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[2012] QSC 407
Supreme Court of Queensland
2012-12-14
Margaret Wilson J
Original judgment source is linked above.
Bennett & Philp as town agents for Winter Hilditch & Fotheringham for the plaintiff
[1] MARGARET WILSON J: In reasons published on 13 September 2012 I found that the plaintiff was defamed by the publication of two emails by the defendant.[1] Counsel for the parties have since made further written submissions on the plaintiff's claims for damages and injunctive relief.
[2] The first email, which was published to 33 email addresses on 21 January 2009, contained the following imputations -
(a) that the plaintiff had colluded in a criminal way with two other arborists;
(b) that the plaintiff had falsified a government certificate;
(c) that the plaintiff is a criminal.
[3] The defendant relied unsuccessfully on the defence of truth at common law and the defence of truth pursuant to s 25 of the Defamation Act 2005 (Qld). These imputations were defamatory.
[4] The second email, which was published to 37 email addresses on 29 April 2009, contained the following imputations -
(c) that the plaintiff is an arborist whose work is an example of world's worst practice;
I found that the imputations that the plaintiff is dishonest and that he is a liar substantially true, but neither of the other two imputations was true or substantially so. The imputations that he is a criminal and that he is an arborist whose work is an example of world's worst practice were defamatory.
Principles relevant to the assessment of damages
[5] The defendant sent numerous emails critical of the plaintiff and posted messages about him on his Twitter account and various online forums over the period from 2006 to 2011. However, this proceeding is about two defamatory emails sent in 2009. The Court's task is to assess the loss sustained by the plaintiff as a result of his being defamed by the publication of those two emails rather than by the whole course of conduct by the defendant.
[6] The Defamation Act 2005 (Qld) contains a number of provisions about the assessment of damages. Otherwise, principles established at common law continue to apply.
[8] That the defendant proved that two of the four imputations borne by the second email were substantially true did not afford him a defence to the second cause of action. But he can rely on this partial justification in mitigation of the plaintiff's damages.[4]
[9] An award of general damages for defamation serves three purposes, namely -
(a) to compensate the plaintiff for the harm to his reputation;
(b) to compensate him for the hurt and distress caused by the publication; and
[10] In Carson v John Fairfax & Sons Ltd[5] Mason CJ, Deane, Dawson and Gaudron JJ said -
"The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant.[6] 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 the appellant's reputation."
[11] Section 34 of the Defamation Act 2005 (Qld) provides -
"34 Damages to bear rational relationship to harm
In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded."
[13] Conduct of the defendant which is improper, unjustifiable or lacking in bona fides may increase the harm to the plaintiff's reputation or increase the injury to his feelings. In such cases, aggravated compensatory damages may be awarded.[9] Otherwise, the malice or other state of mind of the defendant is not relevant.[10]
[14] Section 38 provides -
(1) Evidence is admissible on behalf of the defendant, in mitigation of damages for the publication of defamatory matter, that -
(a) the defendant has made an apology to the plaintiff about the publication of the defamatory matter; or
(b) the defendant has published a correction of the defamatory matter; or
(c) the plaintiff has already recovered damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or
(d) the plaintiff has brought proceedings for damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or
(e) the plaintiff has received or agreed to receive compensation for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter.
(2) Nothing in subsection (1) operates to limit the matters that can be taken into account by a court in mitigation of damages."
[15] Good reputation is presumed in favour of a plaintiff. He may nevertheless lead evidence of his good reputation generally and in relation to the sector of his life relevant to the defamation.[11]
[16] I accept the plaintiff's description of the Australian arboriculture industry -
"Arboriculture is not regulated in Australia unfortunately so to survive in this industry you have to have good products, you have to have an excellent reputation, and your staff have to have excellent reputations. As soon as any part of that's tarnished, it has an effect to the business. It is a small industry across Australia, arboriculture, and it is a tight network of people, so news travels fast."[12]
[17] The only oral evidence the plaintiff placed before the Court was his own testimony.
[18] At the time of the trial, he had been a professional arboriculturalist for 28 years. He held an Advanced Diploma in Arboriculture, a Diploma in Arboriculture and certificates for various courses he had completed in specific specialist fields. He had been operating the company Enspec Pty Ltd since 1999.
[19] The company did work in several specialised fields including sonic tomography, radar, and visual tree inspection. According to the plaintiff, Enspec was "one of the only specialist companies in the world" with a full range of diagnostic equipment for below and above ground. It was doing work in South Australia, Victoria, Tasmania and the New South Wales/Victoria border region. 99 per cent of its work was for local authorities, and the balance for government utility agencies.
[20] I accept that the company's workforce was significantly reduced between 2009 and the trial. In 2009 the company had about eight to ten employees and three subcontractors. By the time of the trial the number of employees had been reduced to seven and there was just one subcontractor, who was used for only six weeks of the year. However, there was no evidence to support the inference that this reduction in workforce was a result of the defamation of the plaintiff by the publication of the two emails in question.
[21] Enspec commenced working internationally in 2003. The plaintiff failed to establish that the company lost international work as a result of the two emails about which he sued.
(a) Its first international work was in Singapore in 2003. The last time it was directly engaged there was in 2006-2007 when it was engaged to provide specialist training. It subsequently did some sub-contract work in 2008 and 2009, but it had no work there since. The plaintiff did not actually say that the loss of work in Singapore was a result of the two emails, and he acknowledged that Singapore like everywhere else had suffered in the Global Financial Crisis. In other words, any assertion that the company lost work there because it lost face as a result of the defamation was no more than speculation.
(b) The company first did work in Hong Kong in late 2010/2011 - well after the publication of the emails.
(c) The company ran educational workshops in New Zealand but never had work there.
[22] The plaintiff gave evidence of his high standing in various professional associations here and abroad. His assertion that his standing in those associations was adversely affected by the publication of the two emails about which he sued was contradicted by his own evidence.
(a) The peak industry body for arboriculture in Australia is the International Society of Arboriculture Australia Chapter (formerly Arboriculture Australia). In 2009 it had about 550 members, and at trial about 650. The plaintiff was elected by the members as a director in 2001. In 2006 he was elected by the directors as vice-president for a 12 month term; he was re-elected to that position in May 2010. At trial he remained a director and the vice-president.
(b) He was also the founder of Utility Arborist Association and its chairperson from 2006 until about June 2011. The members elected him to the positions of chairperson and committee member. At trial he remained an active member of the committee. In 2009 that association had between 80 and 100 members.
(c) At trial he had been on the board of Treenet, a not for profit organisation focussing on street trees, since 2004.
(d) About 12 months before trial he became the chairperson of National Urban Forest Alliance, the successor to the National Arboriculture Forum, which brought together all the arborist groups around Australia.
(e) From 2006 to March 2010 he was one of 45 directors of the International Society of Arboriculture ("ISA"), a body with approximately 20,000 members worldwide. He was appointed by the board of Arboriculture Australia to represent this country on the international board. This required his attendance at meetings in the United States twice a year.
(f) In 2009 he chaired the Conference and Events Committee of the ISA, which organised an international education conference each year, and a member of the Goods and Services Committee of the ISA. In 2009 he was the vice-chairperson of the Council of Representatives of the ISA. He was elected as the chairperson of that council in 2011. He stood down from that position about three weeks before the trial as a result of a dispute between Arboriculture Australia and the international organisation. He also served on various other committees of the ISA, often for short periods.
(g) He gave evidence of being approached at conferences by other arborists who had received or heard about emails sent by the defendant. However, those approaches related to emails sent before the two sent in 2009 about which he sued. On his own evidence, he was approached by a German delegate at the ISA conference in Hawaii in 2007, and he was approached by various other arborists on occasions "more in the earlier part, 2006 through to 2008, a little bit in 2009..." He said that people no longer talked about it as much.
[23] The plaintiff knew about the emails from the time they were published because the defendant included him in the list of persons to whom he sent the various emails over the period from 2006 to 2011.
[24] He described his reaction to receiving and reading the email published on 21 January 2009 (first of those about which he sued) in this way -
"When you read something that's written about yourself, and it's in such a bad light, it just rips your heart out. There's no way to describe what it's like to be accused of - a criminal and other things, until it actually happens. If I tried to explain that to someone, they can't understand it. But 'til it actually happens to yourself, and continually happens for such a long time, it just - you just want to shrink under your desk and hide. It's just emotionally destroying; and when you read such documents, you read them again and again and then it plays on you for hours afterwards and you wonder what in the Hell's going on."[13]
[25] He went on to talk about how he had been affected by the whole course of emails he received from the defendant. He spoke of the anxiety he had experienced about the effect of the publication of the emails on his reputation, and his anxiety about its capacity to affect his business, its cash flow and the security of its employees. He had been angered by the emails, and taken out his anger on the employees.
[26] The emails usually arrived in the morning, and by the time he went home in the evening he was frustrated and tired. The woman who was his partner was a certified practising accountant. He found it difficult to discuss the emails with her, and this had an adverse effect on their relationship. In about 2007-2008 he was happy to go away from home for his work saying he would be gone two or three days, but stay away a couple of weeks. After he and his partner had a baby, he did not cope well with the added responsibilities of fatherhood and his partner not working.
[27] The plaintiff said that he still felt embarrassed by the emails. He had commenced this proceeding because he wanted to clear his name, but he was concerned at the legal costs that had been incurred and their effect on the company's financial position.
[28] There is no reason to doubt the plaintiff's evidence about the hurt and distress he experienced. But apart from his description of his reaction to receiving the first email, his evidence did not isolate loss caused by the two emails about which he sued from loss caused by the whole stream of emails over five years. Some of the evidence (for example, that about how long he stayed away on work trips) clearly related to a time before the publication of the two emails in question.
[29] According to the plaintiff, the emails increased in their offensiveness and length and the list of persons to whom they were published expanded between 2005-2006 and 2008-2009. In 2008-2009 -
"... the e-mails started to become more lengthy and then they just seemed to be cut and pastes a lot of the time and that's why they - or they were forwarded on or - or added on to a previous e-mails and they become extremely lengthy, some of them."[14]
[30] Counsel for the defendant pointed to the plaintiff's failure to contact the defendant to request him to cease the alleged defamation. I took him to be implying that the emails were not of serious concern to the plaintiff and that they did not cause any serious hurt and distress. The defendant rang the plaintiff several times, but the plaintiff declined to enter into any conversation with him. The plaintiff never rang the defendant. The criticism could only relate to the plaintiff's lack of response to the many emails he received before the two about which he sued.
[31] On 21 March 2009 (between the publication of the two emails sued on) the plaintiff sent the defendant an email in these terms -
I would like you to retract your statement that I was not on site. BCC Falsehood No 248. I was on site with one other employee from the company when the test was conducted. BCC Falsehood Number 249. I actually meet [sic] you on site on this day. BCC Falsehood No 250.
I am now handing all your emails over to legal team who will be perusing [sic] legal action against you."
[32] Sometime early in 2009 the plaintiff retained solicitors who wrote to the defendant calling on him to stop sending emails and publishing material about him. It is not clear on the evidence whether that was before or after the publication of the second email sued on. Asked whether the letter had had that effect, the plaintiff responded -
Well, we started receiving more and more e-mails, and that's from that point onwards when he would copy more and more Parliamentarians in and the list grew to higher profile people."[15]
[33] On 4 August 2009 the plaintiff's solicitors sent the defendant a Concerns Notice,[16] enclosing 10 emails sent by the defendant to a number of persons that the plaintiff considered defamatory. The list was described as "not exhaustive"; it included the two emails about which the plaintiff subsequently brought this proceeding. The notice called on the defendant to make amends pursuant to s 15 of the Defamation Act 2005 (Qld), and immediately to cease publication of defamatory material about the plaintiff.
[34] In about December 2010 the defendant received legal advice that unless he removed from the internet material he had published there he would "be in strife".[17] He removed what he could at about that time.
[35] The defendant acknowledged in cross-examination that he continued to publish material about the plaintiff's falsification of a government certificate by sending emails and using Twitter and public forums until approximately 2011. In parallel to those publications, he made complaints to the Crime and Misconduct Commission, the Ombudsman, the Parliamentary Committee of the CMC, the Premier and the police about the plaintiff's falsification of a government certificate.
[36] The plaintiff commenced this proceeding in January 2010. I accept that he did not do so earlier because he was wary of the cost of doing so. The defendant was self-represented. The plaintiff applied for summary judgment or alternatively for an order striking out the defence. A judge of the Trial Division of this Court granted the application and ordered that there be judgment for the plaintiff against the defendant with damages to be assessed by the District Court, together with indemnity costs. The defendant appealed against that decision. Before the Court of Appeal he was represented by senior counsel instructed by a solicitor. The Court of Appeal allowed the appeal, struck out the defence and ordered the defendant to replead. It ordered the defendant to pay the plaintiff's costs of the appeal and the proceeding before the primary judge.
[37] At trial the defendant vowed not to publish material about the plaintiff on the internet or to send emails about the plaintiff again. But this was not because he was repentant, but rather because of the financial and personal costs of being sued. He said he had had costs orders amounting to $50,000 made against him, and that he had spent two years of his life in getting to trial. He said he would not "go to" journalists because he had had bad experiences with them. He reserved his rights to speak with police, the CMC, the Parliamentary Committee of the CMC, and politicians at State and local government levels. As counsel for the plaintiff observed, he did not seek to limit what he would say to those persons, or to explain why communications to those persons would be justified, or to identify what relevant control those persons have over the plaintiff or his actions as a basis for his need, right or desire to communicate with them.
[38] Each of the two emails contained an imputation that the plaintiff was a criminal. The first also included imputations that he had colluded in a criminal way with two other arborists and that he had falsified a government certificate. The second contained an imputation that he was an arborist whose work was an example of world's worst practice. None of those stings was true or substantially so. The imputations in the second email that he was dishonest and a liar were substantially true.
[39] The defamation was serious in nature and the publication was very broad. It was published through electronic media, and so had the potential to spread in ways unknown to the plaintiff.[18]
[40] However, the plaintiff failed to prove any actual damage to his professional standing or reputation, either by the publication of the two emails in question or by the stream of emails and other publications over the five year period.
[41] I accept that the publication of the emails caused him hurt and distress.
[42] Because it is not possible to isolate the harm caused by the publication of these two emails from that caused by the stream of emails and other publications over the five year period, any award of damages should prima facie be modest.
[43] That two of the imputations borne by the second email were substantially true is a mitigating factor in the assessment of the damages. I accept the submissions of counsel for the defendant that the defamatory imputations must be read in the context of those found to be true. The imputations that the plaintiff was dishonest and a liar were serious and would have contributed to the hurt and distress he felt. The fact that they were substantially true detracts from the damage done by those that were not.
[44] Were it not for the mitigating effect of two of the imputations being substantially true, I would have assessed compensatory damages at $20,000. After making allowance for that mitigating effect, I assess compensatory damages at $12,500.
[45] The plaintiff's counsel submitted that the defendant was guilty of misconduct which had caused the plaintiff additional harm by way of an increase in the emotional distress caused by the publication. He submitted that the particular features of the case justifying an award of aggravated damages were -
(a) the defendant's persistent, but false, assertion that the imputations were true;
(b) the plaintiff's knowledge that the imputations were false, thus increasing or aggravating the hurt suffered by him;
(c) the fact that the emails sued upon were just part of a relentless, unreasonable campaign of fallacious abuse by the defendant.
[46] In my view these features of the case warrant an award of aggravated damages. I do not accept counsel for the defendant's submission that these arguments fall away in view of the findings that the plaintiff was dishonest and a liar. Rather, I think those findings have a mitigating effect. The aggravated damages that would otherwise be ordered should be reduced in a proportion similar to that by which the compensatory damages were reduced on account of those findings.
[47] Were it not for the mitigating effect of two of the imputations being substantially true, I would have assessed aggravated damages at $10,000. After making allowance for that mitigating effect, I assess aggravated damages at $6,250.
[48] Counsel for the defendant did not make any submissions in response to the plaintiff's claim for interest, calculated as simple interest at the rate of 3.5% per annum for three years.
[49] I allow interest on the compensatory damages and the aggravated damages at 3.5% per annum over three years.
[50] The plaintiff sought a permanent injunction restraining the defendant, whether by himself or his servants or agents, from publishing, or causing to be published, matter of and concerning the plaintiff and alleging that the plaintiff is a criminal, has colluded in a criminal way with two other arborists, has falsified a government certificate, and is an arborist whose work is an example of world's worst practice, or allegations to similar effect.
[51] The defendant consented to the injunctive relief sought except that he submitted that the words relating to the "certificate" should not be included because of the findings relating to his falsifying "his certificate".
[52] I do not accept the defendant's submission. The first email contained the imputation that he had falsified a government certificate. He failed to make out the defence of truth at common law or under the statute. The second email carried the imputations that he was dishonest and a liar. They were found to be substantially true because he falsified his report when he reissued it in June 2006.
[53] There should be a permanent injunction in the terms sought by the plaintiff.
[54] I will hear the parties on the form of the orders and on costs.
[1] Hallam v Ross [2012] QSC 274.
[4] Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; (2003) 9 VR 1 at [306] per Gillard AJA; Besser v Kermode [2011] NSWCA 174 at [49] and [86] per McColl JA (with whom Beazley and Giles JJA agreed).
[5] Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 at 60 - 61.
[6] Uren v John Fairfax and Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118 at 150; Coyne v Citizen Finance Ltd [1991] HCA 10; (1991) 172 CLR 211 at 216; John Fairfax and Sons v Kelly (1987) 8 NSWLR 131, at 142; McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 at 107.
[9] Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497 at 514; Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 410 at [1316], [1450].
[11] Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 801; Halsbury's Laws of Australia at [145-2675], [145-2680].
[16] See Defamation Act 2005 (Qld) s 14.
[18] Crampton v Nugawela [1996] NSWSC 651; (1996) 41 NSWLR 176.
Hallam
Ross
(1993) 178 CLR 44
(1996) 41 NSWLR 176
(2003) 9 VR 1
(1951) 82 CLR 497
(1966) 117 CLR 118
(1991) 172 CLR 211
(1987) 8 NSWLR 131