Judge Judith Gibson has delivered another judgment in relation to a neighbourhood slander which, courtesy of the slow Xmas news period, has been belatedly reported by the SMH’s Crime(!) Editor.
BV told two other parents at the school attended by BV’s and PK’s and AK’s children that PK and AK were not trustworthy people who had ripped him off. In addition PK and AK’s children were upset as a result of things said at school by BV’s children, which were presumably a repetition of things said at home by BV in their hearing. Previously the families had been close and had a business and a religious association (PK and AK have 8 children) going back many years.
No statements by BV to his children were pleaded as defamatory publications
This was Judge Gibson’s second judgment, delivered on 9 December 2008. On 8 December 2008, when a four-day trial was set down to commence, there was no appearance by the defendants, whose legal representatives had ceased to act about a month previously. On the application of the plaintiffs, Judge Gibson struck out the entirety of the defence. This included defences of truth or contextual truth (roughly, it was mostly true) and that an apology had been offered (an “offer of amends”).
The playground repetition of the slander was not itself the matter complained of, but its effects on the Ks’ children were held to be factors warranting an awared of “aggravated compensatory damages.” This of itself is a bit alarming: watch what you say in front of your children! You can’t determine how alarming it is, because her Honour did not give an unaggravated damages figure and say how much difference the aggravation made, but rather, having found aggravation, delivered an inscrutable round-figure verdict.
Easiest at this point to quote from the judgment [emphasis added]:
What are the features warranting the award of aggravated compensatory damages here? The first and most obvious is the bringing of a defence of truth. Filing a defence of truth recklessly will inflame the damages: Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254 at 262. This was, moreover, a hopeless defence and one which I have struck out: PK v BV. Even if the defendant had attended and led evidence along the lines particularised (and I note I have set out the particulars in some detail in my judgment of 8 December), these particulars would establish no more than some kind of commercial dispute about a late payment. There is nothing in the particulars to support the truth of any of the imputations.
It is as well to set out the particulars in question, which are to be found in the first judgment [emphasis again added]:
“i) In or about August 2005 the plaintiffs asked the defendant [sic] and the defendant agreed to loan without security certain moneys to the plaintiffs.
ii) The plaintiffs or each of them agreed to prepare a written document in relation to the said loan.
ii)[sic] In order to induce the defendant to make the loan, the plaintiffs and each of them made certain representations to the defendant which the plaintiffs knew or should have known were untrue and false and that the plaintiffs made such untrue and false representations with the intention that the defendant would be, and he was thereby induced to enter the lending transaction.
iii) The plaintiffs represented that they or both of them had expertise and knowledge sufficient to enable the preparation of proper and binding loan documents and that they would use their best endeavours to draw valid and effective documents.
iv) Despite the representation of the plaintiffs they and both of them in truth believed that the said documents were on their terms void for uncertainty.
v) The said documents were executed by and at the direction of the plaintiffs.
vi) The plaintiffs arranged and explained or instructed the defendant as to the manner and method of execution of the said loan documents in circumstances where the defendants [sic] [should be plaintiffs, obviously] knew or believed that the execution of the documents was defective and did not in their belief create to [sic] legally enforceable rights, or, upon becoming aware of the same failed to warn the defendant.
vii) In addition, the plaintiffs represented to the defendant [sic] that the plaintiffs and [sic] neither of them was able to provide security for the said lending.
viii) The plaintiff [sic] and both of them in truth knew that the plaintiffs did have assets which at all relevant times could have been used to secure the loan.
ix) Such representations with the knowledge of the plaintiffs was [sic] intended to, and in fact did, induce the defendant to enter into the lending transaction.
x) The plaintiffs and each of them represented that they would repay the loan in full on or before 12 December 2006.
xi) The plaintiffs did not repay the full loan on or before 12 December 2006 and either knew or should have known that they would have in truth been unable to do so.
xii) In the premises all and any of the imputations were true.”
So, to put it more simply PV, the defendant, says (it’s just an allegation we’re talking about, in case their lawyer is reading) that the Ks, the plaintiffs, got him to lend them money. They prepared a written document which he and they signed. They knew it was not legally enforceable against them because it was expressed too vaguely. They also induced PV to lend them money on an unsecured basis by telling him falsely that they had no assets to offer as security when they knew they did have assets which they could have offered. They also said they would repay the money in December 2006. It’s not clear if they have subsequently repaid it though the tenor of the slander suggests that they haven’t.
That sounds like a lot more than a dispute about the late repayment of money to me. It is an allegation of fraud without which the loan might never have been made or made in the form in which it was made. I can’t say whether this would amount to a defence of contextual truth, though it certainly looks like more of one than Judge Gibson seems to have thought. What it does show is that, once you are on a winning streak in a case like this, you just keep on winning, and conversely, if you are losing, you just keep on losing, and especially if you are not there.
This is especially so in defamation, because though it is for the plaintiff to establish that the hurtful things were said, the plaintiff does not have to prove that they are untrue. If they are hurtful in the requisite way (ie, defamatory) it will be for the defendant to establish their truth by way of a defence. In the absence of such proof, the defamatory statements are assumed to be untrue and all the more shocking and harmful because of that.
We will never know whether what PV said was true. Because he gave up, quite possibly because he didn’t have the money to fund a four-day trial, it is presumed, in the trial, not to be true. But you can’t just stop defending an action: your opponents will just get in heaps of free kicks in your absence, as some of the excerpts of evidence recounted by her Honour in her judgment make plain.
Her Honour was particularly concerned about the aggravation as a result of the remarks made by PV’s children:
37. The circumstances in which the defendant’s children insulted the plaintiffs’ children, including making statements in the course of a scripture class, and leading to school bullying which had the plaintiffs’ daughter hiding in the girl’s toilet for three days, required the plaintiffs to sit down with all of their children to explain what has happened, “in case they heard something outside our home” (transcript, page 32). This is very powerful evidence.
38. The defendant must have been aware of the very close relationship between his children and the plaintiffs’ children, and for a dispute between adults to be used as a punitive weapon in the school yard is conduct which shows aggravating features of the highest kind. In fact, I cannot recall ever reading any defamation judgments referring to repetition amongst children. It must be a very rare occurrence, and, in my view, is an appropriate matter for aggravated compensatory damages.
Excuse me? The plaintiff must have been aware of this, even though her Honour, defamation maven par excellence, cannot recall ever reading of such a case in a judgment before and is of the view it must be a very rare occurrence?
I’m seriously wondering if Gibson DCJ has entirely thought through the ramifications of her decision. By a series of little steps, all of them comparatively normal and by the book for a defamation lawyer (because they look at these things all the time through the telescope turned back to front of their professional commitment to the cause of action) I think she has reached a quite remarkable and also questionable conclusion.