The citations referred to in the above paragraphs relate to paragraphs previously cited by his Honour from the joint judgment in Roberts v Bass .
54 For example, their Honours in their joint judgment in Roberts (at [87]) relevantly observed:
"A person who is reckless as to whether the statement is true or false has no positive belief in the truth of the statement. Yet as the above statements of Lord Esher MR in Royal Aquarium and Clark show, recklessness, short of wilful blindness, is not enough to destroy the privilege. It must be accompanied by some other state of mind. Where that is so, the recklessness is evidence that the publication was actuated by the accompanying state of mind, be it anger, hatred, bias or unreasoning prejudice."
55 In Lindholt McColl JA (at [141]) observed, in my opinion, correctly:
"Recklessness will only destroy qualified privilege by itself if it amounts to wilful blindness. In less extreme cases, recklessness in combination with other factors may provide cogent evidence that the defendant was acting for an improper purpose, especially where the recklessness is associated with unreasoning prejudice: Roberts v Bass (at [84]-[86]) per Gaudron, McHugh and Gummow JJ. Recklessness is to be distinguished from mere carelessness, impulsiveness or irrationality in arriving at a positive belief that the defamatory matter is true: Horrocks (at 150) per Diplock LJ."
100 The plaintiff submitted that the dominant motive of the defendant in publishing the matter complained of was to harm the plaintiff and cause her to suffer, and to lose her position as principal. It was put that this motive stemmed from the defendant's perception that the plaintiff was responsible for what he claimed to be the inadequate teaching of his daughter, B.
101 A substantial part of the evidence relied upon by the plaintiff consisted of the defendant's emails sent between 28 February 2008 and 9 April 2008 and between 24 April 2008 and 2 June 2009, the relevant contents of which are set out above. For the purpose of deciding this issue it is sufficient to refer only to the following.
102 The defendant's email to the plaintiff of 21 February 2008 expresses disappointment that she declined his request for material given to opportunity classes. His email of 28 February 2008 asserts that her negligence in the provision of education is injurious to students in her care. His email of 6 March 2008 accuses the plaintiff of offering worthless education, states his feeling that the teachers are stupid for not accepting his claims about the system, and demands change or her retirement. His email of 11 March 2008 claims that he has been betrayed by the school in its failure to provide adequate coaching for his daughter.
103 By email of 3 April 2008 the defendant requested a copy of the school newsletter in which the web addresses were published. He accuses the plaintiff of responsibility for the school's low standard of education, and raises the question of her resignation, adding: "… I am sure you do not want to be pushed out".
104 The embers of dissatisfaction burst into a blaze of ill-will towards the plaintiff as shown by the emails of 8 April 2008, which were prompted by her refusal to provide him with the materials taught in the opportunity classes. At 9.32am he accused her of lying to him about that material. He branded her as a cheat, and asserted she would suffer for the rest of her life for "… such an [sic] nasty dirty behaviour." He sent a number of other emails in similar venomous vein. His email of 5.06pm included:
"You have deleberately [sic] lied to me and cheated me. I have requested the school some addition education material which the school has in possession before the selective test to help my child. You have cheated me and behaved cheaply. You and your generation will suffer for this sin."
105 The defendant explained that these allegations were based on his failure to find a reference to website addresses in a newsletter after the plaintiff had told him on 19 February 2008 that she had published them. It demonstrates the depth of his anger towards her at this time, and his readiness to make assertions against her based on unreasoning prejudice.
106 On 9 April 2008 the defendant sought interviews with his daughters' teachers before the term ended two days later. As the interviews could not be arranged in time, they were fixed to take place early the next term. His reaction to this situation was to then send an email to the plaintiff and to Ms Wasson asserting that "… By stopping the teachers on reporting the child performance at the end of the term, you have shown your true colours that you are a racist and discriminate some people".
107 The defendant is well educated, and has no difficulty with the English language. I have no doubt that he well knew the ordinary meaning conveyed by the terms of his emails, and of the likely impact of them. By this time, the ill-will harboured towards the plaintiff was manifest. It is with regard to it that the defendant's motive in publishing the matter complained of is to be evaluated.
108 The publication was made at 12.56am on 10 April 2008. The defendant said (T p 255) he was angry with the plaintiff because she lied to him, and did not listen to a number of suggestions he made to improve education in the school. He wanted her to suffer (T p 258). He said his purpose or intention in sending the email was to have her resign as principal. He accepted that the allegations of incompetence, dishonesty, and untrustworthiness, made to the recipients were likely to be very damaging. He acknowledged that, prior to publication, he had not checked the emails of 13th and 14th March 2008 concerning the plaintiff's response to his complaint about the selective schools test incidents. With regard to the statements as to declining standards during the last four years, his information was confined to his experience with his children over the past two and a half years, and to statistics to the 2006 school annual report. As to care, the following passage is relevant (T p 274 l 20-27):
"Q: You didn't care, did you, whether or not what you said in this email was accurate or not accurate?
A: It is accurate. It was accurate as what I was thinking at that time, and yes.
Q: That's not the question I asked you, Mr Pemachandran. You didn't care whether it was accurate or not accurate when you wrote?
A: You got to define how much accuracy you would look for. If you look for hundred percent accuracy then maybe you are right."
109 Furthermore, analysis of statements made in the matter complained of shows that the defendant knowingly falsified information to denigrate the plaintiff. For example, as to the incident on 13 March 2008, the defendant knew or ought to have known that it was wrong to suggest the plaintiff had been guilty of inaction, or that she had chosen to cover up "… the whole incident". As to the accusation of dishonesty, I am satisfied that he knew it was false to suggest that she had cheated or deceived him at the meeting on 19 February 2008. As to the accusation of untrustworthy, he knew it was false, by use of terms such as "fiddled" and "fiddling process" to suggest that the plaintiff herself, improperly and/or arbitrarily adjusted scores or condoned such conduct. The ranking process had been explained to him at the meeting on 19 February 2008, and he was sent the school's procedures by the plaintiff on 28 February 2008 which made the nature and purpose of the exercise clear.
110 The pre-publication emails, the very language of the matter complained of, and the defendant's evidence referred to, provide ample support for the finding that the motive and intention which actuated the publication was to force the plaintiff to resign by discrediting and denigrating her before the recipients. Put another way, I am satisfied that his dominant motive, by reason of his dislike and anger towards her, was to so injure the plaintiff that she would resign.
111 It is unnecessary to repeat details of the accusations about the plaintiff conveyed in the emails and letters post publication which I have set out earlier (pars 25 to 40). They reinforce the conclusion that the publication of the matter complained of was malicious, and demonstrate the continuation of his ill-will until recent times.
112 Before concluding, it is appropriate to record that in evidence the defendant asserted his belief in the truth of the defamatory assertions and imputations complained of by the plaintiff. When cross-examined as to the grounds for his belief in each case, the defendant was unable to provide answers sufficiently rational to support the conclusion that it was based on true facts. During the hearing, he asserted his present belief that the defamatory matter was true, doing so in the teeth of the uncontradicted evidence of its falsity. I am satisfied that his allegations were groundless, and were the product of fantasy fuelled by enduring ill-will towards the plaintiff, and his desire to discredit her and bring her down.
113 For these reasons, I hold that the publication of the matter complained of was malicious in that it was made for the improper purpose of injuring the plaintiff, being a motive foreign to the privileged occasion claimed by the defendant. The defence of qualified privilege fails.
Damages
Principles
114 By s 34 of the Act, the court, in determining the amount of damages to be awarded, is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.
115 By s 35(1) the maximum amount for non-economic loss which may be awarded is $294,500.
116 By s 36 the court is to disregard the malice of the defendant at the time of the publication or at any other time except to the extent that the malice affects the harm sustained by the plaintiff.
117 By s 37 an award of exemplary or punitive damages is precluded.
118 The relevant principles were stated in Ali v Nationwide News Pty Ltd [2008] NSWCA 183 (pars 70-84) by Tobias JA and McColl JA. They referred to the following observations of Hayne J in Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327 (par 60):
"The three purposes to be served by an award of damages for defamation are identified in the joint reasons in Carson v John Fairfax & Sons Ltd : (i) consolation for the personal distress and hurt caused to the appellant by the publication; (ii) reparation for harm done to the appellant's personal, and in this case, professional reputation; and (iii) the vindication of the appellant's reputation. As pointed out in Carson : the first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant; vindication looks to the attitudes of others."
119 Hayne J, went on to point out (par 67) that assigning a money sum as sufficient to remedy personal distress, hurt and harm to reputation and to vindicate a plaintiff's reputation translates losses which have no market value into amounts of money. He said:
"… But in neither defamation nor in other cases of non-pecuniary loss can any standard of evaluation be employed except one that is described in qualitative and therefore necessarily imprecise terms. The damages that may be awarded "are such as the jury may give when the judge cannot point out any measure by which they are to be assessed, except the opinion and judgment of a reasonable man"."
120 In the assessment of compensatory damages for harm to reputation in a case such as this it is important to take into account the observations of Mahoney, ACJ in Crampton v Nugawela (1996) 41 NSWLR 176, p 193 that "… In some cases, a person's reputation is, in a relevant sense, his whole life. The reputation of a clerk for financial honesty and of a solicitor for integrity are illustrations of this … the trustworthiness, actual or reputed of a professional colleague is a matter of a legitimate and ongoing interest", and p 195 "In my opinion, the law should place a high value upon reputation and in particular upon the reputation of those whose work and life depend upon their honesty, integrity and judgment". In Readers Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500, Brennan J held (p 507) that account may be taken of an especially adverse impact of the defamatory imputation upon the plaintiff's reputation in the eyes of some group or class in the community.
121 With respect to aggravated damages it is important to keep in mind that any award of aggravated damages must be confined to what is truly compensation for the relevant harm to the plaintiff caused by the defendant's conduct and must not include any element of punitive damages. Such conduct must be in some way unjustifiable, improper, or lacking in bona fides (Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497).
122 In Ali (pars 79-85) courts are reminded that in awarding aggravated damages, the conduct of the defendant which will increase the harm caused by the publication of the libel, a failure to apologise, and the conduct of the defendant right up to the amount of verdict are all matters which may be taken into account.