France v Zimmermann
[2001] WASC 221
FRANCE & ANOR -v- ZIMMERMANN [2001] WASC 221
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 221 | |
| Case No: | CIV:1439/1997 | 18 JUNE 2001 | |
| Coram: | ANDERSON J | 22/08/01 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Claim allowed | ||
| C | |||
| PDF Version |
| Parties: | GEORGES FRANCE GEORGES FRANCE PHOTOGRAPHY PTY LTD (ACN 008 110 674) BRUNO KARL ZIMMERMANN |
Catchwords: | Defamation Joint action by two plaintiffs Damages Quantum Publication of two libels to one person No worthwhile apology or retraction Award of $10,000 |
Legislation: | Nil |
Case References: | Booth v Briscoe [1877] 2 QBD 496 McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : FRANCE & ANOR -v- ZIMMERMANN [2001] WASC 221 CORAM : ANDERSON J HEARD : 18 JUNE 2001 DELIVERED : 22 AUGUST 2001 FILE NO/S : CIV 1439 of 1997 BETWEEN : GEORGES FRANCE
- GEORGES FRANCE PHOTOGRAPHY PTY LTD (ACN 008 110 674)
Plaintiffs
AND
BRUNO KARL ZIMMERMANN
Defendant
Catchwords:
Defamation - Joint action by two plaintiffs - Damages - Quantum - Publication of two libels to one person - No worthwhile apology or retraction - Award of $10,000
Legislation:
Nil
Result:
Claim allowed
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Category: C
Representation:
Counsel:
Plaintiffs : Mr K J O'Toole
Defendant : Ms P M Edward & Mr A C McIntosh
Solicitors:
Plaintiffs : K J Toole & Associates
Defendant : Murie & Edward
Case(s) referred to in judgment(s):
Booth v Briscoe [1877] 2 QBD 496
Case(s) also cited:
McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1
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1 ANDERSON J: This is a defamation action in which the plaintiffs jointly sue to recover damages for two libels published by the defendant.
2 The background is that Mr Georges France was the head of a group of photographic companies, including the second plaintiff, Georges France Photography Pty Ltd. The group carried on photographic businesses throughout Australia and it had commercial arrangements with a company operating in Singapore named Peter Pan Studio Pte Ltd which was headed by Mr Donald Ee. The details of that business arrangement do not particularly matter, but as I understand the evidence, the Singapore company of Mr Ee and the Australian companies of Mr Georges France worked together to have photographic film developed and printed by companies headed by the defendant Mr Zimmermann. Mr France was a director of the Singapore company. That is, he and Mr Ee were co-directors of that company. In the first quarter of 1997, Mr France caused his companies to terminate their arrangements with the Zimmermann companies and there was ill-feeling between Mr Zimmermann and Mr France. Mr Ee did not know of this.
3 On 17 April 1997, Mr Zimmermann wrote to Mr Ee a letter in the following terms:
"After meeting you personally and spending some time with you in Singapore, I have had a high regard for your honesty and integrity.
I am so surprised to find out that the February 1997 account for photographs that were printed, delivered, and obviously sold by your Company have not yet been paid for.
I find it hard to believe that you would come down to the standard of the Australian operation, and in particular to the totally unethical behaviour of Georges France. Having always had a high regard and favourable business experience with Singaporeans, I am at a loss to understand your action in this matter.
I am sure you will find out, if you already haven't, that you are not dealing with a very honourable company in Australia, in the way the contractual arrangements were broken. I would in your place be very cautious in future dealings with GFP.
Additionally, we have been told by GFP that your Singapore operation has lost custom of $1,408.00 as a result of our
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- conduct. If so, it is obviously the result of the actions of Georges France himself and we will not be held responsible.
Please let me know your opinion in this matter."
4 Upon becoming aware of this letter, the plaintiffs by their solicitors wrote to Mr Zimmermann demanding a retraction and apology. Mr Zimmermann responded to this by sending a facsimile dated 23 April 1997 to Mr Ee in the following terms:
"I refer to my faxed letter to you dated 17th April 1997 and attach herewith the reply I received from it.
I do not consider that even worth commenting upon except that I would like you to know that what I stated is the honest truth in my opinion based on events that happened in our dealing with the GFP Group. I would however, expect the courtesy of a personal reply from you, as your company is our debtor and have a long-outstanding debt with my company. I also expect immediate payment as all our February '97 outstandings have been and are being collected this week."
5 These proceedings were then commenced. The plaintiffs contend that each of the two letters:
" … meant and were understood to mean that:
(a) the First-named Plaintiff was totally unethical in his business dealings;
(b) the Second-named Plaintiff was a dishonourable company;
(c) that in any future business dealings with the Plaintiffs Donald Ee was at risk of being dealt with dishonourably by the Plaintiffs."
7 Mr Ee gave evidence that he was shocked to receive the letters and they did cause him to wonder about the plaintiffs. As he put it (t/s 692): "When I received this fax from Mr Bruno Zimmermann, I was puzzle and I was shock because I had been doing business with Mr Georges France, who is a partner in Singapore, and I thought of him very highly. That's
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- why I got into business with him in mid-1995. When I received that I was really lost and it really puzzle me as to what kind of character that Mr Georges France was, so immediately I felt very uncomfortable and so I faxed this fax to Georges France to ask him to explain what is all this about".
8 Mr France gave evidence that when he saw the first letter, he was angry and hurt, and was also fearful of the effect it might have on his and his company's relationships with Mr Ee. He felt it necessary to telephone Mr Ee, "to reassure him that obviously I was an ethical person". After instructing solicitors, he expected to receive a retraction and apology and was "angry and annoyed" to see the second letter which he thought was not an apology at all, but "really reinforced that I was unethical and not a person worth dealing with".
9 In the end, there was no contest on the issue of liability. On behalf of the defendant, it was submitted in mitigation that the publication of the libel was extremely limited (being limited to publication to Mr Ee) and that, in the end, no lasting harm was done.
10 It was also submitted that the defendant had, in fact, apologised. This apology was in the form of a document dated 28 April 1997, but that document is not a satisfactory apology. It refers only to the first letter of 17 April 1997 and makes what might be described as a half-hearted apology with respect to some statements in that letter. There is no apology at all for the repetition of the libel in the second letter. As to the statements made in the first letter, the form of apology is in the following terms:
"I say that in making the above statements I was referring solely to the conduct of Georges France as the majority shareholder of Peter Pan Studio Pte Ltd in instructing that company to not pay to my company the sum of $3,347.75 outstanding for photographic services rendered to it, I having been informed to this effect by the accountant of Peter Pan Studio Pte Ltd.
I say that to the extent that my statements could be misconstrued by any third party to whom Donald Ee or Georges France may have handed my letter of 17 April 1997 as either expressly or by innuendo asserting that Georges France or Georges France Photography Pty Ltd were unethical and dishonourable in their business dealings I unreservedly
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- apologise and hereby undertake not to repeat any such slander at any time in the future."
11 On one reading of that letter, it is an attempt to justify the libel. In my opinion, the letter has no mitigatory effect at all. If anything, it tends to aggravate the libel by repetition and adoption.
12 As mentioned at the commencement of this judgment, the plaintiffs sue jointly and do not seek to have their damages separately assessed. Therefore, I propose to make a single award: Booth v Briscoe [1877] 2 QBD 496.
13 Although two libels are sued upon, I consider the damage suffered by the plaintiffs is the joint result of both libels for which a single allowance should be made.
14 It was a serious libel. Although publication of it was limited to Mr Ee, the nature of the relationship between Mr Ee and the plaintiffs was such that publication to him was particularly damaging. The reputation of the plaintiffs in the eyes of Mr Ee was of particular value. No special damage is proved, no pecuniary loss has been claimed. I am satisfied that the publication of the libel caused Mr France distress and significantly injured his feelings. The seriousness of the allegations made in the letter would naturally tend to cause mental pain and suffering and injury to pride. This is especially so in view of the repetition of libel when the defendant was requested to apologise, and the highly equivocal nature of the apology ultimately tendered. This must have increased the injury to the feelings of Mr France. I am satisfied that the libel and its repetition caused Mr France a fear that his reputation, and the reputation of his company, may never be restored in the eyes of his trading partners in Singapore.
15 In assessing the damages to be awarded, I have to determine what sum is appropriate to vindicate the reputation of both plaintiffs and compensation Mr France for the injury to his feelings.
16 In my opinion, an appropriate award is the sum of $10,000.
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