Gregory v Anderson

[5] The Caboolture centre has about 160 members. Mr Gregory was the secretary - treasurer up until the end of 2004. He was also the editor of the newsletter, and retained that position into 2005. Mr Anderson joined the Caboolture centre in 2004.

[6] Mr Gregory became the secretary in early 2002. As part of the handover from the previous committee, he was given the association's computer. Mr Gregory had an interest in computers. He helped other people out with their computers (including Mr Anderson, in 2004.) He built them. He gave them away. He went to various organisations as a teacher. He taught computers to the senior citizens at Hornibrook. It was well known by the Caboolture association that he was interested in computers.

[7] When he took the computer home, there appeared to be nothing on it. He ran a program called "Get Data Back" over it. He discovered that it contained various information, including a lot of child pornography. He told his partner, Ms Leanne Jackson. The Caboolture treasurer, Mr Ray Richardson, visited his house, and he told him. He offered to show Mr Richardson what was on the computer. Mr Richardson declined, and said that he should go to the police. He also offered to show it to Mr Ben-Avi, the vice-president.

[8] Mr Gregory informed the state president, Mr Jones, and the Caboolture president and vice-president (Mr Ben-Avi) about the pornography. There was some concern about any police investigation. They believed that it might not be carried out properly. The Caboolture president suggested that he should make a back up record before handing over the computer. He discussed that with Mr Jones. He decided to do that. He transferred the pornography onto two CD's. He gave one to Mr Jones and kept one himself. He tucked it right at the back of a draw which he had full of CDs. He then telephoned the Caboolture police station, and was advised to take the computer to police at Redcliffe. He did that. He gave it to a senior constable in the Juvenile Aid Bureau. He told him that the two back ups had been made. He was told that the police would say no more about that as long as they were destroyed when the computer was returned. Mr Gregory relayed that information to the Caboolture police.

[9] The Caboolture association had regular general meetings of the members. Usually between about 12 and 20 or so members would attend. Mr Gregory told a general meeting, around March 2002, what he had done. That was soon after he handed the computer to the police. Every now and again he would check with the senior constable from the Juvenile Aid Bureau to see what was happening. A lot of time passed. He would inform the next general meeting that the police had still got the computer. Mr Anderson attended those meetings after he joined the Caboolture centre, in 2004.

[10] Mr Gregory assisted Mr Anderson with his computer, because he was a beginner with computers. Mr Anderson and another member called Peter Fyles came around to Mr Gregory's house at Caboolture, in 2004. Mr Anderson knew that he had a copy of the pornographic material from the association's computer. It should be accepted that Mr Gregory got the disk out of the bottom of the drawer. It can also be accepted that Mr Anderson, not being skilled in the use of computers, only recalls that the images appeared on the monitor. They watched a few images, over a very brief period of time. Mr Gregory says that he did not show the pornography to anyone else.

[11] In late 2004 the police returned the computer, with the pornography removed from it. Mr Gregory installed a Windows program. He destroyed the CD containing the pornography. He tried to contact Mr Jones, the state president, but missed him. He left a message to the effect that the computer was back, the police couldn't find anything, and that the disk he held was to be destroyed. Mr Jones did that.

[12] The evidence shows that Mr Gregory held the disk for a good reason. A few members such as Mr Jones and Mr Ben-Avi knew precisely why he had it. Other members would have had less knowledge about it. It is probable that some paid less attention to what was said about it. It is probable that some did not attend, and knew little or nothing about it.

[13] The Caboolture association held various social events. A significant reason for TPI servicemen and women to join the association was to enjoy social contact with each other, and their families. There was a Christmas party at the end of 2004, which many people attended. They included Mr Gregory and Mr Anderson. Mr Gregory's partner Leanne Jackson was present. It is probable that everyone concerned was drinking. There was some conversation between Leanne Jackson and Mr Anderson. The exact details are unimportant. The end result was a telephone call from Mr Gregory to Mr Anderson, around late December 2004. Mr Gregory was critical of him in a couple of ways, including a suggestion that he had propositioned Leanne Jackson.

[14] Mr Anderson denied that. Mr Gregory was also critical of him for corresponding with a woman over the internet. Mr Anderson denied any improper behaviour.

[15] So, by early 2005 Mr Gregory and Mr Anderson were not on good terms. Mr Anderson was apparently most upset about what Mr Gregory said to him.

[16] In early 2005 other difficulties beset the Caboolture committee. There was a major internal conflict about the role of the president. Mr Gregory and Mr Anderson, as committee members, were players in a volatile situation. Some feared that the Caboolture centre would close, because of a mass walkout of members.

[17] Meetings were arranged for 1 February 2005. A committee meeting was to take place before a general meeting. There is a conflict in the evidence as to whether or not the president actually attended on that day. In any case, he was not present during that part of the meeting which gave rise to the comment which Mr Gregory now complains about. At the critical time, the following people were present:

Mr Jones (State president and chairman)

Mr Allen - (secretary)

Mr Gregory - (the plaintiff)

Mr Fowler

Mr Anderson (the defendant)

Mr Kirkwood

Mr Hall

Mr O'Brien

The meeting was recorded by Mr Gregory on a hand held digital recorder. The evidence here includes a CD onto which that recording has been transferred, and a "cleaned up" CD, which has had much of the background noise removed. Mr Broadhurst did that. There is considerable controversy between the witnesses about the accuracy of the CD recording. It was asserted that the digital recording had been manipulated in some way so that parts of the debate are not included. Others suggested that the order of the discussions has been rearranged on the CD.

[18] It is Mr Gregory's case that an exchange between himself and Mr Anderson included the following words on the disk, at about the nineteenth minute of the recording:-

It's evident like that bloody brick wall is okay? So whilst that stays there's going to be unrest, alright? The only way that we feel that we can alleviate the problem is to get rid of him and get rid of his offsider. (A reference to Mr Gregory and Mr Allen)

Well, we've got the same problem at least, bloody, I don't lie here at your expense like bloody Hylton does.

No ahh, sorry wrong, wrong, wrong, a false accusation, another lie that you tell, okay. The same as the girlfriend that I supposedly have, another lie that you tell. Okay.

Go for it, go for it, also bring your computer in we'll check out the bloody pornography that you have got of kids below the age of six naked.

[19] Mr Gregory says that the last comment by Mr Anderson, was defamatory. Some of the witnesses deny that Mr Anderson said such a thing, or used those words. Mr Gregory said he did use them. When crossed-examined, Mr Anderson admitted that he did say those things up to and including the word "pornography". At first he said that he made no reference to "kids below the age of six naked," Then he conceded that he may have said that. See the transcript at page 86, line 5 (T86L5). Later, he said that he had mentioned "young children in different degrees of undress". See T88L35 and T89L35.

[20] Mr Allen recalled that Mr Anderson used the word "pornography". He recalls that he said words to the effect, "what about the pictures you have of children in varying stages of undress under the age of ten".

[21] Mr Jones also says that the words in the transcript were said by Mr Anderson. Mr Hall's evidence was to the same effect. Mr Fowler recalled that he said "why do you have pictures of young children in different degrees of undress on your computer?" Mr O'Brien recalled words to a very similar effect.

[22] In view of that evidence, it should be accepted that the cleaned up tape which was played in court accurately recorded Mr Anderson's statement in the transcript beginning "Go for it, go for it..."

[23] In Queensland, the basic principles about the law defamation are contained in the Defamation Act 1889-1995. The unlawful publication of defamatory matter is an actionable wrong. It is unlawful to publish defamatory matter unless such publication is protected, or justified, or excused, by law.

"4(1) any imputation concerning any person...whether living or dead, by which the reputation of that person is likely to be injured,...or by which other persons are likely to be induced to shun or avoid or ridicule or despise the person, is called "defamatory", and the matter of the imputation is called "defamatory matter".

(2) an imputation may be expressed either directly or by insinuation or irony"

[25] It was not disputed here that the above words were defamatory of Mr Gregory. They clearly were. The natural and ordinary meaning of the accusation was that Mr Gregory was a person who enjoyed looking at child pornography including naked kids below the age of six, and that he was a person who was sexually attracted to young children. That natural and ordinary meaning would not include the idea of him being an active paedophile, who touched children. It would include the idea of a paedophile, as meaning a person who was sexually attracted to children.

[26] The defence filed in the court was prepared by Mr Anderson's former solicitors. It raised a defence based on s.16(1)(g) of the Defamation Act. The defence asserted several things: -

(a) Any publication of defamatory matter was made in good faith

(b) The publication was made in order to answer or refute some other defamatory matter published by Mr Gregory concerning Mr Anderson in that: -

(i) At the pre-committee meeting on 1 February 2005, Mr Gregory orally published a concern of Mr Anderson's words to the following effect:

"what about you coming onto Leanne (Mr Gregory's partner) at the Christmas party"

(ii) The words to that effect referred to above meant in a natural ordinary meaning and were understood to mean that Mr Anderson: -

A. Behaved in a manner towards a woman which was improper, offensive and unbecoming to a committee member of the association

B. Was a person who made sexual advances or approaches to a woman who is in a relationship and is not his wife

C. Was a person who made sexual advances or approaches to a woman who the Defendant knew to be in a relationship with another member of the association

D. Was a person who is willing to be unfaithful to his wife.

(iii) The imputations referred to [above] were defamatory [of Mr Anderson].

[27] It is the impact on the reasonable person who hears or reads words that makes them defamatory. In this case, Mr Jones, for example, knew all about the true situation and thought that Mr Anderson's statement was "a load of rubbish". That knowledge does not stop the words being defamatory. And it can be safely inferred that others, who heard the words (or read the email, discussed below) did not have his level of understanding about the actual facts.

[28] In evidence, Mr Anderson insisted that whatever he said to Mr Gregory was in response to Mr Gregory raising the topic of his conduct towards Leanne Jackson. As Mr Anderson said at the trial:-

"I...asked Mr Gregory a question on which I was entitled to as a committee member. The question in question was in response to a question that he put to me that he requested more elaboration on my supposedly being flirtatious with his lady friend, Ms Leanne Jackson, and I responded to him that I had already told him that I denied all knowledge of that allegation and, for that matter and I continue to say for the matter how about you explaining why you are in position of material pertaining to children in different degrees of undress..." (T38L30)

[29] The CD prepared by Mr Broadhurst and transcribed does not reveal such provocative questioning by Mr Gregory. Mr Anderson, and some of the witnesses, insisted that it had preceded Mr Anderson's accusation about the pornography. Mr O'Brien recalled some comment by Mr Gregory, but said that it happened at the end of the meeting.

[30] Mr Richardson said that he had experience with Mr Gregory before, taping meetings and then only playing back that section that supported what he wanted. According to Mr Allen, Mr Gregory told him that he had the knowledge and ability to tamper with and change the wording of a recorded conversation to suit his own purpose to the detriment of others. Unfortunately, Mr Anderson, who appeared on his own behalf, did not put those statements to Mr Gregory. Mr Gregory and Mr Broadhurst asserted that the recording was accurately transferred to the CD's.

[31] It is difficult to know where the truth lies. Not all of the gathering on 1 February was recorded. It seems likely that any preliminary social conversation was not recorded. There was no effort to record the general meeting which followed the committee meeting. Dishonest manipulation apart, it is possible that some provocative comment by Mr Gregory was made, and not recorded.

[32] Perhaps there is a clue to the true position in Mr Anderson's reference, in the above extract of their exchanges, to "the girlfriend that I supposedly have". That was meant to refer to Mr Gregory's earlier suggestion that he had an improper relationship with a woman over the internet. It is not a reference to Ms Jackson.

[33] Those who work in these courts know that honest people can have surprisingly different recollections of the same events. Different people listen closely at different parts of a meeting. Memories fade. There is often some reconstruction. Others discuss events, and it can be hard to disentangle personal memories from the recollections of others. Strong personal feelings (there were plenty at the meeting) sway judgment and impartiality.

[34] On balance, I am not persuaded that a provocative remark by Mr Gregory immediately preceded the defamatory words spoken by Mr Anderson.

[35] However, if that conclusion is wrong, then it makes no difference to the outcome of this case. Suppose Mr Anderson is right, and Mr Gregory's demand to know about his "being flirtatious" happened at the meeting. Mr Anderson might have found it inappropriate, annoying and embarrassing. Worse, he may have felt that it carried the meaning set out in the defence - that he was prepared to behave very badly indeed. The question is, would the defamation law allow him to respond in the way that he did? Would it allow him to respond to an attack about his conduct at the Christmas party, by asserting, in effect, that Mr Anderson had child pornography on his computer because he had a sexual interest in children? The answer is that he could not do that. The defence relies on s.16(1)(g) of the Defamation Act: -

"It is a lawful excuse for the publication of defamatory matter... if the publication is made in good faith in order to answer or refute some other defamatory matter published by the person defamed concerning the person making the publication or some other person."

[36] The limitation is in the words "in order to answer or refute some other defamatory matter". If a persons' character or conduct is attacked, he is entitled to answer such attack. The response must be published in good faith and be fairly relevant to the accusations that are made. Mere retaliation, which cannot be described as an answer or explanation, is not protected. It is true that a person in Mr Anderson's position would not be required to be diffident in protecting himself, and would be allowed a considerable degree of latitude. The law does not concern itself with niceties in such matters.

[37] The central difficulty is to distinguish between mere retaliation and attacking the creditability of an opponent in legitimate self defence. See Gatley on Lible and Slander 10th Edition (2004) at para 14.49. To the same effect is the decision of the New Zealand Court of Appeal in News Media Ownership v Finlay [1970] NZLR 1089 at 1095. The Court adopted the principles set out in Odgers on Lible and Slander 6th Ed. at page 240: -

"... There is a class of cases which may be grouped under the heading of legitimate self-defence. Where an attack has been made on the defendant, he is entitled to answer it and to communicate his answer to all who heard the attack... a man who has been attacked may, in rebutting the charges, at the same time retort upon his adversary which such a retort is a necessary part of his defence or fairly arises out of the charges made against him... but even in rebutting an accusation, the defendant must not intrude unnecessarily into the private life of his assailant, or make counter charges against his character, unconnected with his original charge against the defendant. The privilege extends only to such retorts as are fairly the answer to the plaintiff's attacks."

[38] The Court went on to adopt earlier English and American decisions to this effect: -

"... a privilege of the nature of that claimed by the defendant extends only so far as to enable him to repel the charges brought against him - not to bring fresh accusations against his adversary. This privilege is in fact a shield of defence, not a weapon of attack.... It must not be supposed that, when a libellous article is published, the person libellous is at once authorised to publish any and all kinds of charges against the defender upon the theory that they tend to degrade him, and thereby discredit his liable statements... the thing published must be something in the nature of an answer, like an explanation or denial. What is said must have some connection with the charge that is sought to be repelled"

[39] On any view of the evidence, Mr Anderson went too far in attacking Mr Gregory. The defamation law gave him no protection. And, even if he did not go too far, there is still a necessity for the statement to be in good faith. As this judgement explains below, the statement was not true. An untrue statement means that it was not in good faith.

[40] Towards the end of February, Mr Gregory telephoned and sent emails to Mr Anderson. He asked him to apologise. He sent a draft apology. His solicitors also sent an email, asking for an apology.

[41] Mr Anderson refused to apologise. His attitude was argumentative and defiant. He said: "I will accept your apology for having the hide to accuse me of having approached your woman..."(email 24 February) and "as for supposedly putting the hard word on Leanne..."(email 24 February).

[42] Mr Gregory's solicitors again asked for an apology. Again, Mr Anderson refused. Then, on 3 March, he sent an email to Mr Bill Allen, to "Bazil Baxter" (a pen name for another member) and to Mr Dodgshun (another member). He also sent it to Mr Gregory. This was the email: -

"With the view to create "unrest"...

Guess who is a member of the TPI association that lives towards the western side of the Caboolture township wears his hair longer than "army regulations" would permit and is in position of photos of little boys in different degrees of undress?...

Clue...you shall have to ask me in person... and all shall be known of this person."

[43] At the time, Mr Gregory lived on the western side of the Caboolture township. He wore his hair long, in a pony tail. There is no evidence here that anyone else in the TPI association was said to be in possession of photos of little boys in different degrees of undress.

[44] "Bazil Baxter" did not give evidence. Mr Allen said that the email could have referred to anyone. However, it is notable that in his reply to Mr Anderson, he said this: -

"... could you confirm who the individual is that you describe below and also are you positive that the pictures that you indicate are on his personal computer" (emphasis added)

There was no mention of a personal computer in the email.

[45] Mr Anderson went on to say, in a reply to Mr Allen and at the trial, that he had been referring to himself. As he put it in his evidence: -

"...This email has nothing to do with the apology. This email has to do with - a shadow of my discontent for people making innuendo, suggestion or surmising without fact...this was based purely on the fact that too many people were making too many assumptions on too many facts without - proof of - those submissions - that they surmise... I referred to myself... I say that on oath. Yes I am definitely on oath... those who did ask me were informed with whom it was I was referring to..."(T91)

[46] Mr Anderson's personal and private intention is unimportant. The important thing is to assess the impact on reasonable people who read the email. If the email was understood by some people to refer to Mr Gregory, that is enough. Even if the words were taken to refer to either of them, that would be enough.

[47] Mr Dodgshun, who had not been at the meeting, sent this comment to Mr Bill Allen, the secretary: -

"Bill... just downloading my email and found this one addressed to me... this is just bloody great... I do not know what is behind this... I don't want to know... but has the potential to split the centre. Leaves a bad taste in mouth"

[48] As those words indicated, Mr Dodgshun thought that the email referred to Mr Gregory. That was because he knew that he lived west of Caboolture and had a non military hair cut. He had not heard of anything about the February meeting. His reference to "split the centre" is a reference to differences between Mr Gregory and Mr Anderson.

[49] Mr Hall though that the email referred to Mr Gregory, "without a doubt", because of the description.

[50] Mr Ben-Avi got the email as a "forward". He thought it could only have been referring to Mr Gregory, with its reference to "the west" and the photos.

[51] Mr Fyles, a member of the Caboolture association, identified Mr Gregory from the email. (He also went on to say that it had affected Mr Gregory's reputation.)

[52] Significantly, the email to Mr Bill Allen was sent to the address of the Caboolture TPI office. It came to Mr Allen through the official website. Because he was concerned about it, he sent it on to Mr Jones at state headquarters. A lot of people in the Caboolture association came to know about the email.

[53] Mr Jones gave evidence that the email had been received by the state secretary. She gave it to him. She had read it. All members of the state management committee had access to the correspondence, and would have been aware of the email. He became aware through phone calls and conversations that it had gone fairly widely throughout the association.

[54] It was obvious to Mr Jones that the email referred to Mr Gregory. He explained that the references to the address, the long hair, army regulations, and the possession of photos of little boys tied in with the allegations made against Mr Gregory. He went on to say that Mr Gregory is quite well known within the association, and quite well known among the members of the state management committee. He explained that a fair number of the management committee would have been aware of the existence of the CD that was forwarded to the state office with the contents of the computer. He said that Mr Gregory had been well known within the association for a considerable number of years.

[55] Again, there was no dispute about the defamatory nature of the email. To suggest that a man is in possession of photos of little boys in different degrees of undress, without more, is obviously defamatory. It was not submitted otherwise.

[56] The defendant's defence relies upon the issue of identification. The defence asserts that the email did not refer to Mr Gregory. No other ground of defence is raised in that pleading. Even if Mr Anderson was playing a game, "to create unrest", the unfortunate result was that many association members took it to refer to Mr Gregory.

[57] The defence does not rely on the defence of truth and public benefit. However, in his final address to the court, Mr Anderson maintained that he was not liable to Mr Gregory because what he said was true. He was referring to the statement at the meeting. It can be assumed that he would say the same about the email, if it were taken as referring to Mr Gregory.

[58] Section 15 of the Defamation Act says that: -

"It is lawful to publish defamatory matter if the matter is true, and if it is for the public benefit that the publication complained of should be made."

[59] It is sufficient to say that Mr Anderson's imputations were not true. The true position was that Mr Gregory had a CD containing pornographic material that he held it in his capacity as an officer bearer of the Caboolture association. He held it as part of an agreed decision to refer the matter to the police, with the intention that the CD would be destroyed when the police investigation was complete. That happened. The statement at the meeting, and the similar assertion in the email, paint a quite different picture. The statement in the meeting referred to pornographic material on his computer. There was a real distinction between having downloaded material, and possessing a CD with the same information. The words "... bring your computer and we'll check out the bloody pornography that you have got of kids below the age of six naked" are far removed, in the impression they would create on any reasonable person who heard them, from the true facts. Mr Anderson's statement and email did not state the true.

[60] After the meeting Mr Gregory began to appreciate the damage that the statement could cause him. He approached the secretary and the president. They advised him to ask Mr Anderson for an apology, before taking legal action. He then phoned Mr Anderson and asked for the apology. It was never given. Mr Anderson sent a further email, saying ... "I shall be taking you to the cleaners, mate..."

[61] Mr Gregory is a TPI veteran, still suffering from an old back injury from 1968. He resigned from the army in 1994, when he had surgery for his back, which rather worsened his symptoms. He had PTSD. In 2002 he had some depression because of his personal circumstances. He returned to his psychiatrist after the events earlier this year. He told the psychiatrist that he was increasingly anxious and had lost his appetite as well as suffering from intermittent nausea. He had a sense of shame about the allegations that were spreading like wildfire through the association and his helplessness to counter them. His anxiety quickly resulted in sleep disturbance - he had particular difficulty in going to sleep. His psychiatrist prescribed some new medication. He saw his psychiatrist again in April. He had become increasingly avoidant. He avoided all Anzac Day celebrations because of his sense of shame. His anxiety symptoms had worsened and he had particular sleep difficulties. He saw his psychiatrist again in May. He was still not sleeping well. He was waking up every few hours despite using his medication.

[62] Significantly, Mr Gregory has been avoided by people that he would normally speak to. There is no reason to doubt the evidence of Mr Hall, to the effect that he had noticed the change in Mr Gregory because of these events. Mr Hall noticed that he became particularly down trodden and miserable and totally preoccupied with "this business", being basically (in Mr Gregory's opinion) branded a paedophile. As Mr Hall pointed out being in the army and having years of service and being branded as paedophile, directly or indirectly, is important with regard to his reputation. For that reason, Mr Gregory took the matter to heart and became particularly preoccupied about it. Mr Hall also noted that other members tended to shun Mr Gregory.

[63] It is necessary to keep in mind that the past few years have seen increased community awareness about the seriousness of child pornography, often found on the internet and downloaded onto a computer. There are now well publicised prosecutions for such activities.

[64] It is not surprising that Mr Gregory has been greatly hurt by the defamatory statement and email. His health and reputation have suffered.

[65] The role of an award for damages and defamation cases has been explained in the High Court of Australia in Carson v John Fairfax and Sons Limited [1993] HCA 31; (1993) 178 CLR 44 at 60-61.:-

"Specific economic loss and exemplary or punitive damages aside, there are three purposes to be served by damages awarded for defamation. The three purposes no doubt overlap considerably in reality and ensure that 'the amount of the verdict is the product of a mixture of inextricable considerations'. The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant's personal and (if relevant) business reputation and vindication of the appellant's reputation. The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant. Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of appellant's reputation. 'The gravity of the libel, the social standing of the parties and the availability of alternative remedies' are all relevant to assessing the quantum of damages necessary to vindicate the appellant."

[66] The findings in this judgement will serve to vindicate Mr Gregory's claims and restore his reputation. There is not the slightest evidence that he had the CD for any improper reason, or that he had any interest in child pornography.

[67] Mr Anderson's conduct in refusing to apologise and maintaining his allegations in the later email, have aggravated the hurt to Mr Gregory. An earlier apology would have seen the end of the dispute. Instead, Mr Anderson will now have to pay a substantial amount of damages. Because of his continuing annoyance about the Christmas party conversation, his conduct has been reckless, defiant, and ill-advised. He maintained that attitude right up to the end of the trial.

[68] Caution has to be used in looking at any other award of damages. For example, in the District Court's decision in Atholwood v Barrett 2004 QDC 505, serious and unjustified allegations of paedophilia were made against a businessman. They involved allegations of actual interference with a child. The personal consequences for the plaintiff were serious. The defamatory statements caused the plaintiff to suffer a reactive depression or adjustment disorder with affected mood. He was still adversely affected at the time of the trial. The damages in that particular case were assessed at $100,000.00. Recently, also in this court, a barrister recovered damages against litigant who had defamed him in a statement to court officials. The defamatory remarks were probably restricted to some members of the court staff. He was awarded $15,000.00 damages. See Favell v Mbuzi [2005] QDC 356. In Kilpatrick v Van Staveren [2002] QDC 293 this court awarded damages to a mine employee who had wrongly and maliciously accused of stealing some equipment. The defendant was ordered to pay $30,000, plus $10,000 for aggravated damages, a total of $40,000. In New South Wales a Magistrate, who was a public figure, was defamed by a newspaper which implied that she had been biased in the exercise of her duties. There was hurt and damage to her reputation. The Court of Appeal assessed the damages, including aggravated damages, at $175,000. (See John Fairfax Publications Pty Ltd v O'Shane (No 2) [2005] NSWCA 291).

[69] Damages are essentially compensatory. They can be designed to punish - an award of exemplary damages has that aim. There is no need to give exemplary damages in this case.

[70] However, any award of damages here must contain an element of aggravated damages. This action has been brought entirely because Mr Anderson's own recalcitrant conduct.

[71] Damages should be assessed at $40,000 including $10,000 aggravated damages.

[72] Order that the defendant pay the plaintiff's costs of and incidental to the proceedings:

(a) up to and including 31/8/05, to be assessed on the standard basis

(b) after 31/8/05 to be assessed on an indemnity basis,

in each case, on the scale for judgments under $50,000.