Plaintiff v First Defendant Second Defendant

Supreme Court of Victoria|2012-03-15|Before: KAYE J

DEFAMATION - Publication on the internet - Damages - Verdicts by jury that defendants' publication defamatory of plaintiff - Imputations of involvement of plaintiff in the criminal underworld - Aggravated damages - Whether necessary for plaintiff to prove that defendants, in publishing material, lacked bona fides or acted improperly or unjustifiably - Evidence as to statements by third parties after publication - Defamation Act 2005 (Vic) s 22(3), 35(1(), 38(1)(d).

2 The article, which is the subject of the proceeding, was published by the defendants through the "Yahoo! 7" search service on a website entitled "Melbourne Crime". The article was available to be viewed by any person, who accessed the defendants' search engine, and searched the plaintiff's name. The page, upon which the article appeared, was entitled "Melbourne Crime". Immediately beneath it were the photographs of nine men who, the defendants admitted, were, or were alleged to have been, engaged in serious criminal activity in Melbourne. It was also admitted by the defendants that one of the nine photographs was the face of Tony Mokbel, who, it was admitted, was "... a convicted criminal, an alleged murderer and a drug trafficker". Another of the nine photographs was admitted by the defendants to depict the face of Dennis Tanner, who, it was admitted, was "... a former policeman who was alleged to have murdered Jennifer Tanner".

3 Immediately beneath those nine photographs, were six links, each in the shape of a bullet. In turn, underneath those links, was the heading of the article, "Shooting probe urged November 20, 2007". To the left of the article, in small print, was an acknowledgement that the article was sourced from the Herald Sun Newspaper of November 20, 2007. To the right of the article, was a large photograph of the plaintiff's face and shoulders.

"Police Chief Christine Nixon has been urged to re-open an investigation into an unsolved murder attempt.

Former music promoter Michael Trkulja was shot in the back by a hit-man wearing a balaclava while dining at a St Albans restaurant in June 2004.

The would-be killer fled after his pistol jammed as he prepared to fire a second shot at Mr Trkulja, who had been enjoying a Sunday lunch with his elderly mother.

A Victoria Police document reveals detectives dropped the investigation because of a lack of evidence.

But Mr Trkulja, 58, now claims to know the identity of the hit man and those who hired him.

He says he has passed the names to the police.

'He (the hit man) was offered $10,000 to kill me. I know who sent him and they know that I know who they are', Trkulja told the Herald Sun.

'I've told the police. I just want justice.'

'Nobody should be shot like this.'

Mr Trkulja's lawyer, high profile solicitor George Defteros, has written to Ms Nixon seeking a fresh investigation and the request is being considered."

5 In his amended statement of claim, the plaintiff pleaded three imputations, both as "false" innuendos and also as "true" innuendos. Those imputations are:

(b) the plaintiff was so involved with crime in Melbourne that his rivals had hired a hit man to murder him;

(c) the plaintiff is such a significant figure in the Melbourne criminal underworld that events involving him are recorded on a Web site that chronicles crime in Melbourne.

6 Section 22(2) of the Defamation Act provides that, where defamation proceedings are tried by a jury, the jury is to determine whether the defendant has published defamatory matters about the plaintiff and, if so, whether any defence, raised by the defendant, has been established. The defendants, by their defences, pleaded that, subject to the plaintiff establishing at trial that any person had downloaded and read the matter using the Yahoo! 7 internet search engine, they admitted that they published the matter to such person. At trial, before the jury, they put in issue whether the article had been published to any person or persons. It was common ground that, to prove publication, the plaintiff was required to prove that the article had been downloaded and read by at least one person using the Yahoo! 7 internet search engine.[1]

7 On the first day of the trial, the plaintiff called two witnesses, each of whom gave evidence that they had downloaded and read the article using the defendants' internet search service. On the second day, the defendants conceded that the article had been downloaded and read by at least one person using the Yahoo! 7 internet search service, and thus admitted that they had published the article to such person or persons. The defendants, by their defences, and before the jury, denied that the article bore any of the imputations alleged by the plaintiff, and denied that the article was defamatory of the plaintiff, both in its ordinary and natural meaning, and also by reason of a number of extrinsic facts pleaded and relied on by the plaintiff. The defendants did not plead any positive defence to the claim of the plaintiff.

8 It was common ground, between the plaintiff's counsel and the defendants' counsel, that I should put questions to the jury asking, first, whether the plaintiff had established that the article would have conveyed, to the ordinary, reasonable reader, any of the three imputations pleaded by the plaintiff. It was necessary to put that question in two parts, first, reflecting the plaintiff's claim that the imputations arose by way of false innuendo, and, secondly, reflecting the fact that the plaintiff had also relied on the imputations arising as true innuendos. It was further common ground that the jury should be asked, as a second question, whether, in respect of any of the imputations found by them, the plaintiff had established that such imputation was defamatory of him. I interpolate that such a procedure is a departure from the longstanding practice in Victoria following the decision of the Full Court in Barclay v Cox.[2] However, unless the questions were asked in that form, if the jury returned a verdict in favour of the plaintiff, it would not be possible to know, for the purposes of assessing damages, the basis upon which the jury found that the article was defamatory of the plaintiff.

9 By its verdicts, the jury found that the article, both in its ordinary, natural meaning, and also as "true" innuendos, bore the second and third imputations, pleaded by the plaintiff, which I have set out above. It also found that each of those imputations were defamatory of the plaintiff. The jury was not satisfied that the article bore the first meaning (that the plaintiff is a criminal), either by way of false or true innuendo.

10 The principles relating to the assessment of damages, in an action for defamation, are well established.

11 An award of damages in defamation serves three principal purposes, namely, consolation for the distress and hurt occasioned to the plaintiff by the publication, reparation for the injury done to the plaintiff's reputation, and the vindication of the plaintiff's reputation. In Carson v John Fairfax & Sons Limited,[3] Mason CJ, Deane, Dawson and Gaudron JJ, in their joint judgment, described those purposes in the following terms:

"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 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."[4]

12 Section 34 of the Defamation Act provides that, in determining the amount of damages to be awarded, 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. Pursuant to s 35(1), the maximum amount of damages, which may be awarded for non-economic loss, has been fixed at $324,000.[5] Section 35(2) provides that the Court may award damages for non-economic loss in excess of that maximum amount, only if the Court is satisfied that the "circumstances of the publication of the defamatory matter" were such as to warrant an award of aggravated damages. Section 36 requires the Court to disregard the malice, or other state of mind, of the defendant, at the time of the publication of the defamatory matter, except to the extent that that malice, or other state of mind, affects the harm sustained by the plaintiff. Section 38(1)(d) of the Act provides that evidence is admissible, in mitigation of damages, that the plaintiff has brought proceedings for damages for defamation in relation to any other publication of matter, which has the same meaning or effect as the defamatory matter. That provision is relevant to this case, because of the evidence, to which I shall shortly refer, that the plaintiff has also issued proceedings against Google Inc LLC and others in respect of the publication of the same matter via the Google search engine.

13 In the course of hearing evidence as to the issue of damages, a question arose as to the admissibility of evidence by the witness, Stan Smith, as to statements made, and attitudes demonstrated, by other persons to him, about the plaintiff in relation to the article, which is the subject of these proceedings. Mr Wheelahan objected to that evidence. I admitted it, but stated that I would rule on it in the course of my judgment. It is clear on the authorities that the evidence adduced from Mr Smith, and other witnesses, was admissible, as demonstrating the contemporaneous knowledge and state of mind of the persons, who made the statements to, or demonstrated the attitudes to, Mr Smith, about Mr Trkulja in connection with the article.[6] In that way, the evidence was admissible to prove that the persons, who communicated with Mr Smith, knew of the contents of the defendants' publication, and, as a result, held the plaintiff in low esteem.

14 During submissions before me, an issue arose as to the effect of the verdicts by the jury concerning the imputations conveyed by the article published by the defendants. In particular, the issue arose because the jury was not satisfied that the material conveyed the first imputation pleaded (that "the plaintiff is a criminal"), but it was satisfied that the material conveyed the second imputation (that "the plaintiff was so involved with crime in Melbourne that his rivals had hired a hit man to murder him") and the third imputation (that "the plaintiff is such a significant figure in the Melbourne criminal underworld that events involving him are recorded on a web site that chronicles crime in Melbourne").

15 In ordinary parlance, to describe a person as a criminal, is to state that that person, by his or her actions, is liable to criminal conviction. For a lawyer, it might be difficult to reconcile a finding that the article bore the second and third meanings pleaded by the plaintiff, but it did not bear the first meaning, that the plaintiff is a criminal, in such a way. However, it is important to bear in mind, first, that jurors are lay persons, and not lawyers. Secondly, the jury was instructed that in deciding whether the plaintiff had established the imputations, alleged by him, it should determine the sense in which the article would have been reasonably understood by the hypothetical ordinary, reasonable reader. The jury was instructed as to the attributes, of that hypothetical person, including that he or she is a lay person, who is understood to read between the lines, and who indulges in a degree of loose thinking. It would be hardly surprising that the jury, and more importantly, the ordinary, reasonable reader, would not have the same understanding, as a trained lawyer, of the scope or ambit of important concepts of criminal liability, including accessorial liability (counselling or procuring, or aiding and abetting), and the liability of principals in the second degree, (such as persons acting in concert). In that way, the jury, and the ordinary, reasonable reader, might reasonably have understood that the article alleged that the plaintiff had been involved with crime, without being liable, thereby, to criminal conviction.

16 There is a considerable overlap between injury to reputation and injury to feelings. In assessing damages, it is appropriate to consider the evidence relating to each of those aspects of the plaintiff's injury.

17 The plaintiff is 61 years of age. He was born in Yugoslavia, and migrated to Australia at the age of 20. After working in various capacities until the early 1970s, he conducted a travel agency for a short time, and then he worked as a registered builder for approximately one decade. During that time, the plaintiff commenced to promote singers and entertainers in the Yugoslav community. His original purpose in doing so was to bring together the diverse elements of the Melbourne and Australian Yugoslav communities, and to foster harmony among them. His work as a music promoter grew, and ultimately, he became occupied in it full-time.

18 As part of that work, the plaintiff regularly featured in the media, and particularly, in the ethnic media. He used the media, both print and live, to promote singers and entertainers, who he brought to Australia. In the early 1990s, he had his own show on television on Channel 31, entitled "Micky's Folkfest". He said that the purpose of that program was to unite the local Yugoslav community, in the face of the tragedy which had been unfolding in Bosnia and Herzegovina. In his evidence, the plaintiff described himself as the "Michael Edgeley" of his community, and he considered that it would be hard to find any Yugoslav person, who had migrated to Australia in the last 40 years, and who has not heard about him.

19 In addition, the plaintiff has played a prominent role in his church, namely, the Springvale Community Church, St Stephan, in Perry Road, Springvale. He is a church elder. The plaintiff has regularly organised dinner dances and concerts for the church. At one stage, he was the Vice-President of the church.

20 The plaintiff ceased promoting music in 2004, but he has continued to remain active in church affairs.

21 The plaintiff stated that when the article, published by the defendants, was first drawn to his attention, he was shocked and devastated. He said he became depressed, and that he has been taking medication for depression since. He estimated that 500 people had spoken to him, since the publication of the article, in a manner that suggested that they had seen the article. In January 2011, when he attended a wedding, two couples, who had been designated to sit at the same table as the plaintiff, refused to do so, asserting that they would not sit with a criminal. The plaintiff stated that before the publication of the article, he would receive 25 to 30 invitations each year to attend family celebrations such as weddings and christenings. However, that number declined in 2010, and he had no such invitations in 2011. The plaintiff stated that there had been occasions when he has been in a shop, and people have recognised him, and have left as a response. He said that he has asked good friends to give him a reference (presumably, in relation to the present case), but they did not want to do so, because they were concerned that they might become the victims of violent crime, if they did so.

22 After the article was drawn to his attention, the plaintiff consulted solicitors, who sent a letter to the defendants dated 25 November 2009, demanding (inter alia) that the defendants immediately remove all copies of the material from their search engine. The defendants responded by a letter dated 3 December 2009, stating that they did not accept responsibility for the images, which, by being linked through an algorithmic search, appeared on the Yahoo! 7 search engine. The defendants suggested that the plaintiff should contact the operators of the Melbourne Crime web site directly, in order to have the material removed.

23 The plaintiff stated that he was devastated by that response of the defendants to his solicitor's letter, and, in particular, by their refusal to take responsibility for the publication of the material. He had become concerned that the material remained, and would remain, on the internet, particularly because he did not want his children or, ultimately, his grandchildren, to find out that he had been alleged to be a Melbourne criminal. The plaintiff gave evidence that the material could have been easily eliminated from the defendants' search engine by using a device known as an "abuse filter".

24 The plaintiff was cross-examined, at a little length, by Mr Wheelahan SC, who appeared with Mr O'Meara SC for the defendants. He was cross-examined as to the circumstances in which the article was first drawn to his attention. In particular, it was suggested by Mr Wheelahan that Mr Smith had shown it to him after, not before, the plaintiff had learnt that the same article had been published on the Google search engine. However, the plaintiff maintained that he was first aware of the material when Mr Smith showed it to him through the Yahoo! 7 web site. I interpolate that, although that evidence does not fit with the evidence of Mr Smith, namely, that Mr Smith did not sight the article, or bring it to the plaintiff's attention, until 20 December 2009, nevertheless, the plaintiff was resolute in maintaining that he first saw the Yahoo! article, not the Google article. I accept that the plaintiff's evidence, in that respect, was honest and accurate. It may well be that Mr Smith was incorrect in his recollection of the date upon which he first saw the article.

25 The plaintiff also confirmed that he had commenced proceedings against Google Inc and others in respect of the same article, and a copy of the writ and statement of claim in those proceedings was tendered in evidence on behalf of the defendant. He was also cross-examined as to other, unrelated, defamation proceedings, in which he has been involved in the County Court. When those questions were objected to by Mr Dibb, who appeared for the plaintiff, Mr Wheelahan stated that they were relevant as to the question whether the plaintiff's feelings of hurt and injury are solely attributable to the article published by Yahoo!. The plaintiff did agree that one of the statements, made by a person who he had sued, concerning his children, was very upsetting.

26 The plaintiff was also cross-examined by Mr Wheelahan concerning his activities in his church. The plaintiff agreed that he had been banned for life from being a church member. However, he explained that a new bishop had come to Australia, who had wished to take the titles of all the church properties, and transfer them into his private company. The plaintiff, and a number of other people, opposed the bishop's actions. As a result, the plaintiff, and about 500 other people, were banned from the church. A class action has been instituted on behalf of the plaintiff, and those persons, to have the bishop removed.

27 The plaintiff called two witnesses on the issue of damages. Mr Smith, to whom I have already referred, stated that he had known the plaintiff for about 15 years. He first met the plaintiff through Mr Smith's involvement in the music industry, as he was conducting a business involving the sale of compact discs, DVDs, and like material. He stated that the plaintiff is, and has been, a well known businessman in the Yugoslav community. Mr Smith first heard about the plaintiff through the media. He confirmed that the plaintiff conducts interviews about singers, and promotes singers, who he brings to Australia from overseas. Mr Smith stated that the plaintiff has a reputation as an honest and straightforward person.

28 Mr Smith contacted the plaintiff, when he first saw the article on the Yahoo! 7 site, and, as a result, he visited the plaintiff and showed it to him. Mr Smith said that, when he did so, the plaintiff was stunned, he could not believe it, and he was shaking his head.

29 Subsequently, Mr Smith confirmed that he has had a lot of customers, who were "going against" him, because Mr Smith was dealing with an underworld criminal, the plaintiff. Mr Smith tried to convince people that that was not true. He said that plenty of people had made remarks, in his hearing, to the effect that the plaintiff was a criminal. Indeed, Mr Smith said that he was losing a lot of customers because of his perceived association with the plaintiff. He said that there are about 300,000 to 400,000 persons of Yugoslav origin in Australia, and that approximately 90% of them know the plaintiff. He said that news travels very quickly in that community. Indeed, he said that it can sometimes travel "even faster than the internet".

30 In cross-examination, Mr Smith confirmed that he had read the article, both through the Yahoo! 7 web search, and through the Google web search. He said that he could not recall whether he saw it first via the Google, or the Yahoo! 7, search engine.

31 The second witness called on behalf of the plaintiff was Ms Alice Legarto, who has known the plaintiff since 2007. She first met the plaintiff, when he gave assistance to the her daughter by counselling her in relation to a health issue. Ms Legarto is not a member of the Yugoslav community. However, she was aware that the plaintiff had a good reputation in his community for helping people, by translating, advising people, and giving them financial help. Ms Legarto stated that she saw the article on the Yahoo! 7 web site. Since then, other persons have said things to her, that suggested that they were aware of the publication. In particular, they stated that the plaintiff was a criminal.

32 Ms Legarto also stated that when she showed the article to the plaintiff, he was dumbfounded and devastated. She said, "He was - was almost in tears and you can see his rage just sort of like, the blood pressure gone up and of course very upset about it ...".

33 Based on the foregoing evidence, I am satisfied that, before the publication of the article by the defendants, the plaintiff had a widespread reputation as a person of good repute in the Yugoslav community. It is clear from the evidence that, particularly as a result of the work which he had done in music promotions, he had maintained a high profile, especially in that community, for approximately two decades. Indeed, the defendants did not contend to the contrary.

34 The imputations, which the jury found the article bore about the plaintiff, are serious. As I have already noted, the jury was not satisfied that the article conveyed the imputation that the plaintiff was a criminal. Nevertheless, the imputation, found by the jury, that the plaintiff was so involved with crime in Melbourne that his rivals had hired a hit man to murder him, is a particularly serious imputation. So, too, is the imputation that the plaintiff is such a significant figure in the "Melbourne criminal underworld", that events involving him are recorded on a web site which chronicles crime in Melbourne. The defendants admitted, during the trial, that the nine photographs, above the article, depicted persons who had been, or who were alleged to have been, engaged in serious criminal activity in Melbourne. They also admitted that the web site, accessed through the defendants' search engine, chronicled the conduct of criminals and alleged criminals involved in the Melbourne criminal underworld. Thus, the article imputed to the plaintiff an involvement in criminal activity, and, in particular, his involvement in, and association with, the Melbourne criminal underworld. It is, I consider, unarguable that those imputations are particularly grave. The publication of those imputations could only have caused considerable damage to the reputation of the plaintiff, who was otherwise held in good repute throughout the community.

35 Mr Wheelahan submitted that the article could only have been accessed, through the defendants' search engine, by persons who specifically wished to know about the plaintiff. In other words, unlike the print or live media, it would not have been read or heard by the world at large. Thus, Mr Wheelahan submitted, the publication of the article was necessarily restricted.

36 On the other hand, as I have already stated, the plaintiff is a man, who has a widespread reputation in the Yugoslav community throughout Victoria, and, indeed, throughout Australia. Mr Dibb was correct in pointing out that I would be entitled to take into account, as a matter of judicial notice, that the use of the internet, to ascertain information about particular people, is now commonplace. Indeed, those searches have entered the everyday lexicon of the community, and the process, of undertaking such a search, is commonly referred to as "to google". Further, as Mr Dibb also pointed out, the people, to whom the defendants published the article, would have used the defendants' search engine specifically to obtain information about the plaintiff. In that way, the article was particularly damaging to the reputation of the plaintiff among those persons who read it.

37 Mr Wheelahan submitted that, in considering the "grapevine effect"[7] of the defendants' publication, the Court is required to act on evidence, and not speculation. He relied on the passage from the judgment of Gummow J in Palmer Bruyne & Parker Pty Ltd v Parsons,[8] as authority for that proposition. I note that the cause of action in the Palmer Bruyne case, namely, injurious falsehood, was specifically based on the republication by a third party of the defendant's original material. It is not necessary for me to decide whether the same proposition applies to the phenomenon known as the "grapevine", or "poison spreading", in defamation proceedings, where the plaintiff's claim is based on the direct publication of the material by the defendants. In this case, I am satisfied, on the evidence, that the allegations contained in the article, published by the defendants, reached a wide audience, and thus, the damage to the plaintiff's reputation has been widespread. The plaintiff's evidence, as to the reactions to him by other people, is testament to the breadth of the damage caused to his reputation by the publication, by the defendants, of the article. That evidence is supported by the testimony of both Mr Smith and Ms Legarto to the same effect.

38 In considering the effect of the article on the plaintiff's reputation, it is relevant to take into account the fact that, contemporaneously, the same article was published by Google Inc and others through its search engine, and that the plaintiff has commenced proceedings against Google Inc and others to recover damages in respect of that publication.[9]

39 On the other hand, the evidence establishes that the material remained available, to be accessed on the internet, through the defendants' search engine, until the end of 2010. The fact that the material remained available through the defendants' search engine for such a period of time, without being removed, could only have served to increase the damage to the plaintiff's reputation throughout the community. In that respect, the publication had a more injurious effect, than if it had been made on the live media, or even in the print media. It was open to persons, who heard about the publication, to view it for themselves, and to confirm the contents and effect of it.

40 I am also satisfied, on the evidence, that the publication of the article by the defendants caused significant grief and distress to the plaintiff. It is understandable that any person, about whom the two imputations, found by the jury, have been published, would thereby suffer considerable hurt, annoyance, and distress. The evidence of the plaintiff, and of Mr Smith and Ms Legarto, satisfies me that the plaintiff has been deeply affected by the publication by Yahoo! 7 of the article. In reaching that conclusion, I take into account the fact that part of the plaintiff's reaction has been a product of the publication by Google of the same material. However, the plaintiff was unshaken in his evidence that he had taken particular exception to the Yahoo! 7 publication, in part because, to his perception, it was that publication which preceded the Google publication, and which, thus, struck a substantial blow to his reputation and standing. The plaintiff's evidence, that he has suffered a depressive reaction, for which he has been prescribed medication, was not put in contest by the defendants.

41 Mr Wheelahan submitted that the plaintiff has shown himself to be a robust personality, whose feelings would not have been significantly harmed by the article published by the defendants. He pointed out that the plaintiff had readily entered into the dispute with the bishop of his church. Mr Wheelahan described the plaintiff as a "pugilistic" personality.

42 The fact that the plaintiff has taken up the cudgels, on his community's behalf, against the head of his church, does not mean that he would not have been sorely affected by the publication about him of the article in this case. Certainly, I accept that the plaintiff is not an over-sensitive or vulnerable individual. However, by the same token, on the evidence in this case, he has, over a substantial period of time, established a high reputation. It is understandable that the injury, occasioned by the defendants to that reputation, would have caused the plaintiff to experience significant distress and upset.

43 Mr Dibb submitted that the damages awarded to the plaintiff should include aggravated damages. In particular, he relied on the evidence that, by their letter dated 3 December 2009, the defendants disclaimed responsibility for publication of the article, and refused to undertake the removal of the image and the article from their service. As a consequence, the defendants continued to publish the image for a further period of 12 months. The plaintiff's evidence was that, during that period of time, he became distressed, because he was concerned that the article would remain published on the internet in perpetuity, so that future generations of his family would read it and think less of him.

44 Mr Dibb acknowledged that he did not submit, on behalf of the plaintiff, that, by their conduct, the defendants were lacking in bona fides. However, he submitted that, in order to entitle the plaintiff to aggravated damages, it was not necessary for him to establish that the defendants' conduct, in continuing to publish the defamatory material, was improper, unjustifiable or lacking in bona fides. In particular, he submitted that the principle, established in Triggell v Pheeney,[10] requiring the proof of improper or unjustified conduct, or lack of bona fides, on behalf of the defendants, only applies to acts of aggravation subsequent to the publication of the defamatory material. Mr Dibb submitted that the conduct of the defendants, in refusing to block access to the article, was conduct in the publication itself. Accordingly, he submitted that it was conduct entitling the plaintiff to an award of aggravated damages, and which would, pursuant to s 35(2) of the Defamation Act, have the effect that the maximum amount of damages, prescribed under s 35(1) ($324,000), does not apply to the present case.

45 In response, Mr Wheelahan relied on the principles stated by the High Court in Triggell v Pheeney. He submitted that, in the absence of any allegation, or proof, of conduct by the defendant, which was improper, unjustified or lacking in bona fides, the plaintiff was not entitled to an award of aggravated damages.

46 It is well established that a court may award aggravated damages, in an action for defamation, arising from the conduct of the defendants in publishing the defamatory material, or from conduct of the defendants up to and including the trial of the proceeding. The amount awarded for aggravated damages is not a discrete head of damages, but, rather, forms part of the compensatory damages awarded to the plaintiff.[11] In Herald & Weekly Times Ltd & Anor v Popovic,[12] Gillard AJA noted some of the instances in which an award of aggravated damages may be made. His Honour stated:

"The cases provide examples of the conduct of the publisher which has attracted an award of aggravated damages. Typical examples are the conduct of the publisher at the time of the publication, including any evidence of malice, the extent and mode of the publication, and the conduct of the publisher during the litigation. Other examples are failure to apologise and retract and the pleading and persistence in the unjustifiable defences. The conduct of counsel at trial may be another example."

47 In Triggell v Pheeney, the plaintiff sued the defendant for damages for alleging that the plaintiff had stolen livestock from him. The defendant pleaded qualified privilege by way of defence, and the plaintiff responded by pleading malice. At the trial of the proceeding, the defendant gave evidence to support the proposition that he had honestly believed the contents of the letter which he wrote about the plaintiff. The trial judge directed the jury that, in assessing damages, they were entitled to take into account the conduct of the defendant up to and including the trial, including the evidence by the defendant that he really believed that the plaintiff had been guilty of dishonesty.

48 One of the questions before the High Court was whether the directions, given by the trial judge to the jury, were correct. That gave rise to the question whether the conduct of the defendant, in giving that evidence, could be taken into account in considering the damages awarded to the plaintiff. In their joint judgment, Dixon J, Williams J, Webb J and Kitto J stated that, while there may be an argument in favour of the view, that damages should be confined to the circumstances of the tort itself, that view had not been taken by the High Court in Herald & Weekly Times Ltd v McGregor.[13] Based on that case, and other authority, the Court held that, accordingly, any conduct by the defendant up to and including trial, could be taken into account as conduct aggravating the plaintiff's damage, and in particular, the injury to his feelings. Their Honours then stated:

"It is no doubt true that the jury cannot take into consideration as a ground for giving or increasing damages, whether exemplary or compensatory, conduct of the defendant which was not merely bona fide but was justifiable or proper. A bona fide defence raised properly or justifiably in the circumstances known to the defendant and evidence honestly given in support of such a defence doubtless cannot be used for such a purpose. But the decision of the majority in Herald and Weekly Times Ltd v McGregor must mean that the conduct of the defence may be taken into consideration not only as evidencing malice at the time of publication or afterwards, as, for instance, in filing a plea, but also as improperly aggravating the injury done to the plaintiff, if there is a lack of bona fides in the defendant's conduct or it is improper or unjustifiable. In the present case the direction of the learned judge could not have been understood by the jury as going beyond this."[14]

49 Pausing there, it is clear that in Triggell v Pheeney, the Court was directing its comments to conduct by a defendant, in defamation proceedings, in defending a proceeding at trial. In that respect, it is understandable that, in order that such conduct give rise to aggravated damages, it must be lacking in bona fides, or be improper or unjustifiable. Otherwise, a defendant would be required to pay damages as a consequence of relying on, and addressing, a defence in good faith. That rationale does not require, or support, the application of the "rule", stated by the High Court in Triggell v Pheeney, to an entitlement to aggravated damages arising from the conduct of a defendant in publishing defamatory material. Thus, if I were otherwise not constrained by authority, I would not consider that the statement of principle, in Triggell v Pheeney, applied to circumstances such as those raised by Mr Dibb in this case, and which relate to the publication of the article itself.

50 In order that conduct of a defendant in the publication of the defamatory material be such as to justify an award of aggravated damages, there must be something about the conduct of the defendant, which aggravates the feelings of hurt occasioned to the plaintiff by the publication of the imputations contained in the defamatory material. Ordinarily, that conduct is constituted by a lack of belief by the defendant in the truth of the defamatory material, or by the manner and circumstances by which the defendant published it. In most cases, that conduct could fairly be described as lacking in bona fides, or otherwise improper or unjustifiable. There are, therefore, few cases which deal with the question whether conduct by a defendant, in publishing defamatory material, which is not lacking bona fides, improper or unjustifiable, might otherwise be the basis of a claim for aggravated damages.

51 However, there is some authority which, I consider, I should follow, and which does stand for the proposition advanced by the defendants in this case, namely, that any conduct - whether in the publication of the defamatory material or subsequently - must be lacking in bona fides, or improper or unjustifiable, in order to entitle a plaintiff to an award of aggravated damages in respect of it.

52 In Bickel v John Fairfax & Sons Ltd,[15] the plaintiff relied solely on matters relating to the defamatory material itself as matters which entitled him to an award of aggravated damages. Hunt J, having considered the relevant authorities, stated:

"To be taken into account in aggravation, the defendant's conduct never had to be malicious ... But it must be conduct which is in some way unjustifiable, improper or lacking in bona fides notwithstanding that the conduct may cause distress to the plaintiff: Uren v Australian Consolidated Press Ltd (1965) 66 SR (NSW) 72, 302 ...; Rigby v Associated Newspapers Ltd (No 2) [1969] 1 NSWR 729, at 739, 740; David Syme & Co Ltd v Mather [1977] VicRp 58; [1977] VR 516, 530, 535. The court in each of these three cases was considering conduct relevant to an award of aggravated not punitive damages. Each relied upon the limitations imposed upon the type of conduct which could be taken into account for that purpose as laid down by the High Court in Triggell v Pheeney ... It is clear that in each case the court proceeded with a proper appreciation of the distinction between compensatory and punitive damages. The relevant limitations imposed by the High Court in Triggell v Pheeney must therefore have been recognized as being appropriate to aggravated compensatory damages properly so understood. It is true that each of the three cases was concerned with the conduct of the defendant of the litigation based upon the publication of the matter complained of. But there is no reason in logic or principle why the defendant's conduct of the litigation should be treated any differently to his conduct in the publication itself or otherwise outside the litigation. And, following the reclarification of the distinction between compensatory and punitive damages, it is important that neither logic nor principle should be overlooked."[16]

53 In Waterhouse v Station 2GB Pty Ltd,[17] the plaintiff relied on the conduct of the defendant at the time of the publication, and in particular, on knowledge by the defendant that the matters contained in the defamatory material were false. Hunt J, following his ruling in Bickel, stated:

"Conduct on the part of a publisher which is relevant to the issue of aggravated compensatory damages need not be malicious, but it must be capable of amounting to conduct which is in some way unjustifiable, improper or lacking in bona fides."[18]

54 In Bogusz v Thomson & Anor,[19] Miles CJ, of the Supreme Court of the Australian Capital Territory, referred to and followed the ruling of Hunt J in Bickell. His Honour concluded that, in order to justify an award of aggravated (or exemplary) damages arising out of the publication of the defamatory material itself, it was necessary for the plaintiff to establish that the defendants had acted with requisite indifference to the truth.[20]

55 The cases, to which I have just referred, demonstrate that there is a line of authority, which support the proposition that the principle, stated by the High Court in Triggell v Pheeney, applies not only to conduct of the defendant subsequent to the publication, but also to conduct of the defendant in making and continuing the publication itself. Mr Dibb, quite properly, conceded that he could not responsibly put that the failure of the defendants, to remove or block from view the offending article, amounted to a lack of bona fides or improper or unjustifiable conduct on behalf of the defendants. Accordingly, that factor, of itself, does not justify the award of aggravated damages to the plaintiff.

56 Nevertheless, in my view, the point to which I have just been referring is somewhat academic. First, as I have already noted, the fact is that the defamatory material remained available to be viewed, via the defendants' search engine, on the internet, for a period of 12 months after it had been drawn to the plaintiff's attention. During that time, as I have found, the plaintiff not only sustained ongoing injury to its reputation, but he also suffered substantial distress. I am satisfied that the plaintiff's feelings of distress were, unsurprisingly, increased by the frustration, which he felt, at being unable to have the defendants block access to the material through their search service, and from his concern, during those 12 months, that the material might remain indefinitely accessible on the internet, through the defendants' search service. While, as I have stated, those factors do not entitle the plaintiff to an award of aggravated damages, nevertheless, they are relevant in determining the nature and extent of the harm occasioned, both to the plaintiff's reputation, and to his feelings, by the publication of the article by the defendants.

57 As I have stated, I am satisfied that, before the publication of the article by the defendants, the plaintiff had a widespread, high reputation throughout the Yugoslav community in Victoria and in Australia. I am further satisfied that the publication of the article, by the defendants, has occasioned considerable damage to the plaintiff's good reputation, and that it has caused him to suffer substantial distress and hurt. The verdict of the jury, and an award of damages in favour of the plaintiff, will, no doubt, significantly vindicate the wrong done to the plaintiff, by reinstating the plaintiff's reputation, and assuaging the plaintiff's injured feelings. As an award of damages is directed to vindicating the plaintiff, the award is required to be treated as sufficiently large to vindicate him once and for all, into the future. Thus, he will not, ordinarily, be regarded as suffering any future loss to his reputation.[21] Nevertheless, I am satisfied that the plaintiff's feelings of distress, caused by the publication of the article through the Yahoo! 7 search engine, will endure, although they will be significantly alleviated.

58 In the course of submissions before me, Mr Dibb drew my attention to awards of damages in other defamation proceedings, in recent times, by jury verdict or by judgment. However, any guidance provided by the awards of damages in those cases would be quite limited.[22] Each defamation action has its own particular characteristics. The award of damages takes into account a diverse range of factors, each of which must vary from case to case, including the nature and extent of the plaintiff's reputation, the nature of the imputations, the effect of the imputations on the plaintiff's particular reputation, an evaluation of the injury done to the plaintiff's feelings, and, where relevant, the conduct of the defendant. As Mr Wheelahan pointed out, some of the awards of damages, referred to by Mr Dibb, were made after hard fought trials before a jury.

59 As I have already noted, in assessing damages, I am required to take into account the fact that the plaintiff has brought proceedings for damages for defamation in relation to the publication, by medium of the Google search engine, of the same defamatory matter. In that way, s 38(1)(d) of the Defamation Act alters the longstanding common law principle, that damages are not mitigated by proof that other people had also tarnished the plaintiff's reputation in the same manner as the defendant.[23] Thus, it is necessary to take into account the fact that some of the harm, which the plaintiff has perceived has been occasioned to his reputation, and, thus, to his feelings, may not have been caused by the publication of the article by the defendants, but, rather, by the Google publication, in respect of which the plaintiff is seeking appropriate redress in Court. In particular, it is important to take into account the evident intent of s 38(1)(c) and (d), namely, that the plaintiff should not be compensated, twice, for publication of the same allegations, by recovering damages in respect of them in the immediate proceedings, as well as in other proceedings involving publication of matter having the same meaning of effect as the matter complained of in the immediate case.

60 As I stated, the imputations, which were published by the defendants about the plaintiff, and which were found by the jury, were particularly serious. They have occasioned significant damage to the plaintiff's reputation and his feelings. The assessment of damages in respect of that injury must take into account the three purposes served by damages in defamation cases, and to which I have already referred, namely, as constituting a solatium to the plaintiff for the distress and hurt occasioned to him by the publication, as reparation for the injury done to his reputation, and as vindication of his reputation. The role of damages, in vindicating the plaintiff, both for the present, and the future, is particularly important.[24] The damages must be sufficient to demonstrate, to the bystander, the baselessness of the allegation about the plaintiff in the defamatory material,[25] and thus to "nail the lie" in it.[26] Taking into account the matters to which I have referred, I have concluded that the plaintiff is entitled to an award of damages in the sum of $225,000 in respect of the defamatory matter published about him by the defendants.

61 It is accepted that the appropriate rate of interest, in respect of pre-trial non-economic loss, is 4% per annum.[27] It was submitted on behalf of the defendants that that rate should be halved, to take account of the fact that, in a defamation proceeding, general damages compensate for both past and future loss. However, as I have already stated, ordinarily, an award of damages is designed to prevent ongoing injury to the plaintiff's reputation, and thus, an award is made on the basis that the plaintiff will not sustain future loss to his or her reputation. Accordingly, the damages, which I have awarded the plaintiff in this case, are based on the proposition that that award is sufficient to vindicate the plaintiff's reputation. I have taken into account, in a modest respect, the fact that the plaintiff will, nevertheless, continue to suffer distress, including depression, from the publication by the defendants of the article about him. It is also appropriate that, in fixing the rate of interest to be applied to the damages, some allowance should be made for the fact that the injury to the plaintiff has been suffered over the period since the publication of the article by the defendants, up to the present date. Accordingly, in my view, it is appropriate that the plaintiff be awarded interest on damages at the rate of 3% per annum.[28]

62 In his prayer for relief, the plaintiff also sought an injunction requiring the defendants to remove the matter from its computers and servers, and to take all necessary steps to remove, or block, internet access to the matter from or through the Yahoo! 7 site. As I have stated, in late 2010 the defendants took the necessary steps to ensure that internet access to the defamatory matter could not be obtained through the Yahoo! 7 search facility. Mr Dibb told me that he was, nevertheless, instructed to seek an injunction. However, there is no basis upon which to grant such an injunction. Accordingly, I shall not grant the plaintiff any injunctory relief.

63 It follows that the plaintiff shall be entitled to judgment against the defendants for damages for $225,000, together with damages in the nature of interest at 3% per annum, the calculation of which I shall leave to counsel.

[1] Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, 607.

[3] [1993] HCA 31; (1993) 178 CLR 44, 60; citations omitted.

[4] See also Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327, 347 [60] (Hayne J); Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118, 150 (Windeyer J).

[5] Victorian Government Gazette No G25, 23 June 2011.

[6] Hughes v Mirror Newspapers Ltd (1985) 3 NSWLR 504, 511-512; Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643, 647 (Hutley JA), 657 (Samuels JA), 665 (Priestley JA); Walton v R [1989] HCA 9; (1989) 166 CLR 283, 288 (Mason CJ), 300-301 (Wilson, Dawson and Toohey JJ); Subramanian v Public Prosecutor [1956] 1 WLR 965, 970; Evidence Act 2008, s 66A.

[7] Ley v Hamilton (1935) 153 LT 384, 386 (Lord Atkin).

[9] Defamation Act 2005, s 48(1)(d).

[11] Carson v John Fairfax & Sons Ltd (above), 71 (Brennan J).

[18] 75: see also Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643, 653 (Samuels JA); Crampton v Nugawela [1996] NSWSC 651; (1996) 41 NSWLR 176, 200-201 (Giles A-JA) Ali v Nationwide News Pty Ltd [2008] NSWCA 183, [79]; Jarratt v John Fairfax Publications Pty Ltd [2001] NSWSC 239, [117], [159] (McClellan J).

[21] John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131, 143 (McHugh JA).

[22] Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327, 350 [69] (Hayne J), 368 [134] (Callinan J).

[23] Dingle v Associated Newspapers [1964] AC 371, 396 (Lord Radcliff); Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1992) 178 CLR 44, 99 (McHugh J).

[24] Broome v Cassell & Co [1972] UKHL 3; [1972] AC 1027, 1071 (Lord Hailsham); Carson v John Fairfax & Sons Ltd, above, 69-70 (Brennan J).

[25] Broome v Cassell (above) 1071 (Lord Hailsham).

[26] Sent and Primelife Corporation Ltd v John Fairfax Publications Pty Ltd & Hills [2002] VSC 429, [77] (Nettle J); French v The Herald & Weekly Times Pty Ltd (No 2) [2010] VSC 155, [87] (Beach J).

[27] MPB (SA) Pty Ltd v Gogic [1991] HCA 3; (1990) 171 CLR 657.

[28] Thompson v Australian Capital Television Pty Ltd & Ors (1998) 138 ALTRI, 4-5 [9]-[10] (Miles CJ); Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182, [90] (Nicholas J).

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Cases Cited (15)