Martin v Trustrum
[2003] TASSC 22
•30 April 2003
[2003] TASSC 22
CITATION: Martin v Trustrum [2003] TASSC 22
PARTIES: MARTIN, Janine Marcia
v
TRUSTRUM, Thomas
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 836/2001
DELIVERED ON: 30 April 2003
DELIVERED AT: Hobart
HEARING DATES: 25, 26 and 27 March 2003
JUDGMENT OF: Underwood J
CATCHWORDS:
Defamation - Damages - General damages - Assessment - Aggravation - Conduct of the parties - Conduct of the defendant up to and at trial - Contumelious disregard for the rights and dignity of the plaintiff.
Avram v Inches [1999] TASSC 10; Uren v John Fairfax & Sons Pty Limited (1966) 117 CLR 118; Carson v John Fairfax & Sons Limited(1993) 178 CLR 44, applied.
Aust Dig Defamation [91]
Defamation - Damages - General damages - Assessment - Aggravation - Exemplary or compensatory damages - Conduct of the defendant - Need to punish and deter.
Rookes v Barnard [1964] AC 1129, applied in part.
Uren v John Fairfax & Sons Pty Limited (1966) 117 CLR 118; XL Petroleum (NSW) Proprietary Limited v Caltex Oil (Australia) Proprietary Limited (1984 - 1985) 155 CLR 448, applied.
Aust Dig Defamation [90]
REPRESENTATION:
Counsel:
Plaintiff: D J Gunson SC
Defendant: In Person
Solicitors:
Plaintiff: Gunson Williams
Defendant: In Person
Judgment Number: [2003] TASSC 22
Number of Paragraphs: 42
Serial No 22/2003
File No 836/2001
JANINE MARCIA MARTIN v THOMAS TRUSTRUM
REASONS FOR JUDGMENT UNDERWOOD J
30 April 2003
Introduction
The plaintiff is the Executive Director of the Law Society of South Australia. She took up that position on 25 January 2003. From 1 August 1997 until then, she was the executive director of the Law Society of Tasmania. In his evidence the defendant described himself as a "working journalist".
In July 2001, the plaintiff commenced proceedings against the defendant for damages for defamation arising out of three articles published by him. During the course of interlocutory proceedings, an order was made on 8 October 2002 that:
· within 21 days after personal service of the order upon him, the defendant is to file and serve an affidavit verifying his list of documents; and
· within the same time, the defendant is to file and serve his affidavit verifying his answers to interrogatories administered on or about 4 September 2002.
There was non-compliance with that order and, on 10 December 2002, another order was made (in the presence of the defendant) that upon the filing of an affidavit that by 5pm on 23 December 2002, there had been non-compliance with the orders made on 8 October 2002, judgment be entered for the plaintiff against the defendant for damages to be assessed. The defendant remained in default, an affidavit of non-compliance was filed on 24 December 2002, and judgment was entered that day for the plaintiff against the defendant for damages to be assessed. Thus, the only issue remaining for determination in these proceedings is the amount of damages that the defendant has to pay.
The events leading up to the publications
On 18 September 2000, the defendant wrote to the plaintiff and advised that he wished to make a complaint to the Law Society about "unsatisfactory dealings with the staff of a legal practice in [his] area". The plaintiff promptly sent the defendant a complaint form used by the Society for making complaints about legal practitioners and an information brochure entitled "Complaints Against Lawyers".
The defendant did not return the form, but commenced writing a series of letters to the plaintiff about one and, shortly afterwards, two, legal practitioners with whom he apparently had had dealings. The defendant complained about the professional conduct of these two practitioners. The language of the defendant's letters to the plaintiff about these two practitioners was often florid and, at times, seemed to be bizarre.
It is unnecessary for the purposes of this assessment to set out the nature of the defendant's complaint, nor the detail of the voluminous correspondence that was exchanged during the period between September 2000 and April 2001 between the defendant and the plaintiff, and between the defendant and the then President of the Law Society. The defendant did not lodge the Society's complaint form until 11 March 2001. Although this form was signed by the defendant and dated, it was otherwise blank. In the accompanying letter, the defendant asserted that the Society already had sufficient information about his complaint.
In accordance with the authorisation conferred by the Legal Profession Act 1993 ("the Act"), s58(2), the plaintiff referred the complaint to the investigation committee of the Law Society. This committee sought advice with respect to the complaint from a senior commercial/conveyancing solicitor. The advice was to the effect that the complaint was groundless and that the Council should proceed in accordance with the provisions of the Act, s58(3), which provides:
"If, in the course of an investigation, the Council considers a complaint to be frivolous, vexatious or lacking in substance, it must dismiss the complaint."
The advice to the Law Society was accepted and the defendant was advised by letter dated 19 April 2001 and signed by the plaintiff (inter alia):
"From that meeting I am instructed to advise you that the complaints against both practitioners have been dismissed under Section 58(3) of the Legal Profession Act 1993 on the basis that they are vexatious and lack substance.
The Society's file will now be closed."
It is clear that the defendant refused to accept the decision of the Law Society. In letters that he subsequently wrote, the defendant complained about the Law Society. By May 2001, this complaint, often expressed in florid invective, included the plaintiff. Why the defendant turned his vituperation upon the plaintiff is a mystery. The evidence clearly established that at all times the plaintiff played no part in the investigation and determination of the defendant's complaint, other than to act as a servant of the investigating committee, the Law Society of Tasmania and its Council. All the correspondence she wrote to the defendant was written at the direction of a member or members of the Council of the Law Society and was appropriately and civilly expressed.
The first defamatory publication
It was about May or June 2001 that the defendant published the first of the three defamatory publications in respect of which it has been adjudged that the plaintiff is entitled to damages ("the first publication").
The first publication runs to nine A4 size pages. The cover page is entitled "a vexatious complaint" and carries a head and shoulders photograph of the plaintiff. Stamped across the photograph are the words "press release". In a box at the bottom of the page appear the words "Another true horror-story from the secret files of the 'solicitor from Hell', JM Martin (pictured) Law Society of Tasmania." The defendant acknowledged publication by asserting on the cover page:
"Designed and distributed by Thomas E Trustrum to celebrate the return of the Senate Select Committee to Hobart, June 2001."
Down the right-hand side of the page appear the following words: annoying, aggravating, disagreeable, harassing, irritating, tormenting, troublesome, unpleasant, provoking, distressing, exasperating and upsetting.
It is necessary to interpose here that about this time, there had been defaults in a number of mortgages arranged by a number of legal firms, and there was considerable disquiet in the community by persons who had suffered financially by reason of these defaults. The matter was frequently the subject of articles in the local press and became the subject of an investigation by a Senate Select Committee enquiring into financial transactions. The Select Committee sat in Hobart on two occasions in 2001, and on each occasion the sitting was attended by the plaintiff and Council members of the Law Society, as well as a considerable number of persons from the general public, many of whom, no doubt, had suffered losses from defaulting mortgagors.
The first publication included a photostat copy of a newspaper article about the defendant under the headline "Pensioner steps up war with legal goliaths" and a copy of two letters from the Law Society, one of which was the one signed by the plaintiff and dated 19 April 2001, to which I have already referred.
The remaining five pages of the publication were all written by the defendant and according to a footnote on the first page of the text, copies of the first publication were sent to a large number of persons. These remaining five pages begin with an introduction, the first paragraph of which provides:
"This first historic exposè of wholesale corruption in the Law Society of Tasmania is distributed for those many people who have been damaged or destroyed by various members over the years. I do not say that every solicitor in Tasmania is corrupt but executive-director Martin has effectively made them all look that way."
The introduction refers to the defendant's complaint that he made to the Law Society, and then falsely states with reference to it:
"Instead, she ignored my almost weekly correspondence for the next few months; and simply sat enjoying the sight of two of the members robbing me and sending me packing, back to Sydney."
The next paragraph asserts that a feature of the defendant's dealings with the plaintiff has been "her utter contempt for the fact I was a journalist", and that "She has single-handedly destroyed the Law Society's credibility with her brute ignorance." The rest of the introduction is directed towards the President of the Law Society.
The remainder of the four pages of text are headed:
"FREEDOM FIGHTERS
(FOI) UNITED 6228-9730
From: Thomas E Trustrum
To: Janine Marcia Martin, executive-director,
The Law Society of Tasmania
Dear Madam
Re: My 'vexatious' complaint"
It contains this paragraph:
"As you read this letter today, more than 20 of Tasmania's better-known journalists in print, tv and radio will also be reading it. By the end of next week - thanks to the internet - virtually every journalist and most solicitors in Australia will have read it."
It is unnecessary to set out the whole of the remaining pages of the first publication. It is extremely defamatory of the plaintiff. The following are some extracts from these pages:
· "The answer is because the Law Society of Tasmania is corrupt. It is an ugly and incestuous clique of old law-school cronies, running a cowardly conspiracy against the public, so that the public always lose, no matter how much hardship and pain incompetent or dishonest solicitors have caused."
· "Before I expose to the media how you reject almost every complaint you receive from the public (about six complaints a week or around 300 per year) let me address your fraudulent accusation of 'vexatious'."
· "Therefore this press-release exposes you as a liar (dictionary definitions include fabricator, falsifier, perjurer; to which I add psychopath, meaning a person afflicted with a severe mental disorder)."
· "When you receive a complaint - all complaints must be in writing accompanied by your fraudulent so-called Section D form - you throw it in a sack. Then you ignore the complaint until the person contacts you again …"
· "Then you encourage the solicitor/s against whom they had complained to sue them for 'damages' or 'defamation', particularly if the complainants are single women and/or age-pensioners. Because - as I said - you are a psychopath, afflicted with a severe mental disorder."
· "You are specifically employed by the Law Society of Tasmania - which is no stranger to internal corruption - to stop any (approved) member ever being found guilty of negligence, misconduct or fraud. You are in effect a bounty-hunter, paid by solicitors to keep their mistakes and frauds secret. That is easily achieved, simply by rejecting almost every complaint that comes in, on the grounds that it is 'vexatious and without substance'."
· "Journalists are now invited to read a very condensed actual case history (my own) of how Mrs JM Martin, the 'solicitor from Hell' operates under patronage of the morally-bankrupt Law Society of Tasmania."
There follows an account of the defendant's complaint and the article concludes:
· "The solicitor who wrote to me on behalf of Levis, Stace and Cooper is well known by solicitors right around Australia, having once (allegedly) assaulted another solicitor. It sounds like the ideal working-partnership for JM Martin, the Law Society of Tasmania's own hand-picked psychopath - and solicitor from Hell."
By the statement of claim, par6, the plaintiff pleaded that:
"The Defendant has published the article to
(a) Judy Tierney;
(b) ABC Television;
(c) Annette Flong;
(d) BBC London;
(e) Simon Bevilacqua;
(f) Anne Barbelink;
(g) The Mercury Newspaper;
(h) Mike Munro;
(i) A Current Affair (a television current affairs programme);
(j) Heather Long;
(k) Barry Prismall;
(l) The Examiner Newspaper;
(m) Angela McLaren;
(n) Anthony Haneveer;
(o) The Advocate Newspaper;
(p) Ric Paterson;
(q) Tim Cox;
(r) Annie Warburton;
(s) Jules Retrot;
(t) Chris Wisbey;
(u) ABC Radio
(v)138 persons who are described by the Defendant as members of the Freedom (FOI) Fighters United;
(w)legal practitioners throughout the State of Tasmania;
(x)and divers other persons in the State of Tasmania."
By his defence, the defendant did not join issue with this plea and by virtue of the Supreme Court Rules 2000, r250, it is deemed to be admitted. In his evidence at trial, the defendant did not suggest that this plea was incorrect in any respect. The plaintiff gave uncontradicted evidence that as far as she could recall, she had no personal dealings with the defendant prior to the Law Society dismissing his complaint. She said that she received the first publication in the mail and "for one horrible moment [she] thought it was a horrible joke." The plaintiff said that throughout the day many legal practitioners telephoned her and, as a result, she became aware that the document had been sent to very many people in the legal community. She said in her evidence that it was "my worst nightmare" that the defendant had "not only written scurrilous lies about me and sent them to me but he had also taken it upon himself to send it as far and wide as he possibly could to people in whose regard I was held in the highest esteem." The plaintiff saw it as a campaign of hatred and viciousness on the part of the defendant and was greatly distressed by it and its wide publication. She said that the photograph on the front page was taken by a photographer from the Mercury Newspaper during the first Senate Select Committee hearing in Hobart.
By par5 of the statement of claim, the plaintiff pleaded that the first publication carried the following innuendoes:
"(a)that the Plaintiff had failed to discharge her duty as the Executive Director of The Law Society of Tasmania in respect of complaints made by the Defendant to The Law Society of Tasmania in respect of two legal practitioners;
(b)that the Plaintiff ignored the Defendant's correspondence to The Law Society of Tasmania in respect of two legal practitioners;
(c)that the Plaintiff did nothing with respect to the Defendant's complaints to The Law Society of Tasmania concerning two legal practitioners and that she enjoyed the sight of two members of The Law Society of Tasmania robbing the Defendant and forcing him to return to Sydney;
(d)that the Plaintiff had behaved in a manner which displayed contempt for the Defendant;
(e)that the Plaintiff had single-handedly destroyed The Law Society of Tasmania's credibility;
(f)that the Plaintiff had behaved in an ignorant way towards the Defendant and his complaints;
(g)that the Plaintiff was dishonest;
(h)that the Plaintiff had concealed the Defendant's complaint to The Law Society of Tasmania concerning two legal practitioners;
(i)that the Plaintiff was a party to corrupt conduct;
(j)that the Plaintiff was a party to a conspiracy to act contrary to the best interest of the Defendant;
(k)that the Plaintiff was a party to a conspiracy with and involving the two solicitors against whom the Defendant had complained to The Law Society of Tasmania;
(l)that the Plaintiff is dishonest;
(m)that the Plaintiff is a liar;
(n)that the Plaintiff suffers from a severe mental illness;
(o)that the Plaintiff is a psychopath;
(p)that the plaintiff ignored the Defendant's complaint to The Law Society of Tasmania concerning two legal practitioners and behaved improperly by doing so;
(q)that the Plaintiff had wrongfully encouraged the solicitors against whom the Defendant had complained to sue the Defendant for damages for defamation;
(r)that the Plaintiff had wrongfully encouraged unnamed solicitors against whom unnamed persons had made complaints to commence proceedings against those persons for damages for defamation particularly if the complainants were single women and/or aged pensioners;
(s)that the Plaintiff had engaged in fraudulent conduct;
(t)that the Plaintiff was paid by solicitors to keep solicitors' mistakes and frauds secret;
(u)that the Plaintiff rejected complaints against solicitors without properly investigating or causing to have those complaints investigated;
(v)that the Plaintiff had rejected almost all complaints that have come to The Law Society of Tasmania on the ground that the complaint was vexatious and without substance;
(w)that the Plaintiff was party to corrupt and illegal conduct between two solicitors of whom he had complained to cause the Defendant financial loss and to be evicted from premises in which he was residing;
(w)that the Plaintiff is a thief."
With respect to virtually all those alleged innuendoes, the defendant, by his defence, admitted that "the words or similar words were written on or about 7 June", but denied that the words were defamatory and, in some instances, that the words were incapable of any libellous or actionable meanings. Plainly, the words used in the first publication were defamatory of the plaintiff and capable of bearing virtually all of the innuendoes pleaded by the statement of claim, par5.
The second publication
The second publication comprises six pages. The cover page is entitled "law society of tasmania exposed! Martin, two clerks and a tea-jug - By Tom E Trustrum". There follows a large photograph depicting the head of the plaintiff and, in words written underneath it, a reference to "lawyers funds fiasco" and the Senate Select Committee. The text on page 2 is headed "payback-time campaign hq" and is addressed "Dear Reader". The article is an attack on the Law Society of Tasmania and obliquely makes reference to a group of people, inferentially one of whom is the defendant, who have banded together to "demolish" the Law Society of Tasmania. Again, it suffices to set out some extracts from this document:
· "The Law Society is now down to a 'skeleton staff' of Martin and two helpers. The small clique of old mates controlling the Society (for their own benefit) call Martin the 'executive-director' because it sounds more impressive than 'manager' when dismissing virtually every complaint - about any solicitor - that is ever received."
· "Now that you have your own support-group (Payback-Time), you can start to mend the damage inflicted on you by the Law Society and work towards obtaining true justice. Our intention is to sue the Law Society in a class action. But first we must have the Law Society jackal, JM Martin, brought to account."
· "What is fraud? One branch of fraud is if members of the public write to the manager of an organisation, informing her that certain actions are taking place which may cause them loss or damage - but the manager does nothing to prevent that loss or damage occurring."
· "But from today, you are one of several dozen people who wrote very similar letters to Martin over the past four years (we estimate six hundred to twelve hundred letters at the moment) which Martin ignored and buried, to please her corrupt masters, who 'own' the technically-bankrupt Law Society of Tasmania."
· "The most damning feature of Martin's wholesale sadism, which strips her of any possible excuse or justification for doing what she did; is that she herself is a barrister and solicitor of the supreme court!"
Attached to the second publication is an invitation to advise the defendant of any person who has lost money due to solicitor fraud and negligence so that they can be put on the mailing list for the next publication under the heading Payback-Time.
The statement of claim alleges that the defendant published the second publication to legal practitioners throughout the State of Tasmania and to divers other persons. The allegation is not denied and deemed to be admitted. Documentary evidence admitted at trial established that the second publication was indeed, sent to many legal practitioners, both in Tasmania and elsewhere in Australia.
The statement of claim, par10, pleads the following innuendoes arise from the words published in the second publication. They are all made out:
"(a) that the Plaintiff was dishonest;
(b) that the Plaintiff was untrustworthy;
(c)that the Plaintiff had dismissed virtually every complaint about a solicitors [sic] that she has ever received at The Law Society of Tasmania without proper investigation;
(d)that the Plaintiff was fraudulent and had engaged in fraudulent conduct;
(e)that the Plaintiff had failed to discharge her duties and obligations as the Executive Director of The Law Society of Tasmania by in particular failing to act on complaints from members of the public against legal practitioners;
(f)that the Plaintiff had ignored complaints that had been sent to her in her capacity as Executive Director of The Law Society of Tasmania from members of the public of and concerning solicitors;
(g)that the Plaintiff had concealed complaints made by members of the public against solicitors;
(h)that the Plaintiff had ignored and concealed complaints to please her corrupt masters;
(i)that the Plaintiff is a sadist;
(j)that the Plaintiff had defamed complainants;
(k)…"
The third publication
The third publication comprises only three pages and is dated 19 June 2001. It has the heading ")list of tasmanian solicitors (lots" and again bears a photograph of the plaintiff. Superimposed upon that photograph are the following words:
"Every good tree brings forth good fruit. But a corrupt tree beings forth evil fruit. Every tree that bringeth not forth good fruit is hewn down, and cast into the fire."
The text is dated 20 June 2001, and bears the form of a letter addressed "Dear Freedom-Fighter". The following extracts are taken from it:
· "The solicitor from Hell will not be sending so many of her pornographic letters in future regarding 'vexatious' complaints, now that we have exposed that she was sending the identical letter to 85% of all people who complained to the Corruption Society."
· "We will be holding a rally and 'lunch' for several dozen freedom-fighters outside Martin's home in August, …"
· "My own astonishment has been in witnessing how Martin has collapsed in only four weeks (from when we started) from arrogant ice-queen into a whimpering jelly. Her cringing whine at the Senate-hearing that she has been 'harassed' bore no resemblance to the creature who had sat behind that desk for three years, ordering the summary executions of dozens of Law Society complainants, without a blink."
· "No-one will ever know how many peoples [sic] health she destroyed. Dozens, without a doubt."
The pleaded allegation that the third publication was published by the defendant to legal practitioners throughout the State of Tasmania and other persons is deemed to be admitted. Similarly, it is deemed to be admitted on the pleadings that the innuendo from the third publication is that the plaintiff has published pornographic letters and that, as Executive Director of the Law Society for a period of three years she has, ordered the summary executions of dozens of Law Society complaints. Not deemed admitted, but clearly established, are the innuendos arising from the third publication that the plaintiff acted improperly in the disposition of complaints concerning legal practitioners, that she destroyed persons, was corrupt and dishonest. As is the case with respect to the second publication, the evidence is overwhelming that it was published to legal practitioners throughout the State and elsewhere. The plaintiff gave evidence that in her capacity as Executive Director of the Law Society she was required to attend meetings of a sub-committee of the Law Council of Australia, comprising chief executive officers, presidents and other officers of Law Societies in each jurisdiction of Australia. Many of those who attended a meeting of this sub-committee had been sent copies of one or more of the three publications and some even brought their copies to this meeting. In addition, the evidence established that copies of one or more of the three publications were sent to government officers in the Attorney-General's Department, the Legal Aid Commission, the Justice Department, and the like.
Compensatory damages
The plaintiff does not assert that she has suffered any pecuniary loss by reason of the defendant's defamation and accordingly, compensatory damages are to be awarded for:
· consolation for distress;
· reparation for harm done to reputation; and
· vindication for the plaintiff's reputation.
I venture to repeat the citation that appears in my judgment in Avram v Inches [1999] TASSC 10 at par27, taken from the judgment of Windeyer J in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 150:
"It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways - as a vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money. The variety of the matters which, it has been held, may be considered in assessing damages for defamation must in many cases mean that the amount of a verdict is the product of a mixture of inextricable considerations."
See also Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 61, 69 and 104. Having regard to the widespread publication of the three defamatory publications, of particular relevance to the assessment of damages is the following observation of Lord Hailsham in Broome v Cassell & Co [1972] AC 1027 at 1071:
"Not merely can [the plaintiff] recover the estimated sum of his past and future losses, but, in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge."
The plaintiff has enjoyed a successful career, having held a series of increasingly senior positions in academic administration in tertiary institutions in South Australia, before she became the Executive Director of the Law Society of Tasmania. The evidence satisfies me that she is a person of high repute and fortunately that reputation does not, thus far, appear to have been affected by the defendant's scurrilous attacks upon her by the publication of the defamatory material. Indeed, I doubt that many of those to whom the defamatory material was published would have believed it. That is a factor of mitigation in the assessment of damages. See Barbaro v Amalgamated Television Services Pty Ltd [1985] 1 NSWLR 30 at 37; Bateman v Shephard & Ors (1997) Aust Torts Reports 81-417.
I accept the plaintiff's evidence that the defendant's repeated attacks upon her caused her great mental distress. She said that after she became aware that the first publication had been distributed amongst the legal community all around Australia she became upset because she feared that the high esteem which she had deservedly earned in the professional community in which she worked might be diminished by the publication. When the defamation was repeated twice more, the plaintiff said that she felt physically sick. She said in her unchallenged evidence-in-chief:
"As each document arose or appeared I felt physically sick. I - where I was in a public forum I found myself shaking and I found myself totally lacking confidence to proceed, to participate in the meetings. My self confidence was knocked particularly where the documentation contained statements so horrendous that attacked me and attached my credibility. I had credibility with these people and they were handing me a document which was just scurrilous."
The plaintiff, correctly in my view, described the publications as a campaign of hatred by the defendant. She said that she was "absolutely horrified" by the reference in the third publication to her letters being pornographic. She eventually obtained a restraining order against the defendant restraining him from writing letters to her, but it appears that this did not prevent him pursuing his utterly baseless campaign against the plaintiff. Very shortly after the plaintiff started her new job in South Australia, the defendant wrote to her. The letter concerned this case and an appeal from an interlocutory order that had been made. The letter said that the plaintiff would be called as a witness and that defendant was seeking $100,000 "being less than 10% of the expected costs of the case". The defendant knew full well that the plaintiff was represented in this litigation by a Hobart firm of solicitors, and I find that he wrote this letter to the plaintiff to cause her disquiet. The letter was addressed to the plaintiff by name, but the envelope in which it was sent was addressed only to "Law Society of South Australia". The defendant said that he did not post the letter nor address the envelope and that this was done by one of his "volunteers". Whoever did address the envelope, the inference is inescapable that the omission of the plaintiff's name from the envelope was not accidental and done to ensure that someone at the South Australian Law Society opened the envelope before the contents were given to the plaintiff. With respect to her receipt of this letter, the plaintiff said "I thought I had started a new life and suddenly the horror of what I’d been through was right on my doorstep again."
In his evidence, the defendant made no pretence of justification for his outrageous conduct in publishing the three publications. He claimed that he founded an organisation called Freedom Fighters, or some similar name, which later became "Legal Watchdog." He agreed in cross-examination that he had a rudimentary knowledge of the law of defamation, but claimed that his publications were justifiable responses to the letter that the plaintiff wrote to him advising him that his complaint had been dismissed as vexatious and lacking substance. Mr Gunson SC, who appeared as counsel for the plaintiff, commenced to explore this claim in cross-examination when the defendant cut across him and said:
"… if it assists you to get to the end of it rather more quickly, I do not withdraw or apologise for anything that I have said in my news letters about Mrs Martin."
He quickly followed that statement with this:
"... I have no apology to make for anything that was said during Mrs Martin’s reign as the law - whatever she was - executive director of the Law Society."
The defendant's totally unjustified vilification of the plaintiff in the publications entitles the plaintiff to a substantial award of compensatory damages, a component of which will be aggravated damages. Lord Reid said in Broome v Cassell & Co Ltd (supra) at 1085:
"It has long been recognised that in determining what sum within that bracket should be awarded, a jury, or other tribunal, is entitled to have regard to the conduct of the defendant. He may have behaved in a high-handed, malicious, insulting or oppressive manner in committing the tort or he or his counsel may at the trial have aggravated the injury by what they there said. That would justify going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation."
In Carson v John Fairfax and Sons Ltd (supra) Brennan J (as he then was) approved of that statement of Lord Reid at 71 and said:
"Damages may be aggravated or mitigated by the manner in which the defamatory matter was published and by the subsequent conduct of the defendant (Triggell v Pheeney (1951) 82 CLR, at p 514.). Conduct of the defendant from the time of publication until verdict (including conduct at the trial, to which reference will presently be made) is relevant ( Praed v Graham (1889) 24 QBD 53, at p 55)."
There have been insufficient awards of damages for defamation in this jurisdiction to indicate a "tariff". I noted in Avram v Inches (supra) at par25, that the researches of counsel in that case turned up no more than seven awards in the previous 34 years, one of which was a jury award in a Court of Requests. To that research can now be added Avram itself, a jury award of $15,000 compensatory damages and $25,000 exemplary damages, and Bacon & Ors v Hansch [2001] TASSC 42, a judge assessment of $3,100 for each of two plaintiffs. In assessing compensatory damages, I take into account:
· the outrageous nature of the defamation;
· the number of, and serious nature of, the allegations made with respect to the plaintiff's character in the pursuit of her duties and her profession;
· the total absence of any excuse for the publications;
· the baselessness of the allegations;
· the fact that the publications did understandably cause the plaintiff to suffer emotional upset;
· the fact that the defendant persisted with his campaign against the plaintiff, right up to the conclusion of the trial, with a contumelious disregard for the facts and her rights;
· the widespread nature of the publication of the three publications; and
· the need to vindicate the plaintiff and to repair the injury to her pride and dignity.
I assess the plaintiff's compensatory damages in the sum of $35,000.
Exemplary damages
In addition to compensatory damages, the plaintiff claims an entitlement to exemplary damages. Although in Uren v John Fairfax & Sons Pty Ltd (supra) the High Court declined to follow the House of Lords in Rookes v Barnard [1964] AC 1129 limiting the categories of conduct that would attract an award of exemplary damages, the High Court approved the following statement by Lord Devlin in Rookes v Barnard at 1129:
"Exemplary damages are essentially different from ordinary damages. The object of damages in the usual sense of the term is to compensate. The object of exemplary damages is to punish and deter. It may well be thought that this confuses the civil and criminal functions of the law; and indeed, so far as I know, the idea of exemplary damages is peculiar to English law."
In considering the plaintiff's claim for exemplary damages, I bear in mind the need for any assessment to be considered with restraint and the need to show that the plaintiff was the victim of punishable behaviour. In addition, of course, I bear in mind that the sum I have assessed for compensatory damages includes a figure for aggravation. See Rookes v Barnard (supra), at 1227; XL Petroleum (NSW) Proprietary Limited v Caltex Oil (Australia) Proprietary Limited (1984 - 1985) 155 CLR 448 at 463; Television New Zealand Ltd v Quinn [1996] 3 NZLR 24 at 35. Also relevant to this aspect of the plaintiff's claim is the means of the defendant, but I have no evidence of them.
I am satisfied that the plaintiff is entitled to recover a modest additional sum by way of exemplary damages to punish the defendant for his contumelious conduct. Of great significance upon this aspect of the plaintiff's case is the need to deter the defendant from a repetition of his wrongful behaviour, because his evidence and actions to the conclusion of the trial make it clear that there is a real risk of this occurring. I would add a further sum of $5,000 for exemplary damages.
The plaintiff's damages are assessed in the total sum of $40,000.
3
0