Supreme Court of WA|2002-09-06|Before: Mr J, Hasluck J

Boschetti v Carr [2002] WASC 211 (6 September 2002)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : BOSCHETTI -v- CARR [2002] WASC 211

Defamation - Assessment of damages - Circulars criticising prominent figures in the crayfishing industry - Defendant's role as a critic of the industry - Whether aggravated and exemplary damages appropriate - Turns on own facts

Rules of the Supreme Court, O 20 r 4(1), O 22 r 3

Lombank Ltd v Cook [1962] 3 All ER 491

Pollack v Volpato [1973] 1 NSWLR 653

Rigby v Associated Newspapers Ltd [1969] 1 NSWR 729

Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497

1 HASLUCK J: The plaintiffs in these proceedings seek relief in respect of certain articles published by the defendant which are defamatory. The proceedings arise out of matters in issue between the parties referrable to the fishing industry. There are two matters before the Court being CIV 2253 of 1998, in which Kimberley Newbold is the plaintiff, and CIV 2254 of 1998, in which John Albert Boschetti is the plaintiff. The defendant in each case, Richard Carr, is liable to pay damages to the plaintiffs pursuant to a judgment by default. The hearing before me concerned the assessment of damages.

2 With a view to avoiding repetition and consequent delay, directions were given at the hearing for evidence in each matter to be received as evidence in the related matter. It will therefore be convenient to deal with both matters in a joint judgment. However, for the sake of an orderly exposition, I will turn firstly to Mr Boschetti's claim. It will be useful to begin by describing the background to the dispute.

3 Mr Boschetti was born in Geraldton in 1939. He finished school in Geraldton at the age of 16 years and commenced fishing as a deckhand in 1958. Some years later he acquired a 29 foot vessel called "The Zeewyk" which he skippered for a number of years. In 1969 he replaced The Zeewyk with a 36 foot vessel called the "Julie Ellen" and since that time he has purchased and operated various vessels. In 1995 he became involved with Batavia Coast Fisheries Pty Ltd as a 10 per cent shareholder. He was also a director and chairman of the Board of that company. He has been a director of the Geraldton Fisherman's Co-operative Ltd for 15 years.

4 He said in evidence that over the many years that he has been involved in the mid-West fishing industry he has worked hard to develop and build his business interests. He has prospered by accumulating big vessels and many cray pots and believes that he has always acted in good faith and with integrity. He said in an affidavit sworn 21 January 2001 that his fleet currently consists of three prawn trawlers, three lobster vessels and one dedicated long line fishing vessel.

5 The defendant, Richard Carr, was born on 22 March 1931 in Geraldton and has been engaged in the crayfishing industry for many years. He entered the industry as a commercial fisherman after leaving school and progressively improved his equipment and skills. It seems that as at 2001 he had three vessels which were being operated for commercial purposes. He has many craypots and in addition to his fishing licences holds a concession which entitles him to fish for sharks.

6 The defendant said in an affidavit sworn 18 February 2001 that he has seen the management of the crayfish industry change from the days when there were almost no management restrictions to an era in which the fishery is now comprehensively managed. He said that he has tried to be an active participant in all of the discussions leading to changes and that he was supportive of management measures which are directed towards preserving and protecting the crayfish breeding stocks.

7 The defendant said in his affidavit that in an earlier era the fleet was much larger and was operated mainly by family units with one boat supporting two or three families. He became concerned at changes to policies and practices which had the effect of reducing the size of the fleet and making it difficult for newcomers to enter the industry. He said that the group of fishermen who are advantaged by changes to the management regime are those who have concessions to fish at the Abrolhos Islands and have very large boats.

8 It seems that the defendant also harboured a concern about the role of an advisory body known as the Rock Lobster Industry Advisory Committee or "RLIAC". This committee is a statutory body whose function is to give advice to the Minister for Fisheries. The defendant was supportive of RLIAC initially but became increasingly concerned about the tendency of its advice to the Minister. In his view, RLIAC favoured changes to the management regime which suited those who had large boats and concessions to fish at the Abrolhos Islands to the disadvantage to those with smaller boats and generally smaller craypot entitlements.

9 I understand from the defendant's affidavit that the fishing season for crayfish is restricted by law from 15 November to 30 June in the following year. All boats in the industry are required to hold a licence to fish in certain zones and are licensed to operate a discrete number of pots. There is a minimum size for crayfish determined by a measurement taken between the creatures carapace and the bony ridge between its horns.

10 For many years, in the early days of the industry, crayfishermen were not restricted in the number of pots which they operated. However, in the 1960s, according to the defendant, that changed when the Fisheries Department fixed the number of allowable pots as part of a strategy to control fishing effort in the catching sector.

11 Initially, the rule was that each boat in the industry was allowed to use three pots for every foot (length) of boat to a maximum of 180 pots. However, the three pots per foot of boat rule was subsequently altered to become the seven and ten rule. The amended rule limited boat size to a length in metres which was not less than one metre for every ten pots nor more than one metre for every seven pots.

12 According to the defendant, to increase pot usage beyond the seven part of the seven and ten rule required the purchase of a new, larger boat. The defendant said in his affidavit that the seven and ten rule was abolished in 1997 as an initiative of RLIAC with the result that thereafter there was no restriction on boat size. There is and has since before 1997 been a rule restricting the maximum number of pots attached to any one boat to 150.

13 It seems that RLIAC organises meetings of crayfishers before each season commences and these meetings are referred to as "Coastal Tours". The meetings are held at selected fishing ports from Geraldton to Fremantle and it has been the habit of the defendant to attend such meetings. These meetings provided an opportunity to discuss current issues.

14 In mid-1997, shortly before the Coastal Tour meetings convened by RLIAC were due to commence, the defendant decided to publish a document containing criticisms of the Minister, Mr Monty House, and other prominent figures in the crayfishing industry. He said in evidence that his intention was to get fisherman to take a greater interest in their own affairs. He claimed that he had been talking to various fishermen and the criticisms taking shape in his mind were really a reflection of the various matters that had been put to him by others. He had been a critic for many years of policies and practices tending to reduce the overall size of the fleet and it was therefore consistent with his stance that he should prepare himself to attend the Coastal Tour meetings.

15 He wrote and had typed up a four page document dated 18 June 1997 headed "The Godfathers of Crayfish Industry". I will come to the details of this document in due course but, for the time being, I note that it commences with an appeal to the Fremantle Southern Zone crayfishermen, many of whom are said to be of Italian descent. The tenor of the document is reflected in the fourth paragraph where it is said that the crayfishing industry is controlled by a corrupt Minister and his corrupt gang called the RLIAC. I will call this the "Godfathers document" or the "first matter complained of".

16 The defendant said in his affidavit that the Godfathers document does not refer specifically to the plaintiff, Mr Boschetti. It was published to promote the idea amongst the crayfishers that the RLIAC was the voice of a privileged few who promoted (at least in some cases) changes to the management regime in such a way as to benefit the crayfisher representatives and their hangers-on.

17 Under cross-examination the defendant contended that he was not using the term "Godfathers" as a shorthand description of a person involved in criminal activities orchestrated by the mafia. He was referring simply to the traditional Italian custom whereby a godfather was appointed to act as a guardian or carer for a child. He conceded that at the time of writing the document he had in mind four so-called Godfathers, namely, the Minister, Mr Boschetti, Mr Newbold and a man I will simply call Mr X.

18 The plaintiff adduced evidence in support of his claim for damages that the defendant distributed the Godfathers document at RLIAC Coastal Tour meetings held at Jurien Bay on 24 June 1997, at Ledge Point on 24 June 1997, at Fremantle on 25 June 1997 and at Dongara on 1 July 1997. The plaintiff's case was that the defendant also handed a copy of the document to a Mrs Pirrottina at her shop in Geraldton in or about July 1997 with the intent that it would be republished to her husband, Guiseppe Pirrottina.

19 I will return to the distribution issue later. For the moment, it is sufficient to note that the defendant referred to distribution of the document in his affidavit. He said that it was distributed by him at Coastal Tour meetings to put pressure on the RLIAC to be accountable to ordinary fishermen. He acknowledged delivery of the document to Mrs Pirrottina as alleged by the plaintiff.

20 The defendant then published a document dated 16 September 1997 headed "The Rule of an Evil Dictator Montague House". In this document the defendant asserts that the rule of democratic law is dead in the crayfishing industry. He goes on to make further allegations concerning the pernicious influence of Godfathers and gangs.

21 The plaintiff's case was that this document was published by the defendant on 30 September 1997 when a copy was sent by mail to the United Midwest Fishers' Association or "UMFA" and copies were handed out to unknown persons in Marine Terrace, Geraldton. It is said also that copies were handed to persons who attended a meeting of RLIAC in Geraldton in or about November 1997. I will call this the "Rule document" or "second matter complained of".

22 The defendant acknowledged at trial that he published a third document dated 30 September 1997 headed "Victory to the Godfathers". This commences by saying that the Godfathers have made sure the seven and ten rule will be changed. The document contains explicit references to "Godfather Boschetti and Newbold" and alleges that these two men entertained an opposition member of parliament with a view to "getting him to lay down for Montague House." I will call this the "Victory to Godfathers document" or "third matter complained of".

23 The plaintiff's case was that the defendant published this document on 30 September 1997 by distributing a copy to UMFA and by handing out copies to unknown persons on Marine Terrace in Geraldton and to persons who attended a meeting of the RLIAC in Geraldton in or about November 1997.

24 On 18 October 1997 the defendant wrote and published to Gavin Toomey a short letter referring to corruption in the crayfishing industry. That letter contains an allegation that one of the "biggest gangsters in the industry" is Mr Boschetti. I will call this the "Toomey document" or "fourth matter complained of".

25 Mr Boschetti said in evidence that in late 1997 he saw for the first time the Godfathers document. Subsequently, he saw the Victory to Godfathers document. The direct reference in the second document to "Godfather Boschetti" made it clear to him that he was the subject of the attack. In late 1997 he became aware of the Toomey letter. He said in his affidavit sworn 21 January 2001 that he was angered by the unfounded allegations and was caused considerable stress and embarrassment. He said in his second affidavit sworn 7 March 2001 that although he personally did not attend the meetings of the RLIAC at Dongara on 1 July 1997 and at Geraldton on 1 July 1997 and in November 1997, he believed that it was extremely likely that a number of members of the UMFA would have attended those meetings. It was against this background that he instructed solicitors in this matter.

26 It appears from the affidavit of Graeme Macnish that the solicitors were first approached in January 1998. However, it was not until 15 October 1998 that the solicitors wrote to the defendant referring to the four documents and the allegedly defamatory statements contained in the same. The solicitor sought an apology on behalf of their client.

27 It is apparent from a letter dated 22 October 1998 from the defendant to the law firm Cocks Macnish that the defendant was not prepared to provide an apology. He simply said that if there was dissatisfaction with the corruption and bad management in the crayfishing industry the law firm's client should join with him in demanding a complete and unlimited inquiry into the crayfishing industry.

28 A writ of summons was issued by the plaintiff on 9 November 1998 bearing a general indorsement. On the same day the plaintiff filed a statement of claim. Copies of the writ and statement of claim were served personally on the defendant on 24 November 1998. Shortly afterwards, the defendant entered an appearance.

29 Pursuant to O 20 r 4(1) of the Rules of the Supreme Court, the defendant was obliged to serve a defence by 24 December 1998. However, he did not serve a defence by that date, or at all. On 16 February 1999, pursuant to O 22 r 3, the plaintiff entered judgment in default of defence for damages to be assessed. On 14 December 2000 directions were given concerning the assessment. It was ordered that the parties have leave to adduce evidence upon the assessment by affidavit and provision was made for any party wishing to cross-examine the deponent of an affidavit to serve a notice requiring that deponent to attend the trial to be cross-examined.

30 Where a defendant fails to serve a defence within the time limited by the rules, the defendant is taken to have admitted the allegations of fact contained in the statement of claim and, upon a motion for judgment, no evidence can properly be called to establish those facts: Young v Thomas [1892] 2 Ch 134 at 137; Phonographic Performance Ltd v Maitra [1998] EWCA Civ 137; [1998] 2 All ER 638 at 644.

31 I digress to note that these principles have not been adopted in the Federal Court where it has been held that the system of case management which exists in that jurisdiction requires proof of the facts. However, in that Court judgment can only be obtained by motion. The English principles remain applicable where default judgment can be entered by administrative act: Australian Securities Commission v MacLeod (1994) 130 ALR 717 at 719.

32 It follows that in the case before me I proceed from the premise that the facts pleaded in the further amended statement of claim herein dated 14 March 2001 should be taken as proved. However, in the course of assessing damages, it remains to determine the meaning of the words complained of and the impact of the imputations which are said to have been conveyed by the words in question. I consider that the Court can receive evidence as to such matters as the plaintiff's reputation, the extent of publication, and the impact of the publication of the words on the plaintiff's feelings: See Rindos v Hardwick, unreported; SCt of WA; Library No 940164; 31 March 1994; Bateman v Symons, unreported; SCt of WA; Library No 980458; 18 August 1998.

33 It will be useful now to look at the matters set out in the plaintiff's statement of claim.

34 In pars 1 to 3 of the claim Mr Boschetti sets out various facts and matters concerning his career as a fisherman within the crayfishing industry since 1958. He refers to his directorships and describes the licences held by the companies with which he is associated. In par 4 the plaintiff sets out the contents of the Godfathers document and refers to it having been distributed to those persons in attendance at five RLIAC meetings held between 24 June and 1 July 1997.

35 I have already noted that the Godfathers document refers to the crayfishing industry being allegedly controlled by a corrupt Minister and his corrupt gang called the RLIAC. The document says that the Minister and his gang will not listen or take notice of honest experienced crayfishermen. Any crayfisherman who is not in favour with the Minister, the RLIAC and their gang is dishonestly hurt or destroyed. Reference is made to information gathered by the Fisheries Department being used to exploit the crayfishing industry with particular reference being made to improper practices in the tagging system.

36 The defendant goes on to say as the signatory to the document that he will never surrender and because the Godfathers, RLIAC and their gangster friends know this, dishonest persons have been employed to attack anyone who disagrees with the Godfathers and the RLIAC. He said he is worried whether scientists and Fishery Officers can do their job properly and honestly when they are being used and interfered with by the RLIAC and Godfathers in a political manner. He is worried about a vendetta the Godfathers and RLIAC are conducting against recreational fishermen. Having then named various individuals who are said to be associated with dishonest and dirty tricks, the defendant brings the document to a close with a reference to "other Godfathers whose job is to pressure, influence and bribe politicians."

37 The plaintiff alleges in par 5 of the claim that on 30 September 1997 the defendant wrote and published the Rule document or second matter complained of by sending a copy by mail to the UMFA, by handing out copies to unknown persons on Marine Terrace in Geraldton, and in or about November 1997 handing copies to persons who attended a meeting of RLIAC at Geraldton.

38 The Rule document refers to a betrayal by politicians and a dictatorship of unelected Godfathers and gangsters to make laws for the crayfishing industry. The Minister is said to control the Abrolhos Islands as a dictator. Under his rule the Abrolhos Islands are an illegal drug users and dealers haven, with no police interference. Reference is made to the activities of the so-called Godfathers and certain other individuals. It is said that most crayfishermen today, because of the massive money they are making, support the massive corruption of the crayfishing industry or are too cowardly to oppose and expose it. It is said that crayfishermen have failed to demand accountability.

39 Importantly, in the course of criticising a decision to abolish the seven and ten rule, the document includes a passage in which it is said that a certain person took advantage of inside information concerning the date of abolition "by planning to build a new boat for his mate Godfather Boschetti, and Boschetti sold his old boat early to take advantage of the market." In other words, in this document, unlike the earlier Godfathers document, there is an explicit reference to Mr Boschetti.

40 Mr Boschetti alleges in par 8 of the claim that on 30 September 1997 the defendant published the Victory to Godfathers document to the UMFA, Mr and Mrs Pirrottina, the RLIAC meeting held at Geraldton in or about November 1997 and to unknown persons on Marine Terrace in Geraldton. The contents of the document are described. It is said that the Godfathers have now made sure the seven and ten rule will be changed. Reference is made to the relevant announcement being delayed so that advantage could be taken of it.

41 Reference is made also to "Godfather Boschetti and Newbold" taking out and nobbling with drinks and entertainment a certain Parliamentarian so that they might be able to get the Minister to drop some prosecution charges. Importantly, the Victory to Godfathers document includes the following passage in the second paragraph of the document:

"In the 'Godfathers of Our Crayfishing Industry' delivered 18 June 1997 before the coastal meetings of the RLIAC 24 June to 1 July 1997, I stated that there was Godfather whose job is to pressure, influence and bribe politicians two of them are Godfather Boschetti and Newbold."

42 That passage and related passages were relied upon for a plea that the Godfathers document when read in conjunction with the Victory to Godfathers document identified Mr Boschetti (and Mr Newbold) as the subject of the attack.

43 The plaintiff pleads in par 13 of the claim that on 18 October 1997 the plaintiff wrote and published a letter to Gavin Toomey which included certain words which referred to and were understood to refer to Mr Boschetti. The words in question refer to corruption in the crayfishing industry and speak of Mr Boschetti as being one of the biggest gangsters in the industry. Mr Boschetti is alleged to have taken a certain Parliamentarian to supper with dishonest intentions.

44 Mr Boschetti says in par 12 of the claim that the Godfathers document in its natural and ordinary meaning meant and was understood to mean that:

"(a) the Plaintiff is a criminal;

(b) the Plaintiff is involved in criminal activities;

(c) the Plaintiff is involved in organised crime in the Western Australia crayfishing industry;

(d) the Plaintiff is the leader of a group which is involved in organised crime in the Western Australian crayfishing industry;

(e) the Plaintiff consorts with criminals;

(f) the Plaintiff has improperly caused restrictions on crayfishing to be imposed by the Department of Fisheries ('the Department');

(g) the Plaintiff had improperly interfered with scientists retained by the Department and officers employed by the Department in the performance of their duties;

(h) the Plaintiff is corrupt;

(i) the Plaintiff is dishonest;

(j) the Plaintiff has gained access to the fees paid by Western Australian crayfishermen to the Department for crayfishing licences and has used them for his own purposes;

(k) the Plaintiff has gained access to the fees paid by Western Australian crayfishermen to the Department and has used them for improper purposes;

(l) the Plaintiff has actively concealed dishonest practices by northern crayfishermen by conducting a campaign against recreational fishermen;

(m) the Plaintiff improperly brings pressure to bear on politicians;

(n) the Plaintiff improperly influences politicians;

(o) the Plaintiff bribes politicians."

45 I pause to say that Mr Boschetti's case was presented on the basis that each of the four publications complained of contained imputations that referred to and were defamatory of Mr Boschetti. However, it was apparent from the way in which the matter was argued before me that the claim against the defendant was advanced on the basis that the three pamphlet style documents formed part of a concerted campaign. Not surprisingly, the pleaded imputations relied upon in each case were essentially encompassed by the imputations said to be conveyed by the Godfathers document as detailed in par 12 of the claim. Accordingly, for ease of reference I will refer to the imputations pleaded in respect of the Godfathers document as the "principal imputations" and deal with variations to the same as the need arises.

46 I note in passing, that the imputations pleaded in respect of the Rule document are less extensive than the principal imputations but include an additional imputation in par 7(e) that the plaintiff had improperly taken advantage of inside political information for personal financial gain. The Victory to Godfathers document is said to include imputations that Mr Boschetti had corrupted a certain Parliamentarian and, further, by so doing, improperly caused him to make a political decision and withdraw otherwise meritorious prosecutions for illegal crayfishing. The Toomey letter is said to contain an imputation that Mr Boschetti entertained the Parliamentarian with the intention of corrupting him. I will call these the "additional imputations".

47 Mr Boschetti pleads in par 16 that by reason of the publication of the various documents the plaintiff has been brought into odium and contempt, has been greatly injured in his credit and business reputation, has suffered stress and humiliation and has suffered loss and damage.

48 In par 17 the plaintiff relies upon the following matters for his claim for aggravated and exemplary damages:

"(a) at the time he published each of the matters complained of, the Defendant held no reasonable belief that the matter complained of was true;

(b) the Defendant published each of the matters complained of recklessly, not caring whether they were true or false;

(c) having published the matters complained of, the Defendant refused to publish an apology to the Plaintiff for the publication of the matters complained of and thereby displayed a lack of contrition for the publication of the matters complained of.

PARTICULARS

(i) on 15 October 1998, the Plaintiff's solicitors wrote to the Defendant alleging that the Plaintiff had been defamed by the matters complained of and demanding that the Defendant sign and return a letter of apology to the Plaintiff to be used and disseminated as the Plaintiff saw fit;

(ii) the Defendant by letter of 22nd October, 1998 refused to sign the said letter."

49 Before turning to the evidentiary issues bearing upon the assessment of damages, it will be useful to look briefly at some of the decided cases concerning imputations and claims for damages in defamation.

50 It remains a rule of practice that the plaintiff must set out by way of a pleaded imputation the meaning which he or she alleges ordinary readers would infer from the words complained of unless the defamatory meaning is so clear that distillation is obviously unnecessary: Taylor v Jecks (1993) 10 WAR 309.

51 An imputation must express the precise act or condition attributed to the plaintiff and should represent the final distillation of the alleged defamatory meaning. Each imputation must reflect a discrete assertion, with the result that it is embarrassing to plead the same meaning several times; Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 at 678; Sungravure Pty Ltd v Middle East Airlines Airliban SAL [1975] HCA 6; (1975) 134 CLR 1 at 15.

52 An imputation will be defamatory if it tends to lower the plaintiff in the estimation of right thinking members of the community: Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 at 447. The test of whether the words complained of are capable of conveying an allegedly defamatory meaning is whether, under the circumstances in which the words were published, people to whom the publication was made would be likely to understand them in a defamatory sense: Jones v Skelton [1964] NSWR 485.

53 It follows from these cases that pleaded imputations crafted from the words complained of must truly reflect the meaning of the words and must be capable of adversely affecting the plaintiff in the estimation of right thinking members of society. In the present case, I am satisfied, and so find, that the principal imputations and the additional imputations can be said to arise from the four documents complained of. I find that each of the imputations is capable of conveying and did convey a meaning defamatory of the plaintiff. It remains for consideration in the assessment of damages as to what was the impact of the imputations in the circumstances of the present case.

54 This brings me to the principles applicable to a claim for damages.

55 It appears from Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 that there are three purposes to be served by damages awarded for defamation, namely, consolation for the personal distress and hurt caused to the plaintiff, reparation for the harm done to the plaintiff's person and (if relevant) business reputation, and vindication of the plaintiff's reputation. The Lord Chancellor indicated in Cassell & Co v Broome [1972] UKHL 3; [1972] AC 1027 at 1071 that in case the libel, driven underground, emerges from its lurking place at some future date, a sum can be awarded sufficient to convince a bystander of the baselessness of the charge.

56 The law presumes that some damage to reputation will result from a libel in respect of which liability has been established. In McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 Diplock J indicated at 108 that damages may be recovered in respect of changed social attitudes adopted towards the plaintiff by persons with whom he comes into social or professional contact. In that case no evidence was led that the attitude shown to the plaintiff by any persons with whom he came into social or professional contact was any different as a result of the libel. However, the jury was perfectly entitled to infer, even without specific evidence, that some change in that attitude would be bound to occur.

57 In Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 it was held that a plaintiff in defamation who has not pleaded special damage may, nevertheless, give evidence of some particularity about the state and nature of his business, and changes which he alleges have been brought about in it by the defamation of which he complains; but he may do this only for the purpose of enabling the jury properly to evaluate his general damage. Material which would be admissible in proof of special damage may also be admitted in proof of general damage.

58 It has been held that the defendant's failure to apologise must be taken to have contributed to the plaintiff's hurt and should be taken into account when assessing damages: Rantzen v Mirror Group Newspapers Ltd [1993] EWCA Civ 16; [1994] QB 670; Clark v Ainsworth (1996) 40 NSWLR 463 at 469.

59 Aggravated damages are given to compensate the plaintiff when the harm done to him by wrongful act was aggravated by the manner in which the act was done. Exemplary damages are intended to punish the defendant and presumably to serve one or more of the objects of punishment, namely, moral retribution or deterrence: Uren v John Fairfax & Sons Ltd [1966] HCA 40; (1966) 117 CLR 118 per Windeyer J at 149.

60 Aggravated damages are not awarded as a separate amount. They are part of compensatory damages. They are awarded where the conduct of the defendant has been in some way unjustifiable, improper or lacking in bona fides. Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 74 - 75.

61 Exemplary damages will be awarded in circumstances in which there is a conscious wrongdoing in contumelious disregard of another's rights or in circumstances in which it is open to the Court to find that the defendant recklessly and arrogantly attacked the plaintiff's reputation for the purpose of publishing a sensational story to attract custom: Whitfeld v De Lauret & Co Ltd [1920] HCA 75; (1920) 29 CLR 71.

62 Awards of damages in other defamation cases provide little guidance. That is because the circumstances of defamation cases are almost infinitely various: Todd v Swan Television and Radio Broadcasters Pty Ltd [2001] WASC 334 at par 110. It is important to understand, however, that there is a lack of uniformity in the various States of Australia as to awards of damages.

63 In looking at the position in this State, I note that in Coyne v Citizen Finance [1991] HCA 10; (1991) 172 CLR 211 the High Court refused to overturn a jury's award of $150,000 general damages to a developer defamed by a newspaper piece, although a majority of the Full Court thought $50,000 would be sufficient compensation. In Henry v TVW Enterprises Ltd (1990) 3 WAR 474 a dentist recovered $60,000 from a defamation concerning his professional work that struck at the heart of his self-respect and exemplary damages of $40,000.

64 In Todd (supra) a television broadcast falsely imputed that the owner of a business had murdered his wife and attempted suicide. The plaintiff recovered general damages of $70,000 in circumstances giving rise to considerable personal distress, but where an apology was provided. Steytler J observed at par 120 that in awarding aggravated damages it must be shown that the defendant's conduct increased the injury to the plaintiff's reputation or feelings and it must also be shown that the defendant acted improperly, unjustifiably or lacked bona fides. He observed at par 139 that while the defendant's state of mind need not be malicious before an award of exemplary damages will be justified the publication must amount to conscious, high-handed behaviour in order to be characterised as a contumelious disregard of the plaintiff's rights. Such damages are aimed at punishing the defendant and deterring others from like conduct.

65 There are a number of recently decided cases in this State in which damages have been recovered in respect of allegations of corrupt or deceitful conduct. In Bateman v Symons (supra) general damages of $30,000 plus $2,500 exemplary damages were awarded to a solicitor falsely accused of greed and lies by a former client. In Corse v Robinson, unreported; FCt SCt of WA; Library No 970669; 8 December 1997 an allegation that a trade union official had abused his position in regard to salaries led to an award of $30,000 general damages and $15,000 exemplary damages. In Arnett v Roper, unreported; SCt of WA; Library No 990141; 26 March 1999 a sign painted on the wall of a house warning prospective purchasers to beware of a conspiracy to defraud a widow led to an award of $15,000 general damages to each plaintiff.

66 I note in passing that in each of these cases the libel complained of was confined to a comparatively narrow circle of readers and the words used, albeit false and defamatory, were not as extreme as the language used in the present case. On the other hand, in these cases, unlike the present case, the author of the material complained of did not purport to be participating in a debate on a matter of public interest.

67 In Rindos v Hardwick (supra) a teacher was awarded general damages of $40,000 in respect of a false allegation of sexual misconduct which was published on the internet to an academic audience.

68 It is apparent from the circumstances of the present case that the imputations complained of amount to grave allegations that have inevitably had a severe impact upon the plaintiff's reputation.

69 The defendant by his counsel sought to persuade me that the words complained of represented an attempt by the defendant to stimulate discussion and debate about matters of current importance in the crayfishing industry and that this should be taken into account in assessing the seriousness and impact of the allegations. Accordingly, in my review of the evidentiary materials, it becomes necessary at the outset to make an appraisal of the defendant's credibility. I have already noted that as a consequence of directions given after judgment by default the evidence before me consisted principally of various affidavits filed on behalf of the parties. However, each of the deponents was cross-examined, and the defendant himself was cross-examined at considerable length.

70 The defendant said in evidence that after a long involvement in the crayfishing industry he had a genuine wish to remedy various matters that were of concern to him. However, he was by no means convincing in his assertion that the various documents published by him were brought into existence simply for the purpose of stimulating an open and informed debate. My reservations about his evidence in that regard can be illustrated by reference to certain passages of cross-examination concerning the language used in his documents.

71 He readily conceded that he had in mind Mr Boschetti and Mr Newbold in speaking of the Godfathers of the industry. They were part of a group of four so-called Godfathers. When he was asked about the use of the term "Godfather" this exchange took place with the cross-examiner:

"In 1997 why did you use the term 'the godfathers' in the document? --- I used the term 'godfathers' in the document because it's Italian custom that when a child is born they have it baptised and they appoint godfathers. They usually appoint a man that's younger than the father to be the godfather, so if the real father dies or anything happens the godfather can look after that child and help that child up until his late teens and to give him advice and if the real father needs advice and help how to guide and manage that teenage boy that's what they do. Now, that's how I gave them that name because they set themselves up as carers of certain fishermen."

72 When he was asked about the use of the term "gangster", these exchanges with the cross-examiner occurred:

"Does gangsters mean criminals? --- Not necessarily.

So they just could be people who consort in a gang? --- He didn't have to be - just like gangs on the railways.

Yes, railway gangs? --- (indistinct) they don't call them criminals.

Surely you're not serious about that, Mr Carr? --- I'm serious that Mr Boschetti will do anything illegal or evil to get his end to.

And that's why you called him a gangster? --- Because he gets with gangs of people to get his own ends fair or foul."

73 It is apparent from these exchanges that the defendant was inclined to employ the skills of a bush lawyer in attempting to give an innocent twist to the words with a view to fending off or confusing the cross-examiner. On this occasion, however, he had met his match. The cross-examiner was not easily diverted. Persistent questioning established that the word "Godfather" in the present case was consistently used in the context of unlawful conduct and systematic corruption. The word gangster was employed in a similar way, as appears from the Toomey letter where the word gangster was applied directly to Mr Boschetti. In the end, I was left with an impression that as to this and other matters, the defendant was prepared to put a convenient gloss on the truth when it suited him to do so. I viewed most of what he had to say about matters of fact and meaning with considerable scepticism.

74 Nonetheless, notwithstanding my reservations about his credibility, I felt obliged to take account of the fact that he was not a well-educated man. I came to the conclusion on the evidence before me that as a critic of policies and practices in the crayfishing industry in 1997 the defendant was a dissident voice. His use of exaggeration and intemperate language was a means of seizing the attention of his intended audience and of making his voice heard. According to Mr McCallum, the defendant presented his views to meetings in a "volatile" way. I have no evidence before me that any of his criticisms were justified, and my observations should not be construed in any way whatsoever as condonation of his methods. However, after weighing up the evidence in its entirety, I am prepared to accept that the defendant's publications were motivated to a significant degree by a genuine concern for the future of the industry.

75 This conclusion is only one of several considerations. I must take account also of the fact that in giving evidence the defendant did not resile from the stance reflected in his documents and in various ways continued to assert that Mr Boschetti and Mr Newbold were involved in questionable activities. This is apparent from the second passage of cross-examination I have just quoted.

76 The statements made by the defendant were not made in the course of seeking to sustain a defence of justification. They were close to being affirmations and repetitions of the defamatory statements complained of, notwithstanding that judgment by default had been entered against him. It emerged in the course of cross-examination that the defendant had very substantial assets. This set the scene for a submission made in closing by counsel for the plaintiffs that the defendant saw himself as speaking from a position of some financial strength, and was thus at liberty to thumb his nose at people in the opposing camp.

77 Mr Boschetti said in his affidavits that his reputation was important to him and it was something which he valued highly. He interpreted the term "Godfather" to equate influential people in the crayfishing industry with the leaders of organised crime such as the gang bosses in the mafia. He interpreted the references to "Godfather Boschetti" to suggest that he was a criminal or was at least involved in unlawful activities. He said that he was very angry when he saw the reference to "Godfather Boschetti" in the second matter complained of. Likewise, he was very angry when he saw the Toomey letter because the allegations in the letter were totally unfounded. He said that publication of the documents complained of caused him considerable stress and embarrassment and had made him wonder what people were thinking of him as a result of the unsubstantiated claims.

78 Mr Boschetti was cross-examined about this aspect of the matter. He conceded that his businesses had not suffered as a result of the publications and he was unable to point to any direct financial loss or loss of reputation. He could not identify any persons who had indicated that they thought less of him as a consequence of the publications.

79 He was pressed about the effect of the publications. When he was asked how he felt about the contents of the Godfathers document he said "I wasn't that impressed about it." When pressed further, he said "Well, I didn't like it." He went on to say that he liked the Victory of Godfathers document even less. He said that the Toomey letter had a "bad effect" upon him. He felt very unhappy about it but he agreed that his ability to work had not diminished.

80 The affidavit of Brett John McCallum was adduced in evidence on behalf of the plaintiff. He occupied the position of Chief Executive Officer of the Western Australian Fishing Industry Council or "WAFIC" from 1987 to 2001. He was not a member of RLIAC but was afforded observer status by the committee to attend its meetings. He attended the Coastal Tour meetings in 1997 in his capacity as CEO of WAFIC. He recalled being shown the Godfathers document at the Jurien Bay meeting but could not recall if the document was distributed at the meeting. In his experience, between 40 and 60 people usually attended the RLIAC meetings at Jurien Bay. He affirmed that Mr Boschetti had been involved in the management of the crayfishing industry for a long time and had taken a keen interest in ensuring that the best interests of the industry were protected. In his belief, the plaintiff was of good character and generally respected in the fishing industry. Under cross-examination he conceded that he was not aware of anyone who had altered their view of Mr Boschetti as a consequence of the defendant's publications.

81 The affidavit of Peter Francis Burton was adduced on behalf of the plaintiff. He said that during 1997 he attended meetings of RLIAC in his professional capacity as a fisherman and as the President of UMFA. In his experience the number of attendees at the Jurien RLIAC meeting was usually 50 to 60 and at the Fremantle meeting it was approximately 100. Nearly all the attendees at these meetings were fishermen except for 10 to 12 other fishing industry people. To the best of his recollection, the defendant was present at all the RLIAC meetings attended by Mr Burton. In his experience, the defendant was in the habit of preparing a written statement that he distributed at RLIAC meetings and which he subsequently read to the meeting. He said that in his experience the defendant had a lot of support from people in the fishing industry. The support was not for what he said but the fact that he would always say what he thought. Mr Burton affirmed that Mr Boschetti was a well-known and respected figure in the fishing industry.

82 Under cross-examination Mr Burton was unable to identify any evidence or incident that suggested Mr Boschetti's reputation had been diminished as a consequence of the defendant's publications. He could not recall the Rule document being discussed at committee level.

83 It appears from the affidavit of Mr Gavin Toomey that in or about September 1997 he responded to an advertisement which the defendant had placed in the Geraldton Guardian Newspaper. Mr Toomey expressed an interest in taking up the advertised position on one of the defendant's fishing boats. In response to his letter of application he received a handwritten letter from the defendant dated 18 October 1997, being the document I have called the Toomey letter. He took the letter to be referring to Mr Boschetti and to be describing Mr Boschetti as dishonest and as a person involved in criminal activities. He did not think these allegations against Mr Boschetti were true nor had he heard of any such suggestions.

84 He said under cross-examination that he was responsible for handing the Victory to Godfathers documents to Mr Boschetti. He could not recall exactly what Mr Boschetti said but he appeared to be angered by the document.

85 Mr Boschetti also relied upon a number of affidavits from other persons associated with the industry. Each of the deponents gave evidence affirming the contents of his or her affidavit and was subsequently cross-examined. These witnesses included, Mr Rodrick Dransfield, Mr Terry Lissiman, Mr Phillip Miragliotta, Mr Keith Pearce and Mr Guiseppe Pirrottina.

86 I will not traverse the entire range of evidence presented by these witnesses. They spoke of Mr Boschetti as a successful businessman who was associated with the management of the fishing industry. They referred to the activities of the defendant as a critic of certain practices in the industry and of his attendances at the Coastal Tour meetings in 1997. Mr Dransfield said that the Victory to Godfathers document was posted to him. He thought it was just the defendant being provocative again, and did not take it seriously. Mr Lissiman said that at the Geraldton meeting on 1 July the defendant was standing just inside the door handing out the Godfathers document. Under cross-examination these witnesses acknowledged that they did not themselves think less of Mr Boschetti as a consequence of the publications. Mr Burton accepted that the seven and ten rule and the size issue were probably being discussed in 1997.

87 I was left with an impression that there was a tendency amongst these witnesses not to give much weight to the defendant's views because his views were thought to be idiosyncratic, predictable and repetitious.

88 Mr Pearce referred specifically to the Fremantle meeting of RLIAC. He said that he saw the defendant with a bundle of documents which he was handing out to fishermen as they arrived. From his observation, there were approximately 60 to 70 fishermen at the meeting who were mainly from the Fremantle area. He himself read the Godfathers document but did not take a great deal of notice of it, and later threw the document away. A copy of the Godfathers document was given to his son Duane, who was then about 22 years of age and was a crewman on a crayfishing boat.

89 It emerged from the affidavits relied upon by Mr Boschetti, from the defendant's affidavit sworn 18 February 2001 and from what the defendant said in the course of cross-examination that the documents complained of were distributed essentially as alleged in the statement of claim.

90 The defendant published the first document complained of by distributing copies of it at the RLIAC Coastal Tour meetings in mid 1997. This document was also published by the defendant handing a copy of it to Mrs Pirrottina in or about July 1997 in circumstances that led to republication of the document to her husband as a natural and probable consequence of the initial publication. The affidavits established, and I so find, that the document was published to 40 to 60 people at the Jurien Bay meeting, to about 100 people at the Ledge Point meeting, to 60 to 100 people at the RLIAC meeting, to 55 people at the Dongara meeting and to 50 to 100 people at the Geraldton meeting.

91 The Godfathers document did not specifically refer to Mr Boschetti or to Mr Newbold by name. However, the document was widely disseminated and the use of the expression "Godfathers" as a term imputing organised criminal activities linked the document to subsequent publications. To my mind, it can reasonably be inferred that, by 30 September 1997, the defendant's allegations against the "Godfathers" were well-known and it was well-known that Mr Boschetti and Mr Newbold were two persons in particular who were the subject of the attack.

92 I am satisfied that the defendant published the second document complained of on 30 September 1997 by sending a copy by mail to the UMFA and by handing out copies to unknown persons in Marine Terrace, Geraldton. The UMFA is and was in 1997 a body of fishermen who fished professionally in and around Geraldton and Dongara. In 1997, many of the members of the UMFA knew or knew of Mr Boschetti and believed that he was a man of honesty and integrity who had made a considerable contribution to the fishing industry. I have already found that the words of the second document in their natural and ordinary meaning gave rise to the imputations pleaded in the statement of claim and that such imputations were defamatory of the Mr Boschetti.

93 I find that the defendant published the third document complained of on 30 September 1997 by distributing a copy to the UMFA and by handing out copies to unknown persons on Marine Terrace in Geraldton. Further, in or about November 1997, he handed copies of the documents to persons who attended a meeting of RLIAC in Geraldton as alleged in par 8 of the statement of claim. The defendant claimed that he only published this document to four people, being two members of State Parliament and two crayfishermen. However, I am not satisfied, bearing in mind my reservations about his credibility, that distribution of the document was narrowly confined in the manner he suggested.

94 I take account also of the evidence of Mr Boschetti who says that the third document complained of was shown to him, the evidence of Mr Pirrottina who says he obtained a copy of the document in or about October 1997, the evidence of Mr Lissiman who says that he received a copy of the document sometime after the RLIAC meeting at Dongara, the evidence of Mr Dransfield who says that the defendant sent him a copy of the third document in the mail, and the evidence of Mr McCallum who says that he was provided with a copy of the third document shortly after a meeting of RLIAC at Geraldton in November 1997.

95 I am satisfied that the defendant published the third document complained of as alleged in par 8 of the statement of claim, save for the allegations that the defendant published the third document to Mr and Mrs Pirrottina. I am satisfied that as a result of the publications in question, the document was widely disseminated amongst those involved in the fishing industry in the months following 30 September 1997. I have already held that the words of the Godfathers document and the Victory to Godfathers document gave rise to an identification of Mr Boschetti and Mr Newbold and that the principal imputations and additional imputations were defamatory of Mr Boschetti.

96 It is quite clear that the fourth document complained of was published as alleged to the recipient of the letter, Mr Toomey, and was defamatory of Mr Boschetti.

97 I noted in my review of the previously decided cases that damage to reputation from a libel is presumed and that evidence concerning an adverse impact upon business can be considered for the purpose of evaluating a claim for general damages. In addition to matters of personal hurt, a plaintiff can vindicate his reputation by recovering an amount sufficient to nail the lurking lie. The defendant's conduct after publication and his response to a request for an apology is relevant.

98 I am conscious that each publication complained of in the present case gives rise to a separate cause of action, and could therefore be the subject of a discrete award of damages. The reality is, however, that the publications form part of a concerted attack within a confined period, and the documents and the allegations in them are linked. The claim for damages was, in essence, presented on this basis. It therefore seems to me that a single award of damages should be made in respect of the principal imputations and the additional imputations. I note that such an approach was adopted by Anderson J in Bateman v Symons (supra). I was not urged to approach the matter on any other basis. Paragraph 16 of the claim asserts that the plaintiff has been injured by reason of the first, second, third and fourth matters complained of.

99 I am not convinced, in the present case, that Mr Boschetti was deeply hurt or distressed by the imputations contained in the defendant's publication. Nor am I convinced that the imputations in fact adversely affected his personal or business reputation to any significant extent. He could not point to any specific evidence to that effect. He seems to have been aware that the defendant was in the habit of voicing unpopular opinions and that much of what the defendant said was simply ignored by those around him. It is significant that there was some delay by Mr Boschetti in the prosecution of his claim.

100 However, it follows from earlier discussion, that irrespective of whether a plaintiff is profoundly affected by the defamation at a personal level, he is entitled to vindication of his reputation. Mr Boschetti did not say so expressly but the tenor of his evidence suggested that he was sufficiently angered by the defendant's publication to say "enough is enough". The defendant's wild references to Godfathers and gangsters and corruption might not have altered the attitude of Mr Boschetti's friends and acquaintances but there was always the possibility that strangers or people in official positions might think less of him, or that the lie would be retailed behind his back, or brought into play again on some future occasion. I view Mr Boschetti's claim as being driven essentially by a legitimate desire to prevent republication of the principal imputations and to nail the lurking lie.

101 This brings me to the defendant's stance. If I were convinced that the defendant's publications were motivated solely by envy and malice, being a view of the matter urged upon me by counsel for Mr Boschetti, then findings to this effect would undoubtedly increase the award of damages, especially in circumstances where the defendant resolutely refused to apologise, and where his conduct before trial, and in the witness box, highlighted a risk that he might be inclined to repeat the libel or some variation of it.

102 However, for the reasons I have previously given, I am not satisfied that such unequivocal findings should be made. In my view, as I have already indicated, the defendant's assertions, albeit false and unjustified, were made in the course of a debate of sorts about the future of the crayfishing industry. A citizen of this country is entitled to hold opinions about matters of public interest, and within the limits of the law, it is desirable that he should feel free to express them. A court should not be too quick to characterise opinions expressed in the course of debate as indefensible, for this country is heir to a long tradition of tolerating and encouraging forceful debate.

103 Counsel for the plaintiff in his closing address drew attention to the defendant's propensity to repeat his harsh opinions of the plaintiffs while giving evidence. One has to keep in mind, however, that a court of law in this country is not a court of Star Chamber in which a citizen can be compelled to recant or renounce the views he holds about some matter of public interest. The matter before the Court is whether the defendant, in a case such as this, has exceeded the limits of free speech and, if so, what consequences should follow.

104 Nonetheless, having reminded myself of the democratic traditions which provide a framework within which the defendant's conduct should be considered, I must keep steadily in mind that in the present case the defendant undoubtedly exceeded the permissible limits of public debate, and inflicted injury. This is not a case where the boundaries have been crossed inadvertently by a pamphleteer who has chosen the wrong word and momentarily gone too far, or by a satirist playing word games who has been too clever by half and finished up in a net of his own making. The defendant in the present case consistently employed intemperate language, and language of a kind that would strike any reasonable member of the community as going well beyond the requirements of the debate in question.

105 I mentioned the defendants prevarication in the witness box concerning his use of the terms "Godfathers" and "gangsters". To my mind, it is quite apparent from this and other evidence that he knew he was proceeding recklessly and with a scant regard for the truth of the matters underlying his observations. The manner in which he rejected the request for an apology is consistent with and reinforces such a finding. Under cross-examination he conceded that his references in the Toomey letter and the Victory to Godfathers document to a Parliamentarian being taken to dinner for improper purposes were based on speculation. He conceded that he had no evidence that bribes were paid as alleged in his writings. The opinions he expressed were largely derived from his belief that Mr Boschetti and Mr Newbold were inclined to act in a secretive manner.

106 I must take account also of the fact that distribution of the documents, as I have previously described it in respect of each document, was effected within a comparatively narrow but undoubtedly influential circle. These were readers of special importance to Mr Boschetti, for they were people working with him in the same industry and some of them were in official positions.

107 I consider that Mr Boschetti is entitled to recover damages for some personal distress. He is entitled to receive damages sufficient to vindicate his reputation and to convince a bystander that the allegations made against him were a baseless lie. I find, within the framework I have indicated, that the facts and matters particularly relied upon by Mr Boschetti in support of his claim for aggravated and exemplary damages have been established, that is to say, that the defendant held no reasonable belief that imputations of the extremity contained in the publications complained of were true, that he published each of the matters complained of recklessly, and that he refused to publish an apology when the apology in question was reasonably requested.

108 Against the background of these findings, I consider that Mr Boschetti should be awarded the sum of $35,000 by way of general damages which amount includes a component for aggravated damages. I consider that the defendant has displayed a contumelious disregard of the plaintiff's rights in refusing to acknowledge that his publications consisted of little more than wild and unsubstantiated allegations that went far beyond the limits of legitimate debate. Mr Boschetti will therefore be awarded in addition $10,000 by way of exemplary damages with a view to punishing the defendant and deterring others from like conduct.

109 The plaintiffs' statement of claim included a claim for interest pursuant to s 32 of the Supreme Court Act 1935. Previously decided cases indicate that interest ought to be awarded to a successful plaintiff to the extent that it is fair and proper from the date of publication or other appropriate date until the date of judgment: John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131 at 143; Todd (supra). To my mind, the date on which the plaintiff was obliged to commence proceedings as a consequence of the defendant's refusal to apologise is the relevant starting point in the circumstances of the present case. Accordingly, the plaintiff will be allowed interest on the total award of damages of $45,000 at the rate of $6.00 per centum per annum from 9 November 1998, being the date on which proceedings were commenced, to the date of judgment.

110 The plaintiff in Supreme Court action CIV 2253 of 1998, Kimberley Newbold, advanced a claim in defamation against the defendant in respect of the Godfathers document and the Victory to Godfathers document. The Godfathers document is described as the first matter complained of in the statement of claim and the Victory to Godfathers document is described as the second matter complained of. However, for ease of reference, and with a view to avoiding confusion, I will continue to refer to the Victory to Godfathers document as the third matter complained of.

111 Mr Newbold said in his affidavit dated 18 January 2001 that he is a rock lobster fisherman and a tuna fisherman. He is also a director and shareholder of companies which engaged in those activities. Further, he is a boat builder and a director and shareholder of a boat building company.

112 He said in his affidavit that he was born in Geraldton in 1952. He attended schools in Geraldton but completed his secondary schooling in Perth. He attended two years of tertiary education in Perth before returning to Geraldton. He said that his father was a rock lobster fisherman and he commenced fishing on the family crayfishing boat at 20 years of age. He graduated from the position of deckhand to that of a skipper approximately three years after commencing crayfishing. He went on to describe his subsequent career and the various vessels operated by he and his brother.

113 He has served on the committee of the Geraldton Professional Fisherman's Association or "GPFA" and has been a board member of the Geraldton Fishermen's Co-Operative or "GFCL" for approximately six or seven years. He is now also a director of Batavia Coast Fisheries Pty Ltd which has approximately 25 to 26 vessels fishing and a substantial turnover. The founding fishermen of Batavia Coast set up a processing and marketing operation. He has also served two terms as a board member of the Midwest Development Commission or "MDC" in Geraldton, being a body appointed by the State Government to aid and facilitate the development of industry in the mid-west of Western Australia.

114 Mr Newbold said further that he is also a director of Geraldton Boat Builders who are manufacturers of aluminium vessels for the crayfishing industry. This firm has completed contracts for the State and Commonwealth Governments of Australia. It has built approximately 100 to 150 vessels ranging in size from 10 to 30 metres. He said that in all his business dealings he has been honest and straightforward and believes that he has a reputation for honesty and integrity in business dealings.

115 Mr Newbold said that prior to 1997 the defendant had made some outrageous allegations about him which were totally untrue. At the time, he decided not to act upon these allegations since it appeared that no-one else in the Geraldton to Dongara region was taking any notice of the allegations. In the second half of 1997, when he saw the Godfathers document, he once again thought that the defendant was making wild, unsubstantiated allegations about people. He had never heard of the term "Godfather" used in relation to the crayfishing industry. However, when he read the Godfathers document he realised the term was being used to equate various influential people in the crayfishing industry with leaders of organised crime such as the gang bosses in the mafia.

116 He said that sometime after he read the Godfathers document he was shown the Victory to the Godfathers document in which he (Newbold) was mentioned by name. This document contained allegations that were completely untrue and made him very angry. He said that the publication of the Godfathers document and Victory to Godfathers document caused him considerable stress and embarrassment. He said in his affidavit that he was concerned and embarrassed that people who did not know him or did not know him well might think that he was involved in unlawful activities and that this would have an adverse effect upon his reputation.

117 Mr Newbold relied upon a second affidavit sworn by himself on 7 March 2001. In this affidavit he elaborated upon certain details of his career and described the structure of the industry and constituent bodies. He said that although he did not attend the meetings of RLIAC held at Dongara on 1 July 1997 and at Geraldton on 1 July 1997 and in November 1997, he believed that it was extremely likely that a number of members of both the Northern Coastal Fishermen's Association ("NCFA") and UMFA would have attended those meetings. He held this belief because both the NCFA and the UMFA had a number of members who were rock lobster fishermen and who would have had considerable interest in the issues that RLIAC discussed at that time.

118 It would be unduly repetitious to describe in detail the affidavit evidence relied upon by Mr Newbold as much of it was to the same or similar effect as evidence adduced in regard to the claim advanced by Mr Boschetti. Affidavits were received in evidence from Mr McCallum, Mr Burton, Mr Dransfield, Mr Lissiman, Mr Miragliotta, Mr Pearce and Mr and Mrs Pirrottina.

119 Mr Toomey affirmed that in September 1997 he responded to an advertisement which the defendant had placed in The Geraldton Guardian for a young person to drive one of his fishing boats. He received a handwritten letter from the defendant in reply to which was attached the Victory to Godfathers document. This was the Toomey letter dated 18 October 1997 which described Mr Boschetti as one of the biggest gangsters in the industry. The Toomey letter did not refer expressly to Mr Newbold (and possibly for that reason does not form part of the Newbold claim) but the Victory to Godfathers document does refer to Mr Newbold. Mr Toomey said that he took the references to "Newbold" to be a reference to Kim Newbold. As far as Mr Toomey was concerned, having known Mr Newbold since about 1983, he believed Mr Newbold to be a very honest and hardworking person. He did not think the allegations in the document were true. The allegations did not change his belief in that regard.

120 Mr Newbold relied also upon an affidavit sworn by his solicitor, Mr Macnish. This affidavit was directed to explaining the sequence of events leading up to the issue of a writ of summons on behalf of Mr Newbold. Mr Macnish said that he was contacted by Mr Newbold first by telephone on 2 February 1998. After advice from counsel he sought more detailed instructions but by this time Mr Newbold was involved in fishing at the Abrolhos Islands and communication proved difficult. Mr Macnish obtained a settled copy of the statement of claim just prior to writing his initial letter of complaint to the defendant on 15 October 1998. No apology was forthcoming from the defendant.

121 I should also mention that Mr Newbold was cross-examined at some length by counsel for the defendant about the contents of his affidavits. He was asked whether there was any occasion when he was given to understand that the defendant's publications, namely, the Godfathers document and Victory to Godfathers document, influenced people to avoid Mr Newbold's businesses. He responded: "I couldn't honestly say that I could directly put my finger on an instance of that." He agreed that no-one had said to his face that they were influenced by the publications. He agreed that the defendant was known as a vocal critic of the industry. He said "I didn't like the things that Dick wrote about me and caused me concern. It caused me concern that people would believe them." He went on to say that after the document was written he was embarrassed to go out into public for the fear that people were going to raise the matter with him, especially people that he did not know well.

122 Mr Newbold's statement of claim describes his various business interests and goes on to complain of defamatory imputations contained in the Victory to Godfathers document. It is then said in par 8 of the claim that the first matter complained of, when read in conjunction with what I have called the third matter complained of, referred to and was understood to refer to the plaintiff. The imputations complained of comprise the principal imputations and the additional imputations. Mr Newbold is said to have been involved in criminal activities and corruption. He is said to have improperly bribed and influenced politicians. Further, he is said to have actively concealed dishonest practices by northern crayfishermen and has used fees paid by crayfishermen for improper purposes.

123 Mr Newbold pleads that he has been brought into odium and contempt, greatly injured in his credit and business reputation, has suffered stress and humiliation and suffered loss and damage. In par 11 of the claim he seeks aggravated and exemplary damages and in doing so relies upon essentially the same matters as those relied upon by Mr Boschetti, namely, that the defendant held no reasonable belief in what he said, he published the matters recklessly, and refused to publish an apology to the plaintiff. The plaintiff's case at trial relied upon the details of distribution of the relevant documents that I have previously described.

124 Most of what I have had to say in making an award of damages to Mr Boschetti applies with equal force to the claim advanced by Mr Newbold. The claim by Mr Boschetti was marginally more serious in that his claim brought into play the Rule document and the Toomey letter, and it is material to note that in the latter document, Mr Boschetti was the subject of an explicit attack in which his name was mentioned. I am conscious also that Mr Boschetti was the subject of a specific allegation referable to the seven and ten rule.

125 Balanced against these considerations, however, is the fact that Mr Newbold was arguably affected to a greater degree by the attack because of his involvement with the Midwest Development Commission. Further, I have to say that in the case of Mr Newbold, he provided a more graphic and persuasive case as to how he was affected by the allegations at a personal level. He spoke of his fear that people would raise the matter with him in public, especially people he did not know well. I note in passing, that like Mr Boschetti, he did not identify any specific incidents which reflected changed attitudes towards him or indicated a specific injury to his business interest.

126 When I draw these various considerations together I cannot see any persuasive reason to make a greater or lesser award of damages in the case of Mr Newbold. I am conscious also that in circumstances where both men were subjected to a concerted attack in essentially the same terms and at the same time, awards at a different level in each case might leave an impression that one plaintiff received a lesser degree of vindication than the other, and this might become the subject of comment.

127 Accordingly, Mr Newbold will be awarded the sum of $35,000 by way of general damages (which includes a component of aggravated damages) and $10,000 by way of exemplary damages together with interest pursuant to s 32 of the Supreme Court Act at the rate of $6.00 per centum per annum upon the total amount.

128 Each plaintiff will be awarded $35,000 by way of general damages and $10,000 by way of exemplary damages together with interest on the total amount in each case pursuant to s 32 of the Supreme Court Act at the rate of $6.00 per centum per annum from 9 November 1998, being the date of commencement of proceedings, to the date of judgment.

Boschetti v Carr [2002] WASC 211

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (144 paragraphs)

Boschetti v Carr [2002] WASC 211 (6 September 2002)

Parties

Legislation Cited (1)

Cases Cited (13)