Carter v Napper - [2022] WADC 25

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   CARTER -v- NAPPER [2022] WADC 25
CORAM:   PRIOR DCJ
HEARD:   27 JANUARY 2022
DELIVERED          :   18 MARCH 2022
FILE NO/S:   CIV 2515 of 2021
BETWEEN:   BENJAMIN CARTER
Plaintiff
AND
PAUL NAPPER
Defendant

Catchwords:

Defamation - Assessment of damages - Turns on its own facts

Legislation:

Defamation Act 2005 (WA), s 6, s 7(2), s 34, s 36, s 40
Supreme Court Act 1935 (WA), s 32

Result:

General damages of $30,000
Aggravated damages of $10,000
Awarded to the plaintiff

Representation:

Counsel:

Plaintiff	:	Mr R V Graham & Mr I W Priddis
Defendant	:	No appearance

Solicitors:

Plaintiff	:	Vogt Graham Lawyers
Defendant	:	Not applicable

Case(s) referred to in decision(s):

Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225
Armstrong v McIntosh [No 4] [2020] WASC 31
Atholwood v Barrett [2004] QDC 505
Bertwistle v Conquest [2015] QDC 133
Carolan v Fairfax Media Publications Pty Ltd (No 7) [2017] NSWSC 351
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
Embleton Motor Co Pty Ltd v St Kilda Beach Taxi School and Staffing Pty Ltd [2014] WASCA 183
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 221 ALR 186
Gorton v Australian Broadcasting Commission (1973) 1 ACTR 6
Grattan v Porter [2016] QDC 202
Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652; (2015) 237 FCR 33
Hough v London Express Newspaper Ltd [1940] 2 KB 507
John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 201 ALR
John v MGN Ltd [1997] QB 586
Jones v Skelton [1964] NSWR 485
Kenyon v Sabatino [2013] WASC 76
Ley v Hamilton (1935) 153 LT 384
Mickle v Farley [2013] NSWDC 295
North Coast Childrens' Home Inc t/as Child & Adolescent Specialist Programs & Accommodation (CASPA) v Martin [2014] NSWDC 125
Nowak v Putland [2011] QDC 259
Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; (2001) 208 CLR 388
Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674
Phonographic Performance Ltd v Maitra [1998] 2 All ER 638
Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460
RJ v JC [2008] NSWDC 217
Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327
Rothe v Scott (No 4) [2016] NSWDC 160
Scott v Baring [2018] WASC 361
Tavakoli v Imisides (No 4) [2019] NSWSC 717
Trott v Rajoo [2020] WADC 144
Wilson v Bauer Media Pty Ltd [2017] VSC 521
Woolcott v Seeger [2010] WASC 19

PRIOR DCJ:

Introduction

By writ of summons filed 13 July 2021 the plaintiff (Mr Carter) brought a defamation action against the defendant (Mr Napper). The indorsement of claim was in the following terms:
1.The Plaintiff's claims against the Defendant arise from defamatory statements concerning the Plaintiff, which were published by the Defendant:
a.in an email sent on 15 July 2020 at 12:22 AM to Sean Pope and Teagan McGrath, which was read and comprehended by them ('the First Matter Complained Of');
b.orally, to the Plaintiff's Husband, Hendry Prasetyo on 19 July 2020 at the Oxford Lane apartment complex at 177 Oxford Street, Leederville in the State of Western Australia ('the Second Matter Complained Of');
c.in an email sent on 20 July 2020 at 9:21 PM to Teagan McGrath, which was read and comprehended by her ('the Third Matter Complained Of'); and
d.in an email sent on 21 July 2020 at 6:41 PM to Eleanor Logiudice which was read and comprehended by her ('the Fourth Matter Complained Of'),
collectively, 'the Matters Complained Of'.
2.The imputations conveyed by the Matters Complained Of are false and defamatory.
3.The Matters Complained Of or the sense and substance of each has been republished, including along the grapevine, in circumstances where the Defendant is liable.
4.The publication and republication of the Matters Complained Of, and the imputations conveyed by them, has injured the Plaintiff's feelings and reputation and he has suffered and will continue to suffer loss and damage.
5.The Matters Complained Of were published maliciously by the Defendant.
6.The: (a) Defendant's malice; (b) circumstances of publication; and (c) conduct of the Defendant after publication; has exacerbated the hurt to the Plaintiff and justifies an award of aggravated damages.
A statement of claim was filed by Mr Carter on 15 September 2021.
No appearance was entered by Mr Napper to the writ. A judgment in default was entered in favour of Mr Carter against Mr Napper for damages to be assessed on 20 October 2021 by Deputy Registrar Harman.[1]
[1] Exhibit 4 is a transcript of the proceedings on 20 October 2021.
This matter was listed before me for the assessment of damages and the application by Mr Carter for an injunction against Mr Napper. Before the trial Mr Napper had been served with a copy of the orders made by Deputy Registrar Harman on 20 October 2021, the programming orders made by Registrar Kubacz on 22 November 2021, Mr Carter's amended outline of submissions dated 21 January 2022 and Mr Carter's list of witnesses dated 20 January 2022.
At the trial before me there was no appearance by Mr Napper. Mr Carter through his counsel made opening and closing addresses. Comprehensive written submissions were also filed by the plaintiff's solicitors. Mr Carter called four witnesses. There were eight exhibits relied upon by Mr Carter.
In July 2020 when the alleged defamatory statements were made, Mr Carter, his husband Mr Prasetyo and Mr Napper all lived at the Oxford Lane apartment complex at 177 Oxford Street, Leederville (the Oxford Lane complex).

The evidence

Benjamin David CARTER

Mr Carter is 48 years old. He works as the assistant financial controller for a leading global engineering, procurement and construction management company.[2] Mr Carter previously lived in apartment 47 at the Oxford Lane complex. He met Hendry Prasetyo in 2017. They married on 26 August 2019.
[2] ts 24; Exhibit 1 is a copy of the plaintiff's LinkedIn profile as at June 2017.
In addition to Mr Carter's primary work, he established a parent company to run three businesses with Mr Prasetyo. The first business is Oxford Lane Cleaning, through which Mr Carter and Mr Prasetyo are responsible for the cleaning and gardening around the Oxford Lane complex. The second business is Stylemode.com.au (clothing business). Mr Prasetyo is primarily involved with this business, which sells clothing and apparel. The third business is a car rental service.
Mr Carter resided at the Oxford Lane complex from May 2017 to July 2021. He owned two apartments within the complex. Mr Napper's apartment, number 28 was on the other side of a courtyard from the apartment that Mr Carter resided in.[3]
[3] Exhibit 2 is an aerial diagram of the Oxford Lane Complex.
The Oxford Lane complex is made up of several blocks and comprises approximately 68 apartments. The strata manager for the Oxford Lane complex is Logiudice Property Group.
Mr Carter described himself as semi-retired. Through his company, he started doing the cleaning and gardening work at the Oxford Lane complex in June 2017. The only employees of the business are Mr Carter and Mr Prasetyo. Mr Carter described his involvement in this business as 'to increase his participation in the community'.
Mr Carter in his evidence said he never tried to hide the fact he is gay, but he did not advertise it. He would tell people if they asked him. He gave evidence of an example where he had been discriminated for being gay in his employment as a young man.
Mr Carter gave evidence that he was informed by Eleanor Logiudice via telephone almost immediately after an email was sent by Mr Napper on 15 July 2020 to Logiudice Property Group. Mr Carter said he was in a café in Leederville with Mr Prasetyo when he received the telephone call. Ms Logiudice read to him parts of the email and paraphrased other parts. She said she was concerned for Mr Carter. This email is the subject of the First Matter Complained Of.[4] Mr Carter and Ms Logiudice were the only parties to the telephone conversation.
[4] Exhibit 5.
The email, was sent by Mr Napper to Sean Pope and Teagan McGrath[5] on or about 15 July 2020 on or around 12.22 am, containing the following words:
[5] Teagan McGrath was employed as a strata manager at the Logiudice Property Group - statement of claim par 3 and evidence of Eleanor Logiudice.
… To whoever it may concern / Teagan,
There are multiple concerns about the complex in which many of the residents are extremely concerned about and i believe this is where your focus should be going and not on a sign.
1)High theft and crime in the strata complex including my own motorcycle being stolen and multiple car and bike thefts too due to malfunctioning gates which are not being maintained as they should be. This makes the complex a haven for burglaries.
2)The groundsman? / cleaner? (Benjamin). In the strata by laws it says you are not allowed to Air BnB in the complex which the cleaner/ groundsman is clearly doing and breaching that law.
3)The instigator of all this stupidity seems to have one rule for themselves and another rule for everyone else.
4)Every week there is a photo shoot in the courtyard of half naked women conducted by the handyman/cleaners partner, this is concerning to me and other residents with children, is this allowed? The handy man / cleaners partner uses the female toilets which is another high concern for residents as he is a male, is this ok? Is it ok for the handyman/ cleaner to be on the strata committee and to be getting an income from the complex, is this not a conflict of interest?
PS. I totally understand same sex relationships, however seeing an older man with a much younger male, groping in public in my opinion is a type of pedophilia, not a relationship, would you agree? and if so, would you allow it in your living space especially with children around.
I will give you until Friday 17th COB to answer all these questions and if the harassment continues about the sign i will personally knock on every door to get a petition signed addressing the concerns.
Paul Napper
Mr Carter gave evidence he was aware on 19 July 2020 that his husband, Mr Prasetyo was conducting a photoshoot for his clothing business at the Oxford Lane complex, on the common property.
Mr Carter said he helped set up but was not involved with the photoshoot, so he left and went to McDonald's in North Perth. Mr Prasetyo then called Mr Carter and told him that Mr Napper had confronted them. Mr Carter said Mr Prasetyo was quite distressed and asked Mr Carter to immediately come back to the Oxford Lane complex. This confrontation and what Mr Napper said to Mr Prasetyo formed the basis of the Second Matter Complained Of.
Mr Carter said when he drove back to the Oxford Lane complex Mr Napper was standing in the middle of the driveway in the carpark which would make it difficult to park his vehicle.
When he parked his vehicle, Mr Carter walked up to Mr Napper. He said 'Is there something you want to say to me?' Mr Napper said 'Why would I want to talk to you? Why don't you just go eat your burger and feed your fat stomach?'
Following this incident Mr Carter stated he was very concerned for Mr Prasetyo. He went to the Wembley Police Station and spoke to police officers. He also saw a lawyer and discussed a misconduct restraining order.
Mr Carter gave evidence in relation to a photograph he took in June 2020 of a sign concerning Mr Napper on the Oxford Lane complex.[6] Mr Carter gave evidence that the sign should not have been on the property at the time he took the photograph as Mr Napper had leased the property which had been the original subject matter of the sign. Mr Carter said he rang Perth Realty Group where Mr Napper worked, and spoke to the Chief Operating Officer about the sign.
[6] Exhibit 3.
Mr Carter described himself as a reserved, private person who does not engage in public displays of affection. He denied ever groping younger males in public in the Oxford Lane complex.
Mr Carter stated he had heard Mr Napper talking about 'lessos and faggots'.
Mr Carter gave evidence that he has thought about the Matters Complained Of every single day. He said there was not a single day he felt at peace. After taking legal advice he changed his activities to avoid coming in contact with Mr Napper. He would never use the swimming pool in the Oxford Lane complex as Mr Napper tended to frequent the swimming pool.
Mr Carter saw Mr Napper speaking with the owner of an apartment at the Oxford Lane complex. The owner has a wife and two sons who were approximately 11 or 12 years old at the time. After witnessing that conversation, Mr Carter noticed that the children would walk behind their father if they saw him. Mr Carter gave evidence that the emails, the subject of three of the Matters Complained Of contextualised this strange behaviour. He drew the inference that the Matters Complained Of were being broadcast to the City of Vincent, the strata and to other residents in the complex. Mr Carter has noticed that children have been avoiding him by walking behind their fathers when he passes them.
In June 2021, Mr Carter said he saw Mr Napper speaking to a resident of the Oxford Lane complex who had moved in that day to an apartment directly below and to the left of Mr Carter's. When Mr Napper saw Mr Carter, he began speaking in hushed tones and promptly ended the conversation. Mr Carter inferred that Mr Napper was talking about him in negative terms.
Mr Carter felt that he could no longer relax or live at the Oxford Lane complex, so he moved out on 19 June 2021. He said he had been associated with the Oxford Lane complex for 20 years but decided to move out for his own sanity and to get away from the constant abuse.
Mr Carter stated he never received an apology from Mr Napper.
Mr Carter gave evidence that on two occasions he had observed Mr Napper avoid service of documents in these proceedings.
Mr Carter described the emails which are Exhibit 6 as an attempt by Mr Napper to get at him through third parties by making complaints about the Oxford Lane complex to the strata manager. He identified the photographs in Exhibit 6 as photographs he sent in response to Mr Marando's complaint.

Hendry PRASETYO

Mr Prasetyo is 33 years old and married to Mr Carter. Together, they run the businesses described by Mr Carter in his evidence. Mr Prasetyo gave evidence that he and Mr Carter also have four investment properties which they personally manage, which forms their fourth business.
On 19 July 2020, Mr Prasetyo was conducting a photoshoot for his clothing business at the Oxford Lane complex. The model noticed that Mr Napper appeared to be filming them. Mr Prasetyo confronted Mr Napper. Mr Napper then shouted at Mr Prasetyo, the photographer and model saying that what they were doing was illegal. Mr Prasetyo said 'No what are you talking about? We've done this so many times'. Mr Napper responded 'No, you live with paedophile'. Mr Prasetyo gave evidence he then said 'Sorry can you say it again? Are you serious? I'm married to him. I'm over 30'. Mr Prasetyo gave evidence Mr Napper said words to this effect three times, using the term 'paedophile' each time. This is the Second Matter Complained Of.
Mr Prasetyo gave evidence that when the exchange occurred, Mr Napper was in close proximity to him and the photographer. Mr Napper continued to film the three of them. Mr Prasetyo said he then rang Mr Carter straight away, told him what happened and asked him to come back.
Mr Prasetyo described the defamatory comments as having a big impact on Mr Carter. He described Mr Carter talking to himself and whatever they did in the Oxford Lane complex, such as cleaning, as becoming awkward.
Mr Prasetyo said that Mr Carter has struggled to sleep and has been noticeably distressed since the Matters Complained Of have arisen. He described an incident when they were cleaning at the Oxford Lane complex which became awkward because a resident of apartment 12 told his teenage boy to come to him when they saw them cleaning.
Mr Prasetyo described how he and Mr Carter tried to avoid Mr Napper. He would see Mr Napper pointing, staring or filming him. He said ultimately there was too much visibility so he and Mr Carter moved out of the Oxford Lane complex.

Fui Fong (Cindy) BOSVELD

Fui Bosveld gave evidence that she works as a part-time photographer on weekends. She took photographs at the Oxford Lane complex on 19 July 2020. Ms Bosveld was engaged by Mr Prasetyo and a person called Susan to take photographs. Exhibits 7 and 8 are photographs Ms Fui took. Susan is the model depicted in those photographs and the male is Mr Prasetyo.

Eleanor Claire LOGIUDICE

Eleanor Logiudice is the director of Logiudice Property Group Pty Ltd (LPG). LPG are real estate agents who specialise in strata management. LPG have 16 employees and manage approximately 200 strata complexes. LPG manage the Oxford Lane complex. Between 2017 and 2021, the Oxford Lane complex was managed by Teagan McGrath and then Elizabeth Craig as employees of LPG.
Ms Logiudice was provided with the email subject of the First Matter Complained Of from Ms McGrath as it extended beyond Ms McGrath's role as strata manager. The email would not have otherwise been circulated within LPG. Sean Pope was also copied into the email. Ms Logiudice understood Mr Pope was a person from the local council. Ms Logiudice stated Mr Napper frequently copied Mr Pope into emails relating to the Oxford Lane complex.
Ms Logiudice identified emails that had been sent by Joe Mirando in October and November 2021, an owner of an apartment in the Oxford Lane complex to Elizabeth Craig regarding the maintenance of the Oxford Lane complex.[7]
[7] Exhibit 6.

The matters complained of and the imputations submitted by Mr Carter

The First Matter Complained Of identified Mr Carter as the 'cleaner' for the Oxford Lane complex and uses his first name.
Mr Carter contends that the words of Mr Napper's email in the First Matter Complained Of in their natural and ordinary meaning would have been understood to mean that:
1.the plaintiff is a hypocrite;
2.the plaintiff poses a serious risk to children in the complex because he facilitates lewd activities being carried out in the common areas;
3.the plaintiff poses a serious risk to children in the complex because he engages in lewd activities in common areas;
4.the plaintiff is a paedophile; or alternatively,
(a)there are reasonable grounds to suspect that the plaintiff is a paedophile.
Mr Carter contends that the words of Mr Napper in the Second Matter Complained Of in their ordinary and natural meaning, meant and would have been understood to mean that Mr Carter is a paedophile.
Mr Carter submits that when the words were said by Mr Napper to Mr Prasetyo, others were present who would have heard what was said. On Mr Prasetyo's evidence, I am satisfied that Mr Prasetyo and others listening would have understood the comments made by Mr Napper were about Mr Carter.
The Third Matter Complained Of is on or about 20 July 2020 at or around 9.21 pm, Mr Napper sent an email to Teagan McGrath, containing the following:[8]
Hi Teagan,
Seems like my email is not important to you or your company which means i will have to contact your Ceo\ boss.
As i have wrote to you with the concerns, there was another photo shoot in the middle of the day Sunday with half naked women the gates are still not working and theres strangers coming and going from 47 or 42 not sure which one is Airb&b or both.
I will call the police the next time i see strangers in the complex and if you don't reply to this email and address these issues ASAP ill be contacting someone who will take action.
As a parent this is a BIG CONCERN to me and other parents in the complex.
Paul Napper
[8] Exhibit 5.

By reason of the prior publication of the First Matter Complained Of, Mr Carter contends that the Third Matter Complained Of would have been understood to mean that Mr Carter poses a serious risk to children in the complex because he facilitates lewd activities being carried out in common areas.
On or about mid-July 2020, Teagan McGrath republished the First and Third Matters Complained Of by forwarding those emails to Eleanor Logiudice.
Mr Carter submits Mr Napper is liable for the republications by reason of them being the natural and probable consequences of the initial publication of them by Mr Napper and were authorised and/or intended by him.
The Fourth Matter Complained Of is on or about 21 July 2020 at or around 6:41 pm, Mr Napper sent an email to Eleanor Logiudice, containing the following statements:[9]
Hi Eleanor,
Thank you for getting back to me however this has been going on for quite some time.
I do not believe that I've to be a home owner when theres children at risk, would you agree?
Regards,
Paul Napper
I would appreciate this to be addressed ASAP.
[9] Exhibit 5.
By reason of the prior publication of the First and Third Matter's Complained Of, Mr Carter contends that the Fourth Matter Complained Of would have been understood to mean that Mr Carter poses a serious risk to children in the complex because he facilitates lewd activities being carried out in the common areas.
In pars 17 - 19 of Mr Carter's statement of claim Mr Carter claims the following:
17.By reason of the publication and republication of the First, Second, Third and Fourth Matters Complained Of, the Plaintiff has been damaged in his person and professional reputation and has suffered considerable hurt, distress, anguish and embarrassment.
18.The Plaintiff claims damages having regard to the grapevine effect of the publication of the Matters Complained Of, or any of them, including to the extent the imputations have spread to other employees of Logiudice Property Group and/or any other tenants or owners of properties in the Complex.
19.The conduct of the Defendant in publishing the Matters Complained Of and since has been so improper, unjustifiable and lacking in bona fides that the Plaintiff is entitled to an award of aggravated damages.

The law

The common law applies in Western Australia in respect of the law of defamation, as modified by operation of the Defamation Act 2005 (WA).[10]
[10] Defamation Act s 6.
Mr Carter has the onus of establishing that Mr Napper published the Matters Complained Of and at least one person other than Mr Carter saw, read or heard the matter complained of comprising the so‑called bilateral nature of the publication. In Kenyon v Sabatino[11] Le Miere J put the position as follows:
As a general principle everyone who knowingly takes part in communicating defamatory material, in whatever degree, is a publisher and is therefore liable for defamation. Enquiry into the precise degree of involvement is unnecessary. However, practical guidance as to the operation of the principle can be usefully obtained from a consideration of circumstances in which a person has been held to be a publisher [19].
[11] Kenyon v Sabatino [2013] WASC 76.
Every communication of defamatory matter to someone other than Mr Carter is a separate publication. In certain circumstances the publisher of defamatory matter may be liable not only in respect of the original publication but also in respect of the republication of such matter by someone else.[12]
[12] Scott v Baring [2018] WASC 361 [16].
All defamatory imputations found to arise are presumed false and once publication, identification and defamatory meaning are established, then subject to any defences, the law presumes that damage to reputation has resulted.[13]
[13] Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225, 247, 250; Defamation Act s 7(2).
As Mr Napper did not enter an appearance or file any defence, Mr Napper is taken to have admitted the allegations of fact pleaded in the statement of claim. This includes the allegations of fact that the imputations bear the meanings pleaded, so long as those meanings are, as a matter of law, capable of arising from the publication.[14] In the statement of claim filed is the detailed particularisation as to Mr Carter's claim and defamatory matters complained of.
[14] See Trott v Rajoo [2020] WADC 144 [28] (Burrows DCJ) citing Phonographic Performance Ltd v Maitra [1998] 2 All ER 638, 643. See also the Rules of the Supreme Court 1971 (WA) O 20 r 14(1); Scott v Baring [18], Sanderson M; Embleton Motor Co Pty Ltd v St Kilda Beach Taxi School and Staffing Pty Ltd [2014] WASCA 183 [43] Newnes JA (Murphy JA & Edelman J agreeing); and Woolcott v Seeger [2010] WASC 19.
Mr Carter on 14 June 2021 issued Mr Napper with a Concerns Notice pursuant to the Defamation Act. Mr Napper did not make any offer to make amends to Mr Carter - nor an apology to him.
Whether words which are complained of are capable of conveying a defamatory meaning is a question of law for the court, to be determined objectively.[15]
[15] Jones v Skelton [1964] NSWR 485, 491; cited in Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 221 ALR 186 [9].
The general test for whether a publication is defamatory is, whether a person's standing in the community, or the estimation in which people hold that person, has been lowered, or whether the imputation is likely to cause people to think the less of a plaintiff.[16] The question whether a person has been defamed is determined from the perspective of an audience composed of ordinary decent persons, being reasonable people of ordinary intelligence, experience and education who bring to the question their general knowledge and experience.[17]
[16] Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460 [36].
[17] Radio 2UE Sydney Pty Ltd v Chesterton [4] - [6], [39] - [40].
The meaning conveyed to the ordinary reasonable reader by a defamatory publication may be a matter of impression. It may not be possible to analyse to the last word all that goes to create that impression, but it is sufficient if Mr Carter establishes that it is more likely than not that such a meaning was conveyed, although there were other possibilities.[18]
[18] Gorton v Australian Broadcasting Commission (1973) 1 ACTR 6, 12 (Fox J).
The word 'Paedophile' is defined in The New Shorter Oxford Dictionary (vol 2, 1993 ed) 'as a person who exhibits paedophilia'. Paedophilia is 'a sexual desire directed towards children'.
If a person was to commit physical acts on children consistent with a sexual desire for them, they would be committing serious offences under the Criminal Code (WA).
I am satisfied the comments made by Mr Napper in all four Matters Complained Of are references to Mr Carter. I am satisfied on the evidence that Mr Napper published or said all four Matters Complained Of and each matter was read or heard by a third person.
Mr Carter relies on the prior publication of the First Matter Complained Of, as an extrinsic fact known to the recipients of the Third and Fourth Matters Complained Of. That is, the prior publication of the First Matter Complained Of is pleaded to have informed the meaning conveyed by the Third and Fourth Matters Complained Of. The imputations alleged to have been conveyed by the Third and Fourth Matters Complained Of are therefore 'true innuendo' meanings.[19] Mr Napper is liable in damages for the original defamatory publication and comment as well as the republication.
[19] John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 201 ALR 77; Hough v London Express Newspaper Ltd [1940] 2 KB 507, 513 - 514.
I am satisfied on the evidence that the imputations referred to in [41], [42], [44] and [49] have been made out by Mr Carter. The ordinary and natural meaning of the words published gives rise to these imputations. The emails the subject of the Third and Fourth Matters Complained Of build on each other and from the email the subject of the First Matter Complained Of. They suggest Mr Carter is a risk to children.
On the evidence of Mr Carter, Mr Prasetyo and Ms Logiudice, I am satisfied Mr Carter by reason of the four Matters Complained Of and the imputations arising has been damaged in his personal and professional reputation and has suffered considerable hurt, distress, anguish and embarrassment. Mr Carter is entitled to an award of damages.[20] Mr Napper is liable in damages for the original defamatory publications and comment, as well as the republications.
[20] Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327 [60].

The grapevine effect

The grapevine effect was described in Palmer Bruyn & Parker Pty Ltd v Parsons:[21]
The expression 'grapevine effect' has been used as a metaphor to help explain the basis on which general damages may be recovered in defamation actions; the idea sought to be conveyed by the metaphor was expressed by Lord Atkin in Ley Hamilton as follows:
'It is precisely because the 'real damage' cannot be ascertained and established that the damages are at large. It is impossible to track the scandal, to know what quarters the poison may reach: it is impossible to weigh at all closely the compensation which will recompense a man or a woman for the insult offered or the pain of a false accusation.'
The 'grapevine effect' may provide the means by which a court may conclude that a given result was 'natural and probable'. However, this will depend upon a variety of factors, such as the nature of the false statement and the circumstances in which it was published. The 'grapevine effect' does not operate in all cases so as to establish that any republication is the 'natural and probable' result of the original publication.
(citations omitted)
[21] Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; (2001) 208 CLR 388, 416 [88] ‑ [89] (Gummow J) citing Ley v Hamilton (1935) 153 LT 384, 386. See also Wilson v Bauer Media Pty Ltd [2017] VSC 521 [59].
The onus is on Mr Carter to establish that the grapevine effect operates in this case.[22] Mr Carter must prove that any republication is the natural and probable result by providing evidence.
[22] Palmer Bruyn & Parker Pty Ltd v Parsons [89].
The First, Third and Fourth Matters Complained Of all relate to emails sent to employees of Logiudice Property Group. The Second Matter Complained Of relates to a spoken conversation between Mr Napper and Mr Prasetyo. It is convenient to first deal with the Second Matter Complained Of with respect to the grapevine effect.
Mr Carter called Mr Prasetyo, who gave evidence that Mr Napper said the words 'No, you live with paedophile' and repeated this comment. Mr Prasetyo was in company with Ms Bosveld and a model called Susan. Ms Bosveld was called as a witness. She was not asked whether she heard the defamatory imputations the subject of the Second Matter Complained Of. The model called Susan was not called as a witness.
Mr Carter relies on the inference that Ms Bosveld and the model called Susan must have heard the imputations due to their physical proximity to Mr Prasetyo. There is no evidence to support a claim that the Second Matter Complained Of would have been republished as a natural and probable consequence. Therefore, the grapevine effect does not apply to this matter.
With respect to the remaining Matters Complained Of, evidence was adduced that the defamatory imputations were communicated to Ms McGrath, Ms Logiudice and Mr Pope. Ms Logiudice gave evidence that employees of her company do not tend to share emails of that nature around and that she does not know of any other person within her company that would be aware of the Matters Complained Of. Mr Pope was cc'd into the First Matter Complained Of. Ms Logiudice gave evidence that she understands that he works for the local council. Mr Pope was not called as a witness and there is no evidence that he republished the Matters Complained Of.
Mr Carter also relies upon emails which are part of Exhibit 5, submitting an inference can be drawn that multiple people have become aware of the defamatory publications in the emails the subject of the First, Third and Fourth Matters Complained Of. This is because it is submitted on this evidence it can be inferred others were forwarded copies of the emails or Mr Napper has repeated his defamatory comments to others, such as the police, Mr Mirando, Mr or Ms Wojciech and other occupants of the Oxford Lane complex who are parents and employees of the Logiudice Property Group. I am not satisfied there is a sufficient evidential basis to draw this inference and it is merely speculation.
The grapevine effect does not apply to the First, Third and Fourth Matters Complained Of.

Damages

In determining the quantum of damages to be awarded, the court is to ensure there is an appropriate and rational relationship between the harm sustained by Mr Carter and the amount of damages awarded.[23]
[23] Defamation Act s 34.
In considering the amount of damages to be awarded to Mr Carter, I have taken into account the legal principles summarised by Le Miere J in Armstrong v McIntosh [No 4].[24]
[24] Armstrong v McIntosh [No 4] [2020] WASC 31 [225] - [233].
In John v MGN Ltd,[25] Sir Thomas Bingham MR said:
In assessing the appropriate damages for injury to reputation the most important factor is the gravity of the libel; the more closely it [the publication] touches the plaintiff's personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be (607 - 608).
[25] John v MGN Ltd [1997] QB 586, 607 - 608.
Damages in defamation are awarded for three separate purposes. First, consolation for personal distress and hurt caused by the publication. Second, reparation of the harm done. Third, vindication for the harm done to reputation.[26] In awarding damages, the court is to disregard malice or any other state of mind of Mr Napper at the time of publication or at any other time unless the malice or other state of mind affected the harm sustained by Mr Carter.[27]
[26] Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, 589.
[27] Defamation Act, s 36.
In considering the amount of damages to be awarded to Mr Carter, I have taken into account comparable cases.[28] The plaintiff's counsel provided a memo summarising three of these cases. In considering these cases I have taken into account the principles referred to by Le Miere J in Armstrong v McIntosh [No 4].[29]
[28] See Trott v Rajoo; Rothe v Scott (No 4) [2016] NSWDC 160; RJ v JC [2008] NSWDC 217; Grattan v Porter [2016] QDC 202; Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674; Mickle v Farley [2013] NSWDC 295; North Coast Childrens' Home Inc t/as Child & Adolescent Specialist Programs & Accommodation (CASPA) v Martin [2014] NSWDC 125; Atholwood v Barrett [2004] QDC 505; Nowak v Putland [2011] QDC 259;
[29] Armstrong v McIntosh [No 4].[234] - [235].
This is a case where the scope of publication is small. Unlike some of the authorities I have considered, the defamatory statements were not posted on social media or the internet in a way which the general public may have access to them. This is a further reason why I am not satisfied the grapevine effect applied.
The defamatory publications and comments were made over a relatively short period of time, approximately three weeks.
The imputations are serious, Mr Carter's good reputation is of paramount importance considering the professional and business environment in which he works, and the hurt to Mr Carter's feelings is profound. The defamatory comments about Mr Carter being a paedophile were made directly by Mr Napper to Mr Carter's spouse.
The imputation that a person is a paedophile is one of the most serious defamations a person can publish about another.[30] An imputation of this nature will do serious damage to personal and professional reputation.
[30] Grattan v Porter [77] citing Bertwistle v Conquest [2015] QDC 133 [6].
On the evidence of Mr Carter and Mr Prasetyo, I am satisfied the defamatory comments and publications have caused Mr Carter significant distress.
The hurt to Mr Carter includes the loss of enjoyment of his home and in living and working at the Oxford Lane complex. I am satisfied that as a direct result of Mr Napper's publications, comments and behaviour, Mr Carter, with his husband moved out of the Oxford Lane complex.
I award damages to Mr Carter in the sum of $30,000.

Aggravated damages

Aggravated damages may also be awarded for defamation where the injury to Mr Carter has been exacerbated by Mr Napper's conduct.[31] Where an apology is requested, failure to make that apology may be an aggravating factor.[32]
[31] Carson v Fairfax Media Publications Pty Ltd, (598).
[32] Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652; (2015) 237 FCR 33 [446], [505]. See Armstrong [236] - [240].
The legal principles for an award of aggravated damages were summarised by Le Miere J in Armstrong.[33]
[33] Armstrong [236] ‑ [240].
Mr Carter claims the conduct of Mr Napper in publishing the matters complained of and since has been so improper, unjustifiable and lacking in bona fides, that Mr Carter is entitled to an award of aggravated damages.[34]
[34] Statement of claim, par 19.
Mr Carter provides the following particulars in his statement of claim at par 19 in support of his entitlement to aggravated damages:
A.The hurt suffered by the Plaintiff and the injury to the Plaintiff's feelings are exacerbated by the Plaintiff's knowledge that:
I.the Defendant published the Matters Complained Of knowing them to be false, for the purpose of causing damage to the Plaintiff, alternatively with reckless disregard for the damage which would be caused by those publications;
II.the Matters Complained Of were published with the intention to injure the Plaintiff in his employment as a cleaner at the Complex;
III.the imputations go to the Plaintiff's relationship with his Husband;
IV.the imputations hit the Plaintiff 'where he lives';
V.there was not any legitimate reason for the Defendant to publish the Matters Complained Of;
VI.since the publication of the Matters Complained Of the Defendant has conducted himself in an offensive and intimidatory manner toward the Plaintiff, including by:
A.intentionally causing mess at the Complex, by emptying his vacuum cleaner onto the front footpath instead of into a bin, discarding rubbish over his rear balcony instead of putting it in the bin, and repeatedly dropping eggs over his balcony which smash in the common carpark, and which the Plaintiff in the course of his employment is required to clean up; and
B.speaking in a derogatory manner about the Plaintiff to other tenants of in the complex; and
C.speaking loudly about the Plaintiff in derogatory terms when the Plaintiff is nearby and within earshot.
Mr Napper did not enter an appearance or file a defence in these proceedings. His participation was limited to two attendances at interlocutory proceedings as a self‑represented litigant.[35] Exhibit 4 is the transcript of the proceedings on 20 October 2021. Mr Napper described Mr Carter's action at that hearing as 'harassment', 'false accusations' and 'false allegations'.
[35] 20 October 2021 and 11 November 2021.
There has not been any significant engagement by Mr Napper in the judicial proceedings and Mr Napper has appeared to have acted in a way to avoid service of proceedings.
At no stage has Mr Napper apologised to Mr Carter. The lack of apology by Mr Napper has increased the injury caused to Mr Carter.
I am satisfied Mr Napper's conduct has exacerbated the injury suffered by Mr Carter. An award of aggravated damages is therefore appropriate.
On the evidence I have seen and heard, Mr Carter should be awarded $10,000 aggravated damages.

Injunction

Mr Carter seeks an injunction restraining Mr Napper from any further publications or comments about Mr Carter which are the same or similar to the imputations referred to in [41], [42], [44] and [49] above.

The orders Mr Carter seeks are in the following terms:
The Defendant be permanently restrained, by himself and by his servants or agents, from publishing or causing to be published of or concerning the Plaintiff any of the following allegations or allegations similar or to the effect that:
a.the Plaintiff is a hypocrite;
b.the Plaintiff poses a serious risk to children in the Oxford Lane apartment complex because he facilitates lewd activities being carried out in common areas there;
c.the Plaintiff poses a serious risk to children in the Oxford Lane apartment complex because he engages in lewd activities in common areas there;
d.the Plaintiff is a paedophile; and /or
e.there are reasonable grounds to suspect that the Plaintiff is a paedophile,
EXCEPT THAT, the Defendant will not breach this order if publications or communications are duly made to any court or tribunal, any legal representative acting on the Defendant's behalf or to any police officer or police body or authority.
The critical factor in determining whether to grant a final prohibitory injunction in aid of a claim for defamation should be an assessment of the existence and degree of any threat or risk of a repeat of the publication of the defamatory matter successfully sued on in the proceedings. Such an order should only be made where the court is satisfied that the order is reasonably necessary to address that threat or risk.[36]
[36] Carolan v Fairfax Media Publications Pty Ltd (No 7) [2017] NSWSC 351, [15]; Also Tavakoli v Imisides (No 4) [2019] NSWSC 717 [54] - [57].
Given Mr Napper's behaviour referred to in [14], [17], [18], [22], [24], [25], [27], [28], [29], [31], [56], [91] and [92], I am satisfied there is a risk factor present to Mr Carter. An injunction should be made permanently restraining Mr Napper. I make the orders Mr Carter seeks in [96].

Interest

Mr Carter seeks interest on the sum awarded from 15 July 2020 at the rate of 6% per annum pursuant to s 32 of the Supreme Court Act 1935 (WA) until judgment. I will hear from the parties as to Mr Carter's application for interest.

Costs

Section 40 of the Defamation Act set out the matters the court may have regard to in awarding costs.
Costs in defamation proceedings
(1)In awarding costs in defamation proceedings, the court may have regard to -
(a)the way in which the parties to the proceedings conducted their cases (including any misuse of a party's superior financial position to hinder the early resolution of the proceedings); and
(b)any other matters that the court considers relevant.
(2)Without limiting subsection (1), a court must (unless the interests of justice require otherwise) -
(a)if defamation proceedings are successfully brought by a plaintiff and costs in the proceedings are to be awarded to the plaintiff - order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the defendant unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff; or
(b)if defamation proceedings are unsuccessfully brought by a plaintiff and costs in the proceedings are to be awarded to the defendant - order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the plaintiff unreasonably failed to accept a settlement offer made by the defendant.
(3)In this section -
settlement offer means any offer to settle the proceedings made before the proceedings are determined, and includes an offer to make amends (whether made before or after the proceedings are commenced), that was a reasonable offer at the time it was made.
Mr Carter submits costs should be award on an indemnity basis.
Mr Napper has not made a settlement offer. I am satisfied his failure to do so was unreasonable as he was aware of the action and has chosen not to defend it.[37]
[37] Trott [102] - [103].
Mr Napper is ordered to pay Mr Carter's costs of and incidental to the proceedings, on an indemnity basis, to be assessed if not agreed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
RR
Associate to Judge Prior
17 MARCH 2022