Gunston v Davies Brothers Ltd
[2012] TASSC 15
•17 April 2012
[2012] TASSC 15
COURT: SUPREME COURT OF TASMANIA
CITATION: Gunston v Davies Brothers Ltd [2012] TASSC 15
PARTIES: GUNSTON, Andrew Scott
v
DAVIES BROTHERS LTD
BAILEY, Gary
ANDERSON, Catherine
LOWER, Gavin
WHINNETT, Ellen
ROSE, Danny
FILE NO/S: 92/2004
DELIVERED ON: 17 April 2012
DELIVERED AT: Burnie
HEARING DATE: 18, 19, 20 and 21 July 2011
JUDGMENT OF: Crawford CJ
CATCHWORDS:
Defamation – Statements amounting to defamation – Particular statements – Imputation – Immoral conduct – Newspaper articles repeatedly referring to plaintiff as "Sergeant Sleaze" – Whether capable of defamatory meaning – Ridicule.
Defamation Act 1957 (Tas), s5(1).
Aust Dig Defamation [12]
REPRESENTATION:
Counsel:
Plaintiff: D J Gunson SC, L Brooks
Defendants: D F M Zeeman
Solicitors:
Plaintiff: Gunson Williams
Defendants: Butler McIntyre & Butler
Judgment Number: [2012] TASSC 15
Number of paragraphs: 212
Serial No 15/2012
File No 92/2004
ANDREW SCOTT GUNSTON v DAVIES BROTHERS LTD, GARRY BAILEY, CATHERINE ANDERSON, GAVIN LOWER, ELLEN WHINNETT
and DANNY ROSE
REASONS FOR JUDGMENT CRAWFORD CJ
17 April 2012
The plaintiff, who was once a sergeant in Tasmania Police, sued the defendants for damages for defamation arising out of 30 articles or reports in The Mercury newspaper that were published on 27 different dates between 4 May 2002 and 9 August 2003, four day bills published on different dates and two cartoons published on different dates.[1] Essentially, his action is based on the fact that they all referred to him as "Sergeant Sleaze", "Sgt Sleaze" or simply "Sleaze".
[1] The statement of claim sues for what are itemised as 35 publications. Included in one is a report and a day bill.
The newspaper was published at Hobart by the first defendant, Davies Brothers Ltd. The second defendant, Gary Bailey, was the editor of the newspaper. The third to sixth defendants, Catherine Anderson, Gavin Lower, Ellen Whinnett and Danny Rose, were journalists employed by the company.
On about 12 December 2001 the Commissioner of Police dismissed the plaintiff from his employment pursuant to the Police Regulation Act 1898, s12(1)(c). On 4 January 2002, he applied under the Industrial Relations Act 1984, s29(1A)(a), for a hearing of an industrial dispute relating to the termination of his employment. Under s29(2), the President of the Tasmanian Industrial Commission allocated the application to Commissioner T J Abey for hearing.
The hearing commenced at Hobart on 1 May 2002 and continued on various dates throughout that month. During the course of those proceedings, there were published in The Mercury numerous reports of and concerning the proceedings, and, in particular, portions of the evidence given before the Commissioner by various witnesses. Cartoons and day bills were also published concerning the proceedings.
The first report was in The Mercury of 2 May 2002 on pages 1 and 5. The plaintiff has not sued because of it, accepting that it was a fair report of proceedings published in good faith for the information of the public. See Defamation Act 1957, s13(1).[2] I will refer to much of the report.
[2] The Act was repealed and replaced by the Defamation Act 2005. The 1957 Act applies to this action and not the 2005 Act.
It included two photographs of the plaintiff. It reported that he was sacked after performing oral sex on a woman in a lounge of Queenstown's Empire Hotel on 13 October the previous year, and he was claiming that his employment was unfairly terminated. The Commissioner of Police had sacked him after deeming his conduct unbecoming and damaging to the reputation of Tasmania Police.
The report continued:
"In a day of sensational allegations and revelations in the Industrial Commission in Hobart yesterday:
· Mr Gunston said it was possible his drink had been spiked with drugs, causing him to act out of character and causing him to have no recollection of the incident. A woman has told police she overheard youths boasting about spiking Mr Gunston's drink.
· It was revealed that Mr Gunston was formally disciplined in 1990 after making inappropriate comments with a sexual connotation to a female driver he had intercepted for a random breath test.
· He had also been counselled after transferring from King Island last year after his former de facto partner made allegations against him, including assault and destroying property. Not all allegations were substantiated.
· It was revealed that Mr Gunston was convicted in 1992 of drink-driving after recording a blood alcohol reading of .206, more than four times the legal limit.
· He was informally counselled in 1987 after making flippant comments in the visitors' book of the Derwent Bridge Hotel, including: 'The beer was flat and so were the local wenches'.
· Police were called to Mr Gunston's former de facto's house at Mornington last month after he allegedly refused to leave at her request.
· At the time of the incident at Queenstown last year, Mr Gunston was unhappy with being told to hurry an investigation into an alleged fisheries offence because the suspect was a close friend of Police Minister David Llewellyn. Mr Gunston told Commissioner Tim Abey that his inspector, Robert Bonde, had urged him to prioritise the investigation because he had been contacted by the minister's office about the case.
Mr Gunston is claiming that he was unfairly treated when he was dismissed because his actions occurred in the early hours of the morning in a darkened, far corner of a little-used room while he was off duty and out of uniform.
He told the commission other police had done worse things, in uniform and on duty, and not been sacked.
Mr Gunston also said the internal investigation into the drink-spiking allegations had been inadequate.
He denied he had been given the nickname 'Sergeant Sleaze' and said Empire Hotel bar manager Mandy Brewer, who witnessed his sex act, had embellished rumours and spread them all over town.
The incident happened in the lounge area known as the coffee lounge of Queenstown's Empire Hotel early on Saturday, October 13, 2001.
The commission was told then-sergeant Gunston had consumed eight to 10 beers or stouts and four or five spirit drinks when he became intimate with [J], with whom he had been playing eightball earlier in the night.
The sex act, which is not denied by either Mr Gunston or [J], was witnessed first by barman Troy Miller then Ms Brewer, who asked the couple to leave.
The incident was brought to the attention of Tasmania Police about 10 days later by a family said by Mr Gunston to be 'troublemakers', who were angry he had arrested their son the day before."
The second report was in The Mercury of 3 May 2002 on pages 1 and 2. On the front page, the report was headed in bold and large print "My frolic with Sergeant 'Sleaze'". The headline was inaccurate in that the woman, J, did not refer in her evidence to what she did with the plaintiff as a frolic and she did not refer to him as Sergeant Sleaze. Nevertheless, once again the plaintiff has not sued over anything contained in The Mercury of 3 May.
It was reported on the front page that J gave evidence the previous day that she had known the plaintiff for a few months when on the night of 12 October, she drank alcohol and played eight-ball with him at the hotel. Later they went upstairs to a disused and darkened coffee lounge, where the plaintiff pulled down her trousers and tore off her underpants, placing them on his head.
The report continued on page 2, once again under the incorrect headline "My frolic with Sergeant Sleaze". It included references to evidence given by the hotel's bar manager, Ms Brewer:
"Ms Brewer told the court[sic] that Mr Gunston, who she knew as Norm, was an easy-going fellow who came to the hotel to drink.
She told the court[sic] that he had a nick-name of Sergeant Sleaze, which she believed was because he put his arms around women in the hotel.
Ms Brewer also gave details of how she turned on the light in the coffee lounge of the Empire Hotel about 1.30am and found Mr Gunston and [J].
'I thought there was oral sex going on ... to me, if someone is so desperate, they could have asked for a key for upstairs or they've got their own houses,' she said.
Ms Brewer said that she had twice told the pair to leave and threatened to call the police, later attracting the attention of two patrolling police constables as they walked past the window.
She disagreed with the suggestion that Mr Gunston's drink could have been spiked, describing herself as an 'eagle-eye' but later conceded that she had only noticed Mr Gunston in the hotel about midnight, when he had probably been there since before 8pm.
Ms Brewer said that she had seen the pair sharing a passionate kiss in the bar after winning an eight-ball game and said they were in an embrace 'mauling each other'.
Mr Tree [counsel for Mr Gunston] later said Ms Brewer was a 'dreadful gossip'.
He put to Ms Brewer that she had been described by Troy Miller as having 'loose lips'.
Ms Brewer denied she was solely responsible for spreading gossip about the incident, but said she did not deny it when people asked her."
The evidence Ms Brewer gave about the name "Sergeant Sleaze" was the following. She said that some of the local people who drank at the hotel used to say the plaintiff was Sergeant Sleaze. She had heard conversations prior to the incident in which he was referred to in that way. She did not know if he was aware of the nickname. Asked whether she knew why those people used that nickname, she said that she could sort of gather what it meant, that being "that he'd sleaze on people". Asked to explain what she meant by that, she said: "Well, go up and put his arm around them and talk to them – mostly just put his arm around them". Asked if they were males or females, she said "female, most of the time". Asked whether she had witnessed it herself, she said she had done a couple of times. Asked whether, on those occasions, his putting of his arms around a female was welcome or unwelcome, she replied: "Usually it was welcome, but as soon as they'd walk off, of course they'd backstab and say Sergeant Sleaze". She had not seen anyone push him away.
No other witness gave evidence that he was referred to by that name. Before the Industrial Commission, he was referred to as Mr Gunston, Andrew Gunston or Sergeant Gunston. It was only in The Mercury in its subsequent reports that he was referred to as Sergeant Sleaze.
The report of 3 May 2002 also referred to evidence given by a barman, Troy Miller, who had first come upon the couple in the disused lounge and had reported it to Ms Brewer, who then went to the lounge. It said:
"Barman Troy Miller, who is now the licensee of the hotel, appeared as a witness for the police but said he was not offended by the incident and had no plans of kicking the pair out.
However, he was concerned about the publicity on the hotel, which aimed to attract families.
Mr Miller told the commission that he was a bit surprised and a bit embarrassed about finding the couple in the act of oral sex, and had decided to leave it to Ms Brewer, who was in charge, to handle.
He agreed that he had told investigators that his comments to the pair had been: 'Look, youse guys are right, don't worry about it, we're shutting the pub'."
The publications upon which the action is based
The first publication for which the plaintiff sued was on 4 May 2002. The report appeared on page 3 of The Mercury under a headline "Sleaze 'talk of town'", and a subheading "Police tell of pub sex ridicule". The journalist responsible for the report was the sixth defendant, Danny Rose, whose name appeared in a by-line. The report commenced: "Two police constables told yesterday how their sergeant's sex antics became the talk of the town. Constable Ben Rainbird said Sergeant Andrew Gunston had become known as Sergeant Sleaze around Queenstown. He also said the episode had spawned a number of other lewd nicknames and jokes that circulated around the town. Constable Robert Wolfe later agreed."
The report was inaccurate. The only evidence of Constable Rainbird concerning references to the plaintiff as Sergeant Sleaze was in the following question and answer: "Had you at any stage heard the sergeant referred to as Sergeant Sleaze? ... It's possible, but it doesn't stick to my mind, no." Similarly, the only reference in Constable Wolfe's evidence was: "Were you aware at any time of Mr Gunston being referred to as Sergeant Sleaze? ... No, I was not." That was also the evidence of Sergeant Sheahen. All of those officers were stationed at Queenstown.
The plaintiff claims damages for defamation for the headline "Sleaze 'talk of town'" and for the report that Constable Rainbird gave evidence before the Commission that the plaintiff had become known as Sergeant Sleaze around Queenstown.
The second publication for which the plaintiff claims damages for defamation was a day bill distributed by the first defendant, Davies Brothers Ltd, to newsagents throughout Tasmania as an advertisement for The Mercury of 7 May 2002. It proclaimed in large block capital letters: "'SLEAZE' CASE BOOZE ALARM".
The third publication for which the plaintiff sued was a report in The Mercury on the same day, 7 May 2002. It was on pages 1 and 2 and written by the sixth defendant, Danny Rose, under his by-line. The large front page headline was "'Sleaze' case booze alarm", followed by a subheading "Sergeant tells of fears for PCs". The report continued on page 2 under the heading "'Sleaze' case booze alarm".
The report included: "The policeman dubbed 'Sergeant Sleaze' was accused yesterday of encouraging heavy drinking and partying at his Queenstown Police Station. The damning account of former sergeant Andrew Gunston's role was revealed to the Tasmanian Industrial Commission yesterday by a colleague at the station. Sgt Nigel Sheahen said: 'He seemed to be promoting a culture of excessive drinking and partying – particularly with the constables.' Sgt Sheahen said he became so concerned about his young constables' drinking habits that he held individual talks with them. ... Sgt Sheahen said he was not surprised by Mr Gunston's sacking over this latest incident. 'Some people saw the funny side of it, ridiculing us at the station,' he said. 'Others were quite disgusted that a police officer would allegedly do such a thing. It has definitely brought a discredit to the service, and discredit to those of us still there'."
The plaintiff does not claim that any of the report that day in The Mercury concerning what occurred before the Industrial Commission was inaccurate and, subject to one exception, he does not claim that any subsequent publication about proceedings before the Commission or any other forum was inaccurate.
The plaintiff claims damages for defamation with respect to the report of 7 May 2002 for the headline "'Sleaze' case booze alarm" and for the opening statement that referred to "the policeman dubbed 'Sergeant Sleaze'''.
The fourth publication for which the plaintiff sued was a cartoon published in The Mercury on the same day, 7 May 2002, on page 15. It portrayed two naval sailors on a dock with an aircraft carrier in the background, and a police officer in uniform speaking to them saying: "No, I do not know where 'Sergeant Sleaze' is".
The fifth publication for which the plaintiff sued was a cartoon published in The Mercury on 8 May 2002 on page 25. It portrayed some men standing at a bar, possibly a hotel bar. One of them is reading a newspaper with a headline "'SERGEANT SLEAZE' LEADS OFFICERS ASTRAY". Another is saying: "Does anybody know where he was when the mine shut down?"
The sixth publication for which the plaintiff sued was in The Mercury on 18 May 2002 on page 3. It was a report about some of the hearing before the Industrial Commission the previous day. The headline was "Sleaze damages police standing", below which was a photograph of the plaintiff and a report written by the sixth defendant, Danny Rose, under his by-line. The report commenced: "The sacked policeman known as 'Sergeant Sleaze' breached two thirds of his code of conduct in one drunken public sex act, says Tasmania's top cop".
There then followed a report of some of the evidence given by the Commissioner of Police before the Industrial Commission the previous day. It included that the plaintiff's conduct on 13 October 2001 was notorious and had significantly tarnished the reputation of the police service; that the plaintiff was not welcome back at Tasmania Police because officers and office workers did not want him "amidst their ranks"; that the plaintiff could have been charged with the crimes of indecent or offensive behaviour but Tasmania Police decided to handle the matter internally; and that there was a widespread knowledge within the broader Tasmanian community, and yet he would have the Commissioner believe not many people knew about it.
The plaintiff claims damages for defamation for the headline "Sleaze damages police standing" and the commencement of the report referring to him as "the sacked policeman known as 'Sergeant Sleaze'".
The seventh publication for which the plaintiff sued was in The Mercury on 21 May 2002. On the top of page 1 was a heading "SERGEANT SLEAZE CASE TOLD OF PASSION AT THE COP SHOP PARTY", a photograph of the plaintiff and a note referring the reader to page 5 for the relevant article. On page 5, under the headline "Officer tells of cop shop party passion" was a photograph of the plaintiff entitled "FORMER SERGEANT: Andrew Gunston" and a report of some of what occurred at the Industrial Commission hearing the previous day. Once again, the report was written by the sixth defendant, Danny Rose, under his by-line. It commenced: "A female colleague of the sacked policeman known as 'Sergeant Sleaze' has told how he was caught during a 'frenzied' moment of passion in the Queenstown police station".
A female police sergeant was reported as giving evidence of a going-away party at the Queenstown Police Station on 21 May 2001, at which she saw the plaintiff and a woman in a passionate embrace in the station's tearoom. She said she was embarrassed and suggested to the plaintiff that he go somewhere else. In response to that "he amended his behaviour appropriately".
The plaintiff claims damages for defamation for the headline on page 5 and the commencing sentence of the report. The statement of claim does not refer to the heading on page 1.
The eighth publication for which the plaintiff claims damages for defamation was a day bill distributed to newsagents throughout Tasmania to advertise The Mercury of 28 May 2002. It proclaimed in large block capital letters "SGT SLEAZE 'VICTIM OF REVENGE'".
The ninth publication for which the plaintiff sued was in The Mercury on 28 May 2002. On the front page was a large headline "Act of spite" followed by a subheading "'Sgt Sleaze' victim of vindictive report, hearing told" and a photograph of the plaintiff identifying him as Andrew Gunston. They were followed by a report written by the fifth defendant, Ellen Whinnett, under her by-line. The report commenced: "The policeman at the centre of Tasmania's 'Sergeant Sleaze' affair was the victim of an act of revenge, the State Industrial Commission was told yesterday".
The report continued with some of the submissions of the plaintiff's counsel to the Industrial Commission which included that the plaintiff had been spitefully reported to senior police by relatives of a Queenstown boy he had arrested. He submitted that numerous people in Queenstown knew about the incident along with most of the people attached to the Queenstown police station, but none had seen fit to report it and for "10 days it was just gossip". Counsel submitted that "it was only when someone in an act of vindictiveness reports it to internals that the drama assumes a more serious air". The report continued on page 2 under a headline "'Sleaze' reported out of spite, hearing told". Further submissions from the plaintiff's counsel were outlined. One was: "All it shows is that he allows himself to become a bit too frisky with the fillies ... and that is not a good enough reason to sack a police officer of 22 years". Contrary submissions from counsel for the Commissioner of Police were also reported, including: "It's a lot more than that ... he was the officer in charge of Queenstown police and he may as well have been in uniform because there's no doubt absolutely everyone knew who he was and what his position was in town".
The plaintiff claims damages for defamation for the headline and subheading on page 1, the commencing words of the report and the headline on page 2.
The tenth publication for which the plaintiff sued was in The Mercury on 29 May 2002, on page 9. It reported the final day of the hearing before the Industrial Commission. The report's headline was "Police deny 'Sgt Sleaze' was victim of bad luck", below which appeared a large photograph of the plaintiff which was captioned "FINAL DAY: Andrew Gunston arrives at the hearing yesterday". The report was written by the fifth defendant, Ellen Whinnett, under her by-line. The second paragraph stated: "In the final day of the 'Sergeant Sleaze' unfair dismissal case, police lawyer Mark Miller said lawyers representing sacked sergeant Andrew Gunston were seeking to play down the seriousness of the incident". The report continued with some other submissions made by Mr Miller to the Commission. Further submissions from the plaintiff's counsel were also mentioned. The report concluded that the Commissioner, Mr Abey, adjourned the hearing to a date to be fixed.
The plaintiff claims damages for defamation for the headline and the second paragraph of the report.
On 27 June 2002, the Commission ordered that the plaintiff be re-employed by Tasmania Police at the rank and salary applicable immediately prior to his termination, such re-employment to take effect on 8 July 2002. Lengthy reasons for the making of the order were published by the Commissioner.
The eleventh publication for which the plaintiff sued was in The Mercury the following day, 28 June, on page 1. There was a large headline "Sergeant Sleaze wins his job back", next to which was a photograph of the plaintiff captioned "UNFAIRLY SACKED: Sex-romp sergeant Andrew Gunston". Under the headline was a report written by the sixth defendant, Danny Rose, under his by-line. It commenced: "TASMANIA Police was yesterday ordered to re-employ the man dubbed Sergeant Sleaze".
The plaintiff claims damages for defamation for the headline and the commencing sentence.
The twelfth publication for which the plaintiff sued was on pages 6 and 7 of The Mercury of the same date, 28 June. It contained a substantial summary of the history of the proceedings before the Commission and a brief summary of the Commissioner's lengthy reasons for his decision. Once again, it was written by the sixth defendant, Danny Rose, under his by-line. Its headline, across both pages, was: "Saga of sex and sleaze". The caption to a photograph of the plaintiff referred to him as the "main player". The report commenced with the words: "The man who became know as Sergeant Sleaze had his chequered history with Tasmania Police detailed in nine days of damning submissions". As was the case with the other reports in The Mercury, the balance of the report correctly referred to him by his name, either Mr Gunston, Andrew Gunston or Sergeant Gunston.
The plaintiff claims damages for defamation for the headline and commencing words of that report.
By way of brief summary, I refer to part of the report dealing with the Commissioner's reasons for his order. It stated that the Commissioner found sacking the plaintiff was a "disproportionate response". The behaviour between him and J was "perfectly legal" and although they took what transpired to be inadequate precautions to avoid detection, their conduct occurred at a time and place when detection was unlikely. The behaviour was not calculated to deliberately offend or confront. There was no deliberate exhibitionism. The plaintiff's behaviour did not involve the mis-use of the police badge, dishonesty or behaviour that might put public safety at risk.
The Mercury reported further that nevertheless, the Commissioner accepted it was possible that the behaviour might damage the standing in which Tasmania Police was held by the community, and he found that the behaviour was "quite unacceptable and demanded disciplinary action". But the Commission "did not get a sense of widespread moral outrage likely to cause lasting damage to the standing of Tasmania Police". He regarded sacking as a "disproportionate response", but nevertheless considered that a "strong disciplinary response" was required. By ordering re-employment from 8 July 2002, and not retrospectively, the plaintiff lost in excess of $30,000 in salary which the Commissioner referred to as representing "a very substantial fine".
The thirteenth publication for which the plaintiff claims damages for defamation was a day bill distributed by the first defendant, Davies Brothers Ltd, to newsagents throughout Tasmania as an advertisement for The Mercury of 28 June 2002. It proclaimed in large block capital letters: "VICTORY FOR SGT SLEEZE", misspelling the last word.
The fourteenth publication for which the plaintiff sued was in The Mercury on 29 June 2002. On page 9 was an article with a headline "Hidding urges payout for Sergeant Sleaze", under which was a photograph of the plaintiff captioned "NO-WIN: Former police sergeant Andrew Gunston". The article, written by the fifth defendant, Ellen Whinnett, under her by-line, commenced: "TASMANIA Police should negotiate a payout with the officer dubbed Sergeant Sleaze, Liberal police spokesman Rene Hidding said yesterday". Mr Hidding had not in fact referred to the plaintiff as Sergeant Sleaze nor as the officer dubbed Sergeant Sleaze. He referred to him by his correct name.
In summary, the report continued by saying that Mr Hidding said the Industrial Commission order to re-employ the plaintiff was untenable, for the Commissioner of Police would not be able to demonstrate confidence in the plaintiff by placing him back on active duty. Mr Hidding was quoted as saying that the Commissioner of Police and the plaintiff were in no-win situations, as was the whole Tasmania Police service. He called for the police to negotiate a separation package for the plaintiff.
The plaintiff claims damages for defamation for the headline "Hidding urges payout for Sergeant Sleaze", and the commencement of the article referring to him as "the officer dubbed Sergeant Sleaze".
The Police Commissioner appealed against the order to the Full Bench of the Industrial Commission. The fifteenth publication for which the plaintiff sued was a heading on the top of page 1 of The Mercury of 6 July 2002: "NEW SGT SLEAZE BATTLE". It was superimposed on a photograph of the plaintiff, with a note referring the reader to page 9 for the relevant article.
The plaintiff claims damages for defamation for that heading. That is my interpretation of par46 of the statement of claim which refers to the heading as a by-line and par89(n) which appears to refer to it as "the 6th July article".
The sixteenth publication for which the plaintiff sued was what par89(o) of the statement of claim refers to as "the second 6th July article". It was on page 9 of The Mercury that day. Its headline was: "Police appeal on Sergeant Sleaze" and it was written by and under the by-line of the fifth defendant, Ellen Whinnett. The opening paragraph of the article stated: "POLICE Commissioner Richard McCreadie will appeal against an order by the Tasmanian Industrial Commission to re-employ the officer known as Sergeant Sleaze." It continued that the Commissioner of Police had issued a brief statement advising that he would appeal to the Full Bench. Later in the article was the following sentence: "The case ran for nine days, sparking widespread media attention and earning Mr Gunston the nickname Sergeant Sleaze".
The plaintiff claims damages for defamation for the headline on page 9 and the two passages from the article quoted above in which he was referred to as being known as, or having the nickname, Sergeant Sleaze.
The seventeenth publication for which the plaintiff sued was in The Mercury of 18 July 2002 on page 11. Its headline was: "Force appeals Sgt Sleaze ruling" and the opening sentence of the article stated: "TASMANIA Police officially lodged its appeal yesterday against the 'Sergeant Sleaze' unfair dismissal ruling". Thereafter the article referred to the plaintiff by his correct name. It briefly recounted the history of the unfair dismissal case.
The plaintiff claims damages for defamation for the headline and for the opening sentence of the article.
The eighteenth publication for which the plaintiff sued was in The Mercury of 19 July 2002. Its headline was "Sergeant 'Sleaze' lodges appeal" and the article was written by the sixth defendant, Danny Rose, under his by-line. The opening sentence of the article stated: "THE 'Sergeant Sleaze' affair took an unexpected turn yesterday when police officer Andrew Gunston lodged his own appeal seeking his former rank and lost wages." The article explained that he was seeking reinstatement by Tasmania Police instead of re-employment and if successful, he would be entitled to be paid about $30,000 in lost salary.
The plaintiff claims damages for defamation for the headline and for the opening sentence of the article.
The nineteenth publication for which the plaintiff sued was in The Mercury of 23 July 2002, on page 9. The article had a headline: "New sacked cop case goes to industrial commission" and was written by the fifth defendant, Ellen Whinnett, under her by-line. It referred to another police officer having lodged an appeal with the Tasmanian Industrial Commission for unfair dismissal after being sacked on the day he had appeared in court on a sex charge involving a 12-year-old girl. The article continued with the following words: "His appeal follows last month's so-called 'Sergeant Sleaze' case, in which former sergeant Andrew Gunston won an appeal against his sacking". The article continued with a brief history of the plaintiff's proceedings before the Industrial Commission.
The plaintiff claims damages for defamation for the sentence in the article that referred to the "Sergeant Sleaze" case.
The twentieth publication for which the plaintiff sued arose out of a letter to the Editor published by The Mercury on 25 July 2002, on page 20. The letter was captioned (by The Mercury) "No more 'Sleaze'" and it is for that heading the plaintiff claims damages for defamation.
The letter was in fact critical of the defendants. The correspondent wrote: "I am questioning your staff's continuing use of the name Sgt Sleaze". He expressed the view that the first defendant's journalistic staff were insensitive and hypocritical and quoted from the Gospel according to John ch8, v7: "If any one of you is without sin let him be the first to throw a stone ...". He urged the defendants to stop passing judgment on the plaintiff and added that he did not condone the plaintiff's actions.
The twenty-first publication for which the plaintiff sued was in The Mercury on 14 August 2002 on page 7. Its headline was: "'Sleaze' appeals back for hearing". The article underneath it was written by the sixth defendant, Danny Rose, under his by-line. The article commenced: "THE 'Sergeant Sleaze' unfair dismissal case will go back to the Tasmanian Industrial Commission today". Later it stated: "The 'Sleaze' case then went on to create a legal precedent as the first unfair dismissal ever lodged by a Tasmanian police officer and, similarly, the first of such cases ever won". The article contained a brief history and reference to the appeals by the Commissioner and the plaintiff.
The plaintiff claims damages for defamation for the headline and for the two sentences in the article I have quoted.
The twenty-second publication for which the plaintiff sued was in The Mercury on 15 August 2002, on page 3. An article was published under a headline "'Sgt Sleaze' faces new charges tilt". It was written by the sixth defendant, Danny Rose, under his by-line. The opening paragraph of the article stated: "THE policeman dubbed 'Sergeant Sleaze' is likely to face charges over an alleged incident a month after he won back a job with the force". The article explained that when the appeals to the Full Bench of the Industrial Commission came before it, counsel for the Commissioner of Police foreshadowed an application to admit fresh evidence concerning an investigation, which was likely to lead to charges against the plaintiff, arising out of an incident on 27 July 2002. The Full Bench was told that he was likely to be charged with driving under the influence of alcohol, speeding, failing to stop at a police road block, trespassing, damaging property and making a threatening telephone call. The Full Bench ruled that the fresh evidence should be heard and the hearing was adjourned until the police investigation had been completed.
The plaintiff claims damages for defamation for the headline and for the opening sentence of the article I have quoted.
The twenty-third publication for which the plaintiff sued was in The Mercury on 5 September 2002, on page 10. The headline of an article was "'Sgt Sleaze' in new row". The article was written by the fifth defendant, Ellen Whinnett, under her by-line. It commenced with the words: "THE policeman known as 'Sergeant Sleaze' appeared in the Hobart Magistrates Court yesterday to fight a bid for a restraining order against him". The article explained that a man had applied for a restraining order against the plaintiff as the result of an incident at the man's house in July. The article repeated some of the history concerning the proceedings involving the plaintiff before the Industrial Commission and mentioned that the Full Bench had heard an application to receive new evidence concerning the incident in question. The article reported that the magistrate directed both the plaintiff and the man to table all relevant documents by 30 September.
The plaintiff claims damages for defamation for the headline and for the opening sentence of the article I have quoted.
The twenty-fourth publication for which the plaintiff sued was in The Mercury on 6 December 2002, on page 5. It was a small item headed: "Hearing for 'Sgt Sleaze'", and commenced: "THE unfair dismissal case involving the policeman known as 'Sgt Sleaze' has gone back before the Tasmanian Industrial Commission". It reported that the case resumed briefly and was adjourned until 11 December.
The plaintiff claims damages for defamation for the headline and the opening sentence of the article I have quoted.
The twenty-fifth publication for which the plaintiff sued included a report in The Mercury on 14 February 2003, and a day bill for that day. On the bottom of page 1 was a heading entitled: "SERGEANT SLEAZE WINS AGAIN" followed by a photograph of the plaintiff and a reference to page 2. On that page was an article, the headline of which was: "Police lose appeal in 'Sleaze' case row". The article was written by the fifth defendant, Ellen Whinnett, under her by-line. It commenced with the words: "THE 'Sergeant Sleaze' unfair dismissal case took another twist yesterday when the full bench of the Tasmanian Industrial Commission threw out 22 of Tasmania Police's appeals." The Full Bench did not rule on the remaining five grounds of the appeal by Tasmania Police, nor on the three grounds of the plaintiff's appeal. It was stated that the Full Bench would hear the continuation of the appeal on 19 March, including the new evidence from Tasmania Police concerning the incident involving the plaintiff the previous July. It was stated that the three Commissioners constituting the Full Bench were critical of media coverage of the case, saying that "some sections of the media have reported these proceedings in excessively sensational, prurient and at times inaccurate terms".
The plaintiff claims damages for defamation for the heading on the bottom of page 1, the headline on page 2, the commencing sentence of the article I have quoted and, as I said, the day bill. It was distributed to newsagents throughout Tasmania to advertise The Mercury that day. It proclaimed in large block capital letters "SGT SLEAZE WINS AGAIN".
The twenty-sixth publication for which the plaintiff sued was in The Mercury on 20 March 2003, on one of the inside pages. Under a headline "Sgt Sleaze case heads for the Supreme Court" the article commenced: "TASMANIA Police will take the 'Sergeant Sleaze' unfair dismissal case to the Supreme Court". The article recounted that the remaining grounds of the appeals to the Full Bench of the Industrial Commission were still to be heard, but the Commissioner of Police had confirmed that an appeal had been lodged to the Supreme Court, presumably because the Full Bench "threw out" 22 of the Commissioner's 27 grounds of appeal.
The plaintiff claims damages for defamation for the headline and the opening words of the article I have quoted.
The twenty-seventh publication for which the plaintiff sued was in The Mercury on 21 June 2003 on one of the inside pages. Under a headline "'Sleaze' case appeal to receive new evidence", an article was written by the fifth defendant, Ellen Whinnett, under her by-line. It commenced with the words: "A THREE-day appeal has been set down in Tasmania's Industrial Commission next week to resolve the long running 'Sergeant Sleaze' unfair dismissal case". Some of the previous history was reported.
The plaintiff claims damages for defamation for the headline and the opening words I have quoted.
The twenty-eighth publication for which the plaintiff sued was in The Mercury on 26 June 2003. It commenced on page 1 and continued on page 2. A large headline on page 1 proclaimed: "Goodbye to Sgt Sleaze". Alongside the headline was a photograph of the plaintiff captioned "CASE CLOSED: Andrew Gunston". The article was written by the fourth defendant, Gavin Lower, under his by-line. The opening paragraph of the article stated: "THE long-running Sergeant Sleaze affair is finally over – with the former policeman accepting that he has no future in the force". The article reported that the plaintiff had agreed "to a deal with his former bosses ... thrashed out during last-gasp negotiations on the day the matter was due to be heard by the Full Bench of the Tasmanian Industrial Commission". The terms of the settlement were strictly confidential, but it was understood they included a payout to the plaintiff. On page 2 the article continued under the same headline.
The plaintiff claims damages for defamation for both headlines and for the opening words of the article on page 1.
The twenty-ninth publication for which the plaintiff claims damages for defamation was also in The Mercury of 26 June 2003, on page 27. Under a heading "STING IN THE TAIL" it stated: "It's almost sad to see the end of the Sergeant Sleaze saga – it's been more unbelievable than an episode of The Bill".
The thirtieth publication for which the plaintiff sued was in The Mercury on 27 June 2003, on page 5. An article was headed "Police boss silent on 'Sgt Sleaze' deal", under which was a photograph of the plaintiff captioned "SACKED: Andrew Gunston". The opening words of the article were: "TASMANIA Police was looking forward to the future now that the long-running 'Sergeant Sleaze' unfair dismissal case had come to an end, Commissioner Richard McCreadie said yesterday". In fact the Commissioner did not refer to the plaintiff as "Sergeant Sleaze". Responsibility for that was The Mercury's. The report briefly referred to the past dispute and said that the Commissioner could not discuss the matter any more and had stated that it was at an end.
The plaintiff claims damages for defamation for the headline and the opening words of the article I have quoted.
The thirty-first publication for which the plaintiff sued was in The Mercury on 1 July 2003 on page 17. There was a short letter to the editor published in the following terms: "Might not the Police Department have been hasty in dismissing Sergeant Andrew Gunston (The Mercury, June 26)? Could he not have been usefully engaged as an undercover agent?" The Mercury published a heading to the letter "Sergeant Sleaze" which I infer was its initiative, and not that of the writer of the letter.
The plaintiff claims damages for defamation for that heading.
Notwithstanding that the plaintiff's dispute with his former employer was at an end, The Mercury continued to refer to the plaintiff as Sergeant Sleaze. The thirty-second publication for which the plaintiff sued was in The Mercury on 12 July 2003, on page 13. A headline to an article proclaimed "'Sgt Sleaze' returns to court". The article was written by the fourth defendant, Gavin Lower, under his by-line. The opening words of the article were: "JUST a fortnight after settling his unfair dismissal case against Tasmania Police, the man dubbed 'Sergeant Sleaze' was back in court yesterday". It reported that arising out of an altercation at a Richmond home of friends of his girlfriend, the plaintiff had pleaded not guilty to, and was defending charges of damaging property, trespassing, speeding, failing to stop when directed by police and two counts of using a phone in an offensive way. Four other charges relating to drink-driving were dismissed. It appears that the matter was part-heard and adjourned to 16 July.
The plaintiff claims damages for defamation for the headline and the opening words of the article I have quoted.
The thirty-third publication for which the plaintiff sued was in The Mercury on 17 July 2003, on page 7. The headline of an article was "'Some vindictiveness' against charged ex-cop". The article was written by the fourth defendant, Gavin Lower, under his by-line. The opening paragraph of the article was: "A PROSECUTION witness yesterday agreed there was a level of vindictiveness in a case against the former police officer dubbed 'Sgt Sleaze'". The article related some of the hearing of the charges against the plaintiff and said that the hearing had been adjourned until 18 July.
The plaintiff claims damages for defamation for that publication. Although the statement of claim refers to the headline and the opening paragraph of the article I have quoted, I infer that he only sues for the opening paragraph, as there is nothing in the headline that is capable of being defamatory.
The thirty-fourth publication for which the plaintiff sued was in The Mercury on 19 July 2003, on page 13. The headline of an article was "Complaint ploy, says ex-cop". The article was written by the fourth defendant, Gavin Lower, under his by-line. The article commenced with the words: "TASMANIA Police pressured a couple into making a complaint that led to charges against the former police officer dubbed 'Sgt Sleaze', a court was told yesterday". The article was referring to evidence given by the plaintiff in his defence of the charges. It reported that the magistrate would give his decision on 8 August.
Although the statement of claim refers to both the headline and the opening paragraph of the article, I infer that the plaintiff claims damages for defamation only for the opening paragraph, for there is nothing in the headline capable of being defamatory.
The thirty-fifth and last publication for which the plaintiff sued was in The Mercury on 9 August 2003 on page 3. The headline to an article was "Victory as ex-cop gets day in court" and alongside was a photograph of the plaintiff captioned "VINDICATED: A delighted Andrew Gunston leaves the Magistrates Court yesterday". The article was written by the third defendant, Catherine Anderson, under her by-line. The first two paragraphs of the article stated: "CONTROVERSIAL former police officer Andrew Gunston was vindicated yesterday – after all charges against him were dismissed by a Hobart magistrate. 'It's time to celebrate', Mr Gunston, the man dubbed 'Sergeant Sleaze', said outside court yesterday". He was described as saying that he had been vindicated and just wanted to get on with his life. The magistrate was reported as saying that he preferred the evidence of the plaintiff to the evidence of the main prosecution witnesses.
The plaintiff claims damages for defamation for the opening paragraphs I have quoted but, I infer, not for the headline.
In respect of each of the 35 publications, the first defendant, Davies Bros Ltd, is sued for publishing it, and the second defendant, Gary Bailey, is sued for publishing it in his capacity as the editor of The Mercury.
In respect of nine publications, that is the first, third, sixth, seventh, eleventh, twelfth, eighteenth, twenty-first and twenty-second, the sixth defendant, Danny Rose, is sued as the journalist who wrote the article that was published in The Mercury.
In respect of eight publications, that is the ninth, tenth, fourteenth, sixteenth, nineteenth, twenty-third, twenty-fifth and twenty-seventh, the fifth defendant, Ellen Whinnett, is sued as the journalist who wrote the article that was published in The Mercury.
In respect of four publications, that is the twenty-eighth, thirty-second, thirty-third and thirty-fourth, the fourth defendant, Gavin Lower, is sued as the journalist who wrote the article that was published in The Mercury.
In respect of one publication only, that is the thirty-fifth, the third defendant, Catherine Anderson, is sued as the journalist who wrote the article.
The plaintiff's evidence
I accept the plaintiff's evidence, subject to any findings I make concerning matters about which the defendant took issue.
He was born in 1964. After the end of his high school education, he successfully completed a two year cadetship at the Rokeby Police Academy, and early in 1982 was sworn in as a police officer.
He was stationed at Hobart performing uniform duties until 1986. He was transferred to Queenstown that year to perform uniform duties, but spent several periods of secondment to the Criminal Investigation Branch. In 1989 he was transferred to the Traffic Branch in Hobart, and in 1990 to the Information Bureau there. He was promoted to senior constable. In 1994 he was transferred to the Technical Support Unit. In about 1995 he was seconded to the Marine and Rescue division. In 1998 he was transferred to King Island where he was the officer-in-charge at Currie with the rank of sergeant.
In about 2001 he was transferred to Queenstown as officer-in-charge of the police station there and substations at Strahan and Zeehan. On about 12 December 2001 he was dismissed from his employment as a police officer, giving rise to the proceedings in the Industrial Commission.
He gave evidence of commendations he received from time to time for particular aspects of his service. There is no need to detail them. I find that he performed his duties as a police officer well but, from time to time, fell into disfavour for what his supervisors perceived to be misbehaviour, principally in his private life, about which evidence was given before the Commission. The Mercury published details of much of it.
The Mercury referred to him as "Sergeant Sleaze", "Sgt Sleaze" or "Sleaze" repeatedly. Other newspapers and journals and television stations did not refer to him in that way. I do not doubt his evidence that the worst days of his life were when The Mercury was constantly referring to him in that way during the course of the original hearing before the Industrial Commission. He said he was shattered by it. The cartoons made him feel ridiculed over what, for him, was a grave and serious matter. He felt the same about the day bills when he saw them outside his local newsagency. On two occasions he collapsed in a faint, something he had never done before, notwithstanding that he had experienced many stressful incidents as a police officer.
No doubt the course of the different proceedings in which he was involved and the nature of the various allegations contributed to the stress he was suffering, but there is also no doubt that the repeated references to him in The Mercury as Sergeant Sleaze and the like, played a large part. I accept his evidence that he experienced a growing sense of depression and anxiety, and find that much of that resulted from the defendants' branding of him in that way. As he said, the effect on him snowballed as the reporting about him continued.
I infer that when he entered into a settlement of his dispute with the Commissioner of Police, he accepted a sum of money in return for an undertaking not to seek re-employment with Tasmania Police. His evidence was he did so because he was exhausted by the continued reporting in The Mercury about his case. I infer that much of that "exhaustion" arose out of the newspaper's branding of him as Sergeant Sleaze.
He gave evidence of people abusing and insulting him by referring to him as Sergeant Sleaze. I pointed out earlier that the only evidence before the Industrial Commission that he had been referred to by that name was the uncorroborated evidence of Ms Brewer that some of the local people who drank at the hotel used to say among themselves he was Sergeant Sleaze. It was an insignificant part of the evidence. That someone may have referred to him in that way in the past, or that he had "sleazed on people" in the past, was not part of the Commissioner of Police's reasons for dismissing him, nor did the Commissioner seek to rely on it as part of the justification for the dismissal. Counsel for the Commissioner of Police before the Industrial Commission mentioned "Sergeant Sleaze" once in his closing address, but did not seek to rely on it as a justification for dismissal. Counsel for the plaintiff made no mention of it. Nor did the Industrial Commissioner refer to "Sleaze" in the lengthy reasons for his decision. I find that those people who abused and insulted the plaintiff by referring to him as Sergeant Sleaze, did so because of The Mercury's frequent labelling of him by that name.
His evidence about those people, which I accept, was that it happened on numerous occasions when he was going about his business, shopping, or simply in public. There were too many to recount them all, he said. However he gave evidence of the following occasions.
He walked out of a delicatessen at Lauderdale into a car park and heard a loud voice yell: "Hey, that's Sergeant Sleaze". It was a man in his early twenties getting into a car. The plaintiff confronted him about it and the man effectively repeated what he had said. As he drove off he yelled out: "Sergeant Sleaze, you loser". The plaintiff regarded the occurrence as shattering. He felt both embarrassed and angry.
Early one evening he visited a North Hobart hotel bar with a friend. Becoming uneasy about two men and two women taking an interest in him, he went to the toilet. His friend, Mr Watson, gave evidence that the occasion was around the time of the Industrial Commission proceedings. He said that while the plaintiff was out of the bar, one of the men made a derogatory comment that included a reference to Sergeant Sleaze. He challenged the man, who became aggressive in his manner. The plaintiff returned and the other group left. Mr Watson told the plaintiff what had occurred.
The plaintiff's evidence was that shortly after, while still in the bar, a young woman asked him whether he was Sergeant Sleaze. When he made no reply, she expressed sympathy for him, saying that she was a student of journalism and that "they", presumably her class, had studied the reporting of his matter.
His evidence was that the two incidents at the bar caused him embarrassment and a sense of anxiety and apprehension. He said he was "absolutely sick of it".
He gave hearsay evidence of being told by his brother-in-law that he had seen a band, the Dead Kilkenneys, which had sung a song that included in its lyrics, "if you go down to Queenstown then you'll see Sergeant Sleaze", which was part of a repeated verse in the song. The plaintiff was embarrassed, once again.
On 24 October 2003 he parked his car in a car park at the rear of a supermarket in North Hobart and returned to it after shopping. He heard a man shouting: "Sergeant Sleaze, fucking slime bag". He and a nearby woman looked around to see where the voice had come from. He then heard the words "Sergeant Sleaze, dirty scumbag" or words to that effect. The voice seemed to be coming from a unit in a nearby public housing complex. The woman looked at him. He felt angry, embarrassed and vulnerable.
During the course of the initial proceedings in the Industrial Commission, he was told by friends that a Hobart radio station, Triple T, was broadcasting a comedy sketch each morning entitled "The Adventures of Sergeant Sleaze", which portrayed the comical antics of a habitually immoral and corrupt police officer. He was embarrassed and felt ridiculed. He did not listen to the sketch.
He learned that the University Revue had a skit concerning Sergeant Sleaze and although disappointed, he was curious and went to the Theatre Royal to see the Revue, deliberately entering the theatre late at the rear of the stalls. He described the skit as comical, derogatory and ridicule. A scene purported to be the Empire Hotel at Queenstown. A menu board had references to Sleaze, such as Sergeant Sleaze Burger. There was a reference to Sergeant Sleaze in some other aspect of the skit. Although he accepted nothing was sacred at university revues, once again he felt embarrassed and ridiculed. He left the Revue before it ended to avoid being noticed.
The embarrassment suffered by him was so grievous that in December 2003 he changed his surname by deed poll, after giving the matter considerable thought. It was a distasteful thing for him to have to do. However, after he had done so, he found it had no effect and he reverted to using his original name.
He said that he is still referred to as Sergeant Sleaze and as a result, he rarely enters into the city. Two weeks would not go by without the term being used in conversation. The most recent occurrence was three days before the commencement of the trial. At about 10.45am he was on the corner of Salamanca Place and Montpelier Retreat when he clearly heard a woman call out "Sergeant Sleaze" from about six to eight metres away. People stopped and looked, he said. The woman, a lawyer, had once served with him in the police force. His response was to approach her angrily and aggressively. He accepted that her response to that was to be extremely apologetic.
It is part of his case that by reason of the repeated references to him as Sergeant Sleaze in The Mercury he has, at times, been prevented from holding or obtaining employment. He has not claimed lost income as an item of special damage, but nevertheless seeks to have the award of general damages reflect the difficulty he has suffered. His evidence about it included the following.
On one occasion in late 2003, he worked a shift at a Lauderdale hotel. He had completed a responsible service of alcohol course and then applied to the manager. He was not paid for the shift, the arrangement being that he would work it to see whether he liked the work and could accept its conditions. He said that patrons were referring to him at times as Sergeant Sleaze. Accepting that they were often intoxicated, he found it an uncomfortable environment to be working in. He did not continue working there. He also gave evidence that on 22 November 2003, the assistant manager at the hotel told him that a woman had expressed disgust that the hotel would employ the person known as Sergeant Sleaze. The plaintiff found that more offensive because it involved a person making an effort to cause trouble for him. About a month later, the manager of the hotel told him of a similar conversation by telephone he received from an anonymous woman. That compounded his feelings. He did not attempt to work again in the hotel industry.
He gave evidence of working as a taxi driver between 1 September 2002 and 14 November 2002, predominantly at night. He said he was regularly recognised and abused and called "Sergeant Sleaze" by customers, particularly when working a nightshift. The abuse and ridicule added to his state of anxiety and apprehension. One such occasion concerned a man and woman he drove from West Hobart to Sandy Bay. The man was heavily intoxicated and almost immediately on entering the taxi he recognised the plaintiff and said words to the effect: "You're that Sergeant Sleaze in the paper, you fucking sick cunt". He repeated the effect of that. The plaintiff became upset, stopped the taxi and told the man it was an offence to be disorderly in a taxi. When the man got out at Sandy Bay he screamed "Sergeant Sleaze" as loud as he could possibly do so, kicked the door closed and yelled out "Sergeant Sleaze" again, and continued kicking the door. Concerned that the car would be damaged, the plaintiff got out, whereupon the man took a swing at him, but he avoided it. He pushed the man away and his shirt was ripped when the man grabbed it.
His friend, Mr Dyson, also an ex-police officer, was the proprietor of Dyson Corporate Security, which performed general security work that included investigations, surveillance, security guard work and patrolling of premises. The plaintiff was an employee of the business from 28 December 2002 until 1 August 2003. In evidence, Mr Dyson said he received only good reports concerning the quality of the plaintiff's work.
One of the jobs the plaintiff performed was night patrol work for the operator of Calvary Hospital and St Johns Hospital. After a time, Mr Dyson was forced to remove the plaintiff from that work, because the hospital's security manager required it, expressing concern that the person known as Sergeant Sleaze should be working at the hospital.
As part of his duties for Dyson Corporate Security, he was rostered to be a member of a security team for the Taste of Tasmania at the end of 2002. He attended on site for instruction, but Mr Dyson was forced to remove him from that work because the security manager for the Taste advised him that he had been identified as Sergeant Sleaze and he did not want him on site.
Mr Dyson said there was a third occasion when he had to remove the plaintiff from another site, but he could no longer remember who the client was. From a letter written by him to the editor of The Mercury on 17 July 2003, which he expressed to be not for publication, it appears that the third occasion was on that day. So incensed was Mr Dyson arising out of his perception that The Mercury's frequent references to the plaintiff as Sergeant Sleaze were detrimental to the man's employment opportunities, he complained, with obvious emotion, and asked the editor to "have the common decency as a person of honour to put an immediate stop to this injustice". He explained that he had to remove the plaintiff from duties on three occasions because his clients were identifying him as "Sergeant Sleaze". He failed to achieve his purpose. The references continued in The Mercury of 19 July and 9 August 2003.
The plaintiff's evidence was that his self-confidence was shattered as a result of what had happened with the hospital and the Taste of Tasmania. He said, "if you can't be a patrol officer or a security guard then there's not a lot left to do".
He gave evidence of unsuccessfully applying for jobs. They included a debt collection officer, a job at Woolworths (possibly on night fill) and a job at Jobnet (possibly as a warehouse trainee/storeperson). The evidence did not justify a finding that the defendants' publications caused his lack of success.
For the purpose of obtaining a qualification for employment and an income commensurate with what he had earned as a police officer, he enrolled for a Bachelor of Arts degree at the University of Tasmania at the start of 2004. Because of the impact journalists had had on him, many of the units he studied related to journalism and the media. He graduated at the end of 2006 with a Distinction average. In 2005 and 2006 he was placed on the Dean's Roll of Excellence.
He supported himself by working as a taxi driver for a little over two years while at university. He had no alternative, he said.
He contemplated enrolling also for a Bachelor of Teaching degree, but said he was dissuaded from doing so by a staff member who advised him that his ability to work as a teacher in Tasmania may have been severely jeopardised due to The Mercury's reporting of the Industrial Commission proceedings.
It was his evidence that since graduating he has continued to seek employment. He worked on an oyster farm near Port Sorell for several months. By about 2007 he was applying for just about anything, he said. In January that year he unsuccessfully applied for work as an animal welfare officer with the RSPCA.
From March to October 2007 he worked at a call centre for Vodaphone. He resigned and then worked at a Telstra call centre for a little over a year, until January 2009. His evidence was that part of his reason for giving up that employment was the need to be available for the trial of this action. I find that explanation unconvincing. Since then he has been an employee at a Lauderdale hardware and general store as a sales assistant. He has worked there on several occasions, including eight months leading to the trial. He was working 30 hours a week at that time.
Evidence called by the defendants
The defendants called evidence from three witnesses in an attempt to establish that the plaintiff adopted the appellation "Sergeant Sleaze" by introducing himself to persons by that name.
I mentioned earlier that The Mercury reported on 29 June 2002 that Rene Hidding MP, who was the Liberal Party's police spokesman, had urged Tasmania Police to negotiate a separation package with the plaintiff. Mr Hidding gave evidence of a ride in a taxi driven by the plaintiff from the Lindisfarne Motor Inn to Parliament House. He said it was between 27 May and 11 June 2003, but I prefer the plaintiff's evidence that it must have been between 1 September and 14 November 2002, when he was in fact working as a taxi driver.
Mr Hidding's evidence was that he was reading a newspaper in the taxi when, a few minutes into the journey, the plaintiff opened a conversation by asking whether Mr Hidding knew who he was. When Mr Hidding confessed that he did not, the plaintiff said: "Well, you may know me as Sergeant Sleaze". Mr Hidding interpreted the plaintiff's remark as somewhat jocular, rather than as a formal introduction. He recalled that the plaintiff said words to the effect: "I'm not sure whether this is the right time or place, but I'd like to take this opportunity to thank you for supporting me recently". However, he was adamant that was not the initiating statement in their conversation.
The plaintiff's evidence was that their eyes met in the rear vision mirror and he gained the impression that Mr Hidding, who he had recognised, had also recognised him. He was motivated to say: "I don't know whether this is the right time or place, but I'd like to thank you for the support that you have given me recently". He added: "Do you know who I am?" Mr Hidding responded: "Yes, I know who you are". Mr Hidding questioned why he was driving a taxi, and he explained he had trouble obtaining employment due to his association with the term "Sergeant Sleaze".
Their recollections of the rest of the conversation differed to some extent, but not in any material way. It is clear that the plaintiff thanked Mr Hidding because of his perception that Mr Hidding had supported him and done the right thing by him. It is also clear that the expression "Sergeant Sleaze" was used during their conversation.
The only material issue concerns whether the plaintiff opened their conversation with the words attributed to him by Mr Hidding. Because of the passage of time, I am unable to make a finding concerning precisely what words were used. However, on the balance of probabilities, I find that early on in the conversation the plaintiff mentioned to Mr Hidding that he was the person known as "Sergeant Sleaze", or the person Mr Hidding might know as "Sergeant Sleaze". I make the finding because I think it more likely that Mr Hidding's memory of the conversation is better than the plaintiff's memory. I accept Mr Hidding's evidence that he thought what the plaintiff had said was strange, and he mentioned it to the fifth defendant, Ms Whinnett, later that very day when she met with him at his office about other matters. It was as a result of his telling her about it that he came to be called as a witness. I add that I consider both the plaintiff and Mr Hidding were honest when recounting their recollections of the conversation.
The second of those witnesses was Sarah Fitzpatrick-Gray. She is a journalist at The Mercury, but in 2005 was employed as a media advisor for Centrelink.
Her evidence was that in or around 2005, the plaintiff was the driver of a taxi on a Saturday night for a journey from Mt Stuart to Battery Point. In the course of it she had a conversation with him which commenced with normal formalities, such as "hello", "how's your evening", and about the wet weather they were experiencing at the time. After a while, she said to the plaintiff: "Your face is familiar, where do I know you from?" She could no longer remember the precise words of the plaintiff's answer, but she recalls that he mentioned he was a former police officer who used to work in Queenstown and that he said something about being known as "Sergeant Sleaze". She was sure he referred to "Sergeant Sleaze", but in her words she was "just not sure what form in which he said those words". She agreed that the plaintiff had not introduced himself as "Sergeant Sleaze". She had only recently recounted the conversation to a fellow journalist at The Mercury and after that, to the defendants' solicitor.
The plaintiff gave evidence before Ms Fitzpatrick-Gray did so. In cross-examination, he was asked whether he remembered her or taking a passenger on the particular journey. He did not. Asked whether he recalled a passenger saying that his face was vaguely familiar, but she did not remember who he was, he responded that a number of his passengers recognised him and at times asked why they knew his face, and others immediately recognised and identified him as "Sergeant Sleaze". I accept his evidence that he had no memory of Ms Fitzpatrick-Gray or of their conversation.
It was put to the plaintiff that she asked why he looked vaguely familiar, and that he responded by saying: "I'm the former police officer from Queenstown who has been dubbed 'Sergeant Sleaze'." He denied having said that, claiming that he did not say such a thing to anyone. Of course, Ms Fitzpatrick-Gray did not claim he said that either.
I am unable to make a precise finding other than that there was a conversation about who the plaintiff was, and that Ms Fitzpatrick-Gray parted from the taxi with the knowledge that the driver was the man who was publicly dubbed "Sergeant Sleaze". That he was known as that may well have come up in the course of their conversation. I do not find that the plaintiff introduced himself as "Sergeant Sleaze".
The third of the witnesses was Carol Altmann. She said that in August 2004 she was a tutor at the University of Tasmania and relieving as a tutor for a group of journalism students that included the plaintiff. During the tutorial there was a discussion concerning negative publicity about the Governor of Tasmania[3].
[3] I note that the Governor resigned on 9 August 2004, complaining of a "malicious campaign" against him and his wife.
Ms Altmann's evidence was that at the end of the tutorial the plaintiff approached her and said he was surprised that the ex-Governor was not suing The Mercury because of negative press and added that he was suing The Mercury[4]. She expressed surprise about that and asked him why, to which he responded that he was "Sergeant Sleaze", which also surprised her, notwithstanding that she was aware of The Mercury's publicity concerning the man dubbed "Sergeant Sleaze". She had not identified the plaintiff as the person to whom the newspaper reports referred.
[4] This action was commenced by the plaintiff on 25 February 2004.
As was the case with the evidence of Ms Fitzpatrick-Gray, the plaintiff gave evidence before Ms Altmann did so. In cross-examination he said he did not remember her conducting a tutorial and maintained he had not met her. He had no memory of the conversation, or of a conversation like it with any journalism lecturer.
I find that the plaintiff did speak to Ms Altmann at the end of the tutorial conducted by her, and that he told her he was suing The Mercury because of its reports referring to him as "Sergeant Sleaze". However, I do not find that he introduced himself by that name, merely that he identified himself as the person named by The Mercury as "Sergeant Sleaze".
I do not accept the submission of the defendants' counsel that the evidence of those three witnesses justifies a finding that the plaintiff "adopted the appellation 'Sergeant Sleaze' … on three occasions". However I do find that he acknowledged to each of those witnesses he was the person The Mercury had branded as "Sergeant Sleaze".
An aspect of the cross-examination of the plaintiff
I have recounted some of the contents of the various reports in The Mercury, but not all. Apart from some incorrect statements in those reports to which I referred and, I think, another incorrect statement I have not detailed yet, it is not the plaintiff's case that the reports in The Mercury of what was said by witnesses or other participants in the Industrial Commission proceedings, or in any of the other proceedings reported in The Mercury, were inaccurate.
That was made clear at the trial by the plaintiff and his counsel. Nevertheless, in the course of cross-examining the plaintiff, counsel for the defendants spent a long time taking the plaintiff through many of the individual reports to have him acknowledge that they accurately reported what was said in the course of the various proceedings.
In that way, the defendants' counsel had the plaintiff acknowledge or not dispute the accuracy of reports that witnesses or others had asserted:
· he was formally disciplined in 1990 after making inappropriate comments with a sexual connotation to a female driver he had intercepted for a random breath test;
· he was convicted in 1992 for drink driving after recording a blood alcohol reading of 0.206, more than four times the legal limit;
· he was informally counselled in 1987 after making flippant comments in the visitors' book of the Derwent Bridge Hotel, including "the beer was flat and so were the local wenches";
· neither he nor J denied the sex act;
· the hotel bar manager asked him and J to leave the hotel;
· he and J went upstairs to the coffee lounge where he pulled down her trousers and tore off her underpants, placing them on his head;
· the incident had become the talk of Queenstown;
· the hotel bar manager, Ms Brewer, had turned on the light in the coffee lounge of the hotel at about 1.30am and found the plaintiff and J;
· the hotel bar manager thought there was oral sex going on and that if someone was so desperate they could have asked for a key for upstairs or gone to their own houses;
· Ms Brewer twice asked the pair to leave and threatened to call the police, later attracting the attention of two patrolling police constables as they walked past the window;
· Ms Brewer had seen the plaintiff and J sharing a passionate kiss in the bar after winning an eight-ball game and embracing "mauling each other";
· the barman, Troy Miller, was concerned about the publicity on the hotel, which aimed to attract families;
· Constables Rainbird and Wolfe considered that the plaintiff's sex antics had become the talk of Queenstown;
· both those officers had heard the plaintiff referred to in Queenstown as "Sergeant Licker";
· although he was not in Queenstown on the night of the incident, Constable Rainbird soon heard about it from a Queenstown petrol station attendant;
· Constable Rainbird thought such gossip did not make it any easier to perform the duties of a police officer on the west coast, and it had caused police to become the subject of ridicule;
· Constable Wolfe saw the plaintiff staggering down a street with J, looking fairly intoxicated;
· Constable Wolfe acknowledged that the plaintiff's conduct breached the Tasmania Police Code of Conduct;
· Sergeant Sheahen said that the plaintiff seemed to be promoting a culture of excessive drinking and partying, particularly with the constables;
· Sergeant Sheahen became so concerned about his young constables' drinking habits that he held individual talks with them;
· Sergeant Sheahen said the plaintiff had turned up for shifts hung over;
· Sergeant Sheahen said he was not surprised by the plaintiff's sacking over the latest incident, adding that "some people saw the funny side of it, ridiculing us at the station … others were quite disgusted that a police officer would allegedly do such a thing";
· Sergeant Sheahen said "it has definitely brought a discredit to the service, and discredit to those of us still there";
· the Commissioner of Police said that the plaintiff's "antics" with J at the hotel were notorious and his actions had significantly tarnished the reputation of the service;
· the Commissioner said that the plaintiff was not welcome back at Tasmania Police because officers and office workers did not want him amongst their ranks;
· the Commissioner asserted that the plaintiff could have been charged with crimes of indecent or offensive behaviour, but Tasmania Police decided to handle the matter internally;
· the Commissioner said the plaintiff had lied about how much he could remember of the sex act, and about how many other people knew about it;
· Sergeant Whitwam said that the plaintiff and J were kissing passionately, and it went to the point of pulling each other's clothes out, referring to a different incident which occurred at the police station;
· Sergeant Whitwam said she was embarrassed by the display because it was "just not appropriate in public";
· the plaintiff's counsel submitted that the plaintiff had been spitefully reported to senior police by relatives of a Queenstown boy he had arrested and that members of Tasmania Police's Internal Investigations Unit travelled immediately to Queenstown, where they substantiated the rumour that the plaintiff had engaged in a sex act with a woman in the coffee lounge of the Empire Hotel;
· the plaintiff's counsel said numerous people in Queenstown knew about the incident, and most of the police attached to the Queenstown Police Station also knew;
· the plaintiff's counsel submitted that all it showed was that he allowed himself to become a bit too frisky with the fillies;
· counsel for the Commissioner submitted that the plaintiff's counsel had attempted to downplay the seriousness of the plaintiff's actions in referring to his behaviour as being "frisky with fillies" and that it was a lot more than that as he was the officer in charge of Queenstown police, and there was no doubt everyone knew who he was and what his position was in town.
Delay in prosecuting the action
It was submitted for the defendants that there was such a long delay by the plaintiff in prosecuting the action that his reputation had been restored or diminished by subsequent events.
The submission was based on a statement by Chesterman J in Quinlan v Rothwell [2008] QSC 143 at par[38], in the course of a consideration of an application to dismiss a defamation action for want of prosecution over 17 years after the action commenced. His Honour noted that the plaintiff was seeking a very substantial sum for damages for lost reputation and injured feelings, which it was claimed would be necessary as a salve and as a vindication of the plaintiff's reputation as a valuer, and continued: "But damages simply cannot have those effects after the passage of 18 years. Quite apart from the obvious inference that the plaintiff's feelings were not hurt, or that he was indifferent to the hurt, which arises because of his lack of interest in pursuing the action to trial, there is the point that an award of damages so long after the event will not serve to repair the plaintiff's reputation, which will have been restored, or diminished, by subsequent events".
There was nothing said by Chesterman J which is of real assistance to me when deciding whether the defendants' publications were defamatory of the plaintiff. At its strongest, it is relevant only to the amount of damages. It is not authority for the proposition that because of the delay the plaintiff is not entitled to damages from the defendants for defamation.
Further, whether the plaintiff was defamed, whether and to what extent his reputation has been damaged or restored, and what amount of damages should be awarded in his favour, are questions for my determination on the evidence.
It is undoubted that the action could have been prosecuted with far more vigour than it was. A period of six years elapsed between the close of pleadings in June 2004 and the filing of a certificate of readiness in June 2010. In a letter dated 22 September 2006, the plaintiff's solicitors said to the defendants' solicitors that the action was ready for trial and they called a compulsory conference. From time to time over the next four years, there was some attention to the matter, but the cross-examination of the plaintiff by the defendants' counsel demonstrated there were long periods of inaction.
When cross-examined about the delay, the plaintiff was unable to explain the reason, other than to say that he left the management of his case to, and relied upon, his solicitors and that whenever they requested some step to be taken by him personally, such as the provision of documents and information, he did whatever he was asked. He made it clear that at all times his resolve was to pursue the action. I accept his evidence and in particular, that he relied on his solicitors to do what was necessary to promote his case.
Was the plaintiff defamed by the defendants?
It is the plaintiff's case, as pleaded in par90 of his statement of claim, that in their natural and ordinary meaning, the publications for which he sued meant and were understood to mean:
(a)evidence had been given in proceedings on the day preceding each of the publications that the plaintiff had been called "Sleaze" or "Sergeant Sleaze";
(b)he was generally known as "Sergeant Sleaze";
(c)his past conduct had been such that it was appropriate that he be known as "Sergeant Sleaze" or "Sleaze" on all other occasions when mentions were made of him in The Mercury, regardless as to whether The Mercury was reporting on the proceedings before the Commission, the outcome of the proceedings before the Commission, the subsequent appeals, the settlement of the proceedings, and other proceedings in the Magistrates Court involving him;
(d)he was of low moral character;
(e)he was sleazy of character;
(f)he habitually engaged in immoral activities;
(g)he habitually engaged in lewd activities;
(h)he had habitually engaged in reprehensible conduct;
(i)he was held in low esteem by members of the public;
(j)his character and actions as reported in the media were such that he should be held up to ridicule in cartoons published by the first and second defendants.
It is also the plaintiff's case, as pleaded in par91 of his statement of claim, that by reason of the publications he has been greatly injured in his credit, reputation and profession, been brought into ridicule and contempt, and suffered loss and damage.
In their defence, the defendants pleaded a denial of pars90 and 91. In addition they pleaded that in their natural and ordinary meaning, the publications meant and were understood to mean, that the plaintiff had been dubbed "Sergeant Sleaze" by members of the public and in proceedings before the Tasmanian Industrial Commission.
In its original form, the defence dated 18 June 2004, raised three defences under sections of the Defamation Act 1957.
Paragraph 5 of the defence raised the defence of public interest in s13, pleading that some of the reports and one of the day bills were fair reports, made in good faith, of proceedings involving the plaintiff before the Tasmanian Industrial Commission.
Paragraph 6 raised the defence of fair comment in s14, pleading that all of the publications complained of constituted fair comment by the defendants respecting the public conduct of the plaintiff as a police officer who was a person taking part in public affairs, and the conduct of the plaintiff as a public officer or public servant in the discharge of his public functions.
Finally, paragraph 7 raised the defence of qualified privilege in s16(h), pleading that the publications complained of were made in good faith in the course of, or for the purposes of, the discussion of a subject of public interest, the public discussion of which was for the public benefit.
However, at the commencement of the trial, the defendants abandoned those three defences.
In summary, it was submitted in closing by counsel for the defendants that none of the publications complained of was defamatory of the plaintiff or alternatively, not all of them were defamatory of him. It was submitted in the alternative that if some or all of them were defamatory of him, nevertheless his reputation was not damaged beyond the damage it had already suffered as a result of the publicity not claimed to constitute actionable defamation.
It was submitted for the defendants that rather than complain about damage to his reputation the plaintiff, on occasions, adopted the appellation "Sergeant Sleaze".
It was also submitted that because of the plaintiff's long delay in prosecuting the action, his reputation, to the extent that it might have been damaged by any defamatory publication, has been restored or diminished by subsequent events.
An imputation concerning a person is defamatory if because of it, his reputation is likely to be injured, he is likely to be injured in his profession or trade, or other persons are likely to be induced to shun, avoid, ridicule, or despise him. Defamation Act 1957, s5(1). It matters not whether the imputation is expressed directly or by insinuation or irony. Section 5(2). Whether a matter is or is not defamatory is a question of fact. Section 5(3).
Whether the defamatory nature of the publication is established depends upon whether reasonable persons[5], right-thinking members of society generally[6], or ordinary persons not avid for scandal[7] would understand the published words in a defamatory sense. That question raises two separate questions. Reader's Digest Services Pty Ltdv Lamb (1982) 150 CLR 500 per Brennan J at 506.
[5] Capital and Counties Bank v Henty (1882) LR 7 App Cas 741 at 745.
[6] Sim v Stretch (1836) 52 TLR 669 at 671.
[7] Lewis v Daily Telegraph Ltd [1964] AC 234 at 260.
The first question to be determined is what the hypothetical referee would consider to be the meaning of the words used, that is to say, the imputation. The second question concerns the defamatory character of the imputation.
What then would the hypothetical referee consider is meant if a man is said to be a "sleaze", or is described as "sleazy", and particularly in the circumstances of this case, a police sergeant is referred to as "Sergeant Sleaze"?
Counsel for the defendants referred to no dictionary meaning of "sleaze". Counsel for the plaintiff referred to the Macquarie Dictionary 4th ed (2005) which provides: "sleaziness; sordidness", as well as "sleaze onto: to attempt to entice (someone) into having sex". The New Shorter Oxford Dictionary (1993) provides: "a sleazy person, spec a slut".
There are a number of online dictionary meanings of "sleaze" that assist. The Oxford English Dictionary 2nd ed (1989) provides: "a person of low moral standards". Chambers 21st Century Dictionary (2001) similarly provides: "someone of low, especially moral, standards". The Penguin English Dictionary (2007) provides: "a sleazy … person". Dictionary.com provides a number of meanings that include: "a contemptible or vulgar person … a low and despicable person … to act low, to be sexually promiscuous".
The associated word "sleazy" is also defined in dictionaries. Counsel for the plaintiff referred to the Macquarie Dictionary's: "colloquially of dubious moral character, especially in relation to sexual matters". The Penguin English Dictionary provides: "of behaviour: corrupt or immoral". Dictionary.com provides: "contemptibly low, mean, or disreputable". Chambers 21st Century Dictionary provides: "cheaply suggestive of sex or crime; disreputable and considered to be of low standards, especially with regard to morals".
In the context of the defendants' reports concerning the plaintiff, I find that the reference to "sleaze" was suggestive of a person whose sexual morals and standards were low, as well as contemptible, despicable and disreputable.
In the main body of the defendants' publications the word "sleaze" was almost invariably used as part of the term "Sergeant Sleaze". In most of the headlines and some of the day bills, the reference to "Sergeant" was omitted for convenience and brevity, but the constant imputation in all of the publications of which the plaintiff complains, was that he was generally known as "Sergeant Sleaze", particularly in Queenstown. From that, readers of The Mercury were likely to infer that those who knew him and referred to him in that way believed his sexual morals and standards were low, contemptible, despicable and disreputable, to the extent that he deserved to be ridiculed by the use of the disparaging epithet "Sergeant Sleaze".
I find that by their publications, the defendants deliberately maintained that ridicule of the plaintiff by making repeated references to him by the derogatory term "Sergeant Sleaze".
The words used by the defendants conveyed the meanings pleaded in sub-pars(b), (c), (d), (e), (f), (g), (h) and (i) of par90 of the statement of claim.
In the case of most of the publications, a meaning not open was the one pleaded in par(a), that evidence had been given in proceedings on the day preceding each of the publications that the plaintiff was known as "Sleaze" or "Sergeant Sleaze". That was incorrectly reported in The Mercury's headlines of 3 May 2002, but the plaintiff did not sue for it. It was incorrectly reported on 4 May 2002 and the plaintiff has sued for it. Thereafter, the tenor of the references to him as "Sergeant Sleaze" was that he was generally known as and dubbed "Sergeant Sleaze" and not that there had been evidence the day before that he was known by that name. If the repeated references in The Mercury to him by that name were based on the evidence of Ms Brewer on 2 May 2002 that she had heard some of the local people who drank at the hotel refer to him as "Sergeant Sleaze" because he had put his arms around a woman, they were gross exaggerations. However, I suspect they also had as their foundation the misreporting on 4 May 2002 that Constable Rainbird had given evidence that the plaintiff had become known as Sergeant Sleaze around Queenstown.
Counsel for the defendants submitted that the issue is what, if anything, was published by the defendants by which the reputation of the plaintiff was likely to be injured? He referred to Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 at par[3], for authority that a person's reputation may be said to be injured when the esteem in which that person is held by the community is diminished in some respect. That case concerned the common law, but there is no doubt that the proposition applies to the question raised by the Act, s5(1)(a), which is in terms that "the reputation of that person is likely to be injured". But that is not all that is raised by s5(1). Paragraph (c) also poses as a material question whether "other persons are likely to be induced to shun, avoid, ridicule, or despise that person". An imputation that has that effect is also defamatory.
Counsel for the defendants conceded that publications that repeatedly portray a person as sleazy would be defamatory of most people. What he submitted was that because of other parts of the defendants' publications that are not claimed by the plaintiff to have been unlawful, and particularly the references to evidence and findings in the reasons for decision of the Commissioner of 27 June 2002, which are available for members of the public to read via the internet, his reputation was and is already that of a "sleaze" or sleazy person, and the repeated identification of him as the man dubbed or known as "Sergeant Sleaze" was not likely to have injured his reputation further.
He submitted that an ordinary person, not avid for scandal, might think from the legitimate parts of the publications that the plaintiff's conduct was sleazy.
Thus, my understanding of the submission was that the following conduct, that was legitimately reported as having been described in evidence before the Industrial Commission, was sleazy conduct:
· on occasions the plaintiff put his arm around women in the hotel bar and as a result, some of the people who drank there said he was "Sergeant Sleaze";
· he committed sexual acts with J in a corner of the disused coffee lounge upstairs in the hotel which, notwithstanding that the lounge was darkened, were able to be observed by Mr Miller and Ms Brewer as they ascended the stairs because, in the Commissioner's words he and J "took inadequate steps to conceal an otherwise perfectly lawful and normal act";
· shortly before, in the hotel bar, the two had shared a passionate kiss after winning an eight-ball game and were in an embrace "mauling each other";
· in 1987 he wrote in the visitors' book of the Derwent Bridge Hotel that "the beer was flat and so were the local wenches".
Counsel for the defendants took me through each of the publications claimed by the plaintiff to amount to unlawful defamation.
The first was the one in The Mercury of 4 May 2002. It was the second of many reports in which the plaintiff was branded by the defendants "Sleaze" or "Sergeant Sleaze". It incorrectly reported that Constable Ben Rainbird had given evidence the day before that the plaintiff had become known as "Sergeant Sleaze" around Queenstown. In a submission I had difficulty understanding, counsel submitted that the branding of the plaintiff as "Sergeant Sleaze" in that publication "was so soon after the actual evidence was given that I submit it cannot be said to be so far removed from the evidence as to be an actionable defamation". Presumably, he was referring to the evidence of Ms Brewer on 2 May.
I will not relate all of the submissions of the defendants' counsel that concerned each of the publications for which the plaintiff sued, but will summarise them. He submitted that by referring to the plaintiff as "Sleaze" or "Sergeant Sleaze" the defendants were merely repeating that description of him in Ms Brewer's evidence. He submitted that a number of the references to "Sergeant Sleaze" were in inverted commas, indicating to readers that it was not just The Mercury which was calling him that, it was a term that had been attributed to him in evidence before the Commission. Many of the reports expressly referred to him as the person known as, or dubbed, "Sergeant Sleaze", indicating the same thing. Even if the terms were used without inverted commas, The Mercury's readers would have understood that they referred to the plaintiff's nickname about which evidence had been given before the Industrial Commission.
I interpolate with a point well made by the plaintiff's counsel. If those members of the public who read all or some of the reports over the following 15 months had not read (or remembered) the report on page 2 on 3 May 2002 that referred to Ms Brewer's evidence, they may not have been aware that any evidence had been given that the plaintiff was known by the nickname, except insofar as that awareness may have been based on the incorrect report on 4 May 2002 that Constable Rainbird had given evidence that the plaintiff had become known as Sergeant Sleaze around Queenstown.
I have no hesitation in concluding that the defendants unlawfully defamed the plaintiff in all of the publications for which he has sued. By their repeated references to him as Sergeant Sleaze and the like they injured his reputation and made it likely that other persons would shun, avoid, ridicule and despise him. Not only did they make those things likely, they in fact occurred.
Thus, I find that those persons he described in evidence as having ridiculed, belittled or abused him by calling him, or shouting out, "Sergeant Sleaze", did so because of the publications. I find it extremely unlikely that they would have done so merely as a result of the publications on 2 and 3 May 2002, or those parts of the subsequent publications for which he has not sued.
I find that if it had not been for the unlawful defamatory publications, it is unlikely he would have suffered any of the consequences to which he referred in evidence, such as, for example, the skit at the University Revue, and the aversion people expressed about him holding employment at particular places, such as at the hospitals, hotel and the Taste of Tasmania.
I find that the report written by the sixth defendant, Mr Rose, on 4 May 2002, that Constable Rainbird had given evidence before the Industrial Commission that the plaintiff had become known as Sergeant Sleaze around Queenstown was also unlawfully defamatory of him, as well as false, and added to the damage to his reputation.
In his closing address, counsel for the plaintiff referred to an incorrect part of the report in The Mercury of 28 June 2002, that there were claims he had sex in his office during a police barbecue in May 2001. I ignore that because it is not a publication for which the plaintiff claims damages in the statement of claim.
I conclude that the claim in the defence that the plaintiff had been dubbed "Sergeant Sleaze" by members of the public, and in proceedings before the Tasmanian Industrial Commission, is an exaggeration of the true position. The Mercury's reports of 7 May, 28 June, 29 June and 15 August 2002 and 12 July, 17 July, 19 July and 9 August 2003, which referred to the plaintiff as the man dubbed "Sergeant Sleaze", were also exaggerations of the true position or, to put it another way, they were true because the defendants had dubbed him by that name. I accept the submission of the plaintiff's counsel that in the interests of accuracy, Ms Brewer's uncorroborated evidence concerning the use of that name by some customers did not justify the repeated use of it by the defendants when referring to the plaintiff.
Counsel for the plaintiff condemned the defendants by submitting that the defamatory publications were "pathetic, lurid, and at times juvenile", "sensational public grabbing headlines", "designed to titillate" and to "excite the puerile interests of those members of the public who would like to read those sorts of headlines and articles". To an extent I agree.
I accept the submission of the defendants' counsel that the plaintiff's reputation was damaged as a result of the publicity not claimed to constitute actionable defamation. In other words, it was damaged by those parts of the publications that amounted to fair reports of the proceedings before the Industrial Commission. I refer in particular to the revelations to readers that evidence had been given of his conduct over the years involving drinking of alcohol and his conviction for drink driving, sexual or romantic interludes that were capable of being witnessed by others, making of inappropriate comments with a sexual connotation to a female driver he intercepted for a random breath test in 1990, the evidence of Ms Brewer that some females had referred to him as Sergeant Sleaze after he had put his arms around them, and the evidence of other police officers expressing concern about his conduct and their perceptions that it discredited and tarnished the reputation of the police service. References to some of that material were also made in the reasons of the Commissioner published on 27 June 2002, which have remained accessible to the public.
But I do not accept the submission that because of the disclosure of that material, the plaintiff's reputation was unlikely to have been injured further by the unlawful defamatory material published by the defendants. I refer in particular to the public ridicule to which they subjected him by their repeated references to him as Sergeant Sleaze, not only in reports of the proceedings before the Industrial Commission, but also in reports that had nothing to do with those proceedings.
Damages
There are three purposes to be served by damages for defamation (other than damages for specific economic loss and exemplary or punitive damages). They may overlap considerably in reality and ensure that the amount of the judgment is a product of a mixture of inexplicable considerations. The three purposes are consolation for the personal distress and hurt caused by the defendant or defendants to the plaintiff by the publication or publications, reparation for the harm done to the plaintiff's personal reputation and vindication of his reputation. The first two purposes are frequently considered together and constitute consolation for the wrong done to the plaintiff. Vindication looks to the attitude of others to the plaintiff: the sum awarded must be at least the minimum necessary to signal to the public the vindication of his reputation. Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60 – 61.
I will not repeat the evidence of the plaintiff, which I accept, concerning the ridicule over the years and how he has suffered with feelings of depression and anxiety. That he went to the lengths of changing his name by deed poll is graphic evidence of how he was terribly affected by the publicity. I find that the unlawful defamatory material was the cause.
I will include aggravated damages in the award of general damages, in response to what appears to have been high-handed, malicious, insulting and oppressive behaviour on the part of most of the defendants over a prolonged period of time. In general terms, they deliberately engaged in repeated ridicule of the plaintiff for no apparent reason other than that they thought that at his expense, members of the public would be drawn to read the newspaper and their reports. None of them has conceded, publicly or to him, that they did wrong. Why that is so is impossible to understand. Instead they have maintained to the end that they did no wrong and that, such was the plaintiff's poor character and reputation, he suffered no harm as a result of the ridicule they heaped upon him. As to aggravated damages, see for example Rookes v Barnard [1964] AC 1129 at 1221; Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 151; Broome v Cassell & Co Ltd [1972] AC 1027 at 1085; Carson v John Fairfax & Sons Ltd (supra) at 71.
When assessing damages, I have regard to the evidence of the circulation figures of The Mercury for each of the publications, other than the one on 4 May 2002. The circulation of The Mercury on the relevant dates varied between 45,335 at the lowest, to 68,982 at the highest. Concerning the day bills, about 1020 were circulated to newsagents, shops and other outlets each day, but for a particular day not all referred to the plaintiff.
I also have regard to the principle approved in Carson v John Fairfax & Sons Ltd (supra) at 54, that when considering damages for defamation for more than one cause of action it is legitimate to consider in turn the total of the verdicts for each cause of action, so that it represents appropriate compensation for the aggregate harm inflicted upon the plaintiff by all defamatory publications.
However, at the same time it cannot be overlooked that there were 35 publications over a period of 15 months, and they were made to a very large number of people. Many gave prominence in headlines or headings to the name "Sleaze", "Sergeant Sleaze" or "Sgt Sleaze", often in large block capital letters.
When assessing damages for the publication of the unlawful defamatory material I also have regard to my assessment of the likely damage to the plaintiff's reputation that was brought about in any event by the publication of the defamatory material that was not unlawful because it amounted to a fair report of the proceedings before the Industrial Commission. Notwithstanding that, the public ridicule the defendants heaped upon the plaintiff and thereby caused others to ridicule, shun and avoid him, by their repeated references to him as Sergeant Sleaze and the like, demands substantial damages.
In respect of the first publication, which erroneously stated that Constable Rainbird had given evidence that the plaintiff had become known as Sergeant Sleaze around Queenstown, I assess general damages at $4,500 plus aggravated damages of $500, a total of $5,000, against the first two defendants and the responsible journalist, the sixth defendant.
In respect of each of the other publications I assess general damages of $2,500 plus aggravated damages of $500, a total of $3,000, against the first and second defendants and the responsible journalist.
The plaintiff also claims exemplary or punitive damages. I have power to award them, although for publications since the commencement of the Defamation Act 2005 no such power remains.
Exemplary damages may be awarded in a case of contumelious disregard of another's rights. Uren v John Fairfax & Sons Pty Ltd (supra) at 122, 138, 147, 154 and 160. Those responsible for the publications, and particularly the first and second defendants, chose that when referring to proceedings concerning the plaintiff, he should be referred to as Sergeant Sleaze and the like, when in fact, in almost every case, no such reference had been made to him in the proceedings being reported. It was an extremely unfair way to report proceedings and matters concerning him. When describing him in that way, they were not reporting the news, which is the basic function of a newspaper, but instead were subjecting him to scorn and ridicule.
I conclude that they consciously adopted that course. I infer that they did so in the hope and expectation that more members of the public would be attracted by and would read The Mercury for its apparent salacious content, with callous disregard for the feelings of the plaintiff and his reputation.
This is a proper case for an award of exemplary damages against the first and second defendants. It was in the commercial interests of the first defendant that the publications were made in that way. The second defendant had overall responsibility for the content of the newspaper and ultimately, it was his responsibility to control it.
I have determined not to award exemplary damages against the other defendants, for it was not their ultimate responsibility to determine what should or should not be published.
In respect of each publication I award $500 exemplary damages against the first and second defendants.
Conclusion
There will be judgment against the first and second defendants for general damages of $89,500 plus aggravated damages of $17,500 and exemplary damages of $17,500, a total of $124,500.
There will be judgment against the third defendant for general damages of $2,500 plus aggravated damages of $500, a total of $3,000.
There will be judgment against the fourth defendant for general damages of $10,000 and aggravated damages of $2,000, a total of $12,000.
There will be judgment against the fifth defendant for general damages of $20,000 plus aggravated damages of $4,000, a total of $24,000.
Finally, there will be judgment against the sixth defendant for general damages of $24,500 and aggravated damages of $4,500, a total of $29,000.
Liability will be joint and several, so that the plaintiff will be entitled to receive damages totalling $124,500 from all defendants.
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