Plaintiffs v Defendant

Supreme Court of Victoria|2011-04-29|Before: SIFRIS J

DEFAMATION - Publication - Anonymous defamatory letters - Defendant not author of letters - Whether defendant otherwise involved in publication.

DEFAMATION - Damages - Assessment of damages where publication very limited - Family dispute - Aggravated damages - Whether counsel's conduct aggravated damage suffered by plaintiffs.

2 The defendant denies publication of the two letters. The defendant does not positively assert any defence - there is no plea of justification or truth. In fact, the defence contains only bare denials.

3 Accordingly, the critical issue in this case is whether the defendant published the two letters as alleged. It is clear that the words complained of are defamatory and there was little argument about this during the trial. Consequently, if publication is established, damage to the plaintiffs will be presumed and the remaining issue will be the quantification of damages.

4 Constantinos (Kostas) Amanatidis ("the deceased") died on 5 March 2008.

5 The first plaintiff ("Teli") is a son of the deceased. The second plaintiff ("Helen") is married to Teli. The defendant ("Anastasia") is the daughter of the deceased and Teli's sister. There are four other children of the deceased, all of whom are adults.

6 The family is in dispute over the estate of the deceased. There are accusations and counter accusations and the matter will presumably be determined by the Court at some later stage, if the siblings are unable to resolve their difficulties.[1] The acrimonious dispute in relation to the estate commenced shortly after the death of the deceased. Although it is not relevant to the disposition of this case, it does provide some background.

7 The plaintiffs allege that on or about 14 September 2008, Anastasia delivered, or caused to be delivered, a letter to Mr. George Theodorou, Helen's father ("the first letter").

8 The plaintiffs further allege that in or around November 2008, Anastasia delivered another letter to Father Alexandros Korlos ("the second letter"). Father Korlos is a Reverend of the Greek Orthodox Archdiocese of Australia. He is affiliated with the Parish of St Nicholas in Yarraville in the State of Victoria.

9 Both letters are written in Greek and are not dated or signed. When translated into English, the letters are identical for all intents and purposes.

10 The plaintiffs allege that the letters contain various defamatory imputations about each of them, which arise from the natural and ordinary meaning of the text.

11 In relation to Teli, the plaintiffs allege in the Amended Statement of Claim that the letters meant and were understood to mean :

"(i) that at the expense of his siblings he was squandering his late father's estate;

(ii) that he is improperly refusing to hand over relevant documents, including a Will of his deceased father, to the late father's solicitor;

(iii) that he has improperly removed $1 million from his late father's bank account and has failed to account to his siblings for their share of that money;

(iv) that he has improperly taken control from [sic] his late father's estate and excluded his siblings therefrom; [and]

(v) that he had stolen his late father's $25,000 Gold Rolex watch and his father's car. "

12 In relation to Helen, the plaintiffs allege in the Amended Statement of Claim that the letters meant and were understood to mean:

"(i) that she had robbed the dead by taking from the deceased father-in-law's pocket his wallet, money, papers and anything else she found there;

(ii) that with her husband she was squandering her late father-in-law's estate at the expense of his children;

(iii) that she, together with her husband wrongfully took control of her late father-in-law's estate, is victimising her husband's siblings and destroying the family; [and]

(iv) that she, together with her husband, had improperly removed $1 million from her late father-in-law's bank account and had failed to account to her husband's siblings for their share of the same."

13 As pointed out above, the main issue in this case is publication. Anastasia denies that she published the letters.

14 In the event that publication is established, the next question would ordinarily be whether the material is defamatory. However, during the trial and despite the pleadings, Counsel for the defendant in effect conceded that the letters contained defamatory matter. This is clearly the case. Consequently, damage is presumed and the remaining issue will be the quantification of damages for each plaintiff.

15 Helen and Teli do not contend that Anastasia wrote the letters. It is common ground that she does not read or write Greek. Rather, Helen and Teli assert that Anastasia caused the first letter to be delivered to Mr. Theodorou and personally delivered the second letter to Father Korlos.

16 In defamation law, publication has a wide meaning and refers to the communication of defamatory matter to a third party.[2] In this regard, the plaintiffs relied on Webb v Bloch[3] where Isaacs J endorsed the following passage from Parkes v Prescott:[4]

"All who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication...."[5]

17 Anastasia denies publishing the letters even in this broader sense. She gave evidence that the first time she became aware of the letters was many months after the dates they were allegedly delivered, when they were shown to her by the deceased's solicitor, Mr. Ray Rockman.

18 However, Father Korlos gave evidence that Anastasia personally delivered the second letter to him in or around November 2008. He told the Court that Anastasia said:

"Take this letter and you have a look at it and I have sent a similar letter to Mr. Theodorou."

Father Korlos said he did not discuss the second letter any further with Anastasia on that occasion. He also said he did not read the letter immediately, but did so at a later stage.

19 Anastasia disputes the version of events given by Father Korlos. She denies that she delivered the second letter to him and denies that she told him that she sent a similar letter to Mr. Theodorou.

20 In evidence, Anastasia said that Father Korlos was mistaken. She suggested that he had confused the second letter with an entirely different letter dated 10 November 2008, which she had in fact delivered to him regarding another family matter ("Offer of Settlement letter").

21 The versions of events given by Father Korlos and Anastasia are irreconcilable.

22 I prefer the evidence of Father Korlos. He is an impartial witness and was emphatic about his version of events. He stated on three occasions that Anastasia had delivered the second letter to him and that she told him she sent a similar letter to Mr. Theodorou. He said he was "100 per cent sure" of this and when pressed, he told the Court:

"I am sure that it was Anastasia who brought me both letters. That is the truth. If I say that somebody else brought me that letter that would not be the truth."

23 The defendant submitted that Father Korlos had confused the second letter with the Offer of Settlement letter, which Anastasia admits delivering to him. I reject this suggestion. Father Korlos was able to recall receiving each of the letters. He could describe the appearance of the envelope which contained the second letter[6] and could recount the conversation he had with Anastasia when she delivered it. He could distinguish between the two letters, both of which were delivered in 2008. Indeed, during cross-examination, Father Korlos voluntarily and without being prompted, described in some detail the content of the Offer of Settlement letter. The letters are different in content and it is unlikely that Father Korlos would have been confused.

24 In my opinion, Father Korlos' account of the receipt of the two letters was clear and unequivocal. I note however, that the evidence of Father Korlos in relation to receipt of the second letter was not sufficiently challenged by Counsel for the defendant.

25 I find, on the balance of probabilities, that Anastasia delivered the second letter to Father Korlos and made an admission to the effect that she had sent a similar letter to Mr. Theodorou. It follows that I reject the contrary evidence given by Anastasia.

26 It is common ground that Anastasia did not personally deliver the first letter to Mr. Theodorou. Rather, the plaintiffs assert that she arranged for it to be delivered. The only evidence in this regard is Anastasia's admission to Father Korlos that she sent a letter (in similar form to the second letter) to Mr. Theodorou. I accept that Anastasia made this admission and that she did in fact arrange for the first letter to be delivered to Mr. Theodorou.

27 The words complained of in the letters are clearly defamatory in their ordinary and natural meaning and as pointed out, the defendant has not raised any positive defences. Consequently, the only remaining issue is the quantification of damages.

28 Where a plaintiff establishes publication of defamatory matter, "general damages are presumed to be the natural or probable consequence of the defamatory publication".[7] It is therefore not necessary to positively establish that the plaintiff's reputation has been damaged.

29 In the present proceeding, Teli and Helen claim that as a result of the publications, their reputations have been injured and they have been brought into hatred, ridicule and contempt. As a result, they contend they have suffered loss and damage.

30 Teli and Helen also claim that they have suffered aggravated damages. The particulars of aggravation, as pleaded in the Amended Statement of Claim, are as follows:

that the letters included a threat to gossip to third parties, including the Greek newspaper Neos Kosmo, about the subject matter of the letters and the defamatory imputations contained therein;
that since about September 2008, the plaintiffs have heard and have been made aware of the repetition of the defamatory allegations contained in the letters within the Greek community to their continuing embarrassment, hurt and upset;
that the letters were published anonymously with the deliberate intention of damaging the reputation of the plaintiffs; and
that the defendant caused the delivery and publication of the letter to Mr. Theodorou in an intimidatory manner.

31 During his closing submission, Mr S K Wilson QC, who appeared with Mr Bracken of Counsel for the plaintiffs, submitted that further aggravation was caused by the manner in which the defendant's case was conducted in this Court. In particular, he highlighted that Counsel for the defendant:

• repeatedly attempted to introduce evidence which was irrelevant to the present dispute and was intended primarily to damage the Teli's reputation;

• asserted on multiple occasions, without any evidential basis, that the letters the subject of the proceeding were a "concoction" created by Teli and Helen for an improper purpose;

• suggested, again without compelling evidence, that Teli and Helen had pursued previous litigation as "a dress rehearsal for this proceeding";

• cross-examined Teli in relation to his knowledge of the operation of the Statute of Limitations and implicitly suggested that dates on the letters were changed so as not to fall foul of the statutory time bar;

• submitted that the envelope attached to the plaintiffs' interrogatories for the examination of the defendant dated 7 May 2011 was a concoction that "smacks of fraud" and for which Teli and Helen "need to be punished"; and

• submitted, without proper basis and without appropriate pleadings, that this proceeding is "vexatious, malicious and an abuse of process".

32 Mr Wilson QC submitted that in the circumstances, it would be appropriate for Helen and Teli to each be awarded compensatory damages in the range of $20,000 to $40,000. These figures include an award of between $10,000 and $20,000 for aggravated damages. They do not include, and the plaintiffs do not seek, damages for economic loss. The award proposed by Mr Wilson QC is well under the maximum award for non-economic loss proscribed by the Defamation Act 2005 (Vic) ("Defamation Act").[8]

33 Counsel for the defendant in effect submitted that if the plaintiffs succeeded in establishing that the defendant published the defamatory letters (as they have done), they should be awarded less than $3,000 in damages. In this regard, Counsel referred me to the recent decision of Davis J of the County Court of Victoria in Trkulja, Milorad v Trajkovska, Snezana[9] where the plaintiff received a damages award of $3,000. Counsel for the defendant submitted that the defamatory matter in that case, which included imputations to the effect that the plaintiff had drugged the defendant, committed serious criminal offences and offered to sell his young daughters into prostitution, was far more serious than the defamatory material in the present case.

34 In Rogers v Nationwide News Pty Ltd[10], Hayne J indicated that comparisons between awards for defamation are difficult because every defamation and each award of damages is necessarily unique. There is a matrix of factors that go into determining a damages award in these cases. While it may be possible to compare some of the more objective factors, such as the extent of publication, and perhaps even the seriousness of the defamatory matter, it may not be helpful or even possible to compare other factors, such as the level of hurt and distress suffered by individual plaintiffs in different cases. Consequently, as Hayne J noted, "drawing of direct comparisons between particular cases is apt to mislead".[11] Some awareness and a general consideration of damages awards in other defamation cases may be useful. However, a detailed examination of the award in a particular case, such as Trkulja, Milorad v Trajkovska, Snezana, does not necessarily assist in determining the appropriate award of damages in the present case.

35 Compensatory damages are awarded in defamation proceedings as consolation for the distress and hurt which the plaintiff has experienced as a result of the publication, to compensate for the harm done to their reputation and to vindicate their reputation in the minds of others.[12] Damages are not designed to punish the defendant. Indeed, section 37 of the Defamation Act expressly provides that "a plaintiff cannot be awarded exemplary or punitive damages for defamation".

36 As was observed in Cassel & Co Ltd v Broome (No 1)[13], the figure awarded for compensatory damages in defamation proceedings cannot be determined by some objective calculation or computation.[14] It is not ascertained by reference to a rigid formula or quantifiable loss and in this sense, damages are at large. However, the Defamation Act stipulates that the amount of damages awarded must bear an "appropriate and rational relationship [to] the harm sustained by the plaintiff".[15]

37 There are a number of matters that may be taken into account in assessing the extent to which each of the plaintiffs should be compensated for their hurt and the damage to their reputation. The more important matters to be considered are the nature and seriousness of the defamatory matter, the extent of publication and any matters raised by the defendant in mitigation. It is also relevant to consider the subjective effect of the defamatory publication on the plaintiff, "the hurt, anxiety, loss of self-esteem, the sense of indignity and the sense of outrage felt by the plaintiff".[16] In the present case, I consider the context in which the defamatory statements were made, that is, in the midst of a bitter family dispute, also to be relevant to the assessment of damages.

38 Facts which go to aggravation are also relevant. Aggravated damages are awarded to compensate the plaintiff where the defendant's conduct from the time of publication up until a verdict is delivered increases the harm done.[17] This may occur because a defendant fails to apologise or retract a publication, persists with unjustifiable defences or relevantly, as a result of the way in which the trial is conducted by Counsel.[18] In this context, aggravated damages are awarded where "there is a lack of bona fides in the defendant's conduct or it is improper or unjustifiable."[19] Aggravated damages are compensatory and form part of the general award, rather than being a discrete head of damages.

39 In assessing the amount of damages that should be awarded to Teli in the present case, I consider that the following matters are relevant:

(d) Teli's subjective response when he learnt that the defamatory letters had been published; and

40 In my opinion, the defamatory material in the letters of and concerning Teli is serious. The allegations suggest dishonesty and a lack of personal integrity. However, the gravity of the material must be weighed against the very limited scope of publication. The first letter was published to 2 people, namely Mr. Theodorou and his wife.[20] The second letter was published only to Father Korlos, who as a Reverend, was unlikely to gossip or further spread the allegations.

41 Further, the fact that the defamatory material was published in the context of a family dispute between Teli, Helen, Anastasia and the deceased's other children is also a relevant countervailing factor. Passions were high and there was significant disagreement between the siblings over the deceased's estate. Teli took control of the situation and pursued a course of action with which his siblings did not agree. I do not mean to suggest that Teli provoked the defamation or that publication of defamatory material to third parties in the context of a family dispute is somehow acceptable. However, this context would undoubtedly have influenced Teli's subjective response to the defamatory material and I find that to some extent, it reduced the hurt he felt as a result of the publication.

42 Teli gave evidence of the effect that the defamatory publications had on him. He said that upon hearing his father-in-law read the first letter:

"I felt like my whole world virtually tipped over upside down because I felt like the only way my siblings could get to me - I began to realise the only way they could get to me was through my wife and they were using this to try and upset my relationship with my in-laws and my wife..."

43 He said he felt ashamed and threatened and was embarrassed that his daughter had heard the allegations when they were read aloud by Mr. Theodorou. In my view however, Teli's primary reaction appears to have been concern for Helen, who was apparently extremely distressed by the first letter.

44 Teli gave evidence that when he read the various allegations in the first letter he got a "sick feeling... [and knew he] was going to have repercussions." He said that he expected that the letter would cause his wife to end their marriage. On a balance of probabilities, I accept that Teli was distressed when he heard the defamatory allegations in the first letter. However, I consider that in giving evidence Teli over-dramatised and exaggerated his response.

45 Helen also gave evidence about Teli's response to the first letter. She said that after her father read the letter Teli "got very upset" and "very angry". I found Helen to be a credible witness and I accept her evidence in this regard.

46 So far as the second letter is concerned, Teli gave evidence that when he learnt that Father Korlos had received the letter he felt like he was being "attacked from every corner". He also said he felt "demoralised" that a private dispute with his siblings had become public gossip.

47 During cross-examination, Counsel for the defendant questioned Teli as to whether any of the allegations in the defamatory letters were known to him prior to the publication of the first letter. Teli conceded that he was aware that his siblings were alleging that he had taken the deceased's gold watch and improperly taken $1 million. However, he gave evidence that despite this knowledge, he was still upset that the defamatory allegations had been communicated to Mr. Theodorou and Farther Korlos.

48 In my opinion, this evidence is of minimal relevance. It is well established that a defendant cannot rely on evidence of similar publications in mitigation of damages. This is apparent from the following statement of Lord Radcliffe in Associated Newspapers v Dingle [1964] AC 371:

"Whatever may be the qualifications or requirements as to evidence led on the issue of reputation by way of mitigation of damages for libel, I do not believe that it has ever yet been regarded as permissible to base such evidence on statements made by other persons about the same incident or subject as embraced by the libel itself. In my opinion it would be directly contrary to principle to allow such an introduction. A libel action is fundamentally an action to vindicate a man's reputation on some point as to which he has been falsely defamed, and the damages awarded have to be regarded as the demonstrative mark of that vindication. If they 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. It is, I think a well understood rule of law that a defendant who has not justified his defamatory statements cannot mitigate the damages for which he is liable by producing evidence of other publications to the same effect as his; and it seems to me that it would involve an impossible conflict between this rule and the suggested proof of tarnished reputation to admit into consideration other contemporary publications about the same incident. A defamed man would only qualify for his full damages if he managed to sue the first defamer who set the ball rolling: and that, I think, is not and ought not to be the law."[21]

49 These principles apply equally to defamation law in Australia.[22] Consequently, the evidence that Teli was aware of some of the allegations prior to publication of the first letter is only relevant to the extent that this knowledge may have meant he was less hurt when he learnt that the letters had been published. I accept that to a small extent, Teli's awareness of the defamatory allegations prior to publication reduced the upset he felt on learning of the letters.

50 Turning next to aggravated compensatory damages, I consider that Teli's distress occasioned by the publication was increased by the threat that the allegations contained in the letters would be published in Neos Kosmo. Teli gave evidence, which I accept, that he took this threat very seriously. I also consider the fact that the letters were published anonymously to be an aggravating factor. Finally, the repeated attacks on Teli's credibility during the trial are also relevant to aggravation. In this respect, I find that Counsel's conduct was unjustifiable and improper. Anastasia had not pleaded any positive defences, such as justification, to which the information and questions raised by Counsel could have been relevant. Further, despite warnings, Counsel made a number of serious allegations, including that the letters were a "concoction" and that the proceeding had been brought for an improper purpose. These assertions were completely unsubstantiated and unhelpful. Aggravated damages should therefore be awarded to compensate Teli for the additional hurt he suffered as a result of the defendant's conduct up to and during the trial.

51 I do not consider that the manner in which the first letter was delivered to Mr. Theodorou increased the hurt suffered by Teli. Further, I do not consider that there is sufficient evidence about the repetition of the defamatory allegations in the Greek community for this to support an award for aggravated damages.

52 In all the circumstances and taking into account the purpose of compensatory damages in defamation proceedings, I consider that it is appropriate to award Teli $5,000 in damages. This award includes a sum for aggravated damages. In my opinion, an award of this magnitude is sufficient to vindicate Teli's reputation in the eyes of the general public and to compensate him for his hurt, distress and the damage to his reputation.

53 In relation to Helen, I consider that the following matters are relevant to the assessment of damages:

(d) the context in which the defamatory allegations were made; and

54 In my opinion, the defamatory allegations concerning Helen are grave. I consider the imputation that she had robbed the dead by taking money and papers from the deceased's pockets to be particularly serious.

55 It was apparent from Helen's evidence and I find on a balance of probability, that she has been genuinely hurt and deeply affected by the publication of the defamatory letters.

56 As noted above, I found Helen to be a credible witness. She was open in answering questions put to her by Counsel and did not take opportunities to answer in ways that would clearly advance her case. I accept her evidence as to the effect that the letters have had on her.

57 Helen gave evidence that when her father read the first letter aloud to her (and others), she had difficulty absorbing the information and cried. During evidence she was unable to isolate a particular word that expressed her feelings at this time and in particular, her reaction to the reference in the first letter to her desire to have a child. She said she could not explain how it affected her because "the pain is too deep."

58 Helen also noted that she was "very, very upset" that her parents had been brought into the dispute with Teli's siblings as a result of the first letter. She was not however, embarrassed that Teli's daughter had heard the allegations as Helen knew she did not believe them.

59 In respect of the second letter, Helen gave evidence that she was shocked, upset and embarrassed when she learnt it had been received by Father Korlos. Although Helen did not attend the Yarraville Greek Orthodox Church regularly prior to the publication, she visited on occasion to perform religious rituals. Since learning that Father Korlos received the second letter, she has only attended the church on one occasion and avoided him.

60 Helen said that she stopped going to Yarraville, where a large Greek community is based, since becoming aware of the publication of the letters. She gave evidence that if she ever needs to go to Yarraville with Teli for business purposes, she ensures that they go very late at night so that she will not be seen.

61 She said, and I accept, that prior to publication of the first letter, she was not aware of any rumours or allegations concerning her. In particular, she was not aware of any allegation that she had gone through her deceased father-in-law's pockets.

62 In my view, Helen was very hurt and shocked by the letters and is still affected by them to this day.

63 I consider that there are also a number of factors which support an award of aggravated compensatory damages. Helen gave evidence that she took seriously the threats in the letters regarding publication of defamatory material in Neos Kosmo and was frightened by this possibility. I accept that this threat increased the distress caused by the letters. I also consider the fact that the letters were published anonymously to be relevant. Finally, although many of the allegations made by Counsel for the defendant during the trial were levelled at Teli, the more general allegations that the proceeding had been brought for an improper purpose and that the letters were a concoction improperly and unjustifiably called into question Helen's credibility and motives. This no doubt increased her distress and accordingly, it is appropriate to award aggravated damages.

64 In summary, the seriousness of the allegations made against Helen, her subjective response and aggravation all support a not insignificant damages award. However, as noted above in respect of Teli, publication of the letters was in the context of an acrimonious family dispute and was very limited.

65 In my view, it is appropriate to award Helen $10,000 in damages, which includes a sum for aggravated damages. I consider that this figure is sufficient to vindicate Helen's reputation and "convince a bystander of the baselessness of the charge."[23] It is also sufficient to compensate her for her hurt feelings and damage to her reputation.

66 Accordingly, I propose to award $5,000 in damages to the first plaintiff and $10,000 in damages to the second plaintiff.

67 I will hear submissions from the parties in relation to interest and costs.

[1] The Court has recently been informed by the solicitor for the plaintiffs that the other proceedings have now settled.

[2] Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331, 363 per Isaacs approving Williams J in Amann v Damm [1860] EngR 756; (1860) 8 CB(NS) 597, 600; Trkulja v Google (No. 2) [2010] VSC 490 per Beach J at [23].

[4] (1869) LR., 4 Ex 169, 173.

[6] When asked if the envelop was addressed to him, Father Korlos said that there was "nothing on the envelope".

[7] The Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; [2003] 9 VR 1, 76.

[11] Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327, 350.

[12] The Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; [2003] 9 VR 1, 76; Smith v Dahlenburg [2008] VSC 557 at [20].

[13] Cassell & Co Ltd v Broome (No 1) [1972] UKHL 3; [1972] AC 1027.

[14] Cassell & Co Ltd v Broome (No 1) [1972] UKHL 3; [1972] AC 1027 at 1071.

[16] John Fairfax & Sons Limited v Carson [1993] HCA 31; (1992) 178 CLR 44, 71.

[17] The Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; [2003] 9 VR 1, 77 and John Fairfax & Sons Limited v Carson (1992) 178CLR 44, 50.

[18] See for example John Fairfax & Sons Limited v Carson [1993] HCA 31; (1992) 178 CLR 44.

[19] Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497.

[20] Although the first letter was later read to Teli, Helen and Teli's daughter.

[21] Associated Newspapers v Dingle [1964] AC 371, 396.

[22] See for example comments in Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 per McHugh J and more recently, French v Triple M Melbourne Pty Limited & Ors Ruling (No 4) [2008] VSC 550.

[23] Cassell & Co v Broome[1972] UKHL 3; [1972] AC 1027, 1071

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Judgment (118 paragraphs)

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Cases Cited (5)