Markovic v White

Case •

[2004] NSWSC 37

•

11 February 2004

No judgment structure available for this case.
CITATION: MARKOVIC v WHITE [2004] NSWSC 37
HEARING DATE(S): 2 February 2004
JUDGMENT DATE:
11 February 2004
JUDGMENT OF: Levine J
DECISION: 1. Judgment for the plaintiff in the sum of $232,800.; 2. The defendant is to pay the plaintiff's costs.; 3. The exhibits are to be retained.
LEGISLATION CITED: s46 Defamation Act 1974
s46A Defamation Act 1974
CASES CITED: Aboriginal Land Council v Perkins (1998) 45 NSWLR 340
Andrews v John Fairfax & Sons Ltd (1980) 2 NSWLR 225
Broome v Cassell [1972] AC 1027
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
Clarke v Ainsworth (1996) 40 NSWLR 463
Cotter v John Fairfax Publications Pty Ltd [2003] NSWSC 503
Crampton v Nugawella (1996) 41 NSWLR 176
John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131
Ley v Hamilton (1935) 153 LT 384
Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500
Rogers v Nationwide News Pty Ltd (2003) 201 ALR 184, [2003] HCA 52
Triggell v Pheeney (1951) 82 CLR 497
Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118

PARTIES :

BRIGITTE SANDRA MARKOVIC
(Plaintiff)

v

GERRARD WHITE
(Defendant)
FILE NUMBER(S): SC 20388 OF 2001
COUNSEL:

P Gray SC
(Plaintiff)

No appearance for defendant
SOLICITORS: Clayton Utz
(Plaintiff)

                              [2004] NSWSC 37

      IN THE SUPREME COURT
      OF NEW SOUTH WALES
      COMMON LAW DIVISION
      DEFAMATION LIST

      JUSTICE DAVID LEVINE

      WEDNESDAY 11 FEBRUARY 2004

      20388 OF 2001

      BRIGITTE SANDRA MARKOVIC
      (Plaintiff)

      v

      GERRARD WHITE
      (Defendant)
      JUDGMENT

1 The plaintiff, a solicitor of this Court, and a partner in the firm of Clayton Utz for 6 years, sues the defendant in respect of 4 publications.

2 Each publication was an email, the text and address list of each of which is appended hereto.

3 The first email, dated 19 February 2001, carries the following six defamatory imputations of the plaintiff:

          3(a) That the plaintiff is prepared to knowingly act in an unethical manner to promote the interests of her clients.
          (b) That the plaintiff is dishonest.
          (c) That the plaintiff has engaged in an act of fraud.
          (d) That the plaintiff is unscrupulous.
          (e) That the plaintiff is guilty of professional misconduct.
          (f) That the plaintiff is not a fit and proper person to hold a solicitor’s Practicing Certificate.

4 The second email, 27 February 2001, the third email, 28 February 2001 and the fourth email, 1 March 2001 each carries the following two imputations defamatory of the plaintiff:

          (a) That the plaintiff is dishonest.
          (b) That the plaintiff is a liar.

5 On 17 April 2003 I entered default judgment and thus the assessment of damages proceeded upon the basis that the various imputations in fact arise, that they are defamatory, and that there is no defence.

6 At the hearing before me on 2 February 2004 affidavits of Michael Batch, sworn 30 September 2003 and Ainslee Cox, sworn 23 January 2004 were read in relation to steps taken to inform the defendant of the first fixture of the hearing of the assessment of damages on 1 October 2003 – not reached; and of the second fixture, today. So far as it is necessary for me to make a finding, I do find that every reasonable effort has been made to bring to the attention of the defendant in relation to each date, the fact that this Court would be hearing the plaintiff’s case on the issue of damages.

7 I find that the plaintiff enjoyed a general settled reputation in the areas of honesty, integrity and professional competence, that is, the areas encompassed by the imputations. This finding is based upon the evidence of Kathryn Wendy Cato (affidavit sworn 30 September 2003) and that of David Cowling (affidavit sworn 30 September 2003).

8 Based upon the same testimony I am satisfied that the plaintiff evidenced hurt and distress at the stream of communications constituted by the separate emails sued upon. Further am I satisfied on the evidence of both the plaintiff and Mr Cowling that the institution of these proceedings was not a matter the plaintiff took lightly and that it was attendant with no small degree of anxiety.

9 Exhibit C is made up of a letter dated 27 February 2001 to the defendant at an address in Paris requiring him to apologise for the publication of the first matter complained of. The letter was unremarkable in its form; that cannot be said of the response, which is the second part of exhibit C being an email dated 9 March 2001.

10 By way of example I quote the second part of the defendant’s response:

          “I’m not sure why lawyers in general, and you to a greater extent than I’ve yet come across, think that whenever you are caught out, you can attempt some sort of clumsy elephantine pirouette, and betray your client by blaming him for your lies.
          Perhaps it is this fantasy that you must do everything you can in order to try and make sure that you may escape responsibility for everything you do which renders your actions so trivial, so stupid, so meaningless.
          Wake up! Settle!
          Gerrard White”

11 The totality of the material before me in relation to the issue of apology, satisfies me that the defendant’s failure to comply with a perfectly reasonable request was on any view, improper, unjustifiable and lacking in good faith and induced further concern and fears in the plaintiff.

12 Before turning to the evidence of the plaintiff herself, additional material as constituted by an affidavit of 5 August 2002 by Peter John Keel, originally relied upon in connection with the proceedings leading to the entry of default judgment, was read. This affidavit contains the text of certain telephone conversations that took place between the deponent and the defendant and a bundle of emails from the defendant to the deponent. In relation to this material I cannot be persuaded on the plaintiff’s evidence that her acquaintance with the detail of it was such as to add in a substantial way to the “hurt to feelings” component of her case. In her oral evidence Ms Markovic was candid about this lack of acquaintance with the detail though it might have been the case that she might have seen some of the emails. The substance of the material I am satisfied was known to her and to that extent I will take it into account on the question of increase to the hurt to her feelings on the basis that none of the conduct to which Mr Keel deposes can be characterised as otherwise improper, lacking in good faith and without justification.

13 Indeed, a conclusion readily can be reached from the material that this defendant was actuated by acute malice towards this plaintiff throughout the whole of his conduct in this matter. Further, as is required by s46(3)(b) of the Defamation Act 1974, I am satisfied that this express malice impacted upon the plaintiff and, relevantly, affected her hurt feelings in an aggravating way.

14 It is readily apparent from the material constituted by the matters complained of and the response to the request for an apology that the defendant’s conduct in publishing was actuated by this ill-will and spite; those characteristics constituted the essential purpose of the communications rather than any attempt on his part to seek some relief or remedy for some perceived wrong.

15 The evidence of the plaintiff was constituted by an affidavit sworn 30 September 2003 and oral testimony before me. In relation to each of the emails sued upon the plaintiff gave evidence as to the identity of the recipients. This is significant in terms not only the extent of publication which is somewhat more substantial, I find, than the mere list of addressees. These emails were addressed to people prominent in public life, commercial life and cultural life. Also, recipients were members of the legal profession, being other practitioners in her firm and elsewhere. This was an ambit of publication that, as I have said above, is far wider than the mere address list would disclose and further provides some foundation for the hurt to the plaintiff’s feelings and concern at the extent of the distribution of the libel.

16 I accept that Ms Markovic practised in specialised areas, particularly including government circles and that the impact of publication to people prominent in such circles would be greater than that which might affect someone without those circles. The evidence in support of this proposition I find to be clear in the testimony of the plaintiff and Mr Cowling.

17 The plaintiff gave evidence that the imputations were false to her knowledge and I find that to be so.


      Assessment of damages

18 Ss46 and 46A of the Defamation Act 1974 are as follows:

          46 General
              (1) In this Part "relevant harm" means, in relation to damages for defamation:
              (a) harm suffered by the person defamed, or
                  (b) where the person defamed dies before damages are assessed, harm suffered by the person defamed by way of injury to property or financial loss.
              (2) Damages for defamation shall be the damages recoverable in accordance with the common law, but limited to damages for relevant harm.
          (3) In particular, damages for defamation:
              (a) shall not include exemplary damages, and
                  (b) shall not be affected by the malice or other state of mind of the publisher at the time of the publication complained of or at any other time, except so far as that malice or other state of mind affects the relevant harm
          46A Factors relevant in damages assessment
              (1) In determining the amount of damages to be awarded in any proceedings for defamation, the court is to ensure that there is an appropriate and rational relationship between the relevant harm and the amount of damages awarded.
              (2) In determining the amount of damages for non-economic loss to be awarded in any proceedings for defamation, the court is to take into consideration the general range of damages for non-economic loss in personal injury awards in the State (including awards made under, or in accordance with, any statute regulating the award of any such damages).

19 Taking into account the statutory provisions one still approaches the task of the assessment by reference to the fundamental principle that the award of damages in a defamation action operates as a vindication of the plaintiff to the public, as a consolation for the wrong done to the plaintiff which includes both injury to feelings and damages to reputation: Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60; see also Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118 per Windeyer J at 150; John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131 per McHugh JA at 142.

20 It was submitted in this case that vindication is a very important element so that at any time in the future the plaintiff can point to the sum awarded as demonstrating the utter falsity of the allegations made against her: see Carson, supra, at 61 per Mason CJ, Deane, Dawson and Gaudron JJ.

21 As was submitted, the present case is concerned with emails which, given their content and ease of communication, may remain in circulation for the indefinite future. It is thus even more important for the plaintiff to be able to point to the sum awarded to “convince a bystander of the baseness of the charge” in case “the libel, driven underground, emerges from its lurking place at some future date” (see Hailsham LC in Broome v Cassell [1972] AC 1027 at 1071).

22 In this type of case one is acutely concerned with the application of Lord Atkin’s famous dictum in Ley v Hamilton (1935) 153 LT 384 at 386: “It is impossible to track the scandal, to know what quarters the poison may reach”; see also Diplock LJ at 1125 in Broome v Cassell, supra.

23 As I have found above, the plaintiff enjoyed a good settled reputation, vulnerable to an impact particularly in the group or class in the community in which the plaintiff moved, especially legal and government circles: Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 507 per Brennan J.

24 In this case there is no evidence of actual damage to reputation. Care must be taken not to permit a disproportionate award because of mere possibility of impact or special impact. The plaintiff’s concern, therefore, is more appropriately reflected in so much of the award of damages as compensates her for injury to her feelings and as will constitute the requisite but reasonable vindication.

25 There is no question that the plaintiff had a very strong reaction of shock and dismay on learning of the publications and has continued to be hurt and embarrassed by them and by having had to take the step of instituting the litigation. As it turned out, of course, the actual reality and structure of the litigation could hardly be characterised as one productive of that ordeal that would attend a contested action.

26 The plaintiff is entitled to rely, in the award of ordinary compensatory damages, on the failure to apologise. Simpson J said in Cotter v John Fairfax Publications Pty Ltd [2003] NSWSC 503 at para [167], “The failure to apologise is relevant in a more general sense to the assessment of non-aggravated compensatory damages as part of the distress caused to the plaintiff as the result of the persistence of the defendant in maintaining the imputations”. I would interpolate that I would respectfully agree with the reservations expressed by her Honour in that judgment in relation to these matters vis-à-vis the judgment of the High Court in Carson at 66 and the decision of the Court of Appeal in Clarke v Ainsworth (1996) 40 NSWLR 463. In any event, the circumstances of the failure to apologise I have already found were improper, unjustifiable and lacking in good faith and are thus amenable to be taken into account in aggravated damages.

27 The plaintiff’s case on aggravated damages is founded upon the falsity of the imputations, the malice of the defendant in publishing the matters complained of and the failure of the defendant to apologise.

28 As to the falsity of the imputations, that falsity is not in dispute; I find the imputations to be particularly wounding to the plaintiff who was acutely conscious of their falsity.

29 As to the malice of the defendant, I have already made a finding in that regard. This is founded in his conduct to which I have referred, the terms of the publications themselves and the absolute absence of any legitimate interest in the recipients in receiving false imputations about the plaintiff.

30 Finally, the defendant’s failure to apologise I have found to be lacking in good faith, improper and unjustifiable (Triggell v Pheeney (1951) 82 CLR 497; Andrews v John Fairfax & Sons Ltd (1980) 2 NSWLR 225 at 243 and 250). It is this aggravating component of the failure to apologise that must be given prominence in the award of damages in my view, not ignoring that the failure to apologise is a component of unaggravated compensatory damages.

31 Counsel for the plaintiff agreed that I should award one verdict in respect of each publication.

32 The first matter complained of contains six causes of action and each of the remaining 3 publications gives rise to identical causes of action two in number.

33 I have been referred in submissions to such outcomes as in Crampton v Nugawella (1996) 41 NSWLR 176 ($600,000); a total verdict of $460,000 in four non-media publications to a very limited number of readers in NSW (Aboriginal Land Council v Perkins (1998) 45 NSWLR 340) and the recent judgment of the High Court declining to set aside a verdict of $250,000 in respect of a media publication in which the plaintiff was not named: Rogers v Nationwide News Pty Ltd (2003) 201 ALR 184, [2003] HCA 52.

34 I was not addressed nor did I receive any submissions in relation to s46A(2) Defamation Act. It is still quite difficult to understand how effectively that section can operate (compare Simpson J in Cotter, supra at paras [182] and [183]).

35 I am of the view that the real exercise is that provided for in s46A(1), namely to ensure that there is an appropriate and rational relationship between the relevant harm as proved on the evidence and the amount of damages awarded.

36 Bearing these factors in mind, in respect of each publication I propose to award the plaintiff damages including aggravated compensatory damages.

37 In respect of the first matter complained of which carries six false imputations I award the plaintiff $100,000. In respect of each of the second, third and fourth publications each of which carries two false and the same two false imputations I award the plaintiff $40,000 in respect of each publication.

38 That represents a total of $220,000.

39 It was agreed by counsel for the plaintiff that interest should run from the date of the fourth publication sued upon namely 1 March 2001 at the rate of 2 per cent. That interest I have calculated and rounded off to $12,800.

40 There will be judgment for the plaintiff in the action in the sum of $232,800.

41 The defendant is to pay the plaintiff’s costs.

42 The exhibits are to be retained.

Last Modified: 02/12/2004

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