Adamson v Ede

[2007] NSWSC 829

CITATION:	Adamson v Ede [2007] NSWSC 829
HEARING DATE(S):	27/02/07
JUDGMENT DATE :	1 August 2007
JUDGMENT OF:	Adams J at 1
DECISION:	I enter a verdict for the plaintiff and give judgment in the sum of $60,000. The defendant must pay the plaintiff’s costs.
CATCHWORDS:	Defamation - qualified privilege - motive to injure plaintiff - proof of malice - no defence
CASES CITED:	Bashford v Information Australia [2004] 218 CLR 366 Dickson v Earl of Wilton 175 ER 790 Guise v Kouvelis (1947) 74 CLR 102 Jackson & 9 Ors v TCN Channel 9 Pty Limited [2002] NSWSC 1229 Roberts v Bass (2002) 212 CLR Toogood v Spyring 149 ER 1044
PARTIES:	Christopher Michael Adamson Kenneth John Ede
FILE NUMBER(S):	SC 20311/04
COUNSEL:	Plaintiff: In person Defendant: Mr K. Smark
SOLICITORS:	Plaintiff: In person Defendant: Mr Mark Morris

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

1 AUGUST 2007

20311/04 CHRISTOPHER MICHAEL ADAMSON v
KENNETH JOHN EDE

JUDGMENT

HIS HONOUR:

Introduction

1 The plaintiff was admitted as a solicitor in Queensland in November 1983, where he practised as a solicitor for about sixteen years, for which purpose he obtained practising certificates as required by the law of that State. On 5 July 1995 he was admitted as a legal practitioner in New South Wales and practised as such from that date to 30 June 2003, again having the requisite practising certificates permitting him to do so. For about a year the plaintiff ceased practising as a solicitor but recommenced on 5 July 2004 and continues to practise, holding a current practising certificate. The plaintiff and the defendant have known each other for some years but there was a falling out between them.

2 The defendant became aware some considerable time before the date of the defamatory conduct that the plaintiff was involved in litigation with one Mrs Elizabeth Fitzpatrick. It appears that the dispute between the plaintiff and Mrs Fitzpatrick concerned legal fees claimed by the plaintiff to be payable by Mrs Fitzpatrick. Although the defendant was aware that Mrs Fitzpatrick had been a neighbour of the plaintiff’s, he had never met her and, for all practical purposes, she was a complete stranger to him. A day or so before 20 July 2004, the defendant became aware that the litigation was still on foot and of the identity of Mrs Fitzpatrick’s solicitors. He immediately telephoned Mr Beazley and told him (inter alia) the following –

1. Christopher Michael Adamson was born Christopher Michael Adamski in Orange on 2 June 1953;
2. In 1977 he was convicted of a criminal offence in New South Wales, not being a traffic offence and the criminal record number is 373404;
3. He changed his name from Christopher Michael Adamski to Christopher Michael Adamson and applied for admission as a solicitor in either Queensland or New South Wales; and
4. He did not disclose the fact that he had been convicted of any criminal offence in his application for admission or in any application for a practising certificate.

3 At the trial under s7A of the Defamation Act the jury found the following imputations were made by the defendant of the plaintiff –

1. In 1977 the plaintiff was convicted of a criminal offence in New South Wales not being a traffic offence and his criminal record number is 3734044.
2. The plaintiff was convicted of a criminal offence of such seriousness and of such a nature as to evidence such a lack of good fame and character as may have prevented him from becoming admitted as a solicitor.
3. The plaintiff changed his name to facilitate his dishonest plan to hide his criminal record when he applied for admission as a solicitor or when he applied for a practising certificate.
4. The plaintiff acted dishonestly in his application for admission as a solicitor and in his application for a practising certificate by not disclosing that he had been convicted of a criminal offence which may have precluded him from being admitted and practising as a solicitor.

Not surprisingly, each of these imputations was found to be defamatory of the plaintiff.

4 It is true that the plaintiff changed his name from Adamski to Adamson. The plaintiff said (and it was not sought to be controverted) that for personal reasons and not for any improper purpose he changed his name by deed poll which was executed and filed in the Supreme Court of Queensland on 22 August 1985 and that the change of name by deed poll was supplied to the Law Society of New South Wales and the Supreme Court with his application for admission as a legal practitioner in this State. His certificate of admission in Queensland is in the plaintiff’s former name. There was no conviction of the plaintiff in New South Wales or anywhere else. There was no impropriety of any kind committed in connexion with the plaintiff’s application for admission or for a practicing certificate. The defendant admitted that he made no enquiry to attempt to ascertain whether the imputations were true before he conveyed them to Mr Beazley.

The defence of truth abandoned

5 The statement of claim in these proceedings was filed on 3 September 2004. A defence was filed on 18 April 2006. In that defence the defendant admitted making the alleged statements but denied both the plaintiff’s imputations and their alleged defamatory character. In the alternative, the defendant alleged that each of the plaintiff’s imputations was substantially true and related to a matter of public interest or was published under qualified privilege. The defence of truth was persisted in until 7 February 2007 when, in an interlocutory hearing before Nicholas J, counsel for the defendant in substance informed the court that the only remaining defence was qualified privilege at common law.

The defendant explains how he came by false information

6 I think I should state at the outset that I did not think that the defendant was a witness of truth. Of course, one must always be cautious about attributing to much significance to demeanour because of the risk of unfairness. Bearing this in mind, I nevertheless formed the opinion that the plaintiff was not telling me the truth about a number of important matters, particularly the defendant’s feelings of animosity for the plaintiff and the reasons he spoke to Mr Beazley.

7 The defendant said that he was in Queensland in October 2003 and attended Burleigh Police Station to make a complaint, as I understand his evidence, about certain of the plaintiff’s dealings with the defendant’s credit union account. Whilst at the police station he spoke to a detective and was taken into an area where there were workstations. The detective asked the defendant for the name of the person against whom the defendant was making allegations. The defendant said that he gave the detective both the present name of the plaintiff and his earlier surname. He said that the detective entered both names, which then appeared on the screen. The defendant said that he saw a number and the letters “CNI” but nothing else. He said that he asked the detective “What is a CNI?” The detective said that it was a criminal conviction number and added, “There is nothing here on record. It seems to be a number that may be relevant to New South Wales”. It will be observed that, even on the defendant’s own evidence, he was not told that there was a New South Wales charge but that the number seemed to be relevant to this State. In my view, the evidence of the defendant went no further than that the police officer speculated that the number related to a conviction, although, literally, the speculation was as to the place of the conviction rather than the fact of a conviction.. The number was noted by the defendant (because he communicated it to Mr Beazley). This suggests that the defendant did see something (and it may have been on a computer screen) in the Burleigh Police Station. There is no support for the existence of the letters “CNI” – whatever they might signify – on any records concerning the plaintiff. The number 3734044 is an internal reference to an application by the plaintiff to be inducted into the Queensland Police Service in 1977.

8 When the defendant had the conversation with the detective to which I have referred he had been engaged for some time in a bitter dispute with the plaintiff and was involved in Supreme Court proceedings against him. In late October 2003 (probably after the visit to the police station) he had also made a complaint to the Queensland Law Society about the plaintiff which, inter alia, alleged the plaintiff had forged his signatures on a number of documents, including cheques, and had stolen money from his credit union account. This complaint did not contain any suggestion that the plaintiff had any prior convictions. It seems to me, also, from a letter to Mr Smark of counsel dated 1 March 2005 that the plaintiff had not told Mr Morris, his own solicitor who had been acting for him throughout, about the information he claimed to have gleaned from the Queensland detective. This suggests that he did not believe that the plaintiff had, indeed, been convicted of any criminal offence.

9 The defendant’s imputation about the reasons for the plaintiff’s change of name was an invention based, of course, upon the false assumption that he had a motive for doing so arising out of the non-existent convictions. The same false assumption underlies the fabricated imputation that the plaintiff had concealed the non-existent conviction when applying for admission and his practicing certificate.

The defendant’s motives

10 The defendant was significantly less than candid in his evidence about his animosity towards the plaintiff at the time of the publication of the imputations to Mr Beazley. By that time, on his account, the defendant thought that the plaintiff was “evil”, that the plaintiff had extorted, blackmailed and defrauded him, forced him to sign a deed and refused to give him a copy of it, lied about settlement sums in a legal dispute, placed unjustified caveats over his land, forced him into a matrimonial settlement with his wife and cheated his wife out of $40,000 of her matrimonial settlement moneys. The defendant said that, although he disliked the plaintiff he did not hate him. On being pressed, he said that he did not feel “antagonism as such but I was feeling great discomfort with what [the plaintiff was] doing and proceeded with”. Eventually, the defendant conceded that he considered himself to be an enemy of the plaintiff for all these reasons. In his evidence upon this matter, the defendant dishonestly attempted to misstate his true feelings about the plaintiff.

11 The defendant’s explanation for making the allegations against the plaintiff to Mr Beazley were also, I am convinced, untrue. He said that in the latter part of 2001, the plaintiff had told him that he had done some work for Mrs Fitzpatrick (who lived across the hallway from him) and that she still owed him outstanding fees. He said that on 13 October 2003 an invoice was faxed to him by mistake by the Sydney Mentions Practice which referred to proceedings taken by the plaintiff against Mrs Fitzpatrick. The defendant said that shortly before his communication of the imputations to Mr Beazley he was telephoned by Mr Carney, a barrister retained to appear for Mrs Fitzpatrick, who told him that the action brought by the plaintiff was proceeding. The defendant said that he telephoned Mr Beazley because he was deeply concerned about Mrs Fitzpatrick, who was about the age of his own mother. He said that he was concerned that the plaintiff “was suing somebody for a few thousand dollars – an old lady” for whose well being, he claimed, he was fearful. On the other hand, he conceded that Mrs Fitzpatrick was a complete stranger and he knew nothing about the merits of the case, in particular whether the money was owed or not. He said he had not asked his own solicitor, Mr Morris, to communicate with the plaintiff and ask if the allegations that he intended to make to Mr Beazley were true because “I was just acting in severe haste” although he was unable to say what the need for haste was.

12 The defendant’s evidence about his motive for speaking to Mr Beazley is incredible. I have no doubt that his only or, at least, predominant reason for doing so was to injure the plaintiff. He intended that Mr Beazley would use the information he had supplied to attack the plaintiff in some way.

13 (The defendant was cross-examined about certain affidavits tendered by him to obtain orders for the payment of judgment debts by instalments. Although the information in those affidavits as to the defendant’s means was not, strictly speaking, entirely accurate I have not drawn any inference adverse to the defendant from this material. I accept that his explanations for these shortcomings might well be true.)

Was the communication privileged?

14 It is for the defendant to establish that his misstatements were made on a privileged occasion and, if so, for the plaintiff to establish that the defendant acted maliciously. As was said by Gleeson CJ, Hayne and Heydon JJ in Bashford v Information Australia [2004] 218 CLR 366 at 373, the relevant principles are well known and the statement of Parke B in Toogood v Spyring (1834) 1 Cr M & R 181 at 193 [149 ER 1044 at 1049-1050] is frequently cited –

“In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorised communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.”

It is essential, however, as their Honours point out, that the duty or interest be reciprocal ( ibid ). To adapt the question posed by their Honours to this case, was there that reciprocity of duty or interest between the defendant and Mr Beazley as to the defamatory matter which would make the occasion of its communication privileged? What legal, social or moral duties or interests were engaged between the defendant and Mr Beazley or Mrs Fitzpatrick who had no relationship whatever with Mr Beazley or his client, Mrs Fitzpatrick and no involvement in the litigation: ibid at 377.

15 In my view, the defendant was not motivated in the slightest degree by any intention to help Mrs Fitzpatrick except insofar as that might have incidentally occurred as a consequence of the injury to the plaintiff. It may be that there are good reasons for the “common convenience and welfare of society” for members of the public who are aware of material facts about a case to bring those facts to the attention of the legal representatives for one or more of the parties. Whatever might be the position in relation to criminal matters, I am doubtful that such a duty applies in relation to civil litigation. After all, civil litigation is but a private dispute brought into court. In this case, moreover, the defamatory matter could not be material to the issues in the case although, possibly, it might have gone to the credit of the plaintiff.

16 In the circumstances here, in light of my conclusion about the defendant’s motive for communicating with Mr Beazley, it is unnecessary for me to determine whether they occurred on an occasion of privilege. To adopt the language of Parke B in the passage cited above, the communication by the defendant to Mr Beazley was not “honestly made”. The question which arises if an occasion is privileged, is whether the defendant “has fairly and properly conducted himself in the exercise of it, Gleeson CJ, Haynes and Heydon JJ in Bashford (218 CLR at 377, citing Guise v Kouvelis (1947) 74 CLR 102 at 117 per Dixon J, quoting Dickson v Earl of Wilton (1859 1 F & F 419 at 426 [175 ER 790 at 793] per Lord Campbell CJ.

17 Even if, therefore, the communication occurred on an occasion of qualified privilege (which I doubt) the defendant acted with express malice and, accordingly, his qualified privilege, if any, is destroyed (see for example, Roberts v Bass (2002) 212 CLR 1 at 30 per Gaudron, McHugh and Gummow JJ). I am also of the opinion that the defendant was, at the time, consumed with ill will towards the plaintiff and that he was aware that the allegations were only speculative. Of course, where there is a legal duty to make the communication, even knowledge or belief that the defamatory statement is false will not destroy the privilege. Here, however, it can scarcely be thought that the defendant had a duty in the circumstances here to convey imputations as true which, making every allowance for him, he believed to be mere possibilities.

18 It follows that the defence fails and the defendant is liable to pay damages to the plaintiff.

Damages

19 As the defendant foresaw, at least in a general sense, Mr Beazley did seek to use the information he had been given for the purpose of attacking the plaintiff, seeking first, however (and as was proper) to gather some evidence on the matter. Accordingly, on 20 July 2004, at a directions hearing in the Local Court, Ms Evans, a solicitor employed by Beazley Singleton, sought leave to issue a subpoena directed to the New South Wales and Queensland police without, expressly identifying the person in respect of whom the information was being sought. In the context, which was a debate about whether the plaintiff had a practising certificate at the time he rendered his account to Mrs Fitzpatrick (about which, regrettably, Mr Beazley was mistaken) there was certainly more than a hint that the subpoena referred to the plaintiff. The assertion by Ms Evans that, “it’s not any kind of fishing expedition” meant, of course, that there were good grounds for supposing that the subpoenas would indeed reveal that the plaintiff had been convicted of some criminal offence or other. That the subpoena was directed to obtaining information about the plaintiff’s convictions would have been confirmed in the mind of an alert listener to the proceedings by the Magistrate’s comment, “If he’s got a practising certificate, this Court is not going to go behind whether or not he should have got a practising certificate”. In the result, the Magistrate refused the application. The plaintiff said that there were a number of people in court at the time, including legal practitioners.

20 On 23 July 2004 Mr Beazley wrote to the Legal Services Commissioner of New South Wales informing the Commissioner, inter alia, of the defendant’s allegations. Mr Beazley also informed the Commissioner that the plaintiff had never held a practising certificate as a legal practitioner in New South Wales (which was incorrect) and also that the plaintiff had been charged by the New South Wales police with fraud, which matter was (and still is) undetermined. On 24 August 2004 the Law Society wrote to the plaintiff concerning the practising certificate issue and further correspondence ensued in relation to that, the alleged convictions, and the fraud charges.

21 The plaintiff says that employees of Beazley Singleton would have become aware of the imputations, as would Mrs Fitzpatrick’s counsel. The necessity of taking proceedings in this Court has exposed the imputations to two judges of this Court and their staff and, perhaps, Registry staff.

22 The plaintiff’s evidence is that he was personally very distressed when he learned of the imputations made against him. I do not doubt that this is true. Furthermore, the imputations necessarily attacked his professional status. The plaintiff said that he has had to endure being shunned and avoided by some of his colleagues, giving as an example that on two occasions in the public area of the Downing Centre a barrister who had been his articled clerk and with whom he had hitherto friendly relations, shunned him. Practitioners with whom he had cordial and friendly relations including a barrister, whom he had previously briefed, commenced shunning him at court. Another barrister whom he had known on good terms for several years would not see him and yet another whom he sought to brief did not return his calls. The plaintiff was not cross-examined on this evidence and there is nothing to suggest that it ought not to be relied on. How these persons may have learned of the imputations is unknown but the grapevine effect is not insignificant – certainly so far as the New South Wales legal profession is concerned.

23 The distress of the plaintiff was increased by the defendant’s pleading that the imputations were true. The defendant admitted that this defence was pleaded without any attempt having been made by the defendant or those whom he retained, to obtain verification of their correctness. Since such verification would have been easy procured`, it is difficult indeed to understand why this step was not taken. Counsel for the defendant in submissions pointed out that it was not necessary to deal with the defence until the jury had found in favour of the plaintiff in the proceedings under section 7A of the Act. I do not see this as a reasonable explanation for the lack of enquiry, especially in light of the almost inevitable likelihood that the jury would find in favour of the plaintiff in respect of most, if not all, of the imputations. The plaintiff called evidence from person who have known him over the relevant period, who testified as to his excellent reputation and the significant distress he suffered.

24 In Jackson & 9 Ors v TCN Channel 9 Pty Limited [2002] NSWSC 1229 I set out in what I understood to be a non-controversial way, a discussion of the principles relevant to the assessment of damages for defamation. Of course, I do not suggest for a moment that this discussion is superior to the many other discussions of the same subject matter in other judgments of this Court and elsewhere. Nevertheless, I set out my own understanding of the matter as I then thought it appropriate to do so. My views have not changed since that time and it is convenient to set out here what I said in that case –

“80 The purposes to be served by the award of damages for defamation are consolation for the personal distress and hurt caused to the plaintiff by the publication, reparation for the harm done to the plaintiff’s reputation and vindication of that reputation. No doubt these purposes “overlap considerably in reality” and ensure that “the amount of the verdict is the product of a mixture of inextricable considerations” ( Carson v John Fairfax & Sons Limited (1993) 178 CLR 44, per Mason CJ, Deane, Dawson & Gaudron JJ at [32], quoting Uren v John Fairfax & Sons Pty Limited (1996) 117 CLR 118 at 150). In the same paragraph, their Honours went on to say (omitting some references) –
“The first two purposes are frequently considered together and constitute consolation for the wrong done to [the plaintiff]. Vindication looks to the attitude of others to the [plaintiff]: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant’s reputation. ‘The gravity of the libel, the social standing of the parties and the availability of alternative remedies’ are all relevant to assessing the quantum of damages necessary to vindicate the appellant (Fleming, The Law of Torts , 8th ed (1992) at 595).”
81 The plaintiffs here also claim aggravated and exemplary damages. Leaving aside the question of exemplary damages, aggravated damages are available in New South Wales to the extent that they are compensatory in nature, a result of the language of s46 of the Defamation Act 1974 which provides, in effect, that damages are only recoverable for “relevant harm”, a term relevantly defined as “harm suffered by the person defamed” (subs (1)(a)) and “shall not be affected by the malice or other state of mind of the publisher at the time of the publication complained of, or at any other time, except so far as that malice or other state of mind affects the relevant harm” (subs(3)(b)). That is not to say, however, that aggravated damages cannot be awarded where, for example, publication of the matter complained of is reckless or the defendants maintain the defence of qualified privilege on the record until commencement of the hearing: Andrews v John Fairfax & Sons Pty Limited [1980] 2 NSWLR 225. In Carson , the majority did not find it necessary to consider the significance of s46 except to emphasise “that damages for defamation are confined to what can be justified as compensatory for harm actually suffered” (178 CLR at 55). Dealing generally with the elements of damages for defamation, Brennan J said (178 CLR at 69 ff, omitting most references) –
“The chief purpose of the law in creating a cause of action for defamation is to provide vindication to counter the injury done to the plaintiff in his or her reputation…The sufficiency of the amount awarded is not to be determined by reference solely to circumstances past and present; the amount must be sufficient to vindicate the plaintiff’s reputation in the relevant respect in the future. Thus, Lord Hailsham in Broome v Cassell & Co [1972] AC 1027 at 1071 said:
‘Not merely can [the plaintiff] recover the estimated sum of his past and future losses, but in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge.’
…
Although damages are awarded to vindicate the plaintiff’s reputation, damages are not awarded as compensation for the loss in value of a plaintiff’s reputation as though that reputation were itself a tangible asset or a physical attribute to which, once damaged, is worth less than it was before. In order to achieve the purpose of vindicating reputation, damages for defamation are quantified by reference, inter alia, to what is needed to achieve that purpose: those damages are not quantified by reference to a depreciation in the value of a plaintiff’s reputation. Other heads of damage are compensation for the external consequences produced by the publication of the defamation and ‘a solatium’ for the plaintiff’s internal hurt that is, for the complex of reactions that the plaintiff has experienced as a result of the publication and its external consequences…
The consequences of publication include not only the insult publicly inflicted on the plaintiff but also the effect of the defamation on those to whom it is published, any diminution in the regard in which the plaintiff is held by others, any isolation produced (causing the plaintiff to be ‘shunned or avoided’ is the traditional formula) and any conduct adverse to the plaintiff engaged in by others because of the publication of the defamatory matters. Damages are awarded also for the plaintiff’s injured feelings, including the hurt, anxiety, loss of self-esteem, the sense of indignity and a sense of outrage felt by the plaintiff. Indeed, all those objective consequences and those subjective reactions which follow naturally from the publication of the defamatory matter are relevant factors. Of course, the subjective reactions are often produced by the objective consequences of the publication. The two categories are not accumulative heads of damage but descriptions of kinds of intangible factors which must be taken into account in assessing damages.
Damages may be aggravated or mitigated by the manner in which the defamatory matter was published and by the subsequent conduct of the defendant. Conduct of the defendant from the time of publication to the eventual verdict…is relevant. In Broome v Cassell & Co , Lord Reid, speaking of the bracket within which any sum could be regarded as not unreasonable compensation, said ([1972] AC at 1085:
‘It has long been recognised that in determining what sum within that bracket should be awarded, a jury or other tribunal is entitled to have regard to the conduct of the defendant. He may have behaved in a high handed, malicious, insulting or oppressive manner in committing the tort…that would justify going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation.’
Evidence of the defendant’s conduct is admissible also in proof of malice. But s46(3)(b) of the Defamation Act provides that, in New South Wales, damages –
‘Shall not be affected by the malice or other state of mind of the publisher at the time of the publication complained of or at any other time, except so far as that malice or other state of mind affects the relevant harm.’
Evidence of the defendant’s conduct is therefore relevant and admissible on the issue of compensatory damages, whether or not it tends to prove malice, but only so far as that conduct exacerbates or ameliorates the consequences of the original publication or the plaintiff’s injured feelings.
Damages by way of vindication of reputation are not added to the damages assessed under the other heads. Although an award of damages operates ‘as a vindication of the plaintiff to the public’ and as consolation to him for a wrong done.” As Windeyer J said in Uren v John Fairfax & Sons Pty Limited (1966) 117 CLR 185 fn 74) the dual operation of an award does not require cumulative components of damages …”
82 McHugh J dealt at some length with the significance of the prohibition in para46(3)(a) of the Defamation Act 1974 of any award of exemplary damages in a defamation action, concluding that this did not mean that damages cannot reflect some element of punishment. His Honour said (178 CLR at 102ff) –
“In my opinion, the element of punishment is often a legitimate factor in an award of aggravated damages even in New South Wales…a jury which increases its award of damages in a defamation action commits no error if it thinks that the plaintiff cannot properly be compensated for the harm done to him or her unless the damages contain an amount to punish the defendant for the hurt which he or she has inflicted on the plaintiff or to deter the defendant from further defaming the plaintiff. Nor does the jury commit any error if it increases the damages because the conduct of the defendant towards the plaintiff arouses its anger or indignation.
… Damages [at common law] in a defamation action are ‘the product of a mixture of inextricable considerations” ( Uren 117 CLR at 50; see also Broome v Cassell & Co [1972] AC at 1072). It can also be said that they are a mixture of conflicting considerations which are the result of defamation being both a tort and a crime. One consideration is the state of mind and the conduct of the defendant which the common law has always regarded as being of great importance on the question of damages even though damage to reputation is the gist of a defamation action.”
83 Dealing briefly with the action of defamation at the common law and prosecutions for criminal libels in the Star Chamber, which latter jurisdiction eventually passed to the common law courts, McHugh J continued (178 CLR at 104-105) –
“The damage which a defamation produces is ordinarily psychological rather than material. It affects the feelings, sense of security, sense of esteem and self-perceptions of the person defamed. As a natural consequence, a defamation excites the anger and resentment of the victim and often enough generates a desire for retribution. Judge Posner has pointed out ( The Federal Courts: Crisis and Reform (1985), pp 5-6) that:
‘Part of our biological inheritance is the sense of indignation, and its complement the desire for retribution (by violent means if necessary), that is arouses when someone invades an interest that we value highly…the courts provide a substitute for the costly self help methods that people would otherwise resort to.’
If an award of damages in a defamation action is to fulfil its social purpose, it must be high enough to assuage the hurt, indignation and desire for retribution which the plaintiff feels. Moreover, in many cases, the feelings of a person who has been maliciously defamed will only be assuaged if he or she is satisfied that the award of damages hurts the defendant as much as the defendant has hurt the plaintiff. ‘What the plaintiff is really demanding by way of solace to himself’ Professor Julius Stone has said (“Double Count and Double Talk: The End of Exemplary Damages?” The Australian Law Journal Vol 46(1972) 311 at p 319) “is that there be inflicted on the defendant pain and humiliation comparable to that which the defendant has inflicted on the plaintiff”. Thus the anger of the plaintiff is placated only when he or she knows that the defendant has been punished for the wrong…an award of compensatory damages in such a case will not achieve its restorative effect unless the defendant is made to suffer for the wrong.
…
[178 CLR at 106] To say that no element of punishment enters into the assessment of [aggravated] compensatory damages and that the effect of such an award is merely to compensate the plaintiff for the increased harm which that person suffers is to resort to fiction in many cases. In many, perhaps the majority of cases, for example, the plaintiff only becomes aware of the defendant’s malice long after publication, perhaps at the trial of the action…The truth is that, in many cases calling for an award of aggravated damages, the real reason that the defendant is called upon to pay additional damages is that that person has been guilty of malice or some other improper state of mind or conduct. It is not simply because of the effect of the defendant’s conduct on the plaintiff. However much judges and juries may seek to rationalise the right of the jury to increase damages by reason of the conduct of the defendant as being purely compensatory, compensation to the plaintiff is only achieved in many cases of awards of aggravated damages by punishing or deterring the defendant. Eminent judges have accepted that this is so.”
His Honour then dealt with the speeches of Lord Hailsham of St Marylebone LC and Lord Reid in Broome v Cassell & Co ( infra ), the judgments of Windeyer and Taylor JJ in Uren (infra) and noted the statement of Lord Devlin in Rookes v Barnard [1964] AC 1129 at 1230 that “aggravated damages can do most if not all the work which can be done by exemplary damages”. McHugh J considered (178 CLR at 108) –

“[that these cases] have made clear…that punishment of the defendant can be a factory in an award of aggravated compensatory damages if it is necessary to provide a fair solatium to the plaintiff but that no sum additional to the compensatory damages can be added as a penalty to punish or deter the defendant unless the case is one calling for an award of exemplary damages.

Hence, it should now be regarded as established at common law that, in awarding aggravated damages, the jury can ‘inflect an added burden on the defendant proportionate to his conduct’ Broome v Cassell [1972] AC at 1071, per Lord Hailsham LC by way of punishment when such award is necessary to provide a proper consolation to the plaintiff. Moreover, in awarding aggravated damages, the anger or indignation which the jury feels at the way the defendant has treated the plaintiff is a proper reason for making a large rather than a small award to compensate the plaintiff. Lord Hailsham said that the reason a jury could increase compensatory damages because of its indignation at the defendant’s conduct was that (ibid at 1073) “the injury to the plaintiff is actually greater and, as the result of the conduct exciting the indignation, demands a more generous solatium.”
84 Dealing with the position in New South Wales, McHugh J noted that exemplary damages cannot be awarded in an action for defamation, but said that “this does not mean that punishment or deterrence is no longer a legitimate element in an award of aggravated damages in that State…and nothing in s46 [of the Defamation Act ] affects the common law rule that in assessing aggravated damages the award may include an amount for punishment or deterrence in a proper case” (178 CLR at 108,109). Pointing to the use of the term “harm” in s46 as “curious”, his Honour went on to observe –
“It is not a term of art in the law of defamation or the law of torts. But in the context of a section which provides that damages are recoverable in accordance with the common law, it must include such matters as effect on reputation, hurt to feelings, distress, worry, humiliation, fear, anger and resentment as the result of defamation. The purpose of the section is to prevent the plaintiff from receiving damages which do not have a restorative effect. Thus damages to vindicate the plaintiff’s reputation are damages for relevant harm, and so are damages for the failure to apologize. And, in some case, aggravated compensatory damages which include an amount for punishment or deterrence are ‘damages recoverable in accordance with the common law…for relevant harm’ (s46(2)).”
85 I note, of course, that McHugh J’s discussion of the role of punishment in the law of defamation was, as his Honour said, “academic”, since the jury in the case under appeal were directed not to award damages by way of punishment (178 CLR at 110). With respect, however, I wish to state that I have found it very helpful and especially so in relation to the appropriate character of the notion of solatium for the plaintiffs’ hurt feelings.
86 In Crampton v Nugawela (1996) 41 NSWLR 176 Mahoney CJ said (at 188) –
“It is not in contest that what the defendants did warranted the award of aggravated damages. The principles relevant to the assessment of aggravated damages have a deceptive simplicity. It has been said that, in awarding aggravated damages, the court remains restricted to compensating the plaintiff for loss actually suffered by him as a result of the defamation but, in assessing those damages, the court may adopt the highest level of damages open as compensatory damages.”
87 In order that conduct of the defendant after publication may attract an award of aggravated damages, the plaintiff must show that it was lacking in bona fides, or is improper or unjustifiable: Herald & Weekly Times Limited v McGregor (1928) 41 CLR 254; Triggell v Pheeney (1951) 82 CLR 497…
88 In Hill v Church of Scientology of Toronto [1995] 2 SCR 1130, the Supreme Court of Canada said, in the context of freedom of expression and the Canadian Charter of Rights and Freedoms , (L’Heureux-Dube J giving separate but agreeing reasons) –
“[107] The other value to be balanced in a defamation action is the protection of the reputation of the individual. Although much has been very properly said and written about the importance of freedom of expression, little has been written of the importance of reputation. Yet, to most people, their good reputation is to be cherished above all. A good reputation is closely related to the innate worthiness and dignity of the individual. It is an attribute that must, just as much as freedom of expression, be protected by society’s laws. In order to undertake the balancing required by this case, something must be said about the value of reputation.

[108] Democracy has always recognized and cherished the fundamental importance of an individual. That importance must, in turn, be based upon the good repute of a person. It is that good repute which enhances an individual’s sense of worth and value. False allegations can so very quickly and completely destroy a good reputation. A reputation tarnished by libel can seldom regain its former lustre. A democratic society, therefore, has an interest in ensuring that its members can enjoy and protect their good reputation so long as it is merited.
[117] Though the law of defamation no longer serves as a bulwark against the duel and the blood feud, the protection of reputation remains of vital importance. As David Lepofsky suggests in Making Sense of the Libel Chill Debate: Do Libel Laws ‘Chill’ the Exercise of Freedom of Expression? (1994) 4 NJCL 169 at 197, reputation is the ‘fundamental foundation on which people are able to interact with each other in social environments’. At the same time, it serves the equally or perhaps fundamentally more important purpose of fostering our self-image and sense of self-worth…”

25 The plaintiff here makes no specific claim for damages for economic loss. In assessing damages for non-economic loss, the Court must “take into consideration the general range of damages for non-economic loss in personal injury awards”: s46A(2) of the Act. This provision cannot be applied directly but it must, of course, be borne in mind when considering the damages for non-economic loss payable for defamation.

26 For the reasons which I have already given, I think that the plaintiff has established here that the defendant’s conduct after publication indeed lacked bona fides and was unjustifiable. On 2 August 2004 the plaintiff wrote to the defendant seeking an apology for the defamatory statements made to Mr Beazley, an undertaking not to make any further defamatory publications and an offer to make amends and compensate the plaintiff in damages for the defamatory falsehoods. On 28 August 2006 the plaintiff tendered a notice to admit facts in accordance with the rules, specifying the following –

1. In 1977 the plaintiff was not convicted of any criminal offences in the State of New South Wales.
2. The plaintiff was never allocated a Criminal Record Number 373404.
3. At no time did the plaintiff commit any criminal offence of such seriousness and of such a nature as to evidence a lack of good fame and character as may have prevented him from being admitted as a solicitor.
4. The plaintiff did not change his name to facilitate a dishonest plan to hide a criminal record when he applied for admission as a solicitor or when he applied for a practising certificate.
5. The plaintiff did not act dishonestly in his application for admission as a solicitor and in his application for a practising certificate by [not] disclosing that he had been convicted of a criminal offence which might have precluded him being admitted and practising as a solicitor because he did not have any such conviction.

27 On 1 September 2006 the defendant responded by giving notice that he “disputes the facts specified in the notice dated 28 August 2006”. I do not think that the defendant could have admitted fact 3 but all the other facts were matters of record. By 28 August 2006 the defendant should have been in a position to know that record. It almost goes without saying that, had appropriate enquiries been made, the defendant would not have been in a position to dispute the admissions sought. The plaintiff had previously requested the defendant to share the costs of subpoenas required to establish whether or not he had committed any criminal offences and had a criminal record. The defendant did not respond to this offer. The material gathered by the plaintiff was produced by him to the defendant’s counsel before the Notice to Admit Facts was served. The defence of truth was, as I have said, withdrawn by consent but only after the plaintiff had filed and served a motion seeking that the defence be struck out. I readily accept that approach taken by the defendant to the litigation was productive of considerable upset and anxiety.

28 The necessity of defending himself to the Legal Services Commissioner and the Law Society was also productive of humiliation and distress.

29 The most significant feature limiting the damages that might otherwise have been payable is the relatively limited publication of the imputations, even accepting what I have called the grapevine effect.

30 However, I do not need to reach a concluded view as to whether aggravated damages should be awarded, since I am satisfied that the amount of damages necessary to vindicate the plaintiff’s reputation is such as to include the damages which would otherwise be payable under this head.

Judgment

31 I enter a verdict for the plaintiff and give judgment in the sum of $60,000. The defendant must pay the plaintiff’s costs.

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