Clarke v Larard [2018] QDC 247

DISTRICT COURT OF QUEENSLAND CITATION: Clarke v Larard [2018] QDC 247 PARTIES: Gerry Clarke (plaintiff) v Ian Larard (respondent) FILE NO/S: 1404/17 DIVISION: Civil PROCEEDING: Trial ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 4 December 2018 DELIVERED AT: Brisbane HEARING DATE: 26 November 2018 JUDGE: Reid DCJ ORDER: 1. Judgment for the plaintiff in the sum of $12,840. 2. The defendant be restrained from further false assertions about the events of 14 February 2017 in terms to be determined following further submission. CATCHWORDS: DEFAMATION – where the plaintiff and defendant are tenants at a suburban shopping centre – where the defendant sent an email to body corporate alleging the plaintiff harassed him – whether that publication of the email is defamatory – where the only defence pleaded was that the publication was not defamatory DEFAMATION – DAMAGES – where the plaintiff sought general and aggravated damages – where no proof of actual harm to reputation – where general damages awarded to recognise personal distress and harm and so vindication to reputation – where circumstances also justified award aggravated damages – where injunction also ordered Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 Queensland Newspapers Pty Ltd v Palmer [2012] 2 Qd R 239 Bennette v Cohen [2005] 644 NSW LR 81 Cerutti & Anor v Crestside Pty Ltd & Anor [2014] QCA 33 -- 1 of 16 -- 2 Triggell v Pheeney (1951) 82 CLR 497 Costello & Abbott v Random House Pty Limited (1999) 137 ACTR1 Bristow v Adams [2012] NSWCA 166 Hallam v Ross (No 2) [2012] QSC 407 Douglas v McLernon (No. 4) [2016] WASC 320 COUNSEL: R Anderson QC for the plaintiff No appearance for the defendant SOLICITORS: Bennett & Philp Lawyers solicitors for the plaintiff No appearance for the defendant Introduction [1] On 14 February 2017 a minor altercation occurred between the plaintiff and the defendant at the Turner Park Shopping Village (Turner Park). Both parties operated businesses at Turner Park. There had been a history of dispute between the body corporate which managed Turner Park, the defendant and the plaintiff about signage erected to promote businesses at Turner Park. [2] On the same day the defendant sent an email to the committee of the body corporate of Turner Park and to North Coast Body Corporate Management Services which had been engaged by the committee to assist in carrying out its duties under the Body Corporate and Community Management Act 1997 for Turner Park. [3] The email sent by the defendant is said to be defamatory of the plaintiff. He has sued the defendant claiming general compensatory damages in the sum of $150,000 and $100,000 for aggravated compensatory damages. He also claims interest and an injunction to restrain the defendant from publishing further defamatory material. [4] The defendant failed to appear at the trial despite having filed a defence. He was aware of the hearing. Indeed, he had emailed my associate in the days before the trial indicating he would not appear. -- 2 of 16 -- 3 Pleadings [5] The email was sent to John Walls, Tracey King, Garth Stone and Julie Stone and to persons at North Coast Body Corporate Management Services. The four individuals were on the committee of the body corporate. The plaintiff, who was a former chair of the body corporate, knew them all. He also knew, or had previously had dealings with, staff of the management company. He knew Ashley Clark who managed the Turner Park account for that company. [6] The email is in these terms: “Hi John and the committee & North coast management, Can you please send a further formal letter to both Clarkes not to harass or approach me if they have anything to say to myself either through there solicitor or the body Corporate. Today while returning from the Bank with my Son Christopher in hand two years old, Gerry confronted me in the carpark 11.19 am I had on purpose since I observed him in front of his unit choose to cross the carpark and void him, but Rather than this happening he cut a line direct to me got in front of my babbling about the size of the sign above Café Beerwah that it was 5 metres same as the sign I uses to have above my own shop, and rather than allow me to pass un hindered he got in front of me insisting I acknowledge the size of the sign Insisting I answer him what size Café Beerwah Sign is? I had to physically push my way past the fool more than once, if I did not have my son and carrying bank deposit book and a shopping bag I would have knocked his head off. -- 3 of 16 -- 4 I don’t come to operate my business in Turner Park to be harassed by any other owner as I would not myself interfere with the day to day operation of anyone’s business here, No One here because of the Clarkes vexatious frivolous ridiculous actions should be suffering it about time the body corporate took combines legal action against the Clarkes, these special levy’s hurt everyone financially, and appear not to solve whatever the issues are with the Clarkes but it still seems to be we must all be wrong to make the Clarkes right. Please issue them a letter, they have been asked to respect my privacy, my wish not to receive emails and not to speak to me, I am done ever attempting anything reasonable with the Clarkes, in fact perhaps Tracy can advise what’s involved in a court order that they are then not permitted to approach me or any member of my family. But first up perhaps an immediate letter from Body Corporate, or our legal representation.” [7] It is alleged in the Statement of Claim that the natural and ordinary meaning of the words in the email meant, and was understood to mean, that: (a) The plaintiff harassed the defendant and his two year old son by repeatedly using his body to block their path as they walked through the Turner Park Shopping Village carpark, requiring the defendant to push the plaintiff to get past him; -- 4 of 16 -- 5 (b) The plaintiff is a fool; (c) The plaintiff harassed the defendant and his two year old son to such a degree that it would have justified the defendant knocking his head off. [8] It is further alleged the publication of the email has damaged the plaintiff’s personal and professional reputation and caused him hurt, distress and embarrassment. It is alleged the imputations are untrue and that the defendant had in fact assaulted the plaintiff by twice pushing his body at the plaintiff. The allegations in the email were said to be “grave and highly damaging.” [9] The defendant in the email and in his defence made the following factual assertions: 1. That the plaintiff had confronted him in the carpark of Turner Park at a time when the defendant was holding the hand of his two year old son. 2. This happened because the plaintiff had deliberately walked directly towards the defendant after the defendant had taken a path as so as to avoid the plaintiff. 3. The plaintiff confronted the defendant about the size of a sign advertising one of the shops in the complex. 4. When doing so the plaintiff stopped or hindered the defendant so that he could not continue on his way by standing in his path. 5. In order to continue on his way the defendant had to physically push past the plaintiff, whom he described as a “fool”. 6. If he was not with his two year old and not carrying bank books, he “would have knocked his head off”, which clearly means he would have punched the plaintiff. -- 5 of 16 -- 6 [10] He described the plaintiff’s conduct as harassment and interfering. Until struck out the defendant also pleaded that his assertions about the altercation were substantially true. He mentioned that the email was not capable of being defamatory and constituted merely general abuse. He made no apology or retraction, despite the plaintiff’s request that he do so. The Altercation [11] The defendant’s absence from the trial means the issue must be determined only with the benefit of the evidence of the plaintiff. Fortunately, his evidence was supported by CCTV footage of the event taken from a camera fitted to the plaintiff’s business front. [12] The plaintiff said, and I accept, that the defendant spoke to him in a belligerent fashion. In my view that is consistent with the attitude of the defendant shown in the CCTV footage and in his conduct of the matter. I also accept the plaintiff’s evidence that he wanted to talk to the defendant about signage issues. [13] The CCTV footage shows that as they drew beside one another the plaintiff turned to his left taking up a position alongside the defendant’s left hand side. He did not, I find, stand in front of the defendant or block his progress at any time. They walked together in this way, but only for about four or five metres before they both stopped. The defendant can then clearly be seen turning to his left so as to face the plaintiff. He uses his right hand to hold his young son’s hand. He can then be seen taking a step directly towards the plaintiff, in what can be said to be an aggressive frame of mind. As the defendant takes the step towards the plaintiff the plaintiff backs away. The defendant again advances towards him causing the plaintiff to again back away. The -- 6 of 16 -- 7 defendant then leaves, walking in the direction of his shop. As he does so the plaintiff also leaves, getting in his car and driving away. [14] The plaintiff says that the defendant twice pushed his chest up against him during the course of this confrontation. This is not shown particularly clearly on the CCTV footage which is not as clear as one might hope but the footage clearly shows the defendant twice stepping towards the plaintiff and getting very close to him in an aggressive manner. I accept he may well have forced his chest against the plaintiff. [15] Importantly, I accept the CCTV footage is significantly inconsistent with the defendant’s recitation of events in his email of 17 February. The plaintiff was in my view not confrontational. He did not block the defendant’s path at any time. It was never necessary for the defendant to physically push his way past the plaintiff. Rather, it was the defendant who was physically aggressive, moving towards the plaintiff in the way I have earlier described. It was he who was physically confronting. The plaintiff did not appear to be at all aggressive. I might add though that the plaintiff did not appear unduly perturbed after the defendant had left and when he moved to his car and drove away. The Publication [16] Determination of what is conveyed by words used, in this case in an email, is determined objectively. The question is resolved by consideration of what an ordinary and reasonable person would consider the words would convey. Were the words used likely to cause an ordinary reasonable person to think less of the plaintiff? (see Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 at 473, 484). [17] In Queensland Newspapers Pty Ltd v Palmer [2012] 2 Qd R 239 Boddice J, with whom McMurdo and Muir JA agreed said at paragraph 19: -- 7 of 16 -- 8 “… In deciding whether a particular imputation is capable of being conveyed in the natural ordinary meaning of the words complained of, the question is whether it is reasonably so capable to the ordinary reasonable reader. The ordinary reasonable meaning of the matter complained of may be either the literal meaning of the published matter, or what is inferred from it. However, any strained, or forced, or utterly unreasonable interpretation must be rejected. [20] The ordinary reasonable reader is a person of fair, average intelligence who is neither perverse nor morbid nor suspicious of mind nor avid of scandal. However, that person does not live in an ivory tower but can, and does, read between the lines in light of that person’s general knowledge and experience of worldly affairs. The ordinary reasonable reader considers the publication as a whole, and tends to strike a balance between the most extreme meaning that the publication could have and the most innocent meaning. That person has regard to the content of the publication. Emphasis given by conspicuous headlines or captions is a legitimate matter the ordinary reasonable reader takes into account. [21] Whilst the test of reasonableness guides a determination of whether the matter complained of is capable of conveying any of the pleaded imputations, a distinction must be drawn between what the ordinary reasonable reader (drawing on his or her own knowledge and experience of human affairs) could understand from what the defendant has said in the matter complained of, and the conclusion -- 8 of 16 -- 9 which the reader could reach by taking into account his or her own belief which has been excited by what was said. The approach to be taken must be the former, not the latter.” [18] I accept that the imputations pleaded are conveyed by the email, except that I don’t accept that the email could be understood to mean that the plaintiff harassed the defendant’s son. Any imputed apprehension of the child was in my view limited to the effect on him of the plaintiff’s allegedly harassing the defendant. I also conclude that the natural meaning of the words “knock his head off” is no more than of colloquial term to mean that he was justified in punching or otherwise assaulting the defendant, and not literally that he would have been justified in knocking his head off, or even that he would necessarily have been justified in punching him in the head. Finding [19] I accept that to falsely accuse the plaintiff in an email of harassing the defendant by blocking his path so as to require the person to physically push the plaintiff to get past him, and such that the level of harassment would have justified the person punching the plaintiff, amounts to a defamatory publication. [20] It is unnecessary to consider any defences, as in reality none are pleaded other than that the publication was not defamatory, which I reject. [21] The defendant says in his defence that the email was sent in the context of a lengthy history involving the plaintiff and the defendant concerning the administration of the Turner Park Body Corporate and that the persons to whom the published matter were sent, being the body corporate committee and manager, were “well acquainted with the plaintiff”. -- 9 of 16 -- 10 [22] In the absence of the defendant from the trial it is however not possible to know how that “lengthy history” was said to be relevant. The defendant says in the circumstances pleaded in paragraph 5(a)-(d) of the amended defence, which includes the assertion the publication was in the context of a lengthy history, that the words were not capable of being defamatory or alternatively were only capable of constituting general abuse. I have no means of knowing, in the absence of the defendant, of the way in which any person to whom the email was published was aware of the alleged “lengthy history”. I do not know the extent to which any particular recipient viewed the plaintiff or the defendant or the nature of the alleged “lengthy history” beyond what the plaintiff told me of it, supported by his wife’s evidence. [23] As I have found the words used clearly and falsely implied that the plaintiff behaved aggressively and overbearingly by harassing the defendant at a time where he was holding his two year old son’s hand, by using his body to block the plaintiff, by behaving in such a manner as to require the defendant to push the plaintiff physically in order to get past him, and by behaving foolishly and in a way that would have justified the defendant in punching him. [24] The words used in the email were defamatory of the plaintiff. The assertion in the further amended defence that it was “mere general abuse”, is without foundation. There is in any case not a dichotomy between vulgar abuse and defamatory matter as Bryson JA explained in Bennette v Cohen [2005] 644 NSW LR 81. The question is always to be answered by addressing the question I earlier set out in [16] hereof when referring to Radio 2UE Sydney Pty Ltd v Chesterton (supra). [25] Publication of the email, which carried the imputations earlier set out, involved the defamation of the plaintiff. -- 10 of 16 -- 11 Damages [26] As Applegarth J explained in Cerutti & Anor v Crestside Pty Ltd & Anor [2014] QCA 33, general damages for defamation serves three primary purposes – (a) consolation for personal distress and hurt; (b) reparation for harm to ones reputation; (c) vindication of the plaintiff’s reputation in the minds of the public. [27] In that case his Honour said at para 27: “Section 34 of the Defamation Act 2005 (Qld) … states that in determining the amount of damages to be awarded the Court is to ensure that there is ‘an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.’” His Honour continued at para 30: “Generally speaking, the cause of action in defamation concerns the tendency of an imputation to lower the reputation of the plaintiff. Unlike the cause of action in negligence, proof of loss or damage is not an element of the cause of action. Instead, the recovery of more than nominal or moderate damages by way of reparation may require proof of harm to reputation. The nature of the defamation and the extent of publication may permit some harm to reputation to be inferred.” [28] In this case there has been no proof of actual harm to reputation. Whilst that is not a necessary part of a cause of action in defamation, the lack of such evidence and my view that those who received the email were likely to base their view of the plaintiff on their own dealings with him, and not on what the defendant falsely asserted, causes me to think that issues associated with damage to reputation are not of great importance in this case. [29] Rather, the two other purposes of an award for damages referred to by Applegarth J in Cerutti’s case – namely consolation for personal distress and hurt and vindication in the minds of the public – are of greater relevance. -- 11 of 16 -- 12 [30] I accept the plaintiff’s evidence that he was personally hurt by the email. He is a man who eschews violence, valuing what he sees as his own moderate, caring and gentle character. To have been accused, as he was in the email, of causing an aggressive confrontation was understandably personally distressing. [31] It is important the award for general damages recognises this significant personal distress and the need to vindicate his reputation especially amongst those to whom the email had been sent. [32] In addition to general damages, the plaintiff seeks an award of aggravated damages. These can be awarded if there is a “lack of bona fides in the defendant’s conduct or it is improper or unjustifiable” (see Triggell v Pheeney (1951) 82 CLR 497 at 514 cited with approval in Cerutti’s case). It involves consideration of the defendant’s conduct right up to trial but is not a means of punishing a defendant. In Costello & Abbott v Random House Pty Limited (1999) 137 ACTR1 at 46 it was explained in these terms: “The concept of ‘aggravated damages’ is not, whether calculated separately or not, a different ‘head’ of damage. It focuses on the circumstances of the wrongdoing which have made the impact of it worse for the plaintiff. It is not to go beyond compensation for the aggravation of the harm to repute or feelings. It is not a means of punishing a defendant.” [33] This of course is consistent with the provisions of s 35 of the Defamation Act 2005 (Qld) referred to at para 40 of Cerutti’s case, which requires the court to “disregard the malice or other state of mind of the defendant at the time of the publication of the defamatory matter … or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff.” Thus malice or a reckless indifference to the truth or falsity of the publication does not warrant, of itself, an award of aggravated damages. However, if the plaintiff is aware of the defendant’s state of mind and this aggravates the plaintiff’s hurt feelings, then damages may be increased in order to appropriately compensate.” Assessment of damages [34] In considering an award of damages for defamation one is entitled to consider other awards, including awards in other states (see generally the observations of Applegarth J in Cerutti’s case at paras 47 to 49). -- 12 of 16 -- 13 [35] A case of some similarity to this, in which an order of $10,000 was accepted as appropriate was Bristow v Adams [2012] NSWCA 166. In that case the plaintiff had been defamed by an email sent to others with whom he worked including the human resources manager. [36] In Ceruitt’s case, the Court of Appeal increased Mr Cerutti’s own award of damages for defamation from $7,000 to $20,000, together with interest in the sum of $3,000. In my assessment the defamation in that case was significantly more serious than in this. A former client had accused Mr Cerutti, an accountant, of dishonest practices and published that assertion to CPA Australia (the governing body of chartered accountants), the Pioneer Permanent Building Society (of which Mr Cerutti was a director) and the Australian Institute of Company Directors. [37] Although no actual financial loss was proven, the publication was in my view both more personally distressing and required a greater level of vindication than in this. [38] A feature of this case is that the original publication was limited to the four people on the committee and to employees of the North Coast Body Corporate Management Services. Whether they may have passed on the allegations to others is a matter of conjecture. There was some evidence from the plaintiff’s wife of the defendant discussing the plaintiff’s behaviour with others – an Australia Post Officer on 14 June 2017 and to a Neighbourhood Watch representative on 5 April this year. It seems to me that those two discussions, which she overhead because, as she explained, the defendant speaks very loudly, or did on those occasions, are really evidence relevant to the defendant’s ongoing conduct and not of republication of the email. As such they are relevant to the issue of aggravated damages rather than to considerations associated with the “grapevine effect” and so relevant to general damages. Any view these two people may have had of the plaintiff was not due to publication of the email or to its defamatory imputations, but due to the defendant’s conduct in talking to them as he did. [39] Moreover, all of the people to whom the publication was originally made knew both the plaintiff and the defendant and as I said earlier were in my view relatively unlikely to be seriously influenced by the publication. Their view of the plaintiff was more likely to be determined by their own dealings with -- 13 of 16 -- 14 him. In that regard therefore the effect of the defamatory publication is further limited. [40] I accept however that in this case the defendant could not honestly have perceived the events as he sets out in the email. His email was deliberately intemperate and false. His own conduct was aggressive and his characterisation of the plaintiff’s conduct as being aggressive and improper was deliberately wrong. So too the subsequent conduct of the defendant and his continued maligning of the plaintiff thereafter, as evidenced by Mrs Clarke’s evidence of overhearing the two conversations I earlier referred to, cause me to conclude that an award of aggravated damages is appropriate. [41] Even in circumstances where there has been no apology or retraction it is my view that the major effect on the plaintiff has been his personal distress, rather than to any effect on his reputation. Whilst I find that personal distress was real, it is limited by the relatively minor nature of the imputations. [42] In my view an appropriate award for general and aggravated damages is $12,000. I will award interest on that sum at 4 per cent per annum from the date of publication, amounting to a further $840. There will therefore be judgment for the plaintiff in the sum of $12,840. [43] In addition to claiming damages the plaintiff also seeks an injunction to restrain the defendant from publishing further defamatory material about him. [44] Wilson J in Hallam v Ross (No 2) [2012] QSC 407 ordered a permanent injunction restraining the defendant from publishing matter alleging the plaintiff was a person who engaged in conduct of the kind asserted in the earlier publications and found to be defamatory. [45] It is important to understand that this case however involves a single publication, and that was some one year and nine months ago. The only evidence of any ongoing misconduct by the defendant was the evidence of the plaintiff’s wife of overhearing the two conversations earlier referred to. I accept that in both the defendant renewed his assertion that the incident was due to the plaintiff’s harassment of him. That view of the incident is false as I have earlier found. His continued recounting of this false -- 14 of 16 -- 15 history of the event, more than 12 months after the occurrence suggests he has ongoing animosity towards the plaintiff. [46] That animosity is manifest in an email sent to my associate and earlier referred to. The email is part of Exhibit 1. In it he asserted, once again, that the plaintiff had accosted him. He also suggested the plaintiff’s actions were a setup designed to provoke him, and the fact that police did not proceed against him was proof that the plaintiff had in fact provoked him. He also suggested that the plaintiff has harassed other shop owners and staff at the Centre. In the email he asserts that by looking at the CCTV footage at normal speed (which I have done) it can be seen that the plaintiff behaved as the defendant asserts. As I have found, that is not so. The video is fully supportive of the plaintiff’s view of the events and does not show him being belligerent towards blocking the path of the defendant. It clearly shows the defendant stepping towards the plaintiff on at least two occasions as earlier set out. [47] I do not accept his assertions made in the email to my associate about the plaintiff’s alleged aggression. That he continues to make such false assertions suggests to me that unless restrained he will be likely to continue to make false statements to others about the plaintiff’s conduct. [48] My view that an injunction is appropriate is fortified by the defendant’s own assertion in the email to my associate that he has insufficient funds to pay for counsel at the trial and has been “bled” by the proceedings, which have caused him significant financial costs so that he does not “have any to fight further”. [49] Senior counsel submits that it is apparent from the email that the defendant is asserting he is “nearly bankrupt”. In my view that is an assertion beyond what can be implied from the email. Nevertheless, I accept there may be some doubt about whether the damages I have awarded will be able to be recovered. In Douglas v McLernon (No. 4) [2016] WASC 320 a case relied on by the plaintiff, Martin J determined that the defendant’s problematic financial position gave rise to a very real prospect that the plaintiff may never recover any of the damages awarded. His Honour said: “In such circumstances, a public vindication from the magnitude of those awards aside, the effectiveness of the award of damages as an appropriate remedy to address ‘the defendant’s wrong’ is diminished.” -- 15 of 16 -- 16 As a result his Honour said that he was “in no doubt that without an additional remedy for the plaintiff, there remains a substantial risk of further future publication of the defamatory matters now proven”. In such circumstances his Honour ordered a permanent restraint on the defendant. [50] In my view it is appropriate to similarly order that the defendant be restrained from further false assertions about the events of 14 February 2017. I will hear argument about the form of the injunction. -- 16 of 16 --