RJ v JC

District Court of NSW|2008-10-09|Before: Kirby J

CITATION: RJ v JC [2008] NSWDC 217 This decision has been amended. Please see the end of the judgment for a list of the amendments.

Orders made on 21 October 2008: (1) Judgment for the plaintiff for the sum of $30,000. (2) Defendant pay plaintiff's costs. (3) The parties have liberty to bring in Short Minutes of Order in relation to interest on damages. (4) Liberty to restore in relation to interest and costs. DECISION: (5) Exhibits retained for 28 days. (6) Matter stood over for argument re costs and interest on Thursday 23 October 2008 at 9:00am. Further Orders made on 23 October 2008: (1) Vary orders 1 and 4 to provide for judgment for the sum of $30,000 plus interest at the rate of 3% per annum from the date of publication ($1,108) being a total of $31,108. (2) Until further order, an order that the names of the parties and any identifying factors not be published and that any publication in this court use a pseudonym RJ for the plaintiff and JC for the defendant, and that the proceedings hereafter be known as RJ v JC. (3) The defendant pay the plaintiff's costs, such costs to be paid on an indemnity basis from 22 April 2008.

CATCHWORDS: DEFAMATION - defendant calls plaintiff a "paedophile" - whether vulgar abuse - damages - limited publication - whether aggravated compensatory damages should be awarded

Defamation Act 1958 (NSW) LEGISLATION CITED: Defamation Act 1974 (NSW), s 46A Defamation Act 2005 (NSW), s 34

Bennette v Cohen (2005) 64 NSWLR 81 Broome v Cassell & Co Ltd [1972] AC 1027 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 Crampton v Nugawela (1996) 41 NSWLR 176 Davis v Nationwide News Pty Ltd [2008] NSWSC 693 Echo Publications Pty Ltd v Tucker and Anor; Fast Buck$ v Tucker and Anor [2007] NSWCA 73 Greek Herald Pty Ltd v Nikolopoulos [2002] NSWCA 41 Hodge v TCN Channel Nine Pty Ltd [2006] NSWSC 933 John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364 John Fairfax Publications Pty Ltd v O'Shane (No 2) [2005] NSWCA 291 Malpass v Murphy (Gibson DCJ, District Court of NSW, 2 November 2001, unreported) Martin v Bruce [2007] NSWDC 264 CASES CITED: McDowell v Trantum (District Court of NSW, Gibson DCJ, 7 September 2004, unreported) McGuiness v JT Publishing Australia Pty Ltd [1999] NSWSC 471 Mitchel v Faber & Faber Limited [1998] EMLR 807 Moit v Bristow [2005] NSWCA 322 Mundey v Askin [1982] 2 NSWLR 369 Patton v Moffat (Supreme Court of New South Wales, Kirby J, 25 November 1999, unreported) Ralston v Fomich (1992) 66 BCLR (2d) 166 at 169 (SC) Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 Tory v Megna [2007] NSWCA 13 Trantum v McDowell [2007] NSWCA 138 Uren v Australian Consolidated Press Ltd [1969] 1 NSWR 745 Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118 Zarth v Williamson & Ors [2006] NSWCA 246

Australian Defamation Law and Practice TEXTS CITED: Hansard, 27 February 1979, p 821-822 Hansard, 22 November 1994, p 5472

PARTIES: Plaintiff: RJ Defendant: JC

COUNSEL: Plaintiff: Mr R Weaver Defendant: Mr G A Elliott

SOLICITORS: Plaintiff: Higgins & Higgins Defendant: Campbell Paton & Taylor

The plaintiff and defendant in these proceedings are the paternal and maternal grandparents of a little boy, J, who was born on 11 October 2006. J is the son of the plaintiff's son Mr GJ and the defendant's daughter Ms CC. Since the child's birth, there have been disputes and court proceedings concerning access. In an incident following the access changeover which took place on 3 July 2007, the defendant made a serious allegation about the plaintiff. The plaintiff sought an apology and, when that was not forthcoming, commenced proceedings seeking damages for defamation.

The words which are alleged to be defamatory are as follows. Following the return of the child from access on 3 July 2007 at 4:00pm, after a discussion with her daughter, the defendant went to the plaintiff's daughter's home and demanded to see the child's father. The following conversation then occurred: Ms JC: (To Ms RA) I want to see your brother, tell GJ I want to speak to him.

Ms RA: Ms JC, GJ's not coming out. Get off my property or I will call the police.

Ms JC: (To Ms RA, within the hearing of Mr GJ, Ms NC and Ms NF) You know your Dad's a paedophile - a complete stranger came up to me in the street and told me. I want to know why your fucking brother treats my daughter like shit.

Ms RA: You have no right to come here. Get off my property or I will call the police. 3. The sole imputation pleaded is an imputation that the plaintiff is a paedophile.

The issues in these proceedings are to be determined in accordance with the Defamation Act 2005 (NSW). No requisition for jury having been filed, all issues are to be determined by myself as trial judge. As to defences, although an assertion that the matter complained of is no more than "vulgar abuse" has been made, no substantive defence has been filed. As to damages, the defendant relies, by way of mitigation of damages, upon a written apology she provided to the plaintiff and to the four persons who heard her speak the words set out above. The plaintiff claims, additionally, aggravated compensatory damages by reason of the falsity of the imputation, the extravagance of the language and sensational tone, and the failure of the defendant to apologise.

Accordingly, the issues in this case are: (a) Whether, having regard to the claim of "vulgar abuse", the defendant's words were capable of conveying an imputation which is defamatory of the plaintiff;

(b) What damages should be awarded, having regard to the principles upon which a cap on damages has been imposed by the Defamation Act 2005 (NSW), the limited extent of publication, the provisions of a written apology and the matters relied upon to claim aggravated compensatory damages. The evidence in these proceedings

After the birth of J, there were disputes about access between J's mother and father. J's father, Mr GJ, commenced proceedings for access in February or March 2007. After a month of supervised access he commenced having unsupervised access, with a pick up and drop off at an organization called "Interrelate", twice a week (Transcript, Day 2 p.4). On the day in question he had handed back J to his mother in circumstances in which there was a dispute of some sort. Without entering into the rights and wrongs of this dispute, the defendant's daughter came home in an upset state of mind, crying and saying that Mr GJ had "shoved" at her at the changeover. The defendant said this sent her into a rage. The defendant described her reaction as follows: "Q. What steps did you take to discuss it with GJ? A. To start with I just went off my head. I got the phone. My children were trying to stop me from phoning. I rang - I had to get the phone book. My son actually took the house phone away from me because I was so upset. I had a daughter in tears with a little six-month-old baby and I just - I rang the [the plaintiff's] household. A female answered it. She said "Hello" and I just launched and I said "You tell your fucking son to leave my daughter alone. He's got no right pushing my daughter, and why can't you leave us alone? Youse [sic] have J, you get to see him, so what is the problem? Why can't GJ be civil to CC?" and then I hung up, and then I proceeded--

Q. Just hold on at that point. Whose phone did you ring up with? A. I rang up on my husband's phone because he'd left it at home that day from work.

Q. And then what did you do after that? A. I was still in that terrible mood. I got my son's car keys to reverse his car out onto the front yard so that I could actually get my car out of our shed and I said "I'm going to find GJ and I'm going to talk to him" and I drove around [city]. I knew he had friends in the vicinity of the area that I actually found his mother's car. I just kept driving until I found him, and by the time I found his mother's car I had settled completely and I thought, all I'm going to do is ask "Why do you treat CC like this?"" (T-86 line 36 to T-87 line 8) 7. When the defendant went up to the house and knocked on the door she had no idea whose house it was. She had simply recognized the plaintiff's mother's car outside the property. She was surprised when Ms RA answered the door. Her evidence was as follows: "Q. Who answered the door? A. RA.

Q. What did you say to RA? A. I was actually shocked when I seen it was her and I said "Hello." I said "Could I please speak to GJ?" She closed the door in my face, then I knocked again and she come back and she said "GJ doesn't want to talk to you. Can you please get off my property or I'm going to call the police." She closed the door once again. I stood there, and I knocked again, and she come back and she said "I have told you GJ is not going to talk to you." I said "Well, if he won't talk to me, can you please tell me why does GJ treat CC like a piece of shit." She was standing on the ledge. She'd opened the screen door and she just looked down at me with such intimidation and she said "I'm not going to discuss anything with you."

… She just looked at me, she said, "I'm not going to discuss anything with you. Get off my property," and she closed the door in my face and that is when I launched and said, "You're father's a - I've been told your father's a paedophile. A complete stranger told me," and then I proceeded to leave. She came out the door onto the verandah by herself and when I was leaving, I can't think what happened. I know she's saying I called her a name, which is quite possible, and I do clearly remember saying - I did say to her, "I'm not frightened of you. Tell your father I'm not frightened of him, and I'm not frightened of your family," and when I proceeded to leave, I said - yelled out, "GJ, you're a fucking arsehole," and I left." (T-87 line 17 to T-88 line 18) 8. The text of the matter complained of is therefore not in dispute. Although the defendant said that the only person who was present was Ms RA, who opened the door, Ms NC, a trainee manager and a co-worker of Ms RA, gave evidence that she also was present (Transcript Day 1 p.20) and was not cross-examined on this issue. It is not in dispute that Mr GJ was also present; his evidence was that he was standing within earshot in the lounge room with his current girlfriend Ms NF. This means that the words which comprised the matter complained of were heard by four persons. Two of these persons were family members. However Ms NF had only been going out with Mr GJ for approximately one month and barely knew the plaintiff and Ms NC, Ms RA' co-worker, had never met the plaintiff at all.

A claim in relation to the grapevine effect was brought on the day of the trial but withdrawn. I have accordingly proceeded on the basis that this was a publication to four persons only.

Where a defendant's statements about a plaintiff are in such general, although derogatory, terms, they may fail to convey any imputation that is capable of injuring the plaintiff's reputation: Mundey v Askin [1982] 2 NSWLR 369; Australian Defamation Law and Practice at [3016]. This may be particularly the case where the matter complained of consists of oral statements. In Uren v Australian Consolidated Press Ltd [1969] 1 NSWR 745 at 752-3 Sugarman JA considered "vulgar abuse" was a concept confined to oral statements. However, the distinction between spoken and written publications, which was a feature not only of "vulgar abuse" but the defence of triviality, has largely vanished following the passing of the Defamation Act 1974 (NSW). Written material may, in limited circumstances, also be found to be merely abusive and to carry no specific imputations in relation to the plaintiff: Malpass v Murphy (Gibson DCJ, District Court of NSW, 2 November 2001, unreported).

In Mundey v Askin, the first case in New South Wales to consider "vulgar abuse", the defendant (who was at the time the Premier of New South Wales) made a long political speech concerning the plaintiff, a union leader. One of these statements was: "But don't under-estimate some of these vermin". The jury returned a verdict that the whole publication was not defamatory. On appeal, the trial judge's directions to the jury were challenged on the basis that the trial judge stated "vulgar abuse" might be a defence to a claim for defamation. The Court of Appeal affirmed that there was in fact no such defence but upheld the trial judge's directions to the jury on the basis that the trial judge's reference to "vulgar abuse" was in the context of whether or not "vulgar abuse" could damage reputation, which would have the effect of rendering a publication not being defamatory.

The "defence" of "vulgar abuse" was considered more recently in the Court of Appeal in three decisions: Bennette v Cohen (2005) 64 NSWLR 81; Tory v Megna [2007] NSWCA 13; Echo Publications Pty Ltd v Tucker and Anor; Fast Buck$ v Tucker and Anor [2007] NSWCA 73. The cause of action in Bennette v Cohen was a speech given by the defendant as a fundraiser to raise funds for a person who had previously been sued for defamation by the plaintiff. The imputations included an imputation that "the plaintiff has done illegal work which severely damaged the environment", which the jury considered was not defamatory of the plaintiff (imputations that the plaintiff was a "thug" and a "bully" were, however, found to be defamatory). In holding that the jury's finding was within the range of conclusions reasonably available, the court noted (at [25]) that in considering whether an imputation was defamatory, it was for the jury to consider the meaning of the words and of the imputations in the context in which they were spoken, namely an address to a meeting. At [46]-[51] Bryson JA analysed the law relating to "vulgar abuse" and concluded (at [51]): "In my opinion it is clear from the passage I have set out from Mundey v Askin that there is not a dichotomy between vulgar abuse (or mere vulgar abuse) on the one hand and defamatory matter on the other, and that it does not follow from establishing that the matter complained of was mere vulgar abuse that it was not defamatory. What is for decision is whether the words spoken bore a meaning that was likely to affect the reputation of the person spoken of. "Vulgar abuse" and "mere vulgar abuse" are not terms of art nor are they capable of high definition or detailed exposition; but in determining the meaning of words used and whether their meaning was defamatory it may be open to consideration whether the terms used and the context in which they were used were such that there was no likelihood of their affecting the reputation of the person spoken of; that no notice would be taken of them. This would not be the right conclusion on all statements which could accurately be described as vulgar abuse or mere vulgar abuse; much vulgar abuse is highly defamatory. "Mere vulgar abuse" is not a good or clear vehicle for the expression of the element in the interpretation of the words used that brings about the result that they were not likely to affect reputation. This topic has become associated with the expression "mere vulgar abuse" in a way which I cannot dispel, but I regard this as unfortunate because the matter under consideration is not whether the publication constitutes mere vulgar abuse, but whether the imputation which it conveys has a defamatory meaning: it may not have a defamatory meaning because the terms or the manner in which it is spoken show that it is not likely to injure reputation."
In Tory v Megna the defendants published approximately seventeen anonymous newsletters making scurrilous allegations about the plaintiff, a member of the Drummoyne Council. The submission put to the jury at the s 7A trial was that the ordinary reasonable reader would read these publications as "junk mail" or "just rubbish" and that no impression or imputation would be conveyed to the reader because of the "rubbishy nature" of the publication (at [17]).

While the trial judge's direction to the jury had been inconsistent with the principles as enunciated by Bryson JA at [51] in Bennette v Cohen, and words such as "vermin" appeared in the matters complained of, the Court of Appeal held (at [54]) that the overall impression of each circular was that it was "a serious attempt to communicate information" and accordingly dismissed an appeal from the jury findings that the imputations pleaded were conveyed.

The parties in Echo Publications Pty Ltd v Tucker and Anor; Fast Buck$ v Tucker and Anor brought appeals and cross-appeals in relation to jury findings. One of these was that an imputation that the plaintiff was a "bully" was not defamatory. At [130] Hodgson JA noted: "Turning to imputation (h), namely that Mr. Tucker was a "bully", it seems to me that that is an imputation which, because of its vagueness, might possibly have been considered not likely to cause an ordinary reasonable person to think less of Mr. Tucker or to shun or avoid him. It is true that the circumstance that something might be considered "vulgar abuse" does not prevent it from being defamation; but the circumstance that this imputation may be considered mere abuse may permit a jury to conclude that the imputation is one which in the circumstances is not likely to cause ordinary reasonable persons to think badly of Mr. Tucker: cf. Mundey v. Askin [1982] 2 NSWLR 369 at 371-2; Bennette at [45]-[51]."
The court's findings in these judgments about the words "bully" and "vermin" have led to what appear to be inconsistent results. However, to make anything of this would be to ignore the warning of Bryson JA in Bennette v Cohen at [57], namely that "the nature of defamation is that there are no close analogies" and that it is dangerous, when determining whether imputations are defamatory, to have regard to other cases concerning specific words. Fundamentally, questions of whether a publication is defamatory or merely vulgar abuse are issues of context.

Publications can contain terms of abuse without failing to convey a defamatory imputation. An example of this is McGuiness v JT Publishing Australia Pty Ltd [1999] NSWSC 471. The plaintiff, a police officer, decorated for bravery after a dangerous siege situation in which he shot and killed a gunman had his photograph taken by the newspaper for an interview in the course of which he described his distress of having to kill someone, no matter how exigent the circumstances. The defendant, in an attempt at a satirical publication, reproduced the same picture of the plaintiff adding a "speech bubble" which said "that was fucking fantastic - next time I'll empty both barrels". The plaintiff in this photograph was shown wearing his police uniform and in addition, in case the reader had not appreciated that the plaintiff was a policeman, the photograph was given a heading "COP THIS". The application brought to strike out the imputation on the basis that the matter complained of was not capable of conveying defamatory acts and conditions failed. The article was held by Levine J to be capable of conveying imputations of hypocrisy and enjoying killing someone. A recent case in which the Court of Appeal adopted a similar approach is John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364.

These decisions illustrate the essential dividing line between "vulgar abuse" and an imputation capable of an act or condition giving rise to a defamatory meaning. It is important to have regard to the substance of the publication and not merely to the appearance of an offensive word. The fact that an offensive word appears, or that the publication was made in an angry tone and voice, does not necessarily mean that the publication amounts to a mere abuse. The question is whether or not the matter complained of conveys more than just insulting words. If no defamatory act or condition is capable of being conveyed, then the matter complained of is more likely to amount to mere insult or "vulgar abuse". It is only in those circumstances that the language will be regarded as merely offensive and vituperative and therefore not actionable.

This distinction is explained by Spencer J in Ralston v Fomich (1992) 66 BCLR (2d) 166 at 169 (SC) as follows: "In my opinion, the words 'son of a bitch' by themselves are not capable of any defamatory meaning… they are a translucent vessel waiting to be filled with colour by their immediate qualifier… at most they insult. They are not likely to lower the object in the estimation of right thinking people. More probably, they will demean the speaker, depending upon the company and the occasion."
In Ralston v Fomich, as was the case in Mundey v Askin, the offensive words were part of a much longer statement, capable of giving rise to an imputation which was an act or condition capable of causing an ordinary reasonable right thinking members of the community to think less of the plaintiff.

The fact that a sentence contains a word which is deeply offensive does not mean that it is mere "vulgar abuse". Two decisions concerning the word "coon" are illustrative of this point. In Mitchel v Faber & Faber Limited [1998] EMLR 807 the court held that the attribution to the plaintiff of words such as "coon" suggested that the plaintiff was a racist, and a similar finding was made in Patton v Moffat (Supreme Court of New South Wales, Kirby J, 25 November 1999, unreported) concerning a broadcast showing the police calling an aboriginal a "coon" in the context of a longer publication. All of these decisions indicate how important the context of the matter complained of is.

In Greek Herald Pty Ltd v Nikolopoulos [2002] NSWCA 41 Young J at [54] noted: "There was discussion before us as to whether some ordinarily offensive terms could be said to be innocuous. Thus, words like "get away you old bastard" may well not be defamatory and to call someone a killer may be even laudatory of a boxer. Even to call a police officer "killer" may merely mean the officer has a singleness of purpose in cleaning up crime."
Essentially the key issue in determining whether words are a slander or insult is whether the remark in question was made with due liberation or blurted out at the height of a violent quarrel.

In the present case, the following are relevant: (a) The allegation is capable of identifying an act or condition as opposed to being mere insulting or opprobrious language; (b) The allegation is put as a statement of fact and proof is offered in the form of the source of the allegation, namely the total stranger who allegedly came up to the defendant to make this allegation; (c) Notwithstanding the earlier phone call of the defendant to the plaintiff's house the allegation was not a part of any disputation between the defendant and the persons the defendant was speaking to; and (d) In the context of a family feud over access and custody rights, an allegation of paedophilia about any member of the family was highly inflammatory and likely to cause ordinary right thinking members of the community to think less of such a person.
The manner in which an allegation of paedophilia was conveyed as a statement of fact, particularly when supported with what is asserted to be evidence, means that such an imputation must have been conveyed to the ordinary reasonable reader. This allegation is at the top of the range in terms of seriousness in relation to defamatory meaning. Accordingly, I find the imputation pleaded to be conveyed and defamatory.

There being no substantive defences I now consider the issue of damages. As there are comparatively few decisions on damages under the Defamation Act 2005, I shall first briefly consider the history of the legislative reform that has led to the imposition of a cap on damages.

When the Defamation Act 1974 was introduced into Parliament in 1974 Mr Ruddock MLA (as he then was) said of the Defamation Act 1958 (NSW) that: "almost every person in the community could be successfully sued for defamation almost every week of the year… the result has been a multiplicity of defamation cases and in most of them it is clearly an exaggeration to say that the plaintiff had been brought into ridicule or contempt in the eyes of ordinary people. Yet honourable members know that juries have kept on finding in large amounts for plaintiffs. They can scarcely be blamed, because of the one sided wording of the Act, which has afforded little protection for defendants… one word, however innocuous, can sometimes be used against the defendant to bring a large sum of money." (Hansard, 27 February 1979, p.821-822)
Mr Ruddock went on to conclude (Hansard at p.823) that the 1958 Act had perpetrated injustices and encouraged big verdicts, and that the 1974 Act would remedy many of these defects.

Concerns about the size of jury verdicts led to amendments to the 1974 Act to take the issue of damages and defences from the jury, by requiring the jury only to determine what the Honourable J P Hannaford, Attorney General, Minister for Justice and Vice President of the Executive Council, called matters involving "an appropriate degree of community involvement", namely whether the imputations were conveyed and defamatory. Mr Hannaford opined (optimistically, with the benefit of hindsight) according to Hansard, 22 November 1994, that: "a substantial amount of time and money will be saved and the complexities which now arise in the course of a trial because of the current division of functions of judge and jury will be overcome… Moreover, by enabling the trial judge and not the jury to determine damages, the bill will ensure that damages awards in defamation proceedings correctly reflect the aim of compensating a person for an injured reputation. Honourable members need have no concern that the legislation now before the House will fetter the proper exercise of judicial discretion. On the contrary, the bill envisages that such discretion will be retained. All it requires is that, in assessing non-economic damages, the judge will take into consideration awards made in other types of cases. Such awards are an important factor, but they are by no means the only factor legitimately to exercise a judge's mind.

In performing the task it is not expected that judges will need to tread the tortuous path of detailed analysis of every personal injury verdict. It would be nonsense to expect any exact equivalence. It is anticipated only that judges will draw on their experience and knowledge of the range of possible verdicts in the light of the seriousness of the cases occasioning them. They will then consider the relative seriousness of the case that they are actually deciding and, having taken into account all other relevant factors, will make an award." (Hansard, 22 November 1994, p.5472) 30. Have the amendments to the defamation legislation resulted in more accurate damages assessment? In John Fairfax Publications Pty Ltd v O'Shane (No 2) [2005] NSWCA 291 at [38]-[39] Young CJ in Eq referred to Callinan J's statement in Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at [136] that s 46A of the 1974 Act did not provide a ceiling above which awards for defamation should not go, and accepted that an award could be made which was larger than a personal injury case. Young CJ in Eq went on to note (at [38]-[39]) that in the ten years that s 46A had been in force it did not appear to have been considered as substantial brake on large awards of damages, notwithstanding the apparent intention to this effect of the legislature.

In Moit v Bristow [2005] NSWCA 322 McColl JA referred to these comments at [119]: "Young CJ in Eq noted (at [38]-[39]) the Court was required to apply s 46A "no matter what the difficulties". Having observed that in the ten years s 46A had been in force, it did "not appear to have been considered a substantial brake on large awards of damages", his Honour referred to three defamations cases decided during the s 46A regime in which large awards had been made (see [41], [60]) and concluded they gave "some guidance as to the range". Like Giles JA, his Honour did not expressly examine the general range of damages for non-economic loss in personal injury awards in deciding the amount he considered should be awarded."
McColl JA went on to note (at [123]) that comparison to damages awarded under capped legislation may be of limited utility in the circumstances.

It was against this background of repeated concerns about the size of verdicts that the Defamation Act 2005 made two additional provisos in relation to damages. Although issues relevant to the defences were restored to the jury, the issue of damages was left to the judge and, secondly, as an additional fetter, a cap on damages was added. That cap currently stands at $280,500.

Many of these problems identified by Young CJ in Eq and McColl JA in the decisions referred to above have now been resolved by the introduction of the cap on damages. Indeed, that must be the purpose of its introduction.

As McColl JA noted in Moit v Bristow (at [125]), the exercise of damages assessment does not require the recitation of a string of awards of damages in personal injury cases and a demonstration of precisely how these had been taken into consideration in damages in the present case.

McClelland CJ at CL in Davis v Nationwide News Pty Ltd [2008] NSWSC 693 does not in fact refer to any awards, but arrives instead at a figure representing damages and, in that case, aggravated compensatory damages after a comparatively brief review of the facts in the case.

Having noted this background, I shall consider the issue of general damages.

Section 34 Defamation Act 2005 is similar in its terms to s 46A Defamation Act 1974, and the explanation given by the High Court in Rogers v Nationwide News Pty Ltd as to the manner in which damages should be assessed is still of assistance. It is therefore important to identify the features or characteristics of a particular case, and what characteristic or features are relevant to other cases, including personal injury verdicts. Any comparison which is drawn must look to the particular plaintiff, not to what others may have thought of the defamatory words that were published or what kind of physical injury, in a personal injury matter, were sustained (per Hayne J at 354).

The imputation conveyed is an extremely serious one, namely paedophile: Hodge v TCN Channel Nine Pty Ltd [2006] NSWSC 933. However, the publication was to four persons. The fact of such limited publication is very significant.

In Martin v Bruce [2007] NSWDC 264 an anonymous broadsheet imputing allegations of dishonesty, falsifying qualifications, having a bad reputation and mental illness and being compelled to leave his last place of employment were conveyed concerning the plaintiff. Only four persons read the matter complained of. The issues are similar in that, like the present proceedings, no defence was filed and at the hearing only issues going to mitigation (including a claim of an apology) was made. I awarded $25,000 in damages, which was a figure which represented a sum including aggravated compensatory damages.

In Martin (and in other comparable cases under the Defamation Act 1974 involving limited publications, notably Zarth v Williamson & Ors [2006] NSWCA 246 and Trantum v McDowell [2007] NSWCA 138), the recipients all knew the plaintiff well. In Zarth v Williamson & Ors the recipients were the other plaintiffs, and in Trantum v McDowell the recipients were not only the plaintiff's neighbours but also persons who could have been, if the plaintiff so chose, sued as joint publishers of the libel, in that they appended their signatures to the matter complained of to say they agreed with it. A common feature in these publications is that most if not all of the persons to whom the libel was published were neighbours, club members, co-workers or other persons who had a very close relationship. That is relevant because one of the issues in these proceedings is the degree of damages that should be awarded in the context of what the counsel for the defendant called a "family feud".

Notwithstanding the limited extent of the publication, it caused the plaintiff a great deal of anxiety and concern. He was particularly concerned at the reaction of his daughter's work colleague, Ms NC.

Ms NC gave some powerful evidence of the impact of the libel upon her. She said: "Q. When you heard those words, did that cause you to have or adopt any view or doubt in relation to Mr RJ's reputation? A. I was in shock and I just thought, you know, I hadn't met him and that was sort of my first impression, if you like.

Q. What was your first impression? A. That, you know, he's a paedophile. You know, that he could very well be a paedophile, I didn't know any different.

Q. In relation to that reputation, how did you feel towards Mr RJ at that time? A. I just thought like paedophile, it's creepy, it's - like it's not something that you know you want to associate yourself with, a paedophile and just - I was just in that much shock and disarray. I just didn't know - you know I hadn't heard these accusations before and it's the first sort of impression I got and it was just not a pleasant thing to have heard about someone that you don't know." (T-41 line 20 to line 49) 44. Ms NC said she had changed her view when she had met Mr RJ because she "could see he was upset about it" (T-42 line 22).

Ms NC did in fact speak to the plaintiff on the evening that these events occurred. She said that he rang up because he "was concerned about how - if I was upset about it" and said she was uncomfortable speaking to him about it (at T-43). She said she felt uncomfortable talking to him and she went on to say (at T-44): "Yes I didn't know because I hadn't met him before. I - I - I didn't know any different. That was the first thing that I've heard someone say about RJ that he was a paedophile. That's the thing until this day ever has stuck to my head you know that someone has said that about him and it only came clear to me about six months ago that he was - like - like I got to know him better, got to know his grandchildren. I've been out there since this time and seen him interact with them and now I know that you know he's not. But for the first six months you know there was still doubt in my mind."
Ms NF, the plaintiff's son's girlfriend, said she only felt concerned for a few hours. The plaintiff's son and daughter, the other two persons who heard the words spoken, gave no evidence on this issue.

A significant factor in a case such as this is the component for hurt to feelings. I am satisfied that the plaintiff was upset and concerned and that his concern led him to telephone Ms NC that same evening.

The defendant submitted to me that statements made in the context of a family feud, on a wintry night in a country town, which never went any further, should result in a small sum for damages. However, this is a misconception. It is sometimes said that the sting of the libel is that it hits the plaintiff "where he lives". In the present case, as in a number of the other defamation cases referred to above, that is literally the case. The fact that a serious defamation was published to persons who are close to the plaintiff does not make it any the less hurtful. In particular, the making of an allegation of paedophilia, in the context of a dispute of access and custody, is like pouring oil onto a fire.

The defendant brings a case in mitigation by reason of the publication of an apology by the defendant to all of the persons to whom the matter complained of was published.

On 4 July 2007 the former solicitors for the plaintiff wrote to the defendant referring to defamatory remarks made by her which were heard by the plaintiff's daughter and three other persons who were in the house at the time and went on to say: "We are instructed to advise you that if you do not desist immediately from making defamatory remarks about Mr RJ, he will take legal proceedings against you for the [sic] defamation."
On 11 July 2007 the former solicitors for the plaintiff wrote referring to this earlier letter and stated: "We are instructed by our client to request you to provide him with a written letter of apology for the defamatory remarks made against him by you on 3 July 2007.

We are further instructed to advise you if a written apology is not received by us on behalf of our client within fourteen (14) days of the date of this letter, he will commence legal proceedings against you." 52. The defendant's evidence was that her husband telephoned the solicitor and asked whether an apology would be an end of the matter, and was told that this was a matter for instruction. Most unfortunately, what followed was a letter from the solicitors for the defendant dated 25 July 2007 which said as follows: "We advise we act for Ms JC and have been provided with a copy of your letters dated 4 and 11 July 2007 respectively.

Our client denies defamatory remarks being made against your client. Our client does not intend to provide your client with a written apology.

If your client commences proceedings we have instructions to accept service of any process. Please note that any proceedings alleging defamation will be vigorously defended and our client will be making an application against your client for security for costs and will ultimately make an application for an award of indemnity costs against your client from the date of this letter." 53. The truculent terms of this letter are most unfortunate. Precisely how the solicitors for the defendant intended to obtain an order for security for costs against the plaintiff is not explained, nor is the basis on which they considered their client would be entitled to indemnity costs.

The plaintiff commenced proceedings by filing a Statement of Claim on 13 February 2008. On 9 April 2008 the defendant provided a formal apology to each of the four persons who were present, as well as to the plaintiff.

The plaintiff submits that this apology is too little and too late. It certainly is too late. Had this apology been provided in July 2007, that would have had a most material impact upon the damages.

A defence was filed on 7 May 2008. No attempt was made to plead the defence of offer of amends or to seek to extend the time to plead this defence; what is pleaded is that "without admissions", in mitigation of any damages, the defendant "has published a statement to the plaintiff and to other persons". It is noted that this was provided to the solicitors for the plaintiff on 11 April 2008.

While the apology does little to reduce the damages, it does make it difficult for the plaintiff to rely upon failure to apologise as a ground for aggravated compensatory damages.

The plaintiff also makes a claim for aggravated compensatory damages on the basis of the knowledge of the falsity of the imputation (both by the plaintiff and the defendant) and the sensational tone and manner of presentation of the allegation.

None of the witnesses gave evidence of any sensational tone. While it certainly was an extreme statement for the defendant to have made, the fact that an imputation of great seriousness is conveyed is not of itself grounds for awarding aggravated compensatory damages.

Many of the features giving rise to aggravated compensatory damages in court proceedings, such as a pleading of a defence of justification, the making of other serious accusations or the conduct of the trial (see for example: McDowell v Trantum (District Court of NSW, Gibson DCJ, 7 September 2004, unreported)) are not present in this case.

Conduct during the case can be a matter for aggravated compensatory damages: Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118. I should mention an incident which occurred in the course of this trial. Mr GJ alleged that as he left the witness box the defendant made a motion across her throat as if to warn Mr GJ that he deserved to have his throat cut. As proceedings in the District Court are all videotaped, a copy of the videotape was obtained. Its contents are equivocal in nature. I note that no submissions were made on this issue by Mr Weaver, counsel for the plaintiff. While I can understand the upset and concern felt by Mr GJ, I think there has been a simple misunderstanding and I do not include this component as a relevant factor.

The plaintiff has not made out a case for the award of aggravated compensatory damages. That is not to excuse the conduct of the defendant. Her reaction to an incident between her daughter and Mr GJ was not only completely out of proportion but also, having regard to her own evidence of the attempts of her own family to stop her, indicate that her conduct is a source of embarrassment and concern within her own family.

While aggravated compensatory damages are not warranted, the very serious nature of the allegation, and its manner of presentation to the persons who heard it, warrant an award which, in accordance with the test enunciated by McColl JA in Moit v Bristow, should be of a sufficient amount to make clear the vindication of the plaintiff's reputation (at [120], citing Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 61; and Crampton v Nugawela (1996) 41 NSWLR 176 at 195 per Mahoney ACJ). While the award must have regard to the cap on damages, the damages must be such that if the libel is driven underground and emerges from its lurking place at some future date, the plaintiff must be able to point to a sum awarded which was sufficient to convince the bystander of the baselessness of the charge (Moit v Bristow at [121], referring to Broome v Cassell & Co Ltd [1972] AC 1027 per Lord Hailsham of St Marylebone LC).

Taking all of the above factors into account I award the plaintiff the sum of $30,000.

I was not addressed in relation to interest. I grant liberty to the parties to bring in Short Minutes of Order reflecting interest on damages or to have the matter restored if the quantification of interest give rise to any disputed issues requiring judicial determination.

(1) Judgment for the plaintiff for the sum of $30,000. (2) Defendant pay plaintiff's costs. (3) The parties have liberty to bring in Short Minutes of Order in relation to interest on damages. (4) Liberty to restore in relation to interest and costs. (5) Exhibits retained for 28 days. (6) Matter stood over for argument re costs and interest on Thursday 23 October 2008 at 9:00am.

(1) Vary orders 1 and 4 to provide for judgment for the sum of $30,000 plus interest at the rate of 3% per annum from the date of publication ($1,108) being a total of $31,108. (2) Until further order, an order that the names of the parties and any identifying factors not be published and that any publication in this court use a pseudonym RJ for the plaintiff and JC for the defendant, and that the proceedings hereafter be known as RJ v JC. (3) The defendant pay the plaintiff's costs, such costs to be paid on an indemnity basis from 22 April 2008.

27/11/2008 - Typographical error - Paragraph(s) Order 6 of the Orders made on 21 October 2008 10/12/2008 - Typograhical Error - Paragraph(s) Correction to the spelling of "pseudonym" in order (2) of the orders made on 23 October 2008.

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

Defamation Act 1958(NSW)

Defamation Act 1974(NSW)

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