Anderson v Gregory [2008] QDC 135

DISTRICT COURT OF QUEENSLAND CITATION: Anderson v Gregory [2008] QDC 135 PARTIES: WAYNE MACARTHUR ANDERSON Plaintiff AND PETER LIONEL GREGORY Defendant FILE NO/S: BD1637/06 DIVISION: PROCEEDING: Trial ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 27 June 2008 DELIVERED AT: Brisbane HEARING DATE: 23, 24, 25, 29 January 2008 JUDGE: McGill DCJ ORDER: Judgment that the defendant pay the plaintiff $37,500. CATCHWORDS: DEFAMATION – Defamatory Statements – whether imputations pleaded carried by matter published DEFAMATION – Pleadings – applicable law – transitional provisions – whether substantially the same matter published DEFAMATION – Fair Comment – whether factual basis of comment true – whether supported by issue estoppel – whether comment fair DEFAMATION – Pleadings – defences – truth – as pleaded does not justify imputation – whether contextual truth DEFAMATION – Trial of Action – whether publication defamatory – whether any defence made out – assessment of damages DEFAMATION – Assessment of Damages – whether including damages for aggravation of psychiatric condition – effect of republication – effect of statutory provisions – aggravated damages ESTOPPEL – Issue Estoppel – whether finding of absence of apology in earlier action binding as factual basis for fair -- 1 of 31 -- 2 comment Defamation Act 1889 ss 14, 15 Defamation Act 2005 s 49, s 26, s 25 Arnold v National Westminster Bank Plc [1991] 2 AC 93 – distinguished. Attrill v Christie [2007] NSWSC 1386 – followed. Bamberger v Mirror Newspapers Ltd [1968] Qd R 593 – cited. Berkoff v Burchill [1996] 4 All ER 1008 – cited. Bjelke-Petersen v Burns [1988] 2 Qd R 129 – followed. Blair v Curran (1939) 62 CLR 464 – applied. Carl Zeiss Stiftung v Rayner and Keeler Ltd (No. 2) [1967] 1 AC 853 – applied. Carson v John Fairfax and Sons Ltd (1993) 178 CLR 44 – applied. Cassidy v Daily Mirror Newspapers [1929] 2 KB 331 – cited. Castillon v P&O Ports Ltd [2007] QCA 364 – applied. Cawley v Australian Consolidated Press Ltd [1981] 1 NSWLR 225 – applied. Coleman v John Fairfax Publications Pty Ltd [2003] NSWSC 564 – cited. David Syme & Co Ltd v Mather [1977] VR 516 - cited. Egri v DRG Australia Ltd (1988) 19 NSWLR 600 – considered. Entienne Pty Ltd v Festival City Broadcasters Pty Ltd (2001) 79 SASR 19 – applied. Gotze v Ylitalo [2005] QSC 12 – followed. Hill v Comben [1993] 1 Qd R 603 – cited. Kilpatrick v Van Staveren [2003] QCA 303 – applied. Kilpatrick v Van Staveren [2002] QDC 293 – followed. Kuligowski v Metrobus (2004) 220 CLR 363 – cited. Kuligowski v Metrobus (2002) 26 WAR 137 – considered. Laws Holdings Pty Ltd v Short (1972) 46 ALJR 563 – cited. Mangena v Wright [1909] 2 KB 958 – cited. Mirror Newspapers Ltd v Jools (1985) 5 FCR 507 – cited. O’Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166 – applied. Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 – cited. Phipps v Australian Leisure and Hospitality Group Ltd [2007] 2 Qd R 555 – cited. Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 – cited. Rigby v Mirror Newspapers Ltd (1963) 64 SR (NSW) 34 – cited. Robinson v Laws [2003] 1 Qd R 81 – applied. Slipper v British Broadcasting Corporation [1991] 1 QB 283 – applied. Triggell v Pheeney (1951) 82 CLR 497 – applied. -- 2 of 31 -- 3 COUNSEL: P A Kronberg for the plaintiff The defendant appeared in person SOLICITORS: R D Martin and Co for the plaintiff The defendant was not represented [1] This is an action for defamation. The amended statement of claim alleged seven publications, one in the form of something included in a newsletter of an association, and six in the form of emails sent by the defendant to one or more recipients. Publication was not in issue on the pleadings and was not disputed at the trial (p 218), but a number of matters have been raised by way of defence. [2] The Defamation Act 2005 commenced on 1 January 2006. Although that Act repealed the Defamation Act 1889, by s 47 the law that applied immediately before the commencement of the 2005 Act continues to apply in respect of any cause of action that accrued before the commencement of that Act: s 49(3)(a). In addition it applies to any cause of action which accrues because of the publication of the same or substantially the same matter on separate occasions before and after commencement: s 49(2), (3)(b). The first cause of action pleaded is in respect of a publication in July 2004; the second in respect of a publication on 17 December 2005. The remaining publications occurred after 1 January 2006. [3] The first publication, the item in the newsletter, was quite separate from anything else that was published. However, the second publication, in an email dated 17 December 2005, was at least similar to one of the subsequent publications, in an email dated 18 January 2006. The former email included the expression said of the plaintiff “he was not man enough to do so”. The innuendos alleged to arise from this publication, are that the plaintiff was a coward and did not behave in an honourable way as expected of an ordinary man. The words complained of in the latter email were: “I feel sorry for Sandy, but any real man would have made the apology requested … .” The innuendos alleged to arise from these words were that the plaintiff lacked moral strength and that the plaintiff was a coward. There was thus some similarity between these two publications, and each was alleged to give rise to the same innuendo, namely that the plaintiff was a coward. [4] The question then arises whether the latter publication amounts to a publication of substantially the same matter on a separate occasion from the former publication. It is not precisely the same, but if it is substantially the same, the other requirements of s 49(2) are met in this case, and it follows that the law of defamation prior to the 2005 Act applies in relation to this publication within the latter email. The real question which arises is as to how similar publications have to be, to be “substantially the same”.1 Both publications relate to an alleged failure of the plaintiff to have apologised to the defendant for the same thing, and both asserted that the failure to apologise reflected adversely on the manliness of the plaintiff. In my opinion they were substantially the same, and accordingly the 1889 Act applies to the third of the matters complained of in the email of 18 January 2006. [5] Under the 2005 Act common law defences are revived, s 6(2), a number of new statutory defences are introduced, and familiar statutory defences are modified. In 1 I was not referred to any authority on this point, and have not found any. -- 3 of 31 -- 4 view of the range of defences potentially available, the only practical way for me to deal with the case is to confine my attention to matters pleaded by the defendant, or clearly raised during the trial. Background [6] Both the plaintiff and the defendant formerly served in the Australian army. The plaintiff was in the army between 1963 and 1968, and saw service in Borneo in 1966 while he was in the artillery.2 The defendant served from 1968, initially as a national serviceman and subsequently in the regular army until August 1988, which included service in Vietnam, although he did not in his evidence mention any combat roles there: p 225. Both of them have been subsequently accepted as totally and permanently incapacitated for the purposes of receiving veteran’s benefits. Both of them are members of the Australian Federation of Totally and Permanently Incapacitated Ex-Servicemen and Women (Queensland Branch) Inc, an incorporated association which operates through a number of different centres around the State: Exhibit 4, p 47. [7] At one time they were both members of the Caboolture centre; the plaintiff was active on the social committee of that centre, and the defendant was editor of the newsletter produced for the members at that centre.3 They also held various other positions within that centre; for example in July 2004, the plaintiff was a member of the committee of the centre, and the defendant was secretary/treasurer: Exhibit 4. [8] The defendant asserted they got along until an incident4 which occurred at a function at the centre in late 2004, when the defendant maintains that the plaintiff said something to the defendant’s partner which the defendant regarded as inappropriate, and the defendant complained to the plaintiff about this. I suspect, however, that there were other sources of ill-feeling between the parties, probably associated with the internal politics of the Caboolture centre. The plaintiff was a member of the committee at a time when the committee decided to remove the defendant from his position as editor of the centre magazine. In 2005, after the committee moved to suspend him (p 279-80), the defendant for a time moved away from the Caboolture centre, and began attending the Redcliffe centre, but there remained some hostility between the different groups within the Caboolture centre. One objective indication of this was that there was apparently a substantial decline in the number of individuals who were regarded as members of the Caboolture centre: p 219, p 252. [9] Having seen a number of copies of the magazine which the defendant edited, I am not surprised that he was removed from the position of editor. Although the association is presumably open to former members of all three services, the January 2005 edition (Exhibit 14) has on p 3 an item, presumably intended to be humorous, which I would expect former Air Force personnel would find insulting, particularly any who had memories of bomber command during World War II, and on p 25 a similar item which would I think be regarded as offensive by ex-naval personnel. On p 13 of the April 2005 edition (Exhibit 16) there is an item ridiculing the Prince 2 Plaintiff pp 16-7, 47-8. 3 For the plaintiff see p 17, p 93; Exhibits 4, 14, 15, 16; for the defendant pp 170, 225-6. 4 This was mentioned during the trial and was the subject of limited evidence from the defendant: p 296, p 301. It was referred to in the judgment from the earlier trial, para [13]. The plaintiff denied there was no incompatibility before this: p 58. -- 4 of 31 -- 5 of Wales, with a very small rectangle beside it with the label “I’m a Republican. If you are a Royalist, then please list your complaints here.” One might expect that the association would have people with a range of views on that topic, but the defendant was displaying his lack of respect for those who disagreed with his. [10] In the same way he published items disparaging John Howard and his government; see p 14 of the January 2005 edition (Exhibit 14), and p 19 of the July 2004 edition (Exhibit 4), which published a press release from the Minister for Veterans’ Affairs headed “From the Propaganda Machine”. Apart from the fact that one would expect an association of this nature to have members with a range of political views, it can hardly be of assistance to such a body, in making submissions to the government aimed at improving the circumstances of its members, at the same time to be publishing such derogatory material. Apart from the photograph in Exhibit 4 which is the first publication complained of, there was evidence from one of the defendant’s witnesses, Mr Dodgshun, that he had complained to the defendant about his having published in the magazine an article attributed to Mr Dodgshun without his knowledge or consent: p 272. The article which appears at pp 28-29 of Exhibit 14 was headed “Michael Dodgshun’s Guide to Zen”. The first publication [11] The first matter relied on was the publication in the July 2004 edition of the Caboolture Centre magazine (Exhibit 4) of a photograph of two men standing outside with some cars and buses and other people in the background. The man on the left has a rather large body and is wearing a T-shirt with the words “I beat anorexia” on the chest. The man has the face of the plaintiff, and it was not disputed that it was a photograph of the plaintiff’s face, which had been substituted for the original face in the photograph, by a process of computer manipulation of digital images. I should add that the build of the plaintiff at the time of the trial was quite different from the build of the man in the photograph, and it was not suggested that since July 2004 his build had changed.5 [12] There was nothing about the photograph by way of caption or otherwise to indicate that it was a contrived image. There was no evidence as to any past practice of publishing this sort of photograph in the magazine. Anyone who was reasonably familiar with the plaintiff at the time of publication might have deduced that the image was contrived because of the obvious disparity between the plaintiff’s build and the appearance of the body to which his face appears to be attached, but the discrepancy may have been attributed to the age of the photograph. It followed a humorous item, and preceded a serious item, a letter sent by the national president of the Federation to the Prime Minister about the operation of the Department of Veteran’s Affairs. There were two other photographs in the magazine which appear to have been digitally manipulated; on p 12 there was a photo captioned “biker chicks” showing two small chickens apparently wearing leathers, and on p 33 a photograph captioned “Do something unusual today” which appeared to show a penguin holding two cymbals standing on the back of a sleeping polar bear. [13] The amended defence of the defendant admitted that this was published by the defendant: para 2. It was alleged that the photograph carried the imputation that the 5 The defendant pleaded that the plaintiff was known to the members of the Association to be physically fit: para 4.4. Defendant p 289. See also plaintiff’s wife p 146. -- 5 of 31 -- 6 plaintiff was or had been suffering from an eating disorder, and that that was defamatory of the plaintiff. The amended defence of the defendant denied that that interpretation of the photograph would have been conveyed to any member of the association. There was little evidence on this, and matters of this nature are normally decided by the impression that the publication makes on the tribunal of fact.6 I find that the publication was defamatory of the plaintiff. It exposed the plaintiff to ridicule, and did carry the implication that the plaintiff suffered, or in the past had suffered, from an eating disorder, either anorexia or obesity.7 No doubt it would not have conveyed that implication to everyone who saw the photograph, but I expect some would have interpreted it that way.8 I find that the “hypothetical referees” would understand the photograph in a defamatory sense.9 [14] The defendant pleaded that the plaintiff was present when or shortly after the photograph in its current state was created, that the plaintiff was amused by it and not offended, and that it was published for amusement purposes only, and that the plaintiff had expressed amusement at the photograph and its publication. Strictly speaking the consent pleaded was to the creation of the photograph, rather than the publication of the photograph in the newsletter, and indeed the defendant did not give any evidence to support either express or tacit prior consent of the plaintiff to the publication of the photograph in the newsletter. The defendant’s evidence as to this at p 244 and p 286 made no reference to consent to publication; on the defendant’s evidence, it would not even have been obvious that it was to be published: p 291. 10 I find there was no consent to publication. [15] The defendant also said that the plaintiff had been one of a number of people who had been together collating and preparing the newsletter for mailing, but that would not necessarily have meant that he was familiar with its contents at the time.11 The plaintiff denied that he had seen the photograph before it was published, or that he had been among those collating this particular issue of the magazine: p 60, p 122.12 I accept that the plaintiff was one of those who prepared this issue for posting,13 but there was no actual allegation of, nor did this amount to, consent to publication, which is what matters. [16] As to the proposition that the publication was with the intention of amusement, that is not a defence to a claim for defamation. If the matter published is obviously humorous or absurd, it will not be defamatory, but that depends on its objective interpretation.14 The intention of the defendant is irrelevant.15 To the extent that the 6 cf. Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506. 7 Berkoff v Burchill [1996] 4 All ER 1008 at 1021. 8 eg Mr Fowler p 177, Mr Richardson p 187. This need not be the only interpretation: Entienne Pty Ltd v Festival City Broadcasters Pty Ltd (2001) 79 SASR 19 at [20]. 9 Lamb (supra) at p 506. 10 Affidavit evidence of Mr Fyles supporting the defendant’s account went no further: Exhibit 18. I am wary of this evidence, not only because he was not produced for cross-examination, but because the affidavit displays obvious hostility to the plaintiff. 11 It was put at p 61 that he was doing the stamps and mailing labels. He denied he was involved with this newsletter: p 60, p 122. 12 The plaintiff’s wife, who had some recollection of such a general arrangement, denied that she had seen the photograph prior to the magazine being delivered: p 146. 13 Essentially because Exhibit 4, the plaintiff’s copy of this newsletter, shows no sign of having been sent through the post, which suggests he was there to collect it. 14 Gately on Libel and Slander, 10 th Ed. 2004 para 3.32; Etienne Pty Ltd v Festival City Broadcasters Pty Ltd (2001) 79 SASR 19; Coleman v John Fairfax Publications Pty Ltd [2003] NSWSC 564. -- 6 of 31 -- 7 photograph in its present form is amusing, the insertion of the plaintiff’s face made it amusing at the expense of the plaintiff; it is the sort of humour which is still defamatory. The defendant also said that the plaintiff had at a meeting of the centre held up the magazine and pointed out the photograph to the people present.16 The plaintiff denied this. I accept that this incident occurred, but do not regard it as of any particular significance in the context of this action. It did not amount to consent to publication or waiver of any cause of action, though it does suggest that he was not at the time greatly upset about it, which is relevant to damages. [17] The defendant also alleged that the publication of the photograph was not motivated by malice (para 4.3), but that is irrelevant except in the context of whether some particular defence was made out, and no defence to which an absence of malice was relevant was pleaded. The defendant also alleged that the plaintiff had not shown that his personal reputation had been injured: para 4.5. In an action for defamation, however, damage to reputation is presumed once it is shown that defamatory material has been published: Tobin and Sexton “Australian Defamation Law and Practice” para [20,005]. The defendant has not shown that the plaintiff’s personal reputation has not been injured by the publication of this material, either by showing that the plaintiff had no reputation anyway, or that other material, the publication of which was not the responsibility of the defendant, was more damaging to it in this respect. [18] The plaintiff took no action about this publication at the time, though he said that he was upset by it,17 and he was prompted to pursue the claim for defamation in respect of it later (but within the limitation period) as a result of the other publications sued on, which all occurred some time later: p 21. I do not accept that he was particularly upset about it at the time. The earlier action [19] In the meantime, another event occurred which is of some relevance to these proceedings. There was other litigation between these parties in this court: by a claim and statement of claim filed 11 March 2005 Mr Gregory sued Mr Anderson for damages for defamation in respect of something said by him about Mr Gregory on 1 February 2005 at a meeting of the committee of the Caboolture centre: Exhibit 5. Following a trial held on 22 and 23 November 2005, Brabazon DCJ gave judgment for Mr Gregory: [2005] QDC 277, Exhibit 7. [20] In the course of his reasons, reference was made to Mr Anderson’s having refused to apologise: [40], [41], [42]. Damages were assessed at $40,000 including $10,000 aggravated damages, assessed because of the recalcitrant conduct of Mr Anderson: [70], [71]. At [67], in the course of his discussion about damages, his Honour said: “Mr Anderson’s conduct in refusing to apologise and maintaining his allegations in the later email, have aggravated the hurt to Mr Gregory. An earlier apology would have seen the end of the dispute. Instead, Mr Anderson will now have to pay a substantial 15 Cassidy v Daily Mirror Newspapers [1929] 2 KB 331 at 354 per Russell LJ. 16 See also Dodgshun p 259. 17 P 18. His wife said he complained to her and a few others about it: p 146. -- 7 of 31 -- 8 amount of damages. Because of his continuing annoyance about the Christmas party conversation, his conduct has been reckless, defiant, and ill-advised. He maintained that attitude right up to the end of the trial.” [21] Plainly his Honour proceeded on the basis that there was no apology forthcoming from Mr Anderson at any time prior to judgment. However, there was evidence before me that, prior to that trial, there had been three separate apologies on the part of the plaintiff. The first was an oral apology directly to the defendant at the meeting of the committee: p 27.18 According to the plaintiff, on this occasion the defendant appeared to accept the apology, and shook hands with him. Exhibit 8 is a copy of a letter forwarded by the then solicitor for the plaintiff, and Exhibit 9 is a written apology which the plaintiff said was offered in the course of a mediation at which there was an attempt to settle the earlier action: p 28.19 [22] These apologies were not accepted by the defendant, but it appears that no reference was made to them at the trial, by which time the plaintiff no longer had the benefit of legal advice, and was conducting his own case (p 26); he said that the topic was not raised at the earlier trial: p 27. Presumably the plaintiff did not raise the topic himself because he did not appreciate the significance of an offer of an apology (even if it was not accepted), but it seems strange that there was apparently a failure to elicit the existence of such attempts to apologise in the course of the cross-examination of Mr Anderson during that trial. [23] There may be room for argument about whether the apologies were adequate as apologies, but his Honour made no reference to this, and it seems clear from his Honour’s reasons that the matter proceeded before him, not on the basis that there was no adequate apology, but on the basis that there was no attempt to apologise at all. I strongly suspect that if the evidence that was before me in relation to this matter had been before his Honour, the outcome would have been different. This is significant for present purposes, as will be apparent when I refer to the further publications alleged to have been defamatory in the present action, a number of emails sent by the defendant after judgment in the earlier action. Email of 17 December 2005 [24] The first email was alleged in paragraph 8 of the amended statement of claim, and appears in Exhibit 1. The relevant passage referred to the earlier action, and continued: “All this could have been avoided by Mr Anderson giving a simple apology in committee. He was not man enough to do so.” Publication was not disputed. The imputations alleged were that this meant that the plaintiff was a coward, and that he did not behave in an honourable way as expected of an ordinary man. I find that those imputations were carried by the passage in the email published by the defendant. They are plainly defamatory of the plaintiff. [25] The first defence plea was an assertion that the contents of the email were true in that the plaintiff did not give the defendant any apology: para 5.1. As an allegation of truth, the difficulty with this is that it does not meet the imputations alleged; s 15 of the 1889 Act made it lawful to publish defamatory matter if the matter was true, 18 See also cross-examination of the plaintiff at pp 58 and 66. 19 The defendant expressly did not object to evidence of this being given: p 30. -- 8 of 31 -- 9 and if it was for the public benefit that the publication complained of should be made. It is therefore necessary to show that the “defamatory matter” was true, and it is clear from s 4(1) that the “defamatory matter” was the matter of the imputation, that is, the imputation sued on. A plea of truth therefore has to meet the imputations sued on, 20 and paragraph 5 did not do so. 21 [26] Paragraph 7 of the amended defence alleged that “the plaintiff could be classified by other veterans as a coward in accordance of paragraph 9 of the statement of claim due to the statements made by the plaintiff in the Administrative Appeals Tribunal hearing Qu 202/495.” This I think was not a proper plea of truth and public benefit, which is the statutory defence. Where the imputation was that the plaintiff was a coward, the defendant has to justify that, not simply assert that some people might regard him in those terms. There was also no plea of public benefit, and no public benefit from such publication is apparent. [27] There is also the consideration that there was no evidence of any relevant statements made by the plaintiff in the Administrative Appeals Tribunal Hearing. The defendant did not seem to appreciate what had to be proved in this way, or how to go about proving it.22 The plaintiff was asked in cross-examination about an incident that occurred while he was serving in Borneo, where there was one occasion when he asked not to go out on any more patrols. It was put to him that this was because he was scared; his response was that he did request not to go out on any more patrols but it was not because he was scared: p 89. His evidence was that while he was in Borneo with an artillery unit operating in conjunction with British units23 he had been asked, evidently on a somewhat informal basis, to go on patrol with a British unit as a Bren gun operator, which involved going over the Indonesian border: p 83-4. He said that he asked not to continue doing this after he had seen the decapitation of an Indonesian, presumably during one of these patrols: p 123. In effect, he was saying that he wanted his informal attachment to the unit terminated because he disapproved of what that unit was doing. That does not suggest cowardice. If the plaintiff said in the course of proceedings in the AAT things which would induce even some veterans to regard him as a coward, those things were not proved, either by admissions during cross-examination, or by other admissible evidence.24 Even if paragraph 7 of the amended defence could amount to a good defence to defamation, it has not been made out. Defence of fair comment [28] In relation to this email, the defendant alleged that the publication was fair comment and made to persons with an interest in the subject matter: para 6.5. The difficulty 20 Robinson v Laws [2003] 1 Qd R 81. 21 For reasons set out below, because of an issue estoppel, the fact alleged is true, but that is not a good defence. 22 I cannot take judicial knowledge of what occurred in a proceeding in the Administrative Appeals Tribunal. 23 In the Borneo campaign Australian troops were, with a larger British contingent, supporting Malaysia, which had previously been a British colony, in an undeclared war with Indonesia: www.awm.gov.au/atwar/confrontation.asp. 24 The defendant’s interpretation of what he had seen in documents not put in evidence about this incident at p 315 is not evidence of anything other than the ill-will of the defendant toward the plaintiff. The defendant cannot give evidence of what happened in Borneo as he was not there, nor can he give secondary evidence of documents not put in evidence, much less his interpretation of what was said in such documents. -- 9 of 31 -- 10 with this plea is that the defence of fair comment in s 14 of the 1889 Act does not extend to the publication of fair comment merely to persons with an interest in the subject matter. It is necessary to bring the matter within one of the paragraphs in s 14(1) of the Act, but by s 14(1)(d) it is lawful to publish a fair comment respecting the merits of any case, civil or criminal, which has been decided by any court of justice, or respecting the conduct of any person as, relevantly, a party in such case, or respecting the character of any such person so far as the person’s character appears in that conduct. The defence pleaded in paragraph 6 the earlier proceeding to which I have referred, which was a civil case decided by a court of justice, so that it was lawful to publish a fair comment respecting the conduct of the plaintiff as a party in that proceeding, or respecting the plaintiff’s character, so far as his character appeared in that conduct. [29] The email invited reference to the terms of the reasons for judgment, giving the address for the reasons on the court’s website, and expressly encouraged those to whom the email was sent to look at the reasons. The relevant part of the email was followed immediately by the statement: “Read the case and make up your own minds – I’ve got better things to do.” [30] In my opinion the statement “he was not man enough to do so” was a matter of comment, on the character of the plaintiff as it appeared in his conduct as a party to that proceeding. The facts on which it was based were stated in the email, both expressly, and by reference to the reasons for judgment, that the plaintiff could have avoided the action by giving a simple apology which he had not given. That was consistent with the view of the trial judge. The difficulty arises in the present case, however, in view of the general principle that the comment must be on facts which are true.25 In the present case the plaintiff led evidence to show that he did at least attempt to apologise to the defendant, and that therefore the factual assertion implicit in the email, that the plaintiff had not given an apology, was false, and therefore could not support the defence of fair comment. That depends on whether the plaintiff is entitled in the present proceeding to prove that he did apologise in the way that he alleged. That raises the question of whether as a result of the earlier action the absence of an apology is subject to an issue estoppel between the parties. Issue estoppel [31] The principle of issue estoppel was outlined by Dixon J in Blair v Curran (1939) 62 CLR 464 at 531-2: “A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action 25 Tobin and Sexton “Australian Defamation Law and Practice” para [13,070]; Bjelke-Petersen v Burns [1988] 2 Qd R 129 at 131. The point was left open in Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 326. -- 10 of 31 -- 11 claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.” [32] The requirements for an issue estoppel were defined in the speech of Lord Guest in Carl Zeiss Stiftung v Rayner and Keeler Ltd (No. 2) [1967] 1 AC 853 at 935: “1. That the same question has been decided; 2. That the judicial decision which is said to create the estoppel was final; and 3. That the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.” 26 [33] The judgment given by Brabazon DCJ was a judgment after a trial and so was undoubtedly a final judgment. It finally determined the rights of the parties in relation to the matters then in issue. Further, the parties to that proceeding were the same as the parties to the present proceeding. The issue therefore is whether it is the same question which has been decided in that case which arises in the present. In that case, the award of damages included an amount awarded by way of aggravated damages, which in my opinion on a fair reading of his Honour’s decision, particularly paragraph [67], was based in part at least on a finding that there had been a refusal to apologise on the part of the plaintiff before me. That finding was therefore a part of the justification for the conclusion that the particular amount ordered to be paid in that judgment was to be paid. On the face of it therefore the requirements of an issue estoppel are met in the present case. [34] Counsel for the plaintiff submitted that the defendant could not rely on the issue estoppel, because it had not been pleaded, citing Cross on Evidence, Australian Edition para 5120. I do not, however, think that the matter can be dealt with in this way. The defendant in the amended defence did plead the earlier proceeding in para 6, and that the plaintiff had refused to make any apology: 6.2. The plaintiff’s reply filed 15 September 2006 in para 10 expressly pleaded that the plaintiff had offered an apology to the defendant on numerous occasions. The question of whether there was an issue estoppel was raised by counsel for the plaintiff early in the trial, and it seemed to me that, subject to the limitation on the defendant because he did not have the benefit of legal advice during the trial, the issue was a live issue at the trial, and the facts with respect to the estoppel were fully explored at the trial.27 I do not think that the absence of a specific plea on the part of the defendant in response to the reply should be an obstacle to giving effect to the issue estoppel. [35] It was further submitted on behalf of the plaintiff that the issue arose in the earlier trial only in respect of quantum of damages. That is correct, but no authority was 26 In Castillon v P&O Ports Ltd [2007] QCA 364, Holmes JA said at [50] that this formulation was adopted by the High Court in Kuligowski v Metrobus (2004) 220 CLR 363 at 373. 27 The position is similar to that in Laws Holdings Pty Ltd v Short (1972) 46 ALJR 563, especially at 571 per Gibbs J. -- 11 of 31 -- 12 cited for the proposition that an issue estoppel does not arise in respect of findings relevantly only to quantum, and it seems to me that the statement of principle in Blair v Curran (supra) is wide enough to cover a situation where a finding of fact is made which is relevant to the quantum of the judgment given. Not every finding of fact in a proceeding gives rise to an issue estoppel. In Blair v Curran Dixon J said at p 532 that the principle applied to “a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself ... , a fact fundamental to the decision arrived at ... . But matters of law or fact which are subsidiary or collateral are not covered by the estoppel.” [36] In Egri v DRG Australia Ltd (1988) 19 NSWLR 600 McHugh JA at p 603 applied this test, and held that an earlier finding that low back pain was not caused by a disc lesion caused by an incident at work gave rise to an issue estoppel in later proceedings. In Kuligowski v Metrobus (2002) 26 WAR 137 a majority of the court held that an issue estoppel arose as to whether there was a causal connection between an ankle injury in March 1994 and later ankle injuries in December 1994 and April 1995.28 In the earlier action the finding that there was no apology was fundamental to the award of aggravated damages, and not a mere matter of evidence or a collateral issue. [37] In my opinion there is nothing to prevent the principle of issue estoppel from applying in the present case, and it does apply. The plaintiff is not entitled in these proceedings to dispute the proposition that there was no apology prior to the trial in the previous action, and in particular is not entitled to dispute the proposition that there was no apology in committee, which was the particular matter referred to expressly in the email. [38] The question then arises whether there is a discretion to relieve the plaintiff from the issue estoppel and if so whether it should be exercised. In Arnold v National Westminster Bank Plc [1991] 2 AC 93 the House of Lords held that the operation of an issue estoppel could be prevented in special circumstances. Lord Keith of Kinkel at p 109 said that there may be an exception to issue estoppel in special circumstances where further material has become available to a party relevant to the correct determination of a point, being material which could not by reasonable diligence have been adduced in the earlier proceedings. Most of the other members of the court agreed with Lord Keith: Lord Lowry agreed although it appears from a comment at p 112 that his Lordship would have confined the exception to one where there were exceptional circumstances. [39] Whether or not that is also the law in Australia, it seems to me that the particular exception identified in that case would not apply here, because it is not the case that additional material is now available to the plaintiff which could not by reasonable diligence have been adduced in the earlier proceedings. All of the evidence led before me on the subject was evidence which was available to be led in the earlier proceeding. Accordingly, the exception identified in this decision would not apply in the present case. [40] The underlying justification for the principle of issue estoppel is interest reipublicae ut sit finis litium. It is in the public interest that, once a particular issue has been 28 The decision was reversed on appeal by the High Court, but on a different ground, that the question was not the same in the two proceedings: Kuligowski v Metrobus (2004) 220 CLR 363. -- 12 of 31 -- 13 decided by a court of law, that should be the end of the matter and parties should not be allowed to continue to dispute that particular issue in later proceedings. That engages wider considerations than simply the objective of doing justice between the parties in the particular case. Apart from that, it can be seen to be in the relevant sense the fault of the plaintiff that the issue was not properly litigated on the earlier occasion, and the failure to do that has consequences not merely for that litigation, but for any subsequent litigation where the same matter is in issue. [41] Accordingly the plaintiff cannot in this action dispute that he did not apologise, as found in the earlier action. In any case, given that there was a statutory right to fair comment on the earlier litigation,29 it would be inconsistent with that right if the person making the comment were not entitled to proceed on the basis that the facts found in the earlier litigation were true. It would I think be a dangerous trap for persons wishing to exercise the statutory right to comment on (for example) the character of a party to earlier litigation as revealed by that litigation, if in later proceedings that party were entitled to dispute that facts found in the earlier litigation were true. It is established that a fair comment can be based on facts the publication of which is privileged, even if they are not true, for example, facts found or stated in a judgment of a court: Mangena v Wright [1909] 2 KB 958 at 977.30 It follows that even if no issue estoppel were available as to the absence of an apology, the defence of fair comment would still be available, on the basis that the absence of an apology was a privileged fact rather than a true fact, and still able to support a fair comment. Precautionary finding as to apology [42] In case a different view may be taken elsewhere on this issue, I should make a precautionary finding. The plaintiff’s evidence at p 27 was that while they were at the committee together he approached the defendant and said that now that they were on the committee together “I apologise to you, we’ve got to work together, let’s bury the hatchet.” The defendant replied “It’s all water under the bridge” and they shook hands on it.31 In cross-examination the defendant put a date to this conversation, 1 February, which the plaintiff accepted: p 58. It was not suggested at that point that the plaintiff’s evidence as to this was not true. At p 66 I pointed out to the defendant that he needed to put his case in relation to his evidence, and he then asked the plaintiff: “Well, would you accept, Mr Anderson, that, when I spoke to you and shook your hand, that my interpretation was that it was dealing strictly with the association and not between us?” The answer was “No I wouldn’t accept that.” The evidence from the defendant was to the effect that the conversation had taken place: p 296. Accordingly, but for the issue estoppel, I would have found that there was an oral apology by the plaintiff to the defendant on 1 February 2005 at the committee meeting. 29 Under, at the time, the Defamation Act 1889 s 14(1)(d), which in terms made publication of certain fair comment lawful. 30 Approved in Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 321. See also Hill v Comben [1993] 1 Qd R 603 at 607. 31 Plaintiff p 27; Fowler p 185. -- 13 of 31 -- 14 [43] I would have also found that there was a letter sent by way of apology by the then solicitor for the plaintiff to the defendant, Exhibit 8, p 28, and that a form of apology, Exhibit 9, was offered to the defendant at a mediation, but rejected by the defendant. With regard to Exhibit 8, that does contain some assertions as to the context in which things occurred, and as to the plaintiff’s intention in sending the email referred to in the earlier judgment, but does it contain an apology for any embarrassment caused to the defendant by the words spoken or the subsequent email. It contains the express statement that the most serious of the imputations alleged in that earlier action to arise out of the words said was not believed to be true. Exhibit 9 also contained a form of apology, although it also contains something in the way of an explanation as to how it came about that the statement was made. Neither of these really amounted to an unqualified and unreserved apology, but I think each of them amounted to some sort of an apology, and I think each of them was inconsistent with the proposition that the plaintiff had never apologised.32 Was the comment fair? [44] The next issue is whether the comment was fair. That depends on whether it was the defendant’s honest opinion, and whether it was an inference open to a fair- minded person, however prejudiced, exaggerated or obstinate his view.33 A person may express an honest opinion although possessing spite or ill-will against the plaintiff, but a comment which is the product of or distorted by malice will not be fair.34 It was for the defendant to show that he honestly believed the comment that he made, and there was no clear statement in evidence from the defendant that at the time he honestly held that opinion. In view of the considerable animosity shown by the defendant to the plaintiff, as detailed in the matters referred to below in relation to aggravated damages, I am wary about the proposition that he honestly held that opinion at the time, undistorted by malice or ill-will, and on the whole I am not persuaded that the opinion was one the defendant honestly believed at the time. [45] I will, on a precautionary basis, deal with the second limb of fairness. It is not clear to me whether this has to be assessed by reference to what was published, or the imputations. If the latter, I find that a fair-minded person could have held the opinion involved in the second imputation (para 9(b)) but could not have held the opinion that the plaintiff’s refusal to apologise suggested that he was a coward. In my opinion, a refusal to apologise is naturally identified as the more courageous course, bravely inviting whatever adverse consequences may follow, however foolish or wrong-headed or otherwise inappropriate that may be. In the past men fought duels rather than apologise, and even today, in some circles or some circumstances, a refusal to apologise may lead to a physical attack, where an apology will avoid one, even if in truth no apology is warranted. Accordingly I find that a fair-minded person could not hold the opinion that, because of the refusal to apologise set out in the judgment, the plaintiff was a coward. [46] If the issue is whether the actual words published amount to a fair comment, I find that a fair-minded person could have held that opinion on that basis, since the words 32 The effect of the apology was a matter for the tribunal of fact, not the recipient, so it does not matter whether the apology was accepted: David Syme & Co Ltd v Mather [1977] VR 516 at 528. 33 O’Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166 at 173, 176; Cawley v Australian Consolidated Press Ltd [1981] 1 NSWLR 225. 34 Bamberger v Mirror Newspapers Ltd [1968] Qd R 593 at 601. -- 14 of 31 -- 15 used, although carrying the imputation that the plaintiff was a coward, do not necessarily mean that, and the words could have been used by a fair-minded person in a different sense, as a matter of comment on the facts in the judgment. [47] Overall, therefore, the defence of fair comment fails. No other defences were raised on the pleadings. During the trial the defendant asserted in a general way that the plaintiff’s action was motivated by a desire for revenge in respect of the plaintiff’s loss in the earlier action, that it was vindictive and vexatious, and that any defamation was trivial.35 I do not consider that the evidence suggests that the present action was an abuse of process, in the sense that it was brought for an improper purpose; there was noting to suggest that the plaintiff’s purpose was anything other than obtaining an award of damages for defamation, which is the legitimate purpose of this action. [48] That the plaintiff may have been prompted to take court action in respect of this and indeed the other publications which were defamatory of him by the fact that he had been successfully sued by the defendant in the earlier action, if that were what occurred, is irrelevant to anything I have to decide. As long as an action is not brought for collateral purpose, the motive for pursuing it is irrelevant. It is probably true to say that if the defendant had never brought the earlier action against the plaintiff the present action would probably have never been brought either, but I think that does not matter. This email, and the other subsequent publications of which the plaintiff complains, occurred after judgment in the earlier action I do not regard the defamatory material in this email, or for that matter the others, as trivial, and as will appear I do not accept that the circumstances of the publication of the emails were such that the plaintiff was unlikely to sustain any harm, so as to satisfy the defence in s 33 of the 2005 Act (in relation to those emails to which it applies). Although two of the emails were sent by the defendant only to one recipient, a person known to be a friend of the plaintiff, for reasons given later they were sent in circumstances where there was a prospect of their being more widely circulated, so that there is a real prospect of their causing some real harm to the plaintiff. As it happens, I accept that real harm has in fact been caused, though that is strictly speaking not the issue under s 33. [49] In those circumstances, the action to recover damages for that real harm cannot be characterised as vexatious. There was nothing specific in the pleadings which reflected these submissions on the part of the defendant, which were not directed to any specific email but to the action generally. It is convenient to deal with them at this point, because for the reasons given the submissions fail. The plaintiff is therefore entitled to succeed in relation to this publication. Email of 14 January 2006 [50] The email referred to in paragraph 12 of the amended statement of claim is part of Exhibit 1. It was sent by the defendant to Mr Richardson, a friend of the plaintiff (p 54) who gave evidence for the plaintiff and who had earlier sent an email to the defendant which also appears to be Exhibit 1. The defendant’s email included the statement “Anderson is nothing more than a predatory bully who treats his wife like a slave.” Publication of the email was admitted in the amended defence: para 8. The plaintiff alleged that the words carried the imputations that the plaintiff: 35 See example Exhibit 13 paragraphs 3, 27, 35. See also defendant p 320. -- 15 of 31 -- 16 (a) was a bully towards others; (b) was predatory towards others and only interested in satisfying his own needs; and (c) was mistreating his wife. [51] I find the words published carried these imputations. The imputations are plainly defamatory. The amended defence alleged the words to have been contextually true. This appears to be a reference to s 26 of the 2005 Act, which does apply to this email, and makes it a defence to the publication of defamatory matter if the defendant proves that: “(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true; and (b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.” [52] The difficulty with this defence is that paragraph 9 does not go on to identify any imputation or imputations carried by the matter published in addition to the defamatory imputations of which the plaintiff complains. Rather, it was said that the plaintiff was known for behaving in an overbearing manner towards others, that it was known that the plaintiff would often place his own interests above those of other people, that it was personally known by the defendant that the plaintiff had behaved towards his wife in a manner which was less than a standard generally accepted by a right-thinking member of society, and that the plaintiff had not shown in any manner that his personal reputation had been injured. This misunderstands the operation of s 26 of the Act. No plausible alternative imputation arising from the words published has been identified, and in these circumstances it is impossible to conclude that paragraph (a) has been made out. [53] The foundation for this plea, insofar as it had one, seemed to be that the defendant asserted that on one occasion when he was at the plaintiff’s house the plaintiff’s wife had been out at some personal activity, and she was late returning home, and when she did return home the plaintiff had complained to her about not having prepared his lunch, and when the defendant had spoken to him about this, had responded that that was her job. The plaintiff denied having said this (p 100), and said that he often prepared his own lunch, and the plaintiff’s wife who gave evidence had no recollection of any such incident: p 147. She denied that the plaintiff mistreated her (p 135); I have no reason to reject her evidence and I accept it.36 It was also suggested that the plaintiff was predatory because he had sexually harassed the defendant’s partner, and another woman (p 302) and that he was a bully because of a tendency to get very close to a person to whom he was speaking. I do not accept this evidence. Even if paragraph 9 amounts to a badly formulated attempt to allege that the imputations or some of them are true, that was not made out. 36 Their neighbour of five years, who was on good terms with them, had never seen any mistreatment of her: Monteleone p 167. -- 16 of 31 -- 17 [54] The defendant also alleged the plaintiff did not have a reputation which was capable of being injured by the words alleged to have been said because of the matters referred to in paragraph 9. In principle defendants can plead and prove that the plaintiff has not suffered any injury to his reputation because the plaintiff had no reputation capable of being injured anyway for reasons independent of anything said by the defendant, but nothing of that nature has been shown here, nor anything of significance in relation to damages. The most that the evidence shows is that the defendant thought of the plaintiff the various things alleged in paragraphs 9.1, 9.2, and 9.3 of the amended defence, but apart from that there was simply no evidence to support the allegations. I specifically reject the proposition that the plaintiff did not have a reputation which was capable of being injured by the words in the email of 14 January 2006. No other defence was raised. Email of 18 January 2006 [55] This email appears in Exhibit 2. There are three passages in this email which were complained of in the statement of claim, the first being the passage in the second last paragraph: “I really thought that Gary would have made a reasonable president but unfortunately he was led by the nose by Wayne and you also seem to have fallen for his bullshit …” [56] The reference was to Mr Fowler, who gave evidence for the plaintiff. The defendant did not deny the publication of this email, but disputed that it carried the imputations as alleged in paragraph 17(a) and (b) of the amended statement of claim. They were that the plaintiff was dishonest with another member of the Association, and was manipulative of another member of the Association. It certainly seems to me that the obvious meaning of the expression that someone was led by the nose by someone else is that the other person was manipulative of the first person, and I find that the words carried the imputation in 17(b). I reject the defendant’s submission that this suggested the plaintiff had leadership potential, so it was really a compliment. [57] The imputation in 17(a) is not as clear, as it seems to me that a person may lead someone else by the nose without being dishonest with him. In my opinion the ordinary inference is that the person being led was subservient to the wishes of the person doing the leading, rather than being the victim of dishonesty. On the whole I am not satisfied that the imputation in paragraph 17(a) has been made out. Nevertheless, the imputation in paragraph 17(b) was made out and was plainly defamatory. The only other matter raised was that the plaintiff has not shown that his personal reputation has been injured, which for the reasons stated earlier is not a good defence. [58] There was a continuing theme in the defendant’s evidence and submissions, that the plaintiff was somehow responsible for attacks on him by others, particularly Mr Fowler, Mr Richardson, and Mr Allen. As he put it at p 109 line 56 “he loads the gun, they fire the bullets”. The matter was also mentioned on p 246, and in Exhibit 13 paragraph 14. The plaintiff admitted that he was friends with these three people, all of whom gave evidence for him: p 54. In these circumstances, it would be unsurprising for him to be speaking with them at social functions or at meetings of the association. He denied, however, that he was responsible for getting them to -- 17 of 31 -- 18 say things for him: p 102. Mr Richardson also denied that he was told what to say by the plaintiff: p 188. There was no evidence to support this assertion on the part of the defendant, and even the defendant was unable, or at least failed, to give admissible evidence in support of it. It was so far as I could see pure speculation on his part. Insofar as this was intended in some way to support a defence of truth in relation to this publication, it fails. [59] The second passage of the email pleaded in paragraph 20 of the amended statement of claim was the statement: “If I really wanted to shut Wayne down I could easily do so as I have been sent out of the blue, without asking for it, a copy of his case to the Administrative Appeals Tribunal and it shows the man’s true colours.” [60] The imputation alleged was that the plaintiff had a sinister character which could be uncovered by reading an Administrative Appeals Tribunal transcript. I find that imputation was carried by the words published. Whether this was so was put in issue by paragraph 16 of the amended defence. The imputation was plainly defamatory of the plaintiff, and the only matter raised by way of defence was that the plaintiff has not demonstrated or shown in any manner that his personal reputation has been injured: para 17. For reasons already given this is not a good defence. [61] The third part of this email contained in effect a repetition of the passage in the email of 17 December 2005: “I feel sorry for Sandy but any real man would have made the apology requested in the first place … .” The imputations alleged to arise on this occasion were that the plaintiff lacked moral strength and that he was a coward. I find that those imputations were carried by the words published. Paragraph 18 of the amended defence attempted to respond to this, but is unclear. To some extent it did not raise any matter of defence, but to some extent it seems to me that it did contain at least part of the allegations necessary to establish a defence under s 26 of the 2005 Act. However, for the reasons already given, in my opinion that Act did not apply to this part of the publication, and the issue has to be determined by reference to the earlier Act. There is nothing in the earlier Act which provides an equivalent defence. Other matters alleged in paragraph 18, in the context of the earlier Act, really just provide a basis upon which it was alleged that the words published do not carry the imputations alleged, but I find they do carry the imputations. [62] I should make a precautionary finding in relation to s 26 if the view may be taken elsewhere that the 2005 Act did apply to this part of the publication on 18 January 2006. In my opinion the matter published did contain the imputation alleged in paragraph 18.3 of the amended defence, and I would have found that that imputation was substantially true. Again, the issue estoppel impacts on this defence, because I am required by that principle to approach the matter on the basis that the plaintiff did not apologise to the defendant prior to the earlier trial. [63] The more difficult question is whether the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputation. This is a new defence in Queensland, and I am not aware of any authorities on the operation of this defence. In my opinion, however, a court should -- 18 of 31 -- 19 not be assiduous to differentiate between the harm arising from the contextual imputation and any harm suffered from the defamatory imputation. The explanatory note for the bill that became the 2005 Act noted at p 1520 that the intention was to widen the defence of justification which was available at common law in circumstances where the defamatory imputation pleaded and the defamatory imputation justified carried a “common sting”: Polly Peck (Holdings) Plc v Trelfold [1986] QB 1000 at 1032. The intention was to remove the requirement that the imputations of which the plaintiff complained and the justified implications carried a common sting. It was said to be a defence under existing New South Wales law. [64] I do not want to take a lot of time on what is essentially a precautionary finding, but if the 2005 Act applied and a defence under s 26 was raised on the pleading, it seems to me that the defamatory imputations in this case do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputation alleged in paragraph 18.3, in all the circumstances of this case. Email of 20 January 2006 [65] This email appears in Exhibit 3; it was sent to Mr Allen, who was called as a witness for the plaintiff. The relevant part said: “It’s about time that these people grew up and realise that Wayne has used them.” There is no dispute that this was published by the defendant. The imputation alleged was that the plaintiff was manipulative and used others for his own advantage. The principal defence in relation to this allegation was in paragraph 19, which was somewhat confused. It started off as an admission of paragraph 28 but then went on to say that no right-thinking member of society would attribute the meanings alleged in paragraph 28 to the document. If that has the effect of putting paragraph 28 in issue, I find that the imputation alleged was carried by the words published. Paragraph 19 went on to allege that some right thinking individuals could consider the plaintiff to be manipulative, and some right thinking individuals could consider that the plaintiff used others to his own advantage. This was unhelpful, since it is not a defence to a defamatory publication to show that some people could agree with the defamatory imputation. If it is an attempt to justify it under the 2005 Act, that is an attempt to plead that the defamatory imputations are substantially true, then it is I think sufficient to say that the defendant has not put before the court evidence capable of supporting such an allegation. It does not raise a defence of fair comment: in any case, the matter published was not comment. No other specific defences are raised on the defendant’s pleadings. Facts alleged relevant to damages [66] Paragraph 29 alleged that as a result of the publication complained of in paragraphs 27 and 28 the plaintiff has been injured in his reputation, and pleaded particulars of that. Paragraphs 27 and 28 referred only to the last email, and the inappropriateness of this limitation was noted during the trial; in practice the trial was conducted on the basis that the particulars in paragraph 29 related to all of the defamatory publications relied on in the statement of claim. [67] The first particular was that the plaintiff had been shunned and avoided by members of the Association to the extent that he left the Caboolture centre and joined the Redcliffe centre. The plaintiff said that he did leave the Caboolture centre, and that he subsequently went to the Redcliffe centre after prompting from friends of his -- 19 of 31 -- 20 who had also moved to the Redcliffe centre.37 The plaintiff attributed his ceasing to go to the Caboolture centre to the fact that the defendant was starting to attend the Caboolture centre (p 46, p 219), rather than his response to the reaction of people at the Caboolture centre to him. As to his being shunned, the plaintiff identified four people at the Caboolture centre who he said had subsequently shunned him, by not acknowledging him when they came across each other in shopping centres: p 43-4. 38 Two had been witnesses against the plaintiff in the earlier trial,39 and one was a witness against the plaintiff in this trial.40 [68] The matter is complicated by the fact that my impression is that the membership of the Caboolture centre was probably divided anyway between persons who might be described as being broadly sympathetic to the plaintiff or his friends and persons who were broadly sympathetic to the defendant.41 Although the plaintiff believed that the four people he had seen who he said had shunned him had seen him, it is possible that that had not occurred, and it does not appear that the plaintiff specifically challenged any of them or asked them why they were acting in this way: p 79. His reaction, which in the circumstances was natural enough, was to take the attitude that if they did not want anything to do with him, he would not have anything to do with them. Nevertheless, in the light of all of the other things that have happened within the Caboolture centre and between the plaintiff and the defendant, it is difficult to conclude that there was any significant amount of shunning of the plaintiff specifically attributable to the defamatory publications the subject of this action.42 [69] It was then particularised that by reason of the nature of the statements the plaintiff was open to ridicule and contempt. That really follows from the nature of the defamatory publications, and is not readily the subject of evidence. Finally, it was alleged that the publication had exacerbated the plaintiff’s post traumatic stress disorder and depressive illness, and that as a result the plaintiff’s relationship with his wife had deteriorated. The plaintiff and his wife both gave evidence to the effect that after the publication of these emails came to the knowledge of the plaintiff, his marriage with his wife broke down.43 The plaintiff also said that he had been seeing a psychiatrist, Dr Rossen, for about seven years after he had been diagnosed with post traumatic stress disorder: p 41.44 Following the emails, he became depressed and had thoughts of suicide: p 40. [70] Dr Rossen gave evidence; he also verified a report dated 31 July 2007: Exhibit 11. That report indicated that he first saw the plaintiff on 29 November 2000 on referral 37 Plaintiff p 46, p 221; Allen p 154; Fowler p 172; The plaintiff found the atmosphere better there: p 82. 38 See also the plaintiff’s wife p 144, which supported his account, Allen p 154. Such evidence is admissible: Tobin and Sexton, op cit, [21,110]. 39 Dodgshun and Hall: [2005] QC 377 at [48], [49]. 40 Mr Dodgshun, who denied he had shunned him: p 258. I accept that he did not deliberately shun the plaintiff in this way. 41 cf Defendant p 288, although emphasising the number on his side. 42 See also Exhibits 19 and 20, by two people the plaintiff did not claim to have shunned him. These deponents were not produced for cross-examination. 43 The plaintiff p 42, p 74, and p 104. Plaintiff’s wife p 133-4, p 148. The breakdown in the relationship was apparent to their friends: Monteleone p 166; Squire p 211-3. They had previously been close: Fowler p 170; Richardson p 187. 44 The plaintiff was first diagnosed with PTSD by another doctor and subsequently attended Dr Rossen, and put in a claim for benefits: for the sequence see Exhibit 12. -- 20 of 31 -- 21 from his GP, and diagnosed post traumatic stress disorder which rendered the plaintiff unable to continue to work. In his opinion this was caused by his army service and events which occurred on the Malay-Thailand border.45 During 2003 and 2004 his mental health continued to improve, but following defamatory statements made about him by the defendant46 in about January 2006 he became increasingly depressed, anxious and upset. In the early months of 2006 he became more depressed, he had thoughts of suicide, and he was frequently tearful. His sleep was disturbed, he took up smoking and was drinking more. He had withdrawn from his wife and from friends and substantially reduced most of his activities.47 In January 2006 his antidepressant medication was increased, and subsequently further increased on two occasions, as was other medication. At the time of the report he was seeing the plaintiff every two or three weeks for ongoing support, supervision of medication and cognitive behaviour techniques. Dr Rossen thought that his mental state had improved a little during July 2007. [71] In oral evidence Dr Rossen noted that in March 2003, after the plaintiff’s case with the Veterans’ Affairs Department was resolved, he had reduced contact with the doctor, and his depression and anxiety had reduced: p 112. He went on an overseas trip in October 2004, and had been on other holidays, and coped. Dr Rossen said that the plaintiff was not greatly stressed over the earlier litigation, because he felt that he was in the right: p 114. The first reference to the plaintiff’s marriage being over was in a note in May 2007, but there was another note to the effect that the marriage had been over since early 2006: p 116. Dr Rossen accepted that it would be theoretically possible for him to be wrong about the plaintiff, but he thought it would have been very difficult for the plaintiff to have been simulating injury for that period of time: p 117. Overall nothing was said to modify the proposition that the post traumatic stress disorder and anxiety and depression had increased from January 2006, or his attribution of this to the publication by the defendant of statements which the plaintiff regarded as defamatory. There was no other expert medical evidence led in the trial, and I accept the evidence of Dr Rossen. [72] The plaintiff’s wife gave evidence. She said that they had been married for 39 years, but they were currently separated: p 133. She said the plaintiff was very upset by the emails from the defendant, and that his reaction to this was worse than his reaction during the earlier court case in 2005 (p 134) which had itself been bad enough: p 133. He was drinking and smoking more, and losing interest in things. He lacked motivation and spent a lot of time just lying in bed, and he would often break down: p 135. Before they separated he had nightmares which woke her during the night: p 141. Because of the effect on him, she decided to separate, about six or eight weeks after the emails from the defendant, that is about the end of February or early March 2006. Mrs Anderson said quite emphatically that she blamed the defendant for the fact that the marriage would not survive: p 137. [73] Various people who knew the plaintiff spoke of a significant change in him from early 2006: his neighbour Mr Monteleone described him as more reclusive and a totally different person (p 167), a long standing friend Mr Squire said he had gone down hill and was depressed and very quiet (p 212), Mr Allen said he was shattered, 45 This was a mistake; it was the Malay-Indonesian border. 46 This was on the basis that the plaintiff had said that the statements were defamatory: p 115. 47 He did not claim all social activity had ceased. The plaintiff still has some involvement with a motorcycle group: Richardson p 206. -- 21 of 31 -- 22 and livid at the emails (p 154), Mr Fowler said he was very upset and had become very reclusive (p 171), and Mr Richardson said that the plaintiff was totally different, isolated himself and had been reduced on occasions to tears: p 194-5. [74] I therefore find that the publication of the defamatory statements in the emails did exacerbate the plaintiff’s post traumatic stress disorder and depressive illness as alleged in paragraph 29(c) of the statement of claim, and that as a result of that and the general effect which the emails had on the plaintiff his relationship with his wife has come to an end. In case it is not already clear, I find that these were caused by the publication of the defamatory emails. There is authority that where the publication of a defamation gives rise to psychiatric injury, the damages for that defamation can include compensation in respect of that injury.48 In the circumstances therefore subject to one matter to which I shall refer in a moment, the effect of any psychiatric injury, which would include an aggravation of a pre- existing psychiatric condition of the plaintiff, is a relevant factor for assessing damages for defamation. [75] The further consideration is that the plaintiff has not complied with the requirements of the Personal Injuries Proceedings Act 2002. Section 6 of that Act provides that it applies in relation to “all personal injuries arising out of an incident … .” There are a series of exemptions in s 6, but none of them covers a claim for damages for defamation. The term “personal injury” is defined expressly to include “psychological or psychiatric injury” while the term “incident” is defined as “the accident, or other act, omission or circumstance, alleged to have caused all or part of the personal injury.” The publication of defamatory matter can be seen as an act which in this case caused the personal injury, in the form of a psychiatric or psychological injury. On the face of it therefore the Act would apply to a claim for damages for personal injury alleged to have been caused by the publication of the defamatory matter, which at the time meant a claim under the 1889 Act. [76] It may be of some significance that s 6(5) expressly excludes the operation of the Act in respect of claims for damages in relation to personal injuries under four specific pieces of legislation, the Anti Discrimination Act 1991, the Civil Aviation (Carriers’ Liability) Act 1964, the Criminal Offence Victims Act 1995, and the former s 663D of the Criminal Code. The specific provision of the Anti Discrimination Act which is exempted is the provision empowering the Tribunal to require a respondent to pay to a complainant or another person an amount the tribunal considers appropriate as compensation for loss or damage caused by a contravention. If the legislature has expressly excluded that provision from the operation of the Act, it was plainly intended to have otherwise a very wide application. I am not aware of any decisions on the point, but in my opinion the Personal Injuries Proceedings Act 2002 does apply to an action for damages for defamation, insofar as the damages claimed in the action are or include damages for personal injury in the form of psychiatric or psychological injury. [77] Counsel for the plaintiff submitted, however, that the failure to comply with the 2002 Act had not been pleaded by the defendant, and that in those circumstances the defendant should be taken as having waived non-compliance. He relied on the decision in Gotze v Ylitalo [2005] QSC 12, an action seeking damages for breach of 48 Mirror Newspapers Ltd v Jools (1985) 5 FCR 507 at 510; Rigby v Mirror Newspapers Ltd (1963) 64 SR (NSW) 34; Kilpatrick v Van Staveren [2002] QDC 293; appeal dismissed [2003] QCA 303. -- 22 of 31 -- 23 contract and negligence in relation to a lease, which included a claim for stress which was characterised by Dutney J as a claim for personal injuries: [72]. His Honour at [73] said that no point was taken concerning any deficiency by the plaintiffs in complying with the provisions of the 2002 Act, and that the failure to raise the issue constituted an implied waiver of the requirements of the Act under s 18(b). I am not aware of any later decision which has either followed or dissented from this view, though it appears in a very general sense to be consistent with at least some of the analysis of the effect of a failure to comply with a statutory precondition to commencement of proceedings in Phipps v Australian Leisure and Hospitality Group Ltd [2007] 2 Qd R 555. 49 In the circumstances therefore I accept that because the matter was not raised by the defendant, even in the amended defence filed by leave on the third day of the trial, I should disregard the failure to comply with the requirements of the Personal Injuries Proceedings Act 2002 in assessing damages in this action. [78] It was alleged in paragraph 30 of the statement of claim that the defendant had failed, refused or neglected to retract his statements in the defamatory imputations and to apologise to the plaintiff. This was admitted in paragraph 26 of the amended statement of defence, although the defendant pleaded that his failure to apologise within the time specified in a request for an apology was because he was suffering intense pain from a back injury at the time. On 20 February 2006 the plaintiff wrote to the defendant referring to the various defamatory matters which were the subject of the action, and seeking an apology to all members individually and collectively at the Caboolture centre in respect of the photograph and to all persons who were the recipient of the various emails by 7 March 2006, and a statement to this effect to appear in the next Caboolture centre newsletter, with the apology to be approved by the plaintiff before it was published: Exhibit 10. The plaintiff said he did not receive any apology from the defendant, or any offer of an apology: p 43. [79] There was however evidence of an apology in a letter sent by the then solicitors for the defendant on 25 August 2006, that is, just before the notice of intention to defend and original defence were filed by those solicitors: Exhibit 24. The evidence of this is unsatisfactory. The plaintiff denied any knowledge of it. It is possible that he had not seen the letter himself, although I would have expected his solicitors to tell him of it. The defendant ought to have called for the original letter and tendered that, thereby demonstrating that it had been received, but there was no objection to his tender of the copy, and it was not suggested in cross-examination that it had not been sent,50 so I find it was sent. It was said to be “unreserved”, but did include the statement that the defendant was “somewhat at a loss to understand how the comments outlined in the Statement of Claim would have given offence to [the plaintiff] given that these were made by email to a small circle of people who would have understood that no offensive intent ought to be imputed to the words.” [80] That was not a helpful inclusion in any apology, and was obviously false. The emails were sent to different numbers of people. The first was sent to a large number of recipients, the second to one person who was a friend of the plaintiff and who was severely criticized before me by the defendant, while the third and fourth were sent to another friend of the plaintiff, another of the three people the defendant 49 I acknowledge that that decision was about different legislation, which is differently framed. 50 Curiously, it was not mentioned in Exhibit 13, although there are references to the defendant’s response to the plaintiff’s request for an apology, Exhibit 10; see also p 308. -- 23 of 31 -- 24 repeated accused of causing all the trouble at the Caboolture Centre.51 These individuals were particularly unlikely to reach such an understanding of the defendant’s intent, and in the light of the defendant’s behaviour during the trial, as set out below, any such understanding would not have been correct. [81] It is unnecessary to consider whether this was the sort of half smart apology which might actually increase the damages awarded,52 because it was quite clear at the trial that either it was never genuine, or the defendant had comprehensively resiled from it. During his evidence the defendant expressly reasserted the crucial statement in the email of 17 December 2005 (p 282, p 300), and that the plaintiff was predatory (p 302) 53 and a bully (p 301), that he had led another member by the nose (p 282), and that the AAT material showed his true colours: p 304. Although he did not continue to support the use of the term “slave”, he was critical of the way in which the plaintiff had spoken to his wife: p 282, p 305. 54 In these circumstances, the sending of Exhibit 24 provides no basis for mitigating the damages payable. [82] I should say something about credibility. It was obvious that the plaintiff and some of his witnesses were very hostile to the defendant, and conversely the defendant and some of his witnesses were very hostile to the plaintiff. I am taking this into account when assessing issues of credibility, but in general I may say that issues of credibility do not I think loom large in this action, in view of the state of the pleadings. The main issue of credibility was probably as to the effect of all of this on the plaintiff, and particularly bearing in mind the relatively independent evidence of Dr Rossen and the two witnesses for the plaintiff who were not associated with the Caboolture centre of the TPI association and any internal disputes there, which I accept, I think it clear enough that the effect has been substantial. [83] The only witness on whose credibility I formed any specific adverse view was the defendant; generally speaking I am not prepared to act on his evidence unless it was supported by the evidence of another more reliable witness, or contemporaneous documents, or was otherwise inherently reliable.55 This assessment was made on the basis in my impression overall of the defendant at the trial, but it may be illustrated by one particular matter. The defendant tendered Exhibit 23, copies of affidavits by Mr Richardson, Mr Allen, Mr Fowler, the plaintiff’s wife, and a Mr O’Brien filed in the earlier action. These were tendered in order to support the defendant’s assertion that they were all basically done in collusion (p 239): “I think it’s quite apparent that the – everything the same.”56 [84] It was put to Mr Fowler at p 181 that his affidavit and the affidavits of Mr Richardson and Mrs Anderson were all done on the same computer with the same font all on the same day and witnessed by the same person on the same day, to which Mr Fowler replied that he did his statement and went up to the court house and had it witnessed by a JP at the court house and no-one was with him, so it could not have been on the same day at the same time and on the same computer. 51 See for example defendant pp 246-7, p 288. 52 Tobin & Sexton, op cit, [22,085]. It did not satisfy the defendant’s own test for a reasonable apology: p 297. 53 See also Exhibit 13 para 21; p 303. 54 See also Exhibit 13 para 22. 55 As will be apparent from some of the findings made, I do not accept everything the plaintiff said either. 56 See also Exhibit 13 para 26. -- 24 of 31 -- 25 Exhibit 23 contains two affidavits by Mr Fowler, sworn 14 and 16 November 2005, although the second one is quite short, and simply covers the proposition that he had attended a particular meeting of the association on 1 February 2005 at a particular place, during which Mr Anderson had not said particular words in conversation with Mr Gregory. [85] The principle affidavit which runs to two pages of single line spacing is in a different format from the principle affidavits of Mr Richardson and Mr Allen, and indeed Mrs Anderson. There were some similarities, but to some extent these would be explained by the use of the appropriate form, and there is nothing to suggest that the body of the affidavit was not Mr Fowler’s own work. It was witnessed by a Commissioner for Declarations, whose signature is illegible, but it does appear to be the same person who witnessed Mr Allen’s affidavit, on the same day. Mr O’Brien’s affidavit was also witnessed the same day by the same Commissioner for Declarations. Mr Allen was not asked about this, but obviously they could have independently followed the same process, going to the court house to get someone to witness an affidavit, a natural enough process for a person not working with a solicitor. [86] Mr Richardson’s affidavit, sworn the same day, was witnessed by someone different, a Justice of the Peace, and the same Justice of the Peace witnessed Mrs Anderson’s affidavit. The coincidence of the date may have arisen from the fact that they were all working towards the same deadline for filing this material, or it may have been caused by the fact that they all responded promptly to a request for such affidavits from the plaintiff, which in itself would have been quite proper; people do not prepare affidavits and press them on parties to litigation out of the blue. [87] Mr Fowler’s second affidavit, sworn 16 November, was in essentially the same terms as Mr Allen’s second affidavit, and those affidavits look as though they were prepared together; they were both witnessed by the same person, a different Commissioner of Declarations. I think the obvious explanation is that, after the earlier affidavits had been prepared, either the plaintiff thought that it would be helpful to have in addition evidence on this specific issue covered by these deponents, or that was suggested to him by someone. It would I think be quite unobjectionable for him to ask the witnesses whether they were prepared to give supplementary affidavits in these terms, and for the witnesses to give them, without amounting to collusion. [88] The plaintiff denied that he had spoken to Mr Allen or Mr Fowler about whatever evidence they would give or tried to induce them to give any particular evidence: p 40. Mr Fowler also denied that he had been told what to say in the earlier action by the plaintiff: p 171. Overall, Exhibit 23 does not support the defendant’s assertions about collusion, though there is a small factual basis for a process of distorted reasoning which presumably led the defendant to interpret the documents overall in a way which in my opinion was quite inappropriate. [89] I expect most of what the other witnesses said was true, although it may have been distorted by hostility to one party or the other, and I do not necessarily accept everything they said. I thought the plaintiff’s wife honest and straightforward, though obviously hostile to the defendant. I note that the defendant conceded that Mr Fowler is an honest man: p 283. I do not think that there are otherwise any -- 25 of 31 -- 26 significant issues of credit for me to resolve in the trial; issues about whether some of the defendant’s witnesses were deliberately shunning the plaintiff I resolve on the basis that I am not persuaded that there was any deliberate shunning specifically referable to the publication of the information in the emails, which is what the plaintiff was seeking to prove, though I suspect that some of the defendant’s witnesses were not having anything to do with the plaintiff at the relevant times anyway. Assessment of damages [90] There are three purposes served by an award of damages for defamation: consolation to the plaintiff for the personal distress and hurt caused by the publication; reparation for the harm done to the plaintiff’s reputation, and vindication of the plaintiff’s reputation: Carson v John Fairfax and Sons Ltd (1993) 178 CLR 44 at 60-61. I accept that the plaintiff suffered significant hurt, distress and upset as a result of the publication of the emails, and that this had a substantial adverse effect on him, including an aggravation of his post traumatic stress disorder: p 40. Nevertheless, some caution needs to be applied in relation to this, because undoubtedly the previous litigation would also have had, at least once it was decided, a significant adverse effect on the plaintiff. Two of the plaintiff’s witnesses who knew him but were independent of the TPI association, Mr Squire who was a longstanding friend and Mr Monteleone who was a friend and neighbour, did not clearly differentiate between the effect on the plaintiff of the earlier litigation, and the subsequent emails. It is also not at all clear that Dr Rossen saw the plaintiff often enough at the relevant time to be able to distinguish clearly between the effects of these two matters. This is not to say that the emails did not have a significant effect, but I do not think they were solely responsible for the deterioration in the plaintiff’s psychiatric condition identified by Dr Rossen. [91] The matter is complicated by the fact that, although the general principles about assessment of damages derived from the common law have not been changed by the 2005 Act, there are a number of provisions which impact on their application. Section 34 requires that the damages awarded bear an appropriate and rational relationship to the harm sustained by the plaintiff, and s 35 provides that ordinarily the maximum amount of non-economic loss that may be awarded in defamation proceedings is $250,000. Section 36 provides that the court is to disregard the malice or other state of mind of the defendant at the time of publication of the defamatory matter or at any other time except to the extent that the malice or other state of mind affected the harm sustained by the plaintiff, and s 37 excludes an award of exemplary or punitive damages. Presumably when the general damages are ordinarily capped at $250,000, assessments of damages in a particular case should be made by a process of scaling the award in relation to that maximum, by comparison between the harm sustained by the plaintiff in a particular case and harm of the most serious kind, disregarding extraordinary cases.57 In these circumstances I think it is appropriate to assess damages, at least apart from any 57 An alternative would be to assess damages as usual, but if they happen to exceed $250,000, to reduce them to that amount; in my opinion such an interpretation would produce a capricious result. The explanatory notes indicate that the introduction of a cap was intended to be consistent with reforms in relation to personal injury awards, and that is the system that exists under the Civil Liability Act and Regulation. See also Attrill v Christie [2007] NSWSC 1386. -- 26 of 31 -- 27 question of aggravated damages, separately in respect of the matters covered by the 1889 Act and the matters covered by the 2005 Act. [92] The former matters cover the publication of the photograph, the first email, which carried the imputations that the plaintiff was a coward and did not behave in an honourable way as expected of an ordinary man, and the passage in the email of 18 January 2006 which carried the imputation that the plaintiff lacked moral strength and that the plaintiff was a coward. I accept that the plaintiff was hurt and upset and embarrassed to some extent by the publication of the photograph, but not very much at the time, and it does not appear that it had any substantial adverse effect on his reputation or standing within the Caboolture centre. It appears that at the end of the year or early the next year he was elected or re-elected to the committee at that centre, and re-elected again at the beginning of the following year, and he remained on the social committee until at least April 2005 (Exhibit 16) and possibly much longer. [93] The plaintiff’s evidence did not suggest that this publication was related to any aggravation in his psychiatric state, and on the whole I do not think that the publication of the photograph, alone, was a matter of great significance, though there is the consideration that it was relatively widely distributed, in that it went to all of the people who received and read the newsletter, and that because it was published in the newsletter it will remain as apparently a photograph of the plaintiff accessible to persons in the future who have occasion to consult the records of the Caboolture centre of the association and who may obtain an inaccurate impression of the plaintiff as a result. In those circumstances, the factor of vindication is a matter of some importance. [94] With regard to the two statements in the emails to be dealt with under the 1889 Act, I think the more serious aspect of the imputations here was that the plaintiff was a coward, which would be particularly hurtful to an ex-serviceman. On the other hand, one of these emails had a more limited circulation, at least initially. The email of 17 December 2005 was sent to 14 addressees, including “Ipswich”, “Logan”, and “Mackay” all “@qldtpi.org.au”, which I assume means that they went either to office bearers of those centres of the association, or possibly to all members at those centres. One was sent to “[email protected]” and another apparently to the treasurer. Accordingly, this email was fairly widely distributed within the association. The email of 18 January 2006, on the other hand, was sent only to one person, Mr Allen, one of the plaintiff’s witnesses, although it is apparent that it subsequently came to be forwarded to a number of other people within the Caboolture group at least, and probably more widely within the association.58 [95] That gives rise to the question of whether the defendant is liable for any republication of the defamation. Each republication is a separate tort in itself, but in the context of an action against the originator of the defamatory statement, where harm has been suffered as a result of the republication of that defamatory statement, whether the damage suffered as a result of the initial publication includes that later harm depends on ordinary principles of the assessment of damages in tort, namely whether such harm was the natural and probable consequence of such a publication: 58 Exhibit 2 includes a forwarding email from Mr Richardson, who also forwarded the email he was sent in Exhibit 3, but it is not clear how the email of 18 January came to Mr Richardson. Mr Allen denied forwarding emails: p 157. -- 27 of 31 -- 28 Slipper v British Broadcasting Corporation [1991] 1 QB 283; Kilpatrick v Van Staveren [2002] QDC 293, [2003] QCA 303. [96] In the present case, these emails were sent in a context where there was a contested election for the state executive coming up and the defendant was a candidate for that election, and in such circumstances it might reasonably be expected that emails emanating from him sent to persons within the association who were also active and who were hostile to him, and which might be seen as portraying him in a negative light, could well receive wider dissemination.59 As well, the technology makes it very easy to forward an email, so emails are by their nature particularly likely to be forwarded, and thus republished. In all the circumstances, I find that the defendant is liable for the harm done by the republication of the emails which he sent, because it was the natural and probable consequence of his publication of them. [97] The evidence about the psychiatric injury was by reference to the emails generally. In my opinion the worst of the defamatory imputations were those arising from the email of 14 January 2006, though the imputation that the plaintiff was a coward, that he was manipulative and the other imputations arising from the email of 18 January 2006 were also matters of some significance. On the whole, and doing the best I can, I think it is reasonable to apportion one-quarter of the harm done by the emails to those matters in respect of which the earlier Act applies and three-quarters to the other matters. [98] In terms of the aggravation of the plaintiff’s psychiatric injury, I accept that this was a matter of some significance, but hopefully it will not be a permanent aggravation. One would hope that the outcome of this litigation will be beneficial, and will assuage the feelings of the plaintiff. Bearing that in mind, and bearing in mind also the evidence of Dr Rossen and the other evidence of the changes in the plaintiff’s behaviour and the aggravation of his symptoms to which I have referred, in my opinion a reasonable allowance for general damages in respect of the aggravation of the plaintiff’s psychiatric injury referable specifically to the publication of the defamatory matter in the emails is $10,000.60 Apportioning one-quarter of this to the earlier emails is an amount of $2,500. [99] Apart from this, I would on general principles assess modest damages for defamation in respect of the publication of the photograph of $1,000, and assess damages for defamation under the 1889 Act in respect of the emails generally at $16,000, of which one-quarter is $4,000. I have taken into account the effect on the plaintiff’s marriage here rather than as damages for the psychiatric injury as such, because I find that it was caused at least in part directly by the emails and the plaintiff’s reaction to them, rather than specifically by the aggravation of the post traumatic stress disorder, in view of the evidence of the plaintiff’s wife. I am also taking into account the fact that most of the people to whom the emails were communicated may well already have had views about the plaintiff or the defendant (which may have affected the significance they placed on what he said) as a result of what had occurred previously.61 That produces a total assessment in respect of 59 See the explanation for the distribution of an email received from the defendant by Mr Richardson: pp 204-5. 60 I am assessing this separately in case a different view may be taken elsewhere as to whether this may be taken into account. 61 On the other hand, there was evidence from Mr Richardson that there is still some talk in TPI circles of the plaintiff as someone who mistreated his wife: p 194. -- 28 of 31 -- 29 the matters covered by the 1889 Act for compensatory damages of $7,500. I shall leave the question of aggravated damages until later; there is no occasion to award exemplary damages in respect of the matters the subject of the 1889 Act. [100] Turning to the matters covered by the 2005 Act, the balance of the award in terms of the psychiatric injury of $7,500 is applicable to this, and if damages under the Act were assessed on general principles the balance of the award for other matters would be $12,000. That would produce a total of $19,500. It then becomes a question of whether that amount should be adjusted because of the requirements of s 35 of the Act. It seems to me that the effect of s 35 is to require some moderation of the award of damages, because obviously the hurt suffered by a plaintiff could be very much greater, in objective terms, than the hurt suffered by the plaintiff in this case, and it seems to me that a process of scaling of this nature can only be sensibly conducted by reference to an objective comparison. Bearing that in mind, and also bearing in mind that this is compensation for part of the harm, not the whole harm, the plaintiff has suffered, I think the appropriate way to make allowance of the operation of s 35 is to moderate the award so as to reduce the amount of damages assessed by way of compensatory damages, which will take into account both the traditional categories of damages for defamation and the damages for psychiatric injury, to $18,000. There is no question of exemplary damages under the 2005 Act, but aggravated damages remain available. [101] The traditional approach is that aggravated damages may be awarded if the conduct of the defence has had the effect of improperly aggravating the injury done to the plaintiff, if there was a lack of bona fides in the defendant’s conduct, or it was improper or unjustifiable: Triggell v Pheeney (1951) 82 CLR 497 at 514. These matters of course would have come to the attention of the plaintiff, and are appropriately taken into account in assessing damages despite s 36 because the point of aggravated damages is that the conduct of the defendant has served to aggravate the harm actually suffered by the plaintiff. It was clear enough during the course of the trial that the defendant’s behaviour during the trial was aggravating the harm done to the plaintiff, and I think it obvious enough that other things that he did in connection with the action would have had that effect. [102] The first aspect of the conduct of the trial was the matters pleaded in the amended defence. Among the matters pleaded were: “7. The defendant states, however, that the plaintiff could be classified by other veterans as a coward … due to the statements made by the plaintiff in the Administrative Appeals Tribunal hearing Q202/495. … 9.2 It was known that the plaintiff would often place his own interests above those of other people. 9.3 It was personally known by the defendant that the plaintiff had behaved towards his wife in a manner which was less than a standard generally accepted by a right-thinking member of society. … 19.1 Some right-thinking individuals could consider the plaintiff to be manipulative. -- 29 of 31 -- 30 19.2 Some right-thinking individuals could consider that the plaintiff used others for his own advantage. … 22. The defendant claims that the transfer from the Caboolture social centre to the Redcliffe social centre was due to the unpopularity of the plaintiff at the Caboolture social centre and was not due to the email mentioned in paragraph 27 of the amended statement of claim. … 24. The defendant denies the allegation made in paragraph 29(c) of the amended statement of claim as the defendant denies that the plaintiff suffers from post traumatic stress disorder.” [103] These allegations were improper and unjustified. They were improper in that they were not matters which were capable of amounting to a good defence even if they had been made out, so that they were essentially gratuitous insults to the plaintiff made under cover of the litigation. In addition, they were essentially based on only the opinion of the defendant, without any evidence to support them; at least, none was led before me. There was, for example, no evidence whatever to dispute the evidence of a properly qualified psychiatrist that the plaintiff was suffering from, and had suffered, post traumatic stress disorder, and there was in my opinion no rational basis upon which the defendant was entitled to assert that the plaintiff did not suffer from that condition. There was certainly not a shred of evidence in support of such an assertion placed before me. [104] The amended defence was filed by leave on the third day of the trial, after some discussion about it, while the plaintiff was present in court: p 218. The plaintiff had completed his evidence, but he was then recalled for further cross-examination and re-examination. Although the matter was not the subject of direct evidence, in view of what occurred and my assessment of the plaintiff, I find on the balance of probabilities that the contents of the amended defence came to his attention, and infer that he would have been hurt by them. [105] During the trial, there were numerous instances where the defendant made gratuitous disparaging comments to the plaintiff: eg p 61 line 55; p 77, line 40; p 90, line 25.62 There were repeated assertions, as far as the evidence went utterly without foundation and quite gratuitous, that the plaintiff had been known to embellish his service record: p 83, line 23; p 123, line 38; p 303, line 50; p 311, line 38.63 Although no evidence was put forward as to what had happened in the AAT, it was asserted that the tribunal had doubted his word about having post traumatic stress disorder (p 89, line 5) and that he had fabricated his claim with the aid of a friendly psychiatrist: p 107, line 10.64 On the same page at line 25 the defendant stated he did not believe that the plaintiff had post traumatic stress disorder, and on p 121, lines 20 and 27 he asserted the plaintiff had hoodwinked the AAT. 65 He described the plaintiff as a very skilled liar: p 319 line 37. The defendant was also insulting to the plaintiff’s counsel: p 63, line 36; p 315, line 12. 62 See also Exhibit 13, generally and in particular paras 21, 23, 31, 32. 63 See also Exhibit 13 para 7. This is a particularly serious accusation to make of a veteran: Dodgshun p 255. 64 See also defendant p 313 lines 5-11. 65 See also Exhibit 13 para 32, where he asserted that the plaintiff was obtaining benefits under false pretences. -- 30 of 31 -- 31 Although the insults were not entirely one way, in that on one occasion (p 86, line 30) the plaintiff suggested that the defendant might have fabricated documents, this was overall a remarkably nasty and insulting course of conduct towards the plaintiff by the defendant during the trial. It is difficult to see how the defendant could have conducted the trial in a way which would have aggravated the hurt suffered by the plaintiff more. [106] There is also the consideration that on 22 October 2006, after the action had commenced and when it was well advanced, the defendant sent the plaintiff an email 66 threatening to send out an email to “as many military and ex-military websites and forums as possible to obtain comments to counteract your claim that my mention of your Administrative Appeals Tribunal hearing to Bill Allen was in any way defamatory towards you.” Also made available to the plaintiff was a document including statements “Do you really want your name splashed all over the internet? Do you want Veterans’ Affairs to review your claim? … Do you think Sandy will be happy having to repay all her service pension?” With this document was a mock up of a front page of the Caboolture News, said to be the local newspaper, with a headline “Past catches up with reluctant soldier” and a photograph of the defendant with the caption “Has this man been defrauding Veterans’ Affairs for years?” There was also a sub-headline “Soldier lets comrades face danger as he was too scared.” This was extraordinarily offensive behaviour. [107] There was not a shred of evidence before me that the plaintiff’s claim to any government benefits was in any way fraudulent, or that the plaintiff was not entitled to them, other than the obviously spiteful belief of the defendant, or of any basis for suggesting that the plaintiff had displayed cowardice. It must have been particularly galling to the plaintiff to have been accused of cowardice by a man whose military service, so far as I was told, was essentially as a clerk: p 225. Although there was no specific evidence of the adverse effect of this material on the plaintiff, it would obviously have been most hurtful. [108] In my opinion, in view of all of this behaviour, this is a very clear case for an award of aggravated damages. I do not think that there is any need for me to differentiate between the two aspects of the claim (that is, the old and the new Acts) and I will simply award aggravated damages generally of $12,000. I record that, if I had to divide the aggravated damages, I would divide them equally between the two aspects of the claim. [109] There will therefore be judgment that the defendant pay the plaintiff $37,500. I will hear submissions in relation to interest and costs when I deliver judgment. 66 Exhibit 25, proved at p 316. It was obviously a threat: p 318. -- 31 of 31 --