Free v Thomas

TEXTS CITED : Patrick Milmo et al, Gatley on Libel and Slander, 11th ed (2008) Sweet & Maxwell

PARTIES : DEFENDANTS: Debe Thomas Milton Ulladulla Publishing Co Pty Ltd

PLAINTIFF: Mt T Molomby SC Ms L Goodchild

FIRST DEFENDANT: COUNSEL : Mr C A Evatt Mr R Rasmussen

SECOND DEFENDANT: Ms N Shaver (Solicitor)

PLAINTIFF: Russell McLelland Brown Lawyers

SOLICITORS : FIRST DEFENDANT: Friend & Co, Lawyers

SECOND DEFENDANT: Johnson, Winter & Slattery

• 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

JUDGMENT 1 In these proceedings the Plaintiff Sharlene Free claims damages for defamation against Debe Thomas as First Defendant and Milton Ulladulla Publishing Co Pty Ltd as second defendant. 2 The Plaintiff had been lessee of a house in Fisherman's Paradise of which the First Defendant appears to have been one of three owners. The property appears to have been occupied by the Plaintiff initially pursuant to a residential tenancy agreement dated 11 November 2005 for a six months term. 3 At least by early 2007 issues had arisen between the Plaintiff and the First Defendant resulting in an allegation that on 27 February 2007 the Plaintiff was locked out of the premises by the First Defendant. 4 On 28 February 2007 the Second Defendant, which was the publisher of a newspaper called the "Milton Ulladulla Times", published an article entitled "Tenants from hell" accompanied by a photograph. In her Amended Statement of Claim the Plaintiff alleges that both Defendants published the article. She alleged that the article and the photograph were defamatory of her in that it conveyed of her, to ordinary reasonable readers who identified her as the tenant referred to, the following imputations: (a) She cannot be relied on to pay her debts; (b) As a tenant she was thousands of dollars in arrears in her rent; (c) She caused serious damage to the house she was renting; (d) She is willing to live in filth and squalor; (e) She is unfit to be a tenant of any decent property. 5 The article does not name the Plaintiff but the Plaintiff pleads three particulars of identification in the Amended Statement of Claim one of which was: "(h) At or around the time of the publication and for some days subsequently, there was a large sign erected by the First Defendant outside the house which proclaimed, 'TRESPASSER'S ( sic ) WILL BE PROSECUTED NO FREE RENT!'" 6 On 2 March 2007 the Plaintiff made application to the Consumer, Trader and Tenancy Tribunal as follows: "I would like access to enter the property so I can make good and clean the house and remove my belongings but unable as the owner has done an illegal lockout." 7 On 15 June 2007 Mr Les Farrell of the Illawarra Legal Centre Inc Tenants Service wrote on behalf of the Plaintiff to the Tribunal saying (inter alia): "The applicant requests the Orders sought in the original application are withdrawn and replaced with the following: (1) An order that the Respondent pay to the Applicant the amount of $2,503.00 being compensation for goods lost as a result of the landlord illegally taking possession of the property, denying the Applicant access and illegally disposing of her goods during the term of the tenancy agreement. (2) An order for Non-Economic Loss suffered by the tenant as a result of the Respondent's breach of the tenancy agreement in the amount of $7,497.00." 8 The letter went on to provide some reasons for the seeking of those orders, and made reference to the landlord illegally entering the property, changing the locks and taking possession, denying access to the Plaintiff, preventing her from removing her goods and also referred to the erection by the landlord of the sign referred to above. The letter then went on: "As a result of being illegally locked out of the property the tenant has suffered considerable distress, anxiety, embarrassment and inconvenience. The tenancy is in a small community and the Landlord's actions including the erection of the sign at the front of the property have been the direct cause of non-economic loss suffered by the Applicant including significant embarrassment in such a small community. The illegal disposal of the tenant's goods included items of personal sentimental value that have substantially contributed to the distress and anxiety suffered as a result of the Landlord's breach of the agreement along with the inconvenience of having to go without items or source replacements for those able to be replaced." 9 The application was heard by the Tribunal on 9 November 2007 and orders were made on 10 December 2007 as follows: "(1) The landlord, Mr Ron Thomas, Mrs Debe Thomas and Ms Kysha Thomas, is to pay the tenant $10,000.00 on or before 21 January 2008." 10 The Tribunal provided extensive Reasons for Decision on 19 December 2007. The Reasons for Decision identified that the landlord breached s 24 of the Residential Tenancies Act 1987 (landlord's access to residential premises), s 29 (locks and other security devices) and s 22 (tenant's right to quiet enjoyment). 11 The Tribunal found that the Plaintiff was entitled to compensation on two bases. The first was in respect of her economic loss for her lost belongings where $2,503.00 was awarded. The balance of $7497.00 was awarded as compensation for her non-economic loss which was said to be for the distress, anxiety, and physical inconvenience, naturally arising from the landlord's breach. 12 The Application before me was an application by the First Defendant and was made without a Notice of Motion. Mr Evatt, who appeared with Mr Rasmussen for the First Defendant, informed me that it was the practice of the Defamation List that Notices of Motion were not filed or moved on. Mr Molomby SC who appeared with Ms Goodchild for the Plaintiff confirmed that that was so and indicated no prejudice from the absence of a Notice of Motion. 13 Mr Evatt identified the application as one being under Parts 13 and 14 UCPR to strike out that part of the claim relating to the First Defendant on the grounds that the First Defendant had already been awarded damages in respect of the newspaper article and that the damages awarded by the Tribunal were identical to the damages that are awarded in defamation actions for distress, hurt to feelings, anxiety, worry and injury to reputation. In a document handed up at the hearing of the application entitled "Orders sought by the First Defendant" it was said that the First Defendant "seeks orders pursuant to estoppel and/or res judicata as set out in para 4 of the defence." 14 Paragraph 4 of the defence reads as follows:

"Estoppel The First Defendant says the Plaintiff ought not to be allowed to commence or continue these proceedings because on 9 November 2007 the Plaintiff brought proceedings in the Consumer, Trader and Tenancy Tribunal (Tenancy Division) (RT07/14201) in which, among other things, she was awarded unliquid (sic) damages for hurt, upset and injury to reputation over the newspaper article complained of by the Plaintiff in this action. At the CTTT the Plaintiff claimed that the First Defendant breached her rights by causing the newspaper article to be published. The Plaintiff was awarded damages for her distress and public embarrassment for, among other things, the First Defendant being pictured in the local paper on the steps of the premises and making comments about the "tenants from hell". The Plaintiff gave evidence which was accepted by the Tribunal that she suffered considerable distress and that as a result of the First Defendant's actions (which included the causing of the newspaper article to be published and the statements made therein) the Plaintiff suffered humiliation and abuse in the local community such that she had to move away. Having claimed damages over the conduct of the First Defendant including her alleged conduct of publishing the article complained of, posing for the photograph and making the statements contained therein and having recovered damages for hurt, upset, embarrassment and loss of reputation the Plaintiff is estopped from bringing or continuing this claim which relates to the same subject matter and to the same damage as the proceedings brought before the CTTT." 15 Because there is said to be a res judicata and/or an issue estoppel arising from the Tribunal proceedings it is important to identify the jurisdiction of the Tribunal. Section 21 of the Consumer, Trader and Tenancy Tribunal Act 2001 provides: "General statement of jurisdiction (1) The Tribunal has such jurisdiction to decide matters, and such powers to make orders and otherwise exercise any function in connection with any such decisions, as is conferred on it by this or any other Act. …" 16 Further, s 5(2) provides: "The Tribunal has and may exercise such functions as are conferred or imposed on it by or under any Act." 17 A note in the authorised reprint of the Act lists the Acts which confer jurisdiction on the Tribunal amongst which is the Residential Tenancies Act 1987 but amongst which the Defamation Act 2005 does not appear. Indeed, nothing in the Defamation Act 2005 makes any reference to the Tribunal. 18 Section 16 of the Residential Tenancies Act 1987 deals with applications relating to a breach of a residential tenancy agreement. Sub-section (2) relevantly provides: "(2) The Tribunal may, on application by a person under this section, make one or more of the following orders: … (d) an order as to compensation, including (without limiting the Tribunal's power to make such an order): (i) compensation for loss of rent, and (ii) compensation where a landlord withholds or refuses consent to the removal of a tenant's fixture, and (iii) compensation for any other breach of the residential tenancy agreement, …" 19 The compensation referred to in s 16(2)(d)(iii) includes an award of damages for disappointment and distress proceeding from physical inconvenience caused by a breach of a residential tenancy agreement or from a breach of the contractual provisions to provide quiet enjoyment: Residential Tenancies Tribunal of New South Wales v Offe (Supreme Court of NSW, Abadee J, 1 July 1997, unreported) at p. 4; Strahan v The Residential Tenancies Tribunal (Supreme Court of NSW, Dowd J, 12 September 1998, unreported) at p. 6. 20 Defamation is an injury to a person's reputation and the purpose of general damages is to compensate the claimant for the effects of the defamatory statement. General damages serve three functions: to act as a consolation to the claimant for the distress he or she suffers from the publication of the statement; to repair the harm to his or her reputation; and as a vindication of his or her reputation: Patrick Milmo et al, Gatley on Libel and Slander, 11th ed (2008) Sweet & Maxwell at 9.2. 21 In Uren v John Fairfax and Sons Pty Ltd (1966) 117 CLR 118 (in a passage approved by the House of Lords in Broome v Cassell and Co Ltd [1972] AC 1027 at p. 1071) at p. 150 per Windeyer J: "It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways - as a vindication of the Plaintiff to the public, and as a consolation to him for the wrong done." 22 In McCarey v Associated Newspapers (No. 2) [1965] 2 QB 86 at p. 104-105 per Pearson LJ: "Compensatory damages … may include not only actual pecuniary loss and anticipated pecuniary loss or any social disadvantages which result, or may be thought likely to result, from the wrong which has been done. They may also include the natural injury to his feelings - the natural grief and distress which he may have felt having been spoken of in defamatory terms, …" Res judicata 23 The rule as to res judicata can be stated by saying that, where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action: Jackson v Goldsmith (1950) 81 CLR 446 at p. 466 per Fullager J. Although there is a difficulty in speaking of a cause of action in the Tribunal it is clear that the doctrine of res judicata applies to a judicial decision of a tribunal upon any matter over which it has jurisdiction to give a final judicial decision: Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353 at p. 453. 24 The Court of Appeal held in Cachia v Isaacs (1985) 3 NSWLR 366 that the predecessor of the present Tribunal was sufficiently invested with powers to define issues and solemnly determine them as between the parties to it that enabled an issue estoppel to arise in relation to such a determination. Certain comments of Hope JA at p. 382 and agreed by Kirby P at p. 368 suggest that the powers would be sufficient in appropriate circumstances to give rise to a res judicata also. In my opinion, nothing in the Consumer, Trader and Tenancy Tribunal Act 2001, particularly in the light of the powers invested in it under the Residential Tenancies Act 1987, would mean otherwise than that Cachia v Isaacs governs the position of the present Tribunal. 25 The question to be determined is whether the cause of action in the later proceedings is the same as in the former proceedings. In this regard, Fullager J said in Jackson at p. 467: "In the first place, if A sues B to judgment and in subsequent proceedings between them a plea of res judicata is raised, the primary question will be whether the cause of action in the later proceedings is the same as that which was litigated in the former proceedings. This was the question which arose in the well-known case of Brunsden v Humphrey (1884) 14 QBD 141. It was held there that the causes of action were not the same. The injuria was the same but the damnum was different, and since damage was 'of the gist' of the particular action, the causes of action were not the same. The plea therefore failed." 26 To the extent that one can characterise the application to the Tribunal as a cause of action for the purpose of determining whether a res judicata exists from the Tribunal's decision, it seems clear that the claim was one for damages for breach of the residential tenancy agreement by the landlord. In that regard, the heading on the document of Orders and Reasons for Decision of the Tribunal dated 19 December 2007 includes the following: " APPLICATION: The tenant seeks orders that the landlord pay the tenant compensation for economic and non-economic loss arising from the landlord's breach of the residential tenancy agreement." 27 In the section headed "Reasons for Decision" the following appears: "APPLICATION: On 13 March 2007, the tenant, Ms Sharlene Free lodged an application in the Tribunal against the landlords: Mrs Debe Thomas, Mr Ron Thomas and Ms Kysha Thomas. This application sought various orders, including an order for the tenant to be able to access the premises to clean the house and for the tenant's belongings to be returned to her.

This application was later amended to an application that the tenant be paid compensation of $2,503.00 economic loss and $7,497.00 for non-economic loss arising from the landlord's breaches of the residential tenancy agreement." 28 It seems clear also that the jurisdiction of the Tribunal was based and grounded on the existence of the residential tenancy agreement between the parties - see in that regard p. 2 of the Reasons for Decision and s 16 of the Residential Tenancies Act. 29 The claim in this Court was a claim only for damages for defamation arising out the alleged publication by (inter alia) the First Defendant of an article in the Milton Ulladulla Times. 30 For the Plaintiff to have succeeded in the claim brought in the Tribunal the article was relevant only to the issue of damages and not to any issue of liability on the First Defendant's part. The Plaintiff had to prove in those proceedings that there had been a breach by the landlord of terms of the residential tenancy agreement and/or her right of quiet enjoyment under that agreement. To succeed in the defamation claim the Plaintiff had to prove an injury to her reputation by reason of the publication of the matters specifically referred to. 31 In the present case, the highest the matter can be put by the First Defendant is, in effect, that the damnum is the same although the injuria is different. But the same result must flow as in Brunsden v Humphrey. Both injuria and damnum go to make up the action, and the injuria or legal wrong differs between the two claims. 32 The causes of action were fundamentally different. It cannot be said that any res judicata exists by virtue of the decision of the Tribunal. Issue estoppel 33 An issue estoppel arises where a final judgment determines any issue of fact or law which was legally indispensable to the decision. In those circumstances, the parties to that decision are bound in the sense that they are precluded in subsequent proceedings from asserting to the contrary of any issue fundamental to the judgment: Blair v Curran (1939) 62 CLR 464 at pp. 531-532; Jackson v Goldsmith at p. 466. 34 In this regard, the First Defendant points to a number of matters contained in the Reasons for Decision of the Tribunal, the issue being that the Plaintiff was injured in her reputation and has been awarded damages for that and for distress, hurt feelings, anxiety and worry. 35 The First Defendant points to what the Plaintiff's representative informed the Tribunal including that the landlord's actions breached the tenant's right to peace, comfort, privacy and quiet enjoyment, that Fisherman's Paradise is a small community of only half a dozen streets and a few hundred residents, that the breach was continued and compounded by the placing of the sign in the front yard of the premises, that the landlord continued to breach the tenant's rights by causing the article to be published, and that the actions by the landlord degraded the tenant and caused significant embarrassment and distress to her. 36 The First Defendant also relies on the evidence of Ms Webb before the Tribunal who testified about the obvious distress caused to the Plaintiff by the landlord's actions. The First Defendant relies on evidence given by Ms Kysha Thomas at the Tribunal which deals with the claim by the Plaintiff for non-economic loss arising out of the article in the newspaper as having informed the decision of the Tribunal. The First Defendant relies on particular findings of the Tribunal as follows: "The tenant suffered distress as a result of the landlord's actions. This finding is based on the evidence of Ms Free, Ms Webb, Ms Lea Free, Mr Leslight and Ms Mondinos." (p. 17)

The Tribunal may award damages for non-economic loss if the injured party suffered physical inconvenience, distress or disappointment as a result of a breach of the residential tenancy agreement. …

The tenant is therefore entitled to a damages award for the distress, anxiety, and physical inconvenience, naturally arising from the landlord's breach.

The tenant suffered the distress and mental upset of being locked out of the premises she rented, with no access to collect her belongings.

The tenant suffered the distress and public embarrassment of having her belongings piled on the front lawn, the landlord being pictured in the local papers (sic) on the steps of the premises and making comments about the 'tenants from hell' and the landlord placing a large sign at the front of the premises stating "NO FREE RENT". Although the landlord denies that this was intended to be a play on the name of the tenant - Ms Free - the Tribunal accepted that the tenant and others in the community interpreted it that way. The Tribunal accepted the tenant's evidence that this caused her considerable distress and that as a result of the landlord's actions she suffered humiliation and abuse in the local community such that she had to move away. In doing so, she has lost the support of family and friends who live in Fisherman's Paradise. …

The way in which the landlord breached the tenant's right to quiet enjoyment of the premises was, in the Tribunal's view, close to a worst case scenario. In addition to the multiplicity of the breaches, and their severity, the evidence indicates that they were carried out by the landlord in the face of persistent evidence and advice that the tenancy had not ended." (p. 22) …

"Damages for non-economic loss were assessed on the basis of prevailing general standards in the community having regard to the subjective experience of the innocent party arising from the breach ( O'Brien v Dunston (1965) 39 ALJ 78)." 37 Before there can be an issue estoppel the same principles must apply as apply to res judicata with regard to the Tribunal that makes the judgment out of which there is said to be an issue estoppel: Linprint Pty Ltd v Hexham Textiles Pty Ltd (1991) 23 NSWLR 508 at pp 521-522. For the reasons which I have given earlier in reliance on Cachia v Isaacs, an issue estoppel is capable of arising from the Tribunal proceedings. 38 In the present case, the Tribunal had jurisdiction to award damages for distress, anxiety and physical inconvenience arising from the landlord's breach of the residential tenancy agreement. Pursuant to that jurisdiction it awarded such damages. It appears from the portion of the Reasons for Decision which I have set out (para [36] above) and also by reason of the breaches set out on p. 24 of the Reasons for Decision that the Plaintiff was compensated in part for matters associated with the publication of the article and the erection of the sign. It is apparent also that the damages for non-economic loss were also awarded because of the landlord's breaches of the particular sections of the Act to which I have made reference earlier. 39 It seems to me, however, that the only way an issue estoppel could arise in relation to those findings would be if the First Defendant sought to argue in the defamation proceedings that the Plaintiff had not suffered distress or anxiety from such publication and the erection of the sign. An issue estoppel might also operate if, for her own reasons, the Plaintiff wanted to assert, contrary to the Tribunal's findings in that regard, that her anxiety and distress did not come from the publications and the erection of the sign: Queensland Trustees Limited v Commissioner of Stamp Duties (Queensland) (1956) 96 CLR 131 at p. 138. So far from doing that, the plaintiff in the defamation proceedings makes a claim for damages that includes damages for distress and anxiety arising from the publication of the article. 40 It seems clear that the doctrine concerning issue estoppel operates against the party who lost on the issue concerned. So, in Jackson v Goldsmith per Fullager J at p. 466 to what Lord Ellenbrough said in Outren v Morewood (1803) 102 ER 63 as follows: "His Lordship said the parties and privies are 'precluded from contending to the contrary of that point, or matter of fact, which having been once distinctly put in issue by them … has been, on such issue joined, solemnly found against them.'" 41 Similarly, in the area of extended estoppel, per Hunt J in Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 (in a passage approved by the Court of Appeal in Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198 at [31]) at p. 414: "The issue determined in the earlier case which is sought to be litigated in the later case must be one which the party propounding it in the latter lost in the former. The principle does not work in reverse to enable the party who won the issue in the earlier case to prevent it being litigated in the later proceedings by someone who was not a party in the former." 42 In those circumstances, there is no issue estoppel against the Plaintiff in relation to the finding that she was entitled to damages for non-economic loss including damages for distress and anxiety from the publication in the newspaper and the erection of the sign. The same damages 43 The First Defendant appeared also to put her application more generally on the basis that the Plaintiff should not be allowed to continue with the claim to get "the same damages or virtually the same damages" (see at T26.36). It was submitted that the damages did not have to be identical to prevent the Plaintiff being allowed to pursue the defamation proceedings. 44 As I have noted earlier, general damages in a defamation action are principally to compensate the defamed person from the injury to his or her reputation but the damages may also include damages for distress or grief that is occasioned as well. It is clear, on the other hand, that the Tribunal had no jurisdiction or power to award damages to compensate the Plaintiff for the injury to her reputation. Nor did the Tribunal purport to do so. The damages it awarded for non-economic loss were said to be "for the distress, anxiety, and physical inconvenience, naturally arising from the landlord's breach". It is further clear from the Reasons of the Tribunal that the distress, anxiety, and physical inconvenience arose from a number of matters not directly concerned with the publication of the article nor with the erection of the sign. These matters are more particularly detailed on pages 22 and 24 of the Tribunal's Reasons and, as the eight points listed on page 24 show, are largely related to particular breaches by the landlord of ss 22, 24 and 29 of the Residential Tenancies Act . 45 Whilst it appears some of the damages for non-economic loss awarded by the Tribunal may overlap with damages that a Court might award in a defamation proceedings, that overlap can be dealt with at the trial of the defamation proceedings and even if, as Mr Evatt submits, the overlap is a matter which goes to liability in the defamation proceedings, that is also a matter which can be adequately dealt with in those proceedings in a way that will protect any rights of the First Defendant. Part 13 Rule 4 and Part 14 Rule 28 46 I noted above that the application was made under Parts 13 and 14 UCPR to strike out the claim against the First Defendant based on estoppel and/or res judicata. For the reasons I have given, the First Defendant does not establish that a res judicata exists nor that there is a relevant issue estoppel which precludes the Plaintiff maintaining her defamation proceedings against the First Defendant. 47 However, there is a further basis for my decision to decline the application. The principles that govern the determination of an application under these Parts of the Rules, particularly an application under Part 13 Rule 4, are derived from General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. 48 The application was neither put nor resisted on the basis of these principles. Rather, the application was argued on the basis that I should make findings whether or not a res judicata or issue estoppel existed. 49 Even if I considered that, on balance, the First Defendant's arguments were correct (which I do not) it seems to me that, acting in accordance with the principles of General Steel Industries, I could not summarily dismiss the Plaintiff's defamation proceedings against the First Defendant because I could not regard the claim made in those proceedings as manifestly groundless or untenable as General Steel Industries requires. In saying that, I am mindful of the fact that this application was based largely on legal argument and that Barwick CJ allowed for the fact that argument, even of an extensive kind, might be necessary to demonstrate that the case of a Plaintiff is so clearly untenable that it cannot possibly succeed. The argument on this application did not do so. 50 The application is dismissed. The First Defendant is to pay the Plaintiff's costs of the application. **********

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