Mason v Doyle [2005] NSWSC 127 | Case summary

Finally, the jury found that the imputation that the plaintiff was a rapist was defamatory of the plaintiff. The jury did not find that the imputation that the plaintiff was unfit to serve on a local council was defamatory of the plaintiff. 3 The jury having made its findings, I proceeded to hear evidence, reserving my decision as to the assessment of damages referable to imputation (a). 4 The plaintiff was educated on the Blue Mountains, at Blue Mountains Grammar School, and has pursued a career in the advertising field and in film. Since 1985 he has been self employed, conducting the Mason Picture Co. For the past twenty years he has resided at Wentworth Falls. There was evidence before the Court that he had been involved in charitable work and that he has been a member of the Liberal Party for many years. 5 The plaintiff was selected by the Liberal Party as a candidate for a ward in the council elections held on 27 March 2004. The matter complained of was uttered and published outside the Civic Centre polling booth in Katoomba on the evening that the election took place. 6 Mr Andrew Hayes was handing out flyers for the Liberal Party outside that polling booth. He said that at about 5.40 pm he was on the footpath when a man, who I am satisfied was the defendant, approached and uttered the words which the jury found he published. The defendant spoke loudly, according to Mr Hayes, and there were at least nine or ten people nearby in an area that Mr Hayes described as being smaller than the courtroom in which the hearing was conducted. When asked to identify himself, the defendant did so. He said he was Phillip Doyle, and Mr Hayes took a photo of him, which was tendered in evidence. That same photo was given to the process server and was used to identify the defendant when the statement of claim was served. 7 I accept the unchallenged evidence that Mr Hayes gave and I am satisfied that the defendant uttered the offending words loudly in an area where, I find on the probabilities, some nine or ten people heard what he said. 8 Later that evening, Mr Hayes had two different discussions with the plaintiff about what the defendant had said and he described the plaintiff as being upset. 9 Mr Quentin Cook was a scrutineer for the plaintiff, and on the day following the election he noted that on one of the ballot papers somebody had written "I would not vote for a rapist." He reported this to the plaintiff. 10 I should observe that I am not satisfied on the balance of probabilities that what was written on the ballot paper was written because somebody overheard what the defendant had said at 5.40 pm. 11 The plaintiff said that when he was first spoken to by telephone by Mr Hayes and told what the defendant had said, he felt dreadful about it and that he had never raped anyone. When Mr Hayes spoke to him again later that evening, the plaintiff said that he was shattered and felt shell-shocked by reason of what the defendant had said. The plaintiff said that he felt what the defendant said was intended to harm his prospects of election. I accept that the plaintiff felt that way, and that this added to his distress. 12 There is, of course, no evidence before the Court to suggest that the plaintiff had ever raped anyone. The plaintiff's assertion that he had never raped anybody stands unchallenged, and I accept the plaintiff's evidence. I find the defamatory imputation to have been false. 13 It happens that the plaintiff lost the by-election by some eighty votes but I am unable to determine that this loss was due to what the defendant had said at the polling booth. 14 The solicitors then acting for the plaintiff wrote to the defendant on 31 March 2004, calling for an apology in a suggested form (see Exhibit C). However, that communication met with no response and to date no apology has been made. 15 In my task of assessing damages, I must have regard to ss 46 and 46A of the Defamation Act which are in the terms following: " 46 General (1) In this Part relevant harm means, in relation to damages for defamation: (a) harm suffered by the person defamed, or (b) where the person defamed dies before damages are assessed, harm suffered by the person defamed by way of injury to property or financial loss. (2) Damages for defamation shall be the damages recoverable in accordance with the common law, but limited to damages for relevant harm. (3) In particular, damages for defamation: (a) shall not include exemplary damages, and (b) shall not be affected by the malice or other state of mind of the publisher at the time of the publication complained of or at any other time, except so far as that malice or other state of mind affects the relevant harm. 46A Factors relevant in damages assessment (1) In determining the amount of damages to be awarded in any proceedings for defamation, the court is to ensure that there is an appropriate and rational relationship between the relevant harm and the amount of damages awarded. (2) In determining the amount of damages for non-economic loss to be awarded in any proceedings for defamation, the court is to take into consideration the general range of damages for non-economic loss in personal injury awards in the State (including awards made under, or in accordance with, any statute regulating the award of any such damages)." 16 The objectives to be achieved in making an award of damages for defamation were identified in the much cited decision in Carson v John Fairfax & Sons Limited (1992-93) 178 CLR 44 in which Mason CJ, Deane, Dawson and Gaudron JJ said in their joint judgment (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 a verdict is the product of a mixture of inextricable considerations': see Uren v John Fairfax & Sons Pty Limited (1966) 117 CLR, at p 150. 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 the appellant's reputation." 17 The plaintiff's claim here includes a claim for aggravated damages founded on the falsity of the relevant imputation and the failure to apologise. 18 I accept that the imputation was very hurtful and distressing to the plaintiff who is very conscious of its falsity. 19 As to the failure to apologise, the plaintiff is entitled to have allowance made for such failure in the award of ordinary compensatory damages: see Cotter v John Fairfax Publications Pty Limited [2003] NSWSC 503; Markovic v White [2004] NSWSC 37; and Jamoo v Nationwide News Pty Limited [2004] NSWSC 126. As Simpson J said in Cotter (at para 167): "The failure to apologise is relevant in a more general sense to the assessment of non-aggravated compensatory damages as part of the distress caused to the plaintiff as a result of the persistence of the defendant in maintaining the imputation." 20 That observation is apposite here, and I add that I find the failure to apologise was unjustified and manifested bad faith. 21 This is not a case in which any claim is made for economic loss or out of pocket expenses. 22 Nor is this a case in which there is evidence of actual damage to reputation by reason of what the defendant said. There were nine or ten people who heard the defendant, and none of those persons has been identified. Mr Hayes gave no evidence that he thought any the less of the plaintiff by reason of what the defendant said. Of course, some harm nevertheless is assumed. 23 I must heed the nature and extent of the publication. It was not in a form like a newspaper, such as was going to remain in circulation for an indefinite time. 24 Serious though the content of the imputation was, the nature and extent of the publication is a most material consideration. 25 Mr Connell submitted that vindication was a very important element and that the plaintiff ought to be able to point to the quantum of the award to demonstrate the falsity of the allegation: see Carson (supra) at 61 where, in the joint judgment to which I made previous reference, their Honours said: "Vindication looks to the attitude of others to the [plaintiff]: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the 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." 26 I observe here that there is no evidence concerning the social standing of the defendant. Whilst I must acknowledge the significance of vindication in my task of assessing damages, it is of fundamental importance that I ensure "there is an appropriate and rational relationship between the relevant harm and the amount of damages awarded": s 46A(1) of the Defamation Act. 27 In submissions, Mr Connell referred me to Crampton v Nugawela (1996) 41 NSWLR 176 where damages of $600,000 were held not to be appellably excessive; I was referred to Cotter v John Fairfax Publications Pty Limited (supra) where Simpson J awarded damages in the sum of $100,000; and I was referred to Markovic v White (supra) in which Levine J made a total award of $220,000 in respect of four publications; and in Tingle v Harbour Radio Pty Limited & Anor (No. 4) [1999] NSWSC 461 the plaintiff was awarded $75,000; and, finally, in Jamoo v Nationwide News Pty Limited (supra) the plaintiff was awarded $75,000. 28 I do not consider that the cases referred to establish the range within which I should award damages here. Inevitably so much depends upon the particular facts of the particular case. Crampton concerned a letter presented to a meeting of doctors, professional colleagues of the plaintiff; Cotter concerned a publication in the Sydney Morning Herald; Markovic was concerned with e-mails, which Levine J recognised "given their content and ease of communication, may remain in circulation for the indefinite future"; Tingle concerned a publication by Radio 2GB; and Jamoo concerned a publication in the Daily Telegraph. The present case is one in which the matter complained of was published by the spoken word only and to a limited audience. 29 Mr Connell was not able to refer me to a case with similar features. In further written submissions reference was made to Rogers v Nationwide News (2003) 201 ALR 184 in which the court did not disturb a verdict of $250,000. The imputation was one of professional negligence against a prominent ophthalmic surgeon and was made in a newspaper item published in the Daily Telegraph. An award of $220,000 was made in the matter of O'Shane v John Fairfax [2004] NSWSC 140 to a plaintiff alleged to be a biased and incompetent magistrate. That case concerned the publication of an article in the Sydney Morning Herald. In West v Nationwide News [2003] NSWSC 505 the defendant was the publisher of the Mosman Daily, the weekly newspaper circulating in Mosman and the lower north shore, and the publication complained of was through that newspaper. Konstantinidis v Foreign Media Pty Limited [2003] NSWSC 1135 concerned a publication in three radio programmes. SRSC v Beaumont & Ors [2004] NSWSC 164 was litigation that concerned television programmes known as "Today Tonight", which programmes went to air in Victoria and New South Wales. Finally, Mr Connell referred me to a District Court decision in a matter of Martin v University of New South Wales, unreported, Dodd DCJ, 17 October 2000. Having considered those additional authorities to which Mr Connell has now referred me, I regret that I have not found them helpful having regard to the particular features of the present case. 30 Mr Connell submitted that a six-figure award of damages would be appropriate here, but I do not consider such an approach would be justified. 31 I consider that the impact of the defamatory imputation was likely to be short-lived. 32 Bearing in mind the purposes to be served in awarding damages in a case such as this, it seems to me that the sum appropriate for the relevant harm suffered is $50,000. The award attracts interest, and I allocate the whole of the award to the past for this purpose as I am satisfied that any personal hurt will have ceased with the award. I allow interest at two percent for the period since the date of the publication. I round the calculation off at $942.00. 33 Accordingly, there will be judgment for the plaintiff in the sum of $50,942.00. 34 I reserve the question of costs. **********

Mason v Doyle

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Judgment (10 paragraphs)

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Cases Cited (10)