Milne v Ell

[2017] NSWSC 555

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Milne v Ell [2017] NSWSC 555

Hearing dates:

08 – 10 February 2016

Date of orders:

08 May 2017

Decision date:

08 May 2017

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1) Judgment for the plaintiff in an amount of $45,000;

 

(2) The defendant shall pay the plaintiff’s costs of and incidental to the proceedings, as agreed or assessed;

 

(3) Liberty is reserved to the parties for any different or special order as to costs. Such liberty may be exercised by making an application within seven days of the judgment herein by a submission of no more than three pages, accompanied by any document upon which the application relies that is not otherwise in evidence. Any party affected by any such application may respond within a further seven days by a submission of no more than three pages accompanied by any documents upon which the submission relies that are not already in evidence or attached to the application itself;

 

(4) Any application of the kind referred to in the immediately preceding paragraph may be made by email directly to the chambers of the Judge issuing these orders;

 (5) Otherwise, the proceedings are dismissed.

Catchwords:

DEFAMATION – allegation that Councillor not fit and proper person – imputation held to be fact not comment – defamatory – sufficiently specific – defendant liable for republication of statement to journalist – damages awarded

Legislation Cited:

Defamation Act 2005 (NSW)

Cases Cited:

Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 217; [1996] HCA 47
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; [1993] HCA 31
Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60
Cheikho v Nationwide News Pty Ltd [2016] NSWSC 29
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135; BC9001671
Ell v Milne (No 8) [2014] NSWSC 175
Fraser v Holmes (2009) 253 ALR 538; [2009] NSWCA 36
Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84; [1910] HCA 66
John Fairfax Publications Pty Ltd v O’Shane (2005) Aust Tort Reports 81-789; [2005] NSWCA 164
Joseph v Spiller [2011] 1 AC 852 at [5]; [2010] UKSC 53
Richards v State of New South Wales [2004] VSC 198
Sims v Wran [1984] 1 NSWLR 317
Slipper v British Broadcasting Corporation [1991] 1 QB 283
Speight v Gosnay (1891) 60 LJQB 231
Timms v Clift [1998] 2 Qd.R. 100

Texts Cited:

Professor Alastair Mullis et al (eds), Gatley on Libel and Slander, (12th edition 2013, Sweet & Maxwell)

Category:

Principal judgment

Parties:

Katie Milne (Plaintiff)
William Robert Ell (Defendant)

Representation:

Counsel:
T Molomby SC/ L Goodchild (Plaintiff)
T K Tobin QC/B Kelleher (Defendant)

  Solicitors:
NLS Law Pty Ltd (Plaintiff)
Pikes & Verekers Lawyers (Defendant)

File Number(s):

2015/54216

Judgment

1. HIS HONOUR: The plaintiff, Ms Katie Milne, sues the defendant, Mr William Robert Ell, for damages arising from allegedly defamatory comments he made to a journalist which were subsequently published in an article by the Gold Coast Bulletin on 13 March 2014.

2. The original Statement of Claim identified both Mr Ell and the publisher of the Gold Coast Bulletin, Gold Coast Publications Pty Ltd, as defendants in the proceedings. On 8 February 2016 an Amended Statement of Claim was filed in Court, and the plaintiff discontinued against the Gold Coast Publications Pty Ltd.

3. An anterior controversy requires mention. Mr Ell had previously brought defamation proceedings against Ms Milne on the basis of comments she made: Ell v Milne (No 8) [2014] NSWSC 175.

4. Before addressing the content of the defamatory material in these proceedings, it is necessary to summarise the facts.

Facts

5. Mr Ell, a property developer, initially brought an action for defamation against Ms Milne, a Councillor on the Tweed Shire Council, for an email sent by Ms Milne entitled “letter to the editor” which was sent to a number of people including several journalists.

6. Briefly, the email related to issues arising from contentious development applications by development companies owned by, or relating to business conducted by, Mr Ell. In these emails Ms Milne made calls for an independent review of the developments in question and made comments to the effect that Mr Ell had a scandalous association with a murdered man by the name of Mr McGurk and that he had paid $100,000 for Mr McGurk’s bail. Mr McGurk previously had a reputation for inflicting violence.

7. The proceedings were resolved by judgment of McCallum J of 7 March 2014 in which Her Honour found that the imputations in the matter complained of by Mr Ell against Ms Milne were made out, and she subsequently awarded Mr Ell $15,000 in damages. As a consequence, her Honour ordered Ms Milne to pay costs.

8. After the judgment of her Honour was issued, Mr Ell was contacted by a reporter from the Gold Boast Bulletin on 12 March 2014, where he made comments to the effect that Ms Milne is not a “fit a proper person to be a councillor” and the Gold Coast Bulletin reported that comment together with reporting that Mr Ell has stated that he hoped speculation that the payments would bankrupt her were true, so that she would not be able to retain her place as a councillor.

9. The aforementioned conversation between the journalist, Ms Skene and the defendant, Mr Ell, is the first matter complained of. The conversation is recorded as follows:

“Skene: Mr Ell, this is Kathleen Skene from the Gold Coast Bulletin. I have heard speculation that the court case could bankrupt Katie Milne. Do you know whether that is happening?

Ell: I hope that’s true. She got what she deserved.

Skene: But that might mean that she would not be able to retain her position as a councillor

Ell: She’s not a fit and proper person to be a councillor. The court gave us that result and they seem to know what they’re doing.”

10. Gold Coast Publications Pty Ltd published parts of the conversation in Queensland and New South Wales within an article (the second matter complained of) (Exhibit A) published in the Gold Coast Bulletin on the front page of which was the headline “KATIE LOSES BILLIONAIRE BOB BATTLE ‘I HOPE THIS SENDS HER BROKE’ P8” and on page 8 was the article, under the headline titled “Developer hopes fine bankrupts councillor”.

11. The plaintiff alleges that those parts of the first matter complained of were reproduced in the second, third, fourth and seventh paragraphs of the second matter complained of. The Plaintiff claims that the defendant, Mr Ell, is liable for the publication of those parts of the first matter complained of within the second matter complained of because he authorised the republication and intended them to be so published, and their publication was the natural and probable result of his original publication of the first matter complained of.

12. The plaintiff argues that the second matter complained of conveyed of the plaintiff the defamatory imputation that she is not a fit and proper person to be a councillor.

13. As a result of the publication of the matters complained of, the Plaintiff claims that she has been subjected to “hatred, ridicule and contempt and suffered and continues to suffer distress and damage to her reputation” (Amended Statement of Claim at [10]).

Evidence during the proceedings

14. The plaintiff gave evidence during the proceedings about her time as a Councillor on the Tweed Shire Council, which can be briefly summarised in the following terms.

15. Ms Milne was elected to the Tweed Shire Council in 2008 and again in 2012 and she remains a current member of that Council as its Mayor. There are approximately 90,000 people that live in the Tweed Shire and Ms Milne states that she became involved in debates about community issues towards the end of 2002 (Transcript, p 10).

16. According to Ms Milne’s evidence, when she was elected to the Council she “got the highest vote from all the candidates, and it was actually the record highest vote that had ever actually been achieved in the Tweed Shire for a candidate” (Transcript, p 19, lines 48 – 50).

17. The plaintiff gave evidence during examination in chief stating that she had dedicated “every moment” of her “waking life” to “trying to utilise” her position “to further the benefit of the community and improve council processes” (Transcript, p 24, lines 18 – 20). At the time of the proceedings, Ms Milne was the Mayor of the Tweed Shire Council and she states that she is the first Greens Mayor of the Tweed Shire.

18. In light of the evidence above, the plaintiff, in the course of evidence and submissions, argued that Mr Ell’s comments were a serious attack on someone who devoted a considerable amount of time and effort to working for the welfare of the community over a protracted period of time. Ms Milne stated in the course of her evidence that Mr Ell’s comments represented a “statement of utter derision” and that she felt as though by making those statements Mr Ell was suggesting that she should get “more punishment than what the judge had actually determined” (Transcript, p 40, lines 26 – 36).

Consideration of Evidence

19. Some of the evidence of Ms Milne was somewhat trite. She attested to the fact that reputation was an important aspect of the functioning of a local councillor and affected her ability to be elected. She also suggested that the Gold Coast Bulletin was very widely read, particularly on Thursdays as it is pensioner day.

20. Ms Milne described her reaction as being “shocked”, “devastated”, “just terrible”, “horrifying” and “completely untrue” (Transcript, p 40, lines 12-16). Her friend had been outraged and very upset and took pains to bring the paper to her attention. She described the statement about her fitness as being “utter derision” (Transcript, p 40, line 26). Further, Ms Milne described the allegation as a “cloud over [her] head” and “very difficult to have to live with” (Transcript, p 51, line 47-48; p 52, line 1).

21. The original claim, which proceeded against the publishers of the Gold Coast Bulletin, was resolved by consent, the terms of which included an apology that was published on 30 July 2015. On that date, the Gold Coast Bulletin published the following:

“On 13 March 2014, we published a statement by developer Bob Elle, Executive Chairman of Leda Developments that Tweed Shire Councillor, Katie Milne was not a fit and proper person to be a councillor. The Gold Coast Bulletin does not share that view and unreservedly apologises to Councillor Katie Milne for the publication.” (Exhibit 4)

22. According to Ms Milne, she did not receive any monetary settlement as a result of the negotiations and settlement with the Gold Coast Bulletin, but there may have been monies paid to her solicitor for legal costs.

23. The cross-examination sought to deal with the relationship between Ms Milne and the Gold Coast Bulletin and the reaction of Ms Milne to the apology that was published on 30 July 2015. There was also cross-examination as to the history of the defamation proceedings taken by Mr Ell and the nature of the applications made by Ms Milne during those proceedings, including an allegation that Mr Ell had engaged, during those proceedings, in an abuse of process in order to render Ms Milne bankrupt and cause her to be ineligible to remain a councillor.

24. The cross-examination sought to portray Ms Milne as a person who engaged in public criticism of others and welcomed public debate on issues of importance, including issues relating to the propriety or conduct of others. Reference was also made to criticism, made by Ms Milne, of the outcome of proceedings finalised by judgment of Stone J, of the Federal Court of Australia (Transcript, p 73-74).

25. The cross-examination of Ms Milne also revolved around the allegations she had made against or about Mr Ell. The implication in the cross-examination seemed to be that it would be a fair reaction by Mr Ell, to the serious allegations she had made about him, to desire that she be rendered bankrupt and not be eligible to remain on Council. It is not absolutely clear to what this aspect of the cross-examination went, other than the existing reputation of the plaintiff. Unless, which I doubt, it was to be suggested by the defendant that the defendant had an extraneous purpose in the publication of the allegation.

26. There was further cross-examination about the plaintiff incurring costs in a number of legal proceedings, including the previous defamation proceedings taken by the defendant, proceedings in the Federal Court resulting in the judgment of Stone J and proceedings in the Land and Environment Court in 2007 taken against the Minister for Planning.

27. Ms Milne was elected Mayor of the Council after the publication in the Gold Coast Bulletin, the second matter complained of.

28. Reputation witnesses were called: Mr John O’Reilly and Ms Helen Twohill. These witnesses testified as to their high regard for the plaintiff prior to the publication of the second matter complained of. There was no cross-examination of the witnesses. Mr Ell was not called and the defendant relied upon questions and answers to interrogatories (Exhibit 1); the publication that was the subject of proceedings before McCallum J (Exhibit 2); the Byron Greens’ Blog and judgment of Stone J (Exhibit 3); and the apology to which earlier reference has been made (Exhibit 4).

29. The impugned publication in the Gold Coast Bulletin occurred on p 8 of the 13 March 2014 edition and there was a corresponding electronic publication, which was in almost identical terms. The only difference between the two was that the electronic version described, by the use of the present imperfect “is suing”, the proceedings in which Mr Ell sued Councillor Milne as continuing, whereas the printed article used the past perfect, “sued”. Otherwise the articles are identical.

Defamatory Imputation

30. The pleaded imputation is in the precise terms used by the defendant in the first and second matters complained of, namely, that Ms Milne is “not a fit and proper person to be a councillor”. There is no doubt on the evidence before the Court that the defendant uttered the words to the journalist. The terms of the conversation are admitted in the defence filed in the proceedings.

31. It is not denied that those words were used in both of the matters complained of and the Court so finds. Assuming that the statements were capable of giving rise to a defamatory imputation in that they are sufficiently specific, the Court has no doubt that the words are defamatory and allege a characteristic of Ms Milne.

32. The defendant relies, in his submission in support of [2] of the Defence to the Amended Statement of Claim that the imputation is bad in form and incapable at law of being conveyed, on the judgment of the Court of Appeal in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135; BC9001671 which clarified that the ordinary principles of pleading applied to defamation proceedings and that pleaded imputations were required to be sufficiently specific to identify what allegation was actually conveyed.

33. Drummoyne Municipal Council, supra, involved the allegation against the said Council that it was carrying out its functions “corruptly”; that it victimised and harassed persons “arising out of corruption”; and that the Council was “corrupt”. The defendant relies upon the passage in the judgment of Gleeson CJ in which his Honour concluded:

“To permit the plaintiff to frame imputations which refer to corruption without specifying which of the different possible kinds of corruption is being referred to would, by reference to the general principles stated above, and the test enunciated in Whelan, be to permit a contravention of the relevant rules of pleading.” (Drummoyne Municipal Council, supra, at 140.P)

34. However, the defendant’s reliance upon that conclusion ignores the earlier comments of the Chief Justice in which, dealing with the requirements of the then Supreme Court Rules as to pleadings, His Honour remarked:

“The requirement that a plaintiff must ‘specify’ the act or condition which he claims was attributed to him, that is to say, the statement which he says was made about him, which follows from the scheme of the Defamation Act, the provisions of the Supreme Court Rules, and the ordinary rules of pleading, is one which, in its practical application, raises questions of degree. Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology. In John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706, this Court approved of Hunt J’s leaving to the jury an imputation that the plaintiff was a criminal associate of drug dealers. No one suggested that it was necessary to identify with particularity the crime or crimes alleged to have been committed by the plaintiff, even though it is always theoretically possible to be more specific about an allegation that a person is a criminal.

…

The requirement upon a plaintiff cannot go beyond doing the best that can reasonably be done in the circumstances. If a defendant has posted in a public place a sign that simply says ‘X is disgusting’, the degree of specificity with which it is appropriate to require X to formulate the defamatory imputation will need to be related to the nature and content of the defamatory matter.” (Drummoyne Municipal Council, supra, at 137.A-.F)

35. In this case the defendant has referred to the plaintiff as “not a fit and proper person to be a councillor”. That is an imputation, in the ordinary meaning of the term, being “any act or condition asserted of or attributed to a person” (Drummoyne Municipal Council, supra, at 136.G, citing with approval Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84; [1910] HCA 66 (at CLR 91). The condition imputed to the plaintiff is that she is not a fit and proper person. It is unnecessary to be more specific, in the circumstances of the publication that was made.

36. It is, as a matter of grammar, not the bankruptcy of the plaintiff that is the basis upon which the impugned statement has been made. The bankruptcy had not then occurred. Nevertheless, the defendant imputed that the plaintiff was, at the time of the making of the impugned statement, “not a fit and proper person”.

37. Subject to the defences upon which the defendant relies, I find that the first and second matters complained of were published and were capable of giving rise to a defamatory imputation, being the imputation pleaded, which I find is defamatory.

Defences

Comment

38. The defendant relies upon the defence established or prescribed by s 31 of the Defamation Act 2005 and on fair comment at common law. In so doing, the defendant does not distinguish between the plaintiff’s and the defendant’s imputation: Fraser v Holmes (2009) 253 ALR 538; [2009] NSWCA 36 at [78] per Tobias JA.

39. In Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60, Gleeson CJ at [3] described the defence in the following terms:

“The protection from actionability which the common law gives to fair and honest comment on matters of public interest is an important aspect of freedom of speech. In this context, ‘fair’ does not mean objectively reasonable. The defence protects obstinate, or foolish, or offensive statements of opinion, or inference, or judgment, provided certain conditions are satisfied. The word ‘fair’ refers to limits to what any honest person, however opinionated or prejudiced, would express upon the basis of the relevant facts.”

40. There are three requirements for the defence of comment or honest opinion to be upheld. First, the words themselves must be comment or the expression of opinion as distinct from a statement of fact or assertion of fact. Secondly, the comment must be made or the opinion expressed on a matter of public interest. Thirdly, the factual basis for the comment or opinion must be identified in the published matter or be notorious. (See generally Fraser v Holmes, supra, at [74]).

40. In certain contexts the imputations that a person is not a fit and proper person to be a councillor may be either an allegation of fact or an opinion. In order for it to be an opinion, it must be something that can be seen to be, or reasonably inferred to be, a deduction or inference or conclusion from facts that are otherwise published. Lastly, as has been made clear in a number of authorities, it is, or can be, difficult to differentiate between a statement of fact and an opinion or comment: John Fairfax Publications Pty Ltd v O’Shane (2005) Aust Tort Reports 81-789; [2005] NSWCA 164. I will deal with those two issues together.

41. Before doing so, it is appropriate to make some comment on the “public interest” aspect. Almost everything, if described generally enough, is able to be described as a matter of public interest. Thus, one can describe allegations that an officer of the police force or a judicial officer or a politician was corrupt (assuming “corrupt” is an appropriate imputation) and the public interest in the operation of law enforcement and/or government in the absence of corruption, is plainly a matter of public interest.

42. Nevertheless, as Dawson, McHugh and Gummow JJ noted in the context of the Queensland Defamation Code (Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 217; [1996] HCA 47):

“It is true that, in discussing the common law doctrine of fair comment, lawyers frequently spoke about the right of fair comment on such abstractions as ‘the administration of justice’, ‘political and state matters’, ‘the management of public institutions’ etc, but these were merely shorthand statements for the proposition that there was a right to comment on the actions or omissions of some person or institution in the course of the administration of justice, the management of public institutions and similar subjects which were subjects of public interest. The judgement of Cockburn CJ in Woodgate v Ridout (1865) for F&F 202; 176 ER 531 clearly brings out the point that, in describing a subject such as the administration of justice as a subject of public interest, it was the conduct of the individual or individuals involved in particular aspects of the administration of justice, and not some concept defined at a level of generality divorced from the conduct of individuals, that constituted the subject of public interest.”

44. As the High Court in Bellino made clear, albeit in the context of the Queensland Code, it is a requirement of the defence that the “comment” be a comment on the conduct or work of an individual on a subject of public interest. Any other option would be irrational, because the imputation concerned the plaintiff and the comment necessarily had to be on the conduct or work of the plaintiff: Bellino, supra, at 219.

45. The High Court continued, in citing with approval Odgers’, A Digest of the Law of Libel and Slander, to the effect that, to warrant the defence, criticism never attacks the individual, but only the work of the individual and may include the policy of the government, the action of a member of Parliament, a public entertainment, a book published or a picture exhibited.

“In every case the attack is on the man’s acts, or on some thing, and not upon the man himself. A true critic never indulges in personalities.” (Bellino at 219, quoting the first edition of Odgers’, supra).

46. In Gatley on Libel and Slander (12th edition), the defence is dealt with in Chapter 12 and described as having five elements, each of which are described above, together with the additional elements that the comment must be based on facts, which are true or protected by privilege; and the comment must be one which could have been made by an honest person, however prejudiced the person might be, and however exaggerated or obstinate the person’s views.

47. That the proposition or allegation that the plaintiff is not a fit and proper person to be a councillor is a conclusion is not inconsistent with the conclusion being a conclusion of fact or, were it the case, a conclusion of opinion or comment. Nevertheless the distinction can often be difficult: Joseph v Spiller [2011] 1 AC 852 at [5]; [2010] UKSC 53. This imputation falls into the category that it is able to be described as fact and able to be described as comment or opinion, depending upon the context.

48. The Court is required to examine the context, including whether the imputation is a “bare comment”, denuded of the facts upon which it is based or notorious facts presumed to be known by the reader, or without any of the other elements necessary to substantiate the defence.

49. As earlier stated, the imputation is made in the present tense. It is an allegation that the plaintiff is currently a person who is not relevantly fit and proper. As a consequence, it cannot be an imputation based upon the possibility that the plaintiff may become bankrupt as a result of non-payment of costs orders. The defendant alleges that it is comment on the proposition that the plaintiff “undertook proceedings which were unsuccessful” against the defendant.

50. The Defence to the Amended Statement of Claim alleges a contextual imputation that the plaintiff, having been found to have defamed Mr Bob Ell, was not a fit and proper person to be a councillor. However, the allegation that the plaintiff is “not a fit and proper person to be a councillor” is not tied to or seemingly based upon her conduct in defaming the defendant in neither the first nor the second matters complained of.

51. In each matter complained of, the statement, if it were a comment, would be more rationally a comment on the prospect that the award of damages of $15,000 together with the $50,000 previously in costs might have the effect that the plaintiff would be rendered bankrupt and that speculation was being circulated to that effect.

52. In other words, the allegation that the plaintiff is, currently, “not a fit and proper person to be a councillor” is not a comment or conclusion in either impugned publications based upon her conduct in defaming the defendant.

53. Rather, it is a statement of fact made in order to justify the indirect consequence on the plaintiff of the previous civil proceedings and her inability to meet the costs of those proceedings and any award of damages.

54. I conclude that the imputation is an imputation of fact and, in any event, is not an imputation which, in accordance with the requirement to establish the defence, is based upon facts which are recited in the publication. In other words, the Court determines that a reasonable recipient of the communication (either or both of the matters complained of) would understand the statement as a statement of fact and not the offering of an opinion based upon stated facts.

55. The foregoing conclusion presupposes that the statement or imputation is one that is related to a matter or subject of public interest, which, for present purposes, the Court accepts. Whether the Mayor or a Councillor of the Local Council is or is not a fit and proper person to hold that position is, or must be, a matter of public interest.

56. It is a matter that affects all of the electorate in the Council concerned.

57. Moreover, lest it be unclear from the foregoing, the Court does not accept that the previous judgment concluded that the plaintiff was not a fit and proper person to be a councillor and does not accept that the defendant honestly believed that was the effect of the previous proceedings. Nor does the Court currently accept that the result of the prior proceedings or the defamatory imputation made by the plaintiff previously were facts upon which an honest person, however prejudiced or exaggerated or obstinate that person’s views were, could render the plaintiff unfit for office.

58. The plaintiff submits that the facts before the Court allow the Court to draw the inference that the opinion as to whether the plaintiff is “a fit and proper person” to be a councillor is not honestly held. The absence of evidence from the defendant, even in these civil proceedings, does not make the absence of an honest opinion (if it were opinion) more probable and it ultimately is unnecessary for the Court to decide the issue of malice.

59. Further to the foregoing, the imputation that the plaintiff is “not a fit and proper person to be a councillor”, in the context of the conversation in the first matter complained of, is in the context of the earlier spiteful comment, “I hope that’s true.” The bankruptcy of the plaintiff, if that were to occur, is a result for which the defendant is here expressing a hope, notwithstanding that a court has assessed the damage suffered by the defendant and awarded that damage and the bankruptcy would or may prevent the defendant receiving those damages or compensation for the costs incurred.

60. In many respects, were it necessary to determine the issue of malice, this comment allows the inference to be drawn and the absence of any denial by the defendant allows that inference to be drawn more readily. Further, the reference to the Court having given that result in the last exchange in the first matter complained of would, to the ordinary, reasonable reader (or observer) suggest that the Court had determined that the plaintiff was not a fit and proper person to be a councillor.

Republication

61. The defendant submits that he is not liable for the republication in the Gold Coast Bulletin. In part at least, this submission is based upon the possibility that the Court would find the first matter complained of to be comment and the second matter complained of not to be comment.

62. Given that the Court has found that both publications are not comment and the defendant is liable for the imputation as an imputation of fact or conclusion that does not state the facts upon which it is based, much of that submission falls away.

63. Nevertheless, it is necessary to set out some of the principles that apply to republication. First, the Gold Coast Bulletin accurately reproduced the defendant’s words.

64. Secondly, the defendant made the comment to a journalist, being a person known to the defendant as a journalist from the Gold Coast Bulletin, and in so doing the defendant authorised the republication of part or all of what was said by him to the journalist and both intended its republication and understood it would be republished, either in whole or in part.

65. As a consequence, such republication was the natural and probable result of uttering the words that formed the first matter complained of. On the above bases the defendant is liable for the republication: Speight v Gosnay (1891) 60 LJQB 231; Slipper v British Broadcasting Corporation [1991] 1 QB 283; Timms v Clift [1998] 2 Qd.R. 100; Richards v State of New South Wales [2004] VSC 198; Sims v Wran [1984] 1 NSWLR 317. In the circumstances of a press conference, or interview by the press, express authority or a request to publish is not necessary.

Damages

66. There are no other defences that warrant comment. It is said that the first matter complained of was trivial, because it was published only to one person.

67. Such an argument or submission ignores the status of the person to whom the publication was conveyed as a journalist, conducting an interview for the purpose of obtaining material for publication. It is almost impossible, in dealing either with triviality or with damages, to separate the first and second matters complained of.

68. There are a number of aspects which, on the question of damages, are relevant. First, the plaintiff is a political figure. While the plaintiff is not a Federal or State parliamentarian, she is an elected representative in Local Council who deliberately and voluntarily puts herself into the public domain as a candidate worthy of election.

69. In that regard, she voluntarily submits to the slings and arrows of political discussion. At the same time, the office held by the plaintiff and the functions performed by the plaintiff, on any view, genuinely in the interests that she perceives serves the community by which she was elected, render defamation more damaging or problematic. While the reputation of a person not subject to election by a large electorate may be an idle and most false imposition, to a political figure it is the source of their continued success.

70. Secondly, the plaintiff, herself, engaged in a process that defamed the defendant and was, in the course of her evidence, not prepared to concede the seriousness of the imputation’s made and upon which the defendant sued initially. The allegations by the plaintiff against the defendant in the previous proceedings were most serious.

71. Nevertheless, the allegations and imputations made by the plaintiff against the defendant were the subject of proceedings and an award of damages that vindicated the defendant and compensated him properly for the damage done to his reputation. The fact that the defendant was first defamed is not, where there has been proceedings that have been properly resolved, a basis upon which the defamatory imputation by the defendant against the plaintiff should be the subject of lesser damages than would properly compensate the plaintiff, according to the principles for the assessment of damage in defamation.

72. The attitude displayed by the plaintiff during the course of her evidence suggested that it was “in the public interest” for her to bring to the attention of the public matters that resulted in significant and serious imputations being made against the defendant, but it was not “in the public interest” for serious imputations to be made against her. The difference in approach and the attitude of the plaintiff does qualify the genuineness in the “hurt” that she testifies she felt.

73. Further, there is no evidence that the plaintiff has been shunned or avoided by the community at large. Indeed, since the publication, the plaintiff has been elected, albeit by a collegiate voting system, as the Mayor of the Council.

74. Evidence of the good character of the plaintiff was adduced. I accept that evidence. As earlier stated, the evidence of the good intentions of the plaintiff in the matters with which she was concerned as a member of the Council and in representing her electorate are significant. Persons may differ as to whether policies adopted are beneficial or otherwise. However, there can be no doubt that the plaintiff worked extremely hard for what she saw was the benefit of the community.

75. The assessment of damages and the purposes of an award of damages in defamation is well established. First, the maximum amount of damages for non-economic loss that may be awarded is limited by the provisions of s 35(1) of the Defamation Act 2005.

76. Secondly, the damages to be awarded must bear an appropriate and rational relationship to the harm sustained by the plaintiff: s 34 of the Defamation Act. Thirdly the defendant’s state of mind is not generally relevant.

77. The purposes of an award of damages have been described as including: the consolation to the personal distress and hurt caused by the publication; reparation for the harm done to the personal and business reputation of the person defamed; and vindication of the reputation of the person defamed: Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; [1993] HCA 31.

78. In that judgment the High Court (Mason CJ, Deane, Dawson and Gaudron JJ) said, at 60-61 of the CLR:

“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 of 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. ‘The gravity of the libel, the social standing of the parties and the availability of alternative remedies’ are all relevant to assessing the quantum of damages necessary to vindicate the appellant.”

79. In the proceedings currently before the Court, the degree of distress and hurt and the harm done to the plaintiff’s personal reputation (and her reputation as a politician offering herself for election) is to be measured in circumstances where the plaintiff has that particular social standing; an extremely good reputation; must continue to offer herself to the public; thereby depends upon her reputation; and has no remedy available, other than the award of damages to vindicate her position.

80. In the reasons for judgment of McCallum J in Cheikho v Nationwide News Pty Ltd [2016] NSWSC 29, her Honour conveniently summarised the principles applicable in the assessment of damages in the following passage:

“[88] The principles applicable in the assessment of damages for defamation are helpfully summarised in the decision of the Court of Appeal in Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [70]-[78] (general damages) and [79]-[85] (aggravated damages). An award of damages for defamation serves three purposes: consolation for the personal distress and hurt caused to the plaintiff by the publication, reparation for the harm done to the plaintiff’s reputation and vindication of the plaintiff’s reputation: Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44. The Court in Ali observed that the harm caused to the plaintiff by the publication of defamatory matter often lies ‘more in his own feelings, what he thinks other people are thinking of him, than in any actual change made manifest in their attitude towards him’: at [72]. For that reason, consolation for personal distress forms ‘a large element’ of an award.

[89]    The award should reflect the high value the law places upon reputation and be such as to enable the plaintiff to point to the sum awarded as being ‘sufficient to convince a bystander of the baselessness of the charge’: Ali at [75], citing Cassell& Co Ltd v Broome [1972] AC 1027.

…

[91]    The defendant must take the plaintiff as it finds him: Aliat [77]. The significance of that principle in the present case lies primarily in the issue of Mr Cheikho’s youth at the time of publication.

[92] The assessment of damages must also be undertaken in accordance the provisions of division 3 of part 4 of the Defamation Act 2005.”

81. As earlier stated, the first matter complained of is a conversation in which the defendant expressed the views published to a journalist. Were there not to have been a republication, the damages would have been nominal, if there were damages at all.

82. Lastly, the damage to the plaintiff has been caused by the publication of the statement in the Gold Coast Bulletin. The Gold Coast Bulletin apologised to the plaintiff for the publication. That apology was complete and was sufficient to satisfy the plaintiff that it was unnecessary to obtain damages from the Gold Coast Bulletin. I take into account, in terms of the harm done to the plaintiff, the apology by the Gold Coast Bulletin for the defamatory comment initially made by the republication of the statements of the defendant.

83. It is hard to escape the suspicion that the defamation proceedings have been taken in a “tit for tat” exercise, following the defamation proceedings by the defendant. Nevertheless, that aspect is not considered in the determination of the damages. A court has properly compensated the defendant for a previous defamation. It is for the Court, as presently constituted, to compensate the plaintiff properly for the damage to her reputation by the defendant.

84. I make it clear that I do not consider that the purpose of vindication involves the necessity, in this case, for any additional amount of damages. Vindication will occur as a result of the judgment of the Court that the plaintiff has been defamed and an award of damages sufficient to overcome the hurt and damage to reputation, the result of which is a vindication of the plaintiff’s reputation.

81. Nevertheless, the damage to the plaintiff is significant. Taking into account each of the purposes and the limitations imposed by the statute, together with those factors already mentioned that ameliorate the level of damage, an appropriate award to compensate the plaintiff should issue. I note that the defendant did not plead or submit that the impugned statements were true.

82. The article in the Gold Coast Bulletin, which is the only local daily newspaper in the area, was prominent and was accompanied by a promotion on the front page of the newspaper that was intended to draw, and in my view would have drawn, attention to the article and the plaintiff.

83. The relevant issue had sales of approximately 36,000 newspapers and a readership of approximately 135,000. Those figures are uncontentious. Over and above the printed media, the traffic on the website was considerably higher during the month that the article was published than is usual. That higher traffic continued in the months up until April 2015 (approximately 13 months), after which it was withdrawn from the website.

84. I also accept that a statement that the plaintiff is not “fit and proper person to be a councillor” is a direct and fundamental attack on the suitability of the plaintiff for public office. In that regard the attack is not only a personal attack but also an attack on her activity as a Councillor and her right to remain one.

85. I accept that the plaintiff’s activities in the Council are diverse, covering an extended range, and I accept that the plaintiff’s activities are motivated by a genuine desire to assist the community and required a significant expenditure of time and a genuine devotion to the cause of the community, which she held dearly. In her words she devoted her life to Council.

86. I also accept, notwithstanding the similarity in content, that the website publication caused additional damage and, in some respects, notwithstanding its withdrawal from the website, it may still be causing damage.

87. I accept that the effect of the publication of the article in print and the broadcasting of the website would have and did have a grapevine effect so that the damage was not confined to those that read the article or opened and/or downloaded the website article.

88. Taking into account the purposes of an award of damage, the hurt to and the harm to the reputation of the plaintiff and bearing in mind the ameliorating factors, the most significant of which is the apology that has been published by the Gold Coast Bulletin, the Court considers that an award that most appropriately reflects the purposes of damages in a defamation proceeding is an amount of $45,000.

89. The Court makes the following orders:

1. Judgment for the plaintiff in an amount of $45,000;

2. The defendant shall pay the plaintiff’s costs of and incidental to the proceedings, as agreed or assessed;

3. Liberty is reserved to the parties for any different or special order as to costs. Such liberty may be exercised by making an application within seven days of the judgment herein by a submission of no more than three pages, accompanied by any document upon which the application relies that is not otherwise in evidence. Any party affected by any such application may respond within a further seven days by a submission of no more than three pages accompanied by any documents upon which the submission relies that are not already in evidence or attached to the application itself;

4. Any application of the kind referred to in the immediately preceding paragraph may be made by email directly to the chambers of the Judge issuing these orders;

5. Otherwise, the proceedings are dismissed.

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Decision last updated: 08 May 2017