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[2010] WASC 19
Supreme Court of WA
2010-02-17
Miere J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : WOOLCOTT -v- SEEGER [2010] WASC 19
Defamation - Assessment of damages - Application for injunction to restrain publication - Turns on own facts
Defamation Act 2005 (WA)
Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44
Clover Bond Pty Ltd as Trustee for the Cool Clear Water Unit Trust v Carroll [2004] WASC 216
Cullen v White [2003] WASC 153
Davis v Nationwide News Pty Ltd [2008] NSWSC 693
Davis v Nationwide News Pty Ltd [2008] NSWSC 946
John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131
John v MGN [1995] EWCA Civ 23; [1997] QB 586; [1996] 3 WLR 593
Macquarie Bank Ltd v Berg [1999] NSWSC 526
Phonographic Performance Ltd v Maitra [1998] EWCA Civ 137; [1998] 2 All ER 638
Rindos v Hardwick (Unreported, WASC, Library No 940164, 31 March 1994)
Todd v Swan Television and Radio Broadcasters Pty Ltd [2001] WASC 334
1 The plaintiff is a naturopath. The defendant is a medical doctor who obtained his qualifications in Germany and later moved to Australia where he has practised as a natural health practitioner. Between November 2007 and October 2008 the defendant published on the worldwide web or by email seven publications that are defamatory of the plaintiff. Judgment in default of appearance was entered for the plaintiff. The plaintiff now applies for the assessment of his damages and a permanent injunction restraining the defendant from any further or future publication of the defamatory matters complained of or any similar defamatory matter published of and concerning the plaintiff.
2 The evidence in support of the plaintiff's case was adduced by affidavit. The plaintiff was represented by counsel. There was no appearance by or on behalf of the defendant.
3 The plaintiff learned the fundamentals of natural medicine from the late Dr Robert Lucy in the late 1970s. Dr Lucy started the Preventative Medicine Movement, which later became the College of Somatic Studies. He also created the Institute of Research into Iris Studies. Between 1983 and 1985 the plaintiff obtained qualifications from the Preventative Medicine Movement and the Institute of Research into Iris Studies. He started practising fulltime as a naturopath at his own clinic in 1985. At the time there were no formal requirements to become a naturopath. In 1987 or 1988 the plaintiff opened his clinic in Cottesloe and has practised there ever since.
4 The plaintiff joined an association started by Dr Lucy that later became the Complementary Medicine Association (CMA). There were not in 1985 and there are still no formal requirements to practise as a naturopath. The CMA requires its members to have at least an Advanced Diploma of Naturopathy. When that requirement was imposed the plaintiff was an experienced naturopath who had been practising for some time and was already a member of the CMA. The CMA did not require the plaintiff to obtain such a diploma, and he was 'grandfathered' into the CMA. Since that time the plaintiff has undergone further training and education and obtained further qualifications from the College of Somatic Studies, the Preventative Medicine Movement, the Institute of Research into Iris Studies, the Americana Leadership College, Blackmores Australia Pty Ltd and Southern Cross Herbal School.
5 The plaintiff is the sole director and shareholder of Advanced Medicine Aust Pty Ltd and David Woolcott Pty Ltd, which is the company that runs his practice. The plaintiff distributes isopathic and homeopathic remedies produced by Sanum-Kehlbeck GmbH & Co KG (Sanum-Kehlbeck). This is done through Advanced Medicine Aust. Sanum-Kehlbeck products are distributed all over the world. The plaintiff also prescribes Sanum-Kehlbeck products through his clinic, along with other naturopathic remedies and supplements. The plaintiff also works as a lecturer. He says that he lectures to the profession, which I take to mean practitioners of naturopathy or natural medicine in Australia, on the practical use of nutritional support and on the homeopathic remedies made by Sanum-Kehlbeck. The plaintiff says that naturopathy in Australia is a small profession in which practitioners speak amongst themselves and news travels fast.
6 The plaintiff met the defendant in or around 1996. At that time the defendant distributed Sanum-Kehlbeck products in Australia. Over the years the plaintiff and the defendant worked together to build up the market for Sanum-Kehlbeck products. The plaintiff and the defendant had a good professional relationship and the plaintiff thought they were good friends. The plaintiff had helped the defendant financially in the past.
7 In or around 2005 the plaintiff and the defendant started lecturing together on the practical use of nutritional support and specifically on the homeopathic remedies made by Sanum-Kehlbeck. In 2005 the defendant asked the plaintiff to take over his company, Sanum Australia Pty Ltd. The plaintiff agreed. In or around April 2006 the plaintiff and the defendant travelled to Germany to speak to Reiner Kehlbeck of Sanum-Kehlbeck with a view to finalising the agreement for the plaintiff to take over Sanum Australia. At that stage, the plaintiff and the defendant had an agreement that the plaintiff would buy all the shares in Sanum Australia. In late 2006 or early 2007, the defendant reneged on the agreement. He refused to sell his shareholding in Sanum Australia. At the instigation of Sanum-Kehlbeck in January 2007 Sanum Australia's Australia wide distributorship of Sanum-Kehlbeck products was cancelled. In September 2007 the distribution rights was awarded to the plaintiff's company, Advanced Medicine Aust.
8 In November 2007 the plaintiff became aware of a copy of the email containing the third matter complained of. The plaintiff says he was 'utterly mortified' when he read the defendant's email. The plaintiff says the only reason he could think of for the defendant to send such an email was that the defendant had lost the distribution rights to Sanum-Kehlbeck products to the plaintiff. The plaintiff says there is no other explanation for the defamatory email. The email was sent only days before the plaintiff was to present a lecture on Sanum-Kehlbeck products in South Australia on 10 and 11 November 2007. The plaintiff knew that at least some of the recipients of the defendant's email were going to attend the seminar. The plaintiff presented the lecture. Based on attendance of previous lectures he expected around 20 people to attend. Only about five people came to the lecture. At the end of the lecture the plaintiff was asked about the email by one of the attendees. The plaintiff says he was devastated and depressed. The plaintiff says he had similar attendance issues in seminars in Brisbane and Sydney in late 2008.
9 The first matter complained of is that the defendant published on his website material defamatory of the plaintiff. A copy of this publication (First Publication) is Annexure A to these reasons. The plaintiff pleads that the First Publication in its natural and ordinary meaning meant and was understood to mean that the plaintiff:
(a) is a shonk;
(b) illegally practises as a naturopath;
(c) dishonestly claims rebates from private health funds for services he is not entitled to;
(d) dishonestly claims tax exemptions for services he is not entitled to;
(e) is so lacking in qualifications that he is involved with the Complementary Medicine Association to give himself professional status;
(f) is a charlatan; and
(g) is a bully.
10 By failing to appear the defendant is taken to have admitted the allegations of fact contained in the statement of claim: Phonographic Performance Ltd v Maitra [1998] EWCA Civ 137; [1998] 2 All ER 638 (643). Whether a publication is capable of bearing the meanings pleaded by the plaintiff is a question of law. If the judge determines that the meanings pleaded by the plaintiff are capable of arising from the publication then it is a question of fact whether the publication bears those meanings.
11 Each of the pleaded imputations is capable of arising from the First Publication with the possible exception of imputation (b), which I will now consider. The First Publication describes the plaintiff as a shonk and says that he has engaged in schemes and rip-offs of his clients. The publication says that he has no formal education but calls himself 'Australia's leading naturopath'. The publication says, 'Authorities turn a blind eye and honest practitioners who speak out against him get the standover treatment'. The publication goes on to say that the practice of naturopathy should be regulated to weed out the charlatans. The publication says that the plaintiff claims professional status but does not have qualifications. The publication says, in effect, that the plaintiff claims rebates from private health funds and tax exemptions for services he is not entitled to provide. The publication says that it is time authorities take a good look at the plaintiff's association and how it was set up. I find that an ordinary reasonable reader who reads between the lines, as well as along them, might reasonably understand the First Publication to convey the meaning that the plaintiff illegally practises as a naturopath.
12 Once it has been determined that the pleaded imputations are capable of arising it is a question of fact whether they do arise from the First Publication. By failing to appear the defendant is taken to have admitted the allegations of fact contained in the statement of claim. That includes the allegation of fact that the First Publication bears each of the meanings pleaded, so long as they are, as a matter of law, capable of arising from the publication. I find that the First Publication bears each of the meanings alleged by the plaintiff.
13 On or around September 2008 up to 24 October 2008 the defendant published on his website the Second Publication that is defamatory of the plaintiff. A copy of the Second Publication is Annexure B to these reasons. The plaintiff pleads that in its natural and ordinary meaning the Second Publication was understood to mean the plaintiff:
(a) is a shonk;
(b) illegally practises as a naturopath;
(c) dishonestly claims rebates from private health funds for services he is not entitled to;
(d) dishonestly claims tax exemptions for services he is not entitled to;
(e) is so lacking in qualifications that he is involved with the Complementary Medicine Association to give himself professional status;
(f) is a charlatan;
(g) is a bully; and
(h) is a criminal.
14 I find that the Second Publication is capable of, and does give rise to, each of the pleaded imputations. The Second Publication is similar to the First Publication but contains the additional words:
If you had any similar experience with this man contact us. People don't want to get involved making it easy for crooks and conmen in this industry. The grandfather clause is the biggest joke. You claim to be something you are not, you're allowed to continue if you have done it before 1986 already.
15 The statements that the plaintiff is a shonk, and is involved in schemes and rip-offs, together with the reference to crooks and conmen, unqualified persons claiming rebates from private health funds and obtaining tax exemptions for services they are not entitled to provide, and the statement that authorities should take a good look at this association in the context of the publication as a whole, are capable of giving rise to the meaning that the plaintiff is a criminal, that is, a person guilty of an offence punishable by the law.
16 On 6 November 2007 the defendant published an email that is defamatory of the plaintiff. The email said:
I will not be at the seminar. You will not learn anything new. David Woolcott will bore you with old material he stole from me.
17 The email was published by being transmitted to nine email addresses. The email was republished by one of the recipients to a further recipient. The defendant is responsible for that republication. The plaintiff pleads that in its natural and ordinary meaning the Third Publication meant, and was understood to mean, that the plaintiff had stolen material which was lawfully the property of the defendant. I find that the Third Publication is capable of, and does give rise to, that meaning in the sense that the plaintiff stole and passed off as his own ideas or words of the defendant.
18 The plaintiff further pleads that the Third Publication meant and was understood to mean by way of innuendo that the plaintiff:
(a) is not suitable to be a presenter to lecture on Sanum products;
(b) is dishonest because he stole lecture material belonging to the defendant; and
(c) is a fraud.
I find that the Third Publication is capable of, and does give rise to, the imputations pleaded. The Third Publication gives rise to the imputation that the plaintiff is a fraud in the sense that he deceived or misled people about his qualifications, knowledge and suitability as a naturopath or of naturopathy.
19 On 20 November 2007 the defendant published a further email defamatory of the plaintiff in the following terms:
Dear Mr Barrett-Lennard,
Thank your [sic] for your very impressive letter threatening me with prosecution at the High Court of WA and facing financial ruin because of defamation of David Woolcott of Advanced Medicine Australia Pty Ltd.
Obviously you are unaware of the fact that your [sic] are representing a conman. David Woolcott is a school drop-out with no formal education. He does not hold a diploma or similar in naturopathy from an Australian recognized Naturopathic College or University. Nevertheless he calls himself a naturopath and works as such in his profession. He gained membership with the Complementary Medicine Association by doing some courses in 'Eye-Diagnosis' with the late Robert Lucy. This hardly makes him a naturopath and is an insult to all practitioners who studies hard to earn their professional title.
Feel free to add this to your defamation claim at the High Court of WA. I will continue to inform honest naturopathic practitioners, who spend many years of studies to obtain their qualifications, and the general Australian Public about this man's fraudulent ways.
Yours Faithfully
Dr Hilbert Seeger
Managing Director
Sanum Australia Pty Ltd
20 The Fourth Publication was emailed to three email addresses. The plaintiff pleads that in its natural ordinary meaning the Fourth Publication meant and was understood to mean the plaintiff:
(a) illegally practises as a naturopath;
(b) is a dishonest practitioner; and
(c) is a conman.
21 I find that the Fourth Publication is capable of, and does give rise to, each of the pleaded imputations complained of.
22 On 22 November 2007 the defendant published an email defamatory of the plaintiff in the following terms:
Dear Colleagues,
David Woolcott of Advanced Medicines Australia exposed as a conman.
David Woolcott is a school drop-out with no formal education. He does not hold a diploma or similar in naturopathy from an Australian recognized Naturopathic College or University. Nevertheless he calls himself a naturopath and works as such in his profession. He gained membership with the Complementary Medicine Association by doing some courses in 'Eye-Diagnosis' with the late Robert Lucy. This hardly makes him a naturopath and is an insult to all practitioners who studies hard to earn their professional title.
The Office of Health review and other health care complaints commissions have been informed.
Sanum Australia apologizes to all honest practitioners to(sic) have been involved with this man. Our only consolidation(sic) is he also fooled authorities for almost 20 years.
Regards
Dr Hilbert Seeger
Managing Director
Sanum Australia Pty Ltd
23 The email was published by being transmitted to 14 email addresses. The Fifth Publication was republished by one of the recipients to another recipient, who then republished it to another recipient. The defendant is responsible for both republications. The plaintiff pleads that in its natural and ordinary meaning the Fifth Publication meant and was understood to mean the plaintiff:
(a) illegally practises as a naturopath;
(b) is a dishonest practitioner;
(c) is a conman; and
(d) is a charlatan.
24 I find that the Fifth Publication is capable of, and does give rise to, each of the pleaded imputations.
25 On 14 December 2007 the defendant published an email defamatory of the plaintiff in the following terms:
Open letter to ACCC
The Complementary Medicine Association Limited harbours people calling themselves naturopaths without having appropriate qualifications. Eg Mr David Woolcott of 10 Railway Street, Cottesloe WA 6011. This man is a school drop out with no formal education whatsoever. Nevertheless he brags to be a founding member of the [sic] this association and practices as a naturopath. Members of his association have been afforded 1. Advertising exemptions from the TGA. 2. GST exemptions on consultations from the ATO. 3. Provider status from over 40 health funds across Australia. 4. Provider status for work cover, 5. Access to low cost professional indemnity insurance.
This association was cleverly set up by people like Mr Woolcott to obtain some form or professional status without having such qualifications. This association was founded over 20 years ago and got away with it for so long. Unqualified persons claiming rebates from private health funds and tax exemptions for services they are not entitled to provide.
I think it is time authorities take a good look at this association and in particular how it was set up. The members obviously give each other some form of certificates and accreditations.
Dr Hilbert Seeger
26 The email was published to the email address of two private health insurers and a company, Sanum-Kehlbeck GmbH & Co KG. The plaintiff pleads that in its natural and ordinary meaning the Sixth Publication meant and was understood to mean that the plaintiff:
(a) illegally practises as a naturopath;
(b) dishonestly claims rebates from private health funds for services he is not entitled to;
(c) dishonestly claims tax exemptions for services he is not entitled to;
(d) is so lacking in qualifications that he is involved with the Complementary Medicine Association to give himself professional status;
(e) is a charlatan; and
(f) fraudulently receives certificates and accreditations to which he is not entitled.
27 I find that the Sixth Publication is capable of, and does give rise to, each of the pleaded imputations.
28 On 13 February 2008 the defendant published by email the following words defamatory of the plaintiff:
Don't you just love it when pill pushing shonks like David Woolcott with no formal education become 'medical experts'?
29 The Seventh Publication was published by email to four email addresses and republished to a further three recipients. The defendant is responsible for that republication. The plaintiff pleads that in its natural and ordinary meaning the seventh matter complained of meant and was understood to mean that the plaintiff:
(a) is a shonk;
(b) is a charlatan.
30 I find that the Seventh Publication is capable of, and does give rise to, each of those imputations.
31 The plaintiff is entitled to an award of general damages to compensate him for the injury to his reputation and feelings. There must be an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded: Defamation Act 2005 (WA) (Defamation Act) s 34.
32 The joint reasons in Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 (60) (Mason CJ, Deane, Dawson and Gaudron JJ) identified three purposes to be served by damages awarded for defamation:
33 The theory of vindication is that an award of damages can undo part of the harm done by the defamatory statement. The plaintiff can point to the sum awarded as a demonstration to the world at large that the allegations in question were baseless. The more serious the allegations and the wider the publication the greater the sum necessary to vindicate the plaintiff. The vindicatory element of the award cannot restore matters to how they were before. A plaintiff is generally entitled to damages to reflect the injury to his reputation caused by the defamatory publication. Furthermore, the plaintiff is entitled to damages for the pain and suffering caused by the injury and its effects, that is, the hurt, humiliation and embarrassment caused by the defamatory publication: Price D and Duodu K, Defamation Law, Procedure & Practice (3rd ed), [20-03].
34 Price and Duodu, op cit, say at [20-04] that the amount of damages awarded in respect of vindication and injury to reputation and feelings depends on a number of factors:
35 In John v MGN [1995] EWCA Civ 23; [1997] QB 586; [1996] 3 WLR 593 Sir Thomas Bingham MR said:
The more closely it [the defamation] touches the plaintiff's integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be (607) - (608).
36 The publications complained of make grave allegations which touch the plaintiff's honestly and integrity, and his qualification and suitability to carry on his business and occupation as a naturopath.
37 It is permissible for the plaintiff to ask the court to infer that the internet publications must have been read by at least one reader. However, if there has only been limited publication the court may award limited or even nominal damages.
38 Kimberley Bellairs deposed that he found out about the website from the plaintiff but does not depose that he read the website himself. Mr Bellairs' affidavit contains hearsay that the internet publications were read by a friend's son but that evidence is not admissible. Heath Daly, a naturopath, deposes that he read the website after he was told about it by the plaintiff. Rosalea Denker, the plaintiff's sister, deposes that she became aware of a website from the plaintiff when he gave a printed copy of it to her, but she had not seen it on the internet herself. Zachary Stollznow deposes that a New South Wales practitioner informed him that she had heard of emails and a website about the plaintiff but that is inadmissible hearsay evidence of publication. Jayanto Das deposes that sometime in 2008 he attended a seminar held by the plaintiff about Sanum-Kehlbeck products. He was very interested in the products and wanted to find out more. He conducted some research on the internet and found a website on which he found the web page which contained the First Publication. Robert Preece, a naturopath, deposes that he first heard about the website by an email from the defendant in mid-2008 and that it suggested the plaintiff was a charlatan and engaged in standover tactics. I understand Mr Preece's evidence to be that he read the web page containing the First Publication. In summary, there is evidence of only limited publication of the First Publication and Second Publication. There is admissible evidence only that the First Publication and Second Publication were read by Daly, Denker, Das, and Preece. Daly and Denker found out about the website from the plaintiff.
39 Das is a supplier of nutritional supplements. Sometime in 2008 he attended a seminar held by the plaintiff about Sanum-Kehlbeck products. He was shocked when he read the defendant's publications on the website. Preece is a naturopath. He has attended lectures given by the plaintiff and considers the plaintiff to be his mentor.
40 The extent of publication of each email is pleaded in the statement of claim and is taken to be admitted. I have already referred to the pleaded publications.
41 The evidence establishes only limited publication of the defamatory material. However, the emails were published to naturopaths and people likely to attend the plaintiff's seminars. The Sixth Publication was made to Sanum-Kehlbeck, and two private health insurers. Those companies and funds are important to the plaintiff's business and occupation as a naturopath.
The effect of the publication on the plaintiff's reputation
42 The plaintiff has led evidence of publication to people who know him and do not believe the allegations or think any worse of him as a result of the publications. There is also evidence that the plaintiff's reputation has been damaged by the defamatory publications. The plaintiff presented a lecture in Adelaide on 10 and 11 November 2007. He was asked about the email by one of the attendees. Only about five people came to the lecture when, based on attendance levels at previous lectures, the plaintiff expected around 20 people. He had similar attendance issues in Brisbane and Sydney in late 2008 where only four people attended each lecture. The recipients of the defamatory emails are natural health practitioners, health funds, the ACCC and the Therapeutic Goods Administration (TGA). The TGA administers the regulation of complementary medicines in Australia - see Therapeutic Goods Act 1989 (Cth).
I also received - perhaps five in all - anonymous telephone calls. I didn't recognise the callers. The caller had a different voice each time, which I never recognised. The calls were fairly similar. The caller would call me a charlatan and say that I shouldn't be practising. If I questioned them, tried to explain myself or ask who they were, the caller would hang up. I had never received a call like this before, so I concluded that this must have been triggered by the website or the emails.
44 There is evidence from Kimberley Bellairs that a visitor told him that her son had read a website that was very disparaging of a naturopath in Cottesloe. It said he was a charlatan. The son voiced doubts that he would go to the naturopath again. I infer that the website is the website on which the First Publication and Second Publication were published.
45 Zachary Stollznow is the director of Pagle, which is a wholesale distributor business of natural health care products. Mr Stollznow's company has hosted seminars on Sanum-Kehlbeck's products on a number of occasions over the last few years. Mr Stollznow's company promotes these seminars. He deposes:
We start working months in advance to encourage people to attend. This includes sending flyers advertising the seminar with our monthly newsletter and telephoning people we think may be interested in attending.
Knowing the negative publicity caused by some of the emails that had been sent by [the defendant], we worked particularly hard to encourage people to attend the seminar [the plaintiff] was presenting in October or November 2008. Despite our efforts, only three people attended on the Saturday and only two on the Sunday.
I spoke to some people on the telephone while promoting the seminar. Many people said they were not prepared to attend until the 'dust had settled', and that after that, they would decide whether to believe [the plaintiff or the defendant]. I understood this to refer to the battle between [the plaintiff and the defendant] over [the defendant] losing the distributorship of [Sanum-Kehlbeck] products to [the plaintiff]. Some said they weren't prepared to come because of what was being said about [the plaintiff]. I understood this to mean that they thought there was some basis to [the defendant's] emails and website.
46 There is limited evidence of the effect of the defamatory publications on the plaintiff's reputation. There is evidence of low attendance at the plaintiff's lectures, and I infer that that low attendance is a result of the defendant's publications. I infer that some people who do not know the plaintiff, or are less familiar with him than his friends and close colleagues, and who are not aware of the previous dealings between the plaintiff and the defendant, would think less of the plaintiff because of the defamatory publications.
47 In his statement of claim the plaintiff claims that he has suffered, and will continue to suffer, loss and damage in his personal and professional capacity. The plaintiff does not claim that he has suffered financial loss as a result of the publications. The plaintiff has led no evidence that he has suffered a general loss of business profits.
The effect of the publication on the plaintiff's feelings
48 The evidence shows that the defamatory publications and their aftermath have been a terrible ordeal for the plaintiff. The plaintiff says that the defamatory publications have had a devastating effect on him. For a long time he was depressed. He had many sleepless nights. He would have panic attacks whenever an email would land in his inbox or the phone would ring. He started smoking much more heavily. He says he felt impotent and that there was nothing he could do. The adverse effect of defamatory publications on the plaintiff has been apparent to his friends and relatives. Mr Stollznow deposes that he speaks to the plaintiff on a regular basis. He says that he saw a definite change in the plaintiff's demeanour after the emails appeared. The plaintiff's confidence and self esteem were affected. When Mr Stollznow saw the plaintiff in October or November 2008 in New South Wales he observed that the plaintiff had lost weight.
The extent and nature of the plaintiff's reputation
49 It is presumed that the plaintiff has a good reputation. However, the extent of that reputation will vary. The evidence before the court confirms that the plaintiff had a good reputation as a naturopath prior to the defamatory publications.
50 A defendant by his conduct may increase or reduce the damages from what they might otherwise be. In this case, the plaintiff claims aggravated damages. I will consider that claim shortly.
51 There is no evidence that the behaviour of the plaintiff has contributed to the defamatory publication or to the damage to his reputation, which it has caused.
52 Aggravated damages may be awarded to compensate the plaintiff if the circumstances of the publication, or the defendant's conduct, make the injury to the plaintiff worse. The defendant's conduct must be shown to have increased the injury to the plaintiff's reputation or feelings. The plaintiff relies upon three matters in support of his claim for aggravated damages: (1) the defendant's failure to apologise and retract; (2) malice at the time of publication; and (3) the manner in which the defendant has conducted the litigation.
53 On 14 November 2007 the plaintiff's solicitors wrote to the defendant referring to the Third Publication. The letter stated that the defamatory imputations in the email were false, requested an apology and said that unless the defendant made a satisfactory apology the plaintiff would commence proceedings in Western Australia for defamation. The defendant replied by letter of 20 November 2007 in which he said:
Thank you for your very impressive letter threatening me with prosecution at the High Court of WA and facing financial ruin because of defamation of David Woolcott of Advanced Medicine Australia Pty Ltd.
Obviously you are unaware of the fact that you are representing a conman. David Woolcott is a school drop-out with no formal education. He does not hold a diploma or similar in naturopathy from an Australian recognized Naturopathic College or University. Nevertheless, he calls himself naturopath and works as such in this profession. He gained membership with the Complementary Medicine Association by doing some courses in 'Eye-Diagnosis' with the late Robert Lucy. This hardly makes him a naturopath and is an insult to all practitioners who studied hard to earn their professional title.
Feel free to add this to your defamation claim at the High Court of WA. I will continue to inform honest naturopathic practitioners, who spend many years of studies to obtain their qualifications, and the general Australian public about this man's fraudulent ways.
54 The letter said that it had been copied to Sanum-Kehlbeck, the TGA and the CMA. The plaintiff says that he was shocked when he received the response. The plaintiff says that he thought that trying to rebut the defendant's claims in a public forum would only aggravate the situation and consequently he decided not to act and hope that, in time, the defendant would calm down and think about what he was doing. On 22 November 2007 the plaintiff found out that the defendant had sent another defamatory email. This email is the Fifth Publication. The plaintiff later learned of the Sixth Publication and the Seventh Publication. Later the plaintiff learned of the publications on the website.
55 The defendant's failure to apologise and his conduct in further defaming the plaintiff is lacking in bona fides and improper. It increased the injury caused to the plaintiff.
56 In awarding damages the court is to disregard the malice or other state of mind of the defendant at the time of publication or any other time, except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff: Defamation Act s 36.
57 I infer that the defendant was actuated by malice in making the defamatory publications. I infer that from:
(a) the conduct of the defendant after a previously good personal and professional relationship with the plaintiff, up until the time the plaintiff was awarded the distribution rights to Sanum-Kehlbeck products;
(b) the continuing publication of the Second Publication, or similar publication, after the commencement of these proceedings;
(c) the repetition of the Fourth Publication to other recipients as the Fifth Publication; and
(d) the offensive and inflammatory words used in the defamatory publications.
58 The plaintiff submits that the court should take into account the defendant's conduct in failing to appear at the proceedings notwithstanding that he encouraged or invited the plaintiff to commence proceedings on several occasions.
59 The defamatory publications are by email and by internet. A publication by email is different from the publication of a letter. Emails can be easily saved, reproduced and forwarded to numerous other people. Publication on the internet is different from more traditional forms of publication. On the internet web pages may be instantaneously available throughout the world. On the other hand, there are so many web pages on the internet that no assumptions can be made about how many people are likely to read what is on any particular web page.
60 Rindos v Hardwick (Unreported, WASC, Library No 940164, 31 March 1994) (Ipp J) concerned a defamatory statement about an academic, Dr Rindos, on a science anthropology computer bulletin board by the defendant. Dr Rindos had been denied tenure at the University of Western Australia in controversial circumstances. The defendant's statement imputed that Dr Rindos had engaged in sexual activity with a minor and that his academic reputation was based on his ability to berate and bully all rather than appropriate research. The publication occurred in the early days of the internet. Ipp J said that there were approximately 23,000 persons worldwide whose computers had access to the bulletin board in question. The defendant failed to justify his comments. Ipp J found that the statements were clearly defamatory and had been widely published with Dr Rindos suffering serious harm to his reputation. Dr Rindos was awarded $40,000 damages.
61 On 3 September 2003 this court awarded Dr Trevor Cullen $70,000 in compensatory damages and $25,000 exemplary damages for a series of libels published by the defendant on various websites, including several sites that contained Dr Cullen's name in their domain name: Cullen v White [2003] WASC 153. The damages were assessed by Master Newnes (as his Honour then was) following entry of judgment in default of appearance. The imputations which arose from the defamatory publications were that Dr Cullen was a paedophile, had committed academic fraud, had falsified his credentials, was a dangerous felon, had committed blackmail and had falsely pretended to be a priest. In the Rindos case it was found that only 23,000 people had access to the internet, by 2003 the court could take notice that substantially more had such access. Further, the defamatory material in the Rindos case had expired after a number of days or weeks whereas in the Cullen case the defamatory material continued to be present and accessible up to and beyond the date of the assessment of damages. Only one libel was published on the internet in the Rindos case whereas a great many were published of the plaintiff in the Cullen case. Newnes M said:
I am satisfied that the defamatory publications are likely to have a very harmful effect upon the plaintiff's reputation and his standing as an academic. I also accept that the plaintiff has suffered a great deal of personal distress and anguish as a result of the publications and that they have caused him very considerable annoyance. It is likely that they will make it more difficult for him to obtain appropriate employment in the future. The damages award must compensate him in respect of those matters and be sufficient to signal to the public the vindication of his reputation [19].
The conduct of the defendant can be attributed only to a conscious desire on his part to cause the plaintiff the maximum amount of damage, hurt and embarrassment by what amounts to a campaign of deliberately offensive vilification [22].
63 The statements published by the defendant are seriously defamatory of the plaintiff. I find that the defendant's publications attacked the plaintiff personally and maliciously after Sanum-Kehlbeck cancelled the defendant's company's distributorship of Sanum-Kehlbeck products in Australia and the distributorship was awarded to the plaintiff's company. Malice is seen in the context of the publications, the flavour and tone of the intemperate and unnecessarily inflammatory language used, the distribution of the emails to practitioners, health funds, companies and regulatory authorities and the defendant's response to the plaintiff's solicitor's letter of demand.
64 I accept the plaintiff's evidence as to the impact of these publications on his feelings. The publications have had a devastating effect upon the plaintiff. I also accept that the publications have damaged the plaintiff's reputation. The emails were published to a limited number of people, however they were influential people. The publications on the website may have been read by few people. However, with its global reach, the website libels may be read by many people and remain accessible to anyone in the world who has a computer or access to a computer and knows how to go onto the internet and to find the various sites upon it.
65 Section 39 of the Defamation Act provides that if the court finds for the plaintiff as to more than one cause of action the judge may assess damages in a single sum. In this case there are multiple causes of action but there is a clear and close connection between them. Counsel for the plaintiff submitted that the court should assess damages in a single sum and I find it is appropriate to do so.
66 There are similarities between this case and Cullen v White. Exemplary damages which were awarded in Cullen v White are not available in this case. Moreover, there are so many factors involved in the assessment of damages it is difficult to compare one case with another. In all the circumstances of this case I award damages to the plaintiff in the total amount of $70,000; $50,000 as general damages and $20,000 as aggravated damages.
67 I am satisfied that the plaintiff is entitled to an award of interest on the whole of the amount of damages awarded to him: see John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131; Davis v Nationwide News Pty Ltd [2008] NSWSC 693; Davis v Nationwide News Pty Ltd [2008] NSWSC 946; Clover Bond Pty Ltd as Trustee for the Cool Clear Water Unit Trust v Carroll [2004] WASC 216; Todd v Swan Television and Radio Broadcasters Pty Ltd [2001] WASC 334.
68 Interest is commonly awarded at the rate of 6% per annum by way of pre-judgment interest. The court may award interest for the whole or any part of the period between the date when the cause of action arose and the date when the judgment takes effect. In the exercise of my discretion I consider it appropriate that interest be awarded at the rate of 3% per annum on the whole of the damages awarded for the whole of the period between the date on which the writ was issued and the date of judgment.
69 In Macquarie Bank Ltd v Berg [1999] NSWSC 526 an Australian resident sought an interlocutory injunction to restrain a defendant, resident in the United States, from publishing material on a website located outside Australia that it alleged to be defamatory of its reputation under the law of New South Wales. Simpson J held that the court had power to restrain conduct occurring or expected to occur outside the territorial boundaries of the jurisdiction and that whether the power should be exercised is a question of discretion. Her Honour refused to grant the injunction for three reasons. First, it was uncertain that the order could be enforced against the defendant because he was resident outside the jurisdiction. The second and principal reason was that such an injunction would superimpose the law of New South Wales relating to defamation on every other State, Territory and country of the world. The law of defamation in other countries is different from that of New South Wales and it may well be that, according to the law of other countries, the defendant had an unfettered right to publish the material. To make an order interfering with such a right would exceed the proper limits of the use of the injunctive power of the court. The third reason was that the discretion to restrain defamatory publications should be exercised with great caution and only in very clear cases.
70 The third reason stated by Simpson J can be immediately put to one side. This case is not concerned with the grant of an interlocutory injunction. The defendant has not sought to justify the defamatory publications or defend them in any way.
71 The grant of an injunction in this case would not exceed the proper powers of this court. Simpson J appears to have assumed that the place of the tort in Macquarie Bank v Berg was outside New South Wales. In this case the tort occurred within Western Australia. The place of the tort is where the published material is received, not the place from where it is transmitted. There is no evidence in this case, unlike in Macquarie Bank v Berg, that the website on which the First Publication and the Second Publication were posted is located outside Australia. To the contrary, the relevant website appears to be located in Australia. The email transmissions appear to have been transmitted from within Australia to recipients within Australia.
72 The granting of an injunction may bind the conduct of the defendant outside of the jurisdiction. But that is not a sufficient reason for refusing the injunction. An injunction may be granted in some instances to enforce rights even if the subject matter of the application is external to the jurisdiction. The injunction acts to bind the conscience of the defendant and enables the court to control his activities outside as well as within the jurisdiction. This court is not an inappropriate forum. The plaintiff resides in Western Australia. It is in Western Australia that his reputation has been damaged.
73 This case does not give rise to the same problems of enforceability that the court referred to in Macquarie Bank v Berg. The defendant appears to reside in New South Wales. In any event, I would not decline to grant the injunction on the ground of the uncertainty of enforceability alone. The weight of authority is in favour of courts assuming that their orders will be obeyed and accordingly there are many instances where injunctions have been issued against foreign defendants: see Garnett R, 'Are Foreign Internet Infringers Beyond the Reach of the Law?' (2000) 23 UNSWLJ 105 at 122, 124.
74 In the circumstances of this case, it is appropriate to permanently restrain the defendant from any further or future publication of the defamatory publications complained of, or of publishing any similarly defamatory matter of, and concerning the plaintiff.
Carson
John Fairfax & Sons Ltd
(1993) 178 CLR 44
(1987) 8 NSWLR 131