Trott v Rajoo
[2020] WADC 144
•13 NOVEMBER 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: TROTT -v- RAJOO [2020] WADC 144
CORAM: BURROWS DCJ
HEARD: 10 & 11 SEPTEMBER 2020
DELIVERED : 13 NOVEMBER 2020
FILE NO/S: CIV 1393 of 2019
BETWEEN: MATTHEW TROTT
First Plaintiff
LYNDAL TROTT
Second Plaintiff
AND
ANSUYA RAJOO
Defendant
Catchwords:
Defamation - Assessment of damages - Turns on its own facts
Legislation:
Defamation Act 2005 (WA)
Result:
General damages of $20,000, aggravated damages of $10,000 awarded to the first plaintiff
General damages of $20,000, aggravated damages of $10,000 awarded to the second plaintiff
Representation:
Counsel:
| First Plaintiff | : | Mr R V Graham and Mr I W Priddis |
| Second Plaintiff | : | Mr R V Graham and Mr I W Priddis |
| Defendant | : | No appearance |
Solicitors:
| First Plaintiff | : | Vogt Graham Lawyers |
| Second Plaintiff | : | Vogt Graham Lawyers |
| Defendant | : | Not applicable |
Case(s) referred to in decision(s):
Accommodation West Pty Ltd v Aikman [2017] WASC 157
Armstrong v McIntosh [No 4] [2020] WASC 31
Barrow v Bolt [2014] VSC 599
Bowden v KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig and Chapman [2019] NSWDC 98
Bristow v Adams [2011] NSWDC 11
Brown v Kirkpatrick (The Magistrates Court of South Australia, 31 January 2019)
Cantwell v Sinclair [2011] NSWSC 1244
Cao v Liu [2013] NSWDC 172
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
Clarke v Larard [2018] QDC 247
Cripps v Vakras [2014] VSC 279
Dye v Commonwealth Securities Ltd (No 2) [2012] FCA 407
Dye v Commonwealth Securities Ltd [2012] FCA 242
Ell v Milne (No 8) [2014] NSWSC 175
Enders v Erbas & Associates Pty Ltd (No 2) [2013] NSWDC 44
Flood v Times Newspapers Ltd [2012] 2 AC 273; [2012] 4 All ER 913
French v Fraser (No 3) [2015] NSWSC 1807
Giovannetti v New South Wales [2013] NSWSC 1960
Gluyas v Tenana [2008] VCC 1161
Graham v Powell (No 4) [2014] NSWSC 1319
Haddon v Forsyth [2011] NSWSC 123
Higgins v Sinclair [2011] NSWSC 163
Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652
John v MGN Ltd [1997] QB 586; [1996] 3 WLR 593
Knell v Harris (No 5) [2018] WADC 177
Lewis v Daily Telegraph Ltd [1964] AC 234; [1963] 2 All ER 151
Luke v Richardson [2014] WADC 27
Mallegowda v Sood (No 6) [2018] NSWDC 281
Maras v Lesses [2016] SADC 40
Moroney v Zegers [2018] VSC 446
Oskouie v Maddox [2019] NSWSC 428
Osuamadi v Okoroafor [2011] NSWDC 1
Phonographic Performance Ltd v Maitra [1998] 2 All ER 638
Rayney v The State of Western Australia [No 9] [2017] WASC 367
Raynor v Murray [2019] NSWDC 189
Rookes v Barnard [1964] AC 1129
Ryan v Premachandran [2009] NSWSC 1186
Sands v The State of South Australia [2015] SASCFC 36; [2015] 122 SASR 195
Schlaepfer v ASIC [2019] NSWSC 1644
Smith v Jones [2020] NSWDC 262
Smith v Lucht [2015] QDC 289
Smith v Stevens [2018] WASC 95
Stanton v Fell [2013] NSWSC 1001
Stevens v Boyle [2012] SASC 232
Stevens v Mayberry [2012] SASC 220
Stokes v Ragless [2017] SASC 159
Stone v Moore [2015] SADC 130
Szymczak v Balijepalli (No 2) [2019] FCA 1093
Tassone v Kirkham [2014] SADC 134
Templar v Watt (No 3) [2016] NSWSC 1230
The Gleaner Co Ltd v Abrahams [2004] 1 AC 628
Triggell v Pheeney (1951) 82 CLR 497
Wagner v Nine Network Australia Pty Ltd [2019] QSC 284
Woolcott & Seeger [2010] WASC 19
Yunghanns v Colquhoun-Denvers [2019] VSC 433
BURROWS DCJ:
Introduction
The first plaintiff, Matthew Trott and second plaintiff, Lyndal Trott, are husband and wife who at the material time lived next door to the defendant, Ansuya Rajoo. On 22 and 28 October 2018 and on 19 March 2019 the defendant published by email three publications that are defamatory of the first and second plaintiffs.
On 6 March 2020 judgment in default of appearance was entered in favour of the first and second plaintiffs. On that date a permanent injunction was granted by her Honour Lonsdale J restraining the defendant from publishing by whatever means any allegations or statements concerning the plaintiffs or either one of them to the effect that:[1]
[1] Orders of her Honour Judge Lonsdale made on Friday, 6 March 2020, par 2a - j.
a.there are reasons to suspect or to investigate whether the Plaintiffs (or either one of them) murdered their son, Sam Trott;
b.the circumstances leading to the death of the Plaintiff's son, Sam Trott, were suspicious and there are reasons to suspect or investigate the Plaintiffs (or either one of them) involvement in those circumstances;
c.the Plaintiffs (or either one of them), with malign intent, conditioned their son, Sam Trott, to swim in the lake in which he drowned;
d.the Plaintiffs (or either one of them) are a danger to their children;
e.the Plaintiffs (or either one of them) have been or are engaged in a campaign of intimidation, vilification, harassment and/or rumour mongering against the Defendant;
f.the Plaintiffs (or either one of them) have behaved or are behaving in a manner which was (or is) intimidatory, threatening or likely to intimidate or be threatening to the Defendant;
g.the Plaintiffs (or either one of them) have been or are spying on the Defendant;
h.the Plaintiffs (or either one of them) is or has been stealing the Defendant's mail;
i.there are reasons to suspect that the Plaintiffs (or either one of them) poisoned the Defendant's dog;
j.the Plaintiffs (or either one of them) are dangerous;
…
The terms of the permanent injunction particularised in pars 2a ‑ j above differ from the imputed meanings pleaded in the statement of claim. It was submitted to me in the course of the hearing that it is open to me to find some nuance of the meanings pleaded by the plaintiffs in the statement of claim and those nuances can be found in the injunction meanings, particularly in regards to pars 2a ‑ c above. For the reasons that follow I am satisfied that the majority of the pleaded imputations have been made out and it is not necessary to find nuanced meanings as in the terms contained in the injunction.
The hearing
The evidence in support of the case was adduced by way of oral evidence from the first and second plaintiffs, Mr Trott's uncle, Paul McEvoy, and by way of affidavit.[2] The plaintiffs were represented by the same counsel. There was no appearance by or on behalf of the defendant.
[2] Exhibits 15 and 16.
Background
The first plaintiff is a company director engaged in the provision of training services. The couple had three children; Thomas who was born on 19 November 2010, Sam who was born on 21 February 2012 and Charlie who was born on 5 April 2018. Sam was diagnosed with autism spectrum disorder in 2014 at the age of two. The Trott family moved into a property at 10 Walbrook Mews, Landsdale on 11 March 2011. The defendant lived in the adjoining property at number 8 Walbrook Mews with her partner and children.
On the morning of 9 December 2014 the second plaintiff was at home with Sam and his brother. At about 10.45 am workmen arrived to install a mirror in the games room of the house located next to the kitchen and dining room. The second plaintiff assisted the tradesmen by moving equipment into the room. As she was doing so she heard the alarm on the refrigerator which warns of the door being left open. She could see Sam sitting on the kitchen floor in front of the refrigerator listening to music on an iPad and told Sam to close the refrigerator door. About 30 seconds later she heard the alarm again so she again called out to Sam but he was no longer there. The second plaintiff immediately noticed that the front door was open and started to search for Sam with the help of the workmen. In the following 23 hours an extensive search involving hundreds of members of the public, the State Emergency Services, Fire and Emergency Authority and Police was conducted.[3]
[3] Exhibit 5.
Regrettably, Sam was found deceased the following morning at approximately 9.30 am by police divers in Snake Lake at Warradale Park which is located some 600 m from the family home.[4]
[4] Exhibit 2.5, Google directions aerial distance calculation of 10 Walbrook Mews to Warradale Park.
The search for Sam and the ultimate discovery of his body was extensively reported on by online, television and print news media.[5]
[5] Exhibits 3 and 4.
An inquiry into the death of Sam was conducted by Coroner Barry King. The learned coroner returned a finding on 6 January 2016 that Sam had entered the waters of Snake Lake and become immersed leading to his death by drowning. He found the death occurred by way of accident.[6]
[6] Exhibit 5, record of investigation into death, BP King Coroner, 6 January 2016.
On Father's Day, 2 September 2018 the defendant went to the plaintiffs' home with her son who was aged about nine at the time. Whilst standing at the front door she accused the plaintiffs of spying on her, of spreading false malicious rumours about her and alleged that the first plaintiff had been recording her on a listening device. As she was leaving she said words to the effect that if the plaintiffs did not turn off the listening devices and stop spreading rumours about her she was going to report them to inspector Gary Lewis.[7] Inspector Lewis is a police inspector who had been involved in the search for Sam. He was the police spokesperson in a number of media releases.[8]
[7] ts 52 - ts 53 (evidence of the first plaintiff); ts 82 (evidence of the second plaintiff).
[8] Exhibit 3, article 1 page 3 - West Australian newspaper Wednesday, 10 December 2010; exhibit 3, article 2 page 11 - PerthNow, 10 December 2014; article 3 page 17 - ABC News, 10 December 2014; article 4 page 21 - WA Today, 10 December 2014; article 5 page 26 - West Australian newspaper, Thursday, 11 December 2014, article 6 page 31 - Wanneroo Weekender Community Newspaper, 11 December 2014; exhibit 4, Channel 7 news report, 10 December 2014, Channel 9 news report, 10 December 2014.
The plaintiffs were shocked by the defendant's actions. Prior to Father's Day 2018 the relationship between the plaintiffs and the defendant and her family had been neighbourly. They had been on good terms, with the plaintiffs occasionally enjoying a cup of tea with the defendant. The plaintiffs attended the 21st birthday party of the defendant's son. There was no animosity between the parties. The younger child of the defendant had attended the same primary school as the plaintiffs' children, St Elizabeth Catholic Primary School, for a period of time.[9] By September 2018 it seems the defendant's relationship with her partner had broken down and he was no longer residing at 8 Walbrook Mews.
[9] ts 52 (evidence of the first plaintiff); ts 83 (evidence of the second plaintiff).
The second plaintiff wrote a letter to the defendant in the name of both plaintiffs which was left in the defendant's letterbox the following day.[10] In that letter the plaintiffs denied having spread rumours about the defendant and assured her that they had not spoken about her in a derogatory way to anyone. They also denied that the first plaintiff had ever used a listening or recording device. They invited the defendant to sit down with them over a cup tea to discuss any concerns or issues that she had with them. The defendant did not respond to that letter.
[10] Exhibit 1.
First publication and second publication
On 22 October 2018 the defendant sent an email to Inspector Lewis. The email was sent at 2.09 pm.[11] A copy of this email is Annexure A to these reasons (the first publication). The email came to the first plaintiff's attention in early November 2018. He was contacted whilst on a business trip in Brisbane by the principal of St Elizabeth Catholic Primary School, Ms Carmel O'Shaughnessy. When the first plaintiff returned to Perth he went to see Ms O'Shaughnessy. That meeting took place in early November. She advised him of the content of the first publication and an email that the defendant had sent to her on 28 October 2018 at 5.05 pm (the second publication).[12] A copy of the second publication is Annexure B to these reasons.
[11] Exhibit 8.
[12] Exhibit 7.
The content of the first and second publications caused the first plaintiff to become extremely upset. He concluded that he had to tell his wife of their contents. Copies of the emails were then provided to the first plaintiff who took them home and explained the contents of them to his wife before giving her a copy to read in an attempt to, as he described it, soften the blow. She was also distressed and shocked by the content of the emails.
The pleadings
The statement of claim pleads:[13]
[13] Plaintiffs' statement of claim dated 15 January 2020, pars 26 - 27.
26.The [first publication] in its ordinary and natural meaning, conveyed and was understood to convey the following defamatory imputations in respect of the First Plaintiff:
a.The First Plaintiff conspired with the Second Plaintiff to murder their autistic son, Sam; alternatively,
b.there are reasons to suspect the First Plaintiff conspired with the Second Plaintiff to murder their autistic son, Sam;
c.The First Plaintiff conditioned his autistic son, Sam, so that he would drown; alternatively,
d.there are reasons to suspect the First Plaintiff conditioned his autistic son, Sam, so that he would drown;
e.The First Plaintiff is intimidating the Defendant by trespassing on her property at night and skulking in the bushes with a torch; alternatively,
f.the First Plaintiff is intimidating the Defendant by trespassing on her property at night;
g.the First Plaintiff has been spreading nasty rumours about the Defendant which are untrue;
h.The First Plaintiff is spying on the Defendant and monitoring her movements;
i.there are reasons to suspect the first plaintiff breached the Surveillance Devices Act 1988 (WA) by using a listening device to record a private conversation between the Plaintiffs and the Defendant;
j.the First Plaintiff is engaged in a campaign of intimidation toward the Defendant;
k.there are reasons to suspect the First Plaintiff is a danger to his children in that he would knowingly cause them harm;
l.there are reasons to suspect the First Plaintiff has become mentally unstable because of the death of his son, and is dangerous;
m.there are reasons to suspect the First Plaintiff poisoned the Defendant's dog;
n.the First Plaintiff is evil.
27.The [first publication] in its ordinary and natural meaning, conveyed and was understood to convey the following defamatory imputations about the Second Plaintiff:
a.the Second Plaintiff conspired with the First Plaintiff to murder their autistic son, Sam; alternatively,
b.there are reasons to suspect the Second Plaintiff conspired with the First Plaintiff to murder their autistic son, Sam;
c.the Second Plaintiff conditioned her autistic son, Sam, so that he would drown; alternatively,
d.there are reasons to suspect the Second Plaintiff conditioned her autistic son, Sam, so that he would drown;
e.the Second Plaintiff has been spreading nasty rumours about the Defendant which are untrue;
f.the Second Plaintiff is spying on the Defendant and monitoring her movements;
g.the Second Plaintiff is engaged in a campaign of intimidation toward the Defendant;
h.there are reasons to suspect the Second Plaintiff is a danger to her children;
i.there are reasons to suspect the Second Plaintiff has become mentally unstable because of the death of her son, and is dangerous;
j.there are reasons to suspect the Second Plaintiff poisoned the Defendant's dog; and
k.the Second Plaintiff is evil.
In respect of the first plaintiff there are alternate imputations pleaded in pars 26a ‑ d and 26e ‑ f. That is also the case in respect of the second plaintiff in par 27a ‑ d.
Establishing defamatory meaning
Whether a publication is capable of bearing the meanings pleaded by the plaintiffs is a question of law. If it is determined that the meanings as pleaded by the plaintiffs are capable of arising from the publication, then it is a question of fact whether the publication bears those meanings.[14]
[14] Woolcott & Seeger [2010] WASC 19 [10].
The law of defamation adopts the 'single meaning rule'. This rule provides that notwithstanding different people may understand a statement in different ways the court must arrive at only one meaning. The rule was discussed by Lord Kerr in Stocker v Stocker, which provides the following guidance for determining which possible meaning may be chosen:[15]
[35]It is then for the judge to decide which meaning to plump for. Guidance as to how she or he should set about that mission was provided in Jeynes (mentioned in para [13] above). At para [14], Sir Anthony Clarke MR set out the essential criteria:
'(1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve, but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking, but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non‑defamatory meanings are available. (3) Over‑elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any "bane and antidote" taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. (7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, "can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation …" (see Eady J in Gillick v Brook Advisory Centres approved by this court [2001] EWCA Civ 1263 at para [7] and Gatley on Libel and Slander (10th edn), para 30.6). (8) It follows that "it is not enough to say that by some person or another the words might be understood in a defamatory sense." Nevill v Fine Art and General Insurance Co Ltd[1897] AC 68 per Lord Halsbury LC at 73.'
[15] Stocker v Stocker [2019] 3 All ER 647, [32] ‑ [38], (Lord Reed DP, Lady Black, Lord Briggs & Lord Kitchin agreeing).
From this, it may be summarised that the test when attributing a single meaning from a range of possibilities (both defamatory and not) is this: what would the ordinary reasonable reader consider the words to mean?[16]
[16] Armstrong v McIntosh [No 4] [2020] WASC 31 [91].
The matters complained of raise allegations of criminal conduct on the part of one or both defendants at various times. In addition to the fundamental principle of the single meaning rule, there are additional principles to be considered where publications allege criminal conduct.
Where a phrase alleges a crime there are three levels of meaning which may be inferred. Those levels of meanings are referred to as the 'Chase levels' (see Flood v Times Newspapers Ltd)[17] and are discussed in Rayney v State of Western Australia.[18] The three levels are:
1.That someone is guilty.
2.That there are reasonable grounds to suspect someone is guilty.
3.That there are reasonable grounds for investigating whether the claimant was guilty.
[17] Flood v Times Newspapers Ltd [2012] 2 AC 273; [2012] 4 All ER 913.
[18] Rayney v The State of Western Australia [No 9] [2017] WASC 367 [63].
These meanings are not exhaustive: Sands v The State of South Australia.[19]
[19] Sands v The State of South Australia [2015] SASCFC 36; [2015] 122 SASR 195 [240].
The court is required to find only one meaning of this type.
The meaning of the words is to be ascertained by the sense in which a fair minded ordinary reasonable members of the general community would understand the published words. In Lewis v Daily Telegraph Ltd Lord Reid said:[20]
The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in light of his general knowledge and experience of worldly affairs.
[20] Lewis v Daily Telegraph Ltd [1964] AC 234, 258; [1963] 2 All ER 151, 154.
The meaning of the words is to be determined by an assessment of the ordinary reasonable persons understanding of the words. The ordinary reasonable person does not interpret the publication in a precise manner but rather forms a general impression of the meaning from the words used.
In determining the meaning of words, and whether they are defamatory, it is necessary to take into account their context.[21] The plaintiffs rely in this case on the following circumstances:
1.There was intense media interest surrounding the search for and death of Sam.
2.The content of each publication as a whole.
3.The allegation is by a neighbour as opposed to a stranger.
4.The recipients of the publications were themselves likely to be aware of the circumstances surrounding the death of Sam, being a member of the police force involved in the search and the principal of the school the plaintiffs' children attended.
[21] Armstrong v McIntosh [No 4] [92].
Findings as to meanings to be attributed to the first publication
The pleadings and the terms of the injunction were usefully cross‑referenced to the first publication by the plaintiffs' counsel as follows:[22]
[22] Email to court received 11 September 2020.
26.a; the First Plaintiff conspired with the Second Plaintiff to murder their autistic son, Sam; alternatively,
First paragraph - Neighbour since 2011
Second paragraph – has had concerns for a while
[Fourth] paragraph – Matthew and [The Second Plaintiff] befriended my ex after my separation. Knowing him, he has informed them that I had concerns about the death of Sam. I knew that children with Autism could be conditioned and heard that Matthew is a director of a training company. I knew that they used to take Sam to the lake and not stop to talk to anyone on the way. Lyndal confided in me that they used to put a life jacket on Sam and get him to practice jumping into their back yard pool and told me that when he got to the lake on that day she thought he might have jumped in with a false sense of security. I brushed all of this aside …
…
26.b; there are reasons to suspect the First Plaintiff conspired with the Second Plaintiff to murder their autistic son, Sam
26.c; the First Plaintiff conditioned his autistic son, Sam, so that he would drown; alternatively,
26.d; there are reasons to suspect the First Plaintiff conditioned his autistic son, Sam, so that he would drown;
Permanent injunction meanings
a; there are reasons to suspect or investigate whether the Plaintiffs (or either one of them) murdered their son, Sam Trott;
b; the circumstances leading to the death of the Plaintiffs' son, Sam Trott, were suspicious and there are reasons to suspect or investigate the Plaintiffs' (or either one of them) involvement in those circumstances;
c; the Plaintiffs (or either one of them), with malign intent, conditioned their son, Sam Trott, to swim in the lake in which he drowned;
26.e; the First Plaintiff is intimidating the Defendant by trespassing on her property at night and skulking in the bushes with a torch; alternatively,
26.f; the First Plaintiff is intimidating the Defendant by trespassing on her property at night;
Matthew enters my property at night with a torch and looks through my bushes.
Further down - I am afraid of the Trott's. Their behavior is intimidating…
26.g; the First Plaintiff has been spreading nasty rumours about the Defendant which are untrue;
27.e (Second Plaintiff)
They have been spreading rumors about me at my son's ex school, in the neighbourhood, in the new school, at my practice and basically everywhere.
I had been working at the school doing therapy and Lyndal brought in nasty untruths about me that caused others to react and treat me badly.
26.h: the First Plaintiff is spying on the Defendant and monitoring her movements
27.f (Second Plaintiff)
They sit outside in their patio and monitor my movements and comment.
I notice that they are good at determining one's patterns and routines.
I have reason to believe that I was taped because of their movements and actions. I mentioned that if they did not stop I would report their behavior to you. They said nothing, wrote me a letter and denied everything including taping.
26.i; there are reasons to suspect the First Plaintiff breached the Surveillance Devices Act 1998 (WA) by using a listening device to record a private conversation between the Plaintiffs and the Defendant;
On fathers day before I went to the police station I went over and confronted them. I have reason to believe that I was taped because of their movements and actions. I mentioned that if they did not stop I would report their behavior to you. They said nothing, wrote me a letter and denied everything including taping.
26.j; the First Plaintiff is engaged in a campaign of intimidation toward the Defendant;
27.g (Second Plaintiff)
Permanent injunction meaning
e; the Plaintiffs (or either one of them) have been or are engaged in a campaign of intimidation, vilification, harassment and/or rumour mongering against the Defendant;
f; the Plaintiffs (or either one of them) have behaved or are behaving in a manner which was (or is) intimidatory, threatening or likely to intimidate or be threatening to the Defendant
I am afraid of the Trott's. Their behavior is intimidating and not in keeping with what they told us when they first got here that they are good people.
Entire email
26.k; there are reasons to suspect the First Plaintiff is a danger to his children in that he would knowingly cause them harm;
27.h; there are reasons to suspect the Second Plaintiff is a danger to her children
Entire email
…
26.l; there are reasons to suspect the First Plaintiff has become mentally unstable because of the death of his son, and is dangerous;
27.i; there are reasons to suspect the Second Plaintiff has become mentally unstable because of the death of her son, and is dangerous;
Entire email
…
26.m; there are reasons to suspect the First Plaintiff poisoned the Defendant's dog;
27.j (Second Plaintiff)
Permanent injunction meaning
i; there are reasons to suspect the Plaintiffs (or either one of them) poisoned the Defendant's dog
My dog was mysteriously unwell and vomiting for 3 months. I took her to 2 vets and only until I threw away the bag of food and bought a new one and brought it inside. did she stop vomiting.
…
26.n; the First Plaintiff is evil.
27.k (Second Plaintiff)
I am afraid of the Trott's. Their behavior is intimidating and not in keeping with what they told us when they first got here that they are good people.
Entire email
…
By failing to appear the defendant has taken to have admitted the allegations of fact contained in the statement of claim including the allegation of fact that the first publication bears each of the meanings pleaded, so long as they are, as a matter of law, capable of arising from the publication.[23]
[23] Phonographic Performance Ltd v Maitra [1998] 2 All ER 638, 643.
The imputation pleaded at pars 26a and 27a of the statement of claim puts the plaintiffs' case at its highest of the imputations pleaded at 26a - d and 27a - d. When considering the meaning of the imputation it must be borne in mind that this is not purported to be a statement made by a stranger. The first publication refers to the defendant being a speech pathologist and a neighbour, someone known to the plaintiffs and who was known to them at the time Sam passed away. I am satisfied the fact the words were, and were said to be, written by someone known to the plaintiffs has the effect of imparting greater credence to the words than if they were written by a stranger.
The defendant states that her concerns had been held 'for a while'. The statement was made some four years after the death of Sam. It cannot be said to be an impulsive statement made in the heat of the moment at or about the time of his death. It is a considered statement made some time later with considerable time for reflection.
Further, the content of the fourth paragraph must be considered in the context of the other allegations made in the publication; that the plaintiffs have been breaking into the defendant's home, stealing her personal effects, spying on her, monitoring her and recording her, poisoning her dog and the allegation the second plaintiff drove up behind the defendant at speed 'pushing the defendant almost off the road'.
I am satisfied in the overall context of the first publication read as a whole that the imputations pleaded in pars 26a and 27a that the plaintiffs conspired with each other to murder their autistic son Sam, are capable of arising from the first publication.
From this position I find that imputations pleaded in pars 26b ‑ d and 27b ‑ d are not capable of arising as for them to do so would attribute multiple meanings to the same words. The imputations pleaded in pars 26b - d and 27b - d are effectively encapsulated in imputation in pars 26a and 27a.
Turning to the other pleaded imputations in respect of the first plaintiff the imputation in par 26e is capable of arising from the express statements 'Matthew enters my property at night with a torch and looks through my bushes' coupled with the statement further in the first publication 'I'm afraid of the trots. Their behaviour is intimidating…' I consequently find the imputation pleaded at par 26e arises.
Pleaded imputations in pars 26g, 26h, 26i, 26j and 26m all arise from express statements contained in the first publication. Having regard to the words the first plaintiff says give rise to the imputations pleaded and the ordinary meaning of those words, I am satisfied that each pleaded meaning can and does arise in respect of the first plaintiff.
Pleaded imputations in pars 27e, 27f, 27g and 27j all arise from express statements contained in the first publication. Having regard to the words the second plaintiff says give rise to the imputations pleaded and the ordinary meaning of those words, I am satisfied that each pleaded meaning can and does arise in respect of the second plaintiff.
In respect of pleaded imputations in pars 26k, 26l, 27h and 27i, these are generalised imputations which the plaintiffs say arise by inference when considered in the context of the entire email.
In relation to pleaded imputations in par 26k, I do not accept that based on a single reference to the first plaintiff's other son, Thomas, in the body of the first publication that it can be inferred that the first plaintiff is a dangerous person and a danger to his children. That imputation is not made out.
The pleaded imputation in par 27h, that the second plaintiff is a danger to her children, however is made out. It can be readily inferred from the allegation the second plaintiff tried to run the defendants car off the road when the second plaintiff had her two children in the car at the time, that such action constituted a danger to the second plaintiff's children.
In respect of pleaded imputations in pars 26l and 27i, I do not accept the generalised imputation that there are reasons to suspect that the first plaintiff and the second plaintiff have become mentally unstable because of the death of their son and are dangerous arises. The act of conspiring to murder a child even when considered with the other acts alleged in the publication do not, in my view, lead to an inference of mental instability. Such actions could be committed by someone of sound mind. Applying the standard of the ordinary reasonable person I am not satisfied the meaning contended for by the plaintiffs arises.
I am, however, satisfied in respect of the imputations pleaded in pars 26n and 27k. The imputation that the first and second plaintiffs are evil arises on the words contained in the publication itself. The words I find that in particular give rise to the imputation are:
I am afraid of the trots. Their behaviour is intimidating and not in keeping with what they told us when they first got here that they are good people.
The reference to good person does allow an inference that a person who is not good is evil when considered in the context of the imputation that the plaintiffs have conspired to murder their son.
In summary I find that the first publication bears the following imputations in respect of the first plaintiff:
1.The first plaintiff conspired with the second plaintiff to murder their autistic son, Sam. (26a)
2.The first plaintiff is intimidating the defendant by trespassing on her property at night and skulking in the bushes with a torch. (26e)
3.The first plaintiff has been spreading nasty rumours about the defendant which are untrue. (26g)
4.The first plaintiff is spying on the defendant and monitoring her movements. (26h)
5.There are reasons to suspect the first plaintiff has breached the Surveillance Act 1998 (WA) by using a listening device to record a private conversation between the plaintiffs and the defendant. (26i)
6.The first plaintiff is engaged in a campaign of intimidation toward the defendant. (26j)
7.There are reasons to suspect the first plaintiff poisoned the defendant's dog. (26m)
8.The first plaintiff is evil. (26n)
In respect of the second plaintiff I find the first publication bears the following imputations:
1.The first plaintiff conspired with the second plaintiff to murder their autistic son, Sam. (26a)
2.The second plaintiff has been spreading nasty rumours about the defendant which are untrue. (27e)
3.The second plaintiff is spying on the defendant and monitoring her movements. (27f)
4.The second plaintiff is engaged in a campaign of intimidation toward the defendant. (27g)
5.There are reasons to suspect the second plaintiff poisoned the defendant's dog. (27j)
6.The second plaintiff is evil. (27k)
The meaning of the second publication
In par 29 of the statement of claim it pleads that the second publication was understood to convey the following defamatory imputations in respect of the first plaintiff:
a.the first plaintiff is a danger to his children;
b.the first plaintiff has been intimidating the Defendant by trespassing on her property at night and skulking around with a torch;
c.the first plaintiff and his wife have been engaged in a campaign of intimidation toward the Defendant;
d.the first plaintiff has been spying on the Defendant and monitoring her movements;
e.the first plaintiff has obtained a key to the Defendant's garage door and possibly also her house and may have trespassed and burgled the Defendant's house;
f.there are reasons to suspect the first plaintiff poisoned the Defendant's dog;
g.the first plaintiff conspired with the second plaintiff to murder their autistic son, Sam; alternatively,
h.there are reasons to suspect the first plaintiff conspired with the second plaintiff to murder their autistic son, Sam;
i.the first plaintiff conditioned his autistic son, Sam, so that he would drown; alternatively,
j.there are reasons to suspect the first plaintiff conditioned his autistic son, Sam, so that he would drown.
In par 30 of the statement of claim the second publication was understood to mean in respect of the second plaintiff:
a.the second plaintiff tried to run the Defendant off the road, while the second plaintiff had her children in the car;
b.the second plaintiff is a terrible Mother;
c.the second plaintiff is a danger to her children;
d.the second plaintiff has been spreading nasty rumours about the Defendant which are untrue;
e.the second plaintiff and her husband have been engaged in a campaign of intimidation toward the Defendant;
f.there are reasons to suspect the second plaintiff has trespassed and burgled the Defendant's house;
g.there are reasons to suspect the second plaintiff poisoned the Defendant's dog;
h.the second plaintiff conspired with the first plaintiff to murder their autistic son, Sam; alternatively,
i.there are reasons to suspect the second plaintiff conspired with the first plaintiff to murder their autistic son, Sam;
j.the second plaintiff conditioned her autistic son, Sam, so that he would drown; alternatively,
k.there are reasons to suspect the second plaintiff conditioned her autistic son, Sam, so that he would drown.
Again counsel usefully cross referenced the pleadings to the content of the second publication as follows:[24]
[24] Email to court received 11 September 2020.
29.a; the First Plaintiff is a danger to his children;
30.c; the Second Plaintiff is a danger to her children
Permanent injunction meaning
d; the Plaintiffs (or either one of them) are a danger to their children
j; The Plaintiffs (or either one of them) are dangerous
Second Paragaph - I am deeply concerned about the Trott's and especially about the welfare of their children . Here is why:
My main concern is Charlie and Thomas. Charlie cries alot and I don't hear him speak much . I also worry that they spend so much of time obsessing about me that they are not living their lives or paying much attention to their children since where are their children while they are harrassing me?
Last paragraph - This family is strange . There is something not right here. I wanted to alert you about my concern particularly as it relates to Thomas and Charlie coming in to your school ."
Understood in context of entire email including allegations about Sam.
29.b; First Plaintiff has been intimidating the Defendant by trespassing on her property at night and skulking around with a torch
However, this did not end there , Matt and Lyndal continued to do things to intimidate me at home. These included:
• Matt entering my yard at night with a torch under his arm and investigating works in my yard
Entire email
29.c; the First Plaintiff and his wife have been engaged in a campaign of intimidation toward the Defendant;
30(e) (Second Plaintiff)
Permanent injunction meaning
e; the Plaintiffs (or either one of them) have been or are engaged in a campaign of intimidation, vilification, harassment and/or rumour mongering against the Defendant;
f; the Plaintiffs (or either one of them) have behaved or are behaving in a manner which was (or is) intimidatory, threatening or likely to intimidate or be threatening to the Defendant
However, this did not end there , Matt and Lyndal continued to do things to intimidate me at home. These included:
*Matt entering my yard at night with a torch under his arm and investigating works in my yard
* Lyndal spreading lies and gossip about me in the neighbourhood
* Lyndal talking to contractors gardeners and cleaners so that I now have a problem getting anyone to do work in my home
*Matt and Lyndal passing comments over the fence to intimidate me like if Ansu thinks she is better than us she has another thought coming ,other comments about Devan and I and Neil etc. etc.
* Matt has a remote control for my garage door and has opened my door twice that I know of. I also suspect that they have a key to my home as small items like oven mitts etc have gone missing.
* My dog whose food was left outside was sick and vomited for 3 months until I changed the dog food and started keeping the food inside
* Lyndal and Matt monitoring my movements over weekends , and making comments about w ere I was going and what I was doing
*Lyndal visiting Nilashen's school to talk about me to others.
*Matt looking into my bins.
It appears that l am the only neighbour that they are having a problem with . Why??? I haven't done anything to them .I have lived on this street for 15 years without problems with other neighbours .Now I am fed up with them.
I wonder if you have similar concerns about them. You see the [Plaintiffs] are so smart everything that they have done to me they do when no witnesses are around. When Nilashen is at his dad's and I am alone .
29.d; the First Plaintiff has been spying on the Defendant and monitoring her movements;
Permanent injunction meaning
g; the Plaintiffs (or either one of them) have been or are spying on the Defendant
Lyndal and Matt monitoring my movements over weekends , and making comments about w ere I was going and what I was doing
29.e; the First Plaintiff has obtained a key to the Defendant's garage door and possibly also her house and may have trespassed and burgled the Defendant's house;
* Matt has a remote control for my garage door and has opened my door twice that I know of. I also suspect that they have a key to my home as small items like oven mitts etc have gone missing.
Finally on Fathers day this year after Matt had opened my garage door ,
29.f; here are reasons to suspect the First Plaintiff poisoned the Defendant's dog;
30.g (Second Plaintiff)
Permanent injunction meaning
i; there are reasons to suspect the Plaintiffs (or either one of them) poisoned the Defendant's dog
* My dog whose food was left outside was sick and vomited for 3 months until I changed the dog food and started keeping the food inside
29.g; the First Plaintiff conspired with the Second Plaintiff to murder their autistic son, Sam; alternatively,
30.h – Second Plaintiff
29.h; there are reasons to suspect the First Plaintiff conspired with the Second Plaintiff to murder their autistic son, Sam;
30.i – Second Plaintiff
29.i; the First Plaintiff conditioned his autistic son, Sam, so that he would drown; alternatively,
30.j – Second Plaintiff
29.j; there are reasons to suspect the First Plaintiff conditioned his autistic son, Sam, so that he would drown.
30.k – Second Plaintiff
Permanent injunction meanings
(refer above)
You see Carmel when Devan and I were together I expressed concern that Sam made his trip with such precision to the lake that it was uncanny . I suspected the [Plaintiffs]. I knew that Matt is a training director and that he could learn how to condition Sam from watching his therapist's work with him. I also knew that the [Plaintiffs] trained Sam to jump in the pool at home wearing a life jacket. I knew that Matt and Lyndal would take Sam and Thomas down to the lake in the pram with Sam upright at all hours and that they would stop for no-one as though they were training him to do something . We use to cross paths with them and they never stopped to talk but would just continue walking. I used to observe that Sam used to cry alot. Lyndal also told me that she was concerned that Sam had jumped into the lake because she felt he had a false sense of security after having been asked to jump in the pool with a life jacket on….
30.a; the Second Plaintiff tried to run the Defendant off the road, while the Second Plaintiff had her children in the car;
[The second plaintiff] with her 2 children in the car pulled up fast behind us and almost pushed me off the road I quickly went onto the left lane and she went ahead .
Understood in context of entire email; allegations about Sam
30.b; the Second Plaintiff is a terrible Mother;
I am deeply concerned about the Trott's and especially about the welfare of their children . Here is why:
Running off road incident; allegations about Sam
30.d; he Second Plaintiff has been spreading nasty rumours about the Defendant which are untrue;
* Lyndal spreading lies and gossip about me in the neighbourhood
* Lyndal talking to contractors gardeners and cleaners so that I now have a problem getting anyone to do work in my home
*Lyndal visiting Nilashen's school to talk about me to others.
In respect of the alternative imputations pleaded in pars 29g and 29h and 30h and 30i, I am satisfied for the same reasons set out in [30]‑ [32], that the meaning to be attributed is that contained in pars 29g and 30h.
I am satisfied that each of the remaining pleaded imputations are capable of arising as a result of the second publication and by failing to appear the defendant is taken to have admitted the allegations of fact contained in the statement of claim including the allegations of fact that the second publication bears each of the meanings pleaded. I find that the second publication bears each of the meanings alleged by the first plaintiff and the second plaintiff.
Third publication
The plaintiffs allege republication of the first publication to Ms O'Shaughnessy by way of email dated 28 October 2018 (the third publication). I am satisfied that such republication has been made out.
Letter to desist from further publication
On 9 November 2018 the plaintiffs instructed solicitors to issue a letter to the defendant warning her that the allegations made in the first and second publications were false, malicious, offensive, defamatory and untrue. The defendant was put on notice that if they were repeated, the plaintiffs would commence proceedings against her without further notice.[25] The defendant desisted from any further publications until 19 March 2019.
[25] Exhibit 9.
Fourth publication
On 19 March 2019 the defendant published an email to Ms O'Shaughnessy (the fourth publication). The fourth publication is Annexure C to these reasons.
In par 37 of the statement of claim it pleads that the fourth publication in its natural and ordinary meaning meant and was understood to mean in respect of the first plaintiff:
a.the first plaintiff is intimidating the Defendant;
b.the first plaintiff is up-to-something malevolent involving the Defendant;
c.the first plaintiff is such a bad neighbour his previous neighbours moved to a new house rather than continue to live next to him; and
d.there are reasons to suspect the first plaintiff conditioned his autistic son, Sam, so that he would drown.
In par 38 of the statement of claim it pleads the fourth publication in its natural and ordinary meaning meant and was understood to mean in respect of the second plaintiff:
a.the second plaintiff is maliciously spreading untrue rumours about the Defendant;
b.the second plaintiff has stolen the Defendant's mail;
c.the second plaintiff is spying on the Defendant and monitoring her movements;
d.the second plaintiff is such a bad neighbour her previous neighbours moved to a new house rather than continue to live next to her;
e.the second plaintiff is intimidating the Defendant;
f.the second plaintiff is up-to-something malevolent involving the Defendant; and
g.there are reasons to suspect the second plaintiff conditioned her autistic son, Sam, so that he would drown.
Again counsel usefully cross referenced the pleadings to the content of the fourth publication as follows:[26]
[26] Email to court received 11 September 2020.
37.a; the First Plaintiff is intimidating the Defendant;
38.e (Second Plaintiff)
I paid a visit to Wanneroo police station)… restraining order
…problems with the people
Another concerned neighbour
I am terrified of letting Nilashen play unaccompanied outside because of their behaviour. What is wrong with them?
37.b; the First Plaintiff is up-to-something malevolent involving the Defendant;
38.f; Second Plaintiff
Entire email
37.c; the First Plaintiff is such a bad neighbour his previous neighbours moved to a new house rather than continue to live next to him;
38.d (Second Plaintiff)
Lyndal and Matt have had problems with the people on the other side as well. They knew the exact comings and goings of these people and would report it to us and Lyndal and Matt could tell when they were cooking together , got involved in reporting neighbours behaviour to the police etc . Eventually these neighbours moved out.
Another concerned neighbour has informed me that if I am outside I need to have music on so that I cover my voice so the [Plaintiffs] cant hear . Why do I need to do this?
37.d; there are reasons to suspect the First Plaintiff conditioned his autistic on, Sam, so that he would drown.
38.g (Second Plaintiff)
It's either that my suspicion that they staged Sam's death is correct or there is something mentally wrong with them.
In context of the entire email, the reasonable reader is likely to interpret the word 'staged' as meaning 'planned'.
Understood in context of various other allegations made in the email.
Ordinary reader would have knowledge about Sam's disappearance, the search, his death because of intense media interests/ community response.
38.a; the Second Plaintiff is maliciously spreading untrue rumours about the Defendant;
Of recent, Lynda l has been spreading rumors in the gym about Devan . We are a family recovering from divorce. Why are the Trott's interfering?
"Checking up" on clients at practice
38.b; the Second Plaintiff has stolen the Defendant's mail;
Secondly,a while back when things were good I pointed out to Lyndal one day that I was slack in collecting my mail from my letterbox at home. Lyndal has taken this as an opportunity to steal , yes steal my mail. I have transferred some of my letters to a PO box but some referral letters from certain doctors stil come home . This last Friday I saw the mailman drop off a letter . When I went to pick it up later it was gone. Now in terms of my neighbours, my neighbour on the left cannot see my mailbox from her window , Lyndal can . In fact she has cleared out all the other hedging on her side so that she has a clear view of my driveway and postbox. This was done in October last year.
38.c; the Second Plaintiff is spying on the Defendant and monitoring her movements;
Checking up on practice/ chatting to clients causing practice to diminish
If anyone , comes to my home , Lyndal knows…
I have seen Lyndal drive to Nilashens school more than once.
Also, the [Plaintiffs] go on fake holidays. They pack themselves and their caravan off and return at some point quietly without the caravan. Then they hide in their house to see if I behave differently when they not there(! think this is what they are doing???} .
They knew the exact comings and goings of these people
I am satisfied that each of the pleaded imputations are capable of arising as a result of the fourth publication and by failing to appear the defendant is taken to have admitted the allegations of fact contained in the statement of claim including the allegations of fact that the fourth publication bears each of the meanings pleaded. I find that the fourth publication bears each of the meanings alleged by the first plaintiff and the second plaintiff.
Matters arising after the publication of the matters complained of
On 28 March 2019 the first plaintiff applied for a misconduct restraining order against the defendant in the registry of the Perth Magistrates Court of Western Australia (the MRO application). On 2 April 2019 at 3.52 pm the defendant sent an email to Ms Carmel O'Shaughnessy in which she alleged that the plaintiffs had made intimidating remarks to her which justified the defendant applying for a restraining order against them.[27] Ms O'Shaughnessy forwarded the email to the first plaintiff at 4.12 pm.
[27] Exhibit 12.
On 5 May 2019 at 5.40 pm the defendant sent a further email to Ms O'Shaughnessy in which she alleged that the first plaintiff had exposed himself to her that morning when she was outside cleaning up after her dog.[28] The first plaintiff gave evidence, which I have no hesitation in accepting, that he had not gone out of the house that day until 12 o'clock and did not expose himself. I find the allegation to be false and scandalous.
[28] Exhibit 13.
The MRO was served on the defendant by police officers on or about 13 May 2019. On 21 May there was a hearing in respect of the MRO before his Honour Magistrate Flynn as he then was.[29] The defendant appeared and represented herself at that hearing. She indicated that she would consider resolving the dispute by giving an undertaking to the plaintiffs. She has never given any such undertaking. The defendant has received and failed to reply to numerous communications sent by the plaintiffs' lawyers to her seeking an undertaking.[30] On 11 October 2019 the MRO application was withdrawn as proceedings had been instituted in this court by the plaintiffs seeking an interlocutory injunction. An interim injunction was granted by his Honour Stavrianou J on 28 October 2019.
[29] Exhibit 11, transcript of hearing before Magistrate M Flynn on 21 May 2019.
[30] Plaintiffs' statement of claim, par 45a - n.
The defendant has not engaged in these proceedings in any way.
Damages
The plaintiffs are entitled to an award of general damages to compensate each of them for the injury to their reputation and feelings. Section 34 of the DefamationAct 2005 (WA) provides that there must be an appropriate and rational relationship between the harm sustained by the plaintiffs and the amount of damages awarded.
The relevant principles in relation to the award of damages was recently summarised by his Honour Le Miere J in Woolcott v Seegar which I respectfully adopt:[31]
[31] Woolcott v Seegar [32] - [34].
32The joint reasons in Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 (60) (Mason CJ, Deane, Dawson and Gaudron JJ) identified three purposes to be served by damages awarded for defamation:
1.Consolation for the personal distress and hurt caused to the plaintiff by the publication;
2.Reparation for the harm done to the plaintiff's personal and, if relevant, business reputation; and
3.Vindication of the plaintiff's reputation.
33The theory of vindication is that an award of damages can undo part of the harm done by the defamatory statement. The plaintiff can point to the sum awarded as a demonstration to the world at large that the allegations in question were baseless. The more serious the allegations and the wider the publication the greater the sum necessary to vindicate the plaintiff. The vindicatory element of the award cannot restore matters to how they were before. A plaintiff is generally entitled to damages to reflect the injury to his reputation caused by the defamatory publication. Furthermore, the plaintiff is entitled to damages for the pain and suffering caused by the injury and its effects, that is, the hurt, humiliation and embarrassment caused by the defamatory publication: Price D and Duodu K, Defamation Law, Procedure & Practice (3rd ed), [20‑03].
34Price and Duodu, op cit, say at [20‑04] that the amount of damages awarded in respect of vindication and injury to reputation and feelings depends on a number of factors:
1.The gravity of the allegation;
2.The size and influence of the circulation;
3.The effect of the publication;
4.The extent and nature of the plaintiff's reputation;
5.The behaviour of the defendant;
6.The behaviour of the plaintiff.
Each plaintiff has a single course of action for defamation in relation to the publication of each email and notwithstanding that more than one defamatory imputation is carried by each email.[32] The court has a discretion to assess damages in a single sum.[33] Counsel agreed in the course of the hearing that it is appropriate for the court to assess damages in a single sum in respect of each of the plaintiffs in this case. Each cause of action arises from emails sent by the defendant to Inspector Lewis and Ms O'Shaughnessy. The subject matter of the emails are related.
[32] Defamation Act s 8.
[33] Defamation Act s 39.
The sum awarded must be at least the minimum necessary to signal to the public the vindication of reputation.[34] In Gleaner Co Ltd v Abrahams Lord Hoffman said:[35]
… the damages must be sufficient to demonstrate to the public that the plaintiffs' reputation has been vindicated. Particularly if the defendant has not apologised and withdrawn the defamatory allegations, the award must show that they have been publically proclaimed to have inflicted a serious injury. …
[34] Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 (Mason CJ, Deane, Dawson & Gaudron JJ).
[35] The Gleaner Co Ltd v Abrahams [2004] 1 AC 628, 647 [55]
As stated by his Honour Le Miere J in Armstrong v McIntosh [No 4]:[36]
232.The common law does not regard the plaintiff's reputation as vindicated by a symbolic award of a token sum of damages.
233.Apart from damages for economic loss, damages for defamation are 'at large'. What is awarded is a figure which cannot be arrived at by any purely objective computation.
234.Comparisons between awards for defamation are difficult. Every defamation, and every award of damages for defamation, is necessarily unique. A damages award depends upon the particular circumstances of each case. While it may be possible to compare some of the more objective factors, such as the extent of publication, and the seriousness of the defamatory matter, it may not be possible to compare other factors, such as the level of hurt and distress suffered by plaintiffs in different cases. The amount awarded should reflect the effect which the particular defamation had on the plaintiff. It follows that the drawing of direct comparisons between particular cases is apt to mislead. Nevertheless the court should take into account damages awards in other defamation cases…
235.In assessing damages the court must have regard to a wide range of matters including the mode and extent of the publication of the defamation, its gravity, and the subjective impact that the defamation has had on the plaintiff.
(footnotes omitted)
[36] Armstrong v McIntosh [No 4] [2020] WASC 31 [232] - [235].
The gravity of the allegations in this case
The allegations touched directly upon the integrity of each of the plaintiffs and the core attributes of their personality. In John v MGN Ltd Sir Thomas Bingham said:[37]
The more closely it (the defamation) touches the plaintiffs integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be.
[37] John v MGN Ltd [1997] QB 586; [1996] 3 WLR 593, 607 - 608.
It is difficult to comprehend a more serious allegation then the imputation that a parent has killed their infant son who by virtue of his autism was rendered even more vulnerable. I am satisfied that the allegations imputing the plaintiffs conspired to murder their infant child are of the utmost gravity. The imputations that they intimidated the defendant, secretly recorded her and broke into her home and poisoned her dog whilst also serious are not to the same degree.
The size and influence of the publication
In this case the publication is limited to Inspector Lewis and to Ms O'Shaughnessy. The publication to Inspector Lewis did not occasion or cause the police to conduct a criminal investigation. The first plaintiff gave evidence that he was never contacted by the police in respect of the first publication. It is evident that the influence of the publication upon Inspector Lewis was not such as to warrant investigation and was therefore of limited impact.
In respect of the republication of that email to Ms O'Shaughnessy and the two publications to Ms O'Shaughnessy it is apparent that she disclosed them to the first plaintiff at the earliest opportunity. It is also clear that she remained supportive of the plaintiffs. The evidence establishes only limited publication of the defamatory material.
The effect of the publication on the plaintiffs' reputation
The publications to Ms O'Shaughnessy were to a person who knew the plaintiffs and did not believe the allegations or think any worse of them as a result of the publications.
The publication to Inspector Lewis did not result in any investigation of the plaintiffs by police. The plaintiffs were known to Inspector Lewis as he was one of the police officers who helped coordinate the search for Sam.
There is no evidence, and it was accepted by counsel, that either of the people to whom the publications were made believe the allegations and think any worse of the plaintiffs as a result of the publications.
The plaintiffs quite properly in my view abandoned in the course of the hearing any reliance on the grapevine effect in this case. The grapevine effect was explained in Smith v Jones as being:[38]
… a concept aimed at explaining the basis upon which general damages may be awarded in defamation, conveying the notion that it is difficult to track and fully ascertain the extent of the actual damage involved in defamation beyond those to whom the material was immediately published and allowing a court a means by which to conclude that a given result was 'natural and probable'.
(citations omitted)
[38] Smith v Jones [2020] NSWDC 262 [55].
In order for an award of damages to reflect the grapevine effect, the court must be satisfied that the grapevine effect originated or sprang from the proven publication by the proven publication: Cripps v Varkras.[39]
[39] Cripps v Vakras [2014] VSC 279 [567].
There is no evidence in this case that Inspector Lewis or Ms O'Shaughnessy republished the publications to any other person.
The effect of the publication on the plaintiffs' feelings
The evidence demonstrates that the defamatory publications have had a significant and devastating impact upon each of the plaintiffs.
Evidence of the first plaintiff
The first plaintiff described the impact of the publications as sending him back into the grieving process which resulted in sleepless nights and anxiety. He described feeling like a prisoner in his own home. The plaintiffs installed security cameras to show that they had not done the things alleged by the defendant. He said their relationship with each other was placed under significant stress in addition to that caused by the death of Sam. Whilst his wife wanted to move out of the home straight away he resisted because it was the only home that Sam had lived in and they had all their memories of him in the home. He felt a strong attachment to the house and community. He said the decision whether or not to leave their home was impacted by the fact that the community had provided a tremendous amount of support in the wake of Sam's passing to the extent that a nature playground was constructed in Warradale Park which was safe and had a lot of cause and effect style equipment for use by autistic children. It was built in the memory of Sam. He described feeling connected to the community and wanting to stay there but then being in a situation where they suddenly hated living there and could not tell anyone in the community why because of the publications.
The first plaintiff gave evidence that after Sam had been diagnosed with Autism they put an enormous amount of energy and engaged professional help to assist Sam. They re‑mortgaged their house and were spending approximately $600 - $700 a week on intensive early intervention therapy to be able to bring Sam to a stage where he could talk and give eye contact. Even with that, he said it was difficult to get Sam to play a lot because a lot of the time he was lost in his own world. He described the things that Sam enjoyed as being the swing in the backyard and swimming in the family pool, both of which were used as a therapy tool. If Sam enjoyed doing things, he would then say 'again' or 'more' which would encourage him to use his language. He described some of his fondest family memories as time spent in the pool with Sam. The insinuation in the emails that the plaintiffs were in some way grooming Sam to drown himself in the lake by playing in the pool with him soured the whole memory and experience of their time with Sam.
The first plaintiff said because some of the allegations made by the defendant related to their parenting skills, his wife would bring the children in from outside if they were making too much noise and they could not have conversations in their living room because they were concerned about being overheard by the defendant. The living room of the house adjoined the neighbouring fence that separated the plaintiffs and defendant's houses. Ultimately he realised they were simply existing and not actually living their lives anymore. He felt that they were turning into bad parents because they were restricting their children's ability to play in the backyard and make noise for fear of what further publications the defendant would write.
The first plaintiff also gave evidence that when the family sold their house in April 2020 they decided to move the children to a new school. The defendant had previously worked at their child's school, providing speech therapy sessions and was Facebook friends with a number of people at the school as such they determined it was best to have a clean break for the entire family.
Evidence of the second plaintiff
The second plaintiff gave evidence that when her husband told her about the contents of the first and second publications she was shaking and felt physically ill. She described feelings of shock, disgust, anger and fear. She said she had received counselling for nearly 12 months to get over Sam's death and felt proud of herself for coming through it when the publications occurred. The fact that contained in the publications were references to the defendant speaking to their neighbours caused her distress. She said she had always had good relations with her neighbours. She felt her integrity as a mother was challenged.
After becoming aware of the publications she said she had returned to counselling, initially with the Coroner's Court counsellor on three occasions and then with a private counsellor.
The second plaintiff described being fearful of the defendant and fearful of driving into her street on the off chance that they would pass one another. She said when the children were outside playing in the pool she would stop them from running or making noise. It affected her older children as she would have them come inside rather than make a noise. She said the pool was a feature of their home she had previously associated with good memories as a family. She denied ever attempting to run the defendant off the road in her vehicle.
Findings in respect of evidence of the plaintiffs
The plaintiffs both presented as honest and reliable witnesses. They were visibly distressed when speaking about the impact of the publications upon them. I am satisfied that that their distress was genuine and heartfelt. The impact of the publications and particularly the imputation that they conspired to murder their son have had a devastating and ongoing effect upon them.
I am fortified in these conclusions by the evidence of Paul McEvoy. He is a clinical psychologist. He did not give evidence in the capacity of an expert but as a family member. He described the first plaintiff's reaction to the emails as very distressed in the context that both plaintiffs were still struggling to recover from Sam's death, resulting in them revisiting the trauma surrounding their son's death. In relation to the second plaintiff, he considered her distress to be more evident. She was more demonstrative in her distress and was unable to understand why anyone would say such things about them. He described the search for Sam after he had gone missing as something quite moving and remarkable with thousands of people on the streets looking for him. He gave evidence that he had never been involved in anything like it. I have no hesitation in accepting Mr McEvoy's evidence as to the impact of the publications on the plaintiffs.
I am satisfied as to the following:
1.That the publications have resulted in the plaintiffs selling their house and as a result their children attending new schools. The house was sold in April 2020. The plaintiffs have had to move away from the community which had been supportive of them and from the playground built in memory of Sam at Warradale Park in 2016.
2.That the plaintiffs felt unable to explain to members of the community why they were leaving when the community had afforded them so much support since the death of Sam.
3.The second plaintiff has undergone counselling as a result of the publications.
4.Before moving house the second plaintiff was scared to speak in her living room which is adjacent to the defendant's patio area for fear of being overheard.
5.The plaintiffs could no longer enjoy the pool in the backyard of the property which had been a favourite family activity and one particularly enjoyed by Sam. The second plaintiff no longer felt comfortable having her children play in the backyard for fear that the defendant would be listening to her and critiquing her parenting skills if, for example, she told one of them off for running beside the pool.
6.The impact of the publications altered the manner in which the plaintiffs parented their surviving children whilst they lived at the house. They were in a conflicted position not wanting to leave the house in which Sam had spent the entirety of his life.
7.That the feelings of the plaintiffs were deeply hurt.
The extent and nature of the plaintiffs' reputation
It is presumed that the plaintiffs have good reputations. There is no evidence before the court to suggest that the plaintiffs had anything but a good reputation as parents and members of the community prior to the defamatory publications.
The behaviour of the plaintiffs
There is nothing to suggest the behaviour of the plaintiffs has contributed to the defamatory publications.
Aggravated damages
In this case the plaintiffs claim aggravated damages.
If the circumstances of the publications or the defendant's conduct make the injury to the plaintiffs' worse, aggravated damages may be awarded to compensate the plaintiffs in the form of aggravated or aggravated compensatory damages.[40] If there is a lack of bona fide in the defendants conduct or it is improper or unjustifiable the court may award aggravated damages.[41] The court is to disregard the malice or state of mind of the defendant at the time of the publication of the defamatory material, or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiffs.[42]
[40] Rookes v Barnard [1964] AC 1129, 1221 (Lord Devlin).
[41] Triggell v Pheeney (1951) 82 CLR 497, 514 (Dixon, Williams, Webb & Kitto JJ).
[42] Defamation Act s 36.
Aggravated damages increase the quantum of compensation otherwise recoverable: Wagner v Nine Network AustraliaPty Ltd.[43]
[43] Wagner v Nine Network AustraliaPty Ltd [2019] QSC 284 [185] - [195] (Applegarth J).
In this case the plaintiffs rely upon the defendants continued publication of matters after the letter was sent by HLM Legal on 9 November 2019 and the manner in which the defendant has failed to engage in any way in these proceedings.
Failure to apologise
Despite receiving the letter from the plaintiffs' solicitors[44] the defendant has never apologised to the plaintiffs. The defendant went on to publish the fourth publication on 19 March 2019.[45] I find the defendant's conduct in further defaming the plaintiffs is lacking in bona fides and is improper. I am satisfied it has increased the injury caused to the plaintiffs.
[44] Exhibit 9.
[45] Exhibit 10.
Malice
The court is to disregard when awarding damages the malice or other state of mind of the defendant at the time of publication or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff.[46]
[46] Defamation Act s 36.
In this case I infer that the defendant was motivated by malice in making the defamatory publications, this can be inferred from the following:
1.The conduct of the defendant after what was a good neighbourly relationship in circumstances where the defendant was aware of the death of Sam and had provided support in the form of giving food to the first and second plaintiffs following his death.
2.The fourth publication after the letter had been sent by the plaintiffs' lawyer.[47]
3.The publication of further matters after proceedings had been commenced in this matter namely exhibits 12 and 13, exhibit 13 being an allegation that the first plaintiff had exposed himself to the defendant made on 5 May 2019.
4.The repetition of the first publication to Ms O'Shaughnessy.
5.The highly hurtful nature of the accusations levelled at the plaintiffs in respect of the death of Sam in the defamatory publications.
[47] Exhibit 9.
Conduct of the litigation by the defendant
It is submitted that the court should take into account the defendant's conduct and failing to appear at the proceedings and to participate thereby denying the plaintiffs the opportunity to resolve the dispute. I accept that submission.
Comparable awards
The defamatory publications are made by emails which can be easily saved, reproduced and forwarded to other people. An email is different both a letter and publication by the internet. A letter is far more restricted and the internet being far broader. Counsel for the plaintiffs have referred all cases that they were able to locate where the publication was by way of email. I have had regard to the following cases referred to in Tobin T and Sexton M, Australian Defamation Law and Practice (2003).[48] None of these cases are directly comparable or analogous to this case.
[48] Gluyas v Tenana [2008] VCC 1161; Ryan v Premachandran [2009] NSWSC 1186; Woolcott v Seeger; Osuamadi v Okoroafor [2011] NSWDC 1; Haddon v Forsyth [2011] NSWSC 123; Higgins v Sinclair [2011] NSWSC 163; Bristow v Adams [2011] NSWDC 11; Cantwell v Sinclair [2011] NSWSC 1244; Dye v Commonwealth Securities Ltd [2012] FCA 242; Stevens v Mayberry[2012] SASC 220; Stevens v Boyle [2012] SASC 232; Enders v Erbas & Associates Pty Ltd (No 2) [2013] NSWDC 44; Stanton v Fell [2013] NSWSC 1001; Cao v Liu [2013] NSWDC 172; Giovannetti v New South Wales [2013] NSWSC 1960; Luke v Richardson [2014] WADC 27; Ell v Milne (No 8) [2014] NSWSC 175; Tassone v Kirkham [2014] SADC 134; Graham v Powell (No 4) [2014] NSWSC 1319; Barrow v Bolt [2014] VSC 599; Stone v Moore [2015] SADC 130; Smith v Lucht [2015] QDC 289; French v Fraser (No 3) [2015] NSWSC 1807; Maras v Lesses [2016] SADC 40; Templar v Watt (No 3) [2016] NSWSC 1230; Accommodation West Pty Ltd v Aikman [2017] WASC 157; Stokes v Ragless [2017] SASC 159; Smith v Stevens [2018] WASC 95; Mallegowda v Sood (No 6) [2018] NSWDC 281; Moroney v Zegers [2018] VSC 446; Clarke v Larard [2018] QDC 247; Knell v Harris (No 5) [2018] WADC 177; Brown v Kirkpatrick (The Magistrates Court of South Australia, 31 January 2019); Bowden v KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig and Chapman [2019] NSWDC 98; Oskouie v Maddox [2019] NSWSC 428; Raynor v Murray [2019] NSWDC 189; Szymczak v Balijepalli (No 2) [2019] FCA 1093; Yunghanns v Colquhoun-Denvers [2019] VSC 433; Schlaepfer v ASIC [2019] NSWSC 1644; Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652; Dye v Commonwealth Securities Ltd (No 2) [2012] FCA 407.
Quantum of damages
The statements published by the defendant are seriously defamatory of the plaintiffs, they attack the integrity of each of them in the worst possible way as parents. The plaintiffs were grieving the loss of their son at the time the defamatory statements were made causing an exacerbation of the hurt that they were already suffering. I accept the evidence of each of the plaintiffs as to the impact of the publications on their feelings and the devastating effect upon them. The publications caused them to question their parenting and fear for their surviving children. The emails were published to only two people, however they were a police inspector and the principal of the school the plaintiffs' children attended. They were people to whom publication was of concern because of the positions they held in the community.
There are many factors involved in the assessment of damages and it is difficult to compare one case with another. I am unable to locate a case that is similar in terms of the seriousness of the allegations whilst at the same time not involving damage to professional reputation and of limited publication.
In all of the circumstances of this case I order damages to the first plaintiff in the total amount of $30,000; $20,000 as general damages and $10,000 as aggravated damages. I award damages to the second plaintiff in the total amount of $30,000; $20,000 as general damages and $10,000 as aggravated damages.
Interest
I am satisfied that each plaintiff is entitled to an award of interest on the whole of the amount of damages awarded at the rate of 6% per annum. The court may award interest for the whole or any part of the period between the date when the cause of action arose and the date when the judgment takes effect. In the exercise of my discretion interest will be awarded at the rate of 6% per annum on the whole of the damages awarded for the whole of the period between the date on which the writ was issued being 15 April 2019, and the date of judgment.
Costs
Section 40 of the Defamation Act provides:
40. Costs in defamation proceedings
(1)In awarding costs in defamation proceedings, the court may have regard to -
(a)the way in which the parties to the proceedings conducted their cases (including any misuse of a party’s superior financial position to hinder the early resolution of the proceedings); and
(b)any other matters that the court considers relevant.
(2)Without limiting subsection (1), a court must (unless the interests of justice require otherwise) -
(a)if defamation proceedings are successfully brought by a plaintiff and costs in the proceedings are to be awarded to the plaintiff - order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the defendant unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff; or
…
(3)In this section -
settlement offer means any offer to settle the proceedings made before the proceedings are determined, and includes an offer to make amends (whether made before or after the proceedings are commenced), that was a reasonable offer at the time it was made.
The defendant has chosen not to engage in any way in these proceedings. As a consequence, there has never been any offer of settlement in this case. It is appropriate therefore that the defendant pay the costs of the first and second plaintiff on an indemnity basis.
I will hear from counsel as to the appropriate orders to be made.
Annexure A
Annexure B
Annexure C
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JG
Associate to Judge Burrows
13 NOVEMBER 2020
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