Kilpatrick v Van Staveren

[2003] QCA 303

SUPREME COURT OF QUEENSLAND

CITATION:	Kilpatrick v Van Staveren & Anor [2003] QCA 303
PARTIES:	ANDREW KILPATRICK
(plaintiff/respondent)
v  10
DUDLEY VAN STAVEREN (first defendant/first appellant) CHUBB SECURITY AUSTRALIA PTY LTD ACN 003 605 098 (second defendant/second appellant)
FILE NO/S:	Appeal No 11103 of 2002 DC No 32 of 2000
DIVISION:	Court of Appeal  20
PROCEEDING:	General Civil Appeal
ORIGINATING  COURT:	District Court at Mount Isa
DELIVERED EX	18 July 2003
TEMPORE ON:
DELIVERED AT:	Brisbane
HEARING DATE:	18 July 2003  30
JUDGES:	de Jersey CJ, Davies JA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed with costs
CATCHWORDS:	DEFAMATION - STATEMENTS AMOUNTING TO
DEFAMATION - PARTICULAR STATEMENTS -
IMPUTATION - CRIMINAL - where plaintiff engaged to
carry out engineering work at a mining company - where 40
shipping container on site was used as an office and tool shed
- where, at completion of work, shipping container inspected
to ensure it did not contain property of the mining company -
where plaintiff was present when inspection occurred - where
property of mining company found in container - where
plaintiff signed form of acknowledgment that property had
been found - where defendant sent letter to plaintiff's
employer stating that plaintiff was found in possession of 50
property of mining company - whether letter was defamatory
of the plaintiff
DEFAMATION - JUSTIFICATION - TRUTH - where defendants raised defence of publication being truthful and in the public benefit - where trial judge held that letter did not contain the truth - where facts in the letter were not checked - whether defence should succeed

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DEFAMATION - PUBLICATION - GENERALLY - REPUBLICATION - where letter was topic of general discussion in workplace - where plaintiff heard remarks from other workers which indicated their knowledge of letter - whether open to the trial judge to conclude that republication was natural and probable consequence of publication

DEFAMATION - DAMAGES - GENERAL DAMAGES -

where trial judge awarded $50,000 in damages - where	10
plaintiff suffered emotional and physical symptoms following defamation - where defendant gave evidence that he did not believe the plaintiff was a thief - whether amount of damages awarded was manifestly excessive
Defamation Act 1889 (Qld), s 16(1)(c), s 16(1)(e)

COUNSEL:  A P J Collins for the appellants M E Eliadis for the respondent

20

SOLICITORS:  McCabe Terrill for the appellants
Anderson Telford Lawyers (Mount Isa) for the respondent

DAVIES JA: These are appeals by Chubb Security Australia Pty Ltd, which I will call Chubb, and Dudley Van Staveren, whom I will call Van Staveren, against judgments against each of them

for $50,000 damages for defamation. The plaintiff/respondent	30
is Andrew Kilpatrick a leading hand carpenter employed by J & E Schmider Pty Ltd which traded as Schmider Engineering Group ("SEG"). The appeal is against both the conclusion of the
learned trial judge that the defendants were liable in
defamation to the plaintiff and the assessment of damages.	40
Kilpatrick has always lived and worked in Mount Isa and has
been employed by SEG since October 1995. He is an honest man
who is held in high regard by the executive officers of SEG.
His wife is employed as a cook by Mount Isa Mines Limited	50
(MIM). In July and August 2000 SEG was engaged in carrying out engineering work at MIM's George Fisher Mine Lease. It had at the construction site, called K74, a shipping container
which was used as an office and a tool shed. It had one

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usable door capable of being locked. The plaintiff had a key
to that lock as did his supervisor Mr Jackson and one or two
other SEG employees. It contained a large number of valuable
tools and construction items and was locked at the end of each

shift.	10
Chubb was retained by MIM as its security consultant. There
was a security gate at the entrance to the George Fisher Mine
Lease which was some five kilometres from K74. However, to
get to K74 and to leave it one had to go through that security	20
gate.
At about the time I have mentioned MIM and Chubb had adopted a
"get tough" policy designed to combat serious and costly
pilfering. It was widely publicised that searches of vehicles	30
would routinely be made as they were being driven out of the possession of MIM property risked criminal prosecution and being barred from the MIM Lease.
40
In early August 2000 SEG finished its work at K74. Jackson
told the plaintiff to arrange for the removal of the container
from K74. This would involve having a truck and crane go to K74, loading the container onto the truck with the crane and driving off the mining lease through the security gate.	50
However, the container could not leave the mine under the
policy I have mentioned, until it had been inspected by Chubb to make sure that it did not contain MIM property. Given the size of the container and the large number of items of

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equipment contained in it, it was arranged that the container
would be inspected where it was, rather than when it arrived

would remove the lock. This was apparently a common way in	10
which such inspections were carried out.
Having been given those instructions as I have mentioned the
plaintiff phoned Chubb and arranged for an inspection to take
place at 11 a.m. on 17 August. Then he and another SEG	20
employee drove out to the mine and to K74 where he met a Chubb
security guard, Mr Mick. He unlocked the container door and
let Mick go inside, then shut the door at Mick's request.
This was done because MIM property was painted with a type of
luminous paint which showed up clearly in a torch beam.	30
During his inspection aided by his torch Mick found a welding lead which had some of this paint on it and therefore could be identified as MIM property. The paint was not readily visible to the naked eye.
40
The learned judge concluded, and there does not seem to be any dispute about this, that the plaintiff had no knowledge of the presence of the lead in the container nor of the process by
which it got there. However, at Mick's request the plaintiff
signed a form of acknowledgement that the lead had been found	50
locked by Mick and the plaintiff and his companion left the mine lease. Several days later the container was removed in the manner I have described.

at the gate, after which it would be locked with a Chubb lock.
Then as it passed through the gate, the Chubb security guard

in and removed from the container. The container was then authority as Chubb's local manager, wrote a letter to SEG addressed "To the Manager" which contained the following: 4 60

"For your attention and action. On the 17th of August	10
your employee Andrew Kilpatrick has been found to be exiting the Mount Isa Mines Lease whilst in possession of MIM property.
If goods are removed from the Lease without the relevant
authority for the goods to leave, this is to be seen as
theft. On this occasion your employee has been found in
the possession of one (1) welding lead marked with
chemical security paint which is unique to MIM. On this
occasion no police action was taken, however, this	20
employee's name has now been circulated at the various exit points and if found in possession of MIM property again without the relevant authority the Police will be
contacted.
As you would appreciate, it is the individual's responsibility to ensure that he/she is exiting the Lease only with property which that person is authorised to do so."	30

The letter was an adaptation of a standard letter which Van
Staveren had earlier drafted, submitted to MIM, and received

MIM's approval for use.

40

The letter was posted to SEG. There was no evidence that it
was marked confidential or bore any endorsement which would
prevent the letter being handled in any way out of the
ordinary. The learned trial judge found on the balance of

probability that, in the ordinary course of office procedure	50
it was opened by SEG's receptionist and registered by her in a
company mail record book. She then gave it to Mr Hastie the
SEG operations manager who in turn showed it to Jackson or at
least told him of the contents. Jackson approached the

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plaintiff and asked him if he had pinched something from the
mine. On his denial Jackson referred him to Hastie who showed

him the letter and asked him to explain it. The plaintiff explained what had happened and Hastie accepted that. The letter was also published to Mr Davidson the MIM manager of	10
George Fisher Mine.
The plaintiff attempted to see Van Staveren and Hastie
telephoned him. Van Staveren was aware that the plaintiff and
Hastie interpreted the letter as calling the plaintiff a	20
thief. Van Staveren did not apologise or say that the accusation of theft was not intended.
The plaintiff later consulted a solicitor who wrote a letter
dated 15 September 2000 to Van Staveren saying, amongst other	30
things, that the allegation that the plaintiff was "found to be exiting Mount Isa Mines Lease whilst in possession of MIM property" was factually incorrect. The letter also sought an
apology and an admission that the allegation was incorrect.
40
On 6 October Mr Schmider saw Van Staveren's letter, spoke to
the plaintiff and Hastie and accepted the plaintiff's
explanation. Shortly afterwards he and Mr Wilkinson the chief
executive officer of SEG to whom by now the letter must also
have been published, went to the George Fisher Mine where they	50
discussed the matter with Davidson. Davidson asked Schmider
and Wilkinson to dissuade the plaintiff from taking action,
saying at the same time, that no apology or retraction would
be forthcoming.

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The defendants have never apologised or retracted the
allegation and in their defence, amongst other defences,
allege that the matter contained in the letter was true and
that the publication was made for the public benefit. These

defences were maintained at trial.	10
The learned trial judge found that the contents of Van
Staveren's letter became known to others of SEG's employees. Schmider said that it was topic of general discussion in the workforce and there were comments from other workers which the	20
plaintiff overheard which indicated that those workers knew of the accusation and interpreted it as an accusation of stealing.
The learned trial judge found that the letter, according to	30
its natural and ordinary meaning, was defamatory of the
plaintiff, containing an accusation that he was a thief. He
also found that it contained material untruths because the plaintiff was not, in any real sense, in possession of the lead at any time; and even less so, found exiting the Lease	40
with the lead in his possession. He was merely the person
delegated by SEG to give Mick access to the container. This
much seems to have been accepted by Van Stavaren and Davidson
in an exchange of emails between them indicating that the lead
was not in the possession of the plaintiff but was in the SEG	50
container among SEG property.

It is a matter of some surprise to me that the appellants continue to contend on this appeal that the letter was not defamatory. In my opinion, it was plainly so. It plainly called the plaintiff a thief and it plainly contained material untruths. 7 60

In the alternative, the defendants relied on the qualified	10
protection provisions of s 16(1)(c) and s 16(1)(e) of the
Defamation Act 1889. The learned trial judge held that the defence under s 16(1)(e) failed at the threshold because it depended on the proposition that the publication was to let SEG know the truth, whereas the letter did not contain the	20
truth and, in fact, contained critical allegations which were
untrue. His Honour's conclusion, in my opinion, was
undoubtedly correct. The letter did not contain the truth.
Indeed, to the knowledge of the defendants, it contained
untruthful, misleading and deceptive statements. The	30
defendants had knowledge of the true facts but ignored them.
There was an additional reason, so the learned trial judge
held, why both defences must fail. There was an absence of
good faith. In reaching that conclusion, his Honour had	40
regard to the following relevant facts.
A pro-forma letter was used without regard to the actual
facts. The facts were not checked. Had they been properly
checked, the defendants could not reasonably have said that	50
sense, certainly not in the sense of an allegation of theft or similar dishonesty. Nor was he in any real sense exiting Mt

the plaintiff was in possession of the lead in any material this letter he had possession of a report containing details generally in accordance with the plaintiff's account of what had occurred. At no time did Van Staveren believe that the respondent was a thief or a dishonest person.	8	60
10

His Honour concluded from these facts that Van Staveren was
reckless, not caring whether the allegations in the letter
were true or false. Moreover, his Honour also held, the
defamation appeared to have been made, not in order to inform

SEG of any misconduct on the plaintiff's part, but in order to	20
be seen by MIM to be carrying out its "get tough" policy.
In my opinion, on those factual findings which were open, the
learned trial judge was justified in reaching the conclusion
which he did that there was a lack of good faith on the part	30
of the defendants which precluded their reliance on defences under s 16(1)(c) and s 16(1)(e).
The defendants do not contest the finding of the learned trial
judge that Van Staveren's letter was published to Hastie,	40
Jackson, Schmider, presumably also Wilkinson, the SEG
receptionist and Davidson. However, they do contest his
finding that the letter was republished and that the
republication was a natural and probable consequence of its
publication.	50
There does not appear to be any doubt, in my opinion, that it
was republished; Mr Schmider said that it was topic of general
discussion in the workforce of SEG and the plaintiff heard

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remarks from other workers which indicated their knowledge of
the published matter. The fact that it is unclear who
republished it to others in the workforce of SEG does not make
the inferences which his Honour drew impermissible. On the

contrary I think his Honour's conclusion was a reasonable one,	10
that one or other of the persons to whom it was published
republished it. Moreover, Davison admitted to having
republished the letter to senior management personnel. In my
opinion, his Honour's conclusions in this respect should not
be disturbed.	20
Moreover, it was also open to his Honour to conclude, as he
did, that the republication was the natural and probable
consequence of its publication, given the nature of the matter
published, the extent of its publication and the likely level	30
of interest which such a matter would attract. However the
relevance of such republication must be kept in perspective.
As will be clear from my discussion of compensatory damages,
they were awarded mainly for the effect which the reasonable
perception of publication had upon the plaintiff rather than	40
for damages following from the actual width of the publication.
The learned trial judge awarded compensatory damages assessed
initially at $30,000, which he increased to $40,000 to take	50
into account aggravated damages. He awarded an additional sum
of $10,000 for exemplary damages.

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Since he became aware of the defamation, the plaintiff
suffered emotional and physical symptoms. A doctor who gave
evidence said that the plaintiff had suffered a depressive
disorder, manifesting itself in anxiety, weight loss, sleep

disturbance, aggressive anger outbursts, increased alcohol	10
consumption and withdrawal from social contact with peers and
his children. The plaintiff described symptoms consistent
with those conditions. The doctor thought that the successful
of litigation with the vindication which it would provide
would be likely to cause some improvement to the condition,	20
but he thought that, given the length of the time that he had been suffering the disorder, it would persevere. As the learned trial judge found, the defamation had not just hurt the plaintiff's feelings, but actually made him ill.
30
The plaintiff's initial instructions to his solicitor were to
seek an apology. He said, and the trial judge accepted him, that a simple apology would have seen the end of the matter. No such apology was ever given. On the contrary, the
defendants' conduct thereafter was improper, unjustifiable and	40
lacking in bona fides. It was such as to justify an assessment of aggravated damages.
The award for compensatory damages, to include aggravated
damages of $40,000 may seem a little high in the light of some	50

authorities put before this Court by Mr Collins for the
appellant, but given the serious effect of the defamation on
the plaintiff's health and the conduct of the defendants
thereafter, I do not think it was outside the range of a sound
discretionary judgment, or to put it in terms of jury
verdicts, such that no reasonable person could have awarded
it. 11 60

The assessment of $10,000 for exemplary damages was made	10
primarily because Van Staveren gave evidence that he did not
believe that the plaintiff had stolen or attempted to steal
the lead. That evidence of his belief, that is that he always
believed that the plaintiff was not a thief, completely
undermined all of the defences which were pleaded. To	20
maintain those defences in the circumstances, his Honour
thought, was in contumelious disregard of the plaintiff's
rights. I agree. I think that the case justified an
assessment for exemplary damages and I do not think that the
amount of $10,000 was manifestly excessive under this head of	30
damage.
I turn, finally, to the costs appeal. The learned trial judge
awarded costs on an indemnity basis. The submission of the
appellants, that the implicit conclusion that the judgment was	40
"no less favourable" than the defendants' offer was wrong
because the plaintiff's offer included an apology in specific
terms, is contrary to the decision, it seems to me in this
Court, in Timms v Clift [1998] 2 QdR 100, at 101-108. I would
therefore reject that submission and consequently that ground	50
of appeal. For reasons I have given, I think that the appeal should be dismissed with costs.

THE CHIEF JUSTICE: I agree.
MACKENZIE J: I agree. 12 60

THE CHIEF JUSTICE: The appeal is dismissed with costs to be assessed.

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