Trantum v McDowell - [2007] NSWCA 138

No judgment structure available for this case.

New South Wales

Court of Appeal

CITATION: Trantum v McDowell [2007] NSWCA 138

HEARING DATE(S): 20 April 2007

JUDGMENT DATE:
15 June 2007

JUDGMENT OF: Beazley JA at 1; Tobias JA at 2; Bell J at 63

DECISION: (a) Leave to appeal granted upon condition that the claimant files his draft Notice of Appeal dated 19 July 2006 within seven days; (b) Appeal dismissed; (c) The claimant to pay the opponent’s costs of the summons for leave to appeal and of the appeal

CATCHWORDS: DEFAMATION - Publication – Generally – Republication – Where defamatory matter signed by recipients who then republish jointly with original author

LEGISLATION CITED: Defamation Act 1974
Strata Schemes Management Act 1996

CASES CITED: Davis v Resources for Human Development Inc 770 A.2d 353 (2001)
Dow Jones & Co Inc v Gutrick (2002) 210 CLR 575; [2002] HCA 56
Harbison v Chicago R.I & P Ry Co 37 S.W 2d 609 (1931)
Kyle Sandilands v Channel Seven Sydney Pty Ltd [2005] NSWSC 1250
Marble v Chapin 132 Mass. 225 (1882)
Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) ALR 217
Webb v Bloch (1928) 41 CLR 431
Willcocks v Howell (1885) 8 OR 576

PARTIES: Warwick Trantum
Darryl Wayne McDowell

FILE NUMBER(S): CA 40259/06

COUNSEL: Cl: S M L Littlemore QC / S T Chrysanthou
Opp: K P Smark

SOLICITORS: Cl: Carroll and Associates, Sydney
Opp: Larcombe Legal, Mona Vale

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 3706/03

LOWER COURT JUDICIAL OFFICER: Gibson DCJ

LOWER COURT DATE OF DECISION: 7 September 2004

CA 40259/2006

BEAZLEY JA
TOBIAS JA
BELL J
Friday 15 June 2007

TRANTUM v McDOWELL

FACTS

The claimant and opponent were both owners of units within the same apartment complex. The opponent was the Chairperson of the Executive Committee of the Owners Corporation of the Strata Plan for the complex.

The claimant wrote a letter making allegations against the opponent which were found to be defamatory. The claimant was found to have taken the letter to the owner/occupiers of other units within the apartment complex, several of whom signed it. The letter and signatures were then presented to the Executive Committee.

The primary judge found that the signatories were also recipients and awarded $50,000 in damages.

HELD, granting leave and dismissing the appeal:

1. There were two publications. The first was the publication of the letter by the claimant to each of the signatories. The second was its republication by all the signatories (including the claimant) to the Executive Committee. The fact that on its republication the signatories became joint tortfeasors with the claimant was irrelevant to its initial publication by the claimant to those who signed it.

Applied: Dow Jones & Co Inc v Gutrick (2002) 210 CLR 575; [2002] HCA 56; Sandilands v Channel Seven Sydney Pty Ltd [2005] NSWSC 1250

Distinguished: Davis v Resources for Human Development Inc 770 A.2d 353 (2001)

CA 40259/2006

BEAZLEY JA
TOBIAS JA
BELL J
Friday 15 June 2007

TRANTUM v McDOWELL

Judgment

1 BEAZLEY JA: I agree with Tobias JA.

2 TOBIAS JA: On 14 August 2003, the opponent filed an Ordinary Statement of Claim in the Defamation List of the District Court of New South Wales, alleging that on or about 28 January 2003 the claimant published to various persons a letter (the January letter) concerning the opponent which was defamatory of him (the matter complained of). At the time of the alleged publication of the matter complained of, the opponent was the owner of a unit in an apartment complex located in Crimea Road, Marsfield (the complex) and was Chairperson of the Executive Committee of the Owners Corporation of Strata Plan 36418. At the same time, the claimant was the owner of another unit in the complex.

3 A hearing by a jury pursuant to s 7A of the Defamation Act 1974 (the Act) took place in October 2004 in which the claimant did not participate and which proceeded in his absence. The jury found that the matter complained of conveyed four imputations which were defamatory of the opponent. They were as follows:

(b) The opponent seriously mismanaged the Owners Corporation of Strata Plan 36418 by incurring unnecessary and unwarranted expenditure of strata plan funds.

(c) The opponent provided sub-standard maintenance services at the premises for which he charged an inflated price to the owners corporation of Strata Plan 36418; and

4 In his defence to the statement of claim, the claimant essentially pleaded justification, qualified privilege at common law and pursuant to s 22 of the Act and unlikelihood of harm. The further hearing of the proceedings proceeded before her Honour Judge Gibson on 28 and 29 March 2006. Her Honour delivered judgment on 7 April 2006 in which she rejected each of the claimant’s defences and awarded the opponent damages in the sum of $50,000.00 in respect of which she entered a judgment and verdict. It is against her Honour’s orders that the claimant seeks leave to appeal. The summons for leave to appeal and the appeal were heard concurrently.

The decision of the primary judge on the issues raised in the appeal

5 In his summary of argument, the claimant confined himself to the following issues, namely that -

(a) the primary judge erroneously found that the matter complained of had been published to 16 persons;

(b) her Honour erroneously found that the publishers of the defamatory material were also recipients for the purposes of assessing damages to which the opponent was entitled; and

6 The January letter, which contained the matter complained of was addressed to the members of the Executive Committee (the Executive committee) of the Owners Corporation of Strata Plan 36418 (the Owners Corporation) and was signed by the claimant together with ten other unit owners within the complex including the claimant’s wife. Her Honour found that the matter complained of was published to a total of 16 persons, which was a very limited publication. Accordingly, the requirement for damages in defamation to bear some rational relation to the facts of the case meant that the damages awarded in the present case must be in the lower “register” by which I would understand her Honour to mean the lower range of damages. In this regard, she observed that the two most important circumstances to take into account in the assessment of damages in the present case was the limited extent of publication and the presence of features for which a claim was made by the opponent for aggravated compensatory damages.

7 On the issue of limited publication, her Honour said as follows (at [140]):

Gatley on Libel and Slander

Harbison v Chicago

Marble v Chapin

8 The primary judge then considered that there were strong features in the case pointing to an award of aggravated compensatory damages constituted by the bringing of the defence of truth on the one hand and the claimant’s conduct of the litigation on the other. In particular, with respect to the latter, her Honour found that the claimant conducted the case in the most combative manner possible including making allegations of criminality on the part of the opponent in correspondence directed to the Court which her Honour considered was an attempt to prejudice her against the opponent by asserting that he was under investigation and likely to be charged “soon” with criminal offences.

9 Her Honour concluded her judgment in the following terms:

“143. Accordingly, I should award damages at the top of the range appropriate for a publication where there are strong aggravating features but where the publication is extremely limited in extent and where the claim for damages is limited to vindication and hurt feelings.

144. Taking all of the above into account I accordingly award damages in the sum of $50,000. This is at the top of the range for a limited publication because of the strong aggravating features.”

The questions raised on the appeal

10 The claimant submitted that the appeal involved the following questions:

(a) whether her Honour should have accepted the opponent’s evidence that the matter complained of was published to six members of the Executive Committee of the Owners Corporation;

(b) whether her Honour erred in finding that the matter complained of had been published to those six members of the Executive Committee;

(c) whether her Honour erred in finding that the matter complained of had been published to the ten signatories to the January letter; and

(d) whether her Honour erred in awarding the opponent $50,000.00 in damages.

The first and second questions – was there evidence to support the primary judge’s findings of fact?

11 The first and second of the above questions can be dealt with together. The evidentiary basis for her Honour’s finding is to be found in the evidence of the opponent at T 32-33, the relevant part of which I set out below:

“SMARK: Q. Now in relation to that document you have that is that letter can you recall when you first saw that document?

A. Yes, in I believe it was late January 2003.

Q. Can you recall how you came to see it, did someone give it to you, did you find it somewhere, what?

A. Yes, yeah, it was delivered into the Owner’s Corporation letterbox at the Flanders complex and the secretary of the committee at the time retrieved it and showed to – well obviously not just myself but all the members of the executive committee because that’s who it was addressed to.

Q. Who was the secretary then?

A. Karen Reed was the secretary of the committee at that point.

Q. To whom, to your observation, was the letter shown?

A. To all members of the executive committee.

Q. Who were they, if you can recall? (no verbal reply)

Q. You can take that question on notice, we might come back to that.

A. Yeah --

Q. Just let that one sit in the back of your mind.

A. I’m not sure I could recall all of the members individually.

Q. Possibly how many were there?

A. From memory I’m quite sure there were seven members of the executive committee at the time.

Q. Did you observe those people to read the letter?

A. Yes, it was read and discussed at a subsequent executive committee meetings.”

12 The claimant submitted that the opponent’s evidence recorded above did not constitute sufficient proof that the January letter had been published to the members of the Executive Committee for the following reasons:

(a) None of the six members of the Executive Committee in question were either named in the letter or had been called to give evidence of that member’s receipt of the letter and that it had been read;

(b) That the whole tenor of the evidence in question was that it was hearsay; in particular, the answer to the second question of the exchange set out in [10] above was clearly hearsay which had infected the balance of the evidence so recorded including the last question and answer;

13 It is true that in the absence of waiver, in which both parties must join, hearsay evidence of publication to the six members of the Executive Committee would be inadmissible to prove their receipt of the matter complained of: Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) ALR 217 at 231-232. In the present case no question of waiver could arise given the absence of the claimant from the hearing when the evidence was adduced. However, the question is whether the admittedly hearsay answer to the second question of the exchange set out in [10] could be fairly said to have infected or carried through to the balance of the opponent’s evidence in that exchange. Prima facie the fourth question called for an answer based on the opponent’s own observation (“Did you observe…”). Had there been nothing further, his answer may have called for clarification given the possibility that the witness may have been reiterating what Mrs Reed had observed. But such a possibility has no application with respect to the last question and answer which was specifically directed to the opponent’s own personal observation rather than that of some third party of which he had become aware.

14 Accordingly, in my opinion there was no question of the last answer being infected by any prior hearsay answer. It provided direct evidence of the observation as to the receipt by the members of the Executive Committee of the January letter and of it being read and discussed by and between them. As it was therefore open to her Honour to accept that evidence it must follow that the first two grounds relied upon by the claimant to demonstrate error in her Honour’s fact finding with respect to the number of persons to whom the matter complained of had been published should be rejected.

The third question – the factual issue

15 The third basis upon which her Honour’s findings are challenged raises questions of both fact and principle. Her Honour found that the claimant requested a total of ten other people (including his wife) to sign the January letter. Although it was asserted that there was no evidence to support that finding, there was in fact evidence from a Mrs Valerie Parmer, (who was at the time the owner and occupier of a unit within the complex) in which she recounted that in the early part of 2003, that the claimant knocked on her door holding a clipboard. She then gave evidence that she opened the door to him and, when asked whether he said something, she responded:

“A. Yes, he said I want you to sign – would you sign this because – and I cannot recall the particular matter again because – and he said I want – this should be attended to and it hasn’t been. And I read what he was saying and I said, but that has already been cleared up by the CTTT, why are you rehashing this again? He stood back, he looked quite shocked. And I said, it’s already on the board, the committee have put it on the board that this matter is closed and then I don’t want to bring it up again.”

16 At T.49 Mrs Parmer was requested to look at the January letter and when asked whether she had seen that document previously, she said she had. She was then asked whether she could recall the reaction of the opponent to the letter, responding that he was “pretty upset about it” because “the contents of it was without foundation”.

17 Four questions later the following exchange occurred between her Honour and the witness:

”Q. Did you look at this document that he showed you when he came around, did you see if there were any handwritten signatures on it or anything or did you not look at all?

A. Yeah, there weren’t many, there weren’t many. And I don’t know who – I didn’t discuss it with neighbours or anything I just don’t know, there weren’t many, two or three from my memory. Because I remember thinking going along with this.”

18 The claimant sought to challenge the primary judge’s finding at [74] of her judgment that:

“a number of residents signed the matter complained of after having read it, indicating they had been persuaded by its contents”

“other residents read what the [claimant] had in the matter complained of and then signed it to indicate their support …”

19 It was submitted that there was no evidence to support those findings and, in particular, that the evidence which I have set out in [14] and [16] above did not fill the evidentiary gap for the following reasons:

(a) Mrs Parmer’s evidence went no further than establishing that on one occasion she was approached by the claimant with a request to sign the January letter and that at that time there were already two or three signatures on the document;

(b) However, there was no evidence that the claimant created the document, that is, that he was its author or that he was the person who sought and obtained the signatures of the two or three people who had already signed it when it was shown to Mrs Parmer;

(c) Further, there was no evidence that it was the claimant who sought out the signatures of the other seven or eight persons who had not signed it at the time it was shown to Mrs Parmer;

20 Two issues arise out of these submissions. The first is whether there was evidence to support a finding that the claimant was the author of the letter. Although there was no express finding by the primary judge that he was, it seems to be implicit in her finding (at [140]) that the claimant “asked a total of 10 other people (including his own wife) to sign the matter complained of” and from her conclusion (at [44] and [64]), after considering the history of the claimant’s correspondence and complaints relating to the opponent, that he “published the matter complained of”. I shall return to this issue below but shall assume for the purposes of the second issue that the evidence supports a finding that the claimant was the author of the letter, being a finding which the opponent requests this Court to make in his Notice of Contention to which I later refer.

21 The second issue is whether upon the basis of Mrs Parmer’s evidence, and upon the assumption that it is established that the claimant was the author of the January letter, it was open to her Honour to infer that first, it was the claimant who sought out each of the 10 signatures that ultimately appeared on the document and, second, that the persons who signed the document read it before they placed their signatures upon it.

22 In my opinion once it is accepted that the claimant was the author of the letter, the inference is available that it was he who sought support for its contents from other unit owners within the complex who would have an interest in righting the perceived wrong with respect to the activities of the Executive Committee of which he complained in the letter. Although the claimant submitted that the letter may have been given to other persons for the purpose of seeking out the signatures of other residents, this seems to me a highly unlikely scenario given the obvious interest of the claimant as author of the letter to obtain as much support for its contents as he could before it was presented to the Executive Committee.

23 In my opinion therefore, the inference is clearly open as a matter of probability that it was the claimant who sought out the signatures of those who ultimately signed it. Further, the inference is also open on the probabilities that before each of the signatories placed their signature upon the letter, as did Mrs Parmer when she was shown the letter by the claimant with a request that she sign it, each read it before signing.

24 Accordingly, on the basis that the claimant was the author of the letter, in my opinion it was open to her Honour to infer that it was he who sought out and obtained the 10 signatures to the document after each of the signatories had been shown the letter and had read it.

25 As I have indicated, the claimant submitted that there was no evidence to suggest that he was the instigator or author of the January letter or that he had “persuaded” the other signatories to adopt its contents by signing their name to it. During the course of oral argument counsel’s attention was drawn to [28]-[43] of her Honour’s judgment where she set out the background of the matter complained of and which included a history of the claimant’s complaints about the members of the Executive Committee in general and the activities of the opponent in particular. It was pointed out that it was possible that the letters which the claimant had written to members of the Executive Committee and a newsletter he had distributed following a meeting as well as a complaint which he had lodged with the Consumer, Trader & Tenancy Tribunal (CTTT), might well enable an inference to be drawn that he was in fact the author of the January letter.

26 The difficulty with which the Court was faced was that the original exhibits, the contents of which her Honour had recorded in her judgment, were not available and copies had not been provided in the White Book. It was suggested that it may be possible to draw an inference not only from the nature of the complaints made by the claimant in the letters and the documents referred to but also from the form of the documents themselves, that the January letter was the work of the claimant. However, it was indicated to the opponent’s counsel that if he wished to obtain an express finding that the claimant was the author of that letter, it would be necessary for him to file a notice of contention to that effect – a course which the claimant did not oppose.

27 Accordingly, at the conclusion of oral argument, the summons for leave to appeal and the appeal were adjourned part-heard to enable the relevant exhibits to be obtained and provided to the Court and for the parties to make submissions with respect thereto on the issue of authorship of the January letter. The exhibits were duly obtained and written submissions made with respect thereto. To those I now turn.

28 Exhibits C, D and E comprise letters written by the claimant in January April and May 2001 containing numerous complaints directed against the Executive Committee in general and the opponent, as Chairperson of the Executive Committee, in particular. According to the primary judge (at [34]), Exhibit D evidenced the claimant’s increasing anger with respect to the conduct of the opponent in that capacity. Exhibit D, being a letter to Ryde City Council of 8 May 2001, was highly critical of the opponent and a Ms Read who was the secretary of the Executive Committee.

29 Exhibits G and H are decisions of the CTTT dismissing applications made by the claimant on 19 February 2002 and 4 February 2003 respectively. In the first of these applications the claimant sought the appointment of a strata manager to exercise the functions of the Owners Corporation and in the second, an order for the proper election of the Executive Committee as well as the appointment of a suitable strata manager. The first application records that the claimant was making numerous general allegations of mismanagement, intimidation and incompetence against the Executive Committee of which, as I have said, the opponent was the Chairperson.

30 Exhibit J contains the claimant’s Notice of Grounds of Defence, Notice of Objection to Jurisdiction and a letter to the Registrar of the District Court bearing the claimant’s signature and dated 25 August 2003. In the first of these documents, the claimant relevantly pleaded as follows:

Defamation Act

…

12. The conduct of the [claimant] (and others) was reasonable in the circumstances.

13. The matter complained of by [claimant] (and others) the subject of the letter dated 28 January 2003 was in the interests of fellow owners/residents in the complex and was in good faith..”

31 The second of these documents contains the assertion that there

"has been no ‘publication’ by the [claimant]. Due process of enquiry to an Owners Corporation and the following of normal legal procedure is not in my view ‘publication’ “.

32 The third document in Exhibit J, the letter to the Registrar of the District Court dated 25 August 2003, asserted that the Court had no jurisdiction to deal with the opponent’s statement of claim as the January letter, being addressed “without prejudice” to the Owners Corporation, came within “the scope of the Strata Management Act and the CTTT Tribunal” and did

“not give rise, under any circumstances, in my view, within an owners corporation or within the premises of the same property to any action by any party in the complex (owners or resident) against any other party in the complex”.

33 The letter also contained the assertion by the claimant that the defamation laws were not intended to relate to persons living at the same address or in the same complex discussing issues of legality and matters relating to their mutual interest as a consequence whereof there had been no publication or republication by him.

34 Exhibit A is a letter from the claimant to the primary judge dated 2 December 2004 in which he asserts that a complaint, which he called “a communication”, within a complex such as that within which he resided, between owners and residents, an owners corporation and a strata manager, whether the complaint is verbal or in writing, was covered by absolute privilege. He further asserted that a communication within such a complex being complaints under the Strata Schemes Management Act 1996 was not a communication to a third party and therefore could not support a valid action for defamation. Accordingly, the claimant considered that there was no valid matter requiring an answer from him and that the proceedings should therefore be dismissed. He therefore advised her Honour that he would not be participating further in the proceedings.

35 Of some significance is Exhibit K (referred to by her Honour [at 47] as Exhibit A) which included a copy of the application by the claimant to the CTTT dated 4 February 2003. Paragraph 12 of the application form required the claimant to state the reasons for requesting the orders sought in the application (which was for a proper election of the Executive Committee and for the appointment of a suitable strata manager). The claimant responded to this paragraph by alleging that the current Owners Corporation and Strata Manager were not acting in the best interests of all owners in the complex and were generally running it down while levies were being spent on personal vendetta issues. He further asserted that the current Executive Committee election was not held in good faith. Of particular relevance was that the claimant referred to a copy of the January letter to which he attached to the application.

36 As the primary judge pointed out (at [47]), there was a substantial overlap between the content of par 12 of the 4 February 2003 application, the matter complained of as contained in the January letter and the matters raised in both the first and second applications to the CTTT.

37 The relevance of the foregoing as far as the primary judge was concerned was that it established malice on the part of the claimant. In that context she said:

”101. Essentially what these publications show is that the [claimant] continues to make the same allegations over and over. No amount of proof to the contrary, whether by reason of two CTTT findings or a meeting with members of the committee who are prepared to look into the matter in an objective fashion will convince him that what he is saying has no basis.

102. While I am satisfied that a substantial part of the dominant improper purpose was to attack the [opponent] by reason of prior hostility and ill-will I think there is a secondary motive which becomes quite clear when one reads the whole of the chain of correspondence. What is quite clear is that the target of the [claimant] is not merely the [opponent] but everybody who is a member of the Body Corporation strata plan executive committee. He wants to remove all of them, not simply the [opponent].”

38 Furthermore, when dealing with the defence of common law qualified privilege, her Honour described the language of the matter complained of as “extreme”. She continued (at [90]):

”…It is a smear of the [opponent] from beginning to end. Essentially what is asserted is that as a result of the illegal conduct of the [opponent] and others the [claimant] has had to set up an interim committee. The members of this committee are not named. The [claimant] demands that the current committee should immediately cease holding any meetings, paying any bills (except those authorised by the [claimant], cease to retain the services of the [opponent] to carry out repair work and warns that ‘failure to comply with the requests made in this letter will constitute offences against the SP’ and would result in consideration being given to non-payment of levies until a properly elected committee is installed.”

39 In my opinion, the evidence to which I have referred supports the inescapable inference that the claimant was the author of the January letter. I am of that view for the following reasons:

(a) The pattern which emerges from the claimant’s complaints with respect to the Executive Committee in general and the opponent in particular as set out in the Exhibits to which I have referred and which came into existence both before and after the January letter, is that they are expressed in the same extreme language as the matter complained of. Furthermore, the nature of the complaints contained in the claimant’s correspondence overlap with a number of the complaints contained in the January letter.

(b) There is no suggestion that what was clearly a vendetta by the claimant against the Executive Committee including the opponent was being conducted by anyone other than the claimant. This is apparent from his applications to the CTTT noting, in particular, that in his application of 4 February 2003 (only a week after the date of the January letter) the claimant attached that letter in support of his assertion that the Owners Corporation (meaning thereby its Executive Committee) was not acting in the best interests of all owners in the complex.

(c) Although the claimant in his Notice of Grounds of Defence pleaded that there had been no “publication” to the public or to third parties, the basis of that defence was that there could be no publication for the purposes of the defamation law where one resident within a strata complex “communicated” with other residents within the same complex: in such circumstances, so it was asserted, the “communication” was governed by the provisions of the strata titles legislation and the District Court had no jurisdiction. The point is that nowhere, in either the Notice of Grounds of Defence or the in the other documents forming part of Exhibits A and J, did the claimant assert that he was not the author of the January letter. In his Notice of Grounds of Defence he asserted (in par 12) that his conduct was reasonable in the circumstances and, in par 13, that

”the matter complained of by [the claimant] (and others) the subject of the letter dated 28 January 2003 was in the interests of fellow owners/residents in the complex and was in good faith.”

Both these paragraphs, at least inferentially, accept that the claimant was not only the publisher of the January letter but also its author.

40 There are two other matters which, in my opinion, support the conclusion referred to above. The first is that it is not insignificant that the first signature on the January letter is that of the claimant. The opponent submitted that that was consistent with his being the author of the document having taken it around for execution by the other signatories. The claimant submitted that it could equally be hypothesised that the fact that the claimant’s signature appears on the first line under the text did not establish that it was the first signature placed on the document. It was asserted that it was by no means uncommon for a joint publisher to be willing to sign, but not willing to be the first signatory.

41 I am not prepared to accept this last-mentioned assertion as fact. Common sense would indicate that the author of the document, seeking other signatures in support of its contents, would be the first to sign it as an indication to those whose signatures were being sought that he was prepared to put his own signature to the document.

42 The second matter relates to the form of the January letter when compared to the other correspondence of which the claimant was undoubtedly the author and which formed the history of his repeated allegations of misconduct against the Executive Committee and the opponent. In this respect the opponent submitted that the style of writing in each document was similar, as was their tone. In particular the claimant’s somewhat idiosyncratic use of quotation marks, which is to be found in all the documents in respect of which there is no challenge to the claimant’s authorship. Of greater relevance, in my opinion, is the claimant’s idiosyncratic use of parentheses liberally sprinkled throughout all of the correspondence of which he was the undoubted author including his newsletter (Exhibit F), and which is also to be found in the January letter.

43 The claimant submitted that there was only one instance of the use of quotation marks which could hardly constitute a stylistic characteristic which was common both to the January letter on the one hand and the other documentary evidence referred to on the other. I would agree. However, as I have observed, it is the liberal use of parentheses that provides a stylistic characteristic which is common to the documents authored by the claimant as well as the January letter.

44 When all these various matters are combined, the inference is overwhelming that the claimant was the author of the January letter and, therefore, of the matter complained of.

The third question – the issue of principle

45 The claimant submitted that as it was well established that a person will be responsible for the publication of defamatory matter if that person by his or her own acts or omissions either intentionally or negligently plays any role in the publication process, such a person cannot at the same time be the publisher of the matter complained of as well as its recipient. Reference was made to the well known passage in the judgment of Isaacs J in Webb v Bloch (1928) 41 CLR 431 at 364 where his Honour said:

“All who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication …”

Willcocks v Howell

46 It was further submitted that it had been held in the United States that a communication between four authors of a letter defamatory of the plaintiff each of whom signed and sent it to her, was not a publication by each of the authors to the others for the purposes of the law of defamation: Davis v Resources for Human Development Inc 770 A.2d 353, a decision of the Superior Court of Pennsylvania in 2001.

47 The judgment of the Court in Davis was given by Olszewski J who, at 358 said:

See Elia v Erie Ins Exchange

48 I would not be prepared to accept that the above passage from Davis governs the present case. First, the statement by his Honour that the communication in question between the four authors of the letter who signed it and the appellant was such that none of the authors was a third party for the purpose of the relevant principle relating to publication, has no application to the facts of the present case in that there was only one “author” of the January letter and that was the claimant.

49 Second, to the extent to which his Honour in Davis is asserting that as a matter of general principle signatories to a letter containing defamatory matter who are not its author cannot be a third party to whom that matter is published, such a proposition finds no support, as the opponent submits, in the standard defamation texts. As the opponent points out in his submissions, there is reference to the decision in Davis in Brown, The Law of Defamation in Canada, 2nd ed, Scarborough (1994) at p 7-58 where it is noted but without endorsement. On the other hand, as the primary judge observed in [140] of her judgment, there is a footnote in Gatley on Libel and Slander, 10th ed, Sweet & Maxwell (2004) para 6.1 noting the conflicting American decisions of Harbison v Chicago R.I & P Ry Co 37 S.W 2d 609 (1931) on the one hand and Marble v Chapin 132 Mass. 225 (1882) on the other, with the editors’ comment that the decision in the latter (which is contrary to Davis) was more in accord with principle than was the former. The editors of Brown at p.7-57 fn.261 note that Gatley favours the proposition in the text of Brown that there is no reason why defamatory remarks made about two persons in their presence, separately or together, should not be a publication to a third person for the purpose of each individual plaintiff notwithstanding “a respectable number of authorities to the contrary” such as Harbison v Chicago.

50 Third, as a matter of principle publication between tortfeasors may be sufficient for the law of defamation to be engaged. This would be so where the person who composed the defamatory matter publishes it to third parties who then agree to participate in its republication. The claimant ultimately conceded this. He accepted that the end points of the factual spectrum would be joint authorship of defamatory matter at one end and publication by A to B where B subsequently republishes the matter to C at the other. In the first example, each author could not be said to have published the matter complained of to each of his or her co-authors whereas in the second example there would be two publications notwithstanding that both A and B were joint tortfeasors.

51 It is a well established principle of the law of defamation that each publication or communication of defamatory matter constitutes a new and separate tort for which a plaintiff can sue and gives rise to a separate cause of action: Dow Jones & Co Inc v Gutrick (2002) 210 CLR 575; [2002] HCA 56 at CLR 600 [27], 630 [124], 652 [197]. The essence of the tort is the communication of the defamatory matter to a third party which is comprehended by the reader, listener or observer thus causing harm to the plaintiff’s reputation: Dow Jones at 600 [26], 630 [124]. Each time there is such a communication, the plaintiff has a new cause of action.

52 In Kyle Sandilands v Channel Seven Sydney Pty Ltd [2005] NSWSC 1250, Nicholas J accurately summarised the law in the following terms (at [21]):

”As each separate communication of defamatory matter is actionable, attention is necessarily directed to identifying the occasion on which the publisher made the communication and committed the tort of defamation. The tort will be complete when, by the communication of the defamatory matter in comprehensible form to another, damage to reputation is done.”

53 Accordingly, all that is required to complete the tort is the communication of the defamatory matter to a third party who comprehends it, in the case of written matter, by reading it. Translated to the present case, the tort was complete when the claimant showed, and thus communicated, the January letter to each of those who ultimately signed it after each had read it. Their signing of the letter was no part of the already completed tort and was relevant only to its subsequent republication by all signatories to the members of the Executive Committee.

54 There were, therefore, two publications. The first was the publication of the January letter by the claimant to each of the signatories. The second was its republication by all the signatories (including the claimant) to the Executive Committee. The fact that on its republication the signatories became joint tortfeasors with the claimant was irrelevant to its initial publication by the claimant to those who signed it. I would, therefore, endorse the submission of the opponent that where one person publishes material defamatory of the plaintiff to a third party, publication is then complete and it cannot be retrospectively undone simply because that third person then takes some step which may be regarded as adopting or otherwise conducing in the publication. Upon the primary judge’s findings, that is what occurred in the present case. The signing of the letter by the ten persons occurred after the matter complained of by the claimant was published to them and they had read it before signing it.

55 Fourth, although the respective rationales behind the undoubted principles that the publication cannot be complete by a defendant publishing defamatory matter to himself and that no publication arises merely by publication by a sole defendant to the plaintiff alone, are understandable, no secure footing was advanced to support a general principle to the effect that where a number of persons are sufficiently associated with the publication of defamatory matter as to be joint tortfeasors, it necessarily follows that there is no publication of the defamatory matter by one joint tortfeasor to the other or others.

56 The primary judge observed at [140] of her judgment that the circumstance that 10 residents of the complex who read what the claimant had written in the January letter and then had signed it to indicate their support for its contents, was a good indication as to why Gatley was correct in asserting that as a matter of principle where a defendant speaks words defamatory of A and B in the presence of both of them and no one else, there has been publication to each of the slander of the other.

57 However, the facts of the example in Gatley referred to by her Honour do not accord with the present case. Here the claimant wrote matter defamatory of the opponent and then published it to the ten signatories to the January letter who signed it (presumably) only in the presence of the claimant and no one else. In doing so, each adopted the contents of the letter and became a joint tortfeasor with the claimant and the other signatories when the letter with their signatures was published to and received by the members of the Executive Committee.

58 Thus, the claimant published the January letter to each of the signatories who then, together with the claimant, were party to its publication or republication to the Executive Committee. In my opinion, the present case falls at that end of the spectrum of possibilities where the claimant as author of the defamatory letter has published it to a number of third parties who, by then becoming signatories to the document, have implicitly authorised the claimant to republish it to the members of the Executive Committee being the persons to whom the letter was addressed. Although joint tortfeasors of the defamatory matter that fact does not in the circumstances disqualify the signatories to the latter as being persons to whom the claimant had published the matter complained of.

59 For the foregoing reasons it was therefore open to her Honour to have found that the claimant had shown the letter to ten other persons who read it and then signed it. Each of those ten persons may have been a joint tortfeasor but they were not sued and as her Honour correctly concluded, were each a third party to whom the claimant had published the matter complained of, albeit that they then adopted it.

The fourth question – the issue of damages

60 The final issue advanced by the claimant was that the awarding of damages in the amount of $50,000.00 was excessive. However, the basis of the claimant’s submissions on that issue was that her Honour had erred in finding that the matter complained of had been published to 16 persons, a fact which had influenced the amount of damages which she had awarded. However, once the claimant’s submissions with respect to that alleged error are rejected, then his challenge to the amount of damages awarded falls away. In this respect I note that there was no challenge to her Honour’s finding that the present was an appropriate case for an award of aggravated compensatory damages.

Conclusion

61 It follows from the foregoing that although leave to appeal should be granted given that the claimant has raised one matter of principle, nevertheless the appeal should be dismissed.

62 I would therefore propose the following orders:

(a) Leave to appeal granted upon condition that the claimant files his draft Notice of Appeal dated 19 July 2006 within seven days.

(b) Appeal dismissed.

63 BELL J: I agree with Tobias JA.

**********

Citations

Trantum v McDowell [2007] NSWCA 138

Most Recent Citation

Cases Citing This Decision

27

David v Abdishou [2012] NSWCA 109

Munro v Wheeler (No 3) [2025] NSWDC 3

Kermani v Seervai [2021] NSWDC 449

Cases Cited

4

Statutory Material Cited

1

Dow Jones & Co Inc v Gutnick [2002] HCA 56

Sandilands v Channel Seven Sydney Pty Ltd [2005] NSWSC 1250

Dow Jones & Co Inc v Gutnick [2002] HCA 56

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CITATION:	Trantum v McDowell [2007] NSWCA 138
HEARING DATE(S):	20 April 2007
JUDGMENT DATE:	15 June 2007
JUDGMENT OF:	Beazley JA at 1; Tobias JA at 2; Bell J at 63
DECISION:	(a) Leave to appeal granted upon condition that the claimant files his draft Notice of Appeal dated 19 July 2006 within seven days; (b) Appeal dismissed; (c) The claimant to pay the opponent’s costs of the summons for leave to appeal and of the appeal
CATCHWORDS:	DEFAMATION - Publication – Generally – Republication – Where defamatory matter signed by recipients who then republish jointly with original author
LEGISLATION CITED:	Defamation Act 1974 Strata Schemes Management Act 1996
CASES CITED:	Davis v Resources for Human Development Inc 770 A.2d 353 (2001) Dow Jones & Co Inc v Gutrick (2002) 210 CLR 575; [2002] HCA 56 Harbison v Chicago R.I & P Ry Co 37 S.W 2d 609 (1931) Kyle Sandilands v Channel Seven Sydney Pty Ltd [2005] NSWSC 1250 Marble v Chapin 132 Mass. 225 (1882) Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) ALR 217 Webb v Bloch (1928) 41 CLR 431 Willcocks v Howell (1885) 8 OR 576
PARTIES:	Warwick Trantum Darryl Wayne McDowell
FILE NUMBER(S):	CA 40259/06
COUNSEL:	Cl: S M L Littlemore QC / S T Chrysanthou Opp: K P Smark
SOLICITORS:	Cl: Carroll and Associates, Sydney Opp: Larcombe Legal, Mona Vale
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 3706/03
LOWER COURT JUDICIAL OFFICER:	Gibson DCJ
LOWER COURT DATE OF DECISION:	7 September 2004