Jeffrey & Anor V Giles (2013) VSC 268

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION MAJOR TORTS LIST
Not Restricted
S CI 2011 06654 First Plaintiff Second Plaintiff
DAVID JEFFREY THOMAS CURNOW v VIRGINIA GILES --JUDGE: WHERE HELD: DATE OF HEARING: DATE OF JUDGMENT: CASE MAY BE CITED AS: MEDIUM NEUTRAL CITATION:
Defendant
PAGONE J Melbourne 10, 11, 12, 15, 16, 17, 18 April 2013 23 May 2013 David Jeffrey & Anor v Virginia Giles [2013] VSC 268 ---
DEFAMATION Publication of defamatory material on website Whether published matter was likely to lead an ordinary reasonable person to think less of the plaintiffs Injury to the plaintiffs Distinction between impact of the defamatory material on the website and impact of the website as a whole and other conduct of the defendant Effect of defamatory material on plaintiffs physical health Grapevine effect Relevance of defendants understanding of perjury Damages to bear an appropriate and rational relationship to the harm done - Aggravated damages Whether defendant had a collateral motive in the maintaining the website Whether defendant was seeking to inflate the value of the land - Defendants apology at trial - Defamation Act 2005 (Vic) s 34 Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 40.10. --APPEARANCES:
Counsel Mr A Southall QC with Ms R Kaye
Solicitors Ken Smith & Associates
For the Plaintiffs Virginia Giles Self-represented Defendant
_________________________________________________________________________________
HIS HONOUR:
1
David Jeffrey and Thomas Curnow sue Virginia Giles for defamation. On or about 10 June 2011, Virginia Giles obtained the domain name and created the website known as www.quarryfight.com.au (Quarry Fight website) and from time to time uploaded and modified text on web pages associated with the domain name. Words appeared on the website from some date commencing in August 2011 which, on their natural and ordinary meaning, were claimed to be defamatory of Mr Jeffrey or Mr Curnow or both. In this proceeding Mr Jeffrey and Mr Curnow seek damages, including aggravated damages, a permanent mandatory injunction, interest and costs. The plaintiffs were represented at trial by Senior and Junior Counsel as well as solicitors. The defendant had been represented by lawyers up to 15 March 2013 who drew and settled her defence to the claim, but she was unrepresented at trial and conducted the proceeding, including giving evidence, cross examination of witnesses and making submissions, without professional legal, or other, assistance.
Mr Jeffrey was at all times a director and the operations manager of Casacir Pty Ltd (Casacir) which owns and operates a quarry business on land situated at Neerim North in Victoria. Mr Curnow is also a director of Casacir. Casacir employs
approximately 40 employees across three quarries operating throughout the Gippsland region and has done so for many years. Mr Jeffrey was the third
generation of a family in a construction, earthmoving and road building business which operated in the Latrobe Valley and was commenced by his grandfather. Mr Jeffrey has known Mr Curnow for some 25 years or more. Mr Curnow also
conducts a road building and stabilisation business through a group of companies known as the Stabil-Lime Group of Companies with some 200 employees spread across several depots in the Gippsland region, including the Baw Baw Shire and Jindivick, as well as other places in Australia. Mrs Giles is a director and shareholder of Shapher Pty Ltd (Shapher), being the registered proprietor of the land which is contiguous with and adjacent to the Casacir Nerrim North quarry. Country
Endeavours Pty Ltd is another company connected with Mrs Giles and of which she is the company secretary.
David Jeffrey & Anor v Virginia Giles 1 JUDGMENT
A number of disputes developed between the parties, and their associated companies, concerning the operation of the Nerrim North quarry by Casacir on the land next to that owned by Shapher. A number of the disputes were ultimately resolved by
proceedings in the Victorian Civil and Administrative Tribunal (VCAT) in favour of Casacir. Unsuccessful attempts were made to mediate those disputes and costs have been awarded against, among others, Mrs Giles. The final determination in favour of Casacir was made by VCAT on 7 February 2011 in respect of a hearing which had been chaired by Mr Byard with Mr Potts between 22 and 26 November 2010.
4
The plaintiffs maintain that they were defamed by some words published by Mrs Giles on the Quarry Fight website. Mrs Giles established the website after several years of disagreements with Casacir and its directors and some four months after the Tribunals determination on 7 February 2011. The specific publications complained about by the plaintiffs were tendered in evidence by copies of pages which had been downloaded and printed from the website at various dates. Most of the copies
appeared to have been printed close to the time the words were first published by Mrs Giles on the website. Some were printed after the date of publication on the website but it was established by other evidence that they had been published at an earlier date on the website.
5
A copy of pages from the website printed on 17 August 2011 (and published at about that date) included the following words concerning Mr Jeffrey:
In relation to the enforcement hearing, I was appalled that David had sworn to facts that were obviously untrue and provably so, and that he knew were untrue. I was even more shocked to see that he took the oath, with his hand on the bible [sic] and then provided information that was not true. I can only assume from this that swearing on the bible meant very little to him.
These words were said to be defamatory of Mr Jeffrey in that they were meant and were understood to mean that he had: (a) perjured himself in proceedings before VCAT by swearing to facts which were obviously untrue and which he knew to be untrue; (b) taken an oath on the Bible at VCAT and thereafter provided information to
David Jeffrey & Anor v Virginia Giles
JUDGMENT
the Tribunal which was not true; and (c) taken an oath on the Bible which meant very little to him. I agree with the plaintiffs submissions about the ordinary and natural meaning of the words. They plainly conveyed, and were intended in their ordinary and natural meaning to convey, that Mr Jeffrey was a liar, that he had deliberately and dishonestly lied to VCAT, that he had no regard for telling the truth to a Tribunal charged with a statutory duty and that he had dishonestly said that he would tell the truth but had not done so.
6
A copy of pages from the website printed on 18 August 2011 contained the following words under the heading Plantings:
David then had to agree that there were no plants planted on the northern boundary or around the dam proving he committed perjury at the tribunal. [emphasis in original]
These words were said to be defamatory of Mr Jeffrey in that they were meant and were understood to mean that he had given evidence in relation to plantings on the Casacir quarry land which proved that he had committed perjury at VCAT. It is clear from the other words in the publication, and it was not contended otherwise, that the David referred to in the passage was Mr David Jeffrey. I accept the plaintiffs submissions that the ordinary and natural meaning of the words were that Mr Jeffrey had given false testimony on oath. The emphasis given by Mrs Giles to the word proving would be understood as an assertion of confirmation that Mr Jeffrey had committed perjury.
7
A different copy of pages from the website printed on 17 August 2011 contained the following words:
Further, in David Jeffreys affidavit dated 6 September, he himself said that Up until early January 2010 [the drill] did not have the acoustic cover fitted. There was no cover available within Australia from the manufacturer. (in spite of stating at the 2008 tribunal hearing that there was one in Australia and that they had made arrangements to use it!). [emphasis in original]
This statement was said to be defamatory of Mr Jeffrey in that the words were meant and were understood to mean that he had misled VCAT in 2010 by telling a lie in his affidavit before the Tribunal, namely that the drill used at the Casacir quarry did not
have an acoustic cover fitted, as there was no cover available within Australia from the manufacturer. I accept that the ordinary and natural meaning of the words is that Mr Jeffrey had given false evidence to VCAT. A different conclusion might have been open had the words in parentheses not been present. In that case the words might have indicated that Mr Jeffrey had given incorrect evidence but the words in parentheses, and specifically put in parentheses to emphasise their connection with the words in the preceding sentence, meant and were understood to mean that the alleged erroneous fact had been deliberately misstated to the Tribunal.
8
Mrs Giles updated the website from time to time. In September 2011 she updated the website and in doing so included the following words which appeared from a print of pages from the website made on 6 February 2012:
I contend, however, that it is Casacir, David and Tom that seem to have interpreted things how they want to interpret them (and Russell Byard of the tribunal has chosen to support them). Some examples of such interpretations from experience appear to be that: they dont actually have to have the required 2 community meetings a year if they dont want to, and that the information provided at those meetings does not have to actually be accurate, factual and truthful if they would rather provide inaccurate, fictional and/or deceptive information that makes it sound as if they had actually done what they were supposed to do; they can provide provably inaccurate sworn information to the tribunal (which in effect deceives the tribunal) if they want to. [emphasis in original]
These words were said to be, and I agree that they are, defamatory of Mr Jeffrey in that they were meant and were understood to mean that he had provided inaccurate, fictional and/or deceptive information at community meetings and had provided provably inaccurate sworn information to VCAT which had deceived VCAT. The words complained about plainly mean and are understood to mean that Mr Jeffrey deliberately lied on oath.
9
The October 2011 updates made by Mrs Giles included the following words under the heading 5 October 2011:
JUDGMENT
Went out to the site again today and still nothing seems to have changed: still no plantings in some of the locations David swore there were plantings many posts still cannot be seen from the one next to it (in spite of David having sworn that they could be seen from the next one) but Casacir seems to have no qualms about the continued failure to comply with sworn testimony and conditions and undertakings! [emphasis in original]
These words were said to be defamatory of Mr Jeffrey in that they were meant and were understood to mean that he had falsely sworn that there were plantings at particular locations on the Casacir quarry land, and he had falsely sworn evidence about the location of marker posts on the Casacir quarry land. Immediately above those words, but under the heading 11 October 2011, there appeared the words [i]snt it interesting that someone can so clearly swear to things that are not so and apparently feel justified and no compunction in doing so. These words are said to be defamatory of Mr Jeffrey in that they were meant and were understood to mean that he had sworn to things that were not so and felt no compunction in doing so. I agree that the words assert that the facts relevant to the proceeding were not as Mr Jeffrey had given sworn evidence and therefore the words in the publication convey, and were intended to convey, the meaning that he gave false testimony.
10
The last of the updates to the website appears to have been made on 29 October 2011. Under a heading of that date there appeared the words:
[T]he site was unsecured as is normal practice, in spite of what David Jeffrey swore in his affidavits and under oath. Not only were a number of gates unlocked, but the one to the direct north of the quarry entrance was standing wide open!
These words were said to be defamatory of Mr Jeffrey in that they were meant and were understood to mean that he had falsely sworn in his affidavit and under oath at VCAT that the Casacir quarry land would be secured when closed for the day. I agree that to be the meaning and intention of the words. They assert that what Mr Jeffrey had said in sworn evidence was false.
11
The first of the entries in the October 2011 update was under the heading 4 October 2011 and contained the following words:
JUDGMENT
Casacir (and therefore David Jeffrey & Tom Curnow) did not comply again this time with the Order How pathetic, and again, interpreting thing [sic] how they wanted to. [emphasis in original]
These words were said to be defamatory of Mr Jeffrey in that they were meant and were understood to mean that he interpreted orders made by the Tribunal how he wanted to interpret them rather than how they should be interpreted or how he was obliged to interpret them. I accept the submission for Mr Jeffrey that in their ordinary and natural meaning the words meant and were understood to mean that Mr Jeffrey would apply orders of VCAT in disregard of his legal duty and obligations and only as it pleased him to interpret them.
12
The words said to be defamatory of Mr Curnow were some of those which I have set out above in relation to Mr Jeffrey. Specifically, the words said to be defamatory of Mr Curnow were some of those appearing in the September and October 2011 updates. In relation to the September 2011 updates the words said to be defamatory of Mr Curnow were the words in which Mrs Giles wrote:
I contend, however, that it is Casacir, David and Tom that seem to have interpreted things how they want to interpret them (and Russell Byard of the tribunal has chosen to support them). Some examples of such interpretations from experience appear to be that: they dont actually have to have the required 2 community meetings a year if they dont want to, and that the information provided at those meetings does not have to actually be accurate, factual and truthful if they would rather provide inaccurate, fictional and/or deceptive information that makes it sound as if they had actually done what they were supposed to do; they can provide provably inaccurate sworn information to the tribunal (which in effect deceives the tribunal) if they want to. [emphasis in original]
In relation to the October 2011 updates the words said to be defamatory of Mr Curnow were:
Casacir (and therefore David Jeffrey & Tom Curnow) did not comply again this time with the Order How pathetic and again, interpreting thing [sic] how they wanted to. [emphasis in original]
JUDGMENT
The basis upon which the words were said to be defamatory of Mr Curnow was precisely the same as they were said to be defamatory of Mr Jeffrey. I accept the submission for Mr Curnow concerning the meaning and understanding of the words as they related to him and do so for the reasons I have given in relation to the same words when published in relation to Mr Jeffrey.
13
Mrs Giles contended that the ordinary and natural meaning of the words was something different from that which they were alleged to mean. Mrs Giles was unrepresented at trial and gave evidence and made submissions on her own behalf. I accept Mrs Giles evidence that she may have had a personal understanding of the word perjury which was different from that which was subsequently explained to her by her lawyers, although it is difficult to understand precisely what her subjective understanding was. The natural and ordinary meaning of the words complained of is not a matter for evidence1 and, of course, is not to be determined by the subjective meaning of the person who published the words. However, what Mrs Giles said about her understanding may be taken for present purposes as a submission about the natural and ordinary meaning of the words. Seen in that sense Mrs Giles said:
My understanding of the word perjury: Id looked it up and that was in the dictionary, I didnt go to the website or anything, I just looked it up in three different dictionaries and they variously said, lying under oath, swearing falsely. I didnt realise that the legal terminology for it was, you know, it had to be with deliberate intent or anything like that, so in using the word I didnt deliberately use the word that was had a bigger meaning than what I understood you know, I didnt understand it had a bigger meaning. Did I say either of the plaintiffs deliberately or intentionally lied under oath? No, I didnt. Did I feel justified in saying what I did? I felt justified because of what Id seen and heard, and it was my honest opinion.
I put to one side whether it was accurate for Mrs Giles to say that she had not published words saying that the plaintiffs had deliberately or intentionally lied under oath, and otherwise take her to mean that the ordinary and natural meaning of the word perjury somehow lacks the meaning of a deliberate or intentional lie under oath. I do not accept that to be the ordinary and natural meaning of the word. The word perjury has, in my view, a clear and well understood meaning of wilfully,
1
Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291, 294; Hughes v Mirror Newspapers Ltd (1985) 3 NSWLR 504, 512. 7 JUDGMENT
that is deliberately and intentionally, telling an untruth on oath. It is a serious crime and the words Mrs Giles published would be understood in that way. Indeed it is the seriousness of the fact of perjury that was the point of the publication, whatever may have been Mrs Giles personal subjective understanding of the word. I am unable to accept that the word perjury has any such meaning as Mrs Giles may have believed or understood.
14
The words Mrs Giles published on the website were defamatory. The test of whether the statements published by Mrs Giles about Mr Jeffrey and Mr Curnow were defamatory is whether the published matter is likely to lead an ordinary reasonable person to think less of the people about whom the words were published. In Radio 2UE Sydney Pty Ltd v Chesterton,2 it was said:
A persons reputation may therefore be said to be injured when the esteem in which that person is held by the community is diminished in some respect. Lord Atkin proposed such a general test in Sim v Stretch, namely that statements might be defamatory if the words tend to lower the plaintiff in the estimation of right-thinking members of society generally. An earlier test asked whether the words were likely to injure the reputation of a plaintiff by exposing him (or her) to hatred, contempt or ridicule but it had come to be considered as too narrow. It was also accepted, as something of an exception to the requirement that there be damage to a plaintiffs reputation, that matter might be defamatory if it caused a plaintiff to be shunned or avoided, which is to say excluded from society. The common law test of defamatory matter propounded by Lord Atkin was applied in Slatyer v The Daily Telegraph Newspaper Co Ltd, although Griffith CJ expressed some concern about the ambiguity of the expression right thinking members of the community. The general test, stated as whether the published matter is likely to lead an ordinary reasonable person to think the less of a plaintiff, was confirmed by this Court in Mirror Newspapers Ltd v World Hosts Pty Ltd, Chakravarti v Advertiser Newspapers Ltd and by Callinan and Heydon JJ in John Fairfax Publications Pty Ltd v Gacic. Gummow and Hayne JJ in Gacic referred to the likelihood that the imputations might cause ordinary decent folk in the community to think the less of the plaintiff. Putting aside Lord Atkins additional requirement of being right-thinking, the hypothetical audience, that is to say the referees of the issue of whether a person has been defamed, has been regarded as composed of ordinary reasonable people, whom Spencer Bower described as of ordinary intelligence, experience, and education. Such persons have also been described as not avid for scandal and fair-minded. They are expected to bring to the matter in question their general knowledge and experience of
(2009) 238 CLR 460. 8 JUDGMENT
worldly affairs. In Readers Digest Services Pty Ltd v Lamb Brennan J explained that any standards to be applied by the hypothetical referees, to an assessment of the effect of imputations, are those of the general community: Whether the alleged libel is established depends upon the understanding of the hypothetical referees who are taken to have a uniform view of the meaning of the language used, and upon the standards, moral or social, by which they evaluate the imputation they understand to have been made. They are taken to share a moral or social standard by which to judge the defamatory character of that imputation being a standard common to society generally 3
Each of the words complained of are, in my view, defamatory in accordance with that test. Each of the published statements is likely to lead an ordinary reasonable person to think less of the people about whom the statements were made. Each of the statements, in their ordinary and natural meaning, impugns the character of the person to whom they refer. That may have been carelessly accidental in respect of Mr Curnow, since he did not actually give the evidence criticised in the September 2011 update on the website, but a person reading the statements referring to Mr Curnow would naturally understand them to mean that he also had given the testimony which was described as inaccurate, fictional and/or deceptive and that he also had provided provably inaccurate sworn information to the tribunal.4 Each of the defamatory statements in the relevant updates began with the word they, which refers to the group of people, including Mr Curnow, who were identified at the beginning of the section of publication.
15
The more difficult question is that of determining what, if any, damages should be awarded, whether by way of general damages or aggravated damages. Section 34 of the Defamation Act 2005 (Vic) requires that the damages which are awarded bear an appropriate and rational relationship to the harm done by the defamation.5 The section provides:
In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational
3 4 5
Ibid [3]-[7] (French CJ, Gummow, Kiefel, and Bell JJ) (citations omitted). Emphasis as in the original publication. The section is the same as the former s 46A(1) of the Defamation Act 1974 (NSW), which had been inserted by the Defamation (Amendment) Act 1994 (NSW). 9 JUDGMENT
relationship between the harm sustained by the plaintiff and the amount of damages awarded.6
General damage to reputation is presumed to be the natural or probable consequence of a defamatory publication.7 An injured plaintiff may, however, also seek to have taken into account in assessing damages the personal distress, hurt and humiliation caused to the plaintiff8 commonly proven through evidence given by those who know the plaintiff and the plaintiffs mood and demeanour after the defamatory statement came to the plaintiffs attention.9 In this proceeding no expert medical or
psychological evidence was tendered in the plaintiffs case.

16
An award of damages for defamation is to serve three overlapping purposes, namely (a) consolation for personal distress and hurt, (b) reparation for the harm done, and (c) vindication of reputation. The purposes to be served by awarding damages for
defamation were explained in Carson v John Fairfax & Sons Ltd10 where it was said:
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 applicant by the publication, reparation for the harm done to the appellants personal and (if relevant) business reputation and vindication of the appellants reputation. 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 the vindication of the appellants reputation. The gravity of the libel, the social standing of the parties and the availability of alternative remedies are all relevant to assessing the quantum of damages necessary to vindicate the appellant.11
An award vindicating the plaintiffs reputation must be large enough to ensure that the plaintiff does not suffer injury in the future from any lingering cloud left hanging over the plaintiffs reputation.12 It is important, in this context, however to bear in
6 7
9 10 11 12
Defamation Act 2005 (Vic) s 34. The Herald and Weekly Times Limited v Popovic [2003] 9 VR 1, 76 [379]; Higgins v Sinclair [2011] NSWSC 163, [219]. Patrick Milmo, W.V.H Rogers et al (eds), Gatley on Libel and Slander (Sweet & Maxwell, 11th ed, 2008) 1191 [34.53]. Ibid. (1993) 178 CLR 44. Ibid 60-61 (Mason CJ, Deane, Dawson and Gaudron JJ). Ibid 77 (Mason CJ, Deane, Dawson and Gaudron JJ); Belbin v Lower Murray Urban and Rural Water 10 JUDGMENT
mind that defamation of a corporation is generally not actionable13 and that Casacir Pty Ltd was not a plaintiff.
17
It may sometimes be difficult to distinguish between injury to reputation and injury to feelings. That may be so when part of the feelings which are injured are those feelings about the damage done to ones reputation. Ensuring that there is an appropriate and rational relationship between the relevant harm and the amount of damages awarded may be difficult to establish in the case of non-economic loss, where the award must also serve to vindicate injury to reputation.14 Both Mr Jeffrey and Mr Curnow are entitled to consolation, reparation and vindication for damage to their personal reputation (as distinct from any defamation of Casacir).15 Each of Mr Jeffrey and Mr Curnow had good reputations which the defamatory publications injured.
18
In this case, the plaintiffs led evidence about such matters as their individual personal distress and hurt, and potential injury to their reputation both personal and in business. Mr Jeffrey gave evidence of his familys longstanding good name in the region as a family [that] were good to do business with, [and were] honest, [and] reliable. Mr Curnow gave evidence of his businesses through various companies building up a reputation over many years of integrity upon which people could rely. A great deal of the evidence, however, did not distinguish between the impact upon the plaintiffs of the defamatory words and the impact upon the plaintiffs of other conduct by Mrs Giles. It is important to bear in mind the context in which the defamatory words were published in an endeavour to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiffs and the amount of damages awarded. The context in which the defamatory words were published by Mrs Giles were of an ongoing series of disputes about the operation of the Casacir quarry at Neerim North. Mrs Giles conduct in opposing the quarry was annoying to Mr Jeffrey and Mr Curnow, as were the formal proceedings
13 14
15
Corporation [2012] VSC 535, [357] (Kaye J). Defamation Act 2005 (Vic) s 9. Patrick George, Defamation Law in Australia (Lexis Nexis, 2nd ed, 2012) 530 [37.1]; New South Wales Law Reform Commission, Defamation, Report No 75 (1995) [7.4]. Defamation Act 2005 (Vic) s 9(5). 11 JUDGMENT
in VCAT. In that context, it is not easy to disentangle the impact upon Mr Jeffrey and Mr Curnow of the defamatory publications from the impact upon them of the other conduct and the (non-defamatory) publications having a similar effect upon them. Nor is it easy to disentangle the damage done to the individuals from that done to Casacir.
19
The evidence of Mr Jeffrey was that his feelings were hurt when he read that part of the website containing the defamatory assertions that he was a liar. He said that he had trouble coming to grips with what had been said on the website after he had given evidence at VCAT because his evidence had been backed up by the regulatory authorities. The website, however, plainly said, as he put it, that he was a crook and that was the bit that he found biting. He was concerned about the impact upon others of assertions that might reflect upon him being a fit and proper person to manage the business, including the impact upon people like his bank manager if the words were to have come to his attention. Mr Jeffrey described his feelings about the effect of reading the words as like having a criminal record. Mr Jeffrey gave evidence, which I accept, of placing great importance upon the giving of an oath on the Bible as a man with strong religious beliefs and who was proud of the reputation of his family over three generations.
20
The ongoing existence of the website, however, also affected Mr Jeffrey apart from the defamatory words. In evidence-in-chief, Mr Jeffrey responded to questions about the impact of the website as follows:
MR SOUTHALL: When you say it was ongoing and being done daily, did you have cause to download subsequent printings of the web? MR JEFFREY: Initially, myself and the girls at the office were downloading things for our reference. After that, our consultant, Mr Kraan, continued it. MR SOUTHALL: Did you discuss it with anyone outside the office, friends or family? MR JEFFREY: I certainly discussed it with my immediate family and I certainly would have discussed it with Tom. MR SOUTHALL: Yes? MR JEFFREY: People in the office certainly knew about it and it wasnt
12 JUDGMENT
something I was proud to bring up in front of others, no. MR SOUTHALL: How did it affect, so far as you can say subjectively, how did it affect your daily life and your attitude? MR JEFFREY: We had been going through a series of years of different cases about the quarry and basically Im a robust, loud quarry man. MR SOUTHALL: Quarry man? MR JEFFREY: Yes. You pointed out yesterday that I might even bleed and I can take a lot of criticism and we also deal with truck drivers and other people and we wear all that. MR SOUTHALL: But what about this? MR JEFFREY: This is a bit more of a knife that has affected me and has affected Tom, has affected us financially, it has affected us personally. We probably we might bleed more than we thought we did, we might not be as tough as we thought we were. Health wise it has certainly affected me. MR SOUTHALL: How so? MR JEFFREY: Some people starve themselves when they are under stress, other people might eat more. Ive certainly put a lot of weight on in the last couple of years. Ive also had blood pressure tablets, I dont sleep, an hour here or an hour there. It affects my family. Im certainly not as easygoing as I used to be. MR SOUTHALL: Is it your view that the appearance of the Quarry Fight website in August 2011 and continuing certainly in the offensive parts until February of the following year, did that have a contributing effect? MR JEFFREY: A profound effect, yes.
Mr Jeffrey went on to give evidence about the impact of the website in the Gippsland area, including amongst sectors of customers and regulators who had dealings with him. People had approached him about the website, including members of his local community and others involved in the quarry business. He felt ashamed of what had been written about him on the website, expressing it as the kind of thing he would not have liked his father or grandfather to have read about him.
21
I have no doubt that the defamatory publications injured the feelings of Mr Jeffrey but it is impossible to say with any precision what injury was due to or referable to the defamation and what was due to or referable to the website as a whole or to the other conduct of Mrs Giles. The need to ensure that there is an appropriate and rational relationship between the harm to Mr Jeffrey and the amount of damages to be
13
JUDGMENT
awarded requires some consideration of the extent to which any injury was caused by the defamation.16 Mr Jeffreys own testimony about the injury he felt is admissible to establish the natural grief, distress and embarrassment which he suffered concerning the nature of the imputation which he believed the publications would convey to others.17 Evidence of the injury to his feelings was also given, as is commonly the case,18 by those who knew him well enough to speak about his mood and demeanour after the defamatory publications came to his attention. Both Mr Jeffrey, and the others who were called to give evidence about the matter, gave evidence about the physical impact upon him of learning about the defamatory publications. Mr Jeffrey said that he had put on a lot of weight in the last couple of years, that he was taking blood pressure tablets and that he was not sleeping well. Whether evidence may be given about a claimants physical health has been described as an unsettled question19 but, in any event, the evidence concerning the increase in Mr Jeffreys weight and deteriorating health generally may properly be seen as descriptive of injury to his feelings.20 In relation to his weight, it is clear that Mr Jeffrey was what was described as a heavy man long before any defamatory publication. The increase to his weight occurred during a period of irritation by tribunal proceedings, by other conduct against the quarry by Mrs Giles and other objectors and by the publications on the website as a whole apart from the defamatory statements. When cross examined about the matter by Mrs Giles, Mr Jeffrey attributed his condition to the existence of the website rather than specifically to the defamatory words when saying that he might have been happier before the website but [he is] certainly distressed since.
22
Some of the witnesses who gave evidence of the increase in Mr Jeffreys weight were less confident about the extent to which he had put on weight and whether any increase was directly referable to the defamatory publications. Mr Curnows evidence
See Wheeler v Somerfield [1966] 2 QB 94, 104; Rigby v Mirror Newspapers Ltd [1963] 64 SR (NSW) 34, 36. Hughes v Mirror Newspapers Ltd [1985] 3 NSWLR 504, 509-510. Patrick Milmo, W.V.H Rogers et al (eds), Gatley on Libel and Slander (Sweet & Maxwell, 11th ed, 2008) 1190 [34.53]. Ibid; but cf: Wheeler v Somerfield [1966] 2 QB 94, 104; Rigby v Mirror Newspapers Ltd [1963] 64 SR (NSW) 34, 37, 39; and Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32, 45. Patrick Milmo, W.V.H Rogers et al (eds), Gatley on Libel and Slander (Sweet & Maxwell, 11th ed, 2008) 1191 [34.53] n223; Rigby v Mirror Newspapers Ltd [1963] 64 SR (NSW) 34, 37, 39. 14 JUDGMENT
16 17 18
19
20
of his observations of any change in Mr Jeffreys physical condition after the publications was:
Yes, he has, as he said earlier, he certainly has put weight on. I dont believe Im qualified to have an opinion as to what is the cause but he certainly is less amenable than he was as a person a few years ago.
Mr Bishop was called to give evidence for the plaintiffs. He was employed by Casacir as an Asphalt Plant Manager and was based at Bairnsdale. Mr Bishop confirmed that Mr Jeffrey had put on weight, but did not know how much weight he had put on. Mrs Giles gave evidence that Mr Jeffrey was already a very large man in 2005 and had been putting on weight fairly steadily since.
23
Mrs Bignell was another witness who was called by the plaintiffs to give evidence. She was the Manager of Operations for the Department of Primary Industry in Gippsland and testified to having had concerns about the pressure put upon Mr Jeffrey by the website as a whole and that members of her department felt that Mr Jeffrey was not looking as well as perhaps he should. This was manifested to her by changes in his mannerism over time.
24
The conclusion to be drawn from the evidence as a whole is that the defamatory words were one of the causes to the injury to Mr Jeffrey. The website itself did not commence until June 2011 and the defamatory words first appeared in August 2011. The Tribunal proceedings had been concluded long before then and had been the source of much irritation to the plaintiffs. As Mr Curnow said, albeit in response to a different question:
For eight years youve been taking us to court and we havent liked it but we have had to fight to maintain our business, maintain our way of life. We have had to continually fight, 40 days in VCAT youve put us through
The defamatory words were plainly not the only conduct by Mrs Giles causing irritation, distress and injury to the plaintiffs.
25
The evidence of Mr Curnows injury to his feeling was, in contrast, different from that of Mr Jeffrey. Mr Curnow described his own reactions to the defamatory words as
15
JUDGMENT
feeling fairly disgusted and really angry, but conceded that his reaction was unlike that of Mr Jeffrey. Much of the defamatory words referable to Mr Curnow were factually incorrect. At no stage during what he described as the 40-odd days in VCAT had he ever attended VCAT to give evidence and, therefore, any suggestion by Mrs Giles that he had given sworn evidence, whether true or false, was factually incorrect. He was, however, angry and offended by what had been said about him, and was understandably concerned about the impact the defamatory words might have within the industry. It was a major concern for him that others in the industry, particularly employees and customers, might read the defamatory words on the website. The Baw Baw Shire Council was one of his major customers. At least one of his employees had called him about concerns expressed by VicRoads and by Baw Baw Shire Council workers. At least one customer (dissatisfied with workmanship for other reasons), referred to what appeared on the website (albeit not to the defamatory statements) in support of a complaint. As with Mr Jeffrey however, it is not possible to determine with precision what injury was caused by the defamatory words as distinct from any like impact caused by the website as a whole or the other annoying conduct of Mrs Giles and the other objectors.
26
Damage to reputation may also occur from what has come to be described as the grapevine effect. In Palmer Bruyn & Parker Pty Ltd v Parsons,21 Gummow J said:
The expression grapevine effect has been used as a metaphor to help explain the basis on which general damages may be recovered in defamation actions; the idea sought to be conveyed by the metaphor was expressed by Lord Atkin in Ley v Hamilton as follows: It is precisely because the 'real' damage cannot be ascertained and established that the damages are at large. It is impossible to track the scandal, to know what quarters the poison may reach: it is impossible to weigh at all closely the compensation which will recompense a man or a woman for the insult offered or the pain of a false accusation. The grapevine effect may provide the means by which a court may conclude that a given result was natural and probable. However, this will depend upon a variety of factors, such as the nature of the false statement and the circumstances in which it was published. The grapevine effect does not operate in all cases so as to establish that any republication is the natural and probable result of the original publication. This was what was meant by
21
(2001) 208 CLR 388. 16 JUDGMENT
Heydon JA, when his Honour referred to the appellant's submissions being put as though the grapevine effect was some doctrine of the law, or phenomenon of life, operating independently of evidence. As Heydon JA correctly identified, the appellant can point to no evidence that the grapevine effect operated in this case.22
In Belbin v Lower Murray Urban and Rural Water Corporation,23 Kaye J said:
As acknowledged by Dr Collins, in determining the damage done to the plaintiffs reputation, the Court is entitled to, and indeed should, take into account the grapevine effect arising from the original publication of the defamatory material by the defendant. In Ley v Hamilton, Lord Atkin referred to that concept in discussing the manner in which damages for defamation are to be assessed. His Lordship stated: They are not arrived at by determining the real damage and adding to that a sum by way of vindictive or punitive damages. It is precisely because the real damage cannot be ascertained, and established that the damages are at large. It is impossible to track the scandal, to know what quarters the poison may reach . In Crampton v Nugawela, the plaintiff claimed damages for a letter presented by the defendant to twenty-two doctors, who attended a meeting at the Royal North Shore Hospital in Sydney. Mahoney ACJ, in considering the role of vindication in the assessment of damages for defamation, stated: In this regard, the grapevine effect and the lurking place observation of Lord Hailsham are relevant. The award must be sufficient to ensure that, the damage having spread along the grapevine , and being apt to emerge from its lurking place at some future date, it was sufficient to convince a bystander of the baselessness of the charge. The importance of the grapevine effect is demonstrated in the recent decision of Mullins J of the Supreme Court of Queensland in Prendergast v Roberts. The plaintiff was a registered builder. The defendant entered into a contract with the plaintiff to construct new premises for his company. The defendant had been referred to the plaintiff by Mr Shore. After the premises were constructed, the defendant had a dispute with the plaintiff about the quality of the building. In separate conversations with Mr Shore, with the plaintiffs apprentice, and with a subcontractor of the plaintiff, the defendant defamed the plaintiff by imputing that he is an incompetent and dishonest builder. On the question of damages, the defendant contended that the plaintiff had not proved any injury to his reputation, since each of the three persons, to whom the defamatory statements were made, expressly stated that the plaintiffs reputation was not diminished by the defamatory statements. Mullins J rejected that submission, and awarded the plaintiff $50,000 damages. In doing so, his Honour stated: I do accept that even the limited publication of such serious defamatory statements could not fail to harm the plaintiffs reputation when account is taken of the grapevine effect, particularly in a regional
22 23
Ibid 416 [88]-[89] (citations omitted). [2012] VSC 535. 17 JUDGMENT
centre when the defendant did not ensure that all persons were out of hearing distance other than the party to the conversation . The grapevine phenomenon, referred to in those cases, is no more than the realistic recognition by the law that, by the ordinary function of human nature, the dissemination of defamatory material is rarely confined to those to whom the matter is immediately published. In the present case, Mr Holdings letter was uploaded by the defendant onto a public website, albeit one which was most commonly accessed by customers of the defendant. Nevertheless, the letter was displayed by the defendant on a public website; it related to a matter of public concern and interest. In that way it was quite distinct from a private communication, passed in confidence. As the authorities to which I have just referred demonstrate, the law recognises that, in an ordinary society, members of the community talk to each other about matters of public interest and concern. In that way it is recognised and understood that the poison of a libel may spread well beyond the confines of the person to whom it was immediately published. Of course, in determining whether there was any such effect arising out of the publication of the defamation in this case, it must be borne in mind that the relevant grapevine effect must originate, or spring, from the proven publication by the defendant of the defamatory material to the four recipients. That point is of some moment in this case, in light of the fact that the letter written by Mr Holding had been previously published, both to the former customers of FMIT, and, also, to the general public by the Sunraysia Daily newspaper, in September 2008.24
In this case, as in Belbin, there was evidence of the grapevine effect. Perhaps the clearest example was a solicitors letter of demand from a dissatisfied client to Mr Curnow on behalf of the Stabil-Lime Group of Companies. The letter, sent on behalf of a Ms Caroline Duvoisin, complained about the quality of work on an asphalt driveway at her home and added, towards the end of the letter, that her lack of confidence had been reinforced by complaints about work associated with Mr Curnow as published on the Quarry Fight website. Ms Duvoisins complaint was otherwise wholly unconnected with Mrs Giles and the Quarry Fight website, but it illustrates the grapevine effect of her publication. That said, however, it must be recalled that the letter did not refer to any of the defamatory words. Indeed, there was no suggestion in the letter that any of the defamatory words were, or had, any effect in the complaint which Ms Duvoisin was making through her solicitor. It is also important to bear in mind that the damages to be awarded to an individual should be for the harm suffered by the individual and not that of a corporation which may not
24
Ibid 77-79 [213]-[218] (citations omitted). 18 JUDGMENT
be able to sue for defamation and was not otherwise a party.

27
Counsel for the plaintiffs contended that the grapevine effect is likely to be particularly pronounced in a relatively small regional area such as Gippsland, as well as in the quarry and road stabilisation industries in which the plaintiffs were [and are] involved. In that connection, reference was made to the evidence about the extent of gossip in the road making community. There was, I think, no doubt about the dissemination of the defamatory words within the industry and more broadly. That evidence included that to which I have previously referred, such as the telephone calls to Mr Curnow. Mr Curnow gave evidence that several people working for him had drawn the website, and its contents, to his attention. Mrs Bignell gave evidence that the website had been drawn to her attention both by a planning officer at the Department of Primary Industry and by her 19 year old daughter, who was a university student at the time and who happened to come across the website when seeking to find her mothers phone number by a Google search. Mr Dunn was also called to give evidence on behalf of the plaintiffs. He worked for the West Gippsland Catchment Management Authority as the Statutory Planning Manager. Mr Dunn gave evidence of having become aware of the existence of the website when a consultant had brought it to his attention.
28
The evidence of those who came to hear and know of the defamatory words on the website seem largely to have regarded them as untrue and of little impact. Mr McClure was called to give evidence on behalf of the plaintiffs. He was the General Manager of the Construction Materials Processors Association, which is one of the peak industry associations for quarrying in Victoria. Mr McClure had been in that position for two and a half years and had known Mr Jeffrey for some eight years, but had only met Mr Curnow shortly before the trial. He became aware of the Quarry Fight website through Mr Jack Kraan, who did some work for the association and also acted as consultant for Casacir. Mr McClure consulted the website from time to time after being told of it, but essentially discounted its contents as of little value or effect. His answers on questions in examination-in-chief included the following:
19
JUDGMENT
MR SOUTHALL: Did you have any ability to verify those allegations? Did you ring David Jeffrey and say are these things true? MR McCLURE: No. MR SOUTHALL: Why not? MR McCLURE: Because I read through the things and I just couldnt see any truth in it, to be quite honest. I didnt see the need for me to ring about it. MR SOUTHALL: Did you have any knowledge did it come to pass that you ought to have in your mind when you should have gone down there as being the general manager of the organisation, to go down and check out the quarry, was that a matter for you to do? MR McCLURE: No, not really, it didnt impact on our association directly, so I saw no need to go down there.
In answer to a follow-up question from the Bench, Mr McClure said:

When I read it, theres two sides to every story but I found the problem with it there was I was looking, like the things that come to mind were the things like the road works or the planting of the trees I mean, there was nothing to tell me where it was. I just couldnt relate because my understanding of the industry, if theres an issue with things like dust or this issue with things like road works, the council would have been on their back fairly quickly to get them to repair their work. My background is where Ive worked in the past, if theres an issue out there you get it repaired because road safety and things like that are so critical. I just had trouble sort of trying to come to grips with what she was saying when I read the article was really what was happening on the site. It just didnt make sense to me from knowing how the industry works, knowing how the regulators work as well, to think that they are slipping up and not doing what they are supposed to do by law just didnt make sense to me.
When asked specifically about statements in the website concerning the inaccuracy or untruthfulness of what the plaintiffs had said, Mr McClure responded:
I found that was interesting, to make a statement like that on a website I thought you are leaving yourself wide open because it is a pretty serious offence if you do perjure yourself, particularly at VCAT.
In the end, it seemed that the defamatory words were thought by Mr McClure to reflect more adversely upon the person making the statements than upon the plaintiffs.
29
The evidence of Mrs Bignell was to much the same effect. She expressed concern about the statements on the website that Mr Jeffrey and Mr Curnow had lied and had
20
JUDGMENT
been deceptive. She was, understandably, particularly concerned at the implication in other material on the website suggesting that Mr Jeffrey and Mr Curnow were in cahoots, so to speak, with the regulators (including herself). She took legal advice in respect of her own position and did not pursue the matter further; but in view of her familiarity and awareness of the plaintiffs, she had no concerns as far as their standing in business was concerned, other than the normal regulatory issues. Mr Dunn, in his capacity as the Statutory Planning Manager with the West Gippsland Catchment Management Authority, was familiar with Mr Jeffrey, but was not sure whether he had ever met Mr Curnow. Mr Dunn first became aware of the website in August 2011 when a consultant had been trying to get in contact with him and had Googled his name and discovered it on the Quarry Fight website. Mr Dunn passed on the details of the website to Mr Kraan, the consultant for Casacir, and also to Mr Peter McWhinney and Mrs Bignell. Mr Dunn read the statements on the website that Mr Jeffrey may have misled VCAT in previous hearings, but otherwise neither he, nor the Authority of which he was statutory manager, had any concerns about the management or running of the Casacir quarry. The final witness to be called was Mr McWhinney who was the Manager of Statutory Planning at the Baw Baw Shire Council. He had known both plaintiffs for some time and came to look at the website around 26 August 2011 when he received an email from Mr Dunn drawing it to his attention. He recalled the statements to the effect that Mr Jeffrey and Mr Curnow had lied to the Tribunal. Mr McWhinney found the quarry had operated in the proper manner and that in relation to a few minor issues the company had been reasonably good to deal with.
30
Mr Bishop was also called to give evidence for the plaintiffs. He has known each of the plaintiffs for about 13 years. Mr Jeffrey is Mr Bishops direct manager, speaks with him daily, and sees him at least once a week. He, too, had seen the website in about August 2011 and came across the Quarry Fight website when looking up the website maintained by Casacir. Thereafter, he consulted the Quarry Fight website frequently from concern about what might appear on it. He gave evidence that a lot of small businesses or family-owned businesses in rural areas are built on the
21
JUDGMENT
reputation of their owners, and a loss of reputation can have a significant impact upon customers. He had read the words on the website indicating that Mr Jeffrey and Mr Curnow had lied to the court, fabricated truths in the court and was quite concerned. He added however that, having known the plaintiffs for 13 years, he found them to be truly honest people who were regarded by the trades and customers and employees as [v]ery highly, very highly spoken of people.
31
Under the claim for general damages, Senior Counsel for the plaintiffs added that it was also relevant that [the] website was on the internet for a lengthy period of time over a year in total. The fact asserted in the submissions, so stated, is not quite accurate and requires some modification. It is accurate to say that the website as a whole may have been on the internet for over a year in total but it is not accurate to understand from that statement that the offending words were on the website for the whole of the time that the website was on the internet. The domain name was obtained by Mrs Giles on 10 June 2011 and she admitted in her defence that she uploaded and modified text on the website from about that date. The first words complained of, however, did not appear until August 2011 and the other words complained of were added in September and October 2011. The website was removed on 15 November 2012 but the words particularised as defamatory had been removed in February 2012. Thus, the website (and its irritating effect) may have been operative for over a year in total but the defamatory words were on the website for between five and seven months.
32
Even so, the defamatory words were on the publicly available website for many months and ought never to have been published. Mrs Giles contended that the length of time the words remained on the website was partly due to the plaintiffs not taking action quickly enough to identify to her the offending words to enable her to remove them sooner. I do not accept her contention, although the correspondence between the parties (including that on behalf of the plaintiffs) which followed the publication of the offending words did not help their speedy removal. On 19 August 2011 the plaintiffs solicitors wrote to Mrs Giles complaining about aspects of the contents of
22
JUDGMENT
the website. The letter expressed concern that a number of the allegations published on the website were defamatory of Mr Jeffrey, Mr Curnow and Mr Heath Curnow, the son of Mr Curnow and also a director of Casacir. Four matters were particularly referred to, namely, that under the heading Casacir Mrs Giles had stated:
(a) (b) David Jeffrey has admitted selling crushed rock through Casacir at a price that is not justified having regard to the quality of the rock itself; each of David Jeffrey, Tom Curnow and Heath Curnow has and continues to engage in unlawful activities through Casacir, [having] ignored orders and directions of the tribunal; David Jeffrey has told you that the name Casacir stands for crush any shit and call it rock and that this was verbally confirmed by a planner engaged by our Casacir [sic], Jack Kraan, at a VCAT hearing in 2008; Our clients as directors of Casacir have distorted facts and actively mislead [sic] the tribunal.
(c)
(d)
The letter went on to say:

In a previous version of this webpage posted on the internet in August 2011 you raised allegations tending to support the suggestion that David Jeffrey has committed perjury in one or more of the VCAT proceedings.
It is not clear why the concerns stated in the letter about allegations of perjury were referred to as appearing in a previous version of the website given that the offending words were still on the website when the letter was written and, indeed, they were not removed until the following February. In any event, one of the four matters particularly complained about as being wrongly stated by Mrs Giles was in fact as Mrs Giles had contended on the website and another, the first, may, at least in the mind of Mrs Giles, have been arguable. Mrs Giles response to the letter of
19 August 2011 was to publish a response on the Quarry Fight website rather than to respond by private correspondence. She received the letter of 19 August 2011 on 23 August 2011 and on that day she published on the Quarry Fight website the whole of the letter from the plaintiffs solicitors together with her response to the many statements in the letter. Much of Mrs Giles response continued the, by then, long and drawn out disputes with attempts by her to assert the accuracy of what she had said. In her response she sought to justify the matters about which the plaintiffs solicitors
23
JUDGMENT
had complained. Mrs Giles was correct in at least one of the specifically enumerated complaints (namely that in (c) above). In the plaintiffs evidence given in the
proceeding before me Mrs Giles assertion of the origin of the name Casacir was admitted to be correct.
33
Mrs Giles sent a fax on 23 August 2011 to the plaintiffs solicitor informing him that her response to the letter of complaint was on the website. It seems that Mrs Giles may have inappropriately seen the letter of 19 August 2011 from the plaintiffs solicitors as itself a continuation of the dispute between them rather than as something which required immediate rectification on her part because of an unjustified wrong which she had committed upon them. Mrs Giles however ought to have identified, but did not identify, the offending words and ought, but did not, immediately remove them upon receipt of the letter dated 19 August 2011. On the other hand, it must be said in fairness to Mrs Giles that the solicitors acting for the plaintiffs did not identify specifically which of the many words on the website were complained of as being defamatory. Some of the words ought to have been obvious to Mrs Giles as being defamatory, such as her clear use of the word perjury in connection with the testimony that had been given by Mr Jeffrey and which she had ascribed also to Mr Curnow.
34
The next relevant step bearing on the question of the delay in the removal by Mrs Giles of the defamatory words was the issue on behalf of the plaintiffs (and at that time also on behalf of Casacir as a plaintiff) of the writ in this proceeding which, in addition to claims in defamation, sought relief for injurious falsehood and misleading and deceptive conduct. The writ dated 5 December 2011, was issued on 7 December 2011 and was served upon Mrs Giles on the evening of 15 December 2011. On that day she contacted Dr Sadler, the barrister who had acted for her in the past. He, in turn, immediately contacted Featherbys Lawyers, to act on her behalf. It seems that the first available time for Mrs Giles lawyers to confer with her about the proceedings was in January 2012 when she conferred with her solicitors, K Judd S.C. and Dr Sadler. Requests were then made to the plaintiffs on behalf of Mrs Giles for
24
JUDGMENT
the plaintiffs to identify precisely the words said to be offensive. The evidence of Mrs Giles, which I accept, is that on or about 23 February 2012 she received a folder (a copy of which was subsequently tendered in evidence on behalf of the plaintiffs) highlighting the words said to be defamatory and cross-referenced to the paragraphs in the statement of claim alleging the defamation. Mrs Giles gave evidence that she immediately deleted the offending words from the Quarry Fight website upon receipt of the folder and the legal advice as soon as the offending words were identified. That account of the facts gives a somewhat different impression from the submission by Counsel that the website had been on the internet for over a year in total. However, on any view, there were words on the website that could not justifiably have remained even for the shorter period of time between August 2011 and 23 February 2012.
35
The plaintiffs claim for damages includes a claim for aggravated damages. Aggravated damages are not awarded under a discrete head but are included in the overall sum of compensation.25 The claim for aggravated damages is on the basis that the website publications occurred in circumstances demonstrating: (a) (b) (c) a lack of good faith; the existence of a collateral or anterior purpose; and unjustified and unreasonable conduct;
on the part of Mrs Giles such as to give rise to an entitlement to aggravated damages.
36
Whether aggravated damages should be awarded requires consideration of whether Mrs Giles conduct aggravated the subjective harm to the plaintiff. In David Syme & Co Ltd v Mather,26 Lush J said:
From these authorities, one is entitled to conclude that aggravated compensatory damages may be awarded in defamation if the defendants conduct aggravates the subjective hurt to the plaintiff. They cannot be awarded merely for reasons of indignation felt by the jury, but only if the evidence points to the conclusion that the blow to the plaintiffs pride, however it may be called, has been or must have been worsened by what was
25
26
Barker et al, The Law of Torts in Australia (Oxford University Press, 5th ed, 2011) 381 [7.7.1.2]; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, 71. [1977] VR 516. 25 JUDGMENT
done. Further, if these requirements are satisfied, there will remain some areas in which the defendant may be able to justify what he has done and escape the payment of increased damages.27
Aggravated damages, however, are not the same as exemplary or punitive damages:
Compensatory damages for aggravation to the plaintiffs feelings can be awarded in defamation cases. They are not exemplary or punitive damages and are awarded as compensatory damages. They are not awarded as punishment; they are awarded to compensate the plaintiff for the increased injury to his or her feelings brought about by the conduct of the publisher.28
The award of aggravated damages depends upon finding conduct on the part of the defendant which, although not malicious, is unjustifiable, improper or lacking in bona fides29 which increased the injury to the feelings of the plaintiff. The principles relating to a claim for aggravated damages was summarised recently by Kaye J in Belbin v Lower Murray Urban and Rural Water Corporation:30
The principles, relating to a claim for aggravated damages, are not in dispute. First, in assessing damages, the court is entitled to consider the whole conduct of the defendant, from the time of publication of the defamatory matter to the time of verdict or judgment.31 Secondly, aggravated damages are not a separate head of damages. As stated by Gillard AJA in Popovic, the court includes the amount for aggravated damages in the compensatory damages awarded by it.32 Thirdly, an award of damages may only be made where the conduct of the defendant is lacking in bona fides, or is improper or unjustifiable.33 Fourthly, damages may be aggravated by the manner in which, or the motives with which, the defamatory statement was made or persisted in.34 Fifthly, depending on the circumstances, a failure to apologise and express regret can constitute improper or unjustifiable conduct.35 Ordinarily, it may be difficult to establish that a mere failure to apologise, without more, aggravates damages in a particular case.36 However, in the context of other factors, by failing to publish a retraction or apology a defendant may be seen
27 28 29 30 31 32 33 34
35 36
Ibid 526 (Lush J). Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1, 77 [380] (Gillard AJA). Mirror Newspapers Limited v Fitzpatrick [1984] 1 NSWLR 643, 653 (Samuels JA). [2012] VSC 535, 115 [326] [331]. Praed v Graham (1889) 24 QBD 53, 55; Roberts v Bass (2002) 212 CLR 1, 103 [287] (Callinan J). Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1, 77 [385]. Triggell v Pheeney (1951) 82 CLR 497, 514. McCarey v Associated Newspapers Ltd & Ors (No 2) [1965] QBD 86, 107 (Diplock LJ); Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225, 250 (Glass JA). Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1, 79 [399] (Gillard AJA). Carson v John Fairfax & Sons Ltd (1992) 178 CLR 44, 66 (Mason CJ, Deane, Dawson and Gaudron JJ). 26 JUDGMENT
to be continuing to assert the imputations published by it.37 Sixthly, ordinarily, aggravated compensatory damages are only awarded in relation to the injury to the plaintiffs feelings. However, there may be conduct by the defendant which has the effect of increasing the injury to the reputation of the plaintiff.38
In Barrow v Bolt39 Beach J observed:

As was said by Gillard AJA in Herald & Weekly Times Ltd v Popovic: "There are two well-established principles that apply where a claim is made for aggravated damages. The first is the oft-cited dictum of Lord Esher MR in Praed v Graham where his Lordship said [T]he jury in assessing damages are entitled to look at the whole conduct of the defendant from the time the libel was published down to the time they gave their verdict. They may consider what his conduct has been before action, after action, and in court during the trial. Secondly, the conduct of the publisher must meet the description of what the High Court said in Triggell v Pheeney concerning aggravation: ... as improperly aggravating the injury done to the plaintiff, if there is a lack of bona fides in the defendant's conduct or it is improper or unjustifiable.40
37
The plaintiffs gave particulars of the circumstances said to entitle them to an award of aggravated damages. In the statement of claim the particulars given were:
The defendants lack of good faith is demonstrated by the volume of defamatory material published by her on the quarry fight website, the frequent and continued publication of that material, and the general nature and tenor of her publications on that website; and further by her motive to cause ongoing injury to the Casacir quarry operation, in order to pressure Casacir to acquire the Shapher land from Shapher, alternatively the defendant, at an inflated price. The defendants intention to pressure Casacir to acquire the Shapher land at an inflated price is evidenced by verbal and written communications between her and representatives of Casacir between approximately 2006 and 2010. The written communications comprised letters sent from the defendant to the plaintiffs and/or their legal representatives on 16 August 2006, 14 April 2007, 2 February 2010 and 26 August 2010, the contents of which are self explanatory and which are in the possession of the solicitor for the plaintiffs and available for inspection by prior appointment.
In a response to a request for further and better particulars, the plaintiffs provided the
37 38 39 40
Ali v Nationwide News Pty Ltd [2008] NSWCA 183, [83] (Tobias and McColl JJA). Waterhouse v Broadcasting Station 2GB Pty Ltd [1985] 1 NSWLR 58, 75 (Hunt J). [2013] VSC 226. Ibid [11] (citations omitted). 27 JUDGMENT
following additional particulars in support of their claims for aggravated damages:

(a) (i) The inflated prices are set out in the correspondence referred to in the particulars to this paragraph, copies of which are in the possession of the solicitor for the Plaintiffs and available for inspection by prior appointment. (a) (ii) A valuation prepared by Pilgrim and Butt Real Estate for the Plaintiffs dated 14 February 2007 valued the Shapher land at between $310,000 and $325,000. A valuation prepared by CJA Lee Property Valuers and Consultants for the Defendant dated 31 July 2009 valued the Shapher land at $600,000. A valuation prepared by Hay Property Group for the Defendant dated 15 February 2010 valued the Shapher land at between $680,000 and $840,000. On 16 August 2006, the Defendant wrote and asked the Plaintiffs to buy the Shapher land for $800,000. On 22 March 2007, the Defendants solicitors wrote and asked the Plaintiffs to buy the Shapher land for $850,000 plus GST if applicable. On 14 April 2007, the Defendant wrote and asked the Plaintiffs to buy the Shapher land for $850,000. On 2 February 2010, the Defendants solicitors wrote and asked the Plaintiffs to buy the Shapher land for $1,201,684. On 26 July 2010 and 26 August 2010, the Defendant wrote and asked the Plaintiffs to buy the Shapher land for $1,201,684.
(b) In or around 2006 or 2007, conversations took place between the First and Second Plaintiffs and Mr Tom Callander, solicitor for the Defendant at the time, at the offices of Mr Callander, in relation to the Defendants request that the Plaintiffs buy the Shapher land. In or around 2008, while at the Victorian Civil and Administrative Tribunal, the Defendant asked the First Plaintiff to buy the Shapher land. On a subsequent occasion, the Defendant asked the Second Plaintiff to buy the Shapher land while in his office. The Defendant subsequently asked the First Plaintiff to buy the Shapher land while on a site inspection at the Casacir quarry land on an occasion.
Mrs Giles denied the allegations to which the particulars were given and in turn
sought to rely upon the surrounding circumstances by notice under r 40.10 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic).
38
Rule 40.10 applies to defamation proceedings where a defendant has not alleged the defence of truth. The defence filed for Mrs Giles did not rely upon truth as a defence and on the first day of the hearing I rejected an application by Mrs Giles to file an amended defence seeking to raise truth and other defences. Rule 40.10, however, permitted Mrs Giles to lead evidence with respect to: (a) (b) (c) mitigation of damages, the circumstances of the publication, or the character of the plaintiff
upon the giving of a notice. Mrs Giles had filed such a notice on 14 March 2013 and sought to rely upon each of the three listed matters contemplated by r 40.10. The notice clearly enough identified the evidence she proposed to rely upon under each of the three categories of matters contemplated by the Rule.
39
Much of the plaintiffs case depended upon establishing a collateral motive on the part of Mrs Giles of maintaining the Quarry Fight website to put pressure on the plaintiffs or their company Casacir to purchase her land at an inflated price. In my view the evidence does not establish that and the plaintiffs have not satisfied me of an entitlement to be awarded aggravated damages.
40
The land in which Mrs Giles had an interest was acquired by her superannuation company, Shapher Pty Ltd, well before the plaintiffs acquired the adjoining land to conduct quarry activities. The Shapher land was intended to be the place to which Mr and Mrs Giles were to retire. On advice they received at the time from lawyers specialising in superannuation law, they had incorporated another company, Country Endeavours Pty Ltd, before Shapher acquired the land. The advice they were given, and on which they acted, was that Country Endeavours Pty Ltd was to commence a farming activity on the property before its purchase by Shapher. That, it seems, enabled Mr and Mrs Giles to live on the property consistently with the
29
JUDGMENT
superannuation rules as they were advised could be done. From 2003 to the middle of 2004 the Shapher property was the only place of residence of Mr and Mrs Giles and was the property from which their company, Country Endeavours Pty Ltd, had a small farming business with some cattle. Around the middle of 2004 they purchased a small residence in Narre Warren because Mr Giles had been finding it difficult to commute between the farm and his place of work in the city. The arrangement between them then was that Mrs Giles would continue living at the farm but would go to Melbourne on a Wednesday night to be with her husband and on Friday night Mr Giles would go to the farm to be with his wife and would return to the city on Sunday night. Mrs Giles continued to live on the Shapher land until the end of 2005 when she moved to the Narre Warren residence with her husband.
41
Amongst the particulars relied upon by the plaintiffs in support of their contention of Mrs Giles having a collateral purpose is correspondence between 16 August 2006 and 14 April 2007 concerning the possibility of the purchase by the plaintiffs of the Shapher land. The Neerim North land operated by Casacir as a quarry had
previously been used as a quarry by another company until the mid-1990s. The plaintiffs purchased the land in 2006 and commenced operation of the quarry in August 2009. In 2005 a community meeting took place at which Mr Jeffrey attended and, according to Mrs Giles (which I accept), Mr Jeffrey expressed the possibility of buying the land of the adjoining neighbours. It may not matter who first suggested the possibility of Casacir or the plaintiffs purchasing the land adjoining the (then) proposed quarry, but it seems likely that the suggestion came from the plaintiffs rather than from Mrs Giles.
42
The Shapher land at the time had a shed on it with a house built in the shed. By that Mrs Giles explained that the external walls of the overall structure were made of tin but that inside the shed there were timber walls which were fully lined, that the structure had windows with double glazing, and that there was a bathroom, a laundry, a bedroom and a kitchen. The shed also had dry wall sewerage, running water, electricity and access to the internet. The shed was about four metres from the
30
JUDGMENT
adjoining land from which the quarry was subsequently conducted by Casacir.
43
In 2007 Mr and Mrs Giles commenced the building of a new house on the Shapher land, which was subsequently finished in 2009 and the shed was decommissioned at this time. Counsel for the plaintiffs at one point questioned Mrs Giles suggesting that the location of the new house was closer to the quarry than the shed had been, but in fact the new house was some twelve and a half metres away from the Casacir quarry land. The positioning of the replacement house continued to be a point of contention between the parties. Mr Jeffrey asserted when cross examined by Mrs Giles that the location of the replacement house had been chosen to frustrate the operation of the quarry. Mr Jeffrey said:
I think you even took the shire to VCAT on a building scheme so you could build a house on a boundary to try and impact buffer zones. The house was on a slip plane. In the end the shire allowed you to build the house there.
The un-contradicted evidence of Mrs Giles, however, was that the new house was built on the only available location consistent with the planning scheme. The land is very steep and rocky in parts and not all of it is suitable for construction of residential dwellings. The suggestion of a determined strategy by Mrs Giles for her to require the plaintiffs to buy the Shapher land is inconsistent with the evidence including, amongst other things, the time, effort and expense in the building a new house in 2007 (two years before Casacir commenced operation of the quarry).
44
Mrs Giles sent an email to Mr Jeffrey on 14 April 2007 offering to sell the Shapher property at a price of $850,000. At that point building of the new house had not commenced and the only construction on the Shapher land was still the shed. The email began by informing Mr Jeffrey that Mr and Mrs Giles had then recently obtained a permit for them to build on the land and were then preparing to build. Various options were set out for Mr Jeffrey to consider and the email would have left him in little doubt that the quarry was going to have a neighbour that was, from his point of view, likely to be difficult and to insist upon a strict adherence to all applicable rules and regulations. I will return to whether the amount in the offer was reasonable but for the present the email, and the subsequent construction of the
31
JUDGMENT
house, indicates an intention by Mr and Mrs Giles to retire to the property and in my view is inconsistent with a strategy to require its purchase by the plaintiffs.
45
It was known to Mr Jeffrey from the 2005 community meeting that Mr and Mrs Giles had planned to build a replacement house on the Shapher land for their retirement and this had been confirmed in a letter on Shapher Pty Ltd letterhead dated 16 August 2006. That letter addressed to both plaintiffs and signed by Mrs Giles began with noting that it had come to her attention that what she described as attempts to open a quarry were no longer a hypothetical. This fact she described as both alarming and distressing and went on to say that she was concerned that there had been only one community meeting which had been instigated by her rather than by the plaintiffs. She outlined some of the history of the then proposed quarry site and stated that her intention when purchasing the Shapher land had been with a view eventually to retire on the land where the air is wonderfully clean and clear and the water is pristine, the sound of the birds is lovely and the quiet is refreshing. Commencement of construction of the new house in 2007 was consistent with an intention to retire to the Shapher land and was not part of a collateral purpose to require the plaintiffs or Casacir to purchase the land. The position of the new house may have had an impact upon buffer zones but it was actually further away from the boundary of the quarry property and was not part of a collateral purpose to require the plaintiffs to purchase the Shapher land.
46
Mrs Giles in her letter of 16 August 2006 set out a series of potential problems which loomed in her mind as significant detriments likely to be caused from the reopening of the quarry, and informed the plaintiffs that she was left with no choice but to fight the opening of this quarry with all of the resources at [her] disposal. In that regard she indicated that she was in contact with a number of government agencies, both local and state, and would be in contact with whomever she could to have the quarry stopped. That, she continued, would include fighting at VCAT if the matter
proceeded to, and was approved at, council permit stage. In that letter she also wrote that the only other option was for the plaintiffs to purchase the land owned by
Shapher and that owned by two other couples nearby. The amount she was willing to accept at that stage was $800,000 which she said was arrived at after taking into consideration that they did not want to sell, that they would lose the advantage of considerable returns from agroforestry that they had put in and that they would experience the inconvenience of having to move and restart somewhere else.
47
A more formal offer was subsequently put to Casacir on behalf of Shapher by its then solicitors, Rigby Cooke, on 22 March 2007 following a conference which had been held on 27 February 2007. At that stage the price in the offer was $850,000 (plus GST if applicable). It may be noted in passing that the letter from Mr Callander of Rigby Cooke referred to the indication for the purchase of the Shapher land as coming from the directors of Casacir rather than the other way around.
48
The amounts sought by Mrs Giles on behalf of Shapher were said to be excessive. An instance given in the further particulars was that a valuation was said to have been prepared for the plaintiffs by Pilgrim & Butt Real Estate on 14 February 2007 which valued the Shapher land at between $310,00 and $325,000 at a time when Mrs Giles was seeking $800,000 or more. Mrs Giles correctly claimed however, that what had been received by the plaintiffs (and not by her) from Pilgrim & Butt Real Estate was not a sworn valuation and had been undertaken only by a cursory examination of the property. Her negotiating position had been to seek by way of sale price the kind of amount that she believed might be received from a compensation claim under the Mineral Resources (Sustainable Development) Act 1990 (Vic). She thought, however
wrongly, it fair that she receive something to enable her to obtain a replacement property plus 10 percent solatium plus removal costs, legal costs and associated expenses. That was the point of her letter of 16 August 2006 when stating that the figure of $800,000 had been reached after taking into account that they did not want to sell and the loss and inconvenience of having to move. It was also the basis of Mr Callanders letter of 22 March 2007 which explained the basis for the calculation and the clients mindfulness that costs would be incurred in finding a replacement property with comparable features. The subsequent email of 14 April 2007 confirmed
the offer for a further six days.

49
On 31 July 2009 Shapher received a valuation from C.J.A. Lee Property Valuers and Consultants for the property at $600,000. On 2 February 2010 Mr Andrew Boer,
solicitor of Moores Legal, wrote to the plaintiffs solicitors on behalf of Shapher with an offer to sell the property at $1,201,684. The basis of this offer was explained in Mr Boers letter as based on a pro rata value per acre of a property recently advertised for sale in Neerim South. A copy of the advertisement was subsequently supplied to the plaintiffs. It continued to express the view that Shapher should expect to receive compensation to enable the acquisition of a comparable property plus something by way of solatium and to cover the transaction costs. That very same offer was repeated by Mrs Giles directly to the plaintiffs solicitors by letter dated 26 July 2010. On 15 February 2010 Mrs Giles had received a sworn valuation and report from Hay Property Group then valuing the property at between $680,000 (after taking account of the quarry) and $840,000 (before taking account of the existence of the adjoining quarry).
50
Disputes, negotiations and proceedings in VCAT occurred throughout much of this time. In September 2009 Country Endeavours Pty Ltd, as lessee of the Shapher land adjoining the quarry, commenced enforcement proceedings in VCAT. On
17 May 2010 the Tribunal ordered Shapher, Mrs Giles and Mr Giles to be joined as parties to the proceedings. The proceedings were heard over five days in November 2010, and on 7 February 2011 the Tribunal dismissed the application declining to make an enforcement order. On 14 February 2011 Dr Sadler, Counsel who had
appeared for Mrs Giles in the VCAT proceedings, sent an email to Mr Graeme Peake, Counsel who had appeared for the current plaintiffs and Casacir, and who had been engaged by the plaintiffs then solicitors and who were also the plaintiffs solicitors in this proceeding. The email between Counsel put an offer to sell the Shapher land on what Mrs Giles then understood to have been the basis upon which the plaintiffs had not long before offered to purchase the land. A further email was sent from
Mrs Giles barrister to the plaintiffs barrister on 1 March 2011 reiterating the offer to
sell the Shapher land.
Mr Curnow gave evidence that they had been willing to
purchase the land on the basis of the average of two sworn valuations from a valuer used by a bank plus $50,000. The valuation of the Shapher land proposed by the plaintiffs was to be conducted on the basis of the land as is but upon the assumption that the quarry did not interfere with the flow of water to the waterway on the land.
51
The emails of 14 February 2011 and 1 March 2011 from Mrs Giles barrister added two clauses (albeit in slightly different terms) which were apparently not part of the offer as originally put by the plaintiffs. The two additional clauses were, first, that each party would bear their own costs to date and, secondly, that both sets of parties would provide mutual releases. I do not regard the latter as a material addition but, rather, as the kind of term that could be expected as a matter of course to settle once and for all the disputes which had gone on for so long. The former might have been a material new term inconsistent with the offer which the plaintiffs had put but, curiously, the offer seems never to have been communicated to the plaintiffs. Mrs Giles put to Mr Curnow in cross examination the fact of her offer by her barrister but Mr Curnows response was that he had never seen it. The day following that cross examination Mrs Giles tendered in evidence, as part of her own case, the documents which she had said during the cross examination of Mr Curnow were available, namely, the email correspondence between the barristers and a copy of a subsequent letter sent by her directly to the plaintiffs solicitor. The email
correspondence between the barristers on 14 February 2011 included a reply of the same day from the plaintiffs barrister to Mrs Giles barrister confirming receipt of the email and confirming that he had sent the offer to his client for instructions and would get back to Counsel for Mrs Giles as soon as he had instructions. No further response from the plaintiffs was received to either the email of 14 February 2011 nor to the email of 1 March 2011 and on 16 March 2011 Mrs Giles took it upon herself to repeat the offer by sending a fax directly to the plaintiffs solicitor in precisely the same terms as had been put by her barrister in the email correspondence of 1 March 2011. No response was received to that communication either. Senior Counsel for the
plaintiffs expressed surprise during the trial before me about the existence of these offers but I have no reason to doubt that the offers were sent and that they were received by those acting for the plaintiffs. The fact that they may not have been communicated to the plaintiffs remained unexplained.
52
Mr Curnow had suggested when cross examined by Mrs Giles that the plaintiffs would have entertained an offer from her to purchase the Shapher property on some basis as the average of two sworn valuations plus $100,000 but, as I have mentioned, had not been aware of the offers which had been put in February and March 2011. It also seems that Mr Curnow may have mistakenly thought that the valuation received by Mrs Giles (and supplied to the plaintiffs) from Hay Property Group had not been a sworn valuation. The passage in Mr Curnows cross examination by Mrs Giles was as follows:
MRS GILES: Mr Hay put in a report, he is not a friend, he is a sworn proper sworn valuer who values for banks, for councils, for businesses. Hes a well respected person and yet you said that his valuation is not acceptable because its inflated? MR CURNOW: Correct, and I used the example I gave as an example. I dont know the man or challenge his credentials at all but a valuation from a sworn valuer does not make it a sworn valuation unless it is a sworn valuation and thats what we were asking for. MRS GILES: It was a sworn valuation. It was a sworn valuation. We actually put an offer to you to say, two sworn two qualified, fully qualified valuers to give sworn valuations and you said no, you insisted on it being bank valuers which are going to give a lower valuation purely and simply because thats the nature of their game, they have to do a fire sale type valuation. MR CURNOW: I think this is, your Honour, a pointless argument. The valuers in question and probably the one Mrs Giles is referring to is probably on bank panels. The reason we put the $50,000 on top is because a sworn valuation is one that the valuers reputation assures us that that is what you would get if you sold the property and certainly it wont be inflated and we allowed an extra $50,000 on top of that to be reasonable. Had you been serious you perhaps could have come back and said, Well, why not allow $100,000 on top of it? MRS GILES: We did. MR CURNOW: Im unaware of it. We got a flat no is my understanding. MRS GILES: No, we did. It went back to Mr Peake. He came back and said it was not accepted by you.
36
JUDGMENT
MR CURNOW: Was that in writing? MRS GILES: Yes, it is. MR CURNOW: Im unaware of it. MRS GILES: I wont take up the courts time right now but if I can Monday give it or I can do it sort of when we have finished. It will only take me a few minutes to find it.
Mrs Giles, as I have mentioned above, subsequently tendered the correspondence of February and March 2011 which conveyed an offer to sell the property on substantially the terms which had been indicated to her by the plaintiffs with, however, the addition of the two conditions to which I have also referred. Counsel for the plaintiffs submitted that the addition of the two conditions was significant although, for the reasons I have expressed above, I do not regard the requirement of mutual releases as material. Critically however, Counsel for the plaintiffs said that by February 2011 the plaintiffs had incurred substantial costs which would significantly increase the amount that the plaintiffs would in effect bear to purchase the Shapher property beyond the basic terms of the average of two sworn valuations plus $50,000. The plaintiffs, however had not then quantified the amount of costs they might recover from, amongst others, Mrs Giles as at March 2011. On 7 February 2011 they did not have the benefit of a costs order since costs had been reserved by the Tribunal41 although the respondents to that proceeding may have had an expectation of a favourable order for costs. An application for costs was not heard by VCAT until 13 December 2011 and orders concerning the basis of costs to be paid to the plaintiffs were not made until 29 December 2011.42 Mr Southall QC informed the Court from the Bar table that at around 7 February 2011 the costs were known by the plaintiffs to be a very considerable sum, in the region of $70,000 to $80,000. He was
subsequently given a note which, from the Bar table, he informed the Court (without opposition by Mrs Giles) that the costs had not yet been taxed but were in the vicinity of $82,000.
53
41 42
I dwell upon this matter because it is significant to the plaintiffs claim for aggravated
Country Endeavours Pty Ltd v Baw Baw Shire Council [2011] VCAT 147. Country Endeavours Pty Ltd v Baw Baw Shire Council (No. 8) [2011] VCAT 2403. 37 JUDGMENT
damages that Mrs Giles was seeking to extract an inflated price for the sale of the Shapher land. However, before commencement of the website, and before
publication of the defamatory words, Mrs Giles had substantially attempted to accept the offer as she had understood the offer had been put by the plaintiffs. It is true that one of the conditions would effectively have increased the $50,000 loading offered by the plaintiffs by the economic value of the costs order Mrs Giles was effectively asking as part of the price of settlement. However, such terms do not seem inconsistent with the position which Mr Curnow in cross examination seemed to have accepted as a reasonable negotiating position, namely, that instead of Mrs Giles taking the $50,000 he had suggested she might have asked for $100,000. It seems that no attempt at all was made to engage in negotiation with Mrs Giles at a point when, conceivably, the parties might have reached a once and for all resolution of what had become, and continued to be, a festering dispute. The evidence of Mr Curnow suggests that in March 2011 the economic difference between the parties in their respective negotiating position, had it been considered, was around $30,000 upon the assumption that the plaintiffs might have been willing to increase the offer of the top up from $50,000 to $100,000 and that the untaxed costs were at that point around $82,000 (as the Court was informed from the Bar table).
54
I accept the evidence of Mrs Giles that the offers were put in February and March 2011 first by email correspondence between Counsel and subsequently by correspondence from Mrs Giles to the plaintiffs solicitor. I also accept her evidence that she had provided to the plaintiffs a sworn valuation from Hay Property Group which was complete. The plaintiffs tendered in evidence part of a document described as
Report & Valuation by Hay Property Group as part of documents in a notice to admit documents. The document as tendered was incomplete but Mrs Giles gave evidence that she had forwarded to the plaintiffs a copy of the complete document. I accept that evidence and it appears from the document as tendered, and from Mrs Giles oral testimony, that the entirety of the original document was a sworn valuation. I have already discussed that Senior Counsel for the plaintiffs expressed surprise at the tender of the correspondence which occurred in February and
March 2011 which had conveyed the offers by Mrs Giles. Indeed, he first observed that the documents had not been discovered (by which I understood him to mean that they ought to have been discovered by Mrs Giles rather than by the plaintiffs). No criticism of Counsel is intended, but the documents tendered by Mrs Giles were plainly relevant to the plaintiffs case and the documents received by them ought to have been discovered by the plaintiffs. In my view they bear fundamentally upon the conclusions which the plaintiffs seek the Court to draw about circumstances surrounding the publication of defamatory words which are said to justify an award of aggravated damages. The making of offers in February and March 2011 upon terms that built upon what had been offered by the plaintiffs is, at the very least, an important step in the chain of circumstances reflecting upon the plaintiffs. The
documents ought to have been particularised if only as part of the documents said to be part of the correspondence from which the Court could evaluate the extent to which Mrs Giles was said to have been seeking inflated prices.
55
The existence of the website, and the defamatory words published in it, may reflect badly upon the defendant but not in a way that justifies the award of aggravated damages. It may show obsession and, perhaps, an unreasonable determination to make things difficult for those operating a neighbouring quarry but I do not think the website, or specifically the defamatory words published on it, show a lack of good faith, the existence of a collateral or anterior purpose of extracting an inflated price for the Shapher property, or constitute unjustified and unreasonable conduct sufficient to entitle the awarding of aggravated damages in defamation. Plainly Mrs Giles did not want the quarry next to the land upon which she hoped to retire. Manifestly
Mrs Giles was determined to make things as difficult as possible for the quarry operators. In doing so she had recourse to the Tribunal and, however wrongly, she sought to rely upon the letter of the law to secure what she believed to be outcomes to which she was entitled. The proceedings have been found to have been vexatious for the purpose of the costs order made by VCAT43 and that finding was confirmed by
43
Country Endeavours Pty Ltd v Baw Baw Shire Council (No. 8) [2011] VCAT 2403. 39 JUDGMENT
this Court.44 Evidently Mrs Giles was dissatisfied with the way in which the regulators had dealt with her complaints and the way in which the Tribunal had determined the enforcement proceedings.
56
The reason for establishing the website was explained by Mrs Giles as follows:
I created the website because after a number of attempts to try and get the plaintiffs to comply with their planning permission and work authority conditions, then we felt we had to take action because the dust was pouring off the site and impacting us, the water was getting polluted, and the noise was horrendous. Mr Byard, the [VCAT] member, said that because we originally tried this is under our cancellation application and he said to pull the it was more appropriate to pull out the conditions the breaches or alleged breaches and to put them into an enforcement application. Over a period of time he actually told us that no less than five times. Thats what we did. What were hoping to achieve with the website, or what was I hoping to achieve: I was hoping to notify people who were in a similar situation. I wished that I had had somebody who had told me that, if youre in an area that could be subject to a quarry, a wind farm, anything like that, these are the sorts of things you need to watch out for, these are the things that authorities can overlook; they can ignore, they can pretend dont happen. This is what a company it just happens to have been the company of the plaintiffs this is what a company is willing to do or not to do as the case may be, this is what the tribunal will look at and overlook, so I was trying to give a perspective to people who might be in a similar situation to us. I wasnt being malicious on the web I wasnt trying to be malicious on the website in having it, it was just purely a forum to log what the current situation was on a time-relative basis. I wasnt trying to impact or stop the quarry by the website, I was just trying to notify people, and there were people in the Neerim North area who were interested in what was going on at the quarry. Not everybody was feeling comfortable in driving around the outside and looking at it. Some of those expressed to me that they were so stressed that they found it difficult. Thats hearsay but.
I accept this evidence of what Mrs Giles sought to do by and through the Quarry Fight website. As early as 16 August 2006 she had written to the plaintiffs indicating her firm determination to oppose the quarry with all of the resources she had available. Her opposition was to the quarry and its operation. The plaintiffs expressed some willingness to purchase the Shapher land and Mrs Giles entertained that possibility albeit upon terms which were not agreed to. The bulk of the material from the Quarry
44
Country Endeavours Pty Ltd v Casacir Pty Ltd [2013] VSC 22. 40 JUDGMENT
Fight website tendered in evidence is consistent with Mrs Giles oral testimony about her purpose in operating the website and the words expressed in it. In parts she used clearly inappropriate language but she was doing so in her expression of dissatisfaction and not with the intention of putting collateral pressure upon Casacir to acquire the Shapher land at an inflated price. Her purpose was, rather, to seek to ensure that the operation of the quarry complied with what she understood to be their obligations however irritating to regulators and to the quarry operators her chosen method may have been.
57
How a case is conducted at trial may also be relevant to whether damages sustained by the plaintiffs had been aggravated.45 Counsel for the plaintiffs contended that I should take into account in aggravation of the damages the fact that no apology had been offered by Mrs Giles until the conclusion of her submissions at trial. At the conclusion of her address Mrs Giles said:
I agree to not, whether by myself, my servants, agents or howsoever otherwise, reinstate the website quarryfight.com or other internet site concerning either Mr Jeffrey or Mr Curnow personally and I provide the following apology: There was never any intention to defame Mr Jeffrey or Mr Curnow and I give an unqualified apology for any hurt, humiliation, injury, embarrassment, concern or loss of reputation they have or feel they have suffered as a result of the quarryfight.com website or any imputations therein.
The fact that the apology was not proffered until the hearing of the proceeding is a factor against Mrs Giles but the fact that it was offered, albeit at trial, is also a factor which may be considered in her favour. It is, for example, a factor militating against a permanent injunction. Her conduct at trial was otherwise generally unimpeachable. I found her to be at all times courteous to the Court, to the legal practitioners for the plaintiffs and to all of the witnesses including the plaintiffs. She sought to put her own case as well as she could and she did so without in any way behaving inappropriately despite the occasional inadvertent provocation she may have felt by some robust remarks or behaviour by legal practitioners perhaps unaccustomed to
45
Patrick Milmo, W.V.H Rogers et al (eds), Gatley on Libel and Slander (Sweet & Maxwell, 11th ed, 2008) 1195 [34.58]. 41 JUDGMENT
conducting a defamation proceeding against a litigant in person.

58
The plaintiffs seek damages (including what their submissions said was a modest award for aggravated damages) in the range of $60,000 to $80,000 for Mr Jeffrey and $40,000 to $50,000 for Mr Curnow. I am not satisfied that damages in those amounts are appropriate. The defamatory words are serious and ought never to have been made. They ought to have been removed immediately from the website when There was no sufficient justification in
complaint was made of their existence.
Mrs Giles waiting to obtain legal advice after receiving the writ and, in any event, she ought not to have waited for the writ. She was specifically on notice by
23 August 2011 that her website contained words which she should have removed. The fact that little, if any, actual damage was done to the reputation of the plaintiffs, or that little injury was specifically referrable to the defamatory words does not lessen the fact of the defamation and the plaintiffs entitlement to damages. In the
circumstances I will order damages for Mr Jeffrey in the amount of $12,000 and for Mr Curnow in the amount of $8,000. I will otherwise hear the parties on the question of costs.
42
JUDGMENT

Jeffrey & Anor V Giles (2013) VSC 268

Загружено:

Сведения о документе

Оригинальное название

Авторское право

Доступные форматы

Поделиться этим документом

Поделиться или встроить документ

Параметры публикации

Этот документ был вам полезен?

Это неприемлемый материал?

Авторское право:

Доступные форматы

Jeffrey & Anor V Giles (2013) VSC 268

Загружено:

Авторское право:

Доступные форматы

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION MAJOR TORTS LIST

S CI 2011 06654 First Plaintiff Second Plaintiff

Counsel Mr A Southall QC with Ms R Kaye

Solicitors Ken Smith & Associates

For the Plaintiffs Virginia Giles Self-represented Defendant

David Jeffrey & Anor v Virginia Giles

David Jeffrey & Anor v Virginia Giles

David Jeffrey & Anor v Virginia Giles

David Jeffrey & Anor v Virginia Giles

David Jeffrey & Anor v Virginia Giles

(2009) 238 CLR 460. 8 JUDGMENT

David Jeffrey & Anor v Virginia Giles

David Jeffrey & Anor v Virginia Giles

psychological evidence was tendered in the plaintiffs case.

David Jeffrey & Anor v Virginia Giles

David Jeffrey & Anor v Virginia Giles

David Jeffrey & Anor v Virginia Giles

David Jeffrey & Anor v Virginia Giles

David Jeffrey & Anor v Virginia Giles

David Jeffrey & Anor v Virginia Giles

(2001) 208 CLR 388. 16 JUDGMENT

David Jeffrey & Anor v Virginia Giles

Ibid 416 [88]-[89] (citations omitted). [2012] VSC 535. 17 JUDGMENT

David Jeffrey & Anor v Virginia Giles

Ibid 77-79 [213]-[218] (citations omitted). 18 JUDGMENT

David Jeffrey & Anor v Virginia Giles

be able to sue for defamation and was not otherwise a party.

David Jeffrey & Anor v Virginia Giles

In answer to a follow-up question from the Bench, Mr McClure said:

David Jeffrey & Anor v Virginia Giles

David Jeffrey & Anor v Virginia Giles

David Jeffrey & Anor v Virginia Giles

The letter went on to say:

David Jeffrey & Anor v Virginia Giles

David Jeffrey & Anor v Virginia Giles

David Jeffrey & Anor v Virginia Giles

David Jeffrey & Anor v Virginia Giles

In Barrow v Bolt39 Beach J observed:

David Jeffrey & Anor v Virginia Giles

following additional particulars in support of their claims for aggravated damages:

David Jeffrey & Anor v Virginia Giles

David Jeffrey & Anor v Virginia Giles

David Jeffrey & Anor v Virginia Giles

the offer for a further six days.

sell the Shapher land.

Mr Curnow gave evidence that they had been willing to

David Jeffrey & Anor v Virginia Giles

David Jeffrey & Anor v Virginia Giles

David Jeffrey & Anor v Virginia Giles

David Jeffrey & Anor v Virginia Giles

David Jeffrey & Anor v Virginia Giles

conducting a defamation proceeding against a litigant in person.

complaint was made of their existence.

David Jeffrey & Anor v Virginia Giles

Вам также может понравиться