First Plaintiff v Defendant

First Plaintiff v Defendant - [2013] VSC 268 - VSC 2013 case summary — Zoe

[39]

A person's reputation may therefore be said to be injured when the esteem in which that person is held by the community is diminished in some respect.

Lord Atkin proposed such a general test in Sim v Stretch, namely that statements might be defamatory if "the words tend to lower the plaintiff in the estimation of right-thinking members of society generally". An earlier test asked whether the words were likely to injure the reputation of a plaintiff by exposing him (or her) to hatred, contempt or ridicule but it had come to be considered as too narrow. It was also accepted, as something of an exception to the requirement that there be damage to a plaintiff's reputation, that matter might be defamatory if it caused a plaintiff to be shunned or avoided, which is to say excluded from society.

The common law test of defamatory matter propounded by Lord Atkin was applied in Slatyer v The Daily Telegraph Newspaper Co Ltd, although Griffith CJ expressed some concern about the ambiguity of the expression "right thinking members of the community". The general test, stated as whether the published matter is likely to lead an ordinary reasonable person to think the less of a plaintiff, was confirmed by this Court in Mirror Newspapers Ltd v World Hosts Pty Ltd, Chakravarti v Advertiser Newspapers Ltd and by Callinan and Heydon JJ in John Fairfax Publications Pty Ltd v Gacic. Gummow and Hayne JJ in Gacic referred to the likelihood that the imputations might cause "ordinary decent folk" in the community to think the less of the plaintiff.

Putting aside Lord Atkin's additional requirement of being "right-thinking", the hypothetical audience, that is to say the referees of the issue of whether a person has been defamed, has been regarded as composed of ordinary reasonable people, whom Spencer Bower described as "of ordinary intelligence, experience, and education". Such persons have also been described as "not avid for scandal" and "fair-minded". They are expected to bring to the matter in question their general knowledge and experience of worldly affairs.

In Reader's Digest Services Pty Ltd v Lamb Brennan J explained that any standards to be applied by the hypothetical referees, to an assessment of the effect of imputations, are those of the general community:

[52]

MR SOUTHALL: When you say it was ongoing and being done daily, did you have cause to download subsequent printings of the web?

MR JEFFREY: Initially, myself and the girls at the office were downloading things for our reference. After that, our consultant, Mr Kraan, continued it.

MR SOUTHALL: Did you discuss it with anyone outside the office, friends or family?

MR JEFFREY: I certainly discussed it with my immediate family and I certainly would have discussed it with Tom.

MR SOUTHALL: Yes?

MR JEFFREY: People in the office certainly knew about it and it wasn't something I was proud to bring up in front of others, no.

MR SOUTHALL: How did it affect, so far as you can say subjectively, how did it affect your daily life and your attitude?

MR JEFFREY: We had been going through a series of years of different cases about the quarry and basically I'm a robust, loud quarry man.

MR SOUTHALL: Quarry man?

MR JEFFREY: Yes. You pointed out yesterday that I might even bleed - and I can take a lot of criticism and we also deal with truck drivers and other people and we wear all that.

MR SOUTHALL: But what about this?

MR JEFFREY: This is a bit more of a knife that has affected me and has affected Tom, has affected us financially, it has affected us personally. We probably - we might bleed more than we thought we did, we might not be as tough as we thought we were. Health wise it has certainly affected me.

MR SOUTHALL: How so?

MR JEFFREY: Some people starve themselves when they are under stress, other people might eat more. I've certainly put a lot of weight on in the last couple of years. I've also had blood pressure tablets, I don't sleep, an hour here or an hour there. It affects my family. I'm certainly not as easygoing as I used to be.

MR SOUTHALL: Is it your view that the appearance of the Quarry Fight website in August 2011 and continuing certainly in the offensive parts until February of the following year, did that have a contributing effect?

MR JEFFREY: A profound effect, yes.

[54]

21 I have no doubt that the defamatory publications injured the feelings of Mr Jeffrey but it is impossible to say with any precision what injury was due to or referable to the defamation and what was due to or referable to the website as a whole or to the other conduct of Mrs Giles. The need to ensure that there is an appropriate and rational relationship between the harm to Mr Jeffrey and the amount of damages to be awarded requires some consideration of the extent to which any injury was caused by the defamation.[16] Mr Jeffrey's own testimony about the injury he felt is admissible to establish the natural grief, distress and embarrassment which he suffered concerning the nature of the imputation which he believed the publications would convey to others.[17] Evidence of the injury to his feelings was also given, as is commonly the case,[18] by those who knew him well enough to speak about his mood and demeanour after the defamatory publications came to his attention. Both Mr Jeffrey, and the others who were called to give evidence about the matter, gave evidence about the physical impact upon him of learning about the defamatory publications. Mr Jeffrey said that he had put on a lot of weight in the last couple of years, that he was taking blood pressure tablets and that he was not sleeping well. Whether evidence may be given about a claimant's physical health has been described as an unsettled question[19] but, in any event, the evidence concerning the increase in Mr Jeffrey's weight and deteriorating health generally may properly be seen as descriptive of injury to his feelings.[20] In relation to his weight, it is clear that Mr Jeffrey was what was described as "a heavy man" long before any defamatory publication. The increase to his weight occurred during a period of irritation by tribunal proceedings, by other conduct against the quarry by Mrs Giles and other objectors and by the publications on the website as a whole apart from the defamatory statements. When cross examined about the matter by Mrs Giles, Mr Jeffrey attributed his condition to the existence of the website rather than specifically to the defamatory words when saying that he "might have been happier before the website but [he is] certainly distressed since".

[132]

51 The emails of 14 February 2011 and 1 March 2011 from Mrs Giles' barrister added two clauses (albeit in slightly different terms) which were apparently not part of the offer as originally put by the plaintiffs. The two additional clauses were, first, that each party would bear their own costs to date and, secondly, that both sets of parties would provide mutual releases. I do not regard the latter as a material addition but, rather, as the kind of term that could be expected as a matter of course to settle once and for all the disputes which had gone on for so long. The former might have been a material new term inconsistent with the offer which the plaintiffs had put but, curiously, the offer seems never to have been communicated to the plaintiffs. Mrs Giles put to Mr Curnow in cross examination the fact of her offer by her barrister but Mr Curnow's response was that he had never seen it. The day following that cross examination Mrs Giles tendered in evidence, as part of her own case, the documents which she had said during the cross examination of Mr Curnow were available, namely, the email correspondence between the barristers and a copy of a subsequent letter sent by her directly to the plaintiffs' solicitor. The email correspondence between the barristers on 14 February 2011 included a reply of the same day from the plaintiffs' barrister to Mrs Giles' barrister confirming receipt of the email and confirming that he had sent the offer to his client for instructions and would get back to Counsel for Mrs Giles as soon as he had instructions. No further response from the plaintiffs was received to either the email of 14 February 2011 nor to the email of 1 March 2011 and on 16 March 2011 Mrs Giles took it upon herself to repeat the offer by sending a fax directly to the plaintiffs' solicitor in precisely the same terms as had been put by her barrister in the email correspondence of 1 March 2011. No response was received to that communication either. Senior Counsel for the plaintiffs expressed surprise during the trial before me about the existence of these offers but I have no reason to doubt that the offers were sent and that they were received by those acting for the plaintiffs. The fact that they may not have been communicated to the plaintiffs remained unexplained.

[137]

54 I accept the evidence of Mrs Giles that the offers were put in February and March 2011 first by email correspondence between Counsel and subsequently by correspondence from Mrs Giles to the plaintiffs' solicitor. I also accept her evidence that she had provided to the plaintiffs a sworn valuation from Hay Property Group which was complete. The plaintiffs tendered in evidence part of a document described as "Report & Valuation" by Hay Property Group as part of documents in a notice to admit documents. The document as tendered was incomplete but Mrs Giles gave evidence that she had forwarded to the plaintiffs a copy of the complete document. I accept that evidence and it appears from the document as tendered, and from Mrs Giles' oral testimony, that the entirety of the original document was a sworn valuation. I have already discussed that Senior Counsel for the plaintiffs expressed surprise at the tender of the correspondence which occurred in February and March 2011 which had conveyed the offers by Mrs Giles. Indeed, he first observed that the documents had not been discovered (by which I understood him to mean that they ought to have been discovered by Mrs Giles rather than by the plaintiffs). No criticism of Counsel is intended, but the documents tendered by Mrs Giles were plainly relevant to the plaintiffs' case and the documents received by them ought to have been discovered by the plaintiffs. In my view they bear fundamentally upon the conclusions which the plaintiffs seek the Court to draw about circumstances surrounding the publication of defamatory words which are said to justify an award of aggravated damages. The making of offers in February and March 2011 upon terms that built upon what had been offered by the plaintiffs is, at the very least, an important step in the chain of circumstances reflecting upon the plaintiffs. The documents ought to have been particularised if only as part of the documents said to be part of the correspondence from which the Court could evaluate the extent to which Mrs Giles was said to have been seeking inflated prices.

[140]

I created the website because after a number of attempts to try and get the plaintiffs to comply with their planning permission and work authority conditions, then we felt we had to take action because the dust was pouring off the site and impacting us, the water was getting polluted, and the noise was horrendous. Mr Byard, the [VCAT] member, said that - because we originally tried - this is under our cancellation application - and he said to pull the - it was more appropriate to pull out the conditions - the breaches or alleged breaches and to put them into an enforcement application. Over a period of time he actually told us that no less than five times. That's what we did. What we're hoping to achieve with the website, or what was I hoping to achieve: I was hoping to notify people who were in a similar situation. I wished that I had had somebody who had told me that, if you're in an area that could be subject to a quarry, a wind farm, anything like that, these are the sorts of things you need to watch out for, these are the things that authorities can overlook; they can ignore, they can pretend don't happen. This is what a company - it just happens to have been the company of the plaintiffs - this is what a company is willing to do or not to do as the case may be, this is what the tribunal will look at and overlook, so I was trying to give a perspective to people who might be in a similar situation to us. I wasn't being malicious on the web - I wasn't trying to be malicious on the website in having it, it was just purely a forum to log what the current situation was on a time-relative basis.

...

I wasn't trying to impact or stop the quarry by the website, I was just trying to notify people, and there were people in the Neerim North area who were interested in what was going on at the quarry. Not everybody was feeling comfortable in driving around the outside and looking at it. Some of those expressed to me that they were so stressed that they found it difficult. That's hearsay but.

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Judgment (188 paragraphs)

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Legislation Cited (2)

Cases Cited (10)