Pinksterboer v Coumi - [2018] SADC 25

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
PINKSTERBOER & ORS v COUMI & ORS
[2018] SADC 25
Judgment of His Honour Judge Beazley
29 March 2018
DEFAMATION - ACTIONS FOR DEFAMATION
Three separate publications defamatory of the first plaintiff made by the first defendant to employees of the local council - extent of publication - whether imputations conveyed - natural and ordinary meaning of the pleaded words - claims by other plaintiffs against first defendant compromised - claims by all plaintiffs against second and third defendants compromised.

DEFAMATION - DAMAGES - GENERAL DAMAGES - ASSESSMENT
Factors relevant to assessment of aggravated compensatory damages, whether presumption that defamatory publication has caused damage - mitigation - relevance of late apology - relevance of the first plaintiff having received or agreed to receive compensation from other defendants for the resolution of claims against them - need for an award of damages to bear rational relationship to the harm suffered by the first plaintiff.

EVIDENCE
Admissibility of terms of settlement between the plaintiffs and the second and third defendants - whether the terms of the Deed of Settlement between the plaintiffs and the second and third defendants entered into on a confidential basis - claims made by plaintiffs against the second and third defendants included additional claims to that claimed as against the first defendant - whether in public interest to preserve confidentiality to promote private compromise - the terms relevant to assessment under s 36 of the Defamation Act, 2005, (SA).
Action for defamation - in the subject proceedings, commenced on 24 September 2014 the first, second and third plaintiffs sought relief including damages and injunctive relief against three named defendants pursuant to various causes of action against them - the action brought against the second and third defendants was compromised in August 2015 - trial proceeded solely against the first defendant - during the trial the second and third plaintiffs resolved their claims against the first defendant upon terms including an undertaking by him - the action ultimately proceeded as an assessment of damages suffered by the first plaintiff against the first defendant - the first defendant admitted making three separate publications defamatory of the first plaintiff to employees of the local council, and that the first of those publications in September 2013 was republished to other employees of the council at or about that time - the first plaintiff was at all relevant times a registered conveyancer - plaintiff's business as a property development consultant included dealing with local council officers on behalf of developers - the first defendant's admitted defamatory statements included imputations that the first plaintiff was corrupt; that he bribed officers of the local council; that he engaged in criminal activity and that he was a person without integrity - whether the statements damaged the first plaintiff in his profession, trade or calling - whether the first plaintiff is entitled to damages to compensate him for the harm sustained by him - whether the first plaintiff is entitled to an award of aggravated damages - effect of late apology by the first defendant - effect of compromise by the first plaintiff of his claims against the second and third defendants - effect of the manner in which the first defendant conducted the trial.
Held: The first defendant's defamatory publications caused harm to the first plaintiff personally and in his professional capacity - compensatory damages for the first plaintiff assessed at $42,500. The first plaintiff is entitled to interest on that sum at 2.5 percent per annum, fixed at $4,780.
Defamation Act 2005 (SA) ss 6, 7, 8, 9, 20, 28, 32, 33 and 36; George, Defamation Law in Australia (2nd ed), 2012 at Chapters 31-37; Rolph, Defamation Law (1st ed), 2016 at Chapter 15; Gillooly, The Law of Defamation in Australia and New Zealand (ist ed), 1998; Gatley on Libel and Slander (12th ed), 2013; Tobin and Sexton, Aust Defamation Law and Practice - 'Injury to reputation' at [21,005], referred to.
Lesses v Maras (No 2) [2017] SASCFC 137; Herald & Weekly Times Ltd v Popovic [2003] 9 VR 1; McDonald v Dodds [2017] VSCA 129, [2016] VSC 201; Prendergast v Roberts [2012] QSC 144; Stevens v Mayberry [2012] SASC 220; Cerruti v Crestside Pty Ltd [2014] QCA 33; Stone v Moore [2016] SASCFC 50; Trkulja v Yahoo! Inc LLC [2012] VSC 88; Thompson v Australian Capital Television Pty Ltd (1987) 129 ACTR 14; O'Shane v Fairfax Publications Pty Ltd [2002] NSWSC 807; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; Broome v Cassell & Co Ltd [1972] ACT 1027; Google Inc v Duffy [2017] SASCFC 130; Machado & Anor v Underwood & Anor [2016] SASCFC 65; Readers Digest Services v Lamb [1982] 150 CLR 500; Herald & Weekly Times Ltd v McGregor (1982) 41 CLR 254; John Fairfax & Sons v Kelly (1987) 8 NSWLR 131; The Ten Group v Cornes [2012] 114 SASR 46; Tropeano v Lauro [2010] SADC 113; Trevitt v NSW TAFE Commission [2011] NSWCA 363; Stevens v Boyle [2012] SASC 232; Jeffrey and Curnow v Giles [2015] VSCA 70; Smith v Lucht [2016] QCA 267; De Poi v Advertiser-News Weekend Publishing Company Pty Ltd [2016] SASCC 25; Mirror Newspapers v Harrison (1982) 149 CLR 293; Jameson v Central Electricity Generating Board [2000] 1 AC 455; Bracks v Smyth-Kirk [2009] NSWCA 401; Baxter v Obacelo Pty Ltd (2001) 205 CLR 635; Sims v Wran [1984] 1 NSWLR 317 at 320; Jones v Gutnik (2002) 210 CLR 575; Aktas v Westpac Banking Corp Ltd [2010] 241 CLR 79; Gacic v John Fairfax Publications [2015] NSWCA 99 at [109]; Bristow v Adams [2012] NSWCA 166; Dow Jones & Co Inc v Gutnick [2002] 210 CLR 575; Rogers v Nationwide News Pty Ltd (2003) 77 ALJR 1739 at [60]; John Fairfax Publications Pty Ltd v O'Shane (No2) [2005] NSWCA 291 at [25]; Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at [1262]; Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419, considered.

PINKSTERBOER & ORS v COUMI & ORS
[2018] SADC 25
Introduction

The sole issue left for this Court to determine is the assessment of the claim for compensatory damages brought by Gavin Pinksterboer (the first plaintiff) against his then neighbour, Andrew Coumi, (the first defendant) for three publications made by him, in late 2013, which he admits are defamatory of the first plaintiff.
The subject proceedings, which were instituted on 24 September 2014, have had a long and tortuous history, initially involving various causes of action brought by a number of plaintiffs against a number of defendants.
Amongst those initial causes of action was a claim by the first plaintiff that the first defendant had published seven statements defamatory of him in 2013 and 2014. The first plaintiff had also sought damages against persons to whom I will refer as, ‘JA’ and ‘CA’, for publishing statements, allegedly defamatory of him, about the same time; and as against ‘JA’ alone, for damages for an alleged assault.
The genesis of the subject proceedings was what has been referred to as ‘escalating neighbour disputes’, particularly as between the first plaintiff; the first defendant; and ‘JA’ in 2013. Counsel for the first plaintiff has submitted that the first plaintiff was not a party to any neighbour dispute.
The manner in which the parties have chosen to conduct the litigation has given rise to some complex issues of law, including questions of mitigation in s 36(1) of the Defamation Act, 2005, (SA).[1]
[1] See Thompson v Australian Capital Television Pty Ltd (1987) 129 ACTR 14; Chapman v Conservation Council of South Australia [2002] SASC 4 at [198]; Chapman v Allan & Draper [1999] SASC 460 at [197-202]; O'Shane v Fairfax Publications [2002] NSWSC 807, Stevens v Mayberry [2012] SASC 220; and Penfold v Higgins [2002] NTSC 65.
Well prior to the commencement of the subject trial, the first plaintiff and his wife had compromised their respective claims against ‘JA’ and ‘CA’. The terms of the settlement of those causes of action were contained in a Deed of Compromise and Release, dated 18 August 2015, which terms were confidential to those parties.[2]
[2] Ex D3.
The first plaintiff, shortly prior to the subject trial, in an apparent attempt to reduce the length of trial, intimated that he would not proceed in respect of four of the seven alleged defamatory publications. The first defendant had at all times denied those four alleged publications, however he had admitted since March 2016 having published the three remaining publications on 25 September 2013, 3 October 2013 and 18 November 2013, and accepted that they were defamatory of the first plaintiff.
In response to the first plaintiff’s intimation, the first defendant then intimated that he would abandon his denials that the said publications had greatly injured the first plaintiff, or had caused him embarrassment and distress.[3] The first defendant also provided a written apology dated 14 May 2016.
[3] Letter from first defendant's solicitors dated 15 May 2016.
For about 25 years before the subject events in 2013, the first plaintiff had been engaged in the property development sector in various capacities. He was a qualified surveyor, a registered conveyancer, and had conducted a business as a consultant assisting others in property development.[4]
[4] T. p [39-40].
In addition to those businesses, the first plaintiff had, since 2002, operated as a professional property developer in his own right, specialising in townhouse development. The evidence establishes that those respective businesses are successful, and that the first plaintiff is highly regarded in these fields. He develops in excess of 30 townhouses per annum.[5]
[5] T. p [40-41].
Since about October 2009, the first plaintiff has resided with his family in their then newly constructed home, within a subdivision of 200 allotments in the suburb of Brompton. The first defendant resides in close proximity to the first plaintiff’s home, as do ‘JA’ and ‘CA’. Their respective homes are adequately identified in photographs, and a satellite image tendered during the trial, in Exhibits P1 and P2.
The subject proceedings are a most unfortunate consequence of what started as disputes between neighbours. At the commencement of the trial, the parties were invited to consider whether they ought to adopt a practical means of resolving the subject issues, and any other disputes. The action ought to have been capable of easy resolution by the parties. I accept of course that the first plaintiff is entitled to an award of damages to compensate him for his hurt feelings; for the harm to his reputation; and, in this case, especially, to vindicate his reputation; however the first defendant is a person of limited means, who had from time to time acted for himself in various stages of the litigation.
Unfortunately the remaining issues could not be resolved. Accordingly, it is necessary to detail some of the history of the proceedings including the basis of the compromise of the claims brought by the first plaintiff against ‘JA’ and ‘CA’. Those claims are relevant to the assessment of damages to be awarded to the first plaintiff.
I have set out the background facts in chronological order.
The Chronology
In this chronology I have detailed some of the allegations made by the respective parties which are not directly the subject of the three publications.[6] They do however place the subject publications, and the first plaintiff’s reaction to them, in context. I make it clear that I have made no findings as to the truth of those allegations. They will not be used by me in assessing the quantum of compensatory damages.
[6] See Plato Films v Speidel [19610] AC 371, and Gillooly: 'The Law of Defamation in Aust. and N.2.' at [272].
I have also detailed the respective changes to the pleadings so as to avoid repetition.
The background facts are not in dispute. They are principally sourced from the pleadings; the documents contained in the Tender Book, Ex P1; and the other exhibits, including the Deed of Settlement and Release, Ex D4.
The Tender Book of documents was tendered on the basis that I would rule, de bene esse, as to the admissibility of any documents identified as being irrelevant to the proceedings, or otherwise in dispute.[7] Neither counsel sought to exclude any of the documents referred to in this chronology, save for the Deed of Settlement and Release, principally on the grounds of confidentiality.
[7] Ex P1. See T. p [13].
In my opinion that Deed is highly relevant to an issue in mitigation identified by the first defendant in s 36(1)(e) of the Defamation Act. I will later explain my ruling in respect of the issue of confidentiality.
·In 2009 the first plaintiff constructed his family home at Hull Street Brompton. The house was registered in the name of the third plaintiff, Invest in Property Pty Ltd.
·The first plaintiff’s home was positioned, as an ‘island’, bounded by Trapman Lane to the north-west; Hull Street to the south-west, and Kiln Drive to the south-east. The first defendant had constructed his residence on Kiln Drive prior to the construction of the plaintiffs’ home. Subsequently ‘JA’ and ‘CA’ constructed their home on Kiln Drive.[8]
[8] Ex P2 - Satellite image; and T. p [58].
·In October 2009, the first plaintiff; his wife, the second plaintiff; and their children, entered into occupation of the home.
·In early 2012, the first defendant made complaints to SA Police about alleged excessive noise from parties at the plaintiffs’ home.[9] The police attended at their home on 28 January 2012; 4 February 2012; 11 March 2012; 1 April 2012 and 1 January 2013.
[9] Ex P1 T. p [72].
·In August 2012 the first defendant complained to the City of Charles Sturt about building work undertaken by the first plaintiff to a pergola above garages on the Trapman Lane side of the plaintiffs’ home.[10]
[10] Ex P1 T. p [48-49]. Query whether this breached ss 56(b) and (c) of the Independent Commissioner Against Corruption Act (SA), 2012.
·From about October 2012 the first defendant regularly complained to authorities, including the Environment Protection Agency, about alleged excessive noise emanating from the plaintiffs’ pool pumps.[11]
[11] Ex P1 T. p [13-20].
·In March 2013 the first defendant complained to the City of Charles Sturt as to the parking of vehicles in Trapman Lane and Kiln Drive.[12] At that time ‘JA’ had received an expiation notice from the Council for parking in the narrow Trapman Lane.
[12] Ex P1 T. p [65-68].
·‘JA’ complained to the first plaintiff,[13] incorrectly believing that the first plaintiff had complained about the parking at that time.
[13] Ex P1 T. p [23].
·By mid 2013 the first plaintiff did advise the Charles Sturt Council of his difficulties in being unable to access his garages on Trapman Lane, whenever cars were parked opposite them. He engaged a transport engineer who opined, on 16 September 2013, that the Council ought designate ‘a no stopping anytime restriction’, along the north-eastern side of Trapman Lane.[14]
[14] Ex P1 T. p [27-33].
·On 24 September 2013, just one day before the first of the subject publications, the City of Charles Sturt informed the first plaintiff that a ‘yellow no stopping line’ would be placed opposite the first plaintiff’s garages in Trapman Lane.[15]
[15] Ex P1 T. p [36].
·Notwithstanding that the first defendant had also sought to stop parking in Trapman Lane in mid March, he telephoned the City of Charles Sturt on 25 September 2013 on two occasions.
The Council documents record that on that day, ‘he stated that he wanted to make a complaint verbally to someone high up in Council in regards to an issue about parking on the road. He stated that we paid an engineer to write a report to stop parking in a laneway across the road from him. He stated that when he had previously spoken to Council, he was told that it couldn’t be done however it seems to be going ahead, and he is very unhappy about this. He went on to say that we have double standards, and accept bribes to have work done. Council seem to favour one particular person upon payment to Council. He said that this would be going nationally … he also advises that he has made a report to the Department of Public Integrity’.[16]
[16] Ex P 1, T. p [40].
·Those Council records containing complaints were recorded on a database. All members of the Council staff have access to the database. The first plaintiff asserts that the above defamatory statement was thereby republished.
·The first plaintiff alleged that on 26 September 2013, ‘JA’ and ‘CA’ made three statements. Those statements, which were denied by them, were alleged to be as follows:
·       The first to the second plaintiff, her children and another witness to        the effect that the ‘first plaintiff is corrupt; had bribed the Council and      had paid off the Council’;
·       The second to the same persons on the same day, as the first statement    and ‘unknown persons’, to the effect that the ‘first plaintiff is corrupt’;
·       The third on the same day to Theodosi Cotsoris to the effect that the       first plaintiff ‘has bribed Council so that a yellow line can be placed    on Trapman Lane’.
·On 3 October 2013[17] the first defendant telephoned an employee of the City of Charles Sturt saying that ‘he suspected corruption (alleging bribery by the first plaintiff of Council officers) … He advised that a previous request for the removal of parking at this location (that came from another resident) was not acted on. He suspects that we are acting on this request because it comes from [the first plaintiff] who he alleges has influence over Council officers.
[17] Ex P1, T. p [43].
He also raised issues relating to the Development Approval at 9 Hull Street which he claims are the result of alleged special treatment of [the first plaintiff] by Council.
He commented that he had made a submission to the Department of Public Integrity and is collecting information to support his claims. He also commented that he has contacted the media about this issue’.
·The first plaintiff alleges and the first defendant denies that statements of a similar nature were made by the first defendant in the first week of October 2013 to a neighbour.
·On 18 November 2013[18] the first defendant telephoned an officer of the City of Charles Sturt and stated that he ‘suspected corruption (alleging bribery by [the first plaintiff] of Council officers) in relation to the development across the road from him. He claims that one of our staff provided his mobile number to [the first plaintiff] and he will be reporting this to the Department of Public Integrity’.
[18] Ex P1 T. p [69-70].
·On 13 December 2013 the first plaintiff sent a concerns notice to the first defendant to which the first defendant did not respond.
·The first plaintiff alleges and the first defendant denies that the first defendant published statements defamatory of him:
·In late 2013 to a television program;
·On 23 January 2014 to South Australian Police.
·On 24 January 2014 to the second plaintiff, their children and another witness;
·The first plaintiff alleged that on 23 January 2014 he was assaulted by ‘JA’. ‘JA’ denied the alleged assault.
·The first plaintiff alleged that between 28 January 2012 and February 2014, the first defendant committed private nuisance, and/or harassment as against the first and second plaintiff. The first defendant denies the first plaintiff’s allegations.
·On 24 September 2014 the plaintiffs instituted the subject proceedings. The plaintiffs were respectively the first plaintiff; his wife Vicki Pinksterboer (the second plaintiff), and Invest in Property Pty Ltd (the third plaintiff).[19] The named defendants were the first defendant; ‘JA’ and ‘CA’.
[19] This corporate entity, as trustee for the Gemini Trust No 2, was the registered proprietor of Mr and Mrs Pinksterboer's home at Brompton.
·As against the first defendant, the first plaintiff had pleaded the above seven alleged defamatory publications, and the one republication, allegedly made between 25 September 2013, and 24 January 2014; and claimed damages in respect thereof.
·As against ‘JA’ and ‘CA’ the first plaintiff had claimed damages for defamation in respect of the two alleged statements defamatory of the first plaintiff on 26 September 2013; and as against ‘JA’ alone, for one further alleged publication of a statement allegedly defamatory of the first plaintiff on that day.
·As against the first defendant, the first and second plaintiffs had claimed relief including injunctive relief for ‘private nuisance’ and ‘harassment’.
·As against ‘JA’ the first plaintiff had claimed damages for an alleged assault by ‘JA’ upon him on 23 January 2014.
·On 23 October 2014 all three defendants filed a common ‘defence’. It was non-compliant, merely admitting 5 formal matters and not addressing the plaintiffs’ causes of action.
·On 15 May 2015 a second defence was filed on behalf of the first defendant. In it, he:
·denied that the statements allegedly made by him were defamatory of the first plaintiff.
·pleaded the defences of qualified privilege, honest opinion; triviality; and immunity pursuant to the Whistleblowers Protection Act 1998 (SA).
·and further pleaded, that ‘by this defence he offers to:
·Apologise in writing to the plaintiffs for his comments pleaded in this defence;
·Give a written undertaking that he will not repeat any defamatory comments or comments that may be perceived as defamatory;
·To not make any further complaints about the plaintiffs to the City of Charles Sturt Council, the SA Police, or the EPA, in relation to the first plaintiff.[20]
[20] The 'offer' did not comply with ss 13 and 15 of the Defamation Act, 2005, SA.
·On 4 June 2015 the first defendant gave notice that he was now self-represented.
·On 18 August 2015 by Deed of Settlement and Release between the plaintiffs and ‘JA’ and ‘CA’, those parties resolved to settle, with a denial of liability, ‘all claims that they have or may have against one another’.[21] As the terms of the Deed were confidential, the plaintiffs did not notify the first defendant of the existence of the Deed.
[21] Ex D4.
·On 24 September 2015 by order of the Court, the plaintiffs claim was dismissed as against ‘JA’ and ‘CA’, with no order as to costs.
·On 3 November 2015 the first defendant engaged solicitors to act for him.
·On 29 March 2016 the first defendant filed a third defence in which he admitted having made the relevant publications on 25 September 2013; 3 October 2013 and on 18 November 2013; and that there had been a republication within the Council records of the publication on 25 September 2013.
Significantly:
·       As to the first publication on 25 September 2013, he admitted that his words published on 25 September 2013 to the officers of the City of Charles Sturt were defamatory of the first plaintiff, and that in using the words in the first publication, he meant, and the words were understood to mean that the first plaintiff:
·Is corrupt;
·Is dishonest;
·Pays bribes;
·Bribed the Council;
·Is favoured by the Council because he pays bribes;
·Has improper influence over the Council;
·Has acted in a criminal manner;
·Is a person without integrity;
·Has engaged in conduct which should be investigated by a public authority; and
·Has engaged in conduct which is so improper that it would be of national interest.[22]
[22] Statement of Claim - para 13, Defence para 4.
·As to the second publication on 3 October 2013, he admitted that his words were defamatory of the first plaintiff, and that in using the words in the second publication, he meant and the words were understood to mean that the first plaintiff:
·Is corrupt;
·Is dishonest;
·Pays bribes;
·Bribed the Council;
·Is favoured by the Council because he pays bribes;
·Has improper influence over the Council;
·Has acted in a criminal manner;
·Is a person without integrity;
·Is engaged in conduct which should be investigated by a public authority; and
·Has engaged in conduct so improper that it would be of national interest.[23]
[23] Statement of Claim - para 32, Defence para 7.
·As to the third publication on 18 November 2013, the first defendant admits that his words were defamatory of the first plaintiff, and that in using the words in the third publication, he meant, and the words were understood by him to mean that the first plaintiff:
·Is corrupt;
·Is dishonest;
·Pays bribes;
·Bribed the Council;
·Has acted in a criminal manner; and
·Is a person without integrity.[24]
[24] Statement of Claim - para 40, Defence para 11.
·At the time of filing the third defence the first defendant denied:
·       that the reputation including the business reputation of the first plaintiff has been brought into public disrepute, scandal, odium and contempt, and said that the damage to the first plaintiff’s reputation including business reputation is negligible.
·       that the first plaintiff has suffered loss and damage for economic loss but admits that the first plaintiff has suffered loss and damage for non-economic loss;
·       that the first plaintiff is entitled to aggravated damages for non-economic loss.
·       that any other alleged publications had occurred.
·        that there was any basis for the alleged causes of action for alleged harassment and private nuisance.
·In early May 2016 the first plaintiff’s solicitors gave notice of his intention to abandon his claims for publications save for those on 25 September 2013; 3 October 2013, and 18 November 2012.
·By letter dated 15 May 2016 the first defendant’s solicitors indicated that the first defendant would no longer press his denials that each of the subject three publications, had ‘greatly injured the first plaintiff’, and had caused the first plaintiff ‘embarrassment and distress’.
·By letter dated 14 May 2016, Exhibit P5, the first defendant wrote to the first plaintiff as follows:
14^th May 2016
Dear Mr Pinksterboer
I write to offer my sincere apologies for comments made about you to officers of Charles Sturt Council between September and November 2013 in three calls to council where I alleged that you were dishonest, corrupt & paid bribes to get your own way.
These comments are defamatory & I had no basis for making them on. (sic) I understand that these allegations have caused you hurt, distress & embarrassment for you & and your family.
I unconditionally withdrew the allegations when I sought leave of the court to file a new defence on 22 March 2016. I apologise to you for making the allegations & for the hurt suffered as a result.
Yours sincerely
Andrew Coumi (sgd)
·The conduct of trial
·On 16 May 2016 the subject trial commenced. The first defendant was given leave to plead the issue of mitigation pursuant to s 36(1)(e) of the Defamation Act, 2005, (SA) to take account of the compromise of the plaintiffs’ claims against ‘JA’ and ‘CA’.
·The plaintiffs’ counsel opened the case on the basis that ‘in the interest of reducing the length of this exercise’ they would not press the four alleged publications which were disputed by the first defendant but would limit the claim by the first plaintiff to the three publications on 25 September 2013, 3 October 2015, and 18 November 2013, and the republication of the first publication which were not in dispute.[25]
The claims made by the plaintiffs against the first defendant in respect of alleged harassment and private nuisance remained on foot at the start of the trial.
·The first plaintiff gave evidence and was cross-examined.
·On the second day of the trial, counsel for the plaintiffs announced that the parties had ‘come to an agreement … to dispose of that part of the case involving private nuisance and harassment, save for the question of costs.
[25] T. p [8-9].

That agreement was expressed follows:
1. By consent it is noted that upon the undertaking of the first defendant that he will not:
1.1Make any complaint to any public authority including the South Australia Police, the Environment Protection Authority of South Australia or the City of Charles Sturt in respect of 9 Hull Street, Brompton; or
1.2Carry out any surveillance of 9 Hull Street, Brompton or its occupants.
The plaintiffs do not press their claims in either private nuisance or harassment as outlined in paragraphs 72 and 73 of Part I or for orders 6 and 7 of Part 2 of the Statement of Claim dated 24 September 2014.
2. Nothing in paragraph 1 hereof limits the right of any party to seek the costs of the actions or part thereof or to make submissions in relation to those costs.
·The evidence
·The first plaintiff’s case
The parties tendered a book of documents, none of which were controversial.[26] Five witnesses were called by the first plaintiff. They were respectively the first plaintiff, himself; two witnesses from the City of Charles Sturt – the manager of Public Health and Safety, Donna Lee Dunbar; and the transport engineer Christopher Gregory Bentick; the first plaintiff’s wife, Vicki Pinksterboer; and Paul Lyndon Hanna, who was employed as the project manager in the first plaintiff’s business.
·Synopsis of the evidence of the witnesses
[26] Ex P1.
The first plaintiff’s cross-examination was wide ranging. It was not until the completion of his evidence that the issues were narrowed with the plaintiffs no longer pressing the causes of action in private nuisance and harassment. I will not refer to issues that were subsequently abandoned when referring to his evidence.
The first plaintiff explained that he had purchased the site of his home as a development project but eventually constructed a family home. The home is a 420 sq. m three storey townhouse, which includes a 4 car garage with vehicle access only from Trapman Lane.
He identified the homes of the first defendant, and ‘JA’ and ‘CA’ respectively on a satellite map of the Brompton development.[27]
[27] Ex P2.
He explained that he had been employed in the property development field in various roles for about 25 years. He described that business as providing consultancy services to ‘mums and dads, and also professional property developers’. He was clearly proud of his work, and his reputation.
As a registered conveyancer, planning consultant, qualified surveyor and developer in his own right, he deposed that he provided the full range of services. He detailed the significant turnover of his various businesses, including his separate business as a professional developer in respect of which he develops 30 to 50 townhouses per year.[28] He explained that he was required to be a fit and proper person to operate his trust account as a conveyancer. That trust account may hold up to 1 million dollars at any given time. He has three full-time and two part-time employees.
[28] T. p [40].
He deposed that:
The entire business hinges on our dealings with Council planning authorities. We run – as I said, it’s a development consultancy firm … it entails me lodging development applications with any Council and then negotiating on behalf of my clients, approvals for their applications. We would run at any time over 100 open files dealing with all the metropolitan Councils in the State.[29]
[29] T. p [42-43].
When asked about his personal reputation he said:
Our reputation – my reputation is beyond question … it is absolutely critical that I am able to deal with people in local government such that they don’t feel that their decision or their ability to deal with me is being compromised by ‘any illegal dealings’ … or anything they might have heard that I have done.
He deposed that his reputation was ‘absolutely brilliant’. He explained that his work comes both from existing clients’ ‘word of mouth’, as well as from ‘the large builders and professional developers’. He explained that he was, at all times conscious of the need to maintain his high reputation. He said that he would not permit any potential for a conflict of interest. He said that he had given evidence as an expert witness in Court.[30] He said that he had had no involvement with the first defendant until he had nearly completed his home in late 2009.[31]
[30] T. p [44].
[31] T. p [45].
He referred to various neighbourhood complaints by the first defendant including those as to excessive noise; landscaping on the footpath verge; the installation of a roof pergola; and ultimately parking issues in Trapman Lane.
He deposed that he found the first defendants’ complaints to be distressing. He said that the issues came to a head after the Council had indicated that it intended to stop parking in Trapman Lane.
He said that on or about the 26^th September 2013, the other neighbours ‘JA’ and ‘CA’ had confronted his wife at their family home and screamed that he had bribed the local Council. At that time he was unaware that the first defendant had telephoned the Council employees on 25 September 2013 and had published the first statement defamatory of him.
In October 2013, he became aware from comments made to his family that someone else had made allegations that he had bribed the Council. He accordingly sought a Freedom of Information request of the City of Charles Sturt, to see whether any such allegations had been made, and, if so, who had made them. He deposed that there were only three persons with his surname in Australia. He said that any allegation of corrupt behaviour associated with that surname would adversely affect his business, because of the unusual name. He said that he became anxious and suffered panic attacks. He was most concerned as to what had been alleged; as to who made the allegations; and as to how widely the allegations had been published. He explained that he was under immense stress at that time.
He said that when he learnt of the three published statements by the first defendant namely those of 25 September 2013, 3 October 2013 and 18 November 2013 to the Council employees, he was devastated. It reached such a state that he and his wife had made the difficult decision to sell the family home. They contracted to purchase another property in a different location.[32] It was not asserted that this decision was a direct consequence of the defamatory statements. While it was not in dispute at trial, he understood at that time that the thrust of the allegations was that he was corrupt, dishonest, had bribed the Council, acted in a criminal manner, that he was a person without any integrity, and that he had improper influence over the Council.
[32] T. p [77].
He was cross-examined by counsel for the first defendant about whether he had embellished his account as to the number of times that the first defendant had made complaints against him. He denied that he was oversensitive. He accepted that on the face of it his reputation remains ‘brilliant’.[33] He said that he had worked very hard to maintain his reputation and acknowledged that he had no direct experience of Council officers shunning or avoiding him. He accepted that they have all acted professionally towards him.
[33] T. p [104].
He was asked however in re-examination as to whether he had changed anything in the way in which he dealt with Council officers, in consequence of the 3 publications by the first defendant. He deposed:[34]
I had a lot of paranoia in my mind as to what these people thought of me and, as to who else in the Council knew, because there is every chance that the Council officer and the planning officer [dealing with] my business may have had some discussion with [others], and while they may be acting in a professional manner, but I don’t know whether or not the girl who took the phone call from the desk did [act in a professional manner]. I don’t know.
[34] T. p [110].
He said that during the immediate aftermath of the defamatory statements the Council officers were ‘very cautious’. He explained that he did not know and could not know what was in the minds of the Council officers.
Vicki Lee Dunbar explained that in her role as manager of public health and safety she first came into contact with the first plaintiff at the end of 2013 in respect of parking issues in Trapman Lane. She deposed that in late September 2013 she had received a telephone call from the first defendant who had complained about parked vehicles generally, but later moved to an accusation that Council officers had accepted a bribe from the first plaintiff to approve his development application for building work to his home.[35]
[35] T. p [120].
She deposed that upon that statement being made by the first defendant, she told him that if he had any proof of such an accusation, it should be immediately reported to the Office of Public Integrity as it was an extremely serious allegation to make.
She deposed:
I suppose my very first thought was the fact that the officers might have accepted a bribe and was sort of a bit defensive of those, and that if there were some issues that – if that was at all possible then it needed to be investigated. I suppose thinking about it afterwards, my mind sort of went to the first plaintiff having made ‘such a bribe’ but my initial thought was about the Council’s staff, that I was mainly concerned with.
She said that she informed the manager of the planning and development area as well as advising the first defendant that he should report the incident. She was referred to the Council note, in Exhibit P1, of 25 September 2013. She deposed that the Council practice was that every complaint should be recorded. She said that in this case the message was initially received by an officer in their call centre before being referred to her. She explained that complaints are recorded on the Council’s electronic recording system and that every employee of the Council has access to the system. While members of the public do not have access, there is the possibility that the public may obtain access by means of Freedom of Information requests.[36] She said that she was not aware of any investigation having taken place as a consequence of the first defendant’s allegations against both the Council employees and the first plaintiff.
[36] T. p [124].
When cross-examined she said that she was principally concerned about the reputation of the Council officers. She said that she thought that it was a slur against the Council and its officers. She said, that it is ‘not a nice thing to be associated with’.[37]
[37] T. p [125].
She was then asked:
QIndeed not, no, in fact it’s a terrible thing to be associated with. I can only ask you about your immediate reaction, and in fact you’re considered reaction now. Did you think that the first defendant was telling the truth when he said that about the Council?
ANot really, no.
QIs it possible that in fact you detected from his tone of voice and his – can I use the expression, florid language, that he was both angry and perhaps letting off steam.
AHe was definitely very angry and I got the impression that there was very bad blood between the two – the neighbours, and yeah, he was definitely just very angry.
QDid he sound rational?
ASome of the conversations that I had with him, I didn’t think he was, no.
QAnd the concern you had for the first plaintiff – I understand it’s a secondary concern for obvious and good reasons - but how would you formulate that now for us for the assistance of this court, what was the concern you had.
AWell I suppose the first plaintiff was a very competent businessman who wanted to find – I found him very positive and wanting to try and make amends or address these issues that were there so he could get on with his life. So to be perfectly truthful I didn’t really – I didn’t really feel sorry for him or anything like that, I thought he was a very strong person that this was said at the time the first defendant was very angry. But I suppose upon reflection of it, because he is within – I understand, I got from conversations, I gather that he is part of the building development type person that potentially would be a bad thing to the industry that he was in.
QI asked you whether or not you believed that the Council was capable of being corrupted in this way, and you said no. Did you at any time think that the first plaintiff was going about his business in a fashion which was designed to corrupt the Council?
AI didn’t think that at the time, no and in all the conversations that I had with him it didn’t come across that way at all … well all the interactions that I had with him, he was very focused on ‘look we’ve got this problem here, what do I need to fix it? and do you need more information? and I just found him very helpful and wanting to move forward.
She said that she did not think that the first plaintiff might be corrupt. She said that she had never observed the first plaintiff to be vindictive. She said that at the initial stage of the phone call from the first defendant – the tone of his voice and the words he used were very nasty towards the first plaintiff.
Christopher Bentick the traffic engineer first came into contact with the first plaintiff in 2013, in respect of the parking issues in Trapman Lane. He said that he first came into contact with the first defendant in 2013. He deposed that when speaking to the first defendant initially by telephone, the first defendant wasn’t happy about the conduct of the Council officers and decisions that were being made at the time. The first defendant expressed to him that he had some suspicion of inappropriate behaviour of Council officers and the first plaintiff.
He said that the first defendant had alleged bribery. He made a record of that conversation and informed Ms Dunbar of it. He was asked, in light of the allegations which had been made, whether he had changed the way in which he dealt with the first plaintiff in consequence. He said that he just made sure that everything was documented.[38]
[38] T. p [133].
When he was cross-examined, he said that he did not believe the first defendant’s allegation of bribery. He said however that it was a concern because there was of a lot of scrutiny on public officials, and there was an obligation to keep records of complaints, and such allegations.
He was asked:
QBut I am asking you to turn your mind to whether or not at that time did you imagine at all that your Council would be corrupted in that way or bribed in that fashion.
AI didn’t imagine any of the officers that were involved would have been, no.
QSo you knew that that was a completely untruthful statement.
AIt was very unlikely to be true, yes.
The first plaintiff’s wife Vicki Pinksterboer explained that she was also employed in the family property development firm. She was a solicitor who had previously been employed in a legal firm before her marriage. She said that in late September 2013, she was confronted at her front door by ‘JA’, who had made assertions that the first plaintiff had bribed Council and that he was corrupt.
The family had been living at their home for about 4 years at the time of that statement by ‘JA’. She explained that she was upset by those allegations which were made in front of her children. She said that subsequently, on the October long weekend, she had been informed by another neighbour that allegations had been made that the first plaintiff was bribing the Council. She confirmed that it was only upon the outcome of a Freedom of Information application, that the first plaintiff and she became aware of the specific allegations and as to who had made them. She said that she also felt distressed. She was particularly concerned about the reference to her husband, because the business was developing properties in the local council area with the first plaintiff’s unusual surname on signs. She deposed that there were days when she was not able to function at all, because of the allegations. She noticed that her husband, both personally and professionally, seemed to be under a lot of pressure. She held the opinion that he was not coping at work following the allegations having been made.[39]
[39] T. p [144-146].
Paul Lyndon Hanna explained that he was a project manager employed at Pinksterboer and Associates. He explained that his work was to lodge land divisions for property developers; run community title projects; be involved in conveyancing; and Council based applications. He said from his experience that in order to work successfully with employees of the State Government or a local Council, you must have a good reputation and good relationships. He said that if a developer ‘did the wrong thing’, the Government and Council employees would not deal with them or at least make life difficult, and generally not be helpful. He repeated the need to have a good reputation. He said that he had known the first plaintiff for 15 years. He regards him as an honest person and one with integrity. He stated that the first plaintiff’s reputation in the property development and indeed conveyancing industry is extremely high. He said that he observed a change in the first plaintiff after the allegations, the subject of the proceedings, were brought to his attention. He said that he became very distant and the business had to employ another person to assist the first plaintiff’s role.[40]
·The first defendant’s case
[40] T. p [153].
The first defendant tendered, as Exhibit D4, the Deed of Settlement as between the plaintiffs and ‘JA’ and ‘CA’. He also tendered the letter of apology, addressed to the first plaintiff, and signed by the first defendant. That letter which was dated 14 May 2016,[41] was received on 15 May 2016.
[41] Ex D5 T. p [155].
In consequence of the concession by the first defendant as to the three defamatory statements being made by him, the first defendant did not give evidence and did not call any other witnesses.
·The assessment of damages
The legal principles
In Rogers v Nationwide News Pty Ltd,[42] Hayne J said:
The three purposes to be served by an award of damages for defamation are identified in the joint reasons in Carson v John Fairfax & Sons Ltd:
(i)compensation for the personal distress and hurt caused to the [plaintiff] by the publication.
(ii)reparation for harm done to the [plaintiff’s] personal, and in this case, professional reputation.
(iii)vindication of the [plaintiff’s] reputation. As pointed out in Carson, the first two purposes are frequently considered together and constitute consolation for the wrong done to the [plaintiff]; while vindication looks to the attitude of others.
[42] (2003) 77 ALJR 1739 at [60].
In John Fairfax Publications Pty Ltd v O’Shane (No 2),[43] the Court of Appeal (NSW) affirmed that:
… the law should place a high value upon reputation and in particular upon the reputation of those whose work and life depend upon their honesty, integrity and judgment; [my emphasis].
[43] (2005) NSWCA 291 at [25].
In Morgan v Odhams Press Limited,[44] it was held that where a publication is limited to a few people, the award of damages will be modest, and may be further reduced if none of them treat the defamatory material as having any credibility. Recently the relevant principles were referred to by the Full Court of the Supreme Court in Lesses v Maras (No 2).[45] It explained that damages are to be assessed under common law principles, subject to Part 4, Division 3 of the Defamation Act, 2005; (SA).
[44] [1971] 1 WLR 1239 at 1262.
[45] [2017] SASCFC 137 at [21]-[31].
I respectfully adopt the principles outlined by the Court, at [21]-[31]:
[21] It should be borne in mind that a plaintiff is being compensated by reason of having been exposed to hatred, contempt or ridicule; to being shunned; or otherwise to being lowered in the estimation by the community. Damages are awarded in respect of the effect of the defamation on the community’s estimation of the plaintiff (the objective effect) and the effect on the plaintiff’s feelings as a result of the plaintiff’s perception of that effect (the subjective effect).
[22] Section 32 of the Act provides that, in determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.
[23] The harm sustained due to the objective and subjective effects will depend on many factors including:
.       the nature and gravity of the defamatory statement;
.       the importance and relevance of the defamatory statement to the recipients;
.       the context in which the statement is published;
.       the mode of publication;
.       the temporal extent of the publication;
.       the extent of the publication in terms of the number and class of the recipients;
.the identity of the recipients and their relationship to the plaintiff and to the defendant;
.       the social standing of the plaintiff.
[24] The defamatory words are to be understood in the context of the published words as a whole as well as in the broader context. However, the plaintiff cannot recover damages for other words in the publication not alleged and found to be defamatory.
[25] Section 34 of the Act provides:
34—State of mind of defendant generally not relevant to awarding damages
In awarding damages for defamation, the court is to disregard the malice or other state of mind of the defendant at the time of the publication of the defamatory matter to which the proceedings relate or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff.
[26] The fact that a defendant knew that a defamatory statement was false may increase the subjective harm sustained by a plaintiff if the plaintiff believes that the defendant knew that the defamation was false and this exacerbates the hurt to the plaintiff’s feelings.
[27] The conduct of the defendant after publication in the context of threatened and actual litigation over the allegedly defamatory statement can be relevant to the quantum of damages. On the one hand, if the defendant persists in the allegedly defamatory statement by a plea of justification, this can in some circumstances exacerbate the subjective effect (and if itself published may increase the objective effect) and hence increase the damages, particularly if the plea is not pursued in good faith. On the other hand, if the defendant withdraws or otherwise does not persist in the allegedly defamatory statement, this can reduce the subjective effect (and if itself published may reduce the objective effect) and hence reduce the damages. The effect of High Court authority appears to be that there are no hard and fast rules and whether damages are increased or reduced as a result of post-publication conduct by the defendant will depend on all of the circumstances.
[28] In Herald and Weekly Times Limited v McGregor, Knox CJ, Gavan Duffy and Starke JJ said:
In point of law, the learned trial Judge would have been right if he had instructed the jury that in assessing damages they were entitled to take into consideration the mode and extent of the publication, that the defamatory statement was never retracted, that no apology was ever offered to the respondent, and that the statement had been persisted in to the end; because all these circumstances might in the opinion of the jury increase the area of publication and the effect of the libel on those who had read it or who would thereafter read it, might extend its vitality and capability of causing injury to the plaintiff...
[29] In Triggell v Pheeney, Dixon, Williams, Webb and Kitto JJ said:
It is no doubt true that the jury cannot take into consideration as a ground for giving or increasing damages, whether exemplary or compensatory, conduct of the defendant which was not merely bona fide but was justifiable or proper. A bona-fide defence raised properly or justifiably in the circumstances known to the defendant and evidence honestly given in support of such a defence doubtless cannot be used for such a purpose. But the decision of the majority in Herald and Weekly Times v McGregor must mean that the conduct of the defence may be taken into consideration not only as evidencing malice at the time of publication or afterwards, as, for instance, in filing a plea, but also as improperly aggravating the injury done to the plaintiff, if there is a lack of bona fides in the defendant's conduct or it is improper or unjustifiable.
[30] In Coyne v Citizen Finance Limited, Toohey J (with whom Dawson and McHugh JJ agreed) said:
It is not the case that every unsuccessful defendant must face the prospect of damages being increased, simply because the defendant has elected to defend the action. It is for the jury, properly directed in the circumstances of the case, to determine whether the defendant's conduct lacks bona fides, or is improper or unjustifiable, in the sense referred to in Triggell v Pheeney. Nevertheless, persistence in a plea of justification may be relevant to the amount of compensatory damages awarded. An early withdrawal of the defamatory statement will ordinarily serve to reduce the harm suffered by the plaintiff; persistence in seeking to justify the statement may increase the scope of publication and the effect on those who read it: Herald and Weekly Times Ltd v McGregor. I take this to be the sense in which Lord Diplock suggested that `persistence by the defendant in a plea of justification or a repetition of the original libel by him at the trial can increase the damages': Broome v Cassell & Co. But compensation for continuing harm is a component of normal compensatory damages and, in the absence of at least one of the factors mentioned in Triggell v Pheeney, does not warrant an award of aggravated damages to the plaintiff.
[31] Section 33 prescribes the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings (except when aggravated damages are warranted) at an annually prescribed amount ... It is common ground that this operates as a cap and not so as to require a court to scale the damages awarded against the maximum amount.

In the circumstances of the subject case it is also convenient to set out the provisions of s 36 of the Act.
36—Factors in mitigation of damages
(1)     Evidence is admissible on behalf of the defendant, in mitigation of   damages for the publication of defamatory matter, that—
(a)     the defendant has made an apology to the plaintiff about the   publication of the defamatory matter; or
(b)     the defendant has published a correction of the defamatory   matter; or
(c)     the plaintiff has already recovered damages for defamation in       relation to any other publication of matter having the same   meaning or effect as the defamatory matter; or
(d)     the plaintiff has brought proceedings for damages for defamation   in relation to any other publication of matter having the same   meaning or effect as the defamatory matter; or
(e)     the plaintiff has received or agreed to receive compensation for   defamation in relation to any other publication of matter having     the                   same meaning or effect as the defamatory matter.
(2)     Nothing in subsection (1) operates to limit the matters that can be taken               into account by a court in mitigation of damages.
·The parties submissions
·Counsel for the first defendant
Mr D Bulloch concentrated upon s 32 of the Act, and submitted that the Court must ensure that any award of damages has an appropriate and rational relationship to the harm actually suffered. He submitted that the Court ought to accept that the written apology by the first defendant was genuine. He submitted that it evidenced his contrition, and the acceptance by him of the wrongfulness of his behaviour.
He submitted that the first defendant should not be criticised because the cross-examination of the first plaintiff was wide ranging. He submitted he was obliged to cross-examine the first plaintiff as to the causes of action in harassment and private nuisance because they were still maintained by the first plaintiff, having not disposed of that part of his claim until after the completion of his evidence. He submitted that due weight should be given to the belated apology because the first defendant had earlier, in March 2016, made admissions as to the subject three publications and the republication in the third Defence.
He submitted that the Court ought to proceed on the basis that the communication had been made to a maximum of 5 employees of the Council. He submitted that the first defendant could not have been expected to offer an apology at any time when the other four alleged publications were being disputed.
He referred to the evidence of the first plaintiff and submitted that the Court ought to accept that his reputation had remained beyond question and that at least the professional relationship between officers of the Council and the first plaintiff had not changed at all. He submitted that it was significant that none of the witnesses were able to say that the plaintiff’s reputation had in fact been diminished. In particular the witness Mr Hanna had spoken of the first plaintiff’s reputation and that there had been no diminution in the first plaintiff’s business.
He pointed to the evidence of the Council witnesses. They had formed the view upon speaking to the first defendant that the allegations were without any merit.
He turned to s 36(1)(e) of the Act, and to the principle that the first plaintiff should not be compensated twice for the publication of the same allegations. He submitted that the publications by ‘JA’ and ‘CA’ occurred within one day of the first publication by the first defendant and it involved the same allegation of alleged bribery by the first plaintiff of the Council.
He submitted that a global approach to the quantum of compensation should be adopted.[46] He submitted that ‘the question becomes what would be the correct figure to award assuming that all the parties were before the Court and what kind of proportionality would be attributed to the behaviour of each defendant?’ He referred to the Deed of Settlement and Release between the first plaintiff and ‘JA’ and ‘CA’, pointing out that it detailed a global figure in respect of the settlement of the first plaintiff’s claims in defamation and for assault.
[46] Trkulja v Yahoo! Inc [2012] VSC 88.
He referred to a number of cases which suggested that damages for that type of assault ought to be in the vicinity of $2,000. He submitted that it is not appropriate for aggravated damages to be awarded because of the offer to make amends in the second defence filed on 15 May 2015 and the admissions made in the third defence. He submitted that there was no claim for economic loss or personal injury. He referred to a number of cases in support of his submission that a global sum in the vicinity of $40,000 would satisfactorily compensate and vindicate the plaintiff and that that sum ought be subject to a reduction of approximately $18,000 to take into account the terms of the Deed of Settlement and Release.
·Counsel for the first plaintiff
Mr P Bullock submitted that the three defamatory publications call for a significant award of damages because the imputations include false allegations of criminality and dishonesty. He submitted that the first plaintiff’s presumed good reputation was supported by evidence of each of the witnesses called by the first plaintiff. They each spoke of his excellent personal and professional standing in the community. He submitted that the Court ought to conclude that the publications were a deliberate fabrication calculated to inflict the maximum possible harm on the first plaintiff’s reputation with those in the Council. Mr Bullock highlighted the fact that the subject three defamatory allegations were a repetition of the same allegations of corruption and criminality, which extended from 25 September 2013 to 18 November 2013.
He submitted that the Court should approach the award of damages on the basis that notwithstanding the relatively limited known audience of the publications, a substantial award is required as vindication of the first plaintiff’s reputation. He correctly submitted that it is not an answer to the claim in defamation to show that the relevant publication was not taken seriously by the audience.
He submitted that an award of aggravated damages is appropriate because the conduct of the first defendant had not been merely improper but was unjustifiable under any circumstances. He repeated his submission that the allegations are at the upper end of the scale of seriousness being those of criminality, bribery and corruption in respect of a man whose professional life involves dealing on a daily basis with officers of local Councils. He referred to the undisputed evidence that the first plaintiff had felt overwhelmed, suffered panic attacks and became withdrawn following the publication of the three defamatory statements.
He submitted that the Court ought to accept that the allegations did have an adverse impact upon Council officers. At the least they were conscious of the need to keep careful records.
He submitted that the first plaintiff would always be wondering whether the Council officers were wary of him, notwithstanding, their professional approach. He submitted that there were numerous individuals identified, who had notice of the defamatory publications and that a permanent record has been kept on the Council’s electronic record keeping system.[47]
[47] Written submissions paras [51-53].
Mr Bullock was critical of the first defendant’s apology. He submitted that the Court ought to accept that it was the direct consequence of the proximity of the trial and not a bona fide expression of regret or remorse.
He was also critical of the first defendant’s conduct up until 29 March 2016 when the third defence was filed, and of the cross-examination of the first plaintiff.
As to the question of the Deed of Settlement and Release with ‘JA’ and ‘CA’, Mr Bullock submitted that it ought not be taken into account as the settlement was on a ‘no admission basis’, and its terms ensured that it constituted no vindication of the first plaintiff’s reputation. He submitted that the settlement included the second and third plaintiffs; the resolution of the alleged claim for assault against ‘JA’; and excluded costs. He submitted that the Deed was not relevant, and accordingly it should not be taken into account pursuant to s 36(1)(e) of the Act.
Mr Bullock also referred to what he described as comparable awards of compensatory damages in various cases.[48] He ultimately submitted that an award of $60,000, inclusive of aggravated damages, should be made.
[48] Tropeano v Lauro [2010] SADC 113, Smith v Dahlenburg [2008] VSC 555, Woolcott v Seeger [2010] WASC 19, Prendergast v Roberts [2012] QSC 144 and Stevens v Mayberry [2012] SASC 220, Cornes v The Ten Group [2011] SASC 104.
Discussion
It is appropriate that I first say something about each of the witnesses called by the first plaintiff. The respective officers of the Council, Ms Dunbar and Mr Bentick, were impressive witnesses, who did their best to recall the events underlying the subject three defamatory statements and the republication. They gave their evidence carefully. There can be no doubt that they were troubled by the tenor of the complaints which had been made by the first defendant. They had been principally concerned about the various employees of the Council, but to a lesser degree about the first plaintiff. I accept their respective evidence without reservation.
There was no cross-examination of Vicki Pinksterboer. That was a very proper approach taken by counsel for the first defendant. I also accept her evidence unreservedly. The defamatory statements made by ‘JA’ and ‘CA’ to her, in the presence of her children, clearly came as a shock to her, as did the subsequent discovery that the first defendant had made the subject three defamatory publications to officers of the Council. I accept her evidence as to the adverse effect upon herself and her observations of the adverse effects upon the first plaintiff of the latter publications. She did not embellish her evidence in any way.
Similarly I accept, unreservedly, the evidence given by Mr Hanna, in particular, with respect to the requisite relationships between developers and employees of Councils. I also accept his evidence as to his observations of the adverse impact upon the first plaintiff of the subject defamatory publications.
I was favourably impressed by the first plaintiff as a witness of truth. As it transpired he had completed his evidence-in-chief and cross-examination prior to the parties narrowing the issues before the Court. In consequence he was also cross-examined about the causes of action in alleged harassment, and private nuisance, and various general matters of credit. I make no criticisms at all as to the manner in which he was cross-examined. I have no doubt that he was devastated by the defamatory imputations to the effect he was corrupt, dishonest and had paid bribes to Council.
I accept his evidence that the most significant concern to him was his realisation that complaints had been made by somebody to the local Council. It was then that he embarked upon the Freedom of Information request and became aware of the defamatory publications by the first defendant. I accept that he became stressed and anxious about the subject three defamatory publications both because of their serious allegations of criminal conduct, corruption and bribery but also because the allegations had been made to the very people with whom he must deal in the course of his work, and in respect of whom, his reputation is crucial.
Resolution of factors said to be in mitigation
·The Deed of Settlement and Release[49]
[49] Ex D 4.
The Deed of Settlement and Release as between the three plaintiffs and ‘JA’ and ‘CA’ and dated 18 August 2015, is highly relevant to the issues raised by s 36(1)(e) of the Defamation Act, supra.
That subsection, its interstate equivalent, and the predecessor subsections have been considered by superior Courts in a number of cases. They include Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419; Thompson v Australian Capital Television Pty Ltd (1997) 129 ACTR 14; Chapman v Conservation Council of SA [2002] SASC 4; Chapman v Allan and Draper (1999) SASC 460; O’Shane v Fairfax Publications [2002] NSWSC 807; Stevens v Mayberry [2012] SASC 220; Penfold v Higgins [2002] NTSC 65 and Trkulja v Yahoo Inc [2012] VSC 88.
The effect of the section has been described as ‘a difficult one to apply and its exact application in a given case is not easy even to a lawyer’.[50]
[50] Gillooly, supra, at [296].
The rationale for the section was described by Lord Reid in Lewis v Daily Telegraph.[51]
If some part of the damage is the joint result of the two libels … the plaintiffs ought not to be compensated twice for the same loss. It can only be dealt with on very broad lines.
[51] [1964] AC 234 at [261].
The Courts have chosen different methods of making allowance for other claims. In Marsden’s case, supra, the approach appeared to be to assess the damage suffered by the plaintiff as if both defendants were before the Court, and then apportion liability between them.
In O’Shane v Fairfax Publications, supra the Court was concerned with two separate jury trials. It said that ‘the juries must do the very best they can to ensure that the sum they award will fully compensate the plaintiffs for damage caused by the libel with which they are concerned but not to take account of that part of the total damage suffered which will be the other jury’s assessment’.
In Stevens v Mayberry, supra, and in Penfold v Higgins, supra, the respective Courts appeared to ‘allow’ for the other publications, without specifying the quantum, and then fixing a single sum.
In Thompson v Australian Capital Television, supra, Miles CJ examined the terms of a Deed of Settlement which were similar to the subject Deed. He said that, ‘all that can be gleaned from the ‘equivalent’ subsections is that it should be applied in a broad way with the object of preventing a plaintiff from receiving double compensation’.
In that case his Honour also faced a composite sum contained in the Deed. He said that it was necessary to use a broad axe approach to fix a figure which reflects the component of the relevant defamatory publication.
I was initially concerned about the question of the confidentiality of the terms of the Deed of Settlement and Release.
In Chapman’s case, supra, the Court said at [247]:
In some cases the agreement has been made on confidential basis; that fact could not stand in the way of my use of the material and the publication thereof if I considered that the requirements of justice so required. However parties should be encouraged to settle their differences and I consider that there is public interest in respecting the desire to preserve confidentiality so as to promote the advantages of private compromise. On the other hand parties must be aware that there are some circumstances in which their arrangements will become public if the dictates of open justice so require.
I do not need to detail all the terms of the Deed. It is plain that ‘JA’ and ‘CA’ agreed (on a commercial basis and with a denial of liability) to pay a total sum of $20,000 by instalments over 3 months, ending 6 November 2015.
In that Deed the first plaintiff and his wife irrevocably and unconditionally released ‘JA’ and ‘CA’ from claims by both the first plaintiff and the second plaintiff for alleged defamation; and by the first plaintiff against ‘JA’ for alleged assault. ‘JA’ and ‘CA’ also gave releases to the first and second plaintiff.
‘JA’ and ‘CA’ also gave various undertakings to the plaintiff.
It was a term of the Deed that each party must pay its own legal and other costs of the proceedings and in respect of the negotiation and preparation of the Deed.
In my opinion the claims by the first plaintiff against ‘JA’ and ‘CA’ for defamation relate to words having the same meaning as the words published by the first defendant.
On the first plaintiff’s case, they were made on 26 September 2013, within one day of the first defendant’s first publication and described the first plaintiff as being corrupt and one who had bribed the Council.
As at 26 September 2013 the first plaintiff was unaware of the first defendant’s defamatory publications.
I accept the first plaintiff’s submissions that the statements by ‘JA’ and ‘CA’ were of less significance, because they were not made to Council officers with whom the first plaintiff dealt. Further the recipients of the ‘JA’ and ‘CA’ statements were principally the first plaintiff’s family members.
It is extremely difficult to assess a sum representing the quantum agreed between the parties for the defamation claims when a composite figure was chosen by the parties. I do not accept the approach of the first defendant in ascribing the whole of the settlement sum to the defamatory statements, save for a $2,000 allowance for the assault claim.
I still need to do the best I can on the limited evidence to fix such a sum.
In my opinion, doing the best that I can, while notionally allowing for costs, the assault claim, and the other matters covered by the Deed, I will fix a sum of $5,000 as representing the allowance for the defamation claim by the first plaintiff.
·The apology dated 14 May 2016
Pursuant to s 36(1)(a) of the Defamation Act, evidence is admissible in mitigation of damages that the first defendant has made an apology to the first plaintiff.
It is trite that the terms of the apology and its timing are significant factors in relation to mitigation.[52]
[52] Carson v John Fairfax & Sons (1993) 178 CLR 44, Triggell v Pheeney (1951) 82 CLR 497 at [514], Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at [237-238].
In my opinion the weight to be given to the apology is finally balanced, and, in any event limited on the facts of this case. It is plain that the apology was given on the eve of the trial. For that delay the first defendant was rightly criticised by the first plaintiff.
However the first defendant did plead an offer to make amends in the second defence; and did admit the relevant publications in the third defence in March 2016. He also admitted the meaning of those published words as pleaded by the first plaintiff.
I am conscious of the fact that for various periods the first defendant was self-represented. The form of apology made it patently clear that there was no basis at all for the defamatory publications. I will make a modest allowance for that apology accordingly.
·Aggravated damages
It is trite that damages may be increased by the aggravating conduct of the defendant, where the conduct is ‘improper, unjustifiable or lacking in any bona fides’.[53]
[53] Carson v John Fairfax (1993) 178 CLR 44 at [71].
It has been said that ‘the more insulting or reprehensible the defendant’s conduct, the greater the indignity that the plaintiff suffers, and the more he should receive for the outrage to his feelings’.[54]
[54] Uren v John Fairfax (1966) 117 CLR 118 at [151].
Aggravated damages may be awarded to compensate the first plaintiff for the manner in which the defamatory matters was published and for the subsequent conduct of the first defendant.
In R v Thompson & HSU v the Commissioner of Police [1998] QB 498 the Court took into account the ‘high handed, insulting and malicious behaviour at the time the publication occurs’. It must be remembered that the award of damages is to compensate the first plaintiff and not to punish the first defendant.
Again this matter is finally balanced. There is no doubt as to the increased hurt to the first plaintiff’s feelings.
Against that I have had regard to the relatively limited number of individuals who became aware of the publications; the late apology, and the amendments to the third defence in March 2016. I also note that 4 of the publications were not proceeded with by the plaintiffs nor were the causes of action in harassment and private nuisance. At the time of the first publication the first defendant had only just been informed of Council’s decision to impose parking restrictions, and was clearly angry.

In my opinion this is not an appropriate case for increased compensatory damages to allow for the effect upon the plaintiff’s feelings from the first defendant’s conduct at the time of publication.[55] I accordingly do not allow any sum as aggravated damages.
·The damages
[55] See Stevens v Boyle [2012] SASC 232; Zareth v Williamson [2006] NSWCA 246; Cerutti v Crestside Pty Ltd [2014] QCA 33; Restifa v Pallotta [2009] NSWC 958.
In Broome v Cassell & Co Ltd,[56] Lord Hailsham said that ‘the whole process of assessing damages is essentially a matter of impression and not addition’.
[56] Cornwall v Rowan (2004) 90 SASR 369 at [805], [1972] AC 1027 at [1072].
While the Court is permitted to have regard to other awards of damages, they are in this case of limited assistance. The awards differ markedly in cases of even grossly defamatory publications involving professional people.[57]
[57] Rogers v Nationwide News (2003) 77 ALJR 1739.
While the first plaintiff has used his best endeavours to maintain his high reputation, and there was little evidence that others treated him differently, in my opinion the defamatory publications give rise to a presumption of damage greater than that capable of being established by witnesses.[58]
[58] Dow Jones & Co v Gunick [2002] HCA 56; Bristow v Adams [2012] NSWCA 166, and Cerutti v Crestside Pty Ltd [2014] QCA 33.
In my opinion the subject defamations by the first defendant are of a category which require a significant award of damages by way of vindication. This is because of the nature and gravity of the defamatory statements; the identity of the recipients and their professional relationship with the first plaintiff; the standing of the first plaintiff; and the fact that the suggested corruption by the first plaintiff was directed at the employees of the Council. See Lesses v Maras (No 2), supra, at [23].
Doing the best that I can on the evidence before me I assess compensatory damages for the first plaintiff against the first defendant for the subject three defamations and the republication of the first publication, in the sum of $47,500.
From that sum I deduct the sum of $5,000 in respect of the resolved claim by the first plaintiff against ‘JA’ and ‘CA’. I accordingly award damages to the first plaintiff in the sum of $42,500 against the first defendant.
Interest should run from the time of the first publication on 25 September 2013, at the rate of 2.5% per annum. While the first plaintiff notionally received the $5,000 between September and November 2015, I will fix a lump sum for interest.
I will allow a sum of $4,780 to the first plaintiff in respect of interest.
There will be judgment for the first plaintiff against the first defendant in the sum of $47,280 inclusive of interest.
I will hear the parties as to the question of costs; the question of the undertakings given by the first defendant on 17 May 2016, and any other relief sought by the parties.