Tropeano v Lauro

[2010] SADC 113

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

TROPEANO v LAURO

[2010] SADC 113

Judgment of His Honour Judge Beazley

27 August 2010

DEFAMATION - PRIVILEGE - QUALIFIED PRIVILEGE - REBUTTAL OF PRIVILEGE BY MALICE

PARTICULAR STATEMENTS - IMPUTATIONS

Plaintiff's claim for damages - statements in facsimiles published by the defendant to the plaintiff's client critical of the capacity of the plaintiff to act as a legal practitioner - natural and ordinary meaning of the pleaded words - what imputations reasonably conveyed by these words - whether imputations conveyed and defamatory - whether the statements were published on occasions protected by qualified privilege - whether otherwise privileged occasions misused so that the protection is lost.

Held:  Each of the facsimiles is defamatory of the plaintiff, and is not protected by qualified privilege.

DAMAGES

Assessment of damages - publications limited to two persons and contained - compensatory damages including aggravated damages awarded in the sum of $20,000. Exemplary damages not awarded - claim that legal costs incurred by the plaintiff prior to the commencement of proceedings ought to be treated as special damages, refused.

Defamation Act 2005 ss 28, 35 and Schedule 1, Part 6, s 7, referred to.
Aktas v Westpac Banking Corporation Ltd [2010] HCA 25; Farquahar v Bottom [1980] 2 NSWLR 380 at 385 per Hunt J; Lewis v Daily Telegraph [1963] 1QB 234 at 277; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60; Radio 2 UE, Sydney Pty Ltd v Chesterston (2009) 238 CLR 460; Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506; Nixon v Slater & Gordon (2000) 175 ALR 15; Chakravati v Advertiser Newspaper (1998) 193 CLR 519; Potts v Moran (1976) 16 SASR 284; Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; Roberts v Bass (2002) 212 CLR 1; Clover Bond Pty Ltd v Carroll [2004] WASC 216; Goyan v Motyka [2008] NSWCA 28; Mann v O'Neill (1997) 191 CLR 204; Mbuzi v Favell [2007] QCA 393; P v Manny [2010] ACTSC 50; Morgan v Mallard (1997) 68 SASR 184; Favell v Queensland Newspaper Pty Ltd [2005] HCA 52; Roberts v Rossiter (1984) Aust. Torts Reports 80-678; Baric v Doherty (Court of Appeal, NSW) BC 8701234, considered.

TROPEANO v LAURO
[2010] SADC 113

Introduction

1. Antonio Tropeano (“the plaintiff”) instituted the within proceedings on 13 September 2006, claiming damages, including aggravated and exemplary damages, against Natale Lauro (“the defendant”) for alleged defamation and/or injurious falsehood arising from the publication, by the defendant, of four facsimiles containing criticisms of the plaintiff as a legal practitioner between 8 October 2005 and 19 January 2006.[1] 

   [1]    As to the last publication the Defamation Act 2005 commenced on 1 January 2006. Section 35 of the Act excludes any award for exemplary or punitive damages.

2. The plaintiff asserts that his character and reputation have been injured, and that his professional reputation and business as a legal practitioner have suffered damage in consequence of the respective publications.

3. The defendant denies that any imputation reasonably conveyed by the respective facsimiles is defamatory of the plaintiff; but asserts that, in any event, they were published on occasions of qualified privilege, and were protected by that privilege.  There was no plea of justification by the defendant.

4. The subject action raises some complex questions - indeed recently described as “unnecessarily complex”, - and which include the scope of the defence of qualified privilege at common law in respect of at least the first three facsimiles; and, potentially pursuant to the Defamation Act, 2005, in respect of the final facsimile.[2]

   [2]    Aktas v Westpac Banking Corporation Ltd [2009] NSWCA 9 at [36]-[41]

Background

1. It will be necessary, shortly, to summarise the evidence given at the trial of this action.  However it is convenient at this stage to detail the background facts which are not in dispute.

2. The plaintiff has, since 1995, been a practising solicitor, and is the principal of the firm of Fletcher and Lawson Lawyers in Adelaide.

3. The defendant described himself as an invalid pensioner.  When giving his evidence, he presented as a highly educated man, who professed to have some general knowledge of commercial law principles.

4. The defendant has undoubtedly suffered ill health for some considerable time.  Those complaints include hypertension, heart disease and a discogenic lesion of the lumbosacral spine.

5. The genesis of the subject action is a dispute, (“the initial dispute”) between the defendant, and certain clients of the plaintiff, namely Marble House of Australia Pty Ltd (“Marble House”), and its directors Luigi Scardigno and Maria Antionietta Scardigno (“the Scardignos”).

6. In respect of the initial dispute, proceedings were eventually commenced in the Adelaide Magistrates Court on 8 May 2006 by the defendant against the Marble House and the Scardignos.[3] 

   [3]    AMC action No 06 – 3944.  Exhibit P1.32

7. In those proceedings, which remain on foot,[4] the defendant asserts breaches by Marble House of two contracts, entered into on 31 July 2004, for the supply of marble tiles, and a granite bench top for installation at the defendant’s home, which was then under construction.

   [4]    See Lauro v The Marble House of Australia Pty Ltd & Ors [2010] SASC 211 at [1]

8. Prior to entering into the two contracts, the defendant and the Scardignos had been friends.  From time to time Mr Scardigno had sought assistance from the defendant in respect of his commercial dealings.  In her evidence, which was not in dispute, Mrs Scardigno acknowledged that assistance, saying:

   Yes, Luigi and I would ask Mr Lauro questions.  We knew he had knowledge, legal knowledge, so, yes, we would ask him.[5]

   [5]     T. P. 147

9. While the defendant is highly proficient in the Italian language, and had also assisted Mr Scardigno in his understanding of that language, he clearly has a limited command of the English language, and in consequence, a restricted ability to correspond in writing, in that language.

The chronology

1. In the course of the initial dispute, the defendant had sent a facsimile letter, written in the Italian language, and dated 25 September 2005, to Luigi Scardigno.  In that facsimile the defendant, inter alia, referred to the assistance he had previously provided to Mr Scardigno, including giving him “free legal assistance and moral support”. He asserted various principles of law and demanded that Marble House rectify the alleged breaches of contract.[6] 

   [6]    Ex P1.1

2. An agreed translation of that facsimile was tendered at the trial of the within action.[7]  Although the purpose of the facsimile was to bring about a resolution of the dispute with his former friend, it was expressed in aggressive terms, containing personal attacks upon the character of Mr Scardigno.

   [7]    Ex P1.35

3. On or about 26 September 2005, the plaintiff was engaged by the Scardignos to act as solicitor on behalf of Marble House, and to respond to the defendant’s facsimile.  On that day the plaintiff sent a facsimile to the defendant, inter alia, requesting the defendant to communicate directly with him rather than the Scardignos, and detailing the Scardigno’s instructions as to past discussions between the parties.[8]

   [8]    Ex P1.2

4. Thereafter several facsimiles were exchanged directly between the plaintiff, in his capacity as solicitor for the Scardignos, and the defendant.  It is not necessary to detail that correspondence, save that it must be said, that it became increasingly terse, with the plaintiff continually reminding the defendant that he ought not contact the Scardignos direct, and the defendant responding by accusing the plaintiff of acting in an improper manner and not in the best interests of his clients.

5. In an early facsimile letter of 28 September 2005, the defendant warned the plaintiff against conveying his clients’ instructions as to an alleged confrontation between the defendant and staff of the Marble House as follows:

   In reference to the alleged statements by others [do not provoke me] I suspect that you are engaging in unprofessional conduct.  On the specific subject matter I will not hesitate to make a formal complaint to the LPCB and you will be brought to justice before the Practitioners Tribunal and other competent court [all strictly professional].[9]

   [9]    Ex P1.6

6. I have no doubt that this initial terseness was caused by a combination of the defendant’s difficulty with the English language; possibly some misunderstanding of the role of a legal practitioner in conveying his client’s instructions, and his resolute belief that he had been treated poorly by the Scardignos.  It must be remembered that throughout the events, the subject of these proceedings, the defendant was unrepresented. 

The allegedly defamatory publications

1. In early October 2005 the defendant decided to again correspond directly with Luigi Scardigno at the Marble House, rather than with the plaintiff. The plaintiff however continued to respond to those facsimiles on behalf of the Scardignos.

2. The subject action involves four of those facsimiles.  There was no dispute that each of them was sent by the defendant to Luigi Scardigno.

3. The plaintiff complains about portions only of each of those facsimiles.  It is trite that the Court must consider the allegedly defamatory material in the whole context in which it is published, rather than in isolation.[10]

   [10]   See Brabazon v Western Mail Ltd (1985) 58 ALR 712 at 717; Sands v Channel Seven Adelaide Pty Ltd [2010] SASC 202 at [96] – [98]; Grundmann v Georgeson [1996] QCA 189, and Gilhooly – The Law of Defamation in Australia and New Zealand (1998) pp38-39.

4. Accordingly, it is necessary to set out in full each of the respective publications which are alleged to convey imputations defamatory of the plaintiff.

5. As is apparent, in some of the facsimiles, the original texts contain some passages in Italian, and inevitably, in light of the defendant’s difficulties with English, some typographical errors.  It is appropriate that the original texts be reproduced.  It is convenient to annex to these Reasons a copy of each such facsimile in the form published by the defendant, and in the form as translated into English.

6. The four subject facsimiles were published by the defendant as follows:-

• The first of the subject facsimiles was published by the defendant on 8 October 2005 (“the first facsimile”).[11]  “This facsimile is annexed herein and marked with the letter “A”.  The relevant translations are marked with the letters “AA”.[12]

• The second and third of the subject facsimiles were published by the defendant at 8.56 am (“the second facsimile”)[13] and at approximately 4.42pm (“the third facsimile”)[14] respectively on 10 October 2005.  The second facsimile is annexed herein and marked with the letter “B”.  The third facsimile is annexed herein and marked with the letter “C”.

• The fourth of the subject facsimiles was published by the defendant on 19 January 2006 (“the fourth facsimile”).[15]  The fourth facsimile is annexed hereto and marked with the letter “D”.

  [11]   Ex P1.16

  [12]   Ex P1.35

  [13]   Ex P1.20

  [14]   Ex P1.22

  [15]   Ex P1.27 - The facsimile was incorrectly dated 19/1/2005

1. The plaintiff concedes that in the subject case there was quite limited publication of the four facsimiles. 

Procedural Matters

1. The proceedings had somewhat of a vexed history.  They had been listed for hearing before another Judge of this Court on 14 January 2008.  The defendant had been unrepresented and this, coupled with his apparent ill health had led to substantial delays in the matter being listed for trial.

2. The proceedings were adjourned, and that trial vacated, in consequence of concerns expressed by the defendant’s general medical practitioner as to the health of the defendant and, in particular, to enable some investigations to take place as to aetiology of suspected symptoms of cardiac disease.

3. The trial commenced on 6 August 2008 and continued until 8 August 2008.  It was adjourned again in consequence of further concerns as the state of health of the defendant who had been admitted to the cardiology ward of the Royal Adelaide Hospital.  Upon application made by the defendant’s son on 8 August 2008, I made an order, pursuant to Rule 79 of the Rules of Court, appointing him, as the litigation guardian of the defendant during the period of the defendant’s treatment at that hospital.  The trial eventually resumed on 10 March 2009. 

4. The first three facsimiles were published prior to the commencement of the Defamation Act 2005 (SA) (the Act).[16]  Accordingly, the plaintiff’s claims for alleged defamation in respect of each of the first three facsimiles are to be determined in accordance with the common law.

   [16]   Commenced on 1/1/2006

5. The plaintiff’s counsel, Mr Doyle, initially submitted that as the fourth facsimile had raised the same allegedly defamatory material as that arising in the publication of the first, second and third facsimiles; any defamatory imputations conveyed by the fourth facsimile, published after the commencement of the Act ought be determined in accordance with the common law as it stood prior to 1 January 2006.

6. He referred to the transitional provisions in Part 6 of the Schedule to the Act. Section 7(2) of that Part relevantly provides:

7. The provisions of this Act (other than this section) do not apply to a cause of action for the publication of defamatory matter that accrues after the commencement of this Act (the post-commencement cause of action) if:

   (a)the post-commencement cause of action is one of 2 or more causes of action in proceedings commenced by a plaintiff;

   (b)each cause of action in the proceedings accrues because of the publication of the same, or substantially the same, matter on separate occasions (whether by the same defendant or another defendant); and

   (c)one or more of the other causes of action in the proceedings accrued before the commencement of the Act; and

   (d)the post-commencement cause of action accrued no later than 12 months after the date on which the earliest pre-commencement cause of action in the proceedings accrued.

8. In his final address Mr Doyle submitted that the imputations pleaded in respect of the fourth facsimile were more extensive than those pleaded in respect of the first three facsimiles, and that the fourth facsimile ought therefore be governed by the Act.

9. I do not accept that submission.  In my opinion the fourth facsimile does involve substantially the same matter as that contained in the first three facsimiles, and accordingly it ought be governed by the common law as it stood prior to the commencement of the Act.  I will however deal with the fourth facsimile pursuant to both the common law, and pursuant to the Act, in the event that this construction of the transitional provisions of the Act, is found to be in error.

10. Among the significant differences between the common law and the provisions of the Act are, respectively, the onus of proof in respect of the defence of qualified privilege, and the extent of any damages to be awarded.  Under the Act there can be no award of exemplary or punitive damages, and there is a statutory limit upon damages for non-economic loss.[17]

The Pleadings

[17]   See Division 3 of the Act, section 33 and 35

The Statement of Claim

1. The plaintiff claims against the defendant in defamation, and, in the alternative, in injurious falsehood.

Defamation

• In respect of the first facsimile the plaintiff:

• Complains in paragraph 5.1 thereof of the following words published by the defendant:

I dismiss your ‘friend’ legal practitioner, since the manifest legal conflict.  He add insult to injury by interfere with my private family life, Further he abuse with a sequelae of continue telephone harassment, and other contemptible violation of the Law Society Professional Conduct Rules (a complaint against him was lodged before the Legal Practitioners Board).  Your friend, have demonstrated an ability to consider my previous correspondence and continued to act with contempt.  Consequently (under instructions) no further correspondence from him or Fletcher & Lawson Lawyers, will be addressed let alone tolerated.

• Pleads in paragraph 9 thereof that, in their natural and ordinary meaning those words meant and were understood to mean that:

9.1 the plaintiff has engaged in the deliberate abuse and harassment of the defendant;

9.2 in his dealings with the defendant, the plaintiff has failed to comply with the code of conduct prescribed for legal practitioners; and

9.3 in his dealings with the defendant, the plaintiff has conducted himself in an unprofessional manner.

1. In respect of the second facsimile the plaintiff:

• Complains in paragraph 12.1 thereof of the following words published by the defendant:

Luigi, stop delay payments with you not accept and offensive legal adviser.  He has complicate your position aiming a costly court proceedings.

• Pleads in paragraph 16 thereof that, in their natural and ordinary meaning, those words meant and were understood to mean that:

16.1the plaintiff has acted contrary to his client’s interests by acting in a manner designed to improperly increase the legal costs able to be charged the plaintiff; and

16.2         the plaintiff has acted in an unprofessional manner.

• In respect of the third facsimile the plaintiff:

• Complains in paragraph 19.1 thereof of the following words, in bold print, published by the defendant:

P.S. under wrong legal advice, you ignored and failed to comply with my legitimate demand, and return my money and chattel.  This will now be interpreted as embezzlement abet by your lawyer.  He needs to return to a jurisprudenzial class, and learn properly the application of the Criminal code.  I have before me Mr “B”, he said that you are ready to pay, but I cannot await anymore.  Tomorrow I will act.  Further a complaint will be lodge before the SA Police under the Criminal Law Consolidation (Offences of Dishonesty) Amendment Act 2002.  Due Mr “B” direction, I holt my return.  You will contact him to deliver to me my money; and chatle at 10.00am of the 11 October 2005, there will be no more extention!  To some extent, I still care for you.  Dismiss your lawyer, or he will ruin your reputation and business!

• Pleads in paragraph 23 thereof that, in their natural and ordinary meaning, those words, in bold print, meant and were understood to mean that:

23.1  the plaintiff has acted incompetently;

23.2  the plaintiff has acted unprofessionally;

23.3the plaintiff has demonstrated that he is not fit to practise as a lawyer; and

23.4 the plaintiff has acted dishonestly in that he has been involved in the embezzlement of money from the defendant.

• In respect of the fourth facsimile the plaintiff:

• Complains in paragraph 26.1 thereof of the following words, in bold print, published by the defendant:

In addition to the dishonesty and immorality you have displayed to date, I am also appalled and apprehensive about your latest threat conveyed by Mr ‘E’ that you will request your Police Officer neighbour to have me bashed and arrested.  Given the seriousness of this threat, a copy of this correspondence will be provided to SA Police for their immediate action.  I also denounce your other threats involving the use of ‘bouncers’ against my person, through your lawyer’s other line of employment.

You have premeditatedly misappropriated my moneys, and it is now my understanding that this is a practice that you have routinely employed at the expense of other customers and business partners both here and abroad.  The fact that you are aided and abetted by a bizarre lawyer with a green degree, and you persevere with making violent threats involving ‘friendly’ security guards and Police Officers, does not exculpate you from your fraudulent conduct and offences against the SA Criminal Law as inter alios a Manager of a business”.

• Pleads in paragraph 30 thereof that, in their natural and ordinary meaning, those words, in bold print, meant and were intended to mean that:

30.1 the plaintiff has facilitated threats of physical violence against the defendant

30.2     in his dealings with the defendant, the plaintiff has:

30.2.1  acted unprofessionally

30.2.2 failed to properly or adequately represent Scadigno’s interests.

1. The plaintiff pleads that his character and reputation have been injured and that both his professional reputation and business have suffered and will continue to suffer damage.  The plaintiff sought damages, and an injunction to restrain the defendant from further publishing such allegations.

Injurious falsehood

1. The plaintiff repeats the pleadings in defamation, and asserts:-

• that the imputations conveyed by the subject four facsimiles were false.

• that the defendant published them maliciously and with the deliberate intent of causing loss and damage to the plaintiff.

• that the plaintiff has incurred actual damage including pecuniary loss.

The Defence

1. In respect of each of the subject facsimiles the defendant:

• admits that each facsimile was published by him to Luigi Scardigno;

• pleads that in each case the said publication was to Luigi Scardigno only, and that the publication was “confidential” as between the defendant and Luigi Scardigno;

• denies that the subject words in each case were capable of conveying the imputations pleaded in the Statement of Claim or any meaning defamatory of the plaintiff.

• asserts that in each case that if the words in the subject facsimiles are found to be defamatory of the plaintiff, then each such facsimile was published on an occasion of qualified privilege being that:

·“the defendant and the Scardignos were involved in a contract dispute regarding certain domestic marble products;

·the plaintiff was the legal representative of Scardigno in relation to the said contractual dispute;

·the defendant was engaged in attempting to resolve the said contractual dispute;

·the defendant had a legitimate and proper interest in communicating the information contained in the first facsimile to Scardigno who had a corresponding and legitimate interest in receiving such communication.”

Defamation/Injurious falsehood

1. The tort of injurious falsehood has been described as “a rare and anomalous tort”, containing some seven elements, including actual damage to the plaintiff.[18]  While it is not unusual for such a claim to be brought as an alternative to a cause of action in defamation, there are marked differences between them.

   [18]   Palmer Bruyn & Parker v Parsons [2001] 208 CLR 388 at 423-425

2. In Palmer Bruyn & Parker Pty Ltd v Parsons, supra, at [58], Gummow J said:

   [58]   Whilst the same factual matrix may found actions in both defamation and injurious falsehood, there are important distinctions between them.  In Joyce v Sengupta, Sir Donald Nicholls V-C said:

   The remedy provided by the law for words which injure a person’s reputation is defamation.  Words may also injure a person without damaging his reputation.  An example would be a claim that the seller of goods or land is not the true owner.  Another example would be a false assertion that a person has closed down his business.  Such claims would not necessarily damage the reputation of those concerned.  The remedy provided for this is malicious falsehood, sometimes called injurious falsehood or trade libel.  This cause of action embraces particular types of malicious falsehood such as slander of title and slander of goods, but it is not confined to those headings.  It is for the plaintiff in injurious falsehood to establish falsity, malice and special damage, burdens not imposed upon the plaintiff by defamation.

3. More recently, in Radio 2UE Sydney Pty Ltd v Chesterston[19], the majority of the High Court said:

   The remedy which the law provides for injury to a person’s business or professional reputation must be distinguished from that for malicious statements which result in damage not to the reputation, but to the business or goods of a person.  The former is provided by an action for defamation, the latter by that for injurious falsehood.  Lord Esher M.R. explained the distinction in South Hetton Coal Co Ltd v North-Eastern News Assn Ltd.  A false statement that a wine merchant’s wine is not good, which is intended to and does cause loss to the wine merchant’s business, is an injurious (or “malicious”) falsehood.  A statement reflecting upon that person’s judgment about the selection of wine, and therefore upon the conduct of his business, may be defamatory of him ….the action for injurious falsehood is more closely allied to an action for deceit.

   [19] (2009) 238 CLR 460 at [11] and See Aktas v Westpac Banking Corporation Ltd [2010] HCA 25 at [15] - [17]

4. As it transpired, during his final address, the plaintiff’s counsel submitted that the plaintiff’s principal claim was in defamation, and that there was no additional sum which could otherwise be recoverable in a claim based upon injurious falsehood.[20]

   [20]     T.  P.311

5. In respect of the claim for injunctive relief the plaintiff submitted that on 15 January 2008 the defendant had given an undertaking to the court in terms of the relief sought in sub paragraph 1.1 to 1.10 of Part 2 of the Statement of Claim, effectively until further order, and that accordingly those undertakings ought be continued.

The issues

1. Putting, therefore, to one side the plaintiff’s alternative claim in injurious falsehood, the issues for the court to determine in respect of each of the subject four facsimiles are:

• to whom were the said facsimiles published?

• were the words respectively complained of by the plaintiff, reasonably capable of conveying all or any of the imputations ascribed to them by the plaintiff; and, if so, were these so conveyed?

• if so, whether the imputation or imputations were defamatory of the plaintiff?

• if the publications are defamatory of the plaintiff, were they published on an occasion of qualified privilege?

• If so, whether the defamatory imputation is “relevant” or “germane” to the occasion?[21]

• if the occasion was privileged, has that privilege been destroyed by malice on the part of the defendant?

• if the plaintiff succeeds in his claims, what is the quantum of his damages?

  [21]   Bashford v Information Aust (2004) 218 CLR 366 at [191]

1. I turn then to each of these issues:

• To whom were the facsimiles published?

1. Although the plaintiff was not expressly mentioned by name, there was no dispute, nor could there have been, that it was the plaintiff who was referred to in the subject four facsimiles.

2. The defendant asserted that all of the facsimiles were sent to Luigi Scardigno on a confidential basis, and that accordingly he was entitled to assume that each would be read only by him.  I do not accept that assertion.

3. On each occasion the defendant elected to send the facsimiles to the office of the Marble House.  The reading of those facsimiles by Marble House employees and the plaintiff may indeed have been a natural and probable consequence of such a decision.

4. As it transpired, I am satisfied that each of the four facsimiles, were received and read by both Luigi and Maria Scardigno, and only them, before being delivered by them to the plaintiff.  Accordingly I find that the relevant publication of the facsimiles was limited to Mr and Mrs Scardigno.

• Do all or any of the pleaded imputations arise? If so are they defamatory of the plaintiff?

• The legal principles

1. The test to be applied in determining what imputations, if any, were conveyed in the subject four facsimiles is well settled.[22]

   [22]   Bolkus v Aust Broadcasting Corporation [2010] SASC 150; Gillooly - "The Law of Defamation in Aust & NZ (1998) at pp 34 - 37

2. The plaintiff’s case is based upon the natural and ordinary meaning of the pleaded words in each of the subject facsimiles.  This may be either the literal meaning of the words or “include any inference which the hypothetical ordinary and reasonable reader, guided only by general knowledge and not fettered by strict legal rules of construction, would draw from the words”.

3. The imputation which any particular words might convey is to be determined as an objective test.  The intention of the defendant, as publisher of the words is irrelevant, for the purpose of construing the words, although it may be relevant to the question of damages.  In Reader’s Digest Services Pty Ltd v Lamb,[23] Brennan J said that it must follow that evidence is not admissible in a libel case to establish the meaning of the words “used” or that the pleaded imputations were defamatory.

   [23] (1982) 150 CLR 500 at 506

4. Accordingly in considering those questions I will disregard the evidence of the plaintiff and Mrs Scardigno as to what they took the respective facsimiles to mean,[24] and the evidence of the defendant as to what he intended by those words.

   [24]    Nixon v Slater & Gordon (2000) 175 ALR 15 at [42]

5. In Jones v Skelton[25], the Privy Council said:

   It is well settled that the question as to whether words which are complained of are capable of conveying a defamatory meaning is a question of law, and is therefore one calling for decision by the Court.  If the words are so capable then it is a question for the jury to decide as to whether the words, do, in fact, convey a defamatory meaning. In deciding whether words are capable of conveying a defamatory meaning the Court will reject those meanings which can only emerge as the product of some strained or forced, or utterly unreasonable interpretation … the test of reasonableness guides and directs the Court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense.

   [25] (1963) 1 WLR 1362 at 1370 - 1371. See Favell v Queensland Newspapers Pty Ltd - [2005] HCA 52 at [9] - [12]

6. In Farquhar v Bottom[26], Hunt J, in discussing the question of whether the imputations contended for by the plaintiff or any of them could be conveyed by the natural and ordinary meaning of the pleaded words, said:

   In deciding whether the matter complained of is capable of conveying to the ordinary reasonable reader the imputations relied upon by the plaintiff, I must be guided and directed by the test of reasonableness.  I must reject any strained, or forced, or utterly unreasonable interpretation: Jones v Skelton ([1963] SR (NSW) 644. I must proceed upon the basis that the ordinary reasonable reader is a person of fair average intelligence: Slatyer v Daily Telegraph Newspaper Co Ltd ((1908) 6 CLR 1 at 7); who is neither perverse: ibid; nor morbid or suspicious of mind: Keogh v Incorporated Dental Hospital of Ireland ((1910) 2 Ir R 577 at 596); nor avid for scandal: Lewis v Daily Telegraph Ltd ([1964] AC 234 at 260).

   This ordinary reasonable reader does not, we are told, live in an ivory tower.  He can, and does, read between the lines, in the light of his general knowledge and experience of worldly affairs: Lewis v Daily Telegraph Ltd (supra at 258); Jones v Skelton (supra at 650); Lang v Australian Consolidated Press Ltd ([1970] 2 NSWR 408 at 412). It is important to bear in mind that the ordinary reasonable reader is a layman, not a lawyer, and that his capacity for implication is much greater than that of the lawyer: Lewis v Daily Telegraph Ltd (supra at 277); Morgan v Odhams Press Ltd.

   [26] [1980] 2 NSWLR 380 at 386

7. If I were to conclude that the pleaded imputations or any of them were so conveyed by the pleaded words from the particular facsimile under consideration, then the second task is to determine whether such imputations are defamatory.

8. In Reader’s Digest Services Pty Ltd v Lamb, supra, Brennan J said:[27]

   Where no true innuendo is pleaded and the published words clearly related to the plaintiff, the issue of libel or no libel can be determined by asking whether hypothetical referees – Lord Selborne’s reasonable men (Capital and Counties Bank v Henty) or Lord Atkin’s right-thinking members of society generally (Sim v Stretch) or Lord Reid’s ordinary men not avid for scandal (Lewis v Daily Telegraph Ltd) - would understand the published words in a defamatory sense. That simple question embraces two elements of the cause of action: the meaning of the words used (the imputation) and the defamatory character of the imputation. Whether the alleged libel is established depends upon the understanding of the hypothetical referees who are taken to have a uniform view of the meaning of the language used, and upon the standards, moral or social, by which they evaluate the imputation they understand to have been made. They are taken to share a moral or social standard by which to judge the defamatory character of that imputation (Byrne v Dean), being a standard common to society generally (Miller v David; Myroft v Sleight; Tolley v JS Fry & Sons Ltd.)

   [27] (1982) 150 CLR 500 at 505-6.

9. The question of whether an allegation concerning a person’s conduct or capacity in his profession is defamatory is to be assessed against the general test for defamatory material.

10. In Radio 2UE Sydney Pty Ltd v Chesterton, the majority of the High Court, said:[28]

    The concept of “reputation” in the law of defamation comprehends all aspects of a person’s standing in the community.  It has been observed that phrases such as “business reputation” or “reputation for honesty” may sometimes obscure this fact.

    In principle therefore the general test for defamation should apply to an imputation concerning any aspect of a person’s reputation. A conclusion as to whether injury to reputation has occurred is the answer to the question posed by the general test, whether it be stated as whether a person’s standing in the community, or the estimation in which people hold that person, has been lowered or simply whether the imputation is likely to cause people to think the less of a plaintiff.

    An imputation which defames a person in their professional or business reputation does not have a different effect.  It will cause people to think less of that person in that aspect of their reputation.

    The general test for defamation is relevant to all imputations which are said to have injured a plaintiff’s reputation in some respect. The likelihood that the ordinary reasonable person may think the less of a plaintiff because of the imputations is assessed by reference to that person’s general knowledge and their knowledge of standards held by the general community, as they may apply to what is said about the plaintiff. Because such a person can be expected to apply the standards of the general community, he or she may be described as “decent”. The standards are not to those of a moral or ethical kind. That a particular imputation may not require the application of a community standard does not render the general test inapplicable. The inquiry as to the effect upon reputation remains.

    [28]   Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 at 477.

11. In Roberts v Rossiter[29] the Full Court of the Supreme Court affirmed the principle that an implication may be defamatory whether or not it is believed by the person to whom it is published.

    [29] (1984) Aust Torts Reports 80 - 678

Discussion and findings

1. Applying these principles, I turn now to each of the four facsimiles, and the pleaded imputations.

2. I did not understand the defendant’s counsel to dispute that the pleaded imputations were reasonably capable of being so conveyed, in respect of the first, second and third facsimiles.

• The first facsimile

• The imputations

1. In my opinion, the ordinary reasonable reader of the words pleaded in paragraph 5.1 of the Statement of Claim, reading them in the context of the whole of the first facsimile, would inevitably conclude that the defendant had alleged that the plaintiff had deliberately abused and harassed the defendant by telephone on a number of occasions and that by doing so, he had contumeliously disregarded the Law Society Professional Conduct Rules.  The defendant, in addition, had asserted that he had lodged a complaint to the Legal Practitioner’s Conduct Board.

2. In Mirror Newspapers v Harrison;[30] and in Nixon v Slater & Gordon,[31] it was said that a “complaint” alleging improper practice does not of itself carry the imputation that the plaintiff was guilty of improper practice but it may carry an imputation that there are reasonable grounds for a complaint. 

   [30] (1982) 149 CLR 293 at 301

   [31] (2000) 175 ALR 15

3. In Baric v Doherty[32], Kirby P, Samuels and McHugh JJA, said that where a publication contains more than the bare allegations of a complaint having been lodged, the imputation may be open that the plaintiff is guilty of unprofessional conduct.  In the event, the imputation which was pleaded in sub paragraph 9.3 is that the plaintiff had conducted himself in an unprofessional manner.

   [32]   (unrep. Court of Appeal (NSW)) BC 8701234

4. The words employed by the defendant are not mere “vulgar abuse”.[33] 

   [33]   cf.  Mundey v Askin [1982] 2 NSWLR 369 at 372

5. In my opinion each of the respective imputations in subparagraphs 9.1, 9.2 and 9.3 is reasonably capable of being conveyed, by the pleaded words.  I find that each of them was conveyed.

• Defamatory

1. In my opinion the imputations that a Legal Practitioner had engaged in the deliberate abuse and harassment of an unrepresented party to a dispute and thereby had acted in an unprofessional manner is a serious matter.  They impute to him behaviour of a kind which would lower his personal reputation in the estimation of right-thinking persons, and are plainly injurious to a solicitor’s reputation.  I find that those imputations are clearly defamatory of the plaintiff.

• The second facsimile

• The Imputations

1. In my opinion the ordinary reasonable reader of the words, pleaded in paragraph 12.1 of the Statement of Claim, and having read them in the context of the whole of the cover sheet and the second facsimile, would inevitably conclude that the defendant had alleged that the plaintiff was acting contrary to the Scardignos’ interests, and for the dominant purpose of increasing his fees.

2. Accordingly the imputations pleaded respectively in subparagraphs 16.1 and 16.2 thereof are each reasonably capable of being conveyed by the pleaded words.

3. I find that each was so conveyed.

• Defamatory

1. In my opinion those imputations that a Legal Practitioner had engaged in unprofessional conduct for the purpose of increasing his fees, contrary to his clients’ interest, are clearly defamatory of the plaintiff.  It is behaviour which would lower his personal reputation, and is plainly injurious to his reputation as a solicitor.

• The third facsimile

• The Imputations

1. The words pleaded in paragraph 19.1 of the Statement of Claim, and in particular “embezzlement abet by your lawyer”, and the references to the “criminal code” raise quite difficult questions, as to what imputations are reasonably conveyed.

2. It is trite that when persons publish ambiguous or loose words, the publisher cannot be heard to complain if he is reasonably understood as having written something he didn’t mean.[34]

   [34]   Chakravati v Advertiser Newspapers (1998) 193 CLR 519 at 574; and Lewis v Daily Telegraph Ltd (1963) 1 QB 340 at 374

3. I am conscious of the need to consider those expressions as a reasonable ordinary reader rather than as a lawyer.[35]

   [35]   See Flavell v Queensland Newspaper Pty Ltd [2005] HCA 52

4. The statement that the Scardignos’ failure to return the money will be “interpreted” by the defendant as “embezzlement” might reasonably convey an imputation that there are reasonable grounds for a suspicion that the Scardignos had acted dishonestly. 

5. The juxtaposition of the words “abet by your lawyer”, without being read in context, again might reasonably be capable of conveying an imputation that the plaintiff had assisted or acquiesced in that dishonest conduct.  In my opinion however, when seen in context, and in particular the words, “the plaintiff’s need to return to a “jurisprudential class and to learn properly the criminal code”, those impugned words do not reasonably convey the imputation, in paragraph 23.4, that the plaintiff had acted dishonestly.[36] 

   [36]   Nixon v Slater & Gordon (2000) 175 ALR 15

1. The imputations which are reasonably capable of being conveyed are:

• that the plaintiff lacks qualifications, knowledge, skill, capacity and judgment as a legal practitioner;

• that he was so incompetent that he did not know the law and thereby placed the Scardignos at risk of being liable for embezzlement.

• that he had acted unprofessionally by advising the Scardignos to keep the defendant’s moneys in circumstances where there were reasonable grounds to believe it may involve a breach of the criminal law.

1. I repeat that I am not satisfied that the pleaded imputation, in subparagraph 23.4, namely that the plaintiff had acted dishonestly, is one which is reasonably capable of being conveyed.  However the imputations pleaded respectively in sub paragraphs 23.1, 23.2 and 23.3 thereof are each reasonably capable of being conveyed.  I find that each of them was conveyed.

• Defamation

1. In my opinion the imputations in subparagraphs 23.1, 23.2 and 23.3 to the effect that the plaintiff “lacks qualifications, knowledge, skill, capacity, and judgment in the conduct of his profession”[37] as a legal practitioner, and had acted in an unprofessional manner, such that he was not fit to be a legal practitioner are clearly defamatory of the plaintiff, both in respect of his personal reputation and in his reputation as a legal practitioner.

• The fourth facsimile

[37]    Drummond-Jackson v British Meokal Association [1970] 1 WLR 688

• The imputations

1. When they are read in context, the words referring to Scardigno’s use of “bouncers, through your lawyers other line of employment” are not, in my opinion, reasonably capable of conveying the imputation in sub paragraph 30.1 that the plaintiff had facilitated threats of physical violence.  The plaintiff’s counsel had submitted, as an alternative, a somewhat lesser casting of the imputation, namely an “involvement in” threats of violence.  In my opinion an ordinary reasonable reader would not draw any such imputation, but rather would conclude that the impugned words were directed to alleged threats solely made by Luigi Scardigno. 

2. At its highest those impugned words may give rise to the imputation that the plaintiff’s respective businesses are somewhat merged and that he does not have the standards expected of a legal practitioner.

3. However and consistent with my findings in respect of the third facsimile, the expression “bizarre lawyer with a green degree,” and its connection with the misappropriation of money leads inevitably to the conclusion that the imputations pleaded in subparagraph 30.2.1 that the plaintiff had acted unprofessionally; and, in 30.2.2, that he failed to properly or adequately represent Scardigno’s interests are each reasonably capable of being conveyed.

4. I find that each of them was conveyed.

• Defamation

1. I repeat my findings in respect of the defamatory nature of the imputations in the third facsimile. The imputations that the plaintiff had acted unprofessionally, and had inadequately represented the Scardignos in consequence of his alleged lack of qualifications and skills in the conduct of his profession as a legal practitioner are clearly defamatory of the plaintiff.

Summary

1. The imputation which I have found to be consistently conveyed in each of the four facsimiles is that the plaintiff has acted in an unprofessional manner.  In respect of the third and fourth facsimiles, and consistent with an escalation of the defamatory imputations I have found an additional defamatory imputation that the plaintiff was incompetent as a legal practitioner. 

2. Having identified in respect of each of the four published facsimiles, those imputations which were reasonably capable of being conveyed; and which I have found were conveyed and defamatory of the plaintiff, I will shortly turn to the question as to whether the respective publications occurred on occasions of qualified privilege.  It is however convenient at this point to set out a summary of the oral evidence given at the trial.

Synopsis of the Evidence

1. The plaintiff was admitted as a Legal Practitioner in the Supreme Court of New South Wales in 1994.  His family has long been involved in the hospitality industry, and he has obtained a degree of Master of Laws in Tourism Law. 

2. He explained that he was also a director of a company known as Fletcher Lawson Security Services Pty Ltd which company provides security services. 

3. He was instructed on 26 September 2005 to act as solicitor for the Scardignos.  He explained that on each and every occasion that he corresponded with the defendant, he did so upon the express instructions of the Scardignos.  He said that on each occasion when he received the subject four facsimiles he was concerned about his professional reputation, and that his clients, the Scardignos, might lose confidence in him as their legal practitioner.  He said that he could not understand the aggressive nature of the correspondence of the defendant. Of particular concern to him was that the defendant presented as a well-educated man with some legal background.  He said that that fact alone might cause his clients to lose confidence in him.

4. When cross-examined about the nature of his correspondence with the defendant, the plaintiff denied that any of his correspondence or actions could possibly have provoked an adverse response from the defendant.

5. Although the defence of justification was not pleaded, the defendant’s counsel put to the plaintiff by implication that he had in fact harassed the defendant and that he had made allegations in the correspondence either without instructions from his clients, or without a proper basis for the them.  The plaintiff denied unequivocally those assertions.  He said that he had corresponded with the defendant by facsimile until the defendant had made it clear that he did not wish to receive any more facsimiles.  He denied having telephoned the defendant in the manner suggested by him.  He explained that he did not tell the defendant, during the subject period from 8 October 2005 and 19 January 2006, that he was offended by the subject four facsimiles because he believed it would have been improper to infuse his personal complaints against the defendant into the correspondence written on behalf of his clients.  His personal issues with the defendant may have placed him in a position of conflict with his clients. He said that he was so concerned about his reputation and integrity that he consulted a firm of solicitors apparently on or about 7 February 2006.  He had paid the accounts of that firm, which totalled $5,139.60 for work performed prior to the commencement of the within proceedings[38]  He said that he had been forced to divert about 10 to 20 hours of his own time in respect of the defamatory allegations prior to the proceedings being issued, and about the same number of hours subsequent to the proceedings being issued.  He detailed the hourly rate which he charged in 2006 and thereafter.[39]

   [38]   Exhibit P2

   [39]   $395 per hour plus GST contrasted with $340 plus GST in 2006

Maria Scardigno

1. Mrs Scardigno was a director of the Marble House, which company had a factory at Gepps Cross and an office at Kent Town.  She said that prior to the subject facsimiles, she had regarded the plaintiff as very professional in his dealings with her. She explained that the plaintiff would take detailed instructions from her husband, and thereafter would forward to them, a copy of the correspondence which was forwarded to the defendant.  She explained that shortly after they had engaged the plaintiff, she had received a telephone call from the defendant.  She said that while she was calm at the time, she felt really uncomfortable after that telephone call.  She had received information from the company’s staff at the factory, to the effect that the defendant had threatened them. 

2. She said that she had understood the defendant to be well educated and that he had some knowledge of the law.  She had read the four subject facsimiles after her husband.  She was shocked by the terms of the first subject facsimile, as she had always regarded the plaintiff as entirely professional.[40]  By the time that the second facsimile had been received, she said that while she trusted the plaintiff, she wasn’t entirely sure, and was concerned that the allegations raised by the defendant could be true.[41]  At the time of the receipt of the third subject facsimile, she was concerned that the plaintiff might not have undertaken the required studies as a legal practitioner.  She repeated this evidence in respect of the receipt of the fourth facsimile.  She said that she was concerned that it might be true that the plaintiff did not have the appropriate degree.  She indicated that she had those concerns about the plaintiff’s qualifications because the allegations had been made by the defendant.  She had held those concerns notwithstanding that she knew that the allegation of embezzlement expressed by the defendant, in respect of her husband was untrue.  Indeed her husband had reported the defendant to the Norwood Police Station.  She explained that that her concern about the plaintiff’s qualifications was based upon her belief that the defendant had had some knowledge of legal matters.  When she was cross-examined, Mrs Scardigno conceded that she did not raise any of her doubts with the plaintiff.  She also conceded that her family had continued to engage the plaintiff’s services; and that the plaintiff continued to enjoy their complete trust.

   [40]   T. P 142

   [41]   T. p 142 - 143

The defendant

1. Mr Lauro detailed the events leading to the initial dispute. 

2. He said that he went to the Gepps Cross factory on 24 September 2005, and was threatened by Nick Scardigno whom he regarded as being a “totally immoral unconscionable trader”.  He denied having threatened any of the staff at the factory.  He said that he was angry that the plaintiff had sent faxes to his private fax machine.  He explained that he “did not respect Antonio Tropeano as a lawyer, that’s why I was attempting to have him move from my face because like I said he went too far”.[42]  He said it was not ethical of the plaintiff to send faxes to his home at 6.00 am. 

   [42]   T. p 180

3. In respect of his allegation that the plaintiff had harassed him by telephone calls, as expressed in the first subject facsimile, he said, in examination in chief, that he did not know if those phone calls had emanated from the plaintiff.[43]  Yet, notwithstanding this concession, when he was cross-examined, he said that he believed very strongly that the harassing telephone calls had been made by “those people, Mr Luigi Scardigno, Annette Scardigno and Anthony Tropeano; or maybe the two males, not then much Mrs Scardigno, although she has made a false allegation in relation to a new threat”.[44]  He denied that he was a criminal and said that if anyone was a criminal it was the plaintiff. 

   [43]   T. p 186

   [44]   T. p 241

4. He said that at all times his intention was to attempt to resolve the initial dispute.  He had suggested that a third party be involved so as to mediate the dispute without the need for any lawyer.[45] 

   [45]   T. p 190

5. He denied that, in the third and fourth facsimiles, he was accusing the plaintiff of embezzlement.  He had simply made a mistake in the choice of that word.

6. When cross-examined he declined to answer whether he had obtained any legal qualifications when he was living in Italy.  He said that he had engaged the services of lawyers many times before, and that he accepted that there was nothing unethical about a solicitor detailing, in correspondence with a third party, his clients instructions. 

7. He denied that he was short-tempered and explained that if he was attacked then he would respond “quid pro quo”.[46]  He was questioned about whether he knew that the Scardignos had little or no knowledge of legal concepts.  He became quite agitated suggesting that Mrs Scardigno had committed “perjury fabricated by the plaintiff”.[47]  He said that it was unreasonable and offensive for the Scardignos to engage a lawyer because “apart from friendship they were at fault”. When asked to explain the reference to the plaintiff engaging in unprofessional conduct, the defendant said that the plaintiff was attempting to obtain statements from people “maybe on bribes or something”.  In an answer to a question on the same topic in cross-examination, he said that the plaintiff “was attempting to grab many people around in order to forge, to falsify, to make a false statement ….”[48].

   [46]   T. p223

   [47]   T. p 226

   [48]   T. p 239

8. When questioned about the use of the word “embezzlement” he repeated that it was used by mistake and that he had never intended to say that his money had been stolen.  He said that all he was attempting to say was that the plaintiff had given wrong legal advice.  He eventually conceded that he had received three requests for a retraction and an apology in respect of the four subject facsimiles.  He had not apologised because the form of apology sent to him was “a dishonest form of apology”.  He was asked about whether he felt angry at the plaintiff in late 2005, he said that he wasn’t really that angry, and that at the time, he was “not aware about the dangers which Mr Tropeano represented to society”. 

The witnesses

1. It is appropriate that I say something about each of the witnesses called in the trial. I have summarised the evidence of the plaintiff, Maria Antonietta Scardigno, and the defendant.

2. In opening, the plaintiff’s counsel had foreshadowed calling Luigi Scardigno as a witness. 

3. As I have noted the trial had commenced on 6 August 2008 and was adjourned on 8 August 2008 in consequence of the defendant’s ill health.  When the trial resumed on 10 March 2009, Mr Scardigno was absent from Australia, in China, on a business trip.

4. The questions which arise are whether the failure to call Mr Scardigno has had any impact upon the respective cases of the parties, and whether the rule Jones v Dunkel[49], ought be applied.

   [49] (1959) 101 CLR 298

5. The general rule is that the unexplained failure by a party to give evidence, to call witnesses, or to tender documents, may – not must – in appropriate circumstances, where it is natural for the particular party to call such evidence, lead to an inference that the uncalled evidence would not have assisted the party’s case.[50] 

   [50]   Spence v Demasi (1988) 48 SASR 538 at 547

6. The ultimate question is whether in the absence of Luigi Scardigno the plaintiff is able to prove his case.  As is clear the plaintiff did call Mrs Scardigno as a witness and accordingly was able to prove his case without the need to call evidence from Mr Scardigno.  Mrs Scardigno in evidence, explained that her husband had been obliged on short notice to attend that business trip to China.  She said that he had been available to give evidence at earlier times when the hearing had been adjourned because of the ill-health of the defendant.

7. I unreservedly accept her evidence on this topic and indeed generally.  Ultimately it was not submitted by Mr Floreani that I ought draw any inference adverse to the plaintiff in consequence of the absence of Mr Scardigno.[51]  In any event there is no basis for any such adverse inference to be drawn.

   [51]   T. p 290

8. I was generally favourably impressed by Mr Tropeano as a witness of truth.  I have no doubt that the tone of the correspondence between the defendant and himself had come as a shock to him.  I have no doubt that he felt quite strongly that the defamatory material contained in the four facsimiles, had adversely impacted upon his integrity and professionalism, and that he was offended that no apology had been forthcoming from the defendant.

9. The defendant was the sole witness called in his case.

10. The defendant presented as an extremely proud man who, as I have indicated previously, resolutely believed that he had been treated poorly by Luigi Scardigno, in respect of the supply of the marble products.  I readily accept that he has at times suffered from significant health problems, and has a quite limited command of the English language.  Even allowing in full for those matters, I regret to say that I found him to be an unsatisfactory witness in some respects.  It must be said that, at times, he was evasive, and that at other times he was overly aggressive in respect of very proper questions put by the plaintiff’s counsel.

11. It became apparent that he was offended that the Scardignos had engaged a lawyer to act for them in the initial dispute.  He was determined to have the plaintiff removed.  Significantly, in my opinion, the defendant did not regard the plaintiff as merely collateral damage in the defendant’s fight with Mr Scardigno, it became a personal attack upon the plaintiff.  The defendant was outraged that the plaintiff had sent facsimiles to him at all.  He recklessly made the allegations about the plaintiff’s alleged harassment by telephone.  He knew that he had no proper basis for such a serious allegation.  Later he deliberately increased the spiteful nature of his criticisms of the plaintiff including references to him fraudulently seeking statements, and as his alleged incompetence. 

12. I have no doubt that the defendant’s principal motive in sending the facsimiles was to destroy the plaintiff’s reputation with the Scardignos.

• The defence case

1. I turn to the question whether the respective publications of the identified defamatory imputations had occurred on occasions of qualified privilege as asserted by the defendant.

• The defence of qualified privilege

1. The defendant submitted that all of the defamatory material was published on occasions protected by qualified privilege.

2. In respect of all of the subject facsimiles, I repeat that the relevant body of law is the common law defence of qualified privilege. I will however, in the alternative, also consider in respect of the facsimile, the statutory defence provided in s 28 of the Defamation Act, 2005. 

• The principles

1. In Aktas v Westpac Banking Corporation Ltd[52], Heydon J said:

   Whether a communication is privileged for the purpose of that defence depends on the satisfaction of three conditions.  Firstly, the occasion on which the defamation was published, must be a “privileged” one.  Secondly, the defamation must be related to the occasion.  Thirdly, there must not be malice.  There is thus a distinction between the question raised by the first condition – “was the occasion privileged?”- and the ultimate question – “was the communication privileged?

   [52] [2010] HCA 25 at [55]

2. In Aktas’s case, in the Court of Appeal, McClellan CJ at CL had summarised:[53]

   The general principles relevant to the defence of qualified privilege have been settled for many years. However, as with so much of the law with respect to defamation, the simplicity of those principles can be compromised by the temptation to generate unnecessary complexity. Why the law of defamation is bedevilled with these difficulties, many of which are the result of debates about the pleadings, I do not understand. It provides no service to those who defame or who are defamed.

   In Toogood v Spyring (1834) 1 Cr M & R 181 ; (1834) 149 ER 1044 (at 1049–1050) Parke B explained the relevant principle. In the event of the unauthorised publication of defamatory matter the law presumes malice in the publisher. However, that presumption will be displaced where the publication “is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs in matters where his interest is concerned.” The defence of qualified privilege will itself be displaced if the plaintiff can prove that the defendant was motivated by actual malice.

   The necessary requirement for an occasion of qualified privilege is a reciprocity of duty and interest. Defendants must show that he or she published the defamatory matter pursuant to an interest or duty and that the recipient had a reciprocal interest in receiving the published matter: Bashford v Information Australia (Newsletters) Pty Ltd[2004] HCA 5 ; (2004) 218 CLR 366 (at [9]); Adam v Ward [1917] AC 309 (at 334).

   A court must consider the circumstances claimed to give rise to a privileged occasion with “close scrutiny”: Bashford (at [10]). The nature of the communication, the status or position of the publisher, the number of recipients and the nature of any interest they had in receiving it, and the time, place and manner of, and reason for, the publication must all be considered: Bashford (at [54]) (McHugh J, in dissent as to the outcome). It is necessary to identify, with some degree of precision, the subject matter of the communication: Bashford (at [231]) per Callinan J, also dissenting, but not on matters of principle. This is because the defence focuses on the subject matter of the communication rather than the actual communication itself: Bashford (at [231]). The actual communication may be false. However, this is not to the point, because qualified privilege reflects the law’s recognition that public policy requires certain recipients to receive “frank and uninhibited communication” on particular subjects from particular sources: Reynolds v Times Newspapers Ltd [2001] 2 AC 127 (at 195 per Lord Nicholls in Court of Appeal).

   When the defence of qualified privilege is raised two questions will commonly arise. Firstly, was the occasion of the publication one on which the necessary reciprocity of duty or interest existed (the “occasion”)? Secondly, was the matter which defamed the appellant sufficiently connected to the privileged occasion to attract the defence (“relevance”)?

• Occasions of privilege?

[53] [2009] NSWCA 9 at [36] - [41]

• Submissions of counsel

1. Counsel for the defendant, Mr. Floreani, submitted that the subject matter of each of the four facsimiles was an attempt at resolution of the initial dispute without the need for proceedings to be issued.  While the defamatory material was not published in the course of judicial proceedings so as to attract absolute privilege,[54] he submitted that it was published as part of a legitimate attempt at resolving a contractual dispute.

   [54]   Mann v O'Neill (1977) 191 CLR 204 at 211

2. He submitted that the defendant genuinely believed that the plaintiff was attacking him in the first facsimile sent by him. The defendant, had, he submitted, responded accordingly, albeit with some licence in a vigorous manner, as permitted by case law.  He submitted that each of the impugned words in each of the four subject facsimiles fell within occasions “in which, on grounds of public policy and convenience, albeit less compelling than those which give rise to absolute privilege, a person may yet, without incurring liability for defamation, make statements of fact about another which are defamatory and in fact untrue”.[55]

   [55]   P v Manny [2010] ACT SC 50 at [68]

3. He referred to the dicta of the High Court in Bashford v Information Australia, supra, at [53], and submitted that the impugned statements were made in “the furtherance or protection of an interest of the defendant [in compromising the initial dispute and that the Scardignos, being the only persons to whom they were published] had a corresponding interest to receive it”. Accordingly, he submitted, the essential reciprocity of interest criteria was established.

4. Counsel for the plaintiff, Mr Doyle, submitted that if I were to conclude, as a matter of law, that correspondence entered into for the bona fide purpose of avoiding the need for litigation may constitute an occasion protected by qualified privilege, then I ought find on the undisputed facts of the subject case, that the defendant had conducted himself outside the scope of any such privilege.

Conclusion

1. I readily accept as a matter of law that defamatory statements made in correspondence between parties to a legal dispute for the purpose of compromising that dispute may fall within an occasion of qualified privilege, and thus be protected.  Further, in my opinion, such a party is permitted some scope or licence to respond in kind to an attack upon him by the other party to the dispute.[56]  It has been said that “if you are attacked by a prize fighter you are not bound to adhere to the Queensbury Rules in your defence.[57]

   [56]   Goyan v Motyka [2008] NSWCA 28 at [51]

   [57]   Turner v MGM Pictures [1950] 1 All ER 449 at 470

2. That the occasion, as identified, is a privileged one is not however the end of the matter.

3. In Hunt v Great Northern Railway Co,[58] Lord Esher said:

   The occasion has arisen if the communication was of such a nature that it could fairly be said that those who had made it had an interest in making such a communication, and those to whom it was made had a corresponding interest in having it made to them.  When those two things co-exist, the occasion is a privileged one, but the question of whether it was or was not misused is an entirely different one.

   [58] (1891) 2 QB 189 at 191

• Were the defamatory imputations “relevant” or “germane” to the occasion?

1. In Bashford v Information Australia,[59] the High Court, when confirming that “qualified privilege gives no licence to defame”, said that if the occasion is privileged, the further question which arises is whether the defendant has fairly and properly conducted himself in the exercise of it.  Kirby J, at [192] said:

   A great many grievous wrongs to the reputation of individuals would be privileged against redress simply because of a tenuous, remote or contrived connection between the defamatory imputations and the context.  The introduction into a privileged communication of extraneous defamatory imputations will not necessarily cloak them with the privilege.  The problem remains one of drawing a line between the protected and the unprotected.

   [59] [2004] 218 CLR 366 at [22]

2. It is trite that if the defendant goes beyond what was reasonably appropriate[60], it may fall outside the protection of the claimed occasion of privilege.

   [60]   Bellino v ABC (1996) 185 CLR 183; Skalkos v Assaf [2002] NSWCA 14 at [29]

3. In this respect there is an overlap between matters going to the question of malice and matters going to the question of whether the impugned words fall outside the protected occasion.[61]

   [61]   Clover Bond Pty Ltd v Carroll [2004] WASC 216 at [37] and Bellino v ABC (1996) 185 CLR 183

4. Counsel for the defendant submitted that the defendant had not gone beyond the bona fide purpose of attempting to resolve the initial dispute, and that he had restricted the publication to the parties to that dispute.  He further submitted that the language used by him did not destroy the privilege.[62]  The communications were directly related to the identified subject matter of resolving the initial dispute.

   [62]   Goyan v Motyka [2008] NSWCA 28 at [51]

5. In contrast counsel for the plaintiff, submitted that the protection is lost, whenever the occasion is misused for a purpose or motive foreign to the interest that gave rise to the occasion”.  He submitted that the defendant’s improper motive was to destroy the plaintiff’s reputation.

Discussion and findings on question of privileged occasion

1. This case does highlight the difficulty of drawing the line between protected and unprotected imputations, particularly in light of the defendant’s ill-health, his personality and his language difficulties.

2. I have found that, prima facie, the impugned words in each of the facsimiles fall within occasions protected by qualified privilege.  It is not simply a question whether “the facsimiles were defamatory, that the defamatory matter may be false and that its publication has cause or may cause harm to the plaintiff”.  The question is, what actuated those facsimiles.[63]

   [63]   Bashford v Information Aust, supra, at [58]

3. In my opinion, the language employed by the defendant in attacking the reputation of the plaintiff was not merely intemperate but could fairly be described as a tirade of abuse against him.  The plaintiff had not engaged in any attack upon the defendant when communicating on behalf of the Scardignos.  There was no proper basis for attacking the plaintiff’s character as a legal practitioner, as the defendant chose to do in the four facsimiles. 

4. In the first of the subject facsimiles the defendant had been recklessly indifferent as to the truth of the allegations that the plaintiff had harassed him on the telephone.  The plaintiff’s allegations became more serious with each subsequent facsimile.

5. The initial connection with the subject matter of the privilege, namely the resolution of the initial dispute became so tenuous that it cannot be said that the subject facsimiles fell within the otherwise privileged occasion.

6. In Lindholdt v Hyer,[64] McColl JA, held that gratuitous imputations that unacceptably harmed the plaintiff’s reputation had exceeded an admitted occasion of privilege. 

   [64] [2008] NSWCA 264 at [167]

7. In my opinion the defendant’s principal motive was to destroy the plaintiff’s reputation.  While it may be said that the attack upon the Scardignos’ legal practitioner was not entirely irrelevant to the issue of the resolution of the initial dispute, the impugned words were so gratuitous and, indeed, so serious that, in my opinion, they are extraneous to the occasion that I have identified.

Conclusion

1. In respect of each of the four subject facsimiles, even allowing for some licence in a defendant who thought that he was being attacked, the impugned words went far beyond what was germane and reasonably appropriate to the occasion.[65]

   [65]   Goyan v Motyka [2008] NSWCA 28 at [51]

2. Accordingly I find that the impugned words in the subject four facsimiles which were otherwise published on occasions of qualified privilege, are not protected by qualified privilege, as the respective occasions were misused by the defendant.  The defence of qualified privilege, whether at common law or pursuant to the Act has failed.

• Malice – Common Law

1. In the event that I am found to have erred in finding that none of the impugned facsimiles were published on occasions protected by qualified privilege, I turn now to whether each of the facsimiles, at common law, is tainted by malice so that the protection, otherwise given by qualified privilege, is lost.

The Principles

1. It is for the plaintiff to prove that the defendant was motivated by malice in publishing the subject facsimiles.

2. Malice is a particular state of mind at the time the publication takes place.  Proof of express malice destroys qualified privilege.  Express malice is any improper motive or purpose that induces the defendant to use the occasion of qualified privilege to defame a plaintiff. 

3. In Horrocks v Lowe, Lord Diplock said in a passage approved by the High Court:

   The commonest case is where the dominant motive which actuates the defendant is not a desire to perform the relevant duty or to protect the relevant interest, but to give vent to his personal spite or ill-will towards the person he defames.  If this be proved then even positive belief in the truth of what is published will not enable the defamer to avail himself of the protection of the privilege to which he would otherwise have been entitled.

4. In Roberts v Bass,[66] the majority of the High Court referred to a defendant’s primary motive in publishing the impugned words, saying:

   An occasion of qualified privilege must not be used for a purpose or motive foreign to the interest that protects the making of the statement.  A purpose or motive that is foreign to the occasion and actuates the making of the statement is called express malice … Accordingly, for the purpose of that privilege, express malice is any improper motive or purpose that induces the defendant to use the occasion of qualified privilege to defame the plaintiff …. Even if the defendant believes that the defamatory statement is true, malice will be established by proof that the publication was actuated by a motive foreign to the privileges occasion.

   [66] (2002) 212 CLR 1 at [75]

5. It is trite however that a Court ought be slow to draw the inference that a defendant was so far actuated by improper motives as to deprive him of the protection of the privilege.[67]  It is therefore a burden which is not lightly satisfied by the plaintiff.

   [67]   Horrocks v Lowe [1975] AC 135 at 149 - 151

6. Evidence of malice includes intrinsic evidence to be found in the language employed by the publisher in the impugned facsimiles.  It also includes extrinsic evidence as to the state of mind of the publisher showing that he was actuated by express malice at the time of the publication.  As to the intrinsic evidence I have already concluded that the language employed by the defendant was so excessive and disproportionate that it ought be inferred that the defendant was actuated by the improper and dominant motive of injuring the reputation of the plaintiff.

7. As to the question of extrinsic evidence it is necessary to inquire into the state of mind of the defendant at the time of the publication, and to evaluate all the circumstances surrounding its publication.  This may include events before and after the publication.[68]

   [68]   McKenzie v Mergen Holdings Pty Ltd (1990) 20 NSWLR 42 at 51 and Turner v MGM Prictures Ltd [1950] 1 All ER 449 at 455

8. The conduct of a defendant after the publication of the defamatory material may provide evidence of malice if it is probative of his state of mind at the time of publication.[69]

   [69]   Herald & Weekly Times Ltd v McGregor (1928)

9. This may include the evidence and the conduct of the defendant at the trial herein.[70]  In this case the defendant’s evidence at the trial overwhelming supports the findings reached on the intrinsic evidence.  I refer to the defendant’s evidence as to the plaintiff being involved in bribing witnesses, and in repeating the allegations of harassment which he knew he could not prove.  I am conscious however of the need to ensure that the evidence at trial is probative of the state of the defendant’s mind at the time of publication.  In this case the exacerbation of his complaints at trial makes that determination more difficult.  I am however satisfied that it does reflect his state of mind at the time of publication.

   [70]   Guise v Kouvelis (1946) SR (NSW) 419 at 422

10. As to the question of wilful blindness, the High Court in Roberts v Bass, supra, said:

    In exceptional cases, the sheer recklessness of the defendant in making the defamatory statement, may justify a finding of malice. In other cases, recklessness in combination with other factors may persuade the court that the publication was actuated by malice. In the law of qualified privilege, as in other areas of the law, the defendant's recklessness may be so gross as to constitute wilful blindness, which the law will treat as equivalent to knowledge. “When a person deliberately refrains from making inquiries because he prefers not to have the result, when he wilfully shuts his eyes for fear that he may learn the truth”, said this Court in R v Crabbe, “he may for some purposes be treated as having the knowledge which he deliberately abstained from acquiring.” In less extreme cases, recklessness, when present with other factors, may be cogent evidence that the defendant used the occasion for some improper motive. This is particularly so when the recklessness is associated with unreasoning prejudice on the part of the defendant.

Findings on malice

1. I am conscious of the defendant’s difficulties with the English language, and the state of his health at both the time of publication and at trial.  The fact that the defendant had acted aggressively in his correspondence is neutral.  It may just be indicative of his personality. Indeed he had been aggressive in his correspondence with Mr Scardigno prior to his engagement of the services of the plaintiff.

2. I accept that mere proof of the defendant’s ill-will, recklessness, or lack of belief in its truth will not of themselves be sufficient to establish malice.  The extrinsic evidence and or the intrinsic evidence in the publication must establish that that the ill-will, recklessness or lack of belief or improper motive actuated the publications. Malice will be established by proof that the publication was actuated by a motive foreign to the privileged occasion.[71]

   [71]   Roberts v BASS, supra, at [31]

3. Even allowing fully for the need for caution in inferring malice from the language of a defamatory publication as demanded in Horrocks v Lowe,[72] Caldwell v IPEC Australia[73] and Roberts v Bass, supra, I am of the opinion that the language employed in each of the four facsimiles was so excessive, irrational and spiteful that it must be inferred that the defendant was actuated, not by a dominant purpose of resolving the initial dispute, but by the dominant improper purpose of destroying the reputation of the plaintiff.

   [72] (1975) AC 135 at 149-152

   [73] (1975) 135 CLR 321

4. Accordingly if it be found that the facsimiles were each published on occasions of qualified privilege, that privilege was destroyed by the defendant’s malice.

Qualified privilege pursuant to Defamation Act, 2005

1. I will now consider the fourth facsimile as if it were subject to the Act. The defence of qualified privilege is that contained in s 28 of the Act.

2. Relevantly, pursuant to section 28(1)(c) of the Act, the defendant must prove that his conduct in publishing the defamatory matter was reasonable in the circumstances.  Subsection 28(3) sets out the matters which a Court may take into account including the seriousness of any defamatory imputations, and the extent to which the matter published distinguishes between suspicions, allegations and proven facts.

3. In subsection 28(4) the defence of qualified privilege is also defeated if the plaintiff proves that the publication was actuated by malice.

4. In respect of the fourth facsimile I repeat my findings in respect of the facsimiles at common law.  The privilege which was otherwise available to protect the defendant was destroyed by malice.  In addition the defendant has failed to establish that his conduct was reasonable, and the defence of qualified privilege under the Act must fail in any event.

5. It follows that the plaintiff is entitled to judgment in respect of each of the four subject defamatory publications.  I turn now to the assessment of damages.  I propose to assess all four publications under common law principles.

Damages

Principles

1. In Rogers v Nationwide News Pty Ltd[74], Hayne J said:

   The three purposes to be served by an award of damages for defamation are identified in the joint reasons in Carson v John Fairfax & Sons Ltd:

   (i)    consolidation for the person distress and hurt caused to the appellant by the publication.

   (ii)     reparation for harm done to the appellants personal, and in this case, professional reputation.

   (iii)    the vindication of the appellant’s reputation.

   As pointed out in Carson, 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.

   [74] (2003) 77 ALJR 1739 at [60]

2. In John Fairfax Publications Pty Ltd v O’Shane (No2)[75] the Court of Appeal affirmed that:

   the law should place a high value upon reputation and in particular upon the reputation of those whose work and life depend upon their honesty, integrity and judgment.

   [75] [2005] NSWCA 291 at [25]

3. In Morgan v Odhams Press Limited,[76] it was held that where a publication is limited to few people, the award of damages will be modest, and may be further reduced if none of them treat the defamatory material as having any credibility.

   [76] [1971] 1 WLR 1239 at 1262

Submissions of counsel

1. The defendant’s counsel, Mr Floreani, inter alia, submitted that the publication was limited to Mr & Mrs Scardigno, and that it was clear from the latter’s evidence that the plaintiff still enjoys their confidence.  In effect he submitted that it was indeed unlikely that they would have believed anything in the facsimiles because even more serious allegations were being made about Mr Scardigno, which they knew to be false.  Because the facsimiles did contain those allegations against Mr Scardigno, there was no likelihood that the facsimiles would be published to anyone else.  He submitted that the facsimiles were obviously confidential to Mr Scardigno, this ought also limit the quantum of any damages.  He also referred to the fact that the plaintiff did not complain to the defendant during the exchange of facsimiles.  This, he submitted, was of significance to the assessment because the defendant was not warned to tone down the facsimiles; and the plaintiff continued to correspond in his usual manner.  He submitted that any damages to be awarded to the plaintiff must be nominal.

2. The plaintiff’s counsel, Mr Doyle, referred to what he described as the plaintiff’s pre-publication reputation “amongst the Italian community as someone who was trustworthy, honest and there to help even for free those who need help”.

3. He conceded that in the case of a limited publication the award of damages will always be moderate.

4. He submitted that in this case the award must satisfactorily vindicate the plaintiff’s reputation up to the time of the judgment and into the future. He submitted that as there were four distinct publications, the court ought separately quantify damages in respect of each of the four publications.

5. He submitted that the allegations of lack of professionalism and incompetence go to the heart of the role of a legal practitioner, and are accordingly very serious.  He submitted that it was an appropriate case for an award of aggravated damages in respect of each of the four publications.

1. He submitted that in the event that I concluded that the defendant had acted with malice it was an appropriate case for exemplary damages in respect of the first three facsimiles.

2. He referred to what he described as some comparable cases of limited publications namely Morgan v Mallard[77], Pearce v Hailstone[78], and Allen v Johnstone.[79]

   [77] (1997) 68 SASR 184 ($10,000)

   [78] (1992) 58 SASR 240 ($13,000, but could have been doubled, at p 256)

   [79] [2004] SADC 56 ($15,000 general damages)

3. He submitted that the plaintiff ought be awarded, as special damages, the legal costs paid by him for work performed by his solicitors before the commencement of the within proceedings.

Discussion

1. Mr Doyle sought orders that the undertakings given by the defendant until further order on 15 January 2008 remain in place.

2. In my opinion, on the unusual facts of this case, the fact that the four facsimiles were published by the defendant to the Scardignos alone is the significant factor affecting the assessment of damages, notwithstanding the need to place a high value upon the reputation and integrity of the plaintiff as a legal practitioner.  I have had regard to a number of decisions concerning the effect of limited publications.[80]  

   [80]   See Trantum v McDowell [2007] NSWCA 138; Zarth v Williamson [2006] NSWCA 246.

3. I will now discuss the particular submissions of counsel.

Special damages

1. The plaintiff claimed special damages under two broad heads.

2. Firstly the plaintiff claimed for the loss of time which he was obliged to divert from his legal practice in seeking advice from his solicitors.  He estimated that he had diverted about 10 – 20 hours of that time prior to the proceedings being issued, and about the same time after that time.  He therefore sought that number of hours at the relevant hourly rate.

3. It is trite that special damages may be awarded in defamation actions and damages are awarded not only for loss of employment but for general business losses.[81]

   [81]   Lewis v Daily Telegraph Ltd (1963) 1 QB 340

4. While I have no doubt that the plaintiff did devote that time to enable him to obtain advice, and, ultimately to institute the within proceedings, in my opinion the evidence is insufficient to enable me to conclude that the loss of that time was productive of any financial loss.  I simply cannot conclude on the state of the evidence whether the loss of time in fact resulted in a loss of income, nor whether the plaintiff had nonetheless consulted with the same number of clients.[82]

   [82]   Middendorp Electric Co Pty Ltd v Sonneveld [2001] VSC 312 at [240]

5. Accordingly this aspect of the claim for damages must fail.  As to whether this work of the plaintiff could be included in some order for costs in due course, the High Court, in Cachia v Hanes[83], has now made it clear that no reimbursement should be allowed for the time spent by a party in providing instructions to his solicitors.  See also Rowan v Cornwall (No6) (2002) SASC 234 at [15]-[17]; and Dalgety Australia Operations Limited v FF Seeley Nominees Pty Ltd (No2) (1988) 49 SASR 75 at 92.

   [83] (1994) 179 CLR 403 at 414

6. Secondly the plaintiff claimed the costs paid by him to his solicitors in the sum of $5,139.60, for work undertaken prior to the commencement of proceedings.

7. The plaintiff’s counsel was not able to point to any authority in which a claim for payment of legal costs had been allowed as part of a claim for damages.

8. Mr Doyle did however refer to ABC v Comalco[84] in which a plaintiff was permitted to claim as damages those sums paid by it to a publicist who was engaged to restore the public reputation of the plaintiff.  In that case those sums of money were treated as payments by the plaintiff pursuant to its obligation to mitigate any losses.

   [84] (1986) 12 FCR 510 at 587

9. I note that in Austrust v Astley[85], Mullighan J included some legal costs incurred by the plaintiff in mitigating its losses as part of the award of damages, in a professional negligence claim.  I readily accept that mitigation losses may in principle be recoverable as damages.

   [85] 60 SASR 354

10. I do not however accept that on the evidence in this case the costs paid by the plaintiff to his solicitors prior to the institution of the within proceedings, fall within the concept of a mitigation loss.

11. In the subject case the publications of the defamatory imputations were limited and contained.  While some of those legal costs would undoubtedly have been directed to seeking an apology from the defendant, they are not of the same nature as those in the Comalco case.  In my opinion the costs paid to those solicitors properly form part of an award of costs, and cannot be claimed as damages.[86]

    [86]   See Rowan v Cornwall (No5) [2002] SASC 160

Comparative Awards

1. In Broome v Cassell & Co Ltd,[87] Lord Hailsham said that “the whole process of assessing damages is essentially a matter of impression and not addition”.

   [87] [1972] AC 1027 at 1072

2. Although the reference to other awards of damages may be of limited assistance, it appears that a court is permitted to have some regard to them.[88]

   [88]   Rogers v Nationwide News (2003) 77 ALJR 1739 at 1752

3. I found little assistance from the respective decisions in the cases referred to by counsel.  I was however able to obtain some assistance from the reasons for decision in two interstate cases.  The factual situations in the respective cases of Zareth v Williamson [2006] NSWCA 246; and Flavell v Mbuzi [2005] QDC 356 are not dissimilar to those in this subject case. In Zareth’s case clients of the plaintiff firm of solicitors were found to have defamed them in letters written to the Legal Services Commission and to a finance company.  In that case the court awarded quite sufficient compensatory damages because of the substantial affect upon the plaintiffs’ professional reputations.  In the case of Flavell v Mbuzi the court had assessed damages in respect of two letters grossly defamatory of a barrister written by an “inexperienced disgruntled self-represented litigant” to court officers.

4. The court[89] accepted that the reputations of legal practitioners are of the utmost importance, but took into account that the letters could not have been treated as credible by the recipients.  The court assessed compensatory damages including aggravated damages in the sum of $15,000.

   [89]   Tutt DCJ.  See also Martin v Bruce [2007] NSWDC 264

Aggravated Damages

1. Aggravated damages may be awarded to compensate the plaintiff for the manner in which the defamatory matter was published and for the subsequent conduct of the defendant.  Conduct of the defendant from the time of publication until this judgment including the defendant’s conduct at the trial is a relevant factor.[90]  In Thompson & Hsu v Commissioner of Police [1998] QB 498 the court said that in determining whether aggravated compensatory damages should be awarded, it may take account of any “high handed, insulting or malicious behaviour at the time the publication occurs”. The amount awarded for aggravated damages is not a discrete head of damages, but is included in the award of compensatory damages. The award of damages is to compensate the plaintiff, not to punish the defendant. Whereas exemplary damages focus upon the outrageous character of a defendant’s conduct for the purpose of punishing the defendant, aggravated damages focus upon whether that conduct has had an additional effect upon the plaintiff’s pride. The plaintiff relies principally upon three matters in support in his claim for aggravated damages. They are respectively the manner in which the defendant has conducted the litigation; malice at the time of publication; and his failure to apologise.

   [90]   Triggell v Pheeney (1951) 82 CLR 514

2. The defendant’s conduct at the trial is a significant matter.  As I have found, his criticisms of the plaintiff during his evidence at the trial were more vituperative than that contained in the defamatory facsimiles.  While there is some doubt as to the relevance of the failure to apologise,[91] in this case, the defendant’s explanation for failing to apologise was indicative of his general lack of good faith.  I do not need to repeat my findings as to malice at the time of publication.  Balanced against these matters is the limited and contained publication.  In my opinion this is an appropriate case for increased compensatory damages to allow for the effect upon the plaintiff of the defendant’s conduct, including that at trial.[92]

   [91]   Carson v John Fairfax (1993) 178 CLR 44

   [92] cf Cornwall v Rowan (2004) 90 SASR 369 at [805]

Exemplary Damages

1. An award of exemplary damages is to punish the wrong doing of the defendant.  I am not satisfied that such an award is warranted on the facts of this case.  The defendant was at the time a self-represented party.  He had not been warned to tone down his facsimiles.  He genuinely believed he was being treated poorly by his former friends.  Even though he was represented at trial, I take into account the state of his health.  I am of the opinion that compensatory damages, including an award of aggravated damages is sufficient punishment and deterrence.  I do not need to consider the financial circumstances of the defendant in the event. 

Single sum or four separate awards

1. I readily accept the submission that as each of the four facsimiles gives rise to a separate cause of action, in the ordinary course of events a separate award of damages ought be made for each publication.[93] In Goyan v Motyka,[94] the Court of Appeal expressly left open the question whether a single sum ought be made in the proper exercise of the discretion in the case of multiple publications, albeit pursuant to the Defamation Act, NSW.

   [93]   See Gillooly, at pages 82 and 86

   [94] [2008] NSWCA 28 at [111] - [113]

2. In Martin v Martin v Hall, Walters J, in assessing damages in a case in which a defendant had placed a sign, defamatory of the plaintiff near his home, on five separate occasions said:

   It may be that as several separate libels are alleged in the Statement of Claim, I should award separate damages for each of them constituting as each does a separate cause of action [Webber v Birkett (1923) 2 KB 152]. It seems to me, however, that whether the course of awarding a single sum should be adopted depends very much on the nature of the issues raised on the pleadings, and that, in any case, the question falls to be determined in the light of all the circumstances of the case.

3. In that case His Honour concluded that it is within the discretion of the court to award a single sum for the five separate causes of action.[95]

   [95]   See Muir v Modern Magazines (Holdings) Ltd (1979) Qd R 436, Toomey v Mirror Newspapers (1985) 1 NSWLR 173 and Pedley v Cmabridge Newspapers [1964] 1 ELR 988

4. In my opinion, despite the additional imputations which were made in the third and fourth facsimiles, the substance of the defamatory material, was common to all four facsimiles.

5. The facsimiles were only published to the Scardignos.  This is in my opinion the sort of case where a single award of damages ought be made.

6. It avoids the risk of double dipping.  Were I to order separate damages I would have awarded the same general damages in respect of each of the first and second facsimiles, and at a slightly higher level, have awarded the same general damages in respect each of the third and fourth facsimiles.

Injunctive relief

1. The subject publications occurred nearly five years ago.  I note that the undertakings given by the defendant to the court remain in place.  Although I was not asked by the plaintiff to grant injunctive relief, I would not be inclined to grant that relief given the efflux of time.

Conclusion

1. I have no doubt that the plaintiff was justifiably concerned about the quite serious attacks upon his reputation as a legal practitioner contained in the subject four facsimiles.  While I accept the need to award a sum sufficient to vindicate the plaintiff, I must have regard to the extremely limited and contained publications.  I accept the submission of the defendant’s counsel that the publication was limited to the Scardignos.

2. Mr Scardigno was the subject of even more serious allegations in the four facsimiles.  I infer that he would have regarded the defamatory material about him as completely false.   I accept, of course, Mrs Scardigno’s evidence that she had some concerns about the plaintiff when she first read the four facsimiles.  The fact that the defendant apparently had professed to have some legal knowledge makes the effect of the publications more serious than in Flavell’s case.  Balanced against that is that the plaintiff still enjoys the trust of the Scardignos as their legal practitioner, and that no one else has read the defamatory material.  It does not matter in this assessment whether the fourth facsimile was subject to the Act or at common law.

3. Doing the best that I can I can on the evidence before me I assess compensatory damages in the sum of $20,000 which sum includes aggravated damages.

4. Interest on that sum should run from the time of the first publication on 8 October 2005, at the rate of 2.5% per annum representing half the appropriate rate of interest over that period.  I award the sum of $2,450 to the plaintiff in respect of interest.

5. There will be judgment for the plaintiff against the defendant in the sum of $22,450 inclusive of interest.

6. I will hear the parties as to costs.