Matthews v Pigram

[2020] NSWDC 526

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Matthews v Pigram [2020] NSWDC 526

Hearing dates:

13 August 2020

Date of orders:

10 September 2020

Decision date:

10 September 2020

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

(1)   Judgment for the plaintiff for $20,600.

(2) Pursuant to s 40 of the Defamation Act 2005 (NSW), the defendant is to pay the plaintiff’s costs of the proceedings on an indemnity basis.

(3) Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the plaintiff’s costs are to be paid in the form of a gross sum costs order.

(4)   The plaintiff is to have liberty to bring in Short Minutes of Order reflecting the sum to be awarded after the deductions referred to in the judgment are calculated.

Catchwords:

TORT – defamation – assessment of damages

Legislation Cited:

Uniform Civil Procedure Rules r 29.7

Defamation Act 2005 (NSW) ss 34 35 and 40

Civil Procedure Act 2005 (NSW) s 98(4)(c)

Cases Cited:

Aldridge v Johnston [2020] SASCFC 31

Alesco Corporation Limited ACN 008 666 064 v Te Maari [2015] NSWSC 469

Altarama Ltd v Forsyth & Ors [1981] 1 NSWLR 188

Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419

Balzola v Passas [2020] NSWSC 896

Bauer Media Pty Ltd v Wilson (No 2) (2018) 56 VR 674; [2018] VSCA 154

Bobb v Wombat Securities Pty Ltd & Ors (No 2) [2013] NSWSC 863

Brose v Baluskas & Ors [2020] QDC 15

Carson v John Fairfax & Sons Ltd [1993] HCA 31

Cerutti & Anor v Crestside Pty Ltd & Anor [2014] QCA 33; [2016] 1 Qd R 89

Clark v Ainsworth (1996) 40 NSWLR 463

Cosco v Hutley (No.2) [2020] NSWSC 893

Crampton v Nugawela [1996] NSWSC 128; (1996) 41 NSWLR 176

Darwin v Norman [2020] NSWSC 357

Gagner Pty Ltd trading as Indochine Cafe v Canturi Corporation Pty Ltd [2009] NSWCA 413; 262 ALR 691; 77 ATR 157; 236 FLR 401

Goldberg v Voigt [2020] NSWDC 174

Hancock v Rinehart (Lump sum costs) [2015] NSWSC 1640

Hayson v The Age Company Pty Ltd [2020] FCA 361

Jensen v Nationwide News Pty Ltd [No 13] [2019] WASC 451

KSMC Holdings t/as Hubba Bubba Childcare on Haig v Bowden [2020] NSWCA 28

Mark French v Triple M Melbourne Pty Ltd [2005] VSC 36

Mohareb v Booth [2020] NSWCA 49

Murray v Raynor [2019] NSWCA 274

Nationwide News Pty Limited v Rush [2020] FCAFC 115

Nickolopoulos & Ors v Greek Herald Pty Ltd [2002] NSWSC 808

Oskouie v Maddox [2019] NSWSC 428

Penson v Titan National Pty Ltd (no 3) [2015] NSWCA 121

Poniatowska v Channel Seven Sydney Pty Ltd (No. 2) [2020] SASCFC 5

Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327

Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365

Smith v Jones [2020] NSWDC 262

The Herald And Weekly Times Ltd v McGregor [1928] HCA 36; [1929] VLR 215; (1928) 41 CLR 254

Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497

Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570; [2016] NSWCA 283

Category:

Principal judgment

Parties:

Plaintiff: Clive Matthews
Defendant: Mark Pigram

Representation:

Counsel:
Plaintiff: Mr R J De Meyrick

Solicitors:
Plaintiff: New South Lawyers
Defendant: Mr Mark Pigram (No Appearance)

File Number(s):

2019/362464

Publication restriction:

None

Judgment

The plaintiff’s claim

1. These are proceedings for defamation for the publication of three emails which the defendant sent to the plaintiff’s employer and to other residents in the building complex for which the plaintiff was the strata committee chairperson.

2. Two of the emails, sent on 30 August 2019, accused the plaintiff of being a “peeping Tom”. As a result, the plaintiff was told by his employers that, as part of their office policy, they had to investigate the incident. He was exonerated more or less immediately, but he was very embarrassed that this had happened, even though his employers were just carrying out their obligations in a work environment. That embarrassment was increased when residents in the building complex made adverse comments.

3. The plaintiff told the strata manager, who offered to write to the owners about the exoneration, that he thought this might make things worse, and that he would ask the defendant for a retraction. A request for a retraction and apology was sent to the defendant by the plaintiff’s solicitors on 18 September 2019. No reply was received and, on 18 November 2019, the plaintiff commenced these proceedings.

4. The defendant has been served with the statement of claim but has not filed a defence. He has not replied to any of the correspondence from the plaintiff’s solicitors. After several opportunities were given to the defendant to file a defence, judgment was summarily entered against him and the proceedings were listed for assessment of damages.

5. Although notified of the date of the hearing for the assessment of damages, the defendant has made no submissions and has not attended court. The hearing has accordingly proceeded in his absence.

6. The plaintiff also seeks an order for costs in the form of a gross sum costs order (affidavit of Kendall Odgers, Exhibit G).

The matters complained of

7. There are three publications. The first matter complained of was sent to the President of the Owners Corporation, with copies to 17 other email addresses, as well as to the plaintiff. The contents were as follows:

”Mr He,

I have just received a complaint from the tenants of unit 17 that they have observed your president who is not an owner of any property in the strata, but is supported by GS Law, Shamser Thapa and Berg Hobbies, has without notice to tenant or owners within the strata, has [sic] been today, this afternoon, been [sic] witnessed walking along the balcony outside of unit [sic] 17 and 18 and attempting to look through the windows of at least unit 17.

Has SP16446 turned into a “Peeping Tom” committee.

This is damn outrageous and you should be thinking the immediate resignation of Mr Matthews from his role.

This current committee has gone just too far and are [sic] clearly breaching laws.

Best regards

[Defendant].”

8. The imputations pleaded to arise from this publication are as follows:

1. The plaintiff secretly watches women for sexual gratification;

2. The plaintiff has acted in such an outrageous manner as to justify his immediate removal as the chairperson of the strata committee of strata plan 16446;

3. The plaintiff has acted unlawfully by without notice to tenants or owners, walking along the balcony area outside of unit 17 and unit 18 of 181 Church Street, Parramatta and attempting to look through the windows.

9. The second matter complained of, sent on the same day at approximately one hour later, was an email to X recipients, the texture which was as follows:

“Subject: re-: Mr He Your President

I will withhold contacting the police on this privacy intrusion/peeping Tom matter until I have a response from the strata committee

[blank line]

Providing a copy of the Security Video; and [blank space]

And [sic] confirming either Mr Matthews has resigned or been removed from the Strata Committee and as representative of any owner within the Strata.”

10. The imputation pleaded to arise from this publication is as follows:

1. The plaintiff secretly watches women for sexual gratification.

11. The third matter complained of, which is earlier in time (30 May 2019) is unrelated to these emails. It was sent to the plaintiff as well as to 3 other members of the committee. It states merely:

“Clive, you are a pig.”

12. The imputation pleaded to arise from this publication is that the plaintiff is an unpleasant person.

The evidence

13. The following affidavit material was tendered:

1. The plaintiff’s affidavit sworn on 16 June 2020 (Exhibit A);

2. The affidavit of Anthony Sukkar sworn on 17 June 2020 (Exhibit B);

3. The affidavit of Shamser Thaapa sworn on 17 June 2020 (Exhibit C);

4. The affidavit of Peter Berg sworn on 16 July 2020 (Exhibit D); and

5. Affidavits of the plaintiff’s solicitor, Mr Odgers (Exhibit G) and of his employee Ms Moteea concerning service of pleadings and other material (Exhibits E and H).

The plaintiff’s evidence

14. The plaintiff’s affidavit sets out that, as part of his employment activities, he held the unpaid position of chairperson of the strata committee of a building to which I will refer as “the strata building” in Church Street Parramatta since his election on 26 March to 2019. As a 75-year-old man who now lived alone, work was an important part of his life, and he enjoyed the activities involved in helping the Owners Corporation run smoothly. He spent many hours at the building attending to maintenance and repair issues.

15. Earlier in 2019 to the events in these proceedings, there had been a storm and some windows in unit 17 of the building were damaged. The defendant sent an email to an employee of the strata manager, Mr Jason He, on 18 August 2019 as follows:

“Windows within unit 17 were broken during a storm some months ago. There [sic] damage were [sic] reported to the strata committee chair at the time of the damage. These windows fall within common property of SP16446.”

16. The plaintiff’s affidavit sets out that there had not been any prior notification of storm damage to these particular windows. He accordingly sent an email that same day to the defendant stating that he would get the windows to unit 17 repaired immediately and sent an email to Mr Pappas, the strata manager, asking him to attend to this. The plaintiff then sent a follow-up email on 30 August 2019 asking, “Did you arrange a glazier?” Mr Pappas replied “Yes and Express Glass has attended.”

17. However, after Mr Pappas’s email was received by the plaintiff, he decided to check. He went to the relevant part of the building complex to look at the balcony and common area outside unit 17 and noticed that the windows appeared to be broken and not to have been repaired at all. He sent an email to Mr Pappas at 3:06 pm on 30 August 2019 as follows:

“Just checked the windows. Have not been replaced yet!”

18. Mr Pappas replied immediately (at 3:09 pm) as follows:

“Sorry got confused with Frank Tan’s unit.

Materials received and has been booked in with the tenant for 4th September.”

19. Almost immediately afterwards, the plaintiff received the first matter complained of (sent at 3:44 pm on 30 August 2019). Before he had a chance to seek advice from his employer or to respond, this was followed by the second matter complained of, sent at 4:34 pm.

20. When the plaintiff read these emails he was “hurt, embarrassed and very upset” (affidavit, paragraph 15) because they had been sent to owners of property in the strata plan and contained imputations which were not merely false, but very serious.

21. Later that same day, Mr Georges and Mr Sukkar interviewed the plaintiff about the allegations. In his affidavit (exhibit B), Mr Sukkar explains that he had to investigate the allegations himself, as the plaintiff worked within his firm, and it was necessary to ensure the safety of the staff (paragraph 8).

22. The plaintiff was “very embarrassed even though they were just doing their job in a work environment” and “felt like I had somehow been charged with an offence and had to prove my innocence” (Exhibit A, paragraph 17). Mr Georges later told him he had spoken to the tenant of unit 17 “to clear up the matter” (same paragraph). Although he had been exonerated, he was still very upset, particularly as there had been an apparent threat to go to the police if he did not resign immediately.

23. The plaintiff’s employers may have been satisfied by their inquiries, but other persons who received the emails indicated, when they later spoke to the plaintiff about their contents, that they were very concerned. In his affidavit, the plaintiff sets out a conversation he had with Mr Peter Berg, the treasurer of the strata committee, who said to him

“What’s this I hear that you were looking into the window of Mark’s tenant?”

24. The plaintiff was very embarrassed to be spoken to about this allegation (Exhibit A, paragraph 18). What was worse was that Mr Berg asked him about the incident several times thereafter and recommended that he should no longer speak to or visit any owners in the building alone. This upset the plaintiff as he felt he was the subject of suspicion on an ongoing basis.

25. Mr Berg has provided an affidavit in these proceedings (Exhibit D) in which he confirms that the plaintiff’s reputation was harmed by these publications.

26. It was in these circumstances that the strata manager, Mr Pappas, spoke to the plaintiff as follows:

“I called Mr Pigram’s tenant after I got his peeping Tom email. She explained to me that she did not say you were looking in the window but that she was not sure why you were on the balcony. I explained to her that you were checking the broken window and she was okay with it. Do you want me to write to all the owners and explain why you were there?”

27. As is set out in the plaintiff’s affidavit, he told Mr Pappas that he thought this would “just make it worse” and said he would ask the defendant to retract what he had said. His solicitors sent such a request but it was unanswered.

28. Some of the residents believed what was written in the email. One of the residents, who has a barbershop in the building, asked the plaintiff to leave his shop on the first occasion he went there after public at the publications. Although the plaintiff had gone to the shop to deal with his complaints about painting the premises, the barber said to him:

“After what I have heard I don’t want you in here or running this building.”

29. Another owner was “rude” to the plaintiff (Exhibit A, paragraph 21) while other neighbours asked him for an explanation. The plaintiff lists 12 people to whom he had to give explanations in paragraph 22 of his affidavit.

30. The plaintiff considered that the most upsetting response came from a Ms Daniel, who was trying to be helpful. She told him a story about a family member being accused of something worse and having to go to court for three years to clear his name. Ms Daniel told him (Exhibit A, paragraph 23):

“You are lucky it is not the actual girl alleging this to the police. These stories are like throwing mud that always sticks. My family member had an allegation of a sexual nature against him and he defended them in court. Even though he was cleared, people still think about and look at him differently.”

31. As a result of these responses to the matters complained of, the plaintiff felt that many people who lived in or owned a unit in the building were questioning his reputation. He has had many nights at home alone where he has felt upset and broken down in tears. He felt that he wanted to quit his job and the strata committee.

32. The plaintiff was aware that the defendant had a habit of making malicious and rude remarks not only about him but other members of the executive committee. A bundle of correspondence is attached as an exhibit to the plaintiff’s affidavit; its contents show that the defendant’s emails included not only derogatory and abusive language but also additional references to the plaintiff’s assertedly improper conduct, including repeating the claim that the plaintiff had looked through the windows of unit 17 (See the exhibit CM1 to the plaintiff’s affidavit, at [71]). One of these missives is the third matter complained of, but the tenor of other publications is in fact more offensive.

33. After judgment was entered against the defendant, he was notified of this assessment hearing by the court as well as by the solicitors for the plaintiff. He has not provided any evidence to the court. As the orders made in this judgment demonstrate, he was called twice outside the court both before and during the hearing, and has elected not to attend court to contest the assessment of damages.

The procedure for entry of judgment, assessment of damages and conducting an ex parte hearing

34. The fact that the defendant has not engaged in the litigation does not absolve the plaintiff or the court from their respective obligations to accord procedural fairness at all stages of the litigation.

35. The entry of judgment for a plaintiff in defamation proceedings where no defence has been filed does not occur in the same way as a default judgment, for the reasons explained by Hunt J in Altarama Ltd v Forsyth & Ors [1981] 1 NSWLR 188 (see also Nickolopoulos & Ors v Greek Herald Pty Ltd [2002] NSWSC 808. The reluctance of courts to enter default judgment in defamation actions predates specialist lists and the uniform legislation: Mark French v Triple M Melbourne Pty Ltd [2005] VSC 36 at [18] – [21]. In the present case, the defendant was afforded a series of opportunities to file a defence, the last of which was accompanied by a self-executing order, conformably with the procedure set out by Hunt J in Altarama Ltd v Forsyth & Ors. The defendant’s failure to comply with these orders has resulted in the entry of summary judgment.

36. The plaintiff’s compliance with his obligations to notify the defendant of these proceedings and these orders is the subject of affidavit evidence from Ms Mootea (Exhibit F). I am satisfied, from this material, that the defendant is aware of these proceedings as well as of the assessment hearing date.

37. In hearing the case, I was guided by the provisions of Uniform Civil Procedure Rules (“UCPR”) r 29.7 and by the observations of Barrett J in Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365 (as applied by Hallen J in Alesco Corporation Limited ACN 008 666 064 v Te Maari [2015] NSWSC 469 at [37]), in terms of satisfying myself as to the plaintiff’s discharge of his own obligations as well as ensuring that those parts of the plaintiff’s claim for which the plaintiff bears the onus of proof have been discharged. I do not consider, however, that my obligations to the defendant extend to putting the plaintiff through a procedure for the determination of defamatory meaning (cf Oskouie v Maddox [2019] NSWSC 428 at [21] – [29]) as rulings on meaning are not obligatory in defamation actions.

The principles and statutory provisions applicable for the award of damages

38. In determining the amount of damages to be awarded, I am required to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded: s 34 of the Defamation Act 2005 (NSW).

39. The maximum amount of damages that may be awarded for non-economic loss is gazetted as from 26 June 2020 to be $421,000 (see s 35 of the Defamation Act 2005 (NSW)).

40. In Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44, Mason CJ, Deane, Dawson and Gaudron JJ (at 60) explain the purposes of an award of general damages for defamation as follows:

“The three purposes no doubt overlap considerably in reality and ensure that "the amount of a verdict is the product of a mixture of inextricable considerations". The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant's personal and (if relevant) business reputation and vindication of the appellant's reputation. The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant. Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant's reputation.”

41. The assessment of damages must be informed by a consideration of the circumstances of the publication and the imputations it conveyed. However, after a decade of comparative judicial harmony as to how damages are to be assessed, there is now a considerable debate as to how the maxims of the High Court as well as the provisions of the uniform legislation are to be translated into a sum suitable to recompense the plaintiff.

Conflicting views on assessment methods and quantum

42. In KSMC Holdings t/as Hubba Bubba Childcare on Haig v Bowden [2020] NSWCA 28 at [143] (“KSMC Holdings), Payne JA, citing Murray v Raynor [2019] NSWCA 274 at [292] – [295], stated that “there is an issue in this State about the fundamental approach to damages in defamation cases”. Importantly for the assessment process here, that “issue” is not merely whether the impact of aggravated damages on the cap is to lift it (Bauer Media Pty Ltd v Wilson (No 2) (2018) 56 VR 674; [2018] VSCA 154, (“Bauer”)), but as to what are seen to be unduly high awards of damages generally.

42. These views have either been merely noted by first instance courts in other jurisdictions (see Wagner v Nine Network Australia Pty Ltd [2019] QSC 284 at [245], published very shortly afterwards) or not referred to at all (see most recently Rothman J’s preference for the approach taken in Nationwide News Pty Limited v Rush [2020] FCAFC 115 in Cosco v Hutley (No.2) [2020] NSWSC 893, where no reference is made to the concerns expressed in KSMC Holdings).

43. The difficulty lies in determining what these appellate concerns mean in terms of assessment. The New South Wales Court of Appeal is not the only appellate court to stop short of holding that Bauer was wrongly decided. In Poniatowska v Channel Seven Sydney Pty Ltd (No. 2) [2020] SASCFC 5, where Kourakis CJ notes (at [86]) that the proposed legislative reforms would result in a hard cap (at [86]), but preferred to express no view (at [90]-[91]), as no aggravated damages were to be awarded. The Full Court of the Federal Court, in Nationwide News Pty Limited v Rush [2020] FCAFC 115, accepted that the result of Bauer was “anomalous outcomes” (at [451]) but declined to consider the issue as discussed in these judgments, adding that these “do not affect our conclusion” (at [468]). (Somewhat inconsistently, in the same court, Bromwich J at first instance both endorsed and applied KSMC Holdings and Rayner: Hayson v The Age Company Pty Ltd [2020] FCA 361 at [88].) Many judgments which award aggravated damages simply do not refer to it: Brose v Baluskas & Ors [2020] QDC 15; Darwin v Norman [2020] NSWSC 357, Smith v Jones [2020] NSWDC 262 and Goldberg v Voigt [2020] NSWDC 174 (this was also the position taken by the first instance judge in KSMC Holdings).

44. However, in Aldridge v Johnston [2020] SASCFC 31, the court affirms that the Court of Appeal’s interpretation of the damages provisions in Bauer is correct, which means the Bauer interpretation of the cap is the safest way forward for a first instance judge.

45. The other damages issue identified by Payne JA in KSMC Holdings is the complaint that damages awards in New South Wales are too high, regardless of the impact on aggravated damages of Bauer. This issue is not so easily disposed of.

46. It is unclear, from Payne JA’s commentary, what judgments are referred to other than the judgments under appeal. It is worth noting, however, that this complaint has been made about judgments in New South Wales for a very long time by judges in other jurisdictions. This “issue” of high awards was recently adverted to by the first instance judge in Brose v Baluskas & Ors at [339], who notes appellate observations that defamation damages awards in New South Wales have historically been much higher than in other jurisdictions: Cerutti & Anor v Crestside Pty Ltd & Anor [2014] QCA 33; [2016] 1 Qd R 89 at [49]. I note there are examples of very high awards of damages in ex parte proceedings: Oskouie v Maddox [2019] NSWSC 428.

47. Faced with a maze of conflicting commentary (or lack thereof) in relation to the correct approach to quantum, I have adopted the approach taken by Campbell J in Balzola v Passas [2020] NSWSC 896 to the correct assessment of damages where there is a brief but acrimonious dispute giving rise to allegations of criminal conduct (in that case, allegations of domestic violence). I invited Mr de Meyrick to address this decision as well as Payne JA’s observations in KSMC Holdings Pty Ltd and thank him for his additional written submissions.

48. Having noted these obstacles in the path of assessment of damages, I now apply the relevant principles to the facts of the case.

The amount to award on the facts in these proceedings

50. The facts in this case are very similar to Murray v Raynor, in terms of the nature of the allegations and the extent of publication. In Murray v Raynor, the defendant accused the plaintiff of obsessively harassing her about her open mailbox in an apartment complex and made allegations of serious and criminal misconduct (she challenged the plaintiff as to whether his obsessions had led him to “stage” the two robberies of the residents’ mailboxes which occurred in the building in which they resided). Like the plaintiff in these proceedings, Mr Raynor was the president of the strata committee and, like the plaintiff in these proceedings, there were subsequent proceedings (in that case, in the NCAT, although those proceedings were not for the purpose of vindicating Mr Raynor but for the purpose of obtaining compliance from Ms Murray). The extent of publication (in terms of identity and number) is almost identical.

51. Mr de Meyrick submitted that the Court of Appeal in Murray v Raynor set aside the judgment because the court set aside the findings of damage to reputation at first instance and instead held that there was no evidence “of any damage to the respondent’s reputation” (at [96]) and no need for a damages award to vindicate that reputation. However, damage to reputation is presumed, especially from allegations as serious as an obsessive campaign which included the likelihood of staging robberies in the building to which the recipients of the matter complained of had been victims. It is preferable to regard Payne JA’s observations on this topic as being restricted to the facts of that case.

52. In the present case, there is evidence that some of the tenants did not accept that the plaintiff was exonerated by the investigation. That is often the case in any defamation action where a serious allegation is made, which is why the presumption of damage to reputation is made. In a speech to the Parliament of New South Wales on 13 November 2008, the Hon Justice Michael Kirby AC CMG referred to this by citing the famous statement by Mr Neville Wran AC, CNZM, QC that “the mud will stick”. I note there is evidence of actual damage to reputation, but that such evidence is not strictly necessary.

53. The law places a high value on a person's reputation, especially where that person's work and life depend upon their honesty, integrity and judgment: Crampton v Nugawela [1996] NSWSC 651; (1996) 41 NSWLR 176 at 195D per Mahoney A-CJ. The plaintiff was not himself a solicitor but carried out duties as directed by his employers at G & S Law Group. It was because of the high standards required by his employer that the claim against the plaintiff had to be investigated.

54. Mr de Meyrick next submitted that, while the extent of publication is limited, this is a significant "hurt feelings case" and that this is a significant factor.

55. The need to provide consolation for the personal distress caused to Mr Matthews is a significant part of my assessment. When determining the amount of damages necessary to provide consolation for personal distress and hurt, the court must have regard to the subjective response of the plaintiff to the publication in question: Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327 at [81] per Hayne J (Gleeson CJ and Gummow J agreeing).

56. For the reasons explained by Campbell JA in Balzola v Passas, the context in which the matters complained of were published is also of relevance. The first two matters complained of were emails, sent an hour apart, addressed to persons who knew the plaintiff well enough to make their own assessment and many of whom independently knew the true facts. (I note that the third publication, an email addressed to the plaintiff which simply said “Clive, you are a pig”, was copied to three other persons, but the affidavits do not refer to it in any detail; in terms of assessment of damages, its role is minimal.)

57. The limited extent of publication, the overlap in content and timing of the first and second matters complained of, the lack of evidence about the third matter complained of and the context of the publications (namely disputes about the strata committee and owners’ corporation activities, which appear to have occurred regularly) are all suggestive of damages within a very small compass.

58. However, that is not to trivialise the hurt to the plaintiff. In Balzola v Passas at [253], Campbell JA prefaced his award of $10,000 by saying:

“In fixing the amount I am about to award, I do not mean to trivialise the matter or to award merely nominal damages, imposing a Pyrrhic victory on Mr Balzola. However, I do not assess this case as sounding loudly in damages.”

59. The same is the case here. Taking into account as best I can the Court of Appeal’s generalised concerns about the size of damages in New South Wales, the appropriate sum to award is $20,000.

Should aggravated damages be awarded?

60. The plaintiff claims that his damages are aggravated by the defendant’s knowledge of the falsity of the imputations and failure to apologise or retract the allegation.

61. As to the first of these, some care should be exercised. Section 36 of the uniform legislation provides that the publisher's state of mind at the time of publication must be disregarded, except to the extent that it affects the harm sustained by the plaintiff.

62. As to the second, mere failure to apologise is not a factor in itself; the question is whether the failure to apologise prolonged and intensified the hurt experienced by a plaintiff: The Herald And Weekly Times Ltd v McGregor [1928] HCA 36; [1929] VLR 215; (1928) 41 CLR 254 at [263] per Knox CJ, Gavan Duffy and Starke JJ. Absent this feature, it may be more appropriate as part of the general damages claim: Clark v Ainsworth (1996) 40 NSWLR 463. In general terms, it should form part of a course of conduct lacking in bona fides or otherwise be improper or unreasonable: Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497.

63. The plaintiff also relies upon other correspondence from the defendant to demonstrate that these publications were part of a campaign to damage the plaintiff’s reputation and cause him to lose his role as the President and Chair of the Strata Committee.

64. The correspondence relied upon demonstrates that the defendant was unpleasant to everyone. He bestowed opprobrious nicknames on the committee members, accused them of misconduct and incompetence on a regular basis, and was generally unpleasant and difficult to deal with. There is no evidence of his singling out the plaintiff for the specific purpose of having him sacked; the defendant’s way of dealing with others appears to have been to address them in rude and bullying terms. This particular is not made out.

Conclusions concerning aggravated damages

65. Taking all of the above into account, I do not consider that factors warranting an award of aggravated damages have been made out.

66. This means I do not need to consider the current uncertainty (if there is one) about the applicability of the principles in Bauer.

67. The amount to be awarded is accordingly $20,000.

Interest and costs

68. The plaintiff leaves the question of interest on the judgment to the court but asks for a gross sum costs order.

69. The principles for interest awards are summarised in Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1540]ff. Interest rates on defamation awards tend to vary to take into account how the hurt decreases over time. Given the relatively short period since publication, the hurt is arguably still considerable, so I propose to award 3% from the date of publication (30 August 2019). This is a period of one year and 10 days so I will award interest for one year only, which is $600.

70. The total amount awarded for damages and interest is thus $20,600.

Costs

71. Costs must clearly follow the event. The first question is whether those costs should be assessed on an indemnity basis, as sought by the plaintiff.

72. Costs orders in defamation actions must take into account the provisions of s 40 of the Defamation Act 2005 (NSW), which provides:

Costs in defamation proceedings

40 Costs in defamation proceedings

(1) In awarding costs in defamation proceedings, the court may have regard to—

(a) the way in which the parties to the proceedings conducted their cases (including any misuse of a party's superior financial position to hinder the early resolution of the proceedings), and

(b) any other matters that the court considers relevant.

(2) Without limiting subsection

(1), a court must (unless the interests of justice require otherwise)—

(a) if defamation proceedings are successfully brought by a plaintiff and costs in the proceedings are to be awarded to the plaintiff--order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the defendant unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff, or

(b) if defamation proceedings are unsuccessfully brought by a plaintiff and costs in the proceedings are to be awarded to the defendant--order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the plaintiff unreasonably failed to accept a settlement offer made by the defendant.

(3) In this section-- "settlement offer" means any offer to settle the proceedings made before the proceedings are determined, and includes an offer to make amends (whether made before or after the proceedings are commenced), that was a reasonable offer at the time it was made.

73. As to s 40(3), in the present case, a Concerns Notice was sent, and that alone would satisfy this provision.

74. Sending a Concerns Notice is arguably no longer necessary, as the New South Wales Court of Appeal has held on two occasions (Mohareb v Booth [2020] NSWCA 49 at [11] – [13]; Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570; [2016] NSWCA 283) that merely filing and serving a statement of claim for defamation, without more, is enough to amount to an offer of amends, which triggers this costs penalty for all defendants (interestingly, however, the Court in both cases did not refer to s 40(3) and only awarded costs on the ordinary basis in both actions). As a Concerns Notice was in fact sent in these proceedings, I do not need to refer to this alternate basis for indemnity costs any further.

75. Although not referred to in any of the conflicting judgments dealing with the cap as referred to above, one of the legislative purposes of s 40 was in fact to provide a balance for general damages being capped and for the likely modesty of defamation judgments. In other words, in cases such as the present, where the damages are modest, there is all the more reason why those damages should not be swallowed up by the gap between ordinary and indemnity costs.

76. The mandatory language of s 40 means that a successful defamation plaintiff must be awarded their costs on an indemnity basis if the Court is satisfied that the defendant unreasonably failed to make a settlement offer (as occurred here) unless the interests of justice require otherwise: Jensen v Nationwide News Pty Ltd [No 13] [2019] WASC 451.

77. The present case is a good example of the dangers of not being prepared to apologise where an apology is clearly warranted. The terms of the Notice of Concerns are both reasonable and moderate. Costs should be awarded on an indemnity basis.

The application for a gross sum costs order

78. Section 98(4) of the Civil Procedure Act 2005 (NSW) authorises the court to make an order to the effect that the party to whom costs are to be paid is to be entitled to "a specified gross sum instead of assessed costs". There is a two-tiered process involved.

79. The first issue is whether the proceedings are appropriate for the award of a gross sum costs order. Having regard to the history of s 40 and its special applicability to small awards, the defendant’s failure to participate in this litigation and to the provisions of s 60 and 98 of the Civil Procedure Act, I consider this to be such a case.

80. The second issue is whether the court can be satisfied it has sufficient information about quantum. Mr Odgers’ affidavit sets out total costs of $48,598.39 with an alternative of $39,056.91 for party/party costs. As I propose to award costs on an indemnity basis, the higher of these sums would be the sum relevant to the application.

81. An application for indemnity costs does not mean that 100% of the costs will be awarded. Analysis of costs which may fall outside the scope of the indemnity costs claimed should still be made: Hancock v Rinehart (Lump sum costs) [2015] NSWSC 1640.

82. Mr Odgers’ helpful affidavit sets out all the necessary material, including:

1. The Costs Agreement;

2. Memoranda of fees and evidence of payment;

3. A comprehensive breakdown of the work performed, and by whom; and

4. Information about disbursements.

83. Mr Odgers informed me that there is no claim for interest on costs.

84. All of the items contain GST. As to the issue of GST, I note Penson v Titan National Pty Ltd (no 3) [2015] NSWCA 121 at [25], where Campbell AJA explains that, if a lawyer’s memorandum of costs and disbursements includes an item for GST, and the client is entitled to an input tax credit for GST paid, and if a costs order requires the opposite party to pay the amount of the clients costs, the amount payable under the costs order does not include GST (see also Gagner Pty Ltd trading as Indochine Cafe v Canturi Corporation Pty Ltd [2009] NSWCA 413; 262 ALR 691; 77 ATR 157; 236 FLR 401). Some adjustment may accordingly need to be made.

85. In addition, it is common practice for the court to take into account that some portion of the costs may be disallowed on assessment and to deduct a certain percentage. Where ordered costs are assessed, this deduction may be quite large; in Bobb v Wombat Securities Pty Ltd & Ors (No 2) [2013] NSWSC 863, Beech-Jones J deducted 70%. Where the costs are assessed on an indemnity basis, however, the percentage will be much smaller. I propose to deduct 5% to allow for items that may fall outside the costs regime.

86. As there is some adjustment to be done to the sum to be awarded as a gross sum costs order, I propose to make an order for indemnity costs to be assessed on the gross sum basis, but to grant liberty to the plaintiff to bring in Short Minutes of Order reflecting the final sum in question.

Concluding remarks and orders

87. I thank Mr de Meyrick for his submissions and his assistance to the court.

1. Judgment for the plaintiff for $20,600.

2. Pursuant to s 40 of the Defamation Act 2005 (NSW), the defendant is to pay the plaintiff’s costs of the proceedings on an indemnity basis.

3. Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the plaintiff’s costs are to be paid in the form of a gross sum costs order.

4. The plaintiff is to have liberty to bring in Short Minutes of Order reflecting the sum to be awarded after the deductions referred to in the judgment are calculated.

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Amendments

15 September 2020 - Catchword

Decision last updated: 15 September 2020