Foley v Radford

[2008] NSWDC 167

CITATION:	Foley v Radford [2008] NSWDC 167
HEARING DATE(S):	7 - 9 April, 11 April and 14 April 2008
EX TEMPORE JUDGMENT DATE:	14 April 2008
JURISDICTION:	Civil
JUDGMENT OF:	Donovan QC DCJ
DECISION:	(1) Judgment for the plaintiff for the sum of $90,000 plus interest ($4,950) making a total of $94,950. (2) Defendant pay plaintiff's costs of the proceedings. (3) The defendant, his servants or agents be restrained from publishing or further publishing or permitting or causing to be published against the plaintiff the words appearing in the documents containing all the matters complained of and which are annexed to the plaintiff's statement of claim filed on 10 February 2004 in proceedings 636 of 2004 or any words to like effect.
CATCHWORDS:	TORT - defamation - publications include letters to Chief Magistrate and President of the Law Society - whether defence of absolute privilege available - justification - defence of justification struck out as hopeless - damages - aggravated compensatory damages - defendant consents to a continuing restraint against further publication of the matters or publications not dissimilar therefrom
LEGISLATION CITED:	Defamation Act 1974 (NSW), ss 7A, 17F, 17J and 46A Legal Aid Commission Act 1979 (NSW) Legal Profession Act 1987 (NSW), Pt 10 Legal Services Commission Act 1979 (NSW)
CASES CITED:	Austin v Mirror Newspapers Ltd [1986] AC 299 Bishop Zaia v Chibo [2005] NSWSC 917 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 Cassell & Co Ltd v Broome [1972] AC 1027 Crampton v Nugawela (1996) 41 NSWLR 176 McMullen v TCN Channel Nine Pty Ltd (2001) Aust Torts Reports 81-584 Rajski v Carson (1988) 15 NSWLR 84 Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 State of New South Wales v Riley (2003) 57 NSWLR 496 Sutcliffe v Pressdram Ltd (Private Eye/Yorkshire Ripper Defamation case) [1991] 1 QB 153
PARTIES:	Plaintiff: Michael David Foley Defendant: David Gregory Radford
FILE NUMBER(S):	636 of 2004
COUNSEL:	Plaintiff: In person Defendant: In person

JUDGMENT

1. HIS HONOUR: The plaintiff Michael David Foley has sued the defendant David Gregory Radford for certain defamatory written statements that the defendant made about him. They appear in three matters complained of. The first was sent to Ms PJ Staunton, Chief Magistrate, on 25 January 2002, in a letter of four pages. The second to Brook Burke of Bartercard Legal Services in a fax together with a copy of the letter to Ms PJ Staunton. The fax is dated 29 January 2002. The third is a letter of 18 September 2002 to Ms Kim Cull president of the Law Society of New South Wales. That is a letter of twenty-three pages, together with a bundle of attachments which are greater than a centimetre in thickness.

2. On 26 October 2006 Judge Gibson of this court gave judgment under s 7A of the Defamation Act about the imputations which arose and which were defamatory. Because of the length of the various matters complained of I am not going to set them out in detail in this judgment, rather, I will simply refer to the findings of her Honour about the imputations in the judgment. The imputations which her Honour found arose in relation to the first matter complained of are in paragraph 4(a) to (f) of the statement of claim.

3. They are as follows:

“(a) That the plaintiff abused the process of the courts.
(b) That the plaintiff was dishonest in his dealings with legal practitioners and unrepresented litigants.
(c) That the plaintiff was unfit to be an officer of the court.
(d) That the plaintiff lied to a judicial officer.
(e) That the plaintiff was deceitful.
(f) That the plaintiff conducted himself unethically in his practice of the law.”

4. Her Honour found that those imputations were defamatory of the plaintiff.

5. In relation to the second matter complained of her Honour found that imputations 7(a) to (e) arose. They are:

“(a) That the plaintiff unduly delayed and frustrated the efficient administration of justice.
(b) That the plaintiff lied to a judicial officer.
(c) That the plaintiff was dishonest in his dealings with legal practitioners and unrepresented litigants.
(d) That the plaintiff was a dishonest person generally.
(e) The plaintiff was not to be believed.”

6. Her Honour found that they were defamatory.

7. In relation to the third matter complained of her Honour found that imputations in paras 10(a) to (g) arose. They are:

“(a) The plaintiff was a liar.
(b) The plaintiff abused the process of the courts.
(c) The plaintiff was deceitful.
(d) That the plaintiff unduly delayed and frustrated the course of legal proceedings.
(e) That the plaintiff acted in a manner contrary to his duties and responsibilities as a legal practitioner.
(f) That the plaintiff was not a fit and proper person to be a legal practitioner.
(g) That the plaintiff conspired with his client to pervert the course of justice.”

8. When the matter came on before me last week there were documents in the form of two defences. After submissions from both parties I struck out the earlier of those documents. Essentially that disposed of any defence of truth or justification and any defence of qualified privilege. I then dealt with the second defence which was a long and rambling document. I did not strike it out but it seemed to me that arising from that document there may have been a defence in relation to the third matter complained of under ss 17F and 17J of the Defamation Act 1974 (NSW). I allowed that defence to proceed.

9. During the course of evidence, which I will come to in a moment, it also became clear that the information upon which the defendant claimed that there had been a defence of truth, was totally inadequate to establish any truth or justification. Section 17F provides:

“There is a defence of absolute privilege for a publication to or by the Legal Services Commission of New South Wales constituted under the Legal Services Commission Act 1979, an officer of that Commission or a committee established under that Act if the publication is made for the purpose of the execution or administration of that Act.”

10. Section 17J, for present purposes, reads:

“(1) There is a defence of absolute privilege:
(a) For a publication to or by any of the following:
(iv) The Law Society Council,
(v) a member of the Law Society Council as such a member,
(vi) a committee or sub-committee of the Law Society Council, or any member of a committee or sub-committee of the Law Society Council,
...
(viii) the Law Society,
(ix) the Legal Services Commission,
...
for the purpose of making or referral of a complaint, or the investigation, hearing or review of a complaint, under Pt 10 of the Legal Profession Act 1987.”

11. It is important to note the words in s 17F of the Act which read:

“If the publication is made for the purpose of the execution or administration of that Act.”

12. And the words in s 17J:

“for the purpose of making or referral of a complaint, or the investigation, hearing or review of a complaint, under Pt 10 of the Legal Profession Act 1987.”

13. In Rajski v Carson (1988) 15 NSWLR 84 the Court of Appeal dealt with the meaning of the words in s 17F that I have referred to. The Court of Appeal said that

“the defence of absolute privilege which applies, pursuant to s 17 F of the Defamation Act 1974, to the publication to an officer of the Legal Aid Commission “if the publication is made for the purpose of the execution or administration” of the Legal Aid Commission Act 1979, is available only where the clear and unassailable objective of the correspondent to the Commission is “the execution or administration” of that Act”.

14. The court further said where other purposes or objectives are shown to be arguable issues in fact the resolution of those issues must be left to be tried by a jury or by a judge alone. In this case this trial was proceeding by judge alone and I must now proceed to deal with the matter as a factual matter to be tried by me. At 95 the majority of the court gave their conclusions and said:

“In the present state of the evidence, if we had to determine the matter, we would be inclined to conclude that the “purpose” of the respondents in writing as they did was mixed. It might have involved all of the purposes or motives mentioned in these reasons. If one “purpose” only had to be chosen, we would be inclined to agree that the respondents have shown (the onus being upon them) that, in a general way, their purpose was the “execution or administration” of the Legal Aid Commission Act .”

15. The court went on to say that they were dealing with the matter at the level of whether it should be left to the jury and therefore they should not make any final decision. It is important for me to note however that where there is a mixed purpose I have to determine whether in that mixed purpose the general purpose or the purpose in a general way is the execution and administration of in this case the Legal Services Commission Act. I will come to that test later.

16. In order for me to determine the issues it is necessary to look at the background relationship between the plaintiff and the defendant. It would seem that the defendant, a man called Gregory Huxley, and a man Lawton, were defendants in defamation proceedings brought by one Sengos. Bush Bourke and Co solicitors represented the three men. At some time in or about July 1997 Huxley apparently terminated Bush Bourke and Co’s retainer. In about late September 1997 Huxley instructed the plaintiff to act for him in the Sengos defamation proceedings. At that time, as I understand it from the evidence, the defendant continued to instruct Bush Bourke and Co to act for him in the Sengos defamation proceedings. The defendant said in his evidence, which I will come to later, that Huxley said to him that he, Huxley, would pay the fees. On or about 27 January 2000 the plaintiff accepted instructions from Huxley to act on his behalf in a local court matter. Radford had issued a statement of liquidated claim against Huxley. Radford claimed that Huxley owed certain monies to him which were legal fees that Radford, the defendant, had undertaken to pay on Huxley’s behalf in the Sengos defamation matter. In evidence before me the Plaintiff said that Huxley denied any such arrangement to him.

17. The proceedings commenced at the Newtown Local Court but were later transferred to the Downing Centre Local Court and became 7969/2000. Not long after the commencement of the Radford local court matter against Huxley the plaintiff said that he began to receive letters from Mr Radford. He described them in certain terms but the terms of those letters were not before me and do not concern me. Mr Foley said that the proceedings between Radford and Huxley were set down on 10 October 2001 for directions and possibly subpoenas. Mr Radford challenges that, and I will come to his evidence later. Mr Foley said that he spoke to Huxley and told Huxley that he could not get to the court on 10 October and could someone else get there for him. Huxley then contacted a firm, Craddock Murray and Newman. This was a firm unknown to Mr Foley. Bernadette Power, apparently an employed solicitor at Craddock Murray and Newman appeared on 10 October. She arranged for a new date. Apparently there had been a date previously set of 26 October for hearing. When Ms Power turned up at the court she arranged for new date being 3 December. Mr Foley was advised by Ms Power of the new date 3 December and did not attend the court on the morning of 26 October. Mr Foley said that on 26 October he went to see clients at Paddington. He said that some time after twelve he was driving past the Downing Centre Local Court and he decided to check on the status of the matter and what its list position was. He said he arrived at the court at about 12.30. He said he found Mr Radford in the local court before Mr Lulham local court magistrate. Mr Foley said he told Mr Lulham what had occurred and Mr Lulham told Mr Foley to get a copy of the agent’s letter. Mr Foley did not have a copy of the agent’s letter with him. The agent’s letter quite clearly said that the matter had been stood over to 3 December. Mr Foley said that after Mr Lulham told him to get a copy of the letter he contacted Mr Huxley’s office. Mr Huxley’s office had a copy of the letter and they forwarded a copy of the letter by fax. He said he also made contact with Craddock Murray and Newman and got the phone number of Ms Powers. He telephoned her and asked her to come to court but she said she could not come that afternoon as she had other engagements. He rang her again later and asked her to come and she said that she would try. The proceedings resumed after two o'clock and Mr Foley said that he tendered the letter to the magistrate and showed a copy to Mr Radford. He said that Mr Lulham accepted the letter, made no comment, and adjourned the matter for further call-over on 10 December 2001 and awarded costs to Mr Radford of $390.

18. Essentially Mr Radford did not accept that the letter was genuine. He thought that there was something wrong that had taken place in the changing of the date. Mr Radford himself gave evidence and gave a great deal of detail about the relationship between himself and Mr Huxley and how he had helped Mr Huxley in many of Mr Huxley’s dealings. I need not deal with all of the evidence that Mr Radford gave. According to him Mr Huxley said that he would pay the costs of Craig Laughton and as to the other legal costs “they would split the rest”. Mr Radford said that Mr Huxley made many promises to pay the fees right up until the end of the Sengos defamation hearing. The Sengos defamation hearing ended in settlements against of the various defendants at different times. The last settlement as I understand it being against Mr Huxley.

19. Mr Radford said that he commenced the case against Mr Huxley in the Newtown local court on about 6 January 2000. He said that he went to the court next on 15 February 2000 and asked if a defence had been filed. He said there was no note of any defence being filed but there was a note that Mr Huxley had rung the court to ask if it was legal to serve a statement of claim by post. Mr Radford obtained a default judgment against Mr Huxley in default of the defence. He also obtained an execution and seizure order ex parte. On 27 April 2000 however a motion to set aside the default judgment was served on him. The next step was in July 2000 when the motion for setting aside the default judgment was transferred to the Downing Centre court. Mr Foley was appearing for Mr Huxley and served the request for particulars. The matter apparently dragged on, and in July 2002 Mr Foley and Mr Radford attended the Registrar’s court at court 5.9 in the Downing Centre local court and there was a timetable arranged with dates for exchange of statements and subpoenas. Mr Radford said at that time the hearing was set down for 26 July at 9.30am.

20. Mr Radford said that on 5 October he checked with the registry to see if there were any subpoenae outstanding. He said that on 26 October at 9.30 he attended court, believing that the case was to be heard on that day. He waited half an hour. He then went before Mr Lulham. Mr Lulham asked if he, Mr Radford, had a statement of payments for the claim. Mr Radford said that he had a part statement and Mr Lulham told him to come back at 12.45 with the statements and he, Mr Lulham, would deal with it then.

21. Mr Radford said that he got back at 12.45pm on 26 October and saw Mr Foley. He said that Mr Foley was telling Mr Lulham that the hearing date had changed to 3 December. Mr Lulham said that he would adjourn the matter until 2pm and he would check whether there was a change of date recorded on the court computer. At 2pm Mr Lulham returned and said there was no record of any change of the date and no record of any attendance for the subpoena on 10 October. Mr Lulham said he would set it down for callover on 3 December and he granted Mr Radford costs of $360.

22. Mr Radford said that the following week he went to see the Chamber Magistrate to enquire about the procedure to allow dates to be changed. He said the Chamber Magistrate told him it was not possible to change dates in the way that Mr Radford understood had taken place. The chamber Magistrate said he would arrange for the Local Court Rules to be sent to Mr Radford and if Mr Radford felt that a process had taken place to avoid a hearing then he should report it to the Chief Magistrate.

23. Mr Radford said that he was aware that Huxley owed a lot of money to different people and he said that he knew of debts of some $30 million owed by Huxley and his companies. Mr Radford said that he read the practice note in the Local Court for the change of date and this led him to make his comments about the process to the Chief Magistrate and in the letter, which is the first matter complained of, he said the Chief Magistrate directed him to send the complaint to the Law Society.

24. Mr Radford said that he subpoenaed records from Bartercard, and an officer from Bartercard subsequently contacted him about a debt owed by ICA Special Projects Pty Limited, a company of which Huxley was a director, and was also a guarantor of the debt. Mr Radford said that he spoke to Brooke Burke at Bartercard and Mr Burke said to send him any information he had about what was happening in relation to Mr Huxley’s debt. He said that so far as Bernadette Power was concerned, he faxed Mr Foley for a copy of the agent’s letter, because he did not have the name of the agent. He said that he asked for it five times. He said that when he got the copy he tried to contact Ms Power but she had left Craddock, Murray and Newman and gone back to Adelaide so he could not contact her, but he did speak to the Law Society in Adelaide to ascertain her whereabouts. He said Huxley subsequently declared himself bankrupt and the matter has sat in court ever since. Subsequently he himself was sent bankrupt.

25. He said that he sent the letter to the Law Society, which is the third matter complained of, and the Law Society rang him and told him to collect it and take it to the Legal Services Commission. He said that he went and collected the letter and he said that at the time it was still sealed. I find this difficult to understand because the Law Society would have had to have opened the letter in order to determine where it should be delivered. Mr Radford was not sure about his memory on this point, and I have concluded that the letter was in fact opened by the Law Society before he was directed to collect it and take it to the Legal Services Commission. In any event, it having been taken to the Legal Services Commissioner, the Legal Services Commissioner referred it back to the Law Society so it was read by the President of the Law Society, to whom it was addressed in the first place.

26. It will be recalled the letter to the Law Society was 18 September 2002 and there is a received stamp on the letter, dated 18 September 2002 which also suggests to me that the letter must have been opened by the Law Society on that same day. Mr Radford said that Mr Foley subsequently received notice of the matter, and there seems to be no dispute about that, although the date may be a little uncertain. He said that at the end of 2002 and beginning of 2003 Mr Foley attended the North Sydney Local Court and lodged three private prosecutions against him, Mr Radford. He said that on 21 January police attended his premises at midnight with a warrant for his arrest, and a return date for 19 February 2002 in relation to those three criminal prosecutions. He gave considerable evidence about the criminal prosecutions and said that in his view these were brought forward in order to avoid Mr Foley having to deal with the Law Society complaint. Mr Foley subsequently seems to have dealt with the Law Society complaint in great detail.

27. Mr Radford said that he engaged a solicitor, Mr Wakefield, to do a submission to the Director of Public Prosecutions to take over the three private prosecutions and he, Mr Radford, attended court on seventeen occasions.

28. Mr Radford said that so far as the private prosecutions were concerned they commenced at a time when Mr Foley was in default of the complaint procedure. The Law Society and Mr Foley in his view chose that method, that is, the private prosecutions, as a priority to block the complaint procedure in the Law Society which he said Mr Foley successfully did. However, as I understand the evidence, the matter before the Law Society did proceed, at least to an investigation and Mr Foley did provide the information required.

29. Mr Radford said that part of the matter that he relied upon in relation to the second matter complained of, which was the publication to Bartercard Legal Services, was a letter which had been sent to Bartercard Legal Services. The letter was on what appeared to be a letterhead of Mr Foley. Mr Foley gave evidence that it was not his letterhead and Mr Radford ultimately in this court accepted that that was the case. It would appear that Mr Huxley, using fabricated but similar letterhead to the letterhead of Mr Foley, sent a letterhead to Bartercard concerning certain matters which caused Mr Radford to have certain suspicions and come to certain conclusions. He said that he accepted Mr Foley’s explanation that Mr Huxley had sent the letter and that it was not Mr Foley who sent it and it was not Mr Foley’s letter. I asked him at this time, before cross-examination, about the information or material he had which he thought might establish the truth of the imputations, which I have set about above. He said that it was based on the Huxley letter and the change of date of 26 October 2002.

30. Mr Radford in cross-examination was cross-examined about a number of things, in particular about the third matter complained of. He was asked about his purpose or motive in publishing the third matter complained of and he ultimately agreed that his intent was to have Mr Foley punished. And, further, his intent was, in part, to get compensation for the debt which he had had to pay. This is set out in the third matter complained of at page 22 where Mr Radford set out that the original debt was $40,000. There is an outstanding costs order of $6,000, interest of $10,142.46 and further costs of $11,790, a total of $61,916, which he wanted to get from Mr Michael Foley or from his insurer. He also said:

“I would also appreciate your advice as to how I might go about making a claim through the Law Society or LawCover, if applicable, or s 52(1) of the Trade Practices Act , to seek compensation for the injustices perpetrated against me by Michael Foley.”

31. Mr Foley during the course of his case alleged that Mr Radford had published one or other of the matters complained of to persons other than those nominated in the documents themselves. He cross-examined Mr Radford about this. During the course of that cross-examination it became apparent that Mr Radford did provide a copy of the third matter complained of to his counsel, Mr Justin Conomy, who was counsel for him in certain legal proceedings. He also provided a letter of 17 August 2006 to Mr Geoffrey David McDonald, Mr Radford’s trustee in bankruptcy. He did not provide a copy of the matter complained of in that letter but, rather, sent a letter to Mr McDonald in which he repeated a number of matters which were in one or other of the three matters complained of. And to that extent I find that there was further publication by Mr Radford. However, I do not find that there was the general republication to the extent that Mr Foley alleged, although I accept that Mr Foley may well have believed that there was a much greater general publication.

32. During the course of submissions today I raised with Mr Radford his position in view of the absence of any adequate evidence of truth in the defence of justification which he had originally filed. In consequence of my discussion with him he withdrew all the imputations and he apologised to Mr Foley for each and every of the imputations which he had published. On the first day of the hearing when Mr Foley sought a further order that there be an injunction to prohibit Mr Radford from further publication, Mr Radford agreed immediately to that order when the matter was raised in court. As I said before, on the first day of the proceedings I struck out much of the defences that Mr Radford had put forward. In view of the evidence which I subsequently invited him to give, in case there was any substance in any of the defences, I have come to the conclusion that there was simply no basis for a plea of justification or for a claim of any truth in the matters complained of. Further, I have come to the conclusion that the plea under ss 17F and 17J was available to the defendant but I now have to decide whether that in fact applies. I have already pointed out that Mr Radford had other matters in his mind as part of his motive or purpose when he sought to have the Law Society examine the matter.

33. The other matter which I have to look at in determining whether s 17F or 17J have been complied with is the third matter complained of itself. It will be recalled that s 17F requires that, “The publication be made for the purpose of the execution or administration of that Act”. And s 17J requires that, “The publication be for the purpose of making or referral of a complaint under Pt 10 of the Legal Profession Act 1987”. In determining what the purpose was in accordance with my conclusions about Rajski v Carson above, I need to look at the tone of the letter which is the third matter complained of. I have to say it is very extreme at times and it becomes more extreme and indeed offensive as the letter progresses. For example, at page 21 Mr Radford wrote this:

“In the meantime, a charge of attempting to obstruct, prevent, pervert or defeat the course of justice instigated by the Law Society would serve to temper this type of criminal behaviour and place other unscrupulous practitioners on notice.”

34. I do not think that that passage is for the purpose of making a complaint under Pt 10 of the Legal Profession Act 1987. Rather, the purpose of that is to have the Law Society instigate criminal proceedings. Again at page 20 at point 3:

“Again, as a layperson, I would appreciate an explanation as to how an officer of the court can deliberately mislead a magistrate by committing such deceitful and premeditated acts without any apparent fear of consequences.”

35. And again further down the page:

“At the very least, I expect your office to determine the origin, and purpose, of the letter that Foley used in his attempt to deceive Magistrate Lulham. If that letter is proven to be fabricated I insist that you come down on Foley (and on Craddock Murray Newman, if necessary) with the full force available to your organisation.”

36. Further, at the bottom of page 20 Mr Radford wrote:

“From day one of this debacle the defendant and his solicitor (Mr Foley) have set out deliberately to pervert the course of justice in terms of s 319 of Crimes Act No 40. If it is necessary for me to seek the permission of the Right Honourable Robert Debus, Attorney General for the State of New South Wales, to have Michael Foley charged under this section I will do so.”

37. At page 14 Mr Radford wrote:

“In spite of the fact that he had successfully obstructed, prevented, perverted or defeated the course of justice by deceiving a magistrate with outright lies supported by a knowingly deceptive document.”

38. Similar words appear at page 13. On page 12 he said that the trust of the officer of the court, Mr Foley, “Was completely and deliberately betrayed.” At page 10 he wrote:

“Is this how solicitors work when they know they are up against an adversary with limited funds? Just stall, stall, stall until their adversaries run out of money and their clients get off scott free? And is the court compelled to assist its officers to deny aggrieved parties natural justice? Or this is the mark of a shyster who:
-is completely cognoscente of his client’s nefarious scams to fleece creditors?
-will accept higher than usual fee, believed to be approximately $500 per hour, to assist in the success of his client’s scams?
-will also assist his client to conceal assets purchased with creditors’ money and conceal those assets in a series of trusts set up to make it impossible for any debts to be recovered?”

39. Looking at the totality of the letter, the letter does not focus specifically on any default by Mr Foley but, rather, sets out in long rambling repetitive detail the concerns that Mr Radford had about Mr Huxley and Mr Huxley’s dealings and Mr Foley’s association with them and the alleged actions that I have mentioned above. Applying the test in Rajski v Carson I have come to the conclusion that in relation to s 17F the publication was not made for the purpose of the execution or administration of the Act and in relation to s 17J the publication being the third matter complained of was not made for the purpose of making or referral of a complaint under Pt 10 of the Legal Profession Act 1987. I appreciate that that may have been part of the purpose but looking at the general overall tenor of the document together with the admissions made by the defendant in cross-examination, it seems to me that the third matter complained of does not fall within the protection of either s 17F or 17J of the Defamation Act.

40. That leads me to the following conclusions. In relation to the first and second matter complained of no defence has been made out. In relation to the third matter complained of no defence has been made out. I therefore conclude that the defendant has made out no defence to any of the matters complained of and I will propose to proceed to the issue of damages.

41. Gentlemen, I see the time. Rather than start damages now and then adjourn I’ll start them at 2 o'clock. Before I do that is there anything that you want to correct?

42. PLAINTIFF: Your Honour, without altering what your Honour said, just on one small point you did say originally the costs awarded were 390 and then later you said 360.

43. HIS HONOUR: I know, because that’s what was said first time 390, you were giving evidence, Mr Radford butted in and said 390, when he came to give his own evidence he said 360 and that’s what I’m relying upon.

44. PLAINTIFF: Thank you, your Honour.

45. DEFENDANT: There are just a couple of date errors but I’ll wait until the transcript comes out.

46. PLAINTIFF: Tell his Honour now.

47. HIS HONOUR: Sorry, Mr Foley?

48. PLAINTIFF: I’m just saying he should tell your Honour now.

49. HIS HONOUR: Yes, I’ll tell him that, not you. Mr Radford, the transcript doesn’t come through until after I’ve corrected it. So if there are some date errors do you want to give them to me now and I will incorporate them when the transcript does come through?

50. DEFENDANT: You mentioned a date for the hearing when you went from 26 July in 5.9. You said the timetable was arranged with the hearing of 26 July 2001, it should have been 26 October 2001.

51. HIS HONOUR: 26 October 2001.

52. DEFENDANT: Further down you said there was a call over set down by Magistrate Lulham for 3 December, it should have been 10 December.

53. HIS HONOUR: Anything else? I’m grateful for that, I’ll correct those.

54. DEFENDANT: Not at this stage, your Honour.

55. HIS HONOUR: When you say not at this stage, this is the stage, Mr Radford, it’s now or never. You can do it at 2 o'clock if you like.

56. DEFENDANT: Yes, I might, I’ll go back through.

[LUNCHEON ADJOURNMENT]

57. HIS HONOUR: The plaintiff gave evidence that he is a solicitor who was admitted in 1978, he is aged fifty-four, he went to school at St Cannes’s Elizabeth Bay then to St Mary’s Cathedral School and St Patricks at Goulburn. He went to Sydney University where, after trying a number of other courses, he finally decided to do law which he commenced in 1973 and he graduated in 1977. He said the law was the whole of his life. He said he jealously guarded his reputation. He said he had been thirty years in practice and he had always tried to do the right thing and he put his duty to the client always in front of his own interest.

58. He called evidence from other witnesses, Michael Lawler, Vice President of the Australian Industrial Relations Commission, Norman Sakr, a project manager in construction, Kevin Foley, a solicitor, who is his cousin, William Hundy, a Company Secretary and solicitor, Warner Meredith who is also a solicitor, all of these witnesses testified to his highly esteemed reputation. They all had various professional and personal dealings with him. They observed his conduct and had a high opinion of his character and reputation, and in their conversation with others they found that he had a very high reputation and that he deserved his character and reputation. He also was involved in the school where his children went, where he was both a Rugby Union Coach very successfully and a Cricket Coach also very successfully between 1995 and 2005. He is a man who I accept has and had a high reputation and deserves every part of it.

59. The plaintiff said that on 10 November 2002 he received a further letter from the Professional Standards Department of the Law Society enclosing a copy of Mr Radford’s letter dated 6 November 2002. He said on 10 January 2003 he delivered his reply to the letters that he had received from the Law Society. He said that on 7 March 2003, he began to feel unwell. By 18 March 2003 he was fighting what he believed was a viral infection and he saw a doctor on 21 March 2003 when he could barely get out of bed. On 22 March 2003 he was admitted to the Royal North Shore Hospital suffering from a bacterial infection of the blood, known as endocarditis. On 23 March 2003 he was gravely ill and received the last rites of the Roman Catholic Church from the hospital chaplain. For about three weeks he had a central line that passed through his carotid vein into his heart. He was connected to an infusion pump through which he received what he said were massive doses of antibiotics and he was discharged from hospital on 11 April 2003. He then undertook a period of time of some two weeks rest and recuperation while he was still on oral antibiotics for another four weeks and he had to undergo a number of tests including an MRI test of his arteries. He said that he himself blamed, to a large extent, the stress, anxiety and sleepless nights and his failure to have any Christmas break as a result of the wrongful allegations being made against him by Mr Radford. There is no medical evidence to support this, but there is a coincidence of time and to a degree I will reflect what I see is some connection but not necessarily a total connection.

60. In February 2006 the plaintiff’s health further deteriorated when he apparently had concerns about his heart. He saw a specialist in October and was due for surgery on 12 December 2006. Procedures showed that he had an infection and the operation was delayed until 7 February 2007 when he had open-heart surgery. He left hospital on 21 February 2007 and in late February 2007 he collapsed and was taken to Hornsby Hospital for a couple of days. In March 2007 he suffered from another infection and again was hospitalised at Royal North Shore Hospital for four days.

61. He said that he believed himself that the defendant had undertaken a calculated campaign to cause damage to the plaintiff in the practice of his profession and that publications were made in contumelies disregard of his right to a good reputation. He said he thought the principal motive was to get money either from the plaintiff himself or from LawCover. He said that he thought the defendant lacked an honest belief in the truth of the matter and I myself on the evidence, have concluded that the defendant did not have a proper basis for believing any truth in the matters. He said that as a result of the defendant’s actions, he suffered injury to his proper feelings of dignity and pride. He suffered from anger and anxiety due to his inability to protect himself, his personal and professional reputation from actions of the defendant in publishing the matters complained of. He said that he thought that the defendant acted in disregard of the truth in publishing the matters complained of and in his dealings with the plaintiff. He said that he suffered loss of enjoyment of life given the excessive worry about being involved with the Law Society and Legal Services Commission and the prosecution of these present defamation proceedings. He said he suffered anger, anxiety, irritability, headaches, stress, impaired health, loss of fitness, inability to sleep, embarrassment and inadequacy, loss of dignity, inability to concentrate due to the defendant’s activities and over Christmas 2002 he had no holidays but he had to spend all the time answering the accusations.

62. He then spoke of the period in hospital in 2003 and again from 12 December 2006 to 15 December 2006 and from 6 February 2007 to 21 February 2007 when he had open-heart surgery. He said he was incapacitated for several months after recovering from the open-heart surgery. He said as a sole practitioner he was unable to earn income for various periods and he estimated his gross loss net of GST was four thousand dollars per week for sixteen weeks, being a total of sixty-four thousand dollars.

63. He is a married man who has six children, he said he had worked hard, the children are aged fifteen to twenty-five years. He spoke about coaching the school Rugby Union Team and the Cricket Team and he said this was illustrative of many of the community things which he was involved in. He suffered rage, anger and ill health as a result of what had occurred and he had attempted to protect himself and his family.

64. The damages are inappropriate to restore a damaged reputation, but they are awarded to compensate for damaged reputation, to console the plaintiff, to provide official recognition that the imputation made was defamatory, and was indefensible. This latter purpose is often referred to as vindicating the plaintiff’s reputation. The plaintiff submitted that the size of the verdict was important in determining the extent of the vindication and understandably, he was seeking a sizeable verdict, substantial verdict, in order to show substantial vindication.

65. The plaintiff submitted that the publications were part of an orchestrated and determined and relentless plan to injure and hurt the plaintiff in his practice of his profession as a solicitor. Because it was only limited further publication by the defendant, I am not able to accept that submission in its entirety, although I do certainly consider that there was at least in 2002, a relentless plan to injure and hurt the plaintiff in his practice of his profession as a solicitor and I rely in particular upon the language which I have already referred to above. The whole of the material published in all three matters complained of is very condemnatory of the plaintiff. The language is highly rhetorical and consists of a series of false accusations accusing the plaintiff of disgraceful, corrupt and criminal conduct. Indeed, it is hard to think of any further descriptions of any solicitor which could be worse for his professional reputation.

66. The plaintiff submitted that there were numerous significant and substantial factual errors. That is certainly true as is witnessed by the fact that there simply was no truth in the matters which were alleged. The plaintiff said that the defendant should have had regard for the general principle that in attempting to defend his defamatory actions “the harder hitting the comment, the greater should be the care to establish the truth of the facts upon which it is based”: Austin v Mirror Newspapers Ltd [1986] AC 299 at 317.

67. The plaintiff submits that he was powerfully affected by publication of each of the matters complained of and that the anguish that he suffered and the hurt to his feelings was of the most extreme kind. He gave evidence about this and I accept his evidence on that point. He said he jealously regarded his good reputation as a solicitor which he had practised mostly as a sole-practitioner for most of his adult life. I also accept that submission on the evidence which he has given.

68. The plaintiff said that he suffered from feelings of inadequacy due to his inability to prevent the plaintiff from continuing to conduct his relentless campaign of personal vilification and defamation of the plaintiff. As I said on the evidence before me, there is not sufficient evidence for me to find that such activities did occur, but I do accept that the plaintiff thought they were occurring . The plaintiff said that the issue of falsity was important because the plaintiff claimed in addition to general damages, that his hurt to feelings was greatly aggravated by reason of the knowledge of the falsity of the imputations. I accept that submission. The plaintiff also claims aggravated compensatory damages and said that the general effect of all the imputations complained of did not fully take into account the extent of the aggravation caused by the repetition of these allegations concerning the plaintiff over a long period. As I say there were only two repetitions on the evidence before me and I do not think that that leads to any significant aggravation over and above the initial aggravation and distress from the initial aggravation.

69. The plaintiff submitted that when I consider aggravated compensatory damages, great care must be taken to avoid double counting for the reasons explained by Hodgson JA in State of New South Wales v Riley (2003) 57 NSWLR 496 at [131]. In this case I think that there is additional leave for aggravated compensation because the defendant persisted in his plea of truth and in particular, did not withdraw the imputations and apologise until today. The plaintiff was left to deal with this situation over a number of years.

70. The plaintiff submits that where there is serious misconduct by the defendant, as I think there is in this case, a court should be careful to avoid the risk of under-compensating a plaintiff and what a court should do is aim at the upper limit of the wide range of damages which might conceivably be appropriate for the publication and he pointed to the English cases in particular Cassell & Co Ltd v Broome [1972] AC 1027 at 1085. He said that if I followed that approach then when ordinary compensatory damages were awarded, the award of aggravated damages is justified by bringing the damages to the top end of the range. I do not accept that submission in that form but I will certainly take into account the totality of the suffering which the plaintiff has undergone and award aggravated compensatory damages.

71. The plaintiff said that aggravated damages are awarded when conduct of a defendant, whether or not it takes the form of another libel “rubs salt in the wounds”: Sutcliffe v Pressdram Ltd (Private Eye/Yorkshire Ripper Defamation case) [1991] 1 QB 153 at 170D per Lord Donaldson. The plaintiff also referred me to Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 106 per McHugh J. While it cannot be said there is no element of punishment in the assessment of aggravated compensatory damages, it is still appropriate for a court to award damages on the basis the defendant has contumelious disregard for the wrongfulness of his actions. In this case I think the defendant has had contumelious disregard for the wrongfulness of his actions by pursuing the defence of justification and the claim of truth for all of the imputations, when in my view, there was simply no foundation at all for doing so.

72. The plaintiff has referred me to s 46A of the Defamation Act which provides that when awarding damages, it is for the court to ensure there is an appropriate and rational relationship between the relevant harm and the amount of damages awarded and that when considering general damages in any claim for aggravated compensatory damages, the court is to take into account damages for non-economic loss in personal injury awards in this State including any awards made under statute regulating the award of any such damages by caps on the sum of damages and by further amending the check list to set out by Hayne J in Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at 327.

73. The defendant referred me to some recent cases, in particular McMullen v TCN Channel Nine Pty Ltd (2001) Aust Torts Reports 81-584, where Dunford J awarded one hundred and fifty thousand dollars to a plaintiff, his professional competency and responsibilities as a school teacher was the subject of an attack. He further referred me to Bishop Zaia v Chibo [2005] NSWSC 917 where the plaintiff was awarded one hundred and seventy-five thousand dollars for allegations concerning his conduct as a Bishop of the Assyrian Church. The plaintiff said that he was utterly devastated by the contents of the publications and the plaintiff said that the top end of the range of damages would have to be a figure approaching the limit of this court’s jurisdiction. Bearing in mind that this was a limited publication, albeit in very serious circumstances, I do not accept that submission.

74. The plaintiff further said that any award of less than something approaching the jurisdictional limit of the court would be to disregard not only the very serious nature of the libels but also its devastating impact on the plaintiff and his health and wellbeing as well as addressing the aggravating features of the series of defamatory defamations by reason of the plaintiff’s knowledge of the falsity of the imputations. He also referred to the constant continuing repetition which I have found was limited to the two matters referred to above. He referred me to Crampton v Nugawela (1996) 41 NSWLR 176 per Mahoney JA where his Honour said that the reputation of a professional person is not only a very important part of the person’s life, but often the whole of that person’s life.

75. I have concluded that for the first matter complained of, the matter written to the Chief Magistrate was quite limited and the appropriate amount of damages for that is ten thousand dollars ($10,000). I have concluded that the second matter complained of, the matter published at Barter Card was also very limited and the appropriate amount of damages is five thousand dollars ($5,000). I have concluded that the third matter complained of is much more serious but again, if publication is limited and I consider that the appropriate amount of damages for this publication is twenty-five thousand dollars ($25,000). I also consider that because of the continued maintenance of the plea of truth and justification, and because there was simply no basis on which the defendant could possibly have believed that the matters were true, that the plaintiff is entitled to aggravated compensatory damages of ten thousand dollars ($10,000).

76. I have examined the situation of special damages. In the absence of any medical evidence it is difficult for me to make definite conclusions about the connection between the defamatory publications and the physical suffering and injury and disability which the plaintiff suffered. However on balance I have concluded that there is some connection between the two but because of the uncertainty I have to discount that connection to a degree and for the special damages I am awarding forty thousand dollars ($40,000).

77. The total damages therefore are ninety thousand dollars ($90,000) plus interest.

78. HIS HONOUR: The interest Mr Foley is two percent on half the verdict from the date of publication. The date of publication is about two and one-half years ago now is it not, sorry 2002, four and one-half. It will be five and one-half years ago, so I will just do some calculations on that. I make that four thousand nine hundred and fifty ($4,950). I will just check that again. Yes I make that four thousand nine hundred and fifty ($4,950).

79. A total verdict of ninety-four thousand nine hundred and fifty dollars ($94,950).

80. In addition there will be a question of costs.

81. HIS HONOUR: Costs normally follow the event Mr Radford. In the ordinary course I would make an order that you pay the costs of the plaintiff. Of course I understand your financial situation in terms of the bankruptcy so that it may not matter greatly what I say about that but that is the ordinary order that I would make. Do you want to say anything against that? I do not think there is much you can say to be quite honest.

82. DEFENDANT: No there isn’t your Honour, it is a matter that has dragged on a long time and because of my circumstances it has been difficult for me to defend the matter.

83. HIS HONOUR: I understand that.

84. HIS HONOUR: Mr Foley, what do you want to say about it. I see somewhere you wanted an indemnity --

85. PLAINTIFF: Your Honour made comments about that yes.

86. HIS HONOUR: -- costs order. You wanted an indemnity costs order didn’t you?

87. PLAINTIFF: I did ask for it your Honour.

88. HIS HONOUR: Yes, what is the basis for it, is there an offer of compromise or something?

89. PLAINTIFF: No there was no offer of compromise.

90. HIS HONOUR: I think I need something to base such an order on. The order I will make is simply that the defendant is to pay the plaintiff’s costs of the proceedings.

91. PLAINTIFF: Does the question of the injunction—

92. HIS HONOUR: The injunction yes.

93. PLAINTIFF: And if I may also say there was just one mistake your Honour. I was admitted on 22 July 1977.

94. HIS HONOUR: Sorry, 22 July 1977.

95. PLAINTIFF: I went into my own practice on 28 September 1978.

96. HIS HONOUR: By the way let me just get this 360 or 390 cleared up. What was the costs order awarded to you?

97. DEFENDANT: 360 I think it was your Honour.

98. HIS HONOUR: I will correct that when it comes back because I noted in one part of the evidence you said it was 360 and in one part 390, so it is in fact 360.

99. DEFENDANT: I think I said 360 and Mr Foley said 390 but it was 360.

100. HIS HONOUR: All right, I will work on that. Are you happy with that Mr Foley?

101. PLAINTIFF: I am your Honour.

102. HIS HONOUR: Now where is the injunction. You saw the injunction did you not, you have no problem with that Mr Radford?

103. DEFENDANT: I would like to see it again if I could.

104. HIS HONOUR: Yes certainly.

105. DEFENDANT: There are a couple of other minor details that I might mention.

106. HIS HONOUR: Yes, yes most certainly.

107. DEFENDANT: After the date of 18 September 2002 for the report to the Law Society, you mentioned the date of receipt or you were about to mention a date of receipt by Mr Foley.

108. HIS HONOUR: Yes I took that out because I couldn’t find it.

109. DEFENDANT: It was 3 November.

110. HIS HONOUR: It doesn’t matter now, I haven’t put it in, I don’t have to correct it.

111. DEFENDANT: And you mentioned that the private criminal prosecutions commenced on 2 December, it was 2 January.

112. HIS HONOUR: I thought I said it was between those dates but anyway. The private prosecutions—

113. DEFENDANT: Were stamped in the North Sydney Court.

114. HIS HONOUR: --were lodged—

115. DEFENDANT: On 2 January.

116. HIS HONOUR: --on 2 January 2003. Yes anything else?

117. DEFENDANT: And police served it on me on the 25th not the 21st, I think you had said the 21st.

118. HIS HONOUR: I had noted that you said I was served with three private prosecutions on 24 January 2004, is that right?

119. DEFENDANT: Yes that is correct.

120. HIS HONOUR: 24 January 2004 I hope that is what I said.

121. DEFENDANT: 24 March.

122. HIS HONOUR: All right I’m sorry, that’s where I did get it wrong. Anything else?

123. DEFENDANT: No that is all your Honour.

124. HIS HONOUR: Do you want me to keep the exhibits Mr Foley or can I hand them back.

125. PLAINTIFF: The injunction your Honour but perhaps—

126. HIS HONOUR: The injunction, yes Mr Radford still has it down there.

127. PLAINTIFF: Perhaps you can make an order that they be kept for twenty-eight days and returned or return them now, whichever—

128. HIS HONOUR: I can return them now. Exhibits may be returned now.

129. PLAINTIFF: I will undertake to hold them.

130. HIS HONOUR: Mr Radford if you wanted to appeal you’ve got twenty-eight days, that’s why the exhibits will be kept by Mr Foley and looked after for that time. After that time they may well be destroyed, that’s often the case. Any problem with that Mr Radford?

131. DEFENDANT: No there isn’t.

132. HIS HONOUR: I make this further order. That the defendant, his servants and agents be restrained from publishing or further publishing or permitting or causing to be published against the plaintiff, the words appearing in the documents containing all the matters complained of and which are annexed to the plaintiff’s statement of claim filed on 10 February 2004 in these proceedings number 636 of 2004 or any words to like effect.

133. Mr Foley I will take out the words “until further order of the court”, there will not be a further order of the court.

134. I will direct that a transcript of that judgment be made available to the parties when revised.

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