Martin v Bruce

[2007] NSWDC 264

Reported Decision: 6 DCLR (NSW) 157

District Court

CITATION:	Martin v Bruce [2007] NSWDC 264
HEARING DATE(S):	16/11/07
JUDGMENT DATE:	11 December 2007
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) Judgment for the plaintiff for $25,000; (2) Defendant pay plaintiff’s costs; (3) The parties bring in Short Minutes of Order concerning the mathematically agreed interest calculation upon the damages of $25,000; (4) Liberty to restore in relation to interest and costs; (5) Exhibits retained for 28 days.
CATCHWORDS:	Defamation - damages - mitigation - plea of bad reputation fails - aggravated compensatory damages
LEGISLATION CITED:	Civil Procedure Act 2005 (NSW) Defamation Act 1974 (NSW), ss.46A and 48 Defamation Act 2005 (NSW), ss.34, 38(1)(c)-(e) and 38(2)
CASES CITED:	Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 Associated Newspapers Ltd v Dingle [1964] AC 371 Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 430 Bailey v Truth & Sportsman Ltd (1938) 60 CLR 700 Bickel v John Fairfax & Sons Ltd and Another [1981] 2 NSWLR 474 Burstein v Times Newspapers Ltd [2001] 1 WLR 579 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 Chakravarti v Advertiser Newspaper Ltd (1998) 154 ALR 294 Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691 Crampton v Nugawela (1996) 41 NSWLR 176 David Syme & Co Ltd v Mather [1977] VR 516 Dingle v Associated Newspapers Ltd [1961] 1 All ER 897 John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131 Jones v Sutton (2004) 61 NSWLR 614 Jones v Sutton (No. 2) [2005] NSWCA 203 Judd v Sun Newspapers Ltd (1930) 30 SR (NSW) 294 Lang v Beardsmore [1968] 2 NSWR 673 McCombie v Bennett (1886) NSWR 151 National Auto Glass Supplies (Australia) Pty Limited v Nielsen and Moller Autoglass (NSW) Pty Limited (No 8) [2007] FCA 1625 Obeid v John Fairfax Publications Pty Limited [2006] NSWSC 1059 Obeid v Nationwide News Pty Ltd [2007] NSWDC 26 Plato Films Ltd v Speidel [1961] AC 1090 Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 Scott v Sampson (1882) 8 QBD 491 Thompson; Hsu v Commissioner of Police of the Metropolis [1998] QB 498 Trantum v McDowell [2007] NSWCA 138 TVNZ Limited v Ah Koy [2002] 2 NZLR 616 Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 Webb v Bloch (1928) 41 CLR 331 Zarth v Williamson & Ors [2006] NSWCA 246
PARTIES:	Plaintiff: Peter James Martin Defendant: William James Bruce
FILE NUMBER(S):	1497 of 2007
COUNSEL:	Plaintiff: K P Smark SC Defendant: P W Gray SC
SOLICITORS:	Plaintiff: Andrew Warren Associates Defendant: Griffiths Tierney Solicitors

Judgment

1. The plaintiff, the chief executive officer of the Tathra Beach Bowling Club between June 2005 and 23 October 2007, brings proceedings for defamation against the defendant, a member of this club, for publication of an anonymous broadsheet which the defendant gave to a number of club members on 8 February 2007.

2. The text of the matter complained of, which is set out as an annexure to this judgment, gives rise to the following imputations of and concerning the plaintiff:

(a) that he acted dishonestly when applying for the job of chief executive officer of the Tathra Beach Bowling Club;
(b) that he falsified his qualifications in applying for the job of chief executive officer of the Tathra Beach Bowling Club;
(c) that he has a bad reputation in the licensed club industry;
(d) that he suffers from a mental illness which makes him unsuitable for his employment as chief executive officer of the Tathra Beach Bowling Club;
(e) that he is a trouble-maker at the Tathra Beach Bowling Club;
(f) that he was compelled to leave his last place of employment.

3. These proceedings were commenced by Statement of Claim filed on 16 April 2007. A Notice of Appearance was filed on 24 May 2007 by Peter A. Tierney on behalf of the defendant and on 7 June 2007, the first mention date before the Judicial Registrar, time for filing a defence was extended to 26 June 2007. There was no appearance in court by the defendant on this or any other occasion prior to the hearing. No defence was filed. Mr Tierney filed a Notice of Ceasing to Act. On 29 June 2007 Judge Balla made an order directing the defendant to file a defence by 13 July 2007 and directed the plaintiff to notify the defendant of these orders. On 10 August 2007, at the request of Senior Counsel for the plaintiff, I made a peremptory order for the defendant to file and serve a defence on or before 20 August 2007. That order was not complied with and on 24 August 2007 judgment was entered by reason of the defendant’s failure to comply with this order and the matter set down for assessment of damages on 16 November 2007.

4. When these proceedings came before me for assessment of damages, the defendant was represented by Mr P Gray SC, instructed by Mr Tierney, who had filed a Notice of Appearance on 13 November 2007. Mr Gray SC informed me that the defendant wished to raise for the first time matters in mitigation of damages relating to bad reputation.

5. One of the gaps in the Civil Procedure Act 2005 (NSW) is that if a party wishes to defend proceedings as to damages only, there is no set procedure for the filing of a defence which puts the plaintiff on notice as to the case on damages which the plaintiff has to meet. I directed Mr Gray SC to provide an outline of the matters to be raised, and I am indebted to him for providing me with the following particulars of bad reputation:

(a) that he did not carry out the role of chief executive officer in a suitable or adequate manner, and was not ‘up to the job’;
(b) that he was dishonest, or at least a person about whose honesty there was a question mark;
(c) that he was arrogant and intimidating in his dealings with club members.

6. The leading of this evidence, about which no notice was given prior to the hearing, put the plaintiff and his legal representatives in a difficult position. All of the parties had travelled from Bega for the hearing and it was the express wish of counsel for the plaintiff as well as the defendant that the hearing should be completed in one day. Accordingly although the evidence was led under objection by reason of the lateness of the claim, counsel for the plaintiff eventually withdrew that objection.

7. I now turn to a consideration of the evidence on damages.

The evidence of the plaintiff and his reputation witnesses

8. The plaintiff and his wife both gave evidence concerning the hurt to feelings the plaintiff suffered from the publication and the circumstances relating to it.

9. The plaintiff, who is now 42 years of age, has worked in the club industry for the last 25 years. After a series of casual jobs for RSL and bowling clubs, he was appointed the sub-assistant manager at a club in Bathurst in 1990, where he remained until 1999. He was the sub-manager at Campbelltown Catholic Club in 1999 and in 2000 the assistant manager for the Bowlers Club of NSW for three years. He then worked for the Bondi Junction RSL and the Campbelltown Tennis Club before being appointed chief executive officer of the Tathra Beach Bowling Club in June 2005.

10. Towards the end of 2006 some club members became unhappy about the management of the club and on 8 February 2007 there was an annual general meeting. The plaintiff went to his office to get some documents and as he walked past, the defendant said to him “You’re a fucking cunt”.

11. The defendant is a former employee of the club. His employment as a greenkeeper had been terminated by the plaintiff in late 2006.

12. The meeting was apparently a stormy one. According to Exhibit 2 and the evidence of the defendant’s witnesses, the club had incurred financial losses during the year, and Exhibit 2 states that the financial loss was the ban on smoking and the subsequent reduction of gaming machine revenue. The two topics at the meeting were the smoking ban and the option of a synthetic green, which the board put to the members as a package. The members rejected this proposal by a majority of around 75%. Exhibit 2, the Chairman’s Report for the financial year 2006/2007, notes that these proposals were “discontinued for the sake of unity and harmony in the club”.

13. Following the meeting, the plaintiff was in the club talking to some members when he saw the defendant hand a document to Roger Holhauser and Audrey McCartney, who were club members. The plaintiff noticed that the defendant was watching him while he did this, and said the defendant was watching for him to leave the club. As the plaintiff left the club, the defendant called out to him: “What was that club called – the Campbelltown Tennis club?” This was the name of the plaintiff’s previous employer.

14. When the plaintiff arrived at work the next day, he found a document lying beside the teller machine in the club. It was the matter complained of, and the copy found by the plaintiff is Exhibit “A” in these proceedings. He also received a fax at 8.17 am from Mr Gerry Lay (the Club chairman) on the letterhead of the Wyndham Public School. The covering fax letter said:

“Confidential – Do not take it to heart.

This was found under my wiper blade. Obviously the copy that was being circulated in the club last night.
Get legal opinion then act on that advice.
My opinion from the way it is written is that it comes from a member of the club not an ex-employee. Will speak to you in person as to my beliefs.”

15. Examination of Exhibit A and the document faxed by Mr Lay shows they are copies of the same document.

16. The plaintiff’s evidence was that he read Exhibit A two or three times and was very upset and shaken. He then went into his office to find the fax from the Chairman, Mr Lay attaching the copy he had found under his car’s windscreen wiper. The plaintiff felt physically ill and left the club very distressed.

17. The plaintiff went to the homes of two directors. He went to the home of Elaine Allnis. She told him she had received the document. He next went to the home of another director, Hedley Waugh. Mr Waugh said he had not received the matter complained of, but read it and said that he did not agree with its contents. While he was at Mr Waugh’s home the plaintiff’s wife rang him and said the staff at the club were worried about his departure and were looking for him. He then went to his own home and, after a short period, returned to work.

18. The plaintiff talked about the publication that night to his wife. Mrs Martin’s evidence was that he was crying and very distressed, saying “there’s a letter out there, it’s just all wrong, it’s a pack of lies”.

19. The plaintiff said that he had thought about the letter every day since that time. He was upset and worried about it. He noticed that some people at the club who had spoken to him before would not speak to him afterwards. When he went to the club area, “I’d go out there and they’d be whispering”. He said he was emotionally distraught and on medication because the allegations were “ripping me to pieces”.

20. The plaintiff agreed in cross-examination that the composition of the board had changed at the general elections in June 2007, that he had been made redundant in October 2007 and that his being asked to leave the club’s employment had been upsetting for him. He agreed that he had no evidence that the publication had been given to anyone other than the four named persons, namely Elaine Allnis and Gerry Lay (who are directors), Roger Holhauser and Audrey McCartney. He agreed that the majority of club members were “opposed to what the Board was doing” (to use the wording of senior counsel for the defendant) and that this did not simply relate to the reduction of smoking and introduction of a synthetic bowling green but to the approach taken by the Board generally. He agreed that most of the Board had either not stood for re-election or not been re-elected at the general elections. He agreed that there had been a lot of talk about him in the club and that this was referred to in the Chairman’s report for 2006/2007.

21. The Chairman’s report (Exhibit 2) noted:

“Much has been said about our hard-working Secretary-Manager, Peter Martin. I have found him to be earnest, frank and unimposing. He goes about his job with the Club at heart. He continually offers suggestions and recommendations that provide for a strong future – one based on sound financial security. In doing this he has undoubtedly upset some members by making decisions as that Manager that on face value, have not been popular among some members. I defend his right to make those decisions based on the evidence that the Board is privileged to and would suggest to his detractors to stop their ill-informed campaign.

The Board of Directors has worked to meet the needs of members and provide strategic planning for the future. I share their disappointment and confusion as to the dedication they have shown only to be ridiculed by some members over issues stated earlier. I thank Directors for their efforts and wish them good fortune at the coming annual elections if they intend to nominate once more.

I would also ask those members to stop using general meetings as opportunities to savage those duly elected representatives who have the determination to give their time and effort to make strategic plans for the future. It appears that time should stand still in our wonderful paradise called our Club. It’s about time we took this Club forward with the same interests at heart and provide a sustainable future for our members.”

22. It was put to the plaintiff that his reputation was that he was not up to the job, that he was arrogant and intimidating and that negative statements about the way he performed his job formed the basis for the comments in Exhibit 2. The plaintiff did not accept these statements.

23. The plaintiff was also cross-examined about an offer of an apology (the defendant’s offer was to “just tell me what you want and I’ll do it”) and of a payment of $10,000 damages plus costs, made by the defendant in a letter he sent on 25 October 2007. The plaintiff’s solicitor replied on 5 November setting out the text of an apology, accepting the offer and inviting “a reasonable offer” in relation to costs (which it was noted totalled $22,000), with the proviso that the costs and settlement be paid within 7 days as the matter was listed for hearing on Friday of the following week. The settlement did not proceed because the acceptance, according to Mr Tierney’s letter of 9 November 2007, amounted to a counter-offer because it included components that went “well beyond what Mr Bruce submitted to your client in his letter”. In Mr Tierney’s letter of 9 November 2007, all that was offered by the defendant was an apology “in terms to be agreed”. This offer of an apology, which was expressed as a Calderbank offer, was to expire on Monday 12 November 2007 and was not accepted. The plaintiff said he gave instructions to his solicitors in accordance with this correspondence.

24. The plaintiff answered questions in a frank and straightforward fashion and made concessions where appropriate. His description of his response to the publication was fairly restrained; a much more vivid picture of its impact on him was obtained from the evidence of his wife. The plaintiff did not present as someone who exaggerated his emotional response. His demeanour in the witness box was passive and he was tearful at times, breaking down openly on one occasion when describing the opposition of members to the Board’s stance on reduction of smoking and the introduction of a synthetic green.

25. The plaintiff’s wife, Fiona Martin, gave evidence that whereas the plaintiff prior to February 2007 had been a happy husband and father, since 8 February 2007 he had been “a total mess”. She described him as crying, upset and vomiting on the night of the publication and said that since that time he had continued vomiting on occasion and was not eating or drinking as well as having trouble sleeping. He was a completely different person, who worried about everything, was withdrawn and easily upset. She was not cross-examined.

26. The plaintiff called two witnesses. The first of these, Mr Walter Sauer, is the secretary/manager of the Bega RSL Club. He gave evidence about the plaintiff’s reputation in the Bega community and his reputation over many years in the licensed club industry.

27. Mr Sauer said he had served with the plaintiff on committees including a Local Government-initiated committee to redistribute gaming income back into the community. He said that approximately $120,000 - $130,000 club gaming income had been put back into community activities by this committee. Mr Sauer had attended many meetings of Clubs NSW with the plaintiff over the years, and had heard other people in the club industry talk about the plaintiff. He said the plaintiff had a reputation of a very high standard, that he was always upholding the law and that he had heard nothing but positive feedback about the plaintiff.

28. It was put to Mr Sauer in cross-examination that the plaintiff had a reputation for arrogance and that he was an intimidatory person. “Nothing could be further from the truth”, he replied to each of these allegations. He dismissed allegations that the plaintiff had a reputation for being not up to the job he held as “nonsense”.

29. Mr Ian Trahair was also called as a reputation witness. He had been the vice-chairman of the club for three years and a director of the club since 1999. He had resigned from the board of the club two weeks prior to the hearing.

30. Mr Trahair first met the plaintiff in 2005 at about the time he commenced employment in the club. Mr Trahair, as a club director, had had dealings since that time with the plaintiff concerning the running of the club. The plaintiff came to board meetings as well.

31. Mr Trahair said the plaintiff had a good reputation. He was a good administrator and got on well with the members and the board. He knew the club business back to front and left no stone unturned. He had a reputation for honesty and competence.

32. In cross-examination Mr Trahair said the plaintiff’s reputation today was still good. He accepted that some members and also the new board did not hold him in high regard and that as a result had been made redundant. He accepted that the majority of the new board felt he was not up to the job. He did not agree that one of the reasons the elections went the way they did was because of dissatisfaction with the plaintiff.

33. Mr Trahair also made some concessions in response to questions about the plaintiff’s asserted arrogance. He said the plaintiff came from the city to a village atmosphere where people were “people, not numbers” but that once the plaintiff got used to this he “adjusted pretty well”. He said that the plaintiff did not have a reputation for arrogance as far as he knew, and that while to some he may have been regarded as arrogant, he did not do so and in fact he regarded the plaintiff as timid. He said that “only a few” people thought the plaintiff was not up to the job.

34. Mr Trahair was asked if the plaintiff was the subject of an investigation into possible misuse of a club credit card. Mr Trahair replied that this inquiry had been completed and the plaintiff exonerated. An objection was taken to this line of questioning as going impermissibly beyond the generalities to which evidence of bad reputation are restricted. Mr Trahair did say, however, that the circumstances of this investigation were the subject of discussion in the club. The timing of this appears to postdate the publication of the matter complained of.

35. During Mr Trahair’s evidence he asked me to have the defendant removed from the court, as the defendant was making faces at him and mouthing words to him. Senior counsel for the defendant assured me that the defendant was unlikely to offend again so I did not take this step.

36. Although the defendant did not give evidence he called witnesses in support of the claim of bad reputation.

37. Mr William Harrison is a retired real estate agent who lives near the club. He had complained between December 2005 and December 2006 about light and noise from the club and felt that his complaints were dealt with arrogantly by the plaintiff (the plaintiff was not cross-examined about this topic). He said that as at February 2007 the plaintiff had a reputation, in the circles in which he moved, as someone who was not a good manager. He did not have people skills and he intimidated people. He had only heard the plaintiff spoken of in negative terms. He had heard about the credit card allegation but could not say if this information had spread further or if the plaintiff’s reputation for honesty had been affected.

38. Mr Harrison was only a social member of the club until August 2007. He did not participate in the club’s bowling activities prior to that time, although he used the restaurant facilities.

39. Mr Harrison said that he first saw the matter complained of in October or November 2006. He said it was given to him by “club members”. He said that two other club members, Alan Hardy and Tommy Lynch, were with him at the time and they had a good laugh, saying “This describes Peter Martin”. Since that time others had told him they had seen the publication, although he could not remember who they were, or who gave it to him.

40. In cross-examination, Mr Harrison was unable to recall who gave him the matter complained of in October or November 2006, nor could he say who wrote it, although he said there was “much conjecture” about its authorship.

41. Mr Harrison’s involvement in the club is limited to the months immediately prior to the hearing. He was only a social member until August of this year. His involvement in a long running dispute with the club meant that he and the plaintiff were at loggerheads over his complaints about the club’s noise and lighting. His evidence is of limited assistance to me.

42. Mr Tom Caddy, a retired person, also gave evidence. His level of recollection was so poor that at one stage senior counsel for the plaintiff asked if he had a medical condition affecting his memory. He replied “Not that I’m aware of”.

43. Mr Caddy said that the matter complained of was “a document handed around the club” in November 2006. He was not sure what was in it. He passed it on as he did not want to hang on to it. He was not sure what the document was. He thought it had been discussed at the table, although he could not remember who was there; it was taken lightly and treated as a joke, but he “could not remember” what was said.

44. Subsequently other, different, club members, asked Mr Caddy if had seen it, but he could not remember who these people were either, or what they said to him; he thought they might have said “have you seen it” but could not describe what the “it” was. He could not remember who he played bowls with because he played with different people on different days. He thought they were “general members of the club”. He remembered one person saying “I wouldn’t hang onto that” but could not otherwise remember what these people had said to him about this publication.

45. In cross-examination, Mr Caddy did not do much better. He thought the document had been “widely discussed” by a dozen people but could not remember who. He thought they called it “the paper that’s floating around” and that someone said to him “Have you seen the document about Martin”. He said it was “a bit of a joke”, “didn’t read [sic] to be serious” and “a parody”.

46. Mr Caddy was sure, however, that the plaintiff had a bad reputation. He was arrogant, aloof, overbearing and when he walked through the club he expected people to step aside for him. He was “not the manager we wanted” and “not popular”. He did not give any evidence about the plaintiff’s reputation for dishonesty.

47. Mr Caddy’s vague answers to questions meant a lot of his evidence was unhelpful. Much of his evidence amounted to personal dislike of the plaintiff (whom he referred to at one stage as an ally of the chairman) rather than containing information in the form of evidence of the plaintiff’s reputation.

Damages and reputation

48. Damages in defamation actions were traditionally “at large”. However, the concept of compensatory damages is modified by the provisions of s.34 Defamation Act 2005. This section, which substantially reproduces s.46A Defamation Act 1974, gives two directions to the trial judge who assesses damages. The first is to ensure that an appropriate and rational relationship between the relevant harm and the amount of damages awarded exists and the second is to take into consideration the general range of damages for non-economic loss in personal injury awards in the state in which the action is brought. In addition, a cap has been placed on damages but, unlike other statutory regimes, only at the ceiling of damages available for defamation. This means it is still possible for plaintiffs to bring actions in which damages are nominal or even contemptuous.

49. The plaintiff in a defamation action is not required to prove that his or her reputation has suffered actual damage. Some damage is presumed by reason of the defamation publication. A plaintiff is entitled to rely upon this presumption that some damage must inevitably be caused by the publication of the defamatory imputation in relation to damages. Damages must be awarded even if they are nominal or contemptuous in nature. Aggravated compensatory damages may be appropriate if the conduct of the defendant at the time of publication was high handed and contumelious.

50. Having set out these introductory comments, I now look at the issues raised by the defendant in relation to bad reputation. I will first set out the law in relation to bad reputation and the limitations on evidence of general bad reputation.

Evidence of bad reputation

51. At [21,010] Tobin and Sexton note:

“Because defamation is so singularly concerned with reputation, it is remarkable that the law has moved so slowly to sanction the use of evidence of bad reputation in mitigation of damages, and remains perplexed as to whether and why evidence of good reputation is available to a plaintiff. This uncertainty reflects a deeper conflict as to whether or not a plaintiff should be subject to general challenge to his worthiness by the parading of past misconduct, perhaps with little or no relevance to the defamation in issue.”

52. In Scott v Sampson (1882) 8 QBD 491 Cave J fixed limits to the use of evidence of bad character. Evidence of general bad reputation is admissible in mitigation of damages. Evidence of rumour to the effect that the plaintiff has done what was alleged against him in the defamation is inadmissible. Evidence of particular acts of misconduct by the plaintiff showing bad character on the issue of mitigation of damages only is similarly inadmissible. The New South Wales Court of Appeal has endorsed these principles on a number of occasions (see for example, Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691).

53. Reputation is essentially the regard or esteem in which a person is held by others. It is hearsay in nature and an exception to the hearsay rule, in that the witness is asked to say what others think of the plaintiff, not what he himself thinks of the plaintiff. This applies to evidence of bad reputation as well as to evidence of reputation. One of the problems with the reputation evidence in this case is that this distinction was not made.

54. A person’s reputation means his “settled” reputation, not simply some transitory view that may be held of him or rumours that are spread about him (Scott v Sampson at 504). This is because a person’s reputation is acquired over an extended period of time and does not depend upon an isolated event.

55. In particular, evidence of reputation cannot be provided by reference to some temporary cloud hanging over the plaintiff. It must represent the concluded view of the plaintiff in the community generally. In Dingle v Associated Newspapers Ltd [1961] 1 All ER 897 Holroyd Pearce LJ said at 911:

“Evidence of bad reputation must be properly proved. It is a grave matter. One is not entitled to assume without evidence that the plaintiff's reputation must have changed in the four weeks following the publication of the report. As the months went by such report if uncontradicted would no doubt have its effect on his reputation especially if it was succeeded by other similar matters; and the plaintiff's reputation might in due course become bad and be proved against him. No doubt the public unmasking of a villan or a conviction in a court of law will have a more immediate effect. When, however, the defendants' libel was published the plaintiff was a man of good reputation who had recently had something damaging attributed to him. A man's reputation in the sense in which the word is used in civil or criminal courts does not alter daily as good or bad deeds are ascribed to him. It is the judgment of his fellows on his general life over a period.”

56. The law presumes that a plaintiff’s character is good until it is attacked. Some courts in the United States have taken the position that since a good reputation is presumed, the plaintiff cannot offer evidence concerning his or her reputation unless it is put in issue by the defendant’s pleadings (Brown, The Law of Defamation in Canada [25.3(3)(a), footnote 461]). As Tobin and Sexton note at [21,085], there has been uncertainty in the past as to the principles governing the question of whether a plaintiff may call evidence of good reputation where there is no claim of bad reputation. In Bickel v John Fairfax & Sons Ltd and Another [1981] 2 NSWLR 474 at 482 Hunt J explained the history of this presumption and noted that while the precise basis for the presumption remained uncertain, it was still the law.

57. The principles relevant to bad reputation were reviewed by the Court of Appeal in Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1313]ff. As Graham J noted in National Auto Glass Supplies (Australia) Pty Limited v Nielsen and Moller Autoglass (NSW) Pty Limited (No 8) [2007] FCA 1625 when discussing the principles, a plaintiff with a bad reputation is entitled to lower damages because the injury is less. Graham J noted that criminal convictions were a good example of evidence of bad reputation. As Tobin and Sexton note at [22,055], particulars of bad reputation are governed by special rules of court and evidence of bad reputation may be led only where the provisions of the rules have been complied with. Particulars of bad reputation must be given prior to trial. Only evidence of the plaintiff’s general standing and reputation in the community relevant to the defamatory remarks are admissible to prove reputation. The court should not be too precise in drawing boundaries between the various sectors of the plaintiff’s life, but there must be some connection.

58. Minor details of the plaintiff’s life (Judd v Sun Newspapers Ltd (1930) 30 SR (NSW) 294; Lang v Beardsmore [1968] 2 NSWR 673) are not admissible unless they are directly relevant to the contextual background in which the publication is made (Burstein v Times Newspapers Ltd [2001] 1 WLR 579). To determine the reputation held by the plaintiff, the parties may call persons familiar with him or her and ask them to give evidence with regard to that part of the plaintiff’s reputation made relevant by the nature of the defamatory remark (Plato Films Ltd v Speidel [1961] AC 1090 at 1140 per Lord Denning). Those witnesses are generally persons who reside in the same community as the plaintiff, where his reputation has been effected in that community, or who had an opportunity to learn the community’s estimate of his reputation.

Evidence of bad reputation in these proceedings

59. Mr Gray SC submitted on the part of the defendant that the plaintiff “needs to show a settled reputation prior to publication” and that the plaintiff “had not done so”. First of all, this misconceives the concept of “settled reputation” in that it does not have regard to the concept of reputation being acquired over a long period of time. Secondly, this impermissibly places the burden of proof on the plaintiff. Thirdly, it is contrary to the evidence. Mr Sauer’s evidence of the plaintiff’s good standing in the Bega community generally, and in the licensed club industry, is of great significance. Notwithstanding some concessions made in relation to allegations of the plaintiff’s arrogance, Mr Trahair also said in his evidence that the plaintiff had a good reputation. There must also be a relationship between any attacks on the plaintiff’s reputation and the publication and imputation arising therefrom; I have considered this issue in more detail below.

60. As to whether the plaintiff had a “settled” reputation, it is because reputation is “the judgment of his fellows on his general life over a period” (as Holroyd Pearce LJ noted in Dingle (see [55] supra)) that evidence of the kind led by Mr Gray SC is not capable of amounting to bad reputation. As Lord Radcliffe pointed out in Plato Films Ltd v Speidel [1961] AC 1090 at 1130:

“Life not being a morality play or a Victorian melodrama, men do not enjoy reputations for being bad or good simpliciter; nor, if they did, would the proof of such generalities throw any light on the loss of reputation suffered from a particular libel.”

Although Lord Radcliffe’s dissenting view in Plato Films was that in certain circumstances, particular incidents could be the subject of evidence, he considered these would need to be of sufficient notoriety to contribute to the plaintiff’s “current reputation” as oppose to individual poor opinions concerning comparatively trivial incidents, and his statement of what amounts to evidence of bad reputation generally is most pertinent.

61. One of the reasons for alleging the plaintiff’s reputation was not settled was that he was still fairly new to the Tathra area. Reputation is not only something acquired over a long period of time, but it is not dependant upon geography. For example, the plaintiff has lived in a number of country towns around New South Wales in the course of his long career in the club industry. Mr Sauer gave evidence of the plaintiff’s settled reputation in the club industry. The plaintiff does not lose his reputation and have to start building it up over again merely because in 2005 he commenced work at the Tathra Beach Bowling Club. He went there with a reputation, and he acquired a community reputation which was not restricted to the Tathra Beach Bowling Club. His reputation includes his reputation and standing in the community, and again Mr Sauer gave evidence of the plaintiff’s standing in the community, as did the plaintiff.

62. In addition, the evidence must relate to the plaintiff’s bad reputation with regard to the particular fault or faults charged in the imputations. As Ipp A-JA noted in Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 430 at 435:

“The rule that evidence of bad reputation must be confined to the “relevant
sector” of the plaintiff's reputation is a particular manifestation of the policy
against indiscriminate use of mitigatory material (see Scott v Sampson ).”

63. Mr Gray SC conceded in submissions that, in relation to imputations of dishonesty, there was no evidence that the plaintiff enjoyed a general reputation of dishonesty. Consequently in relation to imputations (a) and (b), there is no evidence of bad reputation in the relevant sector. As to (c), the only witness giving evidence of the plaintiff’s reputation in the licensed club industry was Mr Sauer, and there is no evidence before me in relation to mitigation for this imputation. Similarly, there is no evidence before me about bad reputation relevant to imputation (d). Essentially the plea of mitigation goes to imputations (e) and (f), namely that the plaintiff is a troublemaker and that he was compelled to leave his last place of employment.

64. Mr Harrison’s dealings with the plaintiff related largely to specific incident, namely a complaint he had about light and noise from the club, which he felt was dealt with arrogantly by the plaintiff. His evidence about the plaintiff’s reputation was coloured by his own, obvious, animus towards him. His connection to the club was limited to social activities until August 2007. Mr Caddy’s memory was so poor and his evidence was so vague on most issues that I can place little or no reliance upon his statements about the plaintiff’s reputation. As for Exhibit C, this refers to the plaintiff making decisions that were not popular with some members of the Club. This does not satisfy the test laid down in Dingle by Holroyd Pearce LJ. The plaintiff’s reputation did not alter daily as good or bad deeds were ascribed to him; it is the judgment of the plaintiff’s peers “on his general life over a period” (per Holroyd Pearce LJ at 911).

65. Consequently, in relation to the imputations within the sector of the plaintiff’s reputation relevant to the defamatory imputations, the evidence falls short of amounting to evidence of bad reputation.

66. The defendant put forward other factors going to mitigation of damages. The first of these is the fact that there was publications by others which were prior to, or contemporaneous with the matter complained of, and this impacted upon the plaintiff’s reputation and thus is relevant to damages.

67. Judgment has been entered against the defendant and he is liable for the publication of the matter complained of as pleaded in the Statement of Claim. The question of whether he is the author, a contributor to or merely a distributor of the matter complained of cannot affect the issue of publication because he can be deemed a publisher on any of these grounds: Webb v Bloch (1928) 41 CLR 331.

68. Evidence was led from the defendant’s witnesses that they saw copies of the matter complained of in October or November 2006 and that the allegations contained in the matter complained of were widespread. Submissions were made to me to the effect that this was relevant as to the assessment of damages.

69. Such evidence has never been accepted as a reason for cutting down or reducing damages. In McCombie v Bennett (1886) NSWR 151 at 171 Martin CJ held: “ The fact that the same statement had previously been published is no reason for cutting down the damages one farthing.” Innes J at 176 added: “ To say, ‘if I have done wrong, other persons have equally done wrong’, does not tend to diminish the injury to the plaintiff. If a person publishes defamatory matter, he must stand or fall by the truth or falsity of the matter published. He cannot rely on the fact that other persons have been equally at fault. To hold so would be extremely mischievous in its results.”

70. In Bailey v Truth & Sportsman Ltd (1938) 60 CLR 700 at 710 – 711, Latham CJ stated: “A defendant cannot save himself from paying substantial damages for libel simply because other people have published the same libel and have therefore been guilty of similar wrongs.”

71. In Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 99, McHugh J noted that at common law “the defendant cannot mitigate damages by tendering evidence of other defamatory publications concerning the plaintiff”.

72. In Chakravarti v Advertiser Newspaper Ltd (1998) 154 ALR 294 at 359, Kirby J confirmed the correctness of this principle. This is because if the damages could be:

“whittled away by a defendant calling attention to the fact that other people had already been saying the same thing as he had said and pleading that for this reason alone the plaintiff had the less reputation to lose, the libelled man would never get his full vindication.” ( Associated Newspapers v Dingle [1964] AC 371 at 396 per Lord Radcliffe)

73. A defendant who has not justified his defamatory statements cannot mitigate the damages for which he is liable by producing evidence of other publications to the same effect as his; there would be conflict between this rule and the proposed proof of tarnished reputation if the court took into account other contemporary publications about the same incident (Associated Newspapers v Dingle [1964] AC 371 at 396 per Lord Radcliffe; cited with approval in TVNZ Limited v Ah Koy [2002] 2 NZLR 616 at 626 (C.A.)).

74. Tipping J noted in Ah Koy (at 626) that while it was appropriate to isolate the damage caused by the defendant’s publication, it was not appropriate to approach the assessment of damages “from the other end” by proving the existence of other publications and saying the plaintiff’s reputation was so tarnished that the effect of the defendant’s publication was minimal in comparison with the whole. This principle of isolation does not require the plaintiff to distinguish the consequence of the defendant’s publication from other publications; what it does require is that evidence not relevant to the damage caused by the defendant’s publication be excluded. Indeed, if isolation is not reasonably possible, then the defendant can be treated as a concurrent tortfeasor and is liable for the whole of the indivisible harm (Ah Koy at 626-7). I note, however, that this submission was not put to me by the plaintiff, and accordingly I have assessed the damages by having regard only to the four persons who did receive the publication. It was, however, a submission that could have been put, and if it had been put, the extent of publication for which the defendant would have been liable as a concurrent tortfeasor would have been to most of the members of the club, on the evidence before me.

75. The one exception to this rule is that evidence of recovery of damages by the plaintiff against other defendants in relation to similar publications can be taken into account by reasons of the provisions of ss.38(1)(c)-(e) and 38(2) Defamation Act 2005. For an examination of the application of such principles under s.48 Defamation Act 1974, see Obeid v John Fairfax Publications Pty Limited [2006] NSWSC 1059 and Obeid v Nationwide News Pty Ltd [2007] NSWDC 26. There is no such evidence before me so I do not need to consider this provision.

76. The evidence that other persons in the club received and read this anonymous broadsheet prior to the acts of publication set out in the matter complained of is not evidence that can be used to mitigate damages, for the reasons explained in the authorities above. All of the evidence of the plaintiff’s hurt to feelings comes from the circumstances of the publication by the defendant and not from these previous publications, the existence of which he was unaware. The existence of these publications cannot be used to establish that the plaintiff’s reputation was tarnished prior to publication of the matter complained of, partly for the reasons explained in the decisions referred to above, and partly because a settled reputation is obtained over a lengthy period, not something that can be damaged weeks or months before publication of the matter complained of, and not by other publications of the matter complained of by some unknown person.

77. Accordingly, I do not accept the submissions of Mr Gray SC that because this document was in circulation and seem by at least tens of people in the months before the publication that to the extent that it did any damage to the plaintiff’s reputation this occurred before the incident in circumstances where the plaintiff cannot prove that the defendant was the publisher.

Offer of Apology

78. A further submission made on behalf of the defendant related to the offer of the defendant to apologise, which was contained in Exhibit C:

“25 October 2007

Mr P Martin
C/- Andrew Warren Associates
Cnr Gipps & Carp Street
BEGA NSW 2250

Dear Mr Martin

I have received a letter from your solicitor Andrew Warren telling me that I have to go to Court on the 16th of November in Sydney.

I thought I should see if we can sort this thing out without having to involve all the expense of the legal people.

I can understand why you wouldn’t have been too happy with the sheet that went around about you. I didn’t write any part of it. I received it a fair while before the 8th of February, at about the same time as quite a few other people did, as I presume you know.

I myself only gave it to a grand total of four people, apart from yourself. After the EGM that night I handed a copy to Elaine, one to Roger and one to Audrey, and I also put a copy under Gerry’s windscreen. I left you a copy because I thought you should know what had been doing the rounds for some time.

You and I have had our differences in the past. I still don’t think that you getting me sacked and having me thrown out of the Club was fair. But you still have your job and life doesn’t seem to have change at all for you. Obviously Gerry for one still has faith in you. I can’t see why you want me to pay you $250,000. You would know I have no way of doing that. I lost my job, because of you, and I’m doing it tough at the moment. Please don’t make life any harder for me.

I had no idea this could all take off in this way. It was probably a silly thing for me to do. For any harm I have caused you by my passing the sheet on to those four people, I apologise.

If you really think more would need to be done, I don’t mind if you put this letter up on the board or even send it to the Bega District News, if you think that would do you any good. If you think I have to apologise to you some other way, just tell me what you want and I’ll do it.

I’ll give you some money as well if that’s what this is all about. What about $10,000 and I’ll fix up your legal fees? Wouldn’t we both be better off just sorting things out without Court and lawyers? How about we get a mediator to sit down with us both?

Please don’t destroy me with Court. Give me a call on 6495 1478 and let’s talk about things.

Bill Bruce
6 Cliff Street, MERIMBULA, NSW, 2548”

79. The plaintiff’s solicitors’ reply was as follows:

“We refer to your letter of 25 October 2007 and our response of 29 October 2007.

We have now had the opportunity to take instructions from our client in relation to this matter and he has indicated that he will accept your offer of settlement.

Accordingly, we enclose herewith copy of Terms of Settlement together with public apology that our client will require you to sign and return to us. In addition, our client will require the public apology to be advertised in the Bega District News and Merimbula News Weekly newspapers at your expense prior to the settlement taking effect.

Mr Martin’s costs in this matter presently total approximately $22,000.00, incorporating our costs, senior counsel’s fees, and junior counsel. It is a condition of the Terms of Settlement, that Mr Martin’s costs and the $10,000.00 relating to damages are paid by cash or bank cheque within 7 days of the date hereof.

To facilitate settlement in this matter, we can indicate that our client would be willing to accept a reasonable offer in relation to his costs as long as that offer is accepted by him and paid by you within 7 days.

If you wish to resolve this matter, please be in contact with the writer as a matter of urgency, noting that this matter is listing for hearing in the District Court of New South Wales on Friday week.

Our client will incur very substantial costs between now and the conclusion of the hearing on Friday week which you will also be liable for if this matter is not resolved.”

80. An Agreement as to Judgment was attached. The public apology that the plaintiff sought was as follows:

“ Public Apology

On 8 February 2007 I distributed to a number of members of Tathra Beach Bowling Club a document concerning the then Secretary Manager of the Club, Mr. Peter Martin. On the same day in the presence of members of the Club I abused him.

I wish to publicly and unreservedly apologise to Mr Martin for my actions, which were wrong and malicious.

I accept without reservation that Mr Martin is an honest man of good character with an excellent reputation in the Club industry and generally.

I unreservedly apologise to Mr Martin for the distress and upset that my behaviour has caused him.

William James Bruce
Date:”

81. Mr Peter Tierney, a lawyer who had previously acted for the defendant, wrote the following reply on 9 November 2007:

“We have been instructed by Mr Bruce again in this matter. In particular, Mr Bruce has asked us to advise him in relation to your letter of 5 November 2007 and its enclosed form of proposed Agreement as to Judgment.

Your letter and its enclosure, although they purport to effect an acceptance of an offer of settlement that Mr Bruce made in a letter dated 25 October 2007, do not in fact do so. Rather, they comprise a counter-offer, containing a number of components which go well beyond what Mr Bruce submitted to your client in his letter.

Mr Bruce has instructed us to advise you that the terms submitted in your letter and its enclosure are not acceptable to him. He has also asked us to advise you that he now withdraws his own offer, to the extent that it involved any payment to your client whether by way of damages or costs. Our client would be prepared to enter into an Agreement as to Judgment which provided only for the publication of an apology by our client in the Bega District News, in terms to be agreed between the parties, with no order as to costs. We are instructed that this offer will remain open for acceptance until 5.00pm next Monday, 12 November 2007. If not accepted by that time, this offer will automatically lapse.

Please note that our client reserves the right to rely upon this offer and the offer contained in his letter of 25 October 2007, on the question of costs if this matter proceeds to Court next week.”

82. Mr Gray SC submitted that the defendant had offered an apology but the plaintiff had refused to accept it or had alternatively imposed such unreasonable additional material in the apology that was sought by the plaintiff that the defendant’s offer of an apology should be regarded as being unreasonably rejected.

83. I have set out the correspondence in full because it speaks for itself. In fact what the defendant did was to reject the apology as drafted by the plaintiff’s solicitor and offered to provide an apology “in terms to be agreed between the parties”, on the condition that there would be no payment of damages and no order as to costs. However, no draft apology was provided.

84. Although the letter from the defendant’s solicitors asserted that the counter-offer contained “a number of components which go well beyond what Mr Bruce submitted to your client in his letter” this was not an apology of the kind noted by the Court of Appeal in Jones v Sutton (No. 2) [2005] NSWCA 203 at [45] as being a wide ranging apology relating to matters not the subject of a litigation. To the contrary, it carefully sets out the precise conduct of the defendant on 8 February 2007 and contained an apology and withdrawal in standard and usual form.

85. In fact it is the defendant’s reply, containing the vague reference to an apology “in terms to be agreed between the parties” which is in my view not a “genuine approach” to resolving the matters (to use the words of the Court of Appeal in Jones v Sutton at [47]).

86. An important feature in relation to an apology is its timing. An apology which follows fairly soon after a publication will have the most significant impact upon damages. This was an apology which was proffered a matter of weeks before the hearing, and which was withdrawn as soon as the text of an apology was offered, even though the original offer had been to “just tell me what you want and I’ll do it”.

87. Accordingly, I do not accept Mr Gray SC’s submission that the defendant had in fact offered to apologise or that this is a factor mitigating the damages.

Publication limited to four persons

88. Mr Gray SC submitted that as publication was limited to only four persons, the damage to the plaintiff’s reputation was negligible.

89. Two of the four persons were directors of the club; one of these was the club chairman. While he made his view of the publication clear in his note to the plaintiff, the circumstances in which the plaintiff went to the homes of two directors in great distress to see how many other persons had received this publication is evidence of some importance.

90. The fact that this publication was only published by the defendant to four persons has a very significant impact upon damages. I have had regard to a number of recent decisions of the Court of Appeal concerning limited publications and the appropriate range of damages for such publications, notably Trantum v McDowell [2007] NSWCA 138 and Zarth v Williamson & Ors [2006] NSWCA 246, and I respectfully adopt the warnings of the Court of Appeal as to the appropriate range of damages for publications of such a restricted nature.

Aggravated Compensatory Damages

91. The plaintiff brings a claim for aggravated compensatory damages on the basis of the defendant’s conduct in publishing the matter complained of. I have set out a description of this conduct in my summary of the plaintiff’s evidence.

92. I respectfully adopt the comments by Tobias JA in Trantum v McDowell concerning the appropriateness of aggravated compensatory damages for publications of this nature. This was an anonymous broadsheet containing serious allegations.

93. In Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 74-75 Hunt J noted that aggravated compensatory damages “are awarded where either the circumstances of the publication of the matter complained of or the defendant's conduct then or subsequently make the injury to the plaintiff worse — when the ordinary compensatory damages awarded for the publication itself may be increased.”

94. Aggravated damages are compensatory in character: Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 241 (“true aggravated damages are compensatory in their nature, not punitive”). They serve a fundamentally different purpose from punitive damages, which are not available in New South Wales. Whereas punitive damages focus upon the outrageous character of a defendant’s conduct for the purpose of punishing the defendant, aggravated damages focus upon the character of the defendant’s conduct to see if it had an addition effect on the subjective mental pain and distress suffered by the plaintiff, where “the blow to the plaintiff's pride… has been or must have been worsened by what was done” (David Syme & Co Ltd v Mather [1977] VR 516 at 526 per Lush J). While it is generally stated that there must be a finding that the defendant was motivated by actual or expressed malice, Professor Brown notes (Law of Defamation in Canada, 2nd Ed, paragraph 5.3 (1.1), footnote 137) that malice is only one of the bases for recovering damages in Australia, noting the statement by Samuels JA in John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131 at 136 that aggravated compensatory damages could be awarded on the basis that “the injury to the plaintiff's feelings had been increased by falsity of the allegations made”.

95. In determining whether aggravated compensatory damages should be awarded, the court may take into account the conduct of the defendant from the time of the publication to the time of the trial including high handed, insulting or malice behaviour of the defendant at the time the publication occurs: Thompson; Hsu v Commissioner of Police of the Metropolis [1998] QB 498.

96. In Crampton v Nugawela (1996) 41 NSWLR 176 at 188, Mahoney A-CJ noted:

“It has been said that, in awarding aggravated damages, the court remains restricted to compensating the plaintiff for the loss actually suffered by him as the result of the defamation but, in assessing those damages, the court may adopt the highest level of damages open as compensatory damages.”

97. The appropriate method for approaching the award of aggravated compensatory damages is to make an award for general damages, but to make it at or near the top of the range for general damages.

Assessment of quantum

98. Having noted these general principles in relation to the evidence of reputation, I now turn to a more detailed consideration of the appropriate approach to the assessment of damages under the Defamation Act 2005.

99. Section 34 Defamation Act 2005 is similar to s.46A Defamation Act 1974. In Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327, the High Court explained the manner in which s.46A(2) should be applied. In unanimously overturning the decision of the New South Wales Court of Appeal, the High Court explained the manner in which a trial judge should approach reputation including the manner in which there should be comparison between awards for defamation and other awards of general damages, endorsing with approval the decision at first instance of Tupman DCJ, who carefully compared the damages to be awarded to Dr Rogers with personal injury verdict.

100. Essentially what Hayne J said was that it was important to identify what other features or characteristics of the particular case should be considered and what features or characteristics were relevant to compare with other cases. Any comparison which is drawn must look to the particular plaintiff, not to what others may have thought of the defamatory words that were published or what kind of physical injuries were sustained (per Hayne J at 354).

101. Counsel for the defendant submits that an appropriate award for me to have regard to is the award of damages in Jones v Sutton (2004) 61 NSWLR 614 and Jones v Sutton (No 2) [2005] NSWCA 203. However, this is not an appropriate comparison. In Jones v Sutton, the trial judge (who was myself) assessed the damages at $5,000 and the plaintiff, was appealing from the finding of liability and did not seek leave to appeal from the quantum. The judgment of Beazley JA (reported at (2004) 61 NSWLR 614) appear to consider this assessment to be too low, in that her Honour expressed concern that the quantum had not been challenged. (A different view was expressed at [2005] NSWCA 203). Nevertheless, since the quantum of damages was never in dispute in these publications, this is not a suitable judgment for comparison.

102. Publications which had a similar restricted extent of publication to persons who knew the plaintiff, and relate to imputations about competence to perform work duties, can be seen in two Court of Appeal decisions, Zarth v Williamson and Ors [2006] NSWCA 246 and Trantum v McDowell [2007] NSWCA 138. In each case, the defendant unsuccessfully appealed from the award of damages and the court carefully considered the range of damages appropriate for limited publications.

103. Trantum v McDowell [2007] NSWCA 138 is of particular assistance since the defendant did not participate in the s.7A trial or on the subsequent hearing on liability and made no submissions in relation to quantum. Notwithstanding not having participated in the trial at first instance, the plaintiff raised a substantial number of issues on appeal not taken at the trial, including the assessment of damages, which was challenged as excessive. The matter complained of in these proceedings was a circular letter published to persons who were residence in a strata title block of town houses. The publication was seen by a total of 16 persons, 10 of whom signed the letter to signify they were agreeing with it. They were potentially joint tortfeasors.

104. The Court of Appeal dismissed the appeal, noting that the award of $50,000 was an appropriate award for a publication to 16 people where a claim for aggravated compensatory damages (which the court noted was not challenged on appeal) had been made.

105. The fact situation in Zarth v Williamson and Ors was also similar to the present. The matters complained of were an oral publication and letters to the plaintiffs, a firm of solicitors, which were essentially seen only by themselves, a member of the office staff and a client. Whereas in Trantum v McDowell the recipients of the matter complained of had largely been potential joint tortfeasors, in the case of Zarth v Williamson and Ors the recipients of publication mostly consisted of co-plaintiffs. Again, the Court of Appeal declined to set aside a series of awards totalling $80,000 as excessive.

106. A comparison of the matter complained of in these proceedings and the matters complained of in those proceedings shows a similarity between the kinds of imputations and the manner in which they are expressed. There is a high level of personal animus, there are allegations of wrongdoing, including dishonesty and incompetence, and there is a degree of florid over-statement which is more the product of ill will than of careful research.

107. For the reasons explained by Hayne J in Rogers, it is also appropriate that I should have regard to recent awards in personal injury proceedings.

108. The plaintiff’s response to the publication was graphically described by his wife. She described him as crying, vomiting, being unable to sleep and being a completely changed person.

109. I gratefully borrow the careful analysis by Tupman DCJ which I note was endorsed by the High Court in Rogers v Nationwide News Pty Ltd [2003] 216 CLR 327. Although the publication in Rogers was limited by reason of Dr Rogers not being named, it was nevertheless a publication made to a much wider audience than the publication in these proceedings, and accordingly the award of damages in these proceedings should be only a fraction of the damages awarded to Dr Rogers. I have accordingly not had regard to the very high personal injury verdicts considered in those proceedings, but to the modest verdicts at the bottom of the range.

Interest

110. In relation to any award of general and aggravated compensatory damages, the plaintiff is entitled to an award of interest and I grant leave to the parties to bring in Short Minutes of Order reflecting the agreed mathematical calculation of interest on the damages to be awarded.

Conclusion concerning damages

111. The imputations published of and concerning the plaintiff were each matters of great seriousness. The impact upon him was severe. This is a defamation where hurt to feelings was of a very high order. The plaintiff and his wife gave frank and straightforward evidence about the effect of the publication and, as is often the case, a much clearer picture was painted by the plaintiff’s wife of the degree to which the plaintiff had been affected by the publication.

112. In addition, I am satisfied by reason of the conduct of the defendant at the time of publication, including his abusive statements to the plaintiff, that this is an appropriate matter for the awarding of aggravated compensatory damages.

113. However, the award of damages must give very great weight to the limited extent of publication of the matter complained of, namely to four people.

114. Taking all of the above into account, I assess damages, including aggravated compensatory damages, at $25,000.

Costs

115. I have granted liberty to apply in the event that the parties wish to make submissions in relation to costs. I have made an order for costs to follow the event, namely for the defendant pay the plaintiff’s costs.

Orders

(1) Judgment for the plaintiff for $25,000.

(2) Defendant pay plaintiff’s costs.

(3) The parties bring in Short Minutes of Order concerning the mathematically agreed interest calculation upon the damages of $25,000.

(4) Liberty to restore in relation to interest and costs.

(5) Exhibits retained for 28 days.

Exhibit A

P Martin LAST Club

Rang that number – over 4,000 members.

Staff did not want to be involved but put me in touch with a person high up in subjects previous employment locality and after I explained who and where I came from and what the matter was about he related to me the following, virtually word for word (in confidence as he seemed to intimate that legal things may still be going on concerning person in question) I assured him I only want info and had already forgotten his name.

SEEMS our bloke is not what he is cracked himself up to be.

- came from an inner city venue (close to the coast… high rise area)

- most of the members were supposedly big money boys or so the subject told this bloke.

- the picture this bloke originally painted of himself to the board was not true at all.

- he has not got a good name in the industry (my contact seemed to be hinting that maybe litigation of some sort is still pending… couldn’t or wouldn’t elaborate due to possible legal repercussions).

- Sales Reps eventually refused to deal directly with said person.

- had little or no knowledge of the running systems employed by the venue in question.

- hense he used other people to get things done (relying on their knowledge to cover his case).

- tried to get some staff on side in an effort to nail or discredit others (then shafted these people when he thought they had served their purpose)

- aligned himself with those who he thought would help his cause (sound like anyone we know???) downloads on those who he thinks are wise to him.

- he described this bloke as full of bluster, standover power and a big showman.

- tried to get rid of people who questioned his methods in any way or those who wouldn’t bend to his will.

- came at patrons who he didn’t get on with like a bull at a gate (no people skills at all)

- patrons and staff thought this bloke was either paranoid or schizophrenic and he caused no end of trouble and disunity.

- he wase also prine to disappear and seemingly never there when needed

- he apparently cost the place a fair bit of money and in the end was virtually asked to leave.

This place now runs with an Operations Manager (whatever that is, no CEO or Sec.Man.) and is going well.

I sat there bloody well gobsmacked listening to this info as it described the bloke in question to a tee.

Makes you wonder what the board members involved in the hiring of this bloke were doing///.

Wouldn’t you think they would have rung up his previous employers and asked what he was like?

******