Favell v Mbuzi [2005] QDC 356

DISTRICT COURT OF QUEENSLAND CITATION: Favell v Mbuzi [2005] QDC 356 PARTIES: PAUL JOSEPH FAVELL (Plaintiff) And JOSIYAS MBUZI (Defendant) FILE NO/S: BD1021 of 2005 DIVISION: Civil PROCEEDING: Trial ORIGINATING COURT: District Court DELIVERED ON: 18 November 2005 DELIVERED AT: Brisbane HEARING DATE: 17 and 18 October 2005 JUDGE: Tutt DCJ ORDER: 1. Judgment for the plaintiff against the defendant. 2. That the defendant pay damages to the plaintiff in the sum of $15,000.00 plus interest at the rate of 10% per annum from 14 February 2005 to date of judgment. I shall hear the parties on costs. CATCHWORDS: Defamation – publication of defamatory material – injury to reputation of experienced and senior barrister – whether defendant’s conduct aggravated the injury to the plaintiff – whether exemplary damages should be awarded – aggravated compensatory damages. Defamation Act 1889 s 11. Uniform Civil Procedure Rules 1999 r 137(1). Bickel v John Fairfax & Sons Limited (1982) 2 NSWLR 474. Broome v Cassell & Co Ltd [1972] AC 1027. Carson v John Fairfax & Sons Limited (1993) 178 CLR 44. Cotogno v Lamb (No 3) (1986) 5 NSWLR 559. Crampton v Nugawela (1996) 41 NSWLR 176. Favell v Mbuzi [2005] QDC (Brabazon QC DCJ 2 September 2005). -- 1 of 23 -- 2 Gibbons v Duffell (1932) 37 CLR 520. John Fairfax Publications Pty Ltd v O’Shane (No. 2) [2005] NSWCA 291. Konstantinidis v Foreign Media Pty Limited [2004] NSWSC 835. Mann v O’Neill (1997) 191 CLR 204. XL Petroleum New South Wales Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448. COUNSEL: Mr R Anderson for the plaintiff. Mr J Mbuzi in person. SOLICITORS: Gail Malone & Associates for the plaintiff. Introduction [1] By his claim filed 23 March 2005, the plaintiff claims damages under various heads for defamation arising out of the publication of two letters by the defendant on 14 February (“the first letter”) and 18 February 2005 (“the second letter”) respectively. The first letter was forwarded to Mr David Colwell who was the plaintiff’s instructing solicitor in Supreme Court application no. BS10869 of 2004 (“the originating application”) with copies to the Registrar and Listings Manager of the Supreme Court of Queensland; the second letter was forwarded to Ms Gail Malone, solicitor, of Gail Malone & Associates, who had been instructed by the plaintiff to act on his behalf in respect of the first letter. Both letters form part of Exhibit “2” in this proceeding. [2] The plaintiff is a practising barrister in Brisbane, having been in continuous practice in that occupation for approximately 26 years. -- 2 of 23 -- 3 Background [3] The background to this proceeding is that the plaintiff represented a Mr and Mrs Averono (“Averono”) in the originating application against the defendant and his wife, whereby Averono sought injunctive relief in respect of issues pertaining to easements affecting their respective properties and in which the defendant and his wife filed a cross-application, also seeking certain relief. [4] The originating application came before his Honour Justice Byrne in the first instance on 22 December 2004 and later that day before his Honour Justice Muir, and those applications were ultimately heard by Muir J on 20 January 2005 and orders made on 21 January 20051. [5] Other matters pertaining to the originating application were subsequently heard by her Honour Justice Mullins in March 2005 and even further by the Court of Appeal. However, the latter two hearings play no part in the current proceeding. [6] It was as a result of issues that had arisen during the course of the hearing of the originating application before Byrne and Muir JJs that prompted the plaintiff to write the first letter with copies to the Registrar and Listings Manager of the Supreme Court, in which the plaintiff said, among other things: “We will also be requesting the court to consider recommending that charges of perjury be laid against your clients Mr and Mrs Averono and your barrister Mr Paul Favell. In addition we will be requesting the court to censor Mr Favell and yourself for misleading conduct before the court.” 1 See his Honour’s reasons with the reference Averono and Anor v Mbusi and Anor [2005] QSC 006. -- 3 of 23 -- 4 [7] Mr Colwell brought this correspondence to the plaintiff’s attention soon after he received it2 after which the plaintiff instructed his solicitors, Gail Malone and Associates, to respond to the defendant, which they did by facsimile letter of 16 February 20053 (“the solicitor’s letter”). [8] Among other things the solicitor’s letter sought an apology for and a retraction of the remarks in the first letter, to which the defendant responded to that letter by his second letter.4 In the second letter the defendant said, among other things: “3. Your letter is a clear intimidation and retaliation against me as a result of discharging my responsibilities in a court case. Mr Favell should be seen as a party to your action as he would have instigated the action in the first place. 4. I have advice to you, as an individual, your law firm, and Mr Favell should be reported for possible prosecution for intimidation and retaliation against a witness…… 5. I am further advised that when the case resumes on 2 March 2005, I should let the Judge know about your action, which also borders on interference in Supreme Court proceedings.” [9] A copy of the second letter was also forwarded to the Registrar of the Supreme Court of Queensland. The plaintiff then issued the current proceedings before this court. [10] The plaintiff’s claim and statement of claim were served on the defendant on 23 March 2005, to which the defendant failed to file his notice of intention to defend and defence within the time prescribed by the Uniform Civil Procedure Rules5 and the plaintiff then filed a Request for default judgment on 22 April 2005 (30 days after service), with the Registrar granting judgment to the plaintiff on 27 April 2005 in the following terms:- 2 Transcript at page 19 line 4. 3 That is part of Exhibit 2. 4 Also part of Exhibit 2. 5 Within 28 days of service: r 137(1) UCPR. -- 4 of 23 -- 5 “The judgment of the court is that: 1. The plaintiff recover against the defendant damages to be assessed upon the plaintiff’s statement of claim together with costs to be assessed and; 2. The assessment of damages be assessed by the District Court.” [11] The defendant filed his notice of intention to defend and defence on 17 May 2005, out of time, and then filed an application to set aside the default judgment on 19 July 2005. [12] This application came before her Honour Judge O’Sullivan on 2 August 2005 and was later heard by his Honour Judge Brabazon QC on 8 and 15 August 2005, in respect of which his Honour made certain orders and delivered his reasons on 2 September 2005. His Honour’s orders were as follows:- “1. The judgment by default dated 27 April 2005 be set aside. 2. The defendant be at liberty to defend the plaintiff’s claims based on the letter of 14 February 2005 solely on the ground of absolute protection according to section 11 of the Defamation Act 1889. 3. The trial, including the assessment of damages, be heard on 17 and 18 October 2005. 4. The costs of this application are reserved.” [13] It is with the above background that this matter came on for hearing on 17 October 2005. The Trial [14] At the outset of the trial plaintiff’s counsel, Mr Anderson, submitted that “the sole purpose of today is to determine damages on what is now, in effect, an admitted claim”. This submission was rejected in the light of the orders of Brabazon QC DCJ. The trial therefore proceeded on the pleadings before the court with the defendant’s defence limited to his relying upon s 11 of the Defamation Act 1889 -- 5 of 23 -- 6 (“the Act”) which deals with the privilege afforded to any person for the publication of any defamatory matter where it occurs (relevantly for present purposes) “… in the course of a proceeding held before or under the authority of any court of justice …”. The full context of s 11 of the Act is as follows:- “11 Absolute protection – privileges of judges, witnesses and others in courts of justice A person does not incur any liability as for defamation by publishing, in the course of a proceeding held before or under the authority of any court of justice, or in the course of an inquiry made under the authority of a statute, or under the authority of the Government, or of the Governor in Council, or of the Legislative Assembly, any defamatory matter.” Offending Material [15] The offending material is contained in the two letters referred to in paragraphs [6] and [8] above and it is conceded on behalf of the plaintiff that the respective letters6 as a whole are not defamatory of the plaintiff, but that in respect of the first letter, the offending words comprise the last paragraph of the letter on page 2 thereof, while in the second letter the offending words are contained in paragraphs numbered 3, 4 and 5 thereof. Initial Findings [16] In accordance with the pleadings and the admissions made by the defendant in his defence, I make the following findings:- (i) On 14 February 2005, by facsimile transmission, the defendant published to David Colwell and Company, a firm of solicitors, Mr David Colwell a 6 The primary purpose of the first letter seems to relate to the defendant attempting to arrange an adjournment of an impending costs hearing with the second letter being a response to the solicitor’s letter of 16 February 2005. -- 6 of 23 -- 7 solicitor, the Registrar of the Supreme Court of Queensland and to the Listings Manager of the Supreme Court of Queensland, in respect to proceedings between the defendant and Mr and Mrs Averono, being Supreme Court file number BS10869/04, a letter which included the following words: “We will also be requesting the court to consider recommending that charges of perjury be laid against your clients Mr and Mrs Averono and your barrister Mr Paul Favell. In addition we will be requesting the court to censor Mr Favell and yourself for misleading conduct before the court.” (ii) The words referred to above in their natural and ordinary meaning carry the following imputations of and concerning the plaintiff and are defamatory of him in that they impute: “(a) the plaintiff had conducted himself as a barrister in a way that warranted him being charged with perjury; (b) the plaintiff was reasonably suspected by the defendant as having perjured himself; (c) the plaintiff had, whilst acting as a barrister, mislead the court; (d) the plaintiff was reasonably suspected by the defendant as having misled the court; (e) the plaintiff had, whilst acting as a barrister, conducted himself in a way that warranted the censure of the court.” (iii) On 18 February 2005, by facsimile transmission, the defendant published to Ms Gail Malone, a solicitor of Gail Malone and Associates, and to the Registrar of the Supreme Court of Queensland a further letter7 which included the following words: “3. Your letter is a clear intimation and retaliation against me as a result of discharging my responsibilities in a court case. Mr Favell should be seen as a party to your action as he would have instigated the action in the first place. 4. I have advice that you, as an individual, your firm and Mr Favell should be reported for possible prosecution for intimidation and retaliation against a witness … 7 The second letter. -- 7 of 23 -- 8 5. I am further advised that when the case resumes on 2 March 2005, I should let the judge know about your action which also borders on interference in Supreme Court proceedings.” (iv) The words referred to above in their natural and ordinary meaning carry the following imputations of and concerning the plaintiff and are defamatory of him in that they impute: “(a) the plaintiff was a party to conduct which sought to intimidate and retaliate against a witness; (b) the plaintiff was reasonably suspected by the defendant of crimes related to intimidation and retaliation against a witness; (c) the plaintiff’s conduct in seeking an apology and retraction from the defendant could reasonably be understood to be interfering with proceedings before the Supreme Court.” Defence of Absolute Protection [17] It is then a question of whether such defamation of the plaintiff is protected by s 11 of the Defamation Act 1889.8 [18] In general terms absolute privilege is described as follows: “It is well settled that absolute privilege attaches to all statements made in the course of judicial proceedings, whether made by parties, witnesses, legal representatives, members of the jury or by the judge. It extends to oral statements and to statements in originating process, in pleadings or in other documents produced in evidence or filed in the proceedings. It is said that it extends to any document published on an `occasion properly incidental [to judicial proceedings], and necessary for [them].9 [19] The majority judgment (Brennan CJ, Dawson, Toohey, Gaudron JJs) further stated at page 213: “And absolute privilege attaches to statements made in the course of judicial proceedings because it is an indispensable attribute of the judicial process. It is necessary that persons involved in judicial 8 Referred to in paragraph [14] above. 9 Mann v O’Neill (1997) 191 CLR 204 at 211. -- 8 of 23 -- 9 proceedings with a judge, jury, the parties, witnesses or legal representatives should be able to discharge their duties freely and without fear of civil action for anything said by them in the course of the proceedings. Were civil liability to attach or be capable of attaching it would be impede inquiry as to the truth and justice of the matter and jeopardise the `safe administration of justice’.” And further: “… the general rule is that the extension of absolute privilege is `viewed with the most jealous suspicion and resisted unless its necessity is demonstrated’. Certainly absolute privilege should not be extended to statements which are said to be analogous to statements in judicial proceedings unless there is demonstrated some necessity of the kind that dictates that judicial proceedings are absolutely privileged.” [20] Furthermore, the defence of absolute privilege is strictly confined. See Gibbons v Duffell (1932) 37 CLR 520 at 528 where their Honours Gavan Duffy CJ, Rich and Dixon JJ stated: “The thrust is that an indefeasible immunity for defamation is given only where upon clear grounds of public policy a remedy must be denied to private injury because complete freedom from suit appears indispensable to the effective performance of judicial, legislative or official functions. The presumption is against such a privilege and its extension is not favoured (Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson). Its application should end where its necessity ceases to be evident.” [21] I further find that the first page of the first letter is uncontentious and aptly falls into the category of being “… properly incidental to judicial proceedings and necessary for them”. [22] The question then is does the final paragraph containing the defamatory imputations come within the same category, bearing in mind the principles enunciated in the authorities referred to above. -- 9 of 23 -- 10 The First Letter [23] I find the defence afforded by s 11 of the Act does not extend to the defamatory imputations contained in the final paragraph of the first letter as they were not published “… on an occasion properly incidental to judicial proceedings and necessary for them”, but were statements made extraneous to the originating application then on foot and the defendant has not demonstrated any “necessity” for such extravagant remarks. In reality the suggestion “… that charges of perjury … (could) be laid against …” the plaintiff is so outlandish that it is a nonsense and is indicative of the defendant’s total ignorance of the court process and the role of counsel within it. The Second Letter [24] With respect to the defamatory imputations contained in the second letter, I find also that s 11 of the Act does not apply to them and I find further that the defendant is not entitled to any other of the protection available under Part 4 of the Act as the defendant’s response to the solicitor’s letter again demonstrates a gross ignorance of the normal legal process inherent in such a letter, written by a solicitor upon instructions from an aggrieved client in the plaintiff’s position. [25] It follows therefore that I give judgment for the plaintiff in this proceeding. I shall now consider the assessment of damages. -- 10 of 23 -- 11 Damages [26] The plaintiff claims compensatory including aggravated damages and exemplary damages. [27] The recent decision of John Fairfax Publications Pty Ltd v O’Shane (No. 2) [2005] NSWCA 291 (“O’Shane No.2”) provides a very useful guide and summation of “… the general principles applicable to assessing damages in defamation cases”.10 [28] Paragraphs [22] to [26] inclusive refer to a number of authorities and references which summarise the bases of the assessment of damages for defamation and the following statements from that material are of particular relevance:- (i) “Specific economic loss and exemplary or punitive damages aside, there are three purposes to be served by damages awarded for defamation. The three purposes no doubt overlap considerably in reality and ensure that the amount of a verdict is the product of a mixture of inextricable considerations. The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant’s personal and (if relevant) business reputation and vindication of the appellant’s reputation (see Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR at 150). The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant. Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public 10 See paragraph [21] of that reference. -- 11 of 23 -- 12 the vindication of the appellant’s reputation (See Carson (1991) 24 NSWLR at pp 269-299).” 11; (ii) “The High Court adopted with approval the statement that currently appears in Fleming, Law of Torts, 9th Edition (1998) p 658 as to relevant matters in assessing the quantum of damages necessary to vindicate the appellant (plaintiff): “The gravity of the libel, the social standing of the parties and the availability of alternative remedies…”12 (iii) “The whole process of assessing damages is essentially a matter of impression and not addition.” (Lord Hailsham in Broome v Cassell & Co Ltd [1972] AC 1027 at 1072). (iv) “… the law should place a high value upon reputation and in particular upon the reputation of those whose work and life depend on their honesty, integrity and judgment”; see e.g. per Mahoney ACJ in Crampton v Nugawela (1996) 41 NSWLR 176 at 195 and recently applied by Buddin J in Konstantinidis v Foreign Media Pty Limited [2004] NSWSC 835.” [29] Further at paragraphs [57] and [58] of O’Shane (No. 2), Young CJ in EQ said: “[57] I consider that another relevant matter is the fact that at the end of the article it was emphasised in bold print that the author is described as studying for a doctorate of law, which would convey to the average person (though not to a practising lawyer) that she was speaking with some authority. [58] This is a relevant matter to the assessment of damages. As Higgins J said in Costello v Random House Australia Pty Ltd (1999) 137 ACTR 1 at 33 [285] in relation to compensatory damages: "The court must bear in mind the extent of circulation, the gravity of the imputations, the apparent authority of the publication, its context and the circumstances of aggravation."” 11 See Carson v John Fairfax & Sons Limited (1993) 178 CLR 44 at 60-61. 12 Paragraph [23] of O’Shane (No.2). -- 12 of 23 -- 13 Aggravated Damages [30] On the question of aggravated damages, Young CJ in EQ, referring to the original judgment of the trial judge said at paragraph [62] of O’Shane (No.2): “The trial judge at [245] said that he awarded compensatory damages and also aggravated damages for the factors he mentioned earlier in his reasons, principally the falsity of the imputations and the appellant's knowledge that they were untrue, the failure of the appellant to apologise and the mode and extent of the publication.” [31] The above paragraph encapsulates the basis of an award for aggravated damages which may be awarded for conduct which is in some way unjustifiable, improper or lacking in bona fides, not merely behaviour that causes distress to the plaintiff13. Essentially they are designed to compensate the plaintiff for the particular circumstances and conduct of the defendant, which tend to aggravate the injury. A multitude of factors may be relied upon, including the repeated assertions of truth made by a defendant; a refusal to apologise; a repetition of the defamation and conduct during the course of the proceedings. In Broome v Cassell & Co Ltd (supra), Lord Hailsham LC stated: “In awarding aggravated damages the natural indignation of the court of the injury inflicted on the plaintiff is a perfectly legitimate way to be making a generous rather than a more moderate award to provide an adequate solatium.” 13 Bickel v John Fairfax & Sons Limited (1982) 2 NSWLR 474. -- 13 of 23 -- 14 Exemplary Damages [32] The plaintiff also seeks an award of exemplary damages which are known as punitive damages and are not related directly to the injury to the plaintiff as are compensatory damages but are awarded to punish the wrongdoing of the defendant and act as a deterrent to others. In XL Petroleum New South Wales Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 Brennan J stated at 471: “As an award of exemplary damages is intended to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff’s rights and deter him from committing like conduct again the considerations that enter into the assessment of exemplary damages are quite different from the considerations that govern the assessment of compensatory damages. There is no necessary proportionality between the assessment of the two categories.” [33] The above sentiments were repeated by the New South Wales Court of Appeal in Cotogno v Lamb (No 3) (1986) 5 NSWLR 559 where McHugh J said at 586: “But one of the rationales of an award of exemplary damages is that it deters others… An award of exemplary damages acts as an example to all those in the community who might engage in wrong- doing involving a conscious and contumelious disregard of another person's rights. Nor should it be though, as the argument for the defendant appeared to maintain, that exemplary damages constitute an historical anomaly which no longer served any useful purpose. The sanctions of the criminal law are not always sufficient to protect the weak and the disadvantaged against the oppressive conduct of the powerful and the wealthy. An award of exemplary damages also serves another useful social purpose: it helps to remove the sense of grievance which the plaintiff feels when he has been the victim of insulting behaviour. It is when the victim of such behaviour believes that the law can not or will not remedy his grievance that he is most likely to take the law into his own hands. Historically, the awarding of exemplary damages was the common law's substitute for the duel … An award of exemplary damages against a conscious wrong-doer placates the victim who has the satisfaction both of seeing the defendant punished and of receiving additional damages” -- 14 of 23 -- 15 The Plaintiff’s Position [34] The plaintiff is a well-respected senior barrister of the Queensland Junior Bar in his 26th year of practice. He has given evidence which includes the following: • He was admitted as a barrister of the Supreme Court of Queensland in August 1980 and is admitted to practice in other Australian jurisdictions as well as Papua New Guinea.14 • He regularly practises in the superior courts in Queensland, and has appeared in the Federal Courts and most courts throughout Australia.15 • He is a senior member of the Junior Bar and an applicant for silk this year.16 • He is familiar with “the grapevine effect” as a practitioner in the legal fraternity.17 • He was very upset after his attention was drawn to the defendant’s first letter particularly as he believed the allegations to be untrue and that the allegations had been communicated to Mr Colwell, the Registrar and Listings Manager of the Supreme Court. He also 14 Transcript page 16 line 55 to page 17 line 8. 15 Transcript page 17 lines 15-22. 16 Transcript page 17 lines 50-55. 17 Transcript page 18 lines 39-45. -- 15 of 23 -- 16 suspected that the letter would be placed on the court file and was upset that it would be subject to public scrutiny.18 • He was particularly concerned that a copy of the first letter was sent to the Registrar and the Listing Manager as they are important officials of the Courts in which he practices and he feared the allegations would spread through “the grapevine effect”.19 • He immediately instructed solicitors to act for him and to send the solicitor’s letter. He stated that he has never received an apology and/or retraction from the defendant.20 • The listing of the proceedings have embarrassed him and have also affected his wife and family members.21 • Allegations of this kind are the most serious type of allegations that can be made against barristers.22 [35] There was no challenge, generally, to the plaintiff’s high reputation as a barrister and the defendant spent much of his time cross-examining the plaintiff on what had occurred at the commencement of the originating application hearing before Byrne J on 21 January 2005 and its sequel later that day before Muir J when the hearing continued. 18 Transcript page 19 lines 18-28. 19 Transcript page 19 lines 34-38. 20 Transcript page 20 lines 42-55. 21 Transcript page 21 lines 38-52. 22 Transcript page 23 lines 30-41. -- 16 of 23 -- 17 [36] The defendant was afforded considerable latitude in his cross-examination which did little to dent the plaintiff’s evidence on any material issue. The Defendant’s Position [37] There is little doubt that the defendant finds himself in the position he currently is because of his gross ignorance of how the judicial system operates in terms of court procedures including the presentation of evidence; examination of witnesses; cross- examination of witnesses; submissions by counsel and the like. Because of his obsessive preoccupation with the notion that his account of the easement dispute prompting the originating application was the only true and accurate version of events (which is a not uncommon attitude of litigants before our courts) he was incapable of recognising that any contrary view may have been equally and validly held by those persons who aver to it and that their legal representatives (including the plaintiff) had a duty to present their client’s case as strongly as the Rules of Court allow. [38] The defendant’s case is in many respects summarised at page 139 of the transcript, when he said in his final address to the court: “What I’m saying here, your Honour, it is my view that when people give statements that are misleading before a Judge, when people give statements that are false, when people guarding itself, as far as I’m concerned is cause for action by the Court. Now that is my understanding. Now when I was in there Mr Anderson laboured as to whether that is perjure (sic). And I want what the need to be fair to proceed, you Honour, that it might technically not be that because I admit I didn’t understand it. And that’s why I was asking the Court to concede that. However the Court would have told me ‘Well people can come and lie, if you had not taken the Bible, fine, fine for us, we don’t care about that.’ But as far as I’m concerned I thought my miscommunication as established by Mr Favell in the cross- -- 17 of 23 -- 18 examination to mean was a basis for asking the Court for consideration. And, your Honour that is important. My communication was asking the Court to consider. I did not go telling the Court Mr Favell has committed perjure (sic). That’s not what I did. That’s not what my communication says. I was requested in Court to consider recommending that charges of perjure (sic) be laid against Averones, their client, and their legal representative. ” [39] The defendant further stated during his closing address at 139: “Your Honour, Mr Favell, Mr Colwell, were not in Court in their own capacity. They were in Court as representatives of Mr and Mrs Averone. Mr Averone took action against us. In my letter I said their clients and them. And as I said it was ultimately up to the Court to decide. Your Honour, even as I stand now I have got no communication from any of the Court officers explaining to me the differences of perjury and so on. Because all they told me I needed to bring it before the Judge and I was threatened to do that.” And further he continued at 141: “Judge Muir on his own said he found it extraordinary. We have seen it in the transcript. Mr Favell does not deny it, apologising that, proves there was indeed a basis for complaining about the conduct of the other part on their lawyers, we included Mr Favell. If the Court is of the view that I should have substituted the term perjury, and I put it in Court, with another more fitting, I will willingly and without hesitation, do so. I am not one to hide in tricks. I’m not one to shy away from doing what is clearly pointed out to me. If the Court asks me, ‘What did you mean by perjury?’ I will tell them I was of the view that the Court was given false information. I was of the view that the Averonos through their lawyers were trying to take undue advantage of us. Now, if the Court tells me, ‘Look, your substitute of that is not perjury’ I will willingly and honestly explain to the Court if it means that somebody was the [indistinct] they don’t say that’s not what I meant with regard to Mr Favell. I meant the Averonos I no give evidence and probably then they can stay here. Mr Colwell did. Mr Favell has picked himself out of the group, the context in which I wrote my letter because he wants to get money for himself.”23 [40] The defendant’s ignorance of how our judicial system operates does not excuse his conduct, but it does in some way tend to explain his misguided and extravagant statements. -- 18 of 23 -- 19 [41] To support the plaintiff’s claim for exemplary damages, plaintiff’s counsel referred to a number of instances in the transcript of proceedings before Brabazon QC DCJ, where the defendant made allegations against the plaintiff stating, among other things, that: • “…Mr Favell falsely claimed that they needed the easement for sewerage services and there’s no sewerage services in our area”.24 • That the plaintiff maintained that “… the law says it is lawful to publish defamatory matter if it is true”.25 • That the defendant stated “(he) will show Mr Favell was lying to Judge Muir”.26 • That the defendant stated he will “… be proving incompetence.”27 • That the defendant stated of the plaintiff “… he’s telling Judge Muir that the affidavit one’s is going to be rejected. He’s a liar.”28 • That the defendant repeated of the plaintiff “he’s lying” and repeated the assertion that the plaintiff “was lying” or “deliberately lying” when his Honour Brabazon QC DCJ indicated that there was no evidence of the plaintiff’s assertions.29 In general terms plaintiff’s counsel submitted that throughout the hearing before Brabazon QC DCJ, the defendant compounded his injury to the plaintiff by continuing to make these allegations of the plaintiff in the face of there being no evidence to support them. For these reasons it is submitted by plaintiff’s counsel that an award of exemplary damages is justified. 23 Transcript page 141 lines 20-44. 24 Transcript from 15 August 2005 before Brabazon QC DCJ page 124 lines 48-50. 25 Transcript from 8 August 2005 before Brabazon QC DCJ page 25 lines 20-22. 26 Transcript from 8 August 2005 before Brabazon QC DCJ page 26 lines 18-21. 27 Transcript from 8 August 2005 before Brabazon QC DCJ page 28 lines 40-50. 28 Transcript from 8 August 2005 before Brabazon QC DCJ page 34 lines 40-45. -- 19 of 23 -- 20 Assessment of Damages [42] In the assessment of damages in this proceeding the principles referred to in O’Shane (No. 2), particularly those matters mentioned at paras [57] and [58] referred to above, are particularly relevant. Here we do not have as the author of the defamatory matter, a person experienced or skilled in the legal process capable of making a valued judgment on what might have happened in court and therefore able to command a respect from those to whom the defamatory matter is published. In this instance there is an absence of any authority or standing in the publisher (the defendant) and the extent of the circulation of the defamatory matter in the first letter was essentially to two senior court officers (excluding the plaintiff’s own instructing solicitor on whom it would have had negligible impact) and again the context in which the defamatory imputations were made was supplementary to, though not part of, a relevant issue (costs) in proceedings then before the court. [43] On the contrary, the defendant is an inexperienced (in law), disgruntled self-litigant who wrote the first letter after seeking the assistance of court officers to pursue an application for costs orders arising out of his unsuccessful application to the court over a matter in which he seems to have had an obsessive passion that his view was the only one which should prevail to the exclusion of any other. No doubt court registry staff in all jurisdictions are regularly exposed to the wrath of disgruntled litigants making all types of complaints, defamatory or otherwise, about many facets of and personalities within the judicial process and which have little or no lasting impact upon the listener or reader in view of the context in which they are made. It is an entirely different scenario where the defamation is published by an 29 Transcript from 8 August 2005 before Brabazon QC DCJ at various parts between pages 40-103. -- 20 of 23 -- 21 author purporting to be of some standing in a respected daily newspaper, with wide circulation, in Australia’s most populous state concerning a prominent legal and political figure who has been active and well known for many years in the public domain in the support of aboriginal people, as was the case of the plaintiff in O’Shane (No.2). [44] While the reputations of legal practitioners are of the utmost importance in their being able to practice their profession and any unsustainable challenge to that reputation must be appropriately sanctioned and remedied, the extent of the injury must be significantly affected by the credibility and extent of the publication, and on this criteria the defamation in this instance is at the lower end of the scale. [45] In the proceeding before this court it must also be noted that the plaintiff called no evidence from Mr Colwell, the Registrar or the Listings Manager of the Supreme Court to whom the defamatory matter was published to say that any one of them held any lesser opinion of the plaintiff after receiving the first letter much less the second letter, than they held beforehand. Whilst there is no obligation on the plaintiff to do so and to prove injury to reputation once there is a finding that the subject material is defamatory, there was no evidence called to indicate that any of these persons were adversely influenced in any way by the publication and which if adduced might tend to reinforce the level and extent of the perceived damage to the plaintiff’s reputation. [46] As referred to above in paragraphs [32] and [33], exemplary damages are designed to punish the defendant for “conduct showing a conscious and contumelious -- 21 of 23 -- 22 disregard for the plaintiff’s rights and deter him from committing like conduct again”. [47] There is no doubt that the defendant’s conduct in this proceeding would have been hurtful to the plaintiff in the way that he persisted in an obstinate attack on the plaintiff’s integrity and competence throughout the proceedings before Brabazon QC DCJ and such conduct may well be considered contumelious in the circumstances. However, as noted previously, it is more the defendant’s ignorance of the law and legal process that has compounded the wrong he has done to the plaintiff both in publishing the defamatory material in the first place and in his subsequent conduct appearing as a self-litigant rather than his “conscious and contumelious disregard for the plaintiff’s rights”. It would not be comparable to categorise the defendant’s conduct in the same manner as that for example, of a prominent newspaper, which might publish defamatory material about an individual in the exercise of flexing its power and wealth against a citizen in contempt of the individual’s rights and feelings. Such a tortfeasor should more readily incur the court’s wrath and be punished by way of an award of exemplary damages. [48] The comments of Lord Reid in Broome v Cassell & Co (supra) at 1089 are apposite: “Then if it has been determined that the case is a proper one for punitive damages the tribunal must turn its attention to the defendant and ask itself whether the sum which it has already fixed as compensatory damages is or is not adequate to serve the second purpose of punishment and deterrence. If they think that the sum is adequate for the second purpose as well as for the first they must not add anything to it. It is sufficient both as compensatory and as punitive damages. But if they think that sum is insufficient as a punishment then they must add to it enough to bring it up to a sum sufficient as punishment. The one thing which they must not do is to fix sums as compensatory and as punitive damages and add them together. They must realise that the compensatory damages are always part of the total punishment”. -- 22 of 23 -- 23 [49] Having regard to comments above and what has been referred to in paragraphs [42] to [47] hereof I am not satisfied that an award of exemplary damages is warranted in this matter as I am satisfied that an award of compensatory including aggravated damages against the defendant is sufficient for the purposes of punishing the defendant and deterring him from such further conduct as well as adequately compensating the plaintiff for the harm done to his reputation. Order [50] On a consideration of all relevant criteria I assess the plaintiff’s compensatory, including aggravated damages, in the sum of $15,000.00. [51] Accordingly the court’s orders shall be as follows: (a) Judgment for the plaintiff against the defendant. (b) That the defendant pay damages to the plaintiff in the sum of $15,000.00 plus interest at the rate of 10% per annum from 14 February 2005 to the date of judgment. I shall hear the parties in respect of costs. -- 23 of 23 --