Simeone v Walker
[2009] SASC 201
•10 July 2009
Supreme Court of South Australia
(Civil)
SIMEONE & ANOR v WALKER & ORS
[2009] SASC 201
Judgment of Judge Withers a Master of the Supreme Court
10 July 2009
DEFAMATION - DAMAGES - GENERAL DAMAGES - ASSESSMENT
Markovic v White [2004] NSWSC 37; Smith v Dahlenburg [2008] VSC 557; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1, applied.
Carsen v John Fairfax & Sons Ltd (1993) 178 CLR 44; Allen v Johnston [2004] SADC 56, considered.
SIMEONE & ANOR v WALKER & ORS
[2009] SASC 201
JUDGE WITHERS. This action was initiated by a summons and statement of claim filed on 29 June 2006. In the action, the plaintiffs seek damages, including aggravated and exemplary damages, from the first defendant for defamation contained in an email sent by him to various recipients on 13 August 2005, which email was republished on several occasions. The plaintiffs’ action against the second defendant has been resolved by agreement. The plaintiffs discontinued their action against the third defendant. I am advised by counsel for the plaintiffs that no issue of double satisfaction arises.
Service of the proceedings was effected on the first defendant on 8 August 2006 and an address for service filed on his behalf on 19 October 2006. A defence was subsequently filed by the first defendant on 17 November 2006.
By an interlocutory application filed on 9 November 2007, the plaintiffs sought to strike out various paragraphs of the first defendant’s defence. A time was fixed for argument but before the argument was heard the solicitors of the record for the first defendant sought an order from the Court that they had ceased to act. Orders were eventually made on 13 February 2008 that the South Australian solicitors had ceased to act. On 26 March 2008 an order was made that the New South Wales solicitors, who had instructed those solicitors in South Australia, had also ceased to act. Directions were given as to service of those orders on the first defendant.
I will hereafter, for convenience, refer to the first defendant as the defendant.
On 23 May 2008 judgment was entered for the plaintiffs against the defendant by Sulan J and the action referred to a Master for assessment of the plaintiffs’ damages. Directions again were given as to service of the judgment.
On 16 October 2008 it was noted that the evidence to be called on the assessment of damages would largely be by way of affidavits. Directions were given about the filing and service of affidavits upon which the plaintiffs intended to rely and the matter listed for an assessment of damages. That date of hearing was altered on several occasions to accommodate difficulties experienced by the plaintiffs in having the necessary affidavits concluded and filed.
The matter came before the Court for hearing on 1 May 2009. I am satisfied from affidavits filed that reasonable efforts have been made to give the defendant notice of the hearing and to provide him with a copy of the affidavits upon which the plaintiffs intended to rely. The defendant did not attend and was not represented at the hearing.
In the amended statement of claim, it is pleaded that the first plaintiff was a person qualified and registered in Queensland to practise dentistry, including orthodontics. Further, it is pleaded that he was a person experienced in combined dental and chiropractic health management, including a discipline called chirodontics, that he was involved in the presentation of training seminars on these topics and in writing and publishing scientific articles. He was also pleaded to be a consultant from whom various other health care professionals sought advice and assistance. It is pleaded that he is an active member of various Australian and international associations, and the proprietor and operator of consulting rooms in Maroochydore, Queensland.
The second plaintiff is pleaded to have operated a business called Body Logic Australia, which was involved in the sale and distribution of chiropractic and dentistry diagnostic equipment throughout Australia. The business also involved the organising and conducting of training courses and seminars for dentists and chiropractors on the use of that equipment.
The defendant is pleaded to be a person from the United States of America involved in the teaching of combined dental and chiropractic health, namely chirodontics. He is asserted to be a person of significant reputation and exposure in that area.
The defamations and publications of which the plaintiffs complain are contained in a number of annexures to the amended statement of claim. All publications were by email. A transcript of the words published in the first email is contained in “Annexure A” to the plaintiffs’ statement of claim. The document records that it was published on 13 August 2005 at 11.56 am. “Annexure B” is a table of the recipients of the first email. The first email was published in New Zealand and all the states and territories of Australia save for the Northern Territory and Western Australia.
There was a subsequent, or second, email representing an exchange between Dr Trevor Baret, one of the recipients of the first email, and the defendant. A transcript of this email is “Annexure C” to the plaintiffs’ statement of claim. The document records that this occurred on 13 August 2005 at 4.41 pm. It was published by the defendant to Dr Baret.
There was a republication of the defendant’s email by a Dr Paul (the 3rd publication) and the further recipients of that republication are set out in “Annexure D”. This republication is recorded as having taken place at 12.47 pm on 13 August 2005.
A further, or fourth publication of the email occurred on 13 August 2005 at 10.43 pm by a Dr Mahony, who was a recipient of the first email, and who forwarded same to two additional people in New South Wales.
On 15 August 2005 at 10.45 am the second defendant, a Miss McArthur, republished the first email (5th publication) by forwarding same to a Dr Gerber in Queensland. The text of that email is set out in “Annexure E” to the amended statement of claim.
There was a further email arising out of the defendant’s email published by Dr Troy, a chiropractor (6th publication). The transcript of the words of that email, together with the table of recipients, are “Annexure G” and “Annexure F” respectively to the plaintiffs’ statement of claim.
For the purposes of efficiency, copies of Annexures A, C, E and G are attached to these reasons. Copies of the original emails are exhibited to the affidavit of the second plaintiff filed 19 January 2009 and admitted into evidence as “P1”.
I find that on 13 August 2005 the first defendant published the email, a transcript of which appears in Annexure A, to the recipients listed in Annexure B to the amended statement of claim. It was published to some 38 persons variously in South Australia, Queensland, New South Wales, Victoria, the Australian Capital Territory, Tasmania, and New Zealand.
It is pleaded in paragraphs 13 and 15 of the amended statement of claim, and I so find, that the first email in its natural and ordinary meaning meant and was understood to mean in respect of the first plaintiff:
13.1the first plaintiff deceitfully and maliciously reported the first defendant to immigration authorities for the purpose of keeping the first defendant out of Australia and increasing his own profile in the orthodontic profession;
…
13.3the plaintiffs deceitfully and maliciously spread rumours that the first defendant was on the run from authorities and that the first defendant was in prison;
…
15.1the first plaintiff dishonestly practises the discipline of orthodontics with no qualifications to so practice;
15.2the first plaintiff’s methods in orthodontics and orthopaedics are sub-standard and outdated because he attends almost no professional education courses in orthodontics or orthopaedics;
15.3the first plaintiff’s standard of care is so poor that he was required to leave a dental practice;
15.4the first plaintiff is incompetent and incapable of conducting his practice in that he does not interpret or assess his patient’s records and has no understanding of how to treat a complex case;
…
It was pleaded in paragraphs 13 and 15 of the amended statement of claim, and I so find, that the natural and ordinary meaning of the first email meant and was understood to mean in respect of the second plaintiff:
13.2the second plaintiff deceitfully and maliciously reported the first defendant to immigration authorities for the purpose of avoiding debts owed to the first defendant and increasing her business profits;
…
13.4the second plaintiff wrongly withheld payments from the first defendant for courses conducted by the first defendant in Australia in 2004;
13.5the second plaintiff is professionally incompetent in that she does not know how to use the equipment she sells or how to treat patients;
13.6the second plaintiff attempted to sabotage the first defendant’s email system.
…
15.5the second plaintiff unlawfully misappropriated the first defendant’s intellectual property.
In the second email, which is Annexure C and which I find was published to Dr Baret in New South Wales, further defamatory imputations are alleged, and I so find. The alleged imputations are pleaded in paragraph 20 of the amended statement of claim. They are as follows:
20.The second email in its natural and ordinary meaning meant and was understood to mean that:
20.1 the first plaintiff has acted so dishonestly and erratically in his professional affairs that he must be mentally unstable;
20.2 the second plaintiff is a pathological liar;
20.3 the second plaintiff wrongfully misappropriated the first defendant’s intellectual property;
20.4 the second plaintiff wrongfully withheld monies owing to the first defendant;
20.5 the second plaintiff has conducted herself in her professional affairs in a dishonest and sleazy manner;
20.6 by reason of the liabilities arising from her wrongful conduct, the second plaintiff’s business will be forced to close in the near future.
It is pleaded, and I so find, that the defendant’s original email was forwarded to some 24 recipients by Dr Paul who was a recipient of that original email - the third publication. Seventeen of those recipients received it for the first time. The persons to whom the further publication was made are named in “Annexure D” to the amended statement of claim. It is to be noted that the defendant’s first email invited recipients to forward the same to any others who the recipient “feel needs this information”. I find that the defendant is responsible for that republication.
I find that there was a further republication of the defendant’s email on 13 August 2005 by Dr Mahony to two extra persons identified in paragraph 26 of the amended statement of claim – the fourth publication. Dr Mahony had been a recipient of the first email. I again find the defendant to be responsible for that republication.
The second defendant, Ms Kaye McArthur, further republished the email on 15 August 2005 to an additional person, a Dr Gerber in Queensland – the fifth publication. The words of her accompanying email are set out in “Annexure E”. Again, as a recipient of the original email, and bearing in mind the invitation if not encouragement of the defendant to republish that email, the defendant must bear the consequences of that republication which republication was foreseeable.
I find that the words of the first email were adopted, and endorsed, by an email published on 22 September 2005 by the third defendant. I find that this email was published to 39 persons named in Annexure F to the amended statement of claim. Thirty-six of those 39 persons named were earlier recipients of the first email. A copy was sent to the email address of the first defendant and a copy to the email address of the second plaintiff. There was a publication to an unknown person referred to as Dave. It was pleaded, and I so find, that the publication of the Troy email was a foreseeable consequence of the defendant’s publication of the first email. It further defamed the plaintiffs by asserting that they had improperly reported to immigration authorities to prevent the defendant’s entry to Australia “for reasons that were malicious and worthy of contempt” – see paragraph 46.1 of the amended statement of claim. I find that the words of the Troy email, in their natural and ordinary meaning, conveyed that defamatory imputation.
The evidence put forward to support the assessment of damages was largely by affidavit. The second plaintiff gave oral evidence in addition. The evidence relied on by the plaintiffs was contained in five affidavits, namely:
(1)An affidavit of Lisa McAsey filed 19 January 2009, admitted as Exhibit “P1”.
(2)An affidavit of Ken Russell filed 22 January 2009, admitted as Exhibit “P2”.
(3)An affidavit of Rodney George filed 22 January 2009, admitted as Exhibit “P3”.
(4)An affidavit of the first plaintiff filed 22 January 2009, admitted as Exhibit “P4”.
(5)An affidavit of Peter Campbell, the solicitor for the plaintiffs, admitted as Exhibit “P5”.
The affidavits of Mr George and Mr Russell attest to their knowledge of the plaintiffs and their professional and business activity. They attest to their receipt of the first email from the defendant. Each attests to their understanding of the defamatory imputations contained therein. Both Mr Russell and Mr George in their affidavits attest that they understood the first email to mean:
13.1Dr Simeone deceitfully and maliciously reported the first defendant to immigration authorities for the purpose of keeping the first defendant out of Australia and increasing Dr Simeone’s own profile in the orthodontic profession;
13.2Ms McAsey deceitfully and maliciously reported the first defendant to immigration authorities for the purpose of avoiding debts owed to the first defendant and increasing her business profits;
13.3Dr Simeone and Ms McAsey deceitfully and maliciously spread rumours that the first defendant was on the run from authorities and that the first defendant was in prison;
13.4Ms McAsey wrongly withheld payments from the first defendant for courses conducted by the first defendant in Australia in 2004;
13.5Ms McAsey is professionally incompetent in that she does not know how to use the equipment she sells or how to treat patients;
13.6Ms McAsey attempted to sabotage the first defendant’s email system;
13.7Dr Simeone dishonestly practises the discipline of orthodontics with no qualifications to so practice;
13.8Dr Simeone’s methods in orthodontics and orthopaedics are sub-standard and outdated because he attends almost no professional education courses in orthodontics or orthopaedics;
13.9Dr Simeone’s standard of care is so poor that he was required to leave a dental practice;
13.10Dr Simeone is incompetent and incapable of conducting his practice in that he does not interpret or assess his patient’s records and has no understanding of how to treat a complex case;
13.11Ms McAsey unlawfully misappropriated the first defendant’s intellectual property.
Mr Russell continued in his affidavit to note his receipt of the second email from Mr Troy on 22 September 2005 and his understanding that, by sending that email, Mr Troy was adopting and endorsing the meanings of the first email. He understood from that email that the plaintiffs had improperly made a report to the immigration authorities to prevent the first defendant from returning to Australia for reasons that were malicious and worthy of contempt – see paragraph 15 of Exhibit “P2”.
In his affidavit – P4 – the first plaintiff noted that he had met the defendant in 1997 and had business dealings with him since that time. Dr Simeone recorded that he had been a qualified dentist since 1986. He described his work and experience in the field of combined orthodontic and chiropractic health systems. He noted his involvement in the presentation of training seminars on those topics from 2003 to 2008. He noted that he lectured at an annual chiropractic conference in 2005 in Missouri. He attested that in 2007 in Memphis, he was a guest lecturer at a prestigious conference on Craniofacial Surgery and Osteogenesis Distraction. Mr Simeone attested that he had written various scientific articles, and had acted as a consultant to other dental and chiropractic professionals. He attested that the persons to whom the emails had been addressed were those persons whose names appeared in the recipient tables annexed to the amended statement of claim. Those persons were individuals with whom he had done business or were potential clients or business associates.
In his affidavit at paragraphs 8 to 13, he set out the ways in which the publications affected him. He attested that he placed great value on his personal and professional reputation and that the defamatory allegations struck at the very heart of those values. They had caused, and continue to cause, him considerable concern both at a personal and professional level. They made him angry and upset. He has felt betrayed and belittled. Mr Simeone attested that he had made considerable contributions to the field of chirodontics. The emails undermined all those contributions. He attested that one of the consequences was to make him feel isolated in his work and distanced from professional colleagues. He is not able to identify any monetary loss definitely attributable to damage that has flowed from the publication of the emails, but believes that the publication would have had some effect on his business and his personal and professional reputation. He believes that his reputation has been diminished in the minds of his colleagues and acquaintances.
The affidavit of the second plaintiff Lisa McAsey – P1 – sets out that she first met the defendant in 1995 and had business dealings with him since then. She considered she knew him well. She noted that since 1985 she had been involved in the organising of training courses and seminars for dentists and orthodontists. She has used a business name, Body Logic Australia, since about 1997. This business was involved in the distribution of chiropractic and dentistry diagnostic equipment and the organising and conducting of training courses and seminars for dentists and chiropractors. She noted that all of the recipients of the emails were persons with whom she had either done business in the past or were potential clients or business associates.
Again, Ms McAsey places great value on her personal and professional reputation. Her business operates in a niche or confined market where she has to rely heavily on her reputation. Many of her clients are referred by word of mouth. The allegations made in the emails struck at the very heart of those values. She was upset and concerned upon receipt of the emails. In her oral evidence Ms McAsey said she was devastated by the publication of the emails.
As with Dr Simeone, she is unable to identify a particular economic loss attributable to the emails but believes that her business would have been affected. In paragraph 12 of her affidavit she says:
… I have no doubt that it has had effect on my business and personal and professional reputation. I have spoken to many clients who either read the Emails themselves, or have been told about it by others (but those people do not want to get involved in this litigation), and have expressed to me their concern about the veracity of Walker’s emails and his statements about me. Fortunately I have been able to rebuild my reputation with those clients. However, I am certain that there will be many others who may have believed the Emails, and thought ill of me, and who would not have bothered to check with me about the truth or otherwise of the statements in the Emails.
In her oral evidence, Ms McAsey expanded on her background and how she obtained her qualifications initially in physiotherapy, and subsequently in dentistry as a dental technician, and how she had developed her business. On returning to Australia from study in the United States of America she started a dental laboratory making plates used to straighten childrens’ teeth. This initial business gradually developed into a business arranging lectures and seminars for dentists and the provision of various dental supplies.
Ms McAsey had significant contact with the defendant between 1995 and 2005 and regarded him as a business acquaintance and friend. It was a professional business relationship. She commonly arranged some 10 to 15 courses for him to conduct in Australia each year. She would organise for him to come to Australia for a period of approximately three months to enable him to deliver these training regimes. The area of education was very specialised, essentially involving a combination of dentistry and chiropractic. The clients and delegates to those training courses were usually a very discrete group in the market of what were described as “high end dentists”. This was dentistry beyond “drilling and filling”. It involved craniofacial pain and the capacity of the dentist to treat that pain and to provide relief to the patient.
Ms McAsey attested that the first plaintiff had started attending the courses she organised from when they began in 1986 or 1987. As a result of his continuing attendance and development he eventually became a lecturer himself. She then represented him and organised training courses for him as well. She also organised courses and seminars for other lecturers and presenters from overseas, as this was a core part of her business. She noted that the original second defendant, Kaye McArthur, who was the author of one of the emails set out in the annexures, was a dentist from New Zealand and somebody she understood to have a close association with the defendant.
As to the issue of Dr Walker being refused entry to Australia for a short period by the Australian Immigration Department, she said that she had received a letter from that Department addressed to him in about October 2004. On receipt of that letter she telephoned Dr Walker and asked him if he wanted her to open and read it to him. He told her not to do that.
On the following morning she received an email from the defendant saying that he had been refused permission to board the aeroplane to travel to Australia. He later sent her an email advising that he had managed to get as far as New Zealand and that he was trying to sort out his visa problems. It took a further ten days for the defendant to obtain a new visa and arrive in Australia. During that ten day period it had been necessary for her to cancel the course organised for him because he wasn’t there to deliver it. She thereafter had no further dealing with the defendant prior to the first publication of the defamatory email.
Ms McAsey denied having any conversations or interaction with the Immigration Department about Dr Walker either before or after that time.
Ms McAsey then described the circumstances in which she became aware of the first email. It was forwarded to her by Dr Trevor Baret, who appears in the second email, on the day following its initial publication. When asked her reaction to the email she said:
I was horrified and I was embarrassed. I knew it was going to be big; I knew it was going to be something that a lot of people would read and a lot of people would talk about, just because of the niche market that it was. And that everybody – a lot of these dentists have study groups, so they would be meeting on a regular basis to discuss hard cases and I just knew it was going to – I felt – I was worried it was going to snowball and I was worried it was going to really affect my business. [see page 29 of the transcript.]
The second plaintiff said that she was particularly concerned about the allegations in the email that she was greedy and a thief and had stolen money, as her business was based on trust and relationship. Elsewhere she describes herself as being “absolutely shattered”.
Ms McAsey said that her business had involved servicing approximately a thousand professional dentists and chiropractors and that there was a core group of a hundred with whom she had a much stronger association. The recipients of the email were part of that group. After the publication of the email to Averil Crebbin by the Paul email she felt that her chiropractic clientele had disappeared. Ms Crebbin was the Chief Executive Officer of the Australian Chiropractors Association.
Other people had since spoken to her about the email and many had contacted her to discuss it. She described it as embarrassing and stressful. Her reputation for total honesty was of great importance to her business and herself. She dealt with high earning professionals who would not pay to attend courses from people they had not heard of unless they were prepared to accept her recommendation. She said in terms of its ongoing effect that:
… every time I am with a group of dentists at a craniofacial course, whether it’s mine or someone else’s or whether it’s here or in America, someone asks me about that – about the allegations that he made.
Again, it continues to be a severe embarrassment to her. It appears, and I so find, that the grapevine effect has occurred in relation to the published defamations.
I find that the plaintiffs enjoyed good reputations, both personally and professionally, prior to the first email. There was no evidence that put into question their honesty, integrity and professional competence. These are all areas that were challenged by the imputations reasonably flowing from the language of the emails.
I am also satisfied that each of the plaintiffs was severely embarrassed and hurt at the emails and their publications and were upset and angry.
Exhibit “P5” is an affidavit of Mr Campbell, the solicitor for the plaintiffs. Exhibited to his affidavit is a letter forwarded by him, on behalf of the plaintiffs, to the defendant on 9 September 2005 refuting the allegations in the email, drawing the defendant’s attention to his liability for republication, advising of legal proceedings, and requesting him to provide and publish an apology and retraction in the terms attached. There was no response to that letter. Exhibit “PAC-2” to the affidavit of Mr Campbell, is an affidavit of service proving service of that letter personally on the defendant.
It should be noted that the email from Dr Trevor Baret setting out the exchange between him and the defendant on the day of the original publication should have alerted the defendant to the fact that his assertions were out of character with the known character of the plaintiffs, and afforded him the opportunity to reflect on its content such that an apology or retraction could readily have been made. In any event, neither of these efforts produced any response from the defendant.
One of the features of email is the ready facility that it provides to communicate with the addressees of earlier emails. Similarly, it provides a capacity to publish information, or allegations, to selected recipients almost instantaneously. The failure by the defendant to utilise this facility, so readily available to him, to retract his assertions and to apologise, is a matter to be taken into account in the assessment of damages.
Mr Campbell attested in his affidavit – P5 – that the second plaintiff instructed him that she had on 8 August 2006, received an email from John Radke who was the President of Bioresearch, a major client of the second plaintiff – see exhibit “PAC3”. In that email Mr Radke asked Ms McAsey whether there was any truth in an email sent to him on 7 August 2007 by the defendant. In his email of 7 August 2007 the defendant had advised Mr Radke that the plaintiffs were going to attempt to sue him for defamation in Australia and listed various witnesses who would be required for legal testimony. He did not say whether such testimony was required by him or by the plaintiffs.
As Mr Radke was a Chief Executive Officer of a major supplier to the second plaintiff, a copy of the defendant’s email was forwarded by him to the second plaintiff for her response. It is clear from the content of that email, exhibit “PAC-3” to the affidavit of Mr Campbell, that the defendant in no way sought to apologise for or retract his defamatory statements.
These communications led to an email letter to the defendant from the plaintiffs’ solicitors on 5 September 2006 expressing concern about the defendant’s publication to Mr Radke and seeking undertakings and apologies from him for the plaintiffs. No response was received. His failure to respond was unreasonable and is a matter to be taken into account in assessing damages.
The assessment of damages in this matter falls to be determined under the common law as the relevant publications occurred before the commencement of the Defamation Act 2005 (SA). I note that in a similar matter in the Supreme Court of New South Wales, Markovic v White [2004] NSWSC 37 at [19], Levine J said:
[19] … one still approaches the task of the assessment by reference to the fundamental principle that the award of damages in a defamation action operates as a vindication of the plaintiff to the public, as a consolation for the wrong done to the plaintiff which includes both injury to feelings and damages to reputation: Carson v John Fairfax & Sons Ltd[1993] HCA 31; (1993) 178 CLR 44 at 60; see also Uren v John Fairfax & Sons Ltd [1966] HCA 40; (1966) 117 CLR 118 per Windeyer J at 150; John Fairfax & Sons Ltd v Kelly(1987) 8 NSWLR 131 per McHugh JA at 142.
At [20] to [22], his Honour said:
[20] It was submitted in this case that vindication is a very important element so that at any time in the future the plaintiff can point to the sum awarded as demonstrating the utter falsity of the allegations made against her: see Carson, supra, at 61 per Mason CJ, Deane, Dawson and Gaudron JJ.
[21] As was submitted, the present case is concerned with emails which, given their content and ease of communication, may remain in circulation for the indefinite future. It is thus even more important for the plaintiff to be able to point to the sum awarded to “convince a bystander of the baseness of the charge” in case “the libel, driven underground, emerges from its lurking place at some future date” (see Hailsham LC in Broome v Cassell[1972] UKHL 3; [1972] AC 1027 at 1071).
[22] In this type of case one is acutely concerned with the application of Lord Atkin’s famous dictum in Ley v Hamilton (1935) 153 LT 384 at 386: “It is impossible to track the scandal, to know what quarters the poison may reach”; see also Diplock LJ at 1125 in Broome v Cassell, supra.
This defamation was published to a group, or class of people, in a collegiate community of which the plaintiffs and their businesses were part and in which their professional reputation was of great importance, namely dentistry, orthodontics, chiropractic, chirodontics, and dentistry and orthodontic diagnostic supplies. It can reasonably be said that the publication to these persons was likely to have had higher than usual impact because the source of the defamation was a person of high reputation in that same community whose word was likely to be given more weight than that of an unknown.
In her evidence, Ms McAsey attested that she no longer retained any chiropractors as clients. This was a significant difference from her practice prior to the publication of the defamation.
In the matter of Smith v Dahlenberg in the Supreme Court of Victoria [2008] VSC 557, Beach J said at [20]:
The principles concerning the awarding of damages in defamation cases are conveniently summarised in the judgment of Gillard AJA in Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at 76, 377 et seq. It is not necessary to set them out in any detail here. Compensatory damages are awarded as a vindication of the plaintiff’s reputation, reparation for the harm done to the plaintiff’s reputation and consolation for the distress, upset and injury to the plaintiff’s feelings occasioned by the publication (see also Cassell & Co Ltd v Broom [1972] AC 1027 at 1070-1071). In this case, there are matters to be taken into account in aggravation. The defendant’s conduct from the time of the publication of the first letter to the present has aggravated the damages. In this regard I refer to the matters that I have set out above in relation to the issue of malice.
His Honour then goes on to refer to the “grapevine” effect and it seems clear from the evidence of Ms McAsey that this effect has applied in this particular matter.
In the matter of Herald & Weekly Times v Popovic (supra) Gillard AJA (with whom Winneke AJA and Warren AJA substantially agreed on these issues) at paras 379 to 386 discussed the principles applicable to an award of aggravated damages. His Honour adopted the statement of the law by Brennan J in Carsen v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 71 where Brennan J said at [20]:
Damages may be aggravated or mitigated by the manner in which the defamatory matter was published and by the subsequent conduct of the defendant Triggell v Pheeney (1951),82 C.L.R, at p. 514. Conduct of the defendant from the time of publication until verdict (including conduct at the trial, to which reference will presently be made) is relevant Praed v Graham (1889), 24 Q.B.D. 53, at p.55.
At [385] Gillard AJA noted:
The amount awarded for aggravated damages is not a discrete head of damages. The tribunal determining the compensatory damages includes the amount for aggravated damages in the sum awarded (see Carson’s case, at 72).
At [416] to [420] of his judgment Gillard AJA considers exemplary damages. At [419] his Honour says:
The principles have recently been summarised by the High Court in Gray v Motor Accident Commission (1998) 186 CLR 1. The court emphasised that exemplary damages are rarely awarded, that an award is concerned to punish the wrongdoer and deter others from like conduct and the principal focus is upon the wrongdoer and not upon the party who was wronged. The court emphasised that the remedy is exceptional in the sense that it arises chiefly if not exclusively in the cases of conscious wrong doing in contumelious disregard of the plaintiff’s rights.
The defendant has failed to apologise and retract in circumstances where he was expressly asked so to do following a detailed letter from the solicitors for the plaintiffs. The issue of the correctness of his assertions was put to him by the email exchange with Dr Baret on the very day that the email was originally published. In my view, the conduct of the defendant in that failure is improper and unjustifiable. It demonstrates a lack of good faith that should be taken into account in considering aggravated damages.
The evidence is such as to support a finding that the email was published with malice and that the defendant has since been dismissive of the plaintiffs’ concerns. The defendant’s malice is demonstrated by the terms of the publication, the defendant’s request that the same be forwarded to other persons, and his refusal to respond to the request for an apology and retraction, or to the matters put to him in the email with Dr Baret. It is also evidenced by his dismissive attitude to the plaintiffs’ proceedings demonstrated by his email to Mr Radke, and his generally dismissive attitude to the proceedings evidenced by his failure to participate and respond.
I have been referred to the outcome of the matters of Markovic v White (supra), Smith v Dahlenberg (supra) and Allen v Johnstone in the District Court of South Australia [2004] SADC 56. In my view, the circumstances of this matter are very similar to those before the Court in the matter of Markovic v White. The importance in a professional sense of the group to whom the email was published, the status of the author of the publication and the multiple imputations made in the email and in its republication, in my view, justify substantial damages including aggravated damages. However, I am not satisfied that any claim for exemplary damages has been established.
In respect of the first publication I award each plaintiff the sum of $130,000.00 including aggravated damages. Such an award is sufficient to vindicate the plaintiffs and to console them for the distress, upset and injury to their feelings accorded by the first publication. It reflects aggravated damages justified by the defendant’s conduct from the time of the publication to date. It reflects the ongoing nature of email communications.
In my view, the second publication was more defamatory of the second plaintiff than the first. Its publication was limited. I assess damages for the second publication in an amount of $15,000.00 for the second plaintiff and $7,500.00 for the first plaintiff.
The third publication by Dr Paul was to some 17 new recipients. Each plaintiff will be awarded the further sum of $20,000.00 in respect of that publication.
As to the fourth, fifth and sixth publications there will be a further award of $10,000.00 damages to each plaintiff in respect of each of the said publications.
Interest should run from the time of the first publication, namely 13 August 2005, at the rate of 2.5 per cent, bearing in mind the approach to the setting of interest in matters of this type. I therefore award an amount of $18,000.00 to the first plaintiff for interest and $18,725.00 to the second plaintiff in respect thereof.
There will be judgment for the first plaintiff in the sum of $205,500.00 inclusive of interest. There will be judgment for the second plaintiff in the sum of $213,725.00 inclusive of interest. The defendant is to pay the plaintiffs’ costs. I certify fit for counsel.
“ANNEXURE C”
Transcript of words published in the Second Email
First Defendant Hey Trevor
It is a shame that you felt the need to tell me about these rumours, as I have not heard any of them before.
Dr Trevor Baret It’s a shame that I have to even deal with the rumors! I take it you were not at Brock’s course? First Defendant I have had at least 10 e-mails this week asking if there were true. Was I “wanted by the FBI” and on the run?
These all came directly from Lisa and Tony this month!!!
Dr Trevor Baret This is despite the fact that I have kept in regular communication with both Lisa and Tony, who you blame for spreading these rumours.
I knew only that –· there was some sort of Visa problem – which you have confirmed
· I can expect to see you back in Australia when it is sorted out – which I sincerely hope will be the case …
First Defendant Lisa is actively doing everything she can to keep me out, but it isn’t working … Dr Trevor Baret As you know, Lisa is a long term friend of mine, and what you have accused her of doing will not change that. The fact that she has said nothing of this sort to me, in our various discussions, suggests to me that you may have been misinformed about the source of the rumours which you say are spreading. I, for one, have not heard any of these rumours which you attribute to Lisa and Tony, until I read your message a few minutes ago. First Defendant I was refused my Visa renewal based on “confidential information received from their “anonymous tip line”.
I sued the Immigration department based on freedom of information act, and finally received by entire file.
They have received at least 10 documents directly from LISA! And these documents were available from no where else. They received confidential e-mails, Stuff from the forum (traced to Lisa’s login) Lisa was the only one who knew the time period that my visa was wrong, and somehow they have that, as well as brochures of courses from that period. Gee Trevor, how did they just stumble on that info. Lisa is such a pathological Liar! I can’t believe it either, except that it is sitting here in front of me in Black and White!
Dr Trevor Baret Tony is an acquaintance of mine – I would not yet regard him as a friend. But my experience with him suggests to me that he is neither deceitful nor malicious. As you sure you have the right information? First Defendant Tony was telling everyone that I was under arrest and that he was now taking over all Chirodontic courses in Australia, this was confirmed by Lisa! Tony is basically schitzophrenic. QWe saw that when he was in the office too many times. Dr Trevor Baret Regardless of any of this, I remain a loyal supporter of Bob Walker and Chirodontics. I also remain a loyal supporter of Lisa McAsey and Bodylogics Australia. First Defendant Do you realize that I have had a registered company called Body Logic Resources for over 10 years!!!
She couldn’t even show the class to at least start a company with a new name. Instead she has had to steal mine, and my logo! (bought and paid for in 1998)
She has been telling everyone that I owe her money, and yet when I had someone else do the books, she owed me a VERY LARGE AMOUNT. Suddenly she referred us to her attorney …I was never paid for the last 6 courses and 10 BioPaks! And you’re giving her more???
Do you remember Lisa before I have her a life? You’d think there would be just a little gratitude.
I have always told her I had no problem if she wanted to stop doing the courses and go off on her own. All I asked is for her to do as to be honest and I would help her. For her to be this sleazy is unforgiveable. Friends have been warning me of her intentions for a while, but I wouldn’t believe it.
Dr Trevor Baret Despite your differences with Lisa, I hope that you can accept my position. I choose not to be drawn into any bickering which is none of my business. First Defendant Only if you ever want to see Chirodontics in Australia again. Because Lisa is the one trying to stop it!
But hey, that’s your call.
Dr Trevor Baret I look forward to seeing you again at more of your courses, and I would like to offer some further input to the Chirodontic paradigm and I continue to learn from the treatment of my patients. Try to enjoy your “sabbatical” and come back, when the visa is sorted out, with a new fire to improve on the education you have given in the past. First Defendant I’m keeping very busy with courses in the US and Europe right now, and New Zealand in Nov. and Feb. Then I’ll see if it is worth it.
I have been trying to sit back and not do anything, but tafter his last month of bullshit spreading and then receiving these documents, sorry, the glove are off.
If the lawyers are correct, Lisa will be out of business soon. Hope she’s been saving up for a raining day! Cause it’s about to
rain a shitstorm! Dr Trevor Baret I hope that both you and Kaye are keeping well – but I suspect that it is difficult to enjoy a relationship long distance. First Defendant Kaye has been here most of the time. I’ll see her for a couple weeks starting next weekend, then she’ll be over here and with me in Europe for October. It sucks a bit, and I would be there right now if not for these documents sent by LISA! Sorry, it’s black and white and she’s totally lieing to everyone and has been since she started this plan last July. (maybe earlier but I was trusting).
Lisa is very good at the old “poor me” pouting. Too bad it works on you. I’m over it. (but very pissed off).
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