 20 years at the time of trial.

10. [10]
    As at the relevant time of alleged publication he was a university law lecturer with the Queensland University of Technology. He was involved in community activities including: being president of the Progress and Protection Association (which looked after the interests of concerned citizens and published a magazine entitled “The Village Pump” distributed free of charge to approximately 10,000 people); being president of the local rugby league Club; being a volunteer for other organisations such as the local soccer Club (for which he did a lot of maintenance) and the netball association Club. He also played local cricket, stating he was the oldest playing cricketer at the local Club and had published many sporting articles on netball, cricket, rugby league and soccer. Witnesses called on the plaintiff’s behalf did not gainsay any of those assertions about his local involvement.

Defendant

11. [11]
    The defendant lived at the material time at 10 Winchester Avenue.  The street in question was a cul-de-sac.  He was a bricklayer by trade.  He, also, had lived in that street for a very long time.  He asserted in his oral evidence that he had never bothered anyone or had done anything wrong to anyone.

12. [12]
    The defendant’s evidence was short. Although invited to do so, he did not wish to say anything specific about the posters themselves, and it must be remarked that he had not “put” much to any of the plaintiff’s witnesses by way of cross-examination although informed about the rule in Browne v Dunn, apart from challenging the extent of the alleged publication of the posters.

13. [13]
    Hence, the trial could have been run on the basis of the defendant not having contested most of the plaintiff’s evidence, including the evidence led about the defendant’s conviction, on his own plea of guilty, of the offence of unlawful stalking which, from the remarks of Samios DCJ on 7 June 2010, was a plea to the placing of 10 specific posters of exactly the same kind that are the subject of this proceeding in the relevant areas:  see ss 53, 80 and 81 of the Evidence Act 1977.

14. [14]
    But the plaintiff’s counsel decided to cross-examine widely. That cross-examination elicited a specific denial by the defendant that his plea of guilty was an admission that he was the person who caused the posters to be published and specific denials that he was the person observed placing one such poster on a specific noticeboard, such observation occurring as a result of surveillance by the plaintiff and his brother.

15. [15]
    In the end, it seemed to me that the cross-examination was directed towards satisfying the plaintiff that the person for whom he clearly had contempt would himself suffer embarrassment in the witness box. As to how, if at all, it may affect aggravated damages, in particular, I will canvass later.

16. [16]
    Despite the defendant giving evidence to the effect that he was pressured into making a plea of guilty, I accept the evidence led in the trial before me which identified the defendant as the person placing a poster on the noticeboard outside the IGA supermarket in Samford on 5 July 2008.  Consequently, in light of the defendant’s denials that he was the person so observed on that occasion, I do not accept his evidence as to matters generally that arose at trial.  Given that the defendant did take the matter of his sentence on appeal and that it was limited to an application for leave to appeal against sentence – which was allowed (see R v Morris [2010] QCA 315) – I also conclude that his admission of the relevant details of the offence with which he was charged also shows that he was the person involved in the placements of these posters, even without the conclusive effect of s 80 of the Evidence Act.  On any direct conflict between the plaintiff’s evidence and the defendant’s evidence, I prefer that of the plaintiff for the reasons indicated.

Posters

17. [17]
    Trevor Darryl O'Hara was called as a witness by the plaintiff. From May to July 2008, he was the State Manager of “Crime Stoppers” in Queensland.  At the time of the trial he was its Chief Executive Officer.  As explained by him, “Crime Stoppers” is a community volunteer organisation that provides a medium through which the community can share anonymous information about criminal activity in Queensland which is then passed on to the Queensland Police Service for investigation.  It also involves, in cooperation with the Queensland Police Service, providing information for public viewing to generate this response.  With respect to the circumstances of the Daniel Morcombe “case”, “Crime Stoppers” “teamed up” with Daniel’s family and the local police to conduct a campaign to tap available information from the community in order to try to help solve the particular case.  The “poster” produced by “Crime Stoppers” was, according to Mr O'Hara, in existence in the months of May, June and July 2008.

18. [18]
    Mr O'Hara was given a photocopy of one of the posters which the plaintiff had taken down from one of the public places where it had been placed.  Mr O'Hara identified what was part of the original “poster” and what had been added to it.  That poster itself contained the words “Do you have information about the abduction and suspected murder of Daniel Morcombe?”.  That original poster asserted that Daniel was abducted on 7 December 2003 from the Sunshine Coast in Queensland.  The poster contained the “Crime Stoppers” number of 1800 333 000.  What were not on the poster distributed by “Crime Stoppers” were the additional words, “YOU WILL BE BROUGHT TO JUSTICE MICHAEL HOCKEN”.

19. [19]
    The defendant asked no questions of Mr O'Hara.

20. [20]
    The evidence given by the plaintiff concerning publication of the poster, an example of which became Exhibit 3, containing the additional words just mentioned, showed that there was some 50 such posters containing the additional words just discussed that he himself had direct involvement with.  In addition to those, he was shown others that had been taken down by other persons.  He estimated that number as “more than 10”.  Any “estimate” beyond that number came simply from hearsay discussions with other people who were not called as witnesses to give evidence about specific numbers that they themselves observed, although there were a few witnesses who saw a few.  What the plaintiff did do was to photograph various posters at various sites in July 2008.  That bundle became Exhibit 4 and the index to it became Exhibit 5.  The degree of attachment increased over time, from “blue-tac” eventually through to “superglue”, it becoming increasingly more difficult to remove or erase the poster or its contents.

21. [21]
    Exhibit 5 showed 14 different places where the poster had been placed.  They ranged from the abovementioned noticeboard at the IGA Shopping Centre in Samford village to metal light poles located in the car park of that Centre, as well as inside the public telephone booth located near the entrance to that Centre.  Further, they showed the “Farmers Hall” public noticeboard in the main street of Samford.  Another instance was the site of commercial buildings located at the corner of Main Street and Station Street, Samford outside the Samford Village doctors’ surgery and chemist.  There were posters placed at the Samford rugby league Club area as well as the car park near “John Scott Park”.  Other posters were placed facing traffic travelling inbound from Samford to Brisbane at the traffic posts and light posts at the corner of Samford Road and Ferny Way, Ferny Grove.  Lastly, with respect to the Ferny Grove State High School in Tramway Street, Ferny Grove, there were posters placed on the Brisbane City Council bus stop shelter as well as on a Telstra metal box directly across from and facing the entrance to the Ferny Grove State High School, as well as on a metal street post in the same area.

22. [22]
    All posters were placed at a height for easy visual observation and took account of whether the observer was likely to be a pedestrian or a driver. It should also be remarked at this point that 3 of the plaintiff’s children attended the Ferny Grove State High School at the time.

23. [23]
    The plaintiff’s evidence was that the posters, which began to be placed in May 2008, ceased in July 2008 directly after the defendant had been arrested by the Queensland Police concerning the offence for which he later pleaded guilty. The defendant in cross-examination did not challenge the plaintiff on that timing. Rather, the defendant’s challenge was to the extent of the placing of the posters. In particular, the defendant put to the plaintiff that there were “no such hundreds of posters around the place”, to which the plaintiff disagreed, stating that in his “estimate” there were about 150. Allied with the questions about the number of placements, the defendant raised the issue of the plaintiff’s recollection of the one time that the plaintiff said that he had a direct conversation with the defendant prior to mid-2008. The plaintiff’s account was that it was in 2003 and that the defendant was driving a “silver Ute” with the registration “HOB”. The defendant, prematurely, put to the plaintiff that in 2003 he did not own such a vehicle with such registration. The defendant then put to the plaintiff that in 2003 he owned a white Hilux tray back that did not have the registration “HOB”. That suggestion was disagreed with by the plaintiff. The defendant’s own evidence conceded that in or about 2003 there as a conversation that took place on the footpath outside the plaintiff’s residence between the defendant and the plaintiff, regardless of what vehicle he was then driving.

24. [24]
    The defendant used the supposed disagreement between them as indicating that the plaintiff’s evidence regarding the number of posters placed was not reliable. I find that the conversation did take place in 2003 and that it occurred in substantially the way described by the plaintiff, namely, that the plaintiff attempted to engage in normal neighbourly conversation and was met with inexplicable abuse.

25. [25]
    Consequently, I find with respect to the placement of the posters that there were some 60 to, perhaps, 70 placements about which the Court can feel confident. Even at that number, that is a substantial publication, although it was restricted to quite a distinct local area, particularly given the places where I accept the posters were placed in accordance with the bundle of photographs in Exhibit 4.

Background to dispute between plaintiff and defendant

26. [26]
    The reluctance by the defendant to, in any way, elaborate upon the nature of the relationship between the plaintiff and the defendant leaves me somewhat puzzled, particularly given the defendant’s cross-examination of the plaintiff’s wife, Lynell Laurie Hocken. The principal point of contention seemed to be the reason for the presence of horses, which all sides agreed belonged to Mrs Hocken, on the defendant’s property.  From the defendant’s position, those horses had been put on his property as a result of an offer, initially rejected, by him to her, but later accepted.  It included having their feed bins put down there.  Mrs Hocken denied that it ever happened and denied coming down to the defendant’s place and visiting him, “because nothing happened”.  When the plaintiff was cross-examined by the defendant to the same effect, the plaintiff responded that his wife never did put her horses in the defendant’s paddock for a week and that, in fact, they escaped and that she went down and got them back.  Somewhat surprisingly, the defendant did not, in examination-in-chief, state anything more specific than he wanted to be able to say what had happened “over a very long period of time”.  Elaborating on that, he merely stated that he had been accused of a lot of things and “simply by coming involved with somebody who denies that and then says well, you know, and the husband says, well, they never knew me and all this sort of thing” then, if “I didn’t know them why would anybody who didn’t know them do – put all those posters up?”.  He added that “when you go a little bit deeper over the years there has been a lot of things done to me that shouldn’t have been done and, you know, it is very awkward, but it is about all I can say”.

27. [27]
    But, in the end, nobody wished to take this issue any further. Thus, I am left with some lingering concern that an explanation that might have been provided about the true nature about any relationship between the plaintiff, the plaintiff’s wife and the defendant remains unresolvable. Although it does not particularly matter because I have accepted the plaintiff’s evidence as to relevant events in mid-2008 in preference to answers given in evidence by the defendant, the specific reason why the defendant would place such posters in public places concerning the plaintiff must remain a mystery.

Additional witnesses

28. [28]
    The plaintiff called, besides Mr O'Hara, his wife, his daughter, his brother, and two persons who lived in the locality.

29. [29]
    Dealing with the last category of persons first, Linda Joy Zegenhagen was a person who did not know, when she first saw a relevant poster, the plaintiff, although she knew who he was because he played cricket with her eldest son and she had known of his name in the community for a long time. She saw a poster of the relevant kind on the noticeboard of that IGA supermarket at Samford in May 2008. She gave evidence that she knew of the publicity surrounding Daniel Morcombe, being that he had disappeared, he as a young boy and she thought everyone in Australia felt for his family and what had happened to him.  When asked about her reaction on first seeing the poster, she stated that she was horrified and took the poster down to take home to show her husband.  She stated that the noticeboard at the IGA supermarket at Samford was something that you walked past every day as you went to buy bread, milk and the paper.  She gave evidence of the other type of shops in the Shopping Centre, indicating that there would be hundreds of people going through that Centre every day, including the weekends.

30. [30]
    When Mrs Zegenhagen was asked what she thought concerning the plaintiff when she saw the handwritten words on the poster, she stated that she was horrified because she was the mother of two boys and had followed the Daniel Morcombe case.  Nevertheless, she did not think ill of the plaintiff, stating that she “just thought, how could someone put that on a noticeboard” when the plaintiff “was a valued and respected member of our community”.  When asked what she took the poster as a whole to mean, she responded that it was “very vindictive” and that she “just couldn’t believe how someone could do that to someone in our community”, adding that it was “not something you would want to do to your worst enemy” (explaining that people who did not know the plaintiff may have had doubt put in their minds that he may have been guilty).  The defendant declined to ask her any questions.

31. [31]
    Thomas Innes Graham Jessup lived, at the material time, at 5 Winchester Avenue, directly opposite the plaintiff’s residence.  He stated that he did not know the defendant, but had known the plaintiff since moving there some seven or eight years ago.  He also said that he knew the plaintiff to be active in the community.  As for the poster, the only one that he could particularly remember was a poster placed on the noticeboard at the IGA supermarket at Samford.  He stated that he immediately grabbed the particular poster and rang the plaintiff.  His evidence was to the effect that he had seen such posters three times and that what he thought when he saw the poster that it was “pointing the finger at” the plaintiff, “basically accusing him of having something to do” with the substance of the subject of the poster.  When cross-examined by the defendant, he indicated that he believed he saw another one near the “Farmers Hall” on a billboard, and took that one down as well.  As for further posters, he stated that he was not 100% certain, although he did remember collecting other posters but that he could not remember exact spots because “it was quite a long time ago”.

32. [32]
    The evidence given by the plaintiff’s wife and daughter primarily went to the effect of the placing of the posters on the plaintiff’s personal life. Mrs Hocken indicated that she took the poster to mean that her husband was to blame for the disappearance of Daniel Morcombe.  She stated that he had been stressed and tired during the time the posters were placed because he used to get up early to go to retrieve any posters that were up and had stated that he felt embarrassed about them, his upset being something that she could observe.  She also indicated that she had three children at the time at the Ferny Grove State High School.  The defendant did not cross-examine Mrs Hocken about the issues just canvassed.  As for Rebecca Hocken – her mother indicated she was in Year 8 at the Ferny Grove High School at the time – she gave evidence of the placement of posters in the form of Exhibit 3 around the Samford and Ferny Grove area and, in particular, outside the Ferny Grove State High School.  With respect to her father’s reaction, she stated that, when she was with her father and he was driving past and would see such a poster, he would get out and rip it down.  The posters in reference to the Ferny Grove State High School were those stated in locations 11, 12, 13 and 14 in Exhibit 5.  As to the effect of the poster itself, she stated that other students pointed out to her that “was it not her father’s name” that was on the poster, which led to her going to the poster and attempting to scratch out her father’s name, but that she could not do so because it had been “superglued”.  She supported other evidence to the fact that as far as she knew she was a member of the only Hocken family in the relevant area and that her father was the only Michael Hocken that she was aware of.  As to that, she indicated that she took the words at the bottom of the relevant poster to be referring to “my dad”.  Again, the defendant did not cross-examine Rebecca.

33. [33]
    The evidence of the plaintiff’s brother, Philip Roy Hocken, dealt with, primarily, the night of 12 July 2008.  He lived at Mansfield, a suburb of Brisbane.  Hence, he did not see the posters until informed about, and shown one of, such posters by his brother.  His evidence about the surveillance conducted by him and his brother on the night of 12 July 2008 I accept in full.  There was a video camera set up in nearby bushes and a light had been arranged to be left on immediately above the noticeboard outside the IGA supermarket at Samford.  The two brothers had placed themselves approximately 100 metres away, although with a direct sightline to the noticeboard from which they were able to observe it with powerful binoculars, containing a magnification of 75.  I accept the relevant evidence from this witness, and the very similar evidence to the same effect from the plaintiff, that they observed a male person go to that noticeboard place a poster upon it and then be intercepted by them some short time later.  The DVD taken by the video camera, which is Exhibit 6, is supportive of the evidence they gave, although, as an identifier itself, it is not particularly clear.  But I do accept that what is shown on that DVD is a person who was kept under constant surveillance from the time shown of placing the poster on the noticeboard to the time of interception by the brothers.  On the evidence I accept, the defendant was identified by the plaintiff and when it was put to him that he had been putting the poster up, his response was, amongst others, to the effect that, “You prove it”.

34. [34]
    With respect to what the poster meant to him, with the additional handwritten words, the plaintiff’s brother responded that he interpreted it as being that his brother was the person responsible for Daniel Morcombe’s disappearance. Again, the defendant did not cross-examine this witness. It must be stated, at this point, that the plaintiff’s own evidence about this interception on 12 July 2008 was also not the subject of any cross-examination by the defendant, even though I did warn him that evidence that he might wish later to give about the night of 12 July 2008 might be an area about which he might wish to “put” certain things to the plaintiff.

Plaintiff’s evidence about effect

35. [35]
    I have canvassed what the plaintiff’s wife and daughter have said about this issue.

36. [36]
    As for the plaintiff himself, he gave evidence of several people who approached him during the relevant time and asked him, for instance, whether he knew that his name was linked to the abduction and murder of Daniel Morcombe.

37. [37]
    As for its effect personally on him, he said that it was a “pretty bad time for the family” particularly when he was asked by his eldest daughter as to why he was being associated with Daniel Morcombe’s abduction and murder. He indicated that he tried not to talk to his children about it much but that they would know, because he would come home with a heap of posters that he had collected and that they would see them. He stated that his children were upset and, in particular, Rebecca was and that had an adverse effect on him. He stated that his wife was much more concerned with the reputation of the entire family and the effect on the children, being much less worried about him, with the effect of those feelings of his wife meaning that it was very frustrating because the embarrassment was not just to him but it was to his children and to his wife, which was a “terrible feeling”. He felt strongly enough to offer a reward of $5, 000.00 for evidence leading to a conviction of the person responsible.

38. [38]
    When questioned about whether the defendant had ever offered an apology, the plaintiff responded that he had not and that he had also not ever provided an explanation. The plaintiff further stated that he provided a three-page Victim Impact Statement to the District Court for the sentencing hearing by Samios DCJ and that he was present in court when the defendant pleaded guilty to the charge in question.

39. [39]
    As I mentioned earlier, the plaintiff was in court when the defendant was extensively cross-examined by the plaintiff’s counsel on many issues which the defendant had not put in contention in the evidence he gave in examination-in-chief, or in the questions that he asked in cross-examination of the plaintiff and his witnesses. It is impossible for me to judge to what extent the plaintiff felt some personal vindication from the questions asked of the defendant in cross-examination and the responses given, noting that the responses were essentially denials of guilt of the offence with which he was charged and denials of his involvement in the placing of any poster, or being the cause of the handwriting that appeared on the bottom of the poster copy of the original “Crime Stoppers” poster. What could be of concern is that the plaintiff’s counsel put to the defendant that only a “coward” would put up posters of the type in Exhibit 3 outside the school where the plaintiff’s “kids” went, with the defendant giving a reply of non-agreement with “anything that was being put to him”.  In addition, the plaintiff’s counsel put to the defendant that he was “never a big enough man” when he was in Court for sentencing to stand up and apologise, to which the defendant replied, “That’s right.”  Further, when it was put to him that it was a “disgraceful, disgusting thing” that the person who caused the posters to be put placed had done, the defended responded, “Yes”.

40. [40]
    It is impossible for the Court to know to what extent the cross-examination directed to the kinds of matters that I have just canvassed had an effect in terms of heightening the plaintiff’s feelings of vindication. Hence, there being no relevant authority brought to my attention with respect to how this issue might bear upon damages (apart from the defendant’s conduct up to verdict being relevant to aggravated damages), I decline to undertake any further consideration of it.

Publication

41. [41]
    As a result of the surveillance operation, the plea of “guilty” in the District Court and the timing of the cessation of the placement, I find on the balance of probabilities that the defendant caused to be published during the months of May, June and July 2008 on at least 60, and probably several more, occasions a poster in the form of Exhibit 3.

42. [42]
    I further find that the publication was made throughout the Ferny Grove and Samford area in places where the poster could be easily seen and its contents read in full by passing pedestrian or vehicular traffic. Thus, the publication was extensive throughout the area in question, with the effect that it is a reasonable inference to draw that many people would have seen such posters before they were ripped down or otherwise extensively erased by the plaintiff’s acts, or those of his fellow community members.

Was the publication defamatory?

43. [43]
    In circumstances where the plaintiff has not ever been charged with any offence of any kind concerning Daniel Morcombe – although, understandably, interviewed by the Police - the statement of claim alleges that the content of the posters was understood and intended to mean that the plaintiff:

1. (a)
   was involved, in a criminal manner, in the abduction and suspected murder of Daniel Morcombe; and, or alternatively

2. (b)
   was a person who had been involved in criminal activity relating to the abduction and suspected murder of Daniel Morcombe (for which extrinsic facts, pleading a true innuendo, were stated).

44. [44]
    There was no doubt that, with respect to the pleading of the true innuendo, at least the persons who gave evidence were aware of the specific facts concerning the alleged abduction and suspected murder of the pre-teenage child Daniel Morcombe. But it matters little in this case, as the first imputation is, by the words used in their particular context, to a very similar effect.

45. [45]
    As recently remarked by the High Court in Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460, the general test is whether the published matter is likely to lead an ordinary reasonable person to think less of the plaintiff, or whether the likelihood is that the imputations might cause “ordinary decent folk” in the community to think less of the plaintiff:  at 467 [5].  As the plurality judgment of French CJ, Gummow, Keifel and Bell JJ observed, such referees have been described as “of ordinary intelligence, experience and education”, “not avid for scandal”, “fair-minded” and “persons who are expected to bring to the matter in question their general knowledge and experience of worldly affairs”:  at 467 [6].

46. [46]
    Given the terms in which the original “Crime Stoppers” poster was formulated and given the actual wording of the additional handwritten remarks directly referrable to that formulation, it is simple to draw the conclusion that the appropriate referees would think that the person “MICHAEL HOCKEN” is a person who is imputed by the poster to be, at the very least, a strong suspect in the case of the abduction and suspected murder of a child.  Such a conclusion is almost impossible to escape by the use of the words that the person named “WILL BE BROUGHT TO JUSTICE”.  On any basis, because of the fact that this poster, as published by the defendant, was published in mid-2008 and that the child Daniel Morcombe is stated by the poster to have been abducted in late 2003, a background of a widespread community knowledge of the circumstances of the disappearance of that child is readily inferred.  Thus, it is unlikely that even any members of the local community of Samford and Ferny Grove would not understand the published matter.  Hence, it is sufficient for the present purposes to accept that the imputation is that the plaintiff was involved, in a criminal manner, in the abduction and suspected murder of the child in question.  Given that, and applying the test about defamatory matter, it is clear that the publication of the various posters was defamatory of the plaintiff, particularly when the only evidence at trial was that there was only one Hocken family in the area and only one “Michael Hocken” who was known there.  The plaintiff’s wide involvement in the local community would also be an important aspect.  Even for those persons not actually knowing the plaintiff, it would be difficult to escape the conclusion that the published matter was likely to lead them, as ordinary reasonable persons, to think less of the plaintiff.  The evidence of the few people called was consistent with, although unnecessary for, this conclusion.

Damages

47. [47]
    As Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 establishes, purposes served by an award of damages include consolation to the plaintiff for the personal distress and hurt caused by the publication, reparation for the harm done to the plaintiff’s reputation and, finally, vindication of the plaintiff’s reputation:  at 60-61.             

48. [48]
    The Defamation Act 2005, commencing 1 January 2006,  has, as the Objects stated in s 3 indicate, taken steps to provide “fair” remedies for persons whose reputations are harmed by the publication of defamatory matter:  see paragraph (c).  To this end, both s 34 and s 35 have particular resonance in this case.

49. [49]
    Section 34 of the Defamation Act states that, in determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is “an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded”.  Section 35 then goes on, particularly by s 35(1), to state that unless the court otherwise orders under s 35(2), the “maximum” amount of damages for non-economic loss that may be awarded in defamation proceedings is that sum which is adjusted in accordance with s 35 from time to time.  By a declaration pursuant to s 35(3) of the Defamation Act gazetted on 25 June 2010, on and from 1 July 2010 the maximum amount of damages that may be awarded for non-economic loss in a defamation proceeding “shall be” $311,000.00:  see Queensland Government Gazette No. 64, at p 814.

50. [50]
    Section 35(2) of the Defamation Act states that a court may order a defendant to pay damages for non-economic loss that exceeds that amount if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant “an award of aggravated damages”.

51. [51]
    It is also important to note that s 36 of the Defamation Act states that, in an award of damages for defamation, the court is to disregard the malice or other state of mind of the defendant at the time of the publication of the defamatory matter to which the proceedings relate, or at any other time, except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff. 

52. [52]
    Despite the submission that the capping (that s 35 of the Defamation Act effects) means that there should be scaling of an award in relation to that maximum, the legislation does not contain any terms that suggest the cap is not simply that, namely, a maximum amount that can be awarded.

53. [53]
    In this particular case the cap will not be triggered; but I do not intend to scale the award on the basis of a comparison between the harm suffered by the plaintiff in this case and the harm of the most serious kind, unless required by appropriate appellate authority.

54. [54]
    I have been given very many cases dealing with awards for defamation. None of those cases has a direct comparable quality with this case, either in the kind of imputation proved or in the width of the publication.

55. [55]
    In my view, even though the publication was relatively widespread in the area in question, the plaintiff’s and others’ efforts in removing the offending posters together with the limited area of publication (compared to publications, for instance, in widely circulating newspapers) calls for a fair moderation in the damages to be awarded. I do accept that the defamation was serious, involving the imputation of the criminal conduct alleged, but it is unlikely, given the plaintiff’s standing in the local community, that the actual harm done to his reputation was substantial, even though the personal distress and hurt that he underwent was. Importantly in this case is the need for vindication of that reputation which this judgment effects.

56. [56]
    Taking all the relevant factors into account, I assess the damages for defamation at $50,000.00.

Aggravated damages

57. [57]
    This issue has been canvassed, legislatively, in a reference to it in s 35(2) of the Defamation Act.  But this is not a case in which the cap is of any moment.

58. [58]
    Thus, it is necessary to consider when it is appropriate for aggravated damages to be awarded.

59. [59]
    Some consideration of the approach that should be adopted was undertaken by Nicholas J in Haertach v Channel 9 Pty Ltd [2010] NSWSC 182.  There, by reference to relevant cited authority, he held that in any award of aggravated damages is important to keep in mind that they must be confined to what is truly compensation for the relevant harm to the plaintiff caused by the defendant’s conduct and must not include any element of punitive damages, noting that the conduct for this head must be that which in some way is unjustifiable, improper or lacking in bona fides:  at [121].  Nicholas J further observed that the courts are reminded that, in awarding aggravated damages, the conduct of the defendant which will increase the harm caused by the publication will include a failure to apologise and include the conduct of the defendant right up to the moment of verdict.

60. [60]
    Taking those relevant principles into account, in view of the defendant failing to apologise, not indicating express remorse when pleading guilty to a criminal charge involving 10 placements of the relevant poster and continuing to deny any involvement with the publication of the defamatory matter right up to, and including, oral submissions made in this case, an appropriate grounding has been laid for the awarding of aggravated damages.

61. [61]
    An appropriate sum in this case would be $25,000.00, bearing in mind the exclusion of any possible award for exemplary or punitive damages and a requirement to disregard malice, or other state of mind, of the defendant except to the extent that that malice or other state of mind affects the harm sustained. In this case, there is clearly a level of vindictiveness that would bring these circumstances within that last mentioned exception, but, obviously, only to the extent that it has generated harm.

Interest

62. [62]
    Interest has been sought by the plaintiff pursuant to s 47 of the Supreme Court Act 1995.

63. [63]
    There is no reason not to grant interest. It should date from the filing of the Claim on 15 October 2008 to the date of judgment in this proceeding at the rate of 5% per annum on the total award of damages.

Costs

64. [64]
    It appears to be clear beyond argument that the plaintiff is entitled to his costs. Nevertheless, s 40 of the Defamation Act contains certain matters that must be considered before an order for costs is made.

65. [65]
    Accordingly, I will, at the time of handing down the judgment, permit both parties additional time, if sought, to file written submissions, if any, regarding costs, and the calculation of the interest component.

Orders

66. [66]
    The orders will be that:

1. The defendant pay to the plaintiff $75,000.00 damages, plus interest of $10,125.00 calculated on that sum from 15 October 2008 at 5% per annum.

2. The plaintiff and the defendant file submissions, if any, concerning costs, by 4pm on 1 July 2011, unless costs orders can be agreed, or ordered, when judgment is given.