Shepherd v Walsh and ACP Publishing Pty Ltd
[2001] QSC 358
•6 September 2001
SUPREME COURT OF QUEENSLAND
CITATION: Shepherd v Walsh and ACP Publishing Pty Ltd & Ors [2001] QSC 358 PARTIES: SONIA LOUISE SHEPHERD
(Plaintiff)
RICHARD WALSH
(First Defendant)
ACP PUBLISHING PTY LTD
(Second Defendant)
BREHMER FAIRFAX PTY LTD
GENERAL NEWSPAPERS PTY LTD and
DOUBLE BAY NEWSPAPERS PTY LTD trading as
“HANNANPRINT”
(Third Defendant)
ACP PUBLISHING PTY LTD and
CPH PROPERTY PTY LTD trading as
“NETWORK DISTRIBUTION COMPANY”
(Fourth Defendant)
ANTHONY DEAN PATTERSON
(Fifth Defendant)FILE NO/S: 49 of 1996 DIVISION: Trial PROCEEDING: Claim for damages ORIGINATING COURT: Supreme Court at Cairns DELIVERED ON: 6 September 2001 DELIVERED AT: Cairns HEARING DATE: 29-30 May 2001 JUDGE: Jones J ORDER: 1. Order that the first, second, third, fourth and fifth defendants pay to the plaintiff damages in the sum of $50,000 together with interest thereon at 10.25 per centum per annum from 1 November, 1995.
2. Order the fifth defendant pay to the plaintiff a further sum of $20,000 by way of exemplary damages together with interest thereon at 10.25 per centum per annum from 1 November 1995.
3. I order all defendants to pay the plaintiff’s costs of and incidental to the proceedings to be assessed according to the District Court Scale of Costs for actions in excess of $50,000.
4. I adjourn to a date to be fixed the further consideration the claim of the first, second, third and fourth defendants against the fifth defendant.
CATCHWORDS: DEFAMATION – SCOPE OF IDENTIFICATION – DAMAGES – photograph and text in a popular magazine – publication of unauthorised nude photograph of plaintiff – no consent for publication – no effective control on publication – imputations of promiscuity and deliberate exposure of genitalia – compensatory and exemplary damages COUNSEL: Mr. Favell with Mr. Philp for plaintiff
Mr. Applegarth for First to Fourth defendantsSOLICITORS: Bottoms English for the plaintiff
Robertson McCullough for the defendants
The plaintiff is a single woman, 31 years of age, who seeks damages for defamation consequent upon the publication of and concerning her a nude photograph and words alleged to be descriptive of the person in that photograph. She claims the publication was defamatory of her. The first second, third and fourth defendants have admitted that they published, or caused to be published, or assisted in publishing the photograph and words in the 1 November 1995 edition of the “The Picture”. Only these defendants were represented at the hearing to contest the plaintiff’s claim. No separate issue arises between them and for convenience they will hereinafter be referred to as “the defendants”.
The fifth defendant is alleged to have published the photograph to the other defendants for their republication. Where reference is required to the fifth defendant, against whom both the plaintiff and the defendants make claims, he will be referred to simply as “the fifth defendant”.
The words which were published with the nude photograph of the plaintiff were as follows:-
“SONJA: Hervey Bay, Qld
Age 22 and single with one girl ruggie,[1] Sonja rates her favourite things as Pet Shop Boys, tenpin bowling, Chicago Hope, spaghetti and getting smashed on tequila slammers at The Pie every weekend. Where did you score your weirdest root, Son?” “At the end of the jetty at high tide.” “Who would you like to get naked with?” “My next door neighbour.”
[1]The term “ruggie” in the patois of the magazine means “child”
These words are not apt to describe the plaintiff. She was at the time of the publication 26 years of age. She was married and had no children. She was then living in Cairns with her husband and did not visit “The Pie” (the Pialba Hotel) on any weekend. Nor was she asked the questions or provide the answers which are detailed above. The plaintiff at no time consented to the photograph being published. In fact she claimed for reasons which will be explained later that she was unaware that such a photograph had even been taken. In fact the photograph had been sent to the defendants by one Sonja DeVries who falsely represented that the photograph was of herself. Ms DeVries did this at the request of the fifth defendant as “a revenge on his ex-girlfriend” [the plaintiff].[2]
[2]Transcript p.166/25
The issues
The defendants and the fifth defendant admit that the relevant photograph was “of and concerning the plaintiff”[3].
[3]Defendants’ response to plaintiff’s notice to admit facts: Fifth defendant’s defence para 4 admitting para 12 of Statement of Claim – conceded thereby that the words were also “of and concerning the plaintiff”.
Though the defendants had not admitted the words pleaded in paragraph 12 of the statement of claim must be read in conjunction with the identifying photograph they raised no argument to any contrary effect. The layout of the photographs, the text and the numerical identification leads inevitably to the conclusion that the words were intended to be read as ‘of and concerning’ the person depicted in the photograph.
The defendants and the fifth defendant deny that the matter complained of is capable of defamatory and deny the imputations relied upon by the plaintiff are defamatory of her.
The defendants initially raised as a defence, non-publication by reason of their lack of knowledge that the words and picture was of a character likely to contain defamatory material but this issue was expressly abandoned before trial.
The issues therefore which were litigated and are now to be determined are:-
1. Whether the publication of the photograph and the accompanying words are defamatory of the plaintiff and, if so, the scope of the imputations;
2. The scope of the identification of the plaintiff as the person defamed; and
3. The quantum of damages.
Background facts
The plaintiff was born on 1970. When about 4 years of age her parents divorced. Her mother later remarried to a Mr. Graham Riley. The plaintiff lived with her mother and stepfather until after she had completed high school. Initially they lived in Sydney but in 1981 the family moved to the Hervey Bay area where her mother and stepfather have continued to reside ever since.
Between 1981 and 1988 when the plaintiff completed her year 12 education she attended three schools in the Hervey Bay area – viz, Pialba State Primary School, Hervey Bay High School and Hervey Bay Senior College. Consequently, the plaintiff was known in the region to a number of persons with whom she and her family associated during this period. During her last year of high school the fifth defendant was her boyfriend.
In 1989 the plaintiff moved to Brisbane to further her education at the TAFE College. She left this course after a year because she was unable to support herself whilst studying. She returned to Hervey Bay for a period before moving to Adelaide where she again met up with the fifth defendant and renewed the association which ultimately was to last only six weeks. The plaintiff was then 20 years old.
It was during this period that the offending photograph was taken. The plaintiff described the association with the fifth defendant was intimate and that is the reason a photograph was able to be taken of her whilst she was nude. She did not pose for the photograph and did not consent to it being taken . Rather she protested to the fifth defendant about his actions. The defendant, when pointing the camera in her direction, told the plaintiff that there was no film in the camera. He was simply using the flashlight in a jocular mood, to force her to get off the bed. The plaintiff, whilst believing the fifth defendant’s statement that there was no film, nonetheless sought to confirm this for herself by checking the camera. She was unable to do this because the fifth defendant had hidden it in a pack which he was to use in an upcoming camping trip. The plaintiff was therefore left in a position of having to accept the fifth defendant’s explanation. She had no actual knowledge of the taking of the photograph until she saw it published in the defendants’ magazine.
At or about the time of her association with the fifth defendant, the plaintiff applied to join the army. By the time she was accepted into the service, her relationship with the fifth defendant had ended. Whilst in the army the plaintiff met her husband-to-be, Dean Shepherd. They were married in October 1993. Before that happened however, the plaintiff was discharged from the army after suffering an injury to her knee in a training accident. Following her discharge the couple lived in the Hervey Bay region between September 1992 and August 1993, but then returned to Adelaide. After the marriage the plaintiff and her husband lived at Yeppoon for 1 ½ years and then in Cairns which is where she was residing at the date of the publication of the photograph in November, 1995.
The publication, the plaintiff claims, had an adverse effect on her marital relationship. In fact her husband left home for a few days after the publication. Thereafter, however, they continued to reside together but the relationship was strained. She describes her husband as being a suspicious person by nature and the effect of the publication was the loss of his trust of her, even though she had explained the circumstances in which the photograph was taken. Notwithstanding this discord, their daughter was born on 21 January 1997. But the marriage was doomed and the couple separated some 15 months later.
The plaintiff has now settled in a country town in South Australia which is approximately 2 ½ hours drive from Adelaide. She lives there with her two children and is engaged to be married to a man whom she met in late 1999. He has been made aware of the publication of the photograph and accepts the plaintiff’s explanation of the events and is supportive of her prosecution of this action.
The defendants’ publication is a picture magazine of a salacious bent. It is published monthly in Australia and New Zealand. The circulation figures for the 1 November 1995 edition were admitted to be 167,150 copies worldwide being 160,939 copies in Australia of which 51,131 copies were sold in Queensland. One minor issue that is raised on the pleadings is whether the magazine is published in New Zealand. In my view not much turns on the outcome of this discussion. However, by reason of the fact that the magazine carries a New Zealand price tag, I am prepared to infer that it is indeed published in that country.
The magazine consists mainly of photographs of naked women and crass, and essentially inane, stories relating to the photographs. It also contains advertisements which are likely to appeal to those persons attracted to the magazine. One section of the magazine is entitled “HOME GIRLS”. This section is given over to the publication of nude photographs of women who volunteer their photographs for this purpose. In return the woman whose photo is published is paid for her so consenting. Payment is on a sliding scale which at the time of this publication was $75 for every “Bad Girl” (where the subject’s face is covered up) and $150 for every “Home Girl” (where the face is not hidden). In addition further monetary prizes are paid if the photograph is judged to be “Home Girl of the Week” or “Home Girl of the Year” which appears to follow some further assessment of the value of the photograph for republication.
The plaintiff’s photograph has only been published on one occasion and on all the evidence is unlikely to ever be republished by the defendants who in fact claim they no longer have a copy of the photograph.
The fifth defendant in the latter part of 1995 commenced an association with Sonja DeVries. The fifth defendant provided to Ms DeVries the relevant photograph and persuaded her to send it to the defendants representing that it was a photograph of herself. The photograph was accompanied by a coupon taken from earlier publication of the magazine which has the following relevant terms:-
“Yes, I want to be a þ Home Girl ¨ Bad Girl (tick one). I hereby give THE PICTURE magazine the right to publish one of the enclosed photographs of me. I am over 18 years of age.
Any persons sending Home Girls’ photos without the written permission of the subject will be liable to criminal prosecution.
Name SONJA DEVRIES
Address 4/63 Newhaven St.
HERVEY BAY QLD Postcode 4655
Phone (include area code) (w) – 071)245628
Signature S DeVries
This form was accompanied by a letter setting out some of Ms DeVries personal details including relevantly that she was a 22 year old single mum of a 1 year old, that her favourite band was the Pet Shop Boys and her favourite drink, tequila slammers. The details in this letter appears to have been fleshed out by a subsequent telephone conversation with an employee of the defendants. The result then was the publication of the photograph and the words as set out in para graph [3] hereof.
No attempt was made by the defendants to authenticate by any independent means Ms DeVries’ claims that the photograph was indeed of herself. The defendants it seems, simply relied upon the deterrence of threat of liability to criminal prosecution to prevent this type of misrepresentation.
The magazine runs a corresponding section for males under the title “HOME BLOKES”. By contrast, the coupon for the submission of photographs of males must be accompanied by a copy of identification (e.g. driver’s licence) before being accepted. The risk of the facts being misrepresented to a publisher in these circumstances is obvious. Ms DeVries in her evidence said she was aware of a similar misrepresentation being made by another person.
Ms DeVries submitted the plaintiff’s photograph falsely representing it to be herself to assist the fifth defendant effect some revenge upon the plaintiff. Ms DeVries duly received payment from the publishers for her efforts.[4]
[4]Ex 14
Is the publication defamatory?
The definition of “defamatory matter” is contained in s 4 of the Defamation Act of 1889 (“the Act”). Essentially it is any imputation concerning a person by which the reputation of that person is likely to be injured or by which the person is likely to be injured in the person’s professional trade or by which other persons are likely to be induced to shun or avoid or ridicule or despise the person.
Section 5 of the Act deals with the means of publication. Section 6 makes it unlawful to publish defamatory matter unless that publication is protected or justified or excused by law. Section 7 provides that unlawful publication of defamatory matter is an actionable wrong.
The defendants do not here contend that the publication in question, if found to be defamatory, was protected, or justified, or excused by law.
The comparison between the relevant test for defamation in Queensland and that which applies at common law was undertaken by the Court of Appeal in McDonald v North Queensland Newspaper Company Limited[5] where the Court said:-
“Insofar as there is a potentially significant distinction between the Queensland and New South Wales [i.e. equivalent to the common] law for present purposes, it lies in the circumstance that the new South Wales test is arguably narrower than the test in this State, where it is unnecessary that the imputation be disparaging to be defamatory: see Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84. Plainly, it does not assist the appellant if the cause of action for defamation in Queensland is more extensive than that in New South Wales. In the present circumstances, however, the question is of no consequence; the cause of action for defamation in Queensland is at least co-extensive with that in New South Wales and, as stated above, the appellant has accepted the correctness of Ettingshausen.”
[5](1997) 1 QdR 62
In her statement of claim the plaintiff identified all together 17 imputations. The defendants contended that three of those (sub-paragraphs (h), (i), (j)) were not capable of bearing a defamatory meaning. Counsel for the plaintiff does not argue to the contrary but points to the other imputations which he contends have been made out by the circumstances.
I am satisfied that by any objective standard[6] that the publication of the photo and the accompanying words would be understood in a defamatory sense. The publication in my view carries most, if not all, the implications referred to in paragraph 14 of the statement of claim other than those referred to in sub-paragraphs (h), (i) and (j). In particular the imputation that the plaintiff was promiscuous; would expose herself to be photographed for the purpose of the photo being reproduced for reward in a magazine of the kind in question satisfied each of the characteristics in the definition of defamatory matter.
[6]See particularly Readers’ Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 per Brennan J at 505-6
I find therefore that the publication by the defendants in “The Picture” magazine of 1 November 1995 was defamatory of the plaintiff.
The scope of identification
The publication was brought to the notice of the plaintiff when she received a letter from her sister, Helen Jeppesen, in December 1995[7]. The terms of the letter evidenced some degree of estrangement between the plaintiff and her sister but it included the words:-
“We saw that photo of you in that girlie magazine and you call yourself a Christian. I don’t believe anything you say.”
The plaintiff caused enquiries to be made of another sister, Pauline Greirson, who identified the magazine which carried the photograph. The plaintiff was able then to order the magazine which she received on 29 December 1995[8]. She described her reaction to seeing the photograph in the following terms[9]:-
“When I saw the photograph in the magazine I was just shocked. I was just so upset and just shocked and upset and I wanted to commit suicide. I was just – totally just beyond belief just totally just very upset. I was totally disgusted with it and I just thought, “how could anyone do that to me”, cause I knew that I had never sent it in.”
[7]Ex 10
[8]Ex 1
[9]Transcript 33/12
The plaintiff went on to describe that when her husband saw it they argued, that he called her names and that he left home and stayed at a friend’s place for a couple of days.
The process by which members of the family came to know of the publication commences with Mr. Mark Douglas. He lived in Brisbane but previously had visited the plaintiff’s family at Hervey Bay on two prior occasions and met the plaintiff then. In November 1995 went on a fishing trip to Swain’s Reef in Central Queensland. He picked up a copy of the magazine to take with him. He identified the photo as being of the plaintiff in the course of the trip he brought the photograph to the attention of other members of the fishing party, one of whom, Mr. Calber, also knew the plaintiff.
On his return from the fishing trip he telephoned the Mr. Jeppesen to ask about the publication. At the time the Mr. Jeppesen was travelling by car to Brisbane and he received the call on his mobile phone. On his return to his work premises Mr. Jeppesen found a copy of the magazine in his employees’ staff room and identified the photograph as being of the plaintiff, his sister-in-law. He described his disbelief that the plaintiff would allow herself to be photographed in that way. He also described the fact that others of his employees were made away that the photograph was of the plaintiff.
The business carried on by Mr. Jeppesen was in partnership with a Mr. Burg. They were concrete contractors, working in the Hervey Bay region. The business employed five workmen who used a shed as a staff room. To this shed came other persons associated with the business, probably numbering 20 in all. In the shed there were a number of these magazines which were perused from time to time by those persons visiting the shed. Mr. Jeppesen identified other persons amongst his business contacts to whom he mentioned the publication who had become aware of it.
The plaintiff’s father Mr. Riley, at the relevant time, worked as a car salesman for Whittaker Holden at Hervey Bay. He became aware of the publication through other members of the family and found the magazine amongst a pile of similar magazines owned by a Mr. Peter (Pedro) Gormley. Mr. Gormley worked in the spare parts division of Whittaker Holden and was present at the time when Mr. Riley identified the photograph as being of the plaintiff. As a consequence Mr. Gormley became aware. Some 13 other employees had access to the pile of magazines in the spare parts division.
Hervey Bay is a city with a population of approximately 40,000 people[10]. The plaintiffs parents had lived there since 1981 and she herself had undertaken most of her schooling there. One of the schools had a student population of 600. Some of the inhabitants of Hervey Bay no doubt would know the plaintiff well, others only slightly and many not at all. There is no way of gauging with any degree of accuracy the scope of identification.
[10]Transcript 127/45
The fact that the subject of the publication was identified as coming from Hervey Bay was likely to arouse the curiosity of residents of that town who read the magazine. The fact that the name “Sonja” was used would focus attention on women of that name. It is difficult to know whether that fact would increase the likelihood of identification of the plaintiff whose name was “Sonia”. The reference to “The Pie” (the Pialba Hotel) would focus the attention of the patrons of that establishment.
The manner in which the magazine was available to and used by employees and visitors to Mr. Jeppesen’s work place was probably typical of many other such establishments. The following passage of evidence is illustrative –
“Not everyone who works with you reads it? –Yes, they do.
And that’s the five? Five employees? – five that work directly for me, and probably at least 20 others that come into – into the shed all the time. It’s the first thing they do, is make themselves a coffee and flip through the magazines on the table.
They – they flip though it? – If someone from Hervey Bay was on there, they’d make reference to it for sure, yeah.
Well you weren’t there anytime that anyone made reference to someone from Hervey Bay being in it? – yes, I’ve been there plenty of times there’s been more than Sonia, I think, in there.
But in this particular case, you weren’t there at any time when any of your five employees, until you told them to read about it, said, “Oh, someone from Hervey Bay here.”? – Yeah, Col Brishie brought it to my attention sort of after that, that ---“[11]
[11]Transcript 85/10-30
There is also the likelihood that persons who did make the identification would have drawn that fact to the attention of others. If the motive of the fifth defendant asserted by Ms DeVries in her evidence was revenge, then one would easily infer identification would not be left to chance in some circles. The identification is more likely to have been made in the Hervey Bay area and amongst persons of the plaintiff’s age group. The defendant makes the point that the photograph being some five years old may have presented the plaintiff differently to her appearance at the time of publication. That fact, in my view, would make her identification by residents of Hervey Bay more likely, because in those intervening years she had only resided in Hervey Bay area for a short period.
The identification of the plaintiff was much less likely in Cairns where she was then residing and in South Australia where she had lived in the years immediately preceding publication and where she lives now.
The defendants argue that they should not bear the responsibility for the actions of other persons who made the identification and then republished it. Mr. Applegarth of Counsel, appearing on behalf of the defendants referred me to Morgan v Odhams Press Ltd[12] and in particular to a passage of Lord Reid as follows (at p.1242):-
“It must often happen that a defamatory statement published at large does not identify any particular person and that an ordinary member of the public who reads it in its context cannot tell who is referred to. But readers with special knowledge can and do read it as referring to a particular person. A number of matters are not in dispute in this case. It does not matter whether the publisher intended to refer to the plaintiff or not. It does not even matter whether he knew of the plaintiff’s existence. And it does not matter that he did not know or could not have known the facts which caused the readers with special knowledge to connect the statement with the plaintiff. Indeed the damage done to the plaintiff by the publication may be of a kind which the publisher could not have foreseen.”
and at (p.1247) -
“This case had another peculiarity which I think the learned judge ought to have explained to the jury. Although “The Sun” has a very large circulation only a very few of its readers could have read this article as referring to the appellant – only those who knew the special facts proved in evidence. It was for the jury to judge how many that might be. No doubt there would be a few more than the six who gave evidence. But the jury ought to have been warned that it was only publication to those few that could have in any way damaged the appellant’s reputation and that they should bear that in mind in assessing damages. Failure to give that warning may well have caused the jury to assess damages on too wide a basis.”
[12](1971) 1 WLR 1239
For the plaintiff, Mr. Favell of Counsel, argued this phenomenon must be allowed for in the assessment of damages as part of the “grapevine” effect. He referred to a passage in Cassell & Co Ltd v Broome[13] which was cited in the decision in the New South Wales Court of Appeal in Crampton v Nugawela[14] and to a passage in the latter case from the judgment of Mahoney A-CJ at p.194:-
“This is the purpose of this aspect of damages (vindication) in defamation cases, as is evidence by what has been said in the Carson case; and in Cassell & Co Ltd v Broome[15]…
In this regard, “the grapevine effect” and the “lurking place” observation of Lord Hailsham are relevant the award must be sufficient to ensure that, the defamation having spread along “the grapevine” to which Ms McColl SC referred, and being apt to emerge “from its lurking place at some future date”, it was “sufficient to convince a bystander of the baselessness of the charge.”
[13](1972) AC at 107
[14](1996) 41 NSWLR at 176
[15]From Cassell & Co Ltd v Broome at p.1071 – “not merely can the plaintiff recover the estimated sum of his past and future losses, but, in case the libel, driven underground, merges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge.”
In the circumstances of this case there is evidence of the grapevine effect clearly occurring in the Hervey Bay area. This is to be distinguished from the deliberate republication by the plaintiff and members of her family. This occurred to a limited degree in the Cairns area where the plaintiff sought solace from her close friends in that city. It continues in the sense of the plaintiff having to tell her new fiancee of the publication and its background. These latter two occasions are not circumstances which diminish the plaintiff’s reputation but are necessary (and no doubt painful) steps to be taken by her to restore her reputation damaged by the publication. Nonetheless they are matters to which regard must be had in the assessment of damages. The court however is entitled to infer that others would have read (or seen the publication) with sufficient knowledge to identify the plaintiff. The evidence of Mr. Douglas shows that he made the identification unaided by any information other than his special knowledge of the plaintiff as the daughter of a friend. The right to draw such inference was acknowledged in Barbaro v Amalgamated Television Services Pty Ltd[16] - per Hunt J (at p.366):-
“….Once a witness was called who gave evidence of reading (or seeing) the matter complained of with knowledge of the relevant extrinsic fact, the jury could infer that others would also have read (or seen) it with at knowledge.”
[16](1985) 1 NSWLR 30 at 36E
There is the further effect that a magazine of this kind, being available for long periods in places such as workshops or barber shops. The plaintiff in her evidence recounts the effect on her of a confrontation with this risk at a friend’s home when she saw editions of this particular magazine in the friend’s toilet and was concerned as to whether that collection included the edition in which her photograph was published. The risk from this quarter, of course, diminishes over time. The publication frequency being weekly would suggest that such a risk would now have largely abated. Moreover, one would not expect that the plaintiff in her present appearance would be easily identified as the subject of that photograph taken 10 years ago.
Members of the family upon reading the words published in association with the plaintiff’s photograph did not accept the truth of the remarks save for the initial reaction of the plaintiff’s sister Helen . The plaintiff’s mother whilst not believing the comments, came to the conclusion that the plaintiff might still be in the Hervey Bay area. As was mentioned by Hunt J in Barbaro v Amalgamated Television Services the issue “is not whether the persons who identified the plaintiff as the person shown in the magazine reasonably believed that what was being said was true – rather, the issue is whether those persons reasonably concluded that the words were of and concerning the plaintiff whether they believed that the assertion was true or false”.[17]
[17]See Barbaro at p.37B
Knowledge on the part of the members of families or friends that the words accompanying a photo were false insofar as they purported to relate to the plaintiff is of course relevant to the issue of damages.
I find that the scope of the publication to be firstly amongst members of the plaintiff’s family, their friends and associates. This latter class includes members of the staff at the business of Mr. Jeppesen and the employees of Whittaker Holden. I find that there was publication to friends of the plaintiff in the circumstances referred to in paragraph 32-35 above. I infer that the publication was made to other members of the Hervey Bay community but no approximation can be given as to the likely numbers within this group. I infer also that there was a considerably smaller number of persons within the readership circulation to whom the plaintiff was known and who would have identified her in that photograph.
In circumstances where the plaintiff was not named in the publication it is this scope of the publication which determines the level of damages rather than such matters as circulation figures and the public display of the magazine enabling it to be read by others. For persons outside the various classes to which I have just referred they would simply have thought less of the person (if they thought at all) named Sonja and who fitted the description carried by the words of the publication.
Damages
The plaintiff seeks compensatory, aggravated and exemplary damages against the defendants and the fifth defendant. The defendants argue that against them the plaintiff has only made out a case for compensatory damages. They suggest however that a separate award might be made against the fifth defendant for aggravated and exemplary damages.
The damages claimed by the plaintiff are to compensate her, once and for all time, for injury to her reputation, her injured feelings and for vindication.
The loss of reputation results from the plaintiff being exposed to ridicule and from the imputations that she is a person who would expose herself for financial gain and that she was promiscuous.
The direct effect of this loss of reputation claimed by the plaintiff is the impact it had on the relationship with her husband. I have mentioned that his first response on becoming aware of the publication was to leave home for a few days. Thereafter the plaintiff claims there was not the same level of trust of her on her husband’s part. The plaintiff claims this was the main factor in the breakdown of the marriage[18].
[18]Transcript 57/30
Against that assertion there is evidence that the plaintiff and her husband did stay together until early 1999, more than 3 years after publication. They had a child together born in October 1997. There existed other explanations for the stress within the marriage – lack of acceptance of the husband by the plaintiff’s family, financial problems, demands of a new baby. I have difficulty accepting the plaintiff’s assertion that the marriage would have continued to the present time had the publication never occurred.[19] I do however accept the publication made the marriage more stressful for the plaintiff in the years immediately following publication and this fact probably hastened their separation.
[19]Transcript 49/15
The first response from members of the plaintiff’s family was from her sister, Helen as referred to in paragraph 30 hereof. This is another indicator of the loss of reputation. Also whilst the plaintiff’s mother knew the substance of the published words to be false she nonetheless engaged in a tour of nightclubs in Hervey Bay looking for the plaintiff in case she needed help. The impression I have is that at the time of the publication there existed estrangement between the plaintiff and her sister, Helen. The details of the cause of this were not disclosed but the terms of the letter makes clear that some ill-will was already present. More generally, it seems the plaintiff had not had any real contact with her family for some years. The explanation for this appears to be in the family’s disapproval of her husband or vice versa.
The family has now accepted the circumstances in which the plaintiff came to be photographed and how the photograph came to be published.[20] I do not accept that the publication in the long term has caused members of the family to regard her as “the black sheep”.
[20]Transcript 53/30-54/30
There is no direct evidence of any loss of esteem for the plaintiff amongst her friends and acquaintances and certainly none amongst those to whom the plaintiff turned for solace and support. Nonetheless, that group does not capture all the persons who were aware of the publication and the level of damages must reflect a component which will make allowance for the loss of reputation amongst other persons as well as for vindication for that loss.
The plaintiff is also entitled to compensation for “an actual grief and distress which she may have felt”, see McCarry v Associated Newspapers Ltd (No.2)[21]. I am satisfied that the publication caused the plaintiff considerable personal distress at the time it was first revealed to her and that distress continues to some degree. Her first reaction is described in paragraph 30 hereof. Her distress continues because the plaintiff had to tell her fiancee of the episode and remains concerned that the publication might come to the knowledge of members of his family and cause them to think less of her.
[21](1965) 2 QB 86 at 104
In my view, there is little likelihood now of the magazine being available for general viewing. If there are any collectors of this magazine it is unlikely that they would be able to identify the photograph. Any malicious republication by the fifth defendant or anyone else would not sound in damages against the defendants.
The plaintiff’s distress was exacerbated by the effect that the publication had on members of her family and the impact on their relationship with her. That it seems to me was a temporary effect but was, no doubt, very distressing at the time.
The plaintiff through her solicitors sought an apology by letter dated 29 February 1996[22]. In fact, that letter sought a retraction and apology, the withdrawal of the magazine from sale, and the publication of the retraction and apology in the next edition of the magazine. In her evidence the plaintiff said that she would not have wanted a publication of any apology in the defendant’s magazine but would have wanted an apology that could have been distributed as she required particularly to her family. In all events the defendants did not offer any apology until the close of the plaintiff’s cross examination. An apology in the following terms was made in open court –
“MR. APPLEGARTH: On instructions from my clients, who, you understand, are the first, second, third and fourth defendants, on their behalf I extend to you the following apology and statement:
That my clients accept that you didn’t consent to the photograph appearing in the magazine; they regret the distress and upset which the picture and words have caused you; and they unreservedly apologise to you.”
[22]See ex. 6
The publication at that time and in this form, the defendants argued was an offset to the suggestion that damages should be enlarged because the court proceedings necessarily caused a republication of the defamatory matter. To an extent this is correct but only in the sense that there was some balancing in public reporting of the proceedings. From the plaintiff’s point of view in having to give evidence she relived the distress which she felt at the time of publication. Her feelings in this respect I accept as being genuine and were evident during the course of her testimony.
In Carson v John Fairfax & Sons Ltd[23] the judgment of the majority (Mason CJ, Deane Dawson and Gaudron JJ) identified the three purposes to be served by an award of damages for defamation. They said (at p.60):-
“The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for 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.”
Their Honours also indicated that these purposes overlap considerably in reality and that the amount of the verdict is “the product of a mixture of inextricable considerations”[24].
[23](1992-3) 178 CLR 44
[24]Uren v John Fairfax & Sons Pty Ltd (1996) 117 CLR at p.150
In the same case Brennan J (at 69) cited Lord Radcliffe in Dingle v Associated Newspapers Ltd[25] as saying that a libel action “is fundamentally an action to vindicate a man’s reputation on some point as to which he has been falsely defamed and the damages awarded have to be regarded as the demonstrative mark of that vindication.” His Honour then went on (at p.71) to say:-
“Damages are awarded also for the plaintiff’s injured feelings including the hurt, anxiety, loss of self esteem, the sense of indignity and the sense of outrage felt by the plaintiff. Indeed, all those objective consequences and subjective reactions which flow naturally from the publication of the defamatory matter are relevant factors. Of course, the subjective reactions are often produced by the objective consequences of the publication. The two categories are not cumulative heads of damage but descriptions of kinds of intangible factors which must be taken into account in assessing damages.
Damages may be aggravated or mitigated by the manner in which the defamatory matter was published and by the subsequent conduct of the defendant. Conduct of the defendant from the time of the publication until verdict (including conduct at the trial, to which reference will be presently made) is relevant.”
His Honour also went on to observe that damages by way of vindication of reputation are not added to the damages assessed under other heads.
[25](1964) AC 371 at 396
To assist my deliberation in assessing damages respective counsel referred me to a large number of reported cases with awards ranging from $600,000 to $1,000. What is demonstrated by these cases is the significant disparity between cases decided in New South Wales and those decided in Queensland and between assessments made by juries and judges. I do not propose to deal specifically with these cases which the researches of counsel have identified for me save to say that I am guided mostly by the decisions in Queensland courts whether made by judge or jury.
Of particular importance in the assessment of damages in this case is the fact that the plaintiff was not identified by name in the publication and as a consequence the question of the scope of the likely identification of the photograph being of and concerning her is of particular importance. So too is the fact that the plaintiff does not point to any loss of an economic kind. In this connection, the most equivalent case (although with a different impact on reputation) is Kendell v The North Queensland Newspaper Company Limited[26] which concerned the defamation of the director of nursing of the Townsville Hospital by an article which suggested she had manhandled a psychiatric patient. The allegation was made at the time of a very public inquiry about the management of the hospital. The matron was not identified by name though it was proven that the description of her as “matron” would identify her not only amongst the hospital community but also to a range of persons in the general public. Of the hospital community those who knew the plaintiff personally did not believe that she behaved in the way alleged. However, they were only a small portion of those whom the jury, on the evidence, were entitled to accept, identified the respondent as the matron referred to in the article. At an earlier trial a jury awarded the plaintiff $35,000 for damages but on an earlier appeal against on the grounds of the inadequacy of this award a new trial was ordered and a second jury assessed the plaintiff’s damages at $60,000. In respect of the second award the Court of Appeal made the following comment[27]:-
“The generality of the evidence of the breadth of the identification left a wide range within which it was permissible for the jury to award damages. That makes the appellant’s case more difficult. It is not apparent that the jury failed to take any matter into account which they should have or took into account any matter which they should not have. There is nothing, apart from the amount of the verdict from which it could be inferred that they wrongly took into account matters which could be relevant only to aggravated or exemplary damages. The jury were properly and fully directed. And we do not think that the verdict, albeit high, went aside the permissible range having regard to the factors to which we have referred.”
[26](1994) Aust Torts Reports 81-272
[27]Ibid at p.61,285
Having regard then to all the features of the personal stress of the plaintiff, the impact on her, the damage to her reputation and the need to vindicate her reputation, I would assess her damages at $50,000 by way of compensatory damages.
The plaintiff seeks both aggravated and exemplary damages – the former on the bases of the defendants’ improper conduct, and their lack of bona fide’s based on the maintenance of the defence that the publication was not defamatory and particularly because of the defendants’ failure to offer a timely apology. The claim for exemplary damages is based on the lack of diligence on the part of the defendants in vetting the publication whilst being aware of the potential for a false publication to cause harm. The plaintiff asserts that the only control – a warning as to criminal liability – in accepting the photographs was grossly inadequate particularly having regard to the higher level of control imposed for the acceptance of photographs of males. The plaintiff relies again on the lack of apology as also being a consideration for the order for exemplary damages.
In Carson it was held that aggravated damages are “awarded to reflect conduct by the defendant which aggravates the injury and increases the harm done to the appellant, compensatory in nature and available both at common law and under the Act”[28]. The decision of the majority contains the following (at 66):-
“But, even then, we have difficulty in understanding how the mere absence of an apology can aggravate damages. Whereas publication of an apology may mitigate damage, thereby reducing the harm suffered by the plaintiff in a defamation case, and so reduce the damages awarded, the failure to publish an apology does not increase the plaintiff’s hurt or widen the area of publication. No doubt want of an apology may be a relevant factor in establishing that the defendant is motivated by a desire to injure the plaintiff but that does not mean that want of apology itself aggravates the plaintiff’s injury.”
[28]Carson v John Fairfax & Sons Ltd (supra) at p.50-51
In Triggell v Pheeney[29] the High Court considered this question of aggravated damages and made the following statement which appears to have taken on the status of a rule (at p.154):-
“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 is not merely bona fide but was justifiable or proper. The 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 Ltd 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, that there is a lack of bona fide in the defendant conduct or it is improper or unjustifiable.”
[29](1951) 82 CLR 497
There is nothing in the conduct of the action by the defendants or in its failure to make an apology on the conditions demanded by the plaintiff which evidences any malice on their part or any intention to aggravate the injury done to the plaintiff. The publication of an apology in a later edition of the magazine as requested by the plaintiff’s solicitors would simply have increased the scope of identification. The extent to which the plaintiff could have used a letter of apology if given at the time requested was quite limited. Perhaps it could have been shown to family and friends but those people did not need to convinced of the inaccuracies in the publication. I am therefore not persuaded to make any allowance for aggravated damages.
The basis upon which exemplary damages are awarded were set out in the High Court in Lamb v Cotogno[30]. Such damages can apply only where the conduct of the defendants merits punishment. This is to be considered where there is conduct showing a conscious and contumelious disregard for the plaintiff’s rights and to deter the defendant from committing like conduct again.[31]
[30](1987) 164 CLR 1
[31]Ibid at p.9 citing XL Petroleum ( NSW) Pty Ltd v Caltex Oil Australia Pty Ltd 155 CLR at 471
Applying this test, there is no evidence of any intention on the part of the defendants of interfering with the plaintiff’s rights. The defendants like the plaintiff were the victims of a cruel hoax. The plaintiff is the major victim because of the impact the publication has had on her life. The defendants are victims to the extent that they will suffer the consequences of the plaintiff bringing these proceedings. The fact that they left themselves open to being hoaxed by their failure to take sensible precautions to confirm the identification of the subject of the photograph does not in my view warrant the imposition of punitive damages.
The same does not apply however in respect of the fifth defendant. I accept the evidence of the plaintiff as to the circumstances in which the photograph was taken and the evidence of Ms DeVries as to how the photograph came to be submitted to the magazine. As a result I find that the fifth defendant -
(a) Took without permission and over her objection the photograph of the plaintiff;
(b) Lied about the existence of the photograph;
(c) Importuned Ms DeVries to submit the photograph of the plaintiff as being of herself;
(d) Insisted that Ms DeVries include the photograph in the category of the magazine where the plaintiff’s identity could be established;
(e) Engaged in the above conduct for the purpose of revenge on the plaintiff;
(f) In these proceedings, maintained a denial that the publication was defamatory.
The conduct of the fifth defendant was, in my view, contemptuous of the plaintiff and showed a contumelious disregard for her rights.
It is permissible in the terms of the apportionment legislation concerning joint tortfeasor to award exemplary damages against one defendant and not the others. See XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd[32]. This is a case in my view where specific additional culpability has been shown justifying an award of exemplary damages against the fifth defendant. An allowance of $20,000 punitive damages seems to me to be appropriate.
[32](1984-5) 155 CLR 448 at 459-460
Interest
The plaintiff seeks interest on the award of damages pursuant to s 47 of the Supreme Court Act 1995. A schedule of prescribed interest rates shows the following variation –
11.5% from 01.07.95
10% from 01.05.97
9% from 01.07.98
10.5% from 01.11.00
The application of an average rate of 10.25% over the whole period since publication on 1 November 1995 would do justice in the circumstances.
Orders
I order that the first, second, third, fourth and fifth defendants pay to the plaintiff damages in the sum of $50,000 together with interest thereon at 10.25 per centum per annum from 1 November 1995.
I order that the fifth defendant pay to the plaintiff a further sum of $20,000 by way of exemplary damages, together with interest thereon at 10.25 per centum per annum from 1 November 1995.
I order all defendants to pay the plaintiff’s costs of and incidental to the proceedings to be assessed according to the District Court Scale of Costs for actions in excess of $50,000.
I adjourn to a date to be fixed the further consideration the claim of the first, second, third and fourth defendants against the fifth defendant.
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