Martin v Bruce [2007] NSWDC 264 | Case summary

District Court of NSW|2007-12-11

For the reasons explained by Hayne J in Rogers, it is also appropriate that I should have regard to recent awards in personal injury proceedings.

The plaintiff's response to the publication was graphically described by his wife. She described him as crying, vomiting, being unable to sleep and being a completely changed person.

In relation to any award of general and aggravated compensatory damages, the plaintiff is entitled to an award of interest and I grant leave to the parties to bring in Short Minutes of Order reflecting the agreed mathematical calculation of interest on the damages to be awarded.

The imputations published of and concerning the plaintiff were each matters of great seriousness. The impact upon him was severe. This is a defamation where hurt to feelings was of a very high order. The plaintiff and his wife gave frank and straightforward evidence about the effect of the publication and, as is often the case, a much clearer picture was painted by the plaintiff's wife of the degree to which the plaintiff had been affected by the publication.

In addition, I am satisfied by reason of the conduct of the defendant at the time of publication, including his abusive statements to the plaintiff, that this is an appropriate matter for the awarding of aggravated compensatory damages.

However, the award of damages must give very great weight to the limited extent of publication of the matter complained of, namely to four people.

Taking all of the above into account, I assess damages, including aggravated compensatory damages, at $25,000.

I have granted liberty to apply in the event that the parties wish to make submissions in relation to costs. I have made an order for costs to follow the event, namely for the defendant pay the plaintiff's costs.

(1) Judgment for the plaintiff for $25,000. (2) Defendant pay plaintiff's costs. (3) The parties bring in Short Minutes of Order concerning the mathematically agreed interest calculation upon the damages of $25,000. (4) Liberty to restore in relation to interest and costs. (5) Exhibits retained for 28 days.

Staff did not want to be involved but put me in touch with a person high up in subjects previous employment locality and after I explained who and where I came from and what the matter was about he related to me the following, virtually word for word (in confidence as he seemed to intimate that legal things may still be going on concerning person in question) I assured him I only want info and had already forgotten his name.

SEEMS our bloke is not what he is cracked himself up to be.

came from an inner city venue (close to the coast… high rise area)
most of the members were supposedly big money boys or so the subject told this bloke.
the picture this bloke originally painted of himself to the board was not true at all.
he has not got a good name in the industry (my contact seemed to be hinting that maybe litigation of some sort is still pending… couldn't or wouldn't elaborate due to possible legal repercussions).
Sales Reps eventually refused to deal directly with said person.
had little or no knowledge of the running systems employed by the venue in question.
hense he used other people to get things done (relying on their knowledge to cover his case).
tried to get some staff on side in an effort to nail or discredit others (then shafted these people when he thought they had served their purpose)
aligned himself with those who he thought would help his cause (sound like anyone we know???) downloads on those who he thinks are wise to him.
he described this bloke as full of bluster, standover power and a big showman.
tried to get rid of people who questioned his methods in any way or those who wouldn't bend to his will.
came at patrons who he didn't get on with like a bull at a gate (no people skills at all)
patrons and staff thought this bloke was either paranoid or schizophrenic and he caused no end of trouble and disunity.
he wase also prine to disappear and seemingly never there when needed
he apparently cost the place a fair bit of money and in the end was virtually asked to leave.

This place now runs with an Operations Manager (whatever that is, no CEO or Sec.Man.) and is going well.

I sat there bloody well gobsmacked listening to this info as it described the bloke in question to a tee.

Makes you wonder what the board members involved in the hiring of this bloke were doing///.

Wouldn't you think they would have rung up his previous employers and asked what he was like?

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Defamation Act 1974(NSW)

Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 Associated Newspapers Ltd v Dingle [1964] AC 371 Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 430 Bailey v Truth & Sportsman Ltd (1938) 60 CLR 700 Bickel v John Fairfax & Sons Ltd and Another [1981] 2 NSWLR 474 Burstein v Times Newspapers Ltd [2001] 1 WLR 579 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 Chakravarti v Advertiser Newspaper Ltd (1998) 154 ALR 294 Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691 Crampton v Nugawela (1996) 41 NSWLR 176 David Syme & Co Ltd v Mather [1977] VR 516 Dingle v Associated Newspapers Ltd [1961] 1 All ER 897 John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131 Jones v Sutton (2004) 61 NSWLR 614 CASES CITED: Jones v Sutton (No. 2) [2005] NSWCA 203 Judd v Sun Newspapers Ltd (1930) 30 SR (NSW) 294 Lang v Beardsmore [1968] 2 NSWR 673 McCombie v Bennett (1886) NSWR 151 National Auto Glass Supplies (Australia) Pty Limited v Nielsen and Moller Autoglass (NSW) Pty Limited (No 8) [2007] FCA 1625 Obeid v John Fairfax Publications Pty Limited [2006] NSWSC 1059 Obeid v Nationwide News Pty Ltd [2007] NSWDC 26 Plato Films Ltd v Speidel [1961] AC 1090 Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 Scott v Sampson (1882) 8 QBD 491 Thompson; Hsu v Commissioner of Police of the Metropolis [1998] QB 498 Trantum v McDowell [2007] NSWCA 138 TVNZ Limited v Ah Koy [2002] 2 NZLR 616 Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 Webb v Bloch (1928) 41 CLR 331 Zarth v Williamson & Ors [2006] NSWCA 246

Minor details of the plaintiff's life (Judd v Sun Newspapers Ltd (1930) 30 SR (NSW) 294; Lang v Beardsmore [1968] 2 NSWR 673) are not admissible unless they are directly relevant to the contextual background in which the publication is made (Burstein v Times Newspapers Ltd [2001] 1 WLR 579). To determine the reputation held by the plaintiff, the parties may call persons familiar with him or her and ask them to give evidence with regard to that part of the plaintiff's reputation made relevant by the nature of the defamatory remark (Plato Films Ltd v Speidel [1961] AC 1090 at 1140 per Lord Denning). Those witnesses are generally persons who reside in the same community as the plaintiff, where his reputation has been effected in that community, or who had an opportunity to learn the community's estimate of his reputation.

In Chakravarti v Advertiser Newspaper Ltd (1998) 154 ALR 294 at 359, Kirby J confirmed the correctness of this principle. This is because if the damages could be: "whittled away by a defendant calling attention to the fact that other people had already been saying the same thing as he had said and pleading that for this reason alone the plaintiff had the less reputation to lose, the libelled man would never get his full vindication." ( Associated Newspapers v Dingle [1964] AC 371 at 396 per Lord Radcliffe)

The one exception to this rule is that evidence of recovery of damages by the plaintiff against other defendants in relation to similar publications can be taken into account by reasons of the provisions of ss.38(1)(c)-(e) and 38(2) Defamation Act 2005. For an examination of the application of such principles under s.48 Defamation Act 1974, see Obeid v John Fairfax Publications Pty Limited [2006] NSWSC 1059 and Obeid v Nationwide News Pty Ltd [2007] NSWDC 26. There is no such evidence before me so I do not need to consider this provision.

Although the letter from the defendant's solicitors asserted that the counter-offer contained "a number of components which go well beyond what Mr Bruce submitted to your client in his letter" this was not an apology of the kind noted by the Court of Appeal in Jones v Sutton (No. 2) [2005] NSWCA 203 at [45] as being a wide ranging apology relating to matters not the subject of a litigation. To the contrary, it carefully sets out the precise conduct of the defendant on 8 February 2007 and contained an apology and withdrawal in standard and usual form.

The fact that this publication was only published by the defendant to four persons has a very significant impact upon damages. I have had regard to a number of recent decisions of the Court of Appeal concerning limited publications and the appropriate range of damages for such publications, notably Trantum v McDowell [2007] NSWCA 138 and Zarth v Williamson & Ors [2006] NSWCA 246, and I respectfully adopt the warnings of the Court of Appeal as to the appropriate range of damages for publications of such a restricted nature.

Aggravated damages are compensatory in character: Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 241 ("true aggravated damages are compensatory in their nature, not punitive"). They serve a fundamentally different purpose from punitive damages, which are not available in New South Wales. Whereas punitive damages focus upon the outrageous character of a defendant's conduct for the purpose of punishing the defendant, aggravated damages focus upon the character of the defendant's conduct to see if it had an addition effect on the subjective mental pain and distress suffered by the plaintiff, where "the blow to the plaintiff's pride… has been or must have been worsened by what was done" (David Syme & Co Ltd v Mather [1977] VR 516 at 526 per Lush J). While it is generally stated that there must be a finding that the defendant was motivated by actual or expressed malice, Professor Brown notes (Law of Defamation in Canada, 2nd Ed, paragraph 5.3 (1.1), footnote 137) that malice is only one of the bases for recovering damages in Australia, noting the statement by Samuels JA in John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131 at 136 that aggravated compensatory damages could be awarded on the basis that "the injury to the plaintiff's feelings had been increased by falsity of the allegations made".

In determining whether aggravated compensatory damages should be awarded, the court may take into account the conduct of the defendant from the time of the publication to the time of the trial including high handed, insulting or malice behaviour of the defendant at the time the publication occurs: Thompson; Hsu v Commissioner of Police of the Metropolis [1998] QB 498.

Publications which had a similar restricted extent of publication to persons who knew the plaintiff, and relate to imputations about competence to perform work duties, can be seen in two Court of Appeal decisions, Zarth v Williamson and Ors [2006] NSWCA 246 and Trantum v McDowell [2007] NSWCA 138. In each case, the defendant unsuccessfully appealed from the award of damages and the court carefully considered the range of damages appropriate for limited publications.

Martin v Bruce

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