jeffrey & anor v giles [2013] vsc 268

_________________________________________________________________________________

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNECOMMON LAW DIVISIONMAJOR TORTS LIST

S CI 2011 06654

DAVID JEFFREY First Plaintiff

THOMAS CURNOW Second Plaintiff

v

VIRGINIA GILES Defendant

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JUDGE: PAGONE J

WHERE HELD: Melbourne

DATE OF HEARING: 10, 11, 12, 15, 16, 17, 18 April 2013

DATE OF JUDGMENT: 23 May 2013

CASE MAY BE CITED AS: David Jeffrey & Anor v Virginia Giles

MEDIUM NEUTRAL CITATION: [2013] VSC 268

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DEFAMATION – Publication of defamatory material on website – Whether publishedmatter 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 thewebsite and impact of the website as a whole and other conduct of the defendant – Effect ofdefamatory material on plaintiff’s physical health – Grapevine effect – Relevance ofdefendant’s understanding of “perjury” – Damages to bear an appropriate and rationalrelationship to the harm done - Aggravated damages – Whether defendant had a collateralmotive in the maintaining the website – Whether defendant was seeking to inflate the valueof the land - Defendant’s apology at trial - Defamation Act 2005 (Vic) s 34 – Supreme Court(General Civil Procedure) Rules 2005 (Vic) r 40.10.

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APPEARANCES: Counsel Solicitors

For the Plaintiffs Mr A Southall QC withMs R Kaye

Ken Smith & Associates

Virginia GilesSelf-represented Defendant

David Jeffrey & Anor v Virginia Giles 1 JUDGMENT

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.

2 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.


3 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

Tribunal’s 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 tofacts that were obviously untrue and provably so, and that he knew wereuntrue.

I was even more shocked to see that he took the oath, with his hand on thebible [sic] – and then provided information that was not true. I can onlyassume 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


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 northernboundary or around the dam – proving he committed perjury at the tribunal.[emphasis in original]


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 Jeffrey’s affidavit dated 6 September, he himself said that“Up until early January 2010 [the drill] did not have the ‘acoustic cover’ fitted. Therewas no cover available within Australia from the manufacturer”. (in spite of statingat the 2008 tribunal hearing that there was one in Australia and that they hadmade 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 haveinterpreted things how they want to interpret them (and Russell Byard of thetribunal has chosen to support them). Some examples of such “interpretations”from experience appear to be that:

…

they don’t actually have to have the required 2 community meetings ayear if they don’t want to, and that the information provided at thosemeetings does not have to actually be accurate, factual and truthful if theywould rather provide inaccurate, fictional and/or deceptiveinformation that makes it sound as if they had actually done what theywere supposed to do;

they can provide provably inaccurate sworn information to the tribunal(which in effect deceives the tribunal) if they want to. [emphasis inoriginal]

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”:


Went out to the site again today and still nothing seems to have changed: stillno 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 havingsworn that they could be seen from the next one) … but Casacir seems to haveno qualms about the continued failure to comply with sworn testimony andconditions and undertakings! [emphasis in original]


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]sn’t 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 Jeffreyswore in his affidavits and under oath. Not only were a number of gatesunlocked, but the one to the direct north of the quarry entrance was standingwide open!


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:


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]


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 haveinterpreted things how they want to interpret them (and Russell Byard of thetribunal has chosen to support them). Some examples of such “interpretations”from experience appear to be that:

…

they don’t actually have to have the required 2 community meetings ayear if they don’t want to, and that the information provided at thosemeetings does not have to actually be accurate, factual and truthful if theywould rather provide inaccurate, fictional and/or deceptiveinformation that makes it sound as if they had actually done what theywere supposed to do;

they can provide provably inaccurate sworn information to the tribunal(which in effect deceives the tribunal) if they want to. [emphasis inoriginal]

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]


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”: I’d looked it up and that was in thedictionary, I didn’t go to the website or anything, I just looked it up in threedifferent dictionaries and they variously said, “lying under oath, swearingfalsely”. I didn’t realise that the legal terminology for it was, you know, it hadto be with deliberate intent or anything like that, so in using the word I didn’tdeliberately use the word that was – had a bigger meaning than what Iunderstood – you know, I didn’t understand it had a bigger meaning. Did Isay either of the plaintiffs deliberately or intentionally lied under oath? No, Ididn’t. Did I feel justified in saying what I did? I felt justified because of whatI’d 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.


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 person’s reputation may therefore be said to be injured when the esteem inwhich that person is held by the community is diminished in some respect.

Lord Atkin proposed such a general test in Sim v Stretch, namely thatstatements might be defamatory if “the words tend to lower the plaintiff in theestimation of right-thinking members of society generally”. An earlier testasked whether the words were likely to injure the reputation of a plaintiff byexposing him (or her) to hatred, contempt or ridicule but it had come to beconsidered as too narrow. It was also accepted, as something of an exception tothe requirement that there be damage to a plaintiff’s reputation, that mattermight be defamatory if it caused a plaintiff to be shunned or avoided, which isto say excluded from society.

The common law test of defamatory matter propounded by Lord Atkin wasapplied in Slatyer v The Daily Telegraph Newspaper Co Ltd, although Griffith CJexpressed some concern about the ambiguity of the expression “right thinkingmembers of the community”. The general test, stated as whether the publishedmatter is likely to lead an ordinary reasonable person to think the less of aplaintiff, was confirmed by this Court in Mirror Newspapers Ltd v World HostsPty Ltd, Chakravarti v Advertiser Newspapers Ltd and by Callinan and Heydon JJin John Fairfax Publications Pty Ltd v Gacic. Gummow and Hayne JJ in Gacicreferred to the likelihood that the imputations might cause “ordinary decentfolk” in the community to think the less of the plaintiff.

Putting aside Lord Atkin’s additional requirement of being “right-thinking”,the hypothetical audience, that is to say the referees of the issue of whether aperson has been defamed, has been regarded as composed of ordinaryreasonable people, whom Spencer Bower described as “of ordinaryintelligence, experience, and education”. Such persons have also beendescribed as “not avid for scandal” and “fair-minded”. They are expected tobring to the matter in question their general knowledge and experience of

2 (2009) 238 CLR 460.


worldly affairs.

In Reader’s Digest Services Pty Ltd v Lamb Brennan J explained that anystandards to be applied by the hypothetical referees, to an assessment of theeffect of imputations, are those of the general community:

“Whether the alleged libel is established depends upon theunderstanding of the hypothetical referees who are taken to have auniform view of the meaning of the language used, and upon thestandards, moral or social, by which they evaluate the imputation theyunderstand to have been made. They are taken to share a moral orsocial standard by which to judge the defamatory character of thatimputation … 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 defamationproceedings, the court is to ensure that there is an appropriate and rational

3 Ibid [3]-[7] (French CJ, Gummow, Kiefel, and Bell JJ) (citations omitted).4 Emphasis as in the original publication.5 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).


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 plaintiff’s mood and demeanour after the defamatory statement

came to the plaintiff’s 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 arethree purposes to be served by damages awarded for defamation. The threepurposes no doubt overlap considerably in reality and ensure that “the amountof a verdict is the product of a mixture of inextricable considerations”. Thethree purposes are consolation for the personal distress and hurt caused to theapplicant by the publication, reparation for the harm done to the appellant’spersonal and (if relevant) business reputation and vindication of theappellant’s reputation. The first two purposes are frequently consideredtogether and constitute consolation for the wrong done to the appellant.Vindication looks to the attitude of others to the appellant: the sum awardedmust be at least the minimum necessary to signal to the public the vindicationof the appellant’s reputation. “The gravity of the libel, the social standing ofthe parties and the availability of alternative remedies” are all relevant toassessing 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 plaintiff’s reputation”.12 It is important, in this context, however to bear in

6 Defamation Act 2005 (Vic) s 34.7 The Herald and Weekly Times Limited v Popovic [2003] 9 VR 1, 76 [379]; Higgins v Sinclair [2011] NSWSC

163, [219].8 Patrick Milmo, W.V.H Rogers et al (eds), Gatley on Libel and Slander (Sweet & Maxwell, 11th ed, 2008)

1191 [34.53].9 Ibid.10 (1993) 178 CLR 44.11 Ibid 60-61 (Mason CJ, Deane, Dawson and Gaudron JJ).12 Ibid 77 (Mason CJ, Deane, Dawson and Gaudron JJ); Belbin v Lower Murray Urban and Rural Water


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 one’s 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 family’s 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

Corporation [2012] VSC 535, [357] (Kaye J).13 Defamation Act 2005 (Vic) s 9.14 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].15 Defamation Act 2005 (Vic) s 9(5).


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 youhave cause to download subsequent printings of the web?

MR JEFFREY: Initially, myself and the girls at the office were downloadingthings for our reference. After that, our consultant, Mr Kraan, continued it.

MR SOUTHALL: Did you discuss it with anyone outside the office, friends orfamily?

MR JEFFREY: I certainly discussed it with my immediate family and Icertainly would have discussed it with Tom.

MR SOUTHALL: Yes?

MR JEFFREY: People in the office certainly knew about it and it wasn’t


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 didit affect your daily life and your attitude?

MR JEFFREY: We had been going through a series of years of different casesabout the quarry and basically I’m a robust, loud quarry man.

MR SOUTHALL: Quarry man?

MR JEFFREY: Yes. You pointed out yesterday that I might even bleed – and Ican take a lot of criticism and we also deal with truck drivers and other peopleand 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 affectedTom, 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 wethought 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. I’ve certainly put a lot of weight on in the lastcouple of years. I’ve also had blood pressure tablets, I don’t sleep, an hourhere or an hour there. It affects my family. I’m certainly not as easygoing as Iused to be.

MR SOUTHALL: Is it your view that the appearance of the Quarry Fightwebsite in August 2011 and continuing certainly in the offensive parts untilFebruary 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


awarded requires some consideration of the extent to which any injury was caused by

the defamation.16 Mr Jeffrey’s 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 claimant’s physical health has been described as an unsettled question19

but, in any event, the evidence concerning the increase in Mr Jeffrey’s 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 Jeffrey’s 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 Curnow’s evidence

16 See Wheeler v Somerfield [1966] 2 QB 94, 104; Rigby v Mirror Newspapers Ltd [1963] 64 SR (NSW) 34, 36.17 Hughes v Mirror Newspapers Ltd [1985] 3 NSWLR 504, 509-510.18 Patrick Milmo, W.V.H Rogers et al (eds), Gatley on Libel and Slander (Sweet & Maxwell, 11th ed, 2008)

1190 [34.53].19 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, 45.20 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.


of his observations of any change in Mr Jeffrey’s physical condition after the

publications was:

Yes, he has, as he said earlier, he certainly has put weight on. I don’t believeI’m qualified to have an opinion as to what is the cause but he certainly is lessamenable 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 you’ve been taking us to court and we haven’t liked it but wehave had to fight to maintain our business, maintain our way of life. We havehad to continually fight, 40 days in VCAT you’ve 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 Curnow’s injury to his feeling was, in contrast, different from that

of Mr Jeffrey. Mr Curnow described his own reactions to the defamatory words as


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 explainthe basis on which general damages may be recovered in defamation actions;the idea sought to be conveyed by the metaphor was expressed by Lord Atkinin Ley v Hamilton as follows:

It is precisely because the 'real' damage cannot be ascertained andestablished that the damages are at large. It is impossible to track thescandal, to know what quarters the poison may reach: it is impossible toweigh at all closely the compensation which will recompense a man ora woman for the insult offered or the pain of a false accusation.

The “grapevine effect” may provide the means by which a court may concludethat a given result was “natural and probable”. However, this will dependupon a variety of factors, such as the nature of the false statement and thecircumstances in which it was published. The “grapevine effect” does notoperate in all cases so as to establish that any republication is the “natural andprobable” result of the original publication. This was what was meant by

21 (2001) 208 CLR 388.


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 phenomenonof life, operating independently of evidence”. As Heydon JA correctlyidentified, 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 theplaintiffs’ reputation, the Court is entitled to, and indeed should, take intoaccount the “grapevine” effect arising from the original publication of thedefamatory material by the defendant.

In Ley v Hamilton, Lord Atkin referred to that concept in discussing the mannerin which damages for defamation are to be assessed. His Lordship stated:

They are not arrived at … by determining the ‘real’ damage and addingto that a sum by way of vindictive or punitive damages. It is preciselybecause the ‘real’ damage cannot be ascertained, and established thatthe damages are at large. It is impossible to track the scandal, to knowwhat quarters the poison may reach … .

In Crampton v Nugawela, the plaintiff claimed damages for a letter presented bythe defendant to twenty-two doctors, who attended a meeting at the RoyalNorth Shore Hospital in Sydney. Mahoney ACJ, in considering the role ofvindication in the assessment of damages for defamation, stated:

In this regard, ‘the grapevine effect’ and the ‘lurking place’ observationof Lord Hailsham are relevant. The award must be sufficient to ensurethat, the damage having spread along the ‘grapevine’… , and being aptto emerge ‘from its lurking place at some future date’, it was ‘sufficientto convince a bystander of the baselessness of the charge’.

The importance of the “grapevine” effect is demonstrated in the recent decisionof Mullins J of the Supreme Court of Queensland in Prendergast v Roberts. Theplaintiff was a registered builder. The defendant entered into a contract withthe plaintiff to construct new premises for his company. The defendant hadbeen 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 plaintiff’s apprentice, andwith a subcontractor of the plaintiff, the defendant defamed the plaintiff byimputing that he is an incompetent and dishonest builder. On the question ofdamages, the defendant contended that the plaintiff had not proved any injuryto his reputation, since each of the three persons, to whom the defamatorystatements were made, expressly stated that the plaintiff’s reputation was notdiminished 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 seriousdefamatory statements could not fail to harm the plaintiff’s reputationwhen account is taken of the grapevine effect, particularly in a regional

22 Ibid 416 [88]-[89] (citations omitted).23 [2012] VSC 535.


centre when the defendant did not ensure that all persons were out ofhearing distance other than the party to the conversation… .

The “grapevine” phenomenon, referred to in those cases, is no more than therealistic recognition by the law that, by the ordinary function of human nature,the dissemination of defamatory material is rarely confined to those to whomthe matter is immediately published. In the present case, Mr Holding’s letterwas uploaded by the defendant onto a public website, albeit one which wasmost commonly accessed by customers of the defendant. Nevertheless, theletter was displayed by the defendant on a public website; it related to a matterof public concern and interest. In that way it was quite distinct from a privatecommunication, passed in confidence. As the authorities to which I have justreferred demonstrate, the law recognises that, in an ordinary society, membersof the community talk to each other about matters of public interest andconcern. In that way it is recognised and understood that the “poison” of alibel may spread well beyond the confines of the person to whom it wasimmediately published.

Of course, in determining whether there was any such effect arising out of thepublication of the defamation in this case, it must be borne in mind that therelevant “grapevine” effect must originate, or spring, from the provenpublication 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 letterwritten by Mr Holding had been previously published, both to the formercustomers of FMIT, and, also, to the general public by the Sunraysia Dailynewspaper, in September 2008.24

In this case, as in Belbin, there was evidence of the “grapevine” effect. Perhaps the

clearest example was a solicitor’s 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 Duvoisin’s 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).


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 mother’s 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:


MR SOUTHALL: Did you have any ability to verify those allegations? Didyou 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 couldn’t see anytruth in it, to be quite honest. I didn’t see the need for me to ring about it.

MR SOUTHALL: Did you have any knowledge – did it come to pass that youought to have in your mind when you should have gone down there as beingthe 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 didn’t impact on our association directly, soI saw no need to go down there.

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

When I read it, there’s two sides to every story but I found the problem with itthere was – I was looking, like the things that come to mind were the thingslike the road works or the planting of the trees I mean, there was nothing to tellme where it was. I just couldn’t relate – because my understanding of theindustry, if there’s an issue with things like dust or this issue with things likeroad works, the council would have been on their back fairly quickly to getthem to repair their work. My background is where I’ve worked in the past, ifthere’s an issue out there you get it repaired because road safety and thingslike that are so critical. I just had trouble sort of trying to come to grips withwhat she was saying when I read the article was really what was happening onthe site. It just didn’t make sense to me from knowing how the industry works,knowing how the regulators work as well, to think that they are slipping upand not doing what they are supposed to do by law just didn’t make sense tome.

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 Ithought you are leaving yourself wide open because it is a prettyserious 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


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 Bishop’s 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


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


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) David Jeffrey has admitted selling crushed rock through Casacir at aprice that is not justified having regard to the quality of the rock itself;

(b) each of David Jeffrey, Tom Curnow and Heath Curnow has andcontinues to engage in unlawful activities through Casacir, [having]ignored orders and directions of the tribunal;

(c) David Jeffrey has told you that the name Casacir stands for “crush anyshit and call it rock” and that this was ‘verbally’ confirmed by a plannerengaged by our Casacir [sic], Jack Kraan, at a VCAT hearing in 2008;

(d) Our clients as directors of Casacir have distorted facts and activelymislead [sic] the tribunal.

The letter went on to say:

In a previous version of this webpage posted on the internet in August 2011you raised allegations tending to support the suggestion that David Jeffreyhas 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


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


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) a lack of good faith;

(b) the existence of a collateral or anterior purpose; and

(c) 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 aggravatedcompensatory damages may be awarded in defamation if the defendant’sconduct aggravates the subjective hurt to the plaintiff. They cannot beawarded merely for reasons of indignation felt by the jury, but only if theevidence points to the conclusion that the blow to the plaintiff’s pride,however it may be called, has been or must have been worsened by what was

25 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, 71.26 [1977] VR 516.


done. Further, if these requirements are satisfied, there will remain someareas in which the defendant may be able to justify what he has done andescape the payment of increased damages.27

Aggravated damages, however, are not the same as exemplary or punitive damages:

Compensatory damages for aggravation to the plaintiff’s feelings can beawarded in defamation cases. They are not exemplary or punitive damagesand are awarded as compensatory damages. They are not awarded aspunishment; they are awarded to compensate the plaintiff for the increasedinjury 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 fides”29 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 conductof the defendant, from the time of publication of the defamatory matter to thetime of verdict or judgment.31

Secondly, aggravated damages are not a separate head of damages. As statedby Gillard AJA in Popovic, the court includes the amount for aggravateddamages in the compensatory damages awarded by it.32

Thirdly, an award of damages may only be made where the conduct of thedefendant is lacking in bona fides, or is improper or unjustifiable.33

Fourthly, damages may be aggravated by the manner in which, or the motiveswith which, the defamatory statement was made or persisted in.34

Fifthly, depending on the circumstances, a failure to apologise and expressregret can constitute improper or unjustifiable conduct.35 Ordinarily, it maybe difficult to establish that a mere failure to apologise, without more,aggravates damages in a particular case.36 However, in the context of otherfactors, by failing to publish a retraction or apology a defendant may be seen

27 Ibid 526 (Lush J).28 Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1, 77 [380] (Gillard AJA).29 Mirror Newspapers Limited v Fitzpatrick [1984] 1 NSWLR 643, 653 (Samuels JA).30 [2012] VSC 535, 115 [326] – [331].31 Praed v Graham (1889) 24 QBD 53, 55; Roberts v Bass (2002) 212 CLR 1, 103 [287] (Callinan J).32 Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1, 77 [385].33 Triggell v Pheeney (1951) 82 CLR 497, 514.34 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).35 Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1, 79 [399] (Gillard AJA).36 Carson v John Fairfax & Sons Ltd (1992) 178 CLR 44, 66 (Mason CJ, Deane, Dawson and Gaudron JJ).


to be continuing to assert the imputations published by it.37

Sixthly, ordinarily, aggravated compensatory damages are only awarded inrelation to the injury to the plaintiff’s feelings. However, there may beconduct by the defendant which has the effect of increasing the injury to thereputation 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 ismade for aggravated damages. The first is the oft-cited dictum ofLord Esher MR in Praed v Graham where his Lordship said —

[T]he jury in assessing damages are entitled to look at thewhole conduct of the defendant from the time the libel waspublished down to the time they gave their verdict. Theymay 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 ofwhat the High Court said in Triggell v Pheeney concerning aggravation:

... as improperly aggravating the injury done to theplaintiff, 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 defendant’s lack of good faith is demonstrated by the volume ofdefamatory material published by her on the quarry fight website, thefrequent and continued publication of that material, and the general natureand tenor of her publications on that website; and further by her motive tocause ongoing injury to the Casacir quarry operation, in order to pressureCasacir to acquire the Shapher land from Shapher, alternatively thedefendant, at an inflated price.

The defendant’s intention to pressure Casacir to acquire the Shapher land atan inflated price is evidenced by verbal and written communications betweenher and representatives of Casacir between approximately 2006 and 2010. Thewritten communications comprised letters sent from the defendant to theplaintiffs and/or their legal representatives on 16 August 2006, 14 April 2007,2 February 2010 and 26 August 2010, the contents of which are selfexplanatory and which are in the possession of the solicitor for the plaintiffsand available for inspection by prior appointment.

In a response to a request for further and better particulars, the plaintiffs provided the

37 Ali v Nationwide News Pty Ltd [2008] NSWCA 183, [83] (Tobias and McColl JJA).38 Waterhouse v Broadcasting Station 2GB Pty Ltd [1985] 1 NSWLR 58, 75 (Hunt J).39 [2013] VSC 226.40 Ibid [11] (citations omitted).


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 theparticulars to this paragraph, copies of which are in the possession of thesolicitor for the Plaintiffs and available for inspection by prior appointment.

On 16 August 2006, the Defendant wrote and asked the Plaintiffs tobuy the Shapher land for $800,000.

On 22 March 2007, the Defendant’s solicitors wrote and asked thePlaintiffs to buy the Shapher land for $850,000 plus GST if applicable.

On 14 April 2007, the Defendant wrote and asked the Plaintiffs to buythe Shapher land for $850,000.

On 2 February 2010, the Defendant’s solicitors wrote and asked thePlaintiffs to buy the Shapher land for $1,201,684.

On 26 July 2010 and 26 August 2010, the Defendant wrote and askedthe Plaintiffs to buy the Shapher land for $1,201,684.

(a) (ii)

A valuation prepared by Pilgrim and Butt Real Estate for the Plaintiffsdated 14 February 2007 valued the Shapher land at between $310,000and $325,000.

A valuation prepared by CJA Lee Property Valuers and Consultants forthe Defendant dated 31 July 2009 valued the Shapher land at $600,000.

A valuation prepared by Hay Property Group for the Defendant dated15 February 2010 valued the Shapher land at between $680,000 and$840,000.

(b)

In or around 2006 or 2007, conversations took place between the Firstand Second Plaintiffs and Mr Tom Callander, solicitor for theDefendant at the time, at the offices of Mr Callander, in relation to theDefendant’s request that the Plaintiffs buy the Shapher land.

In or around 2008, while at the Victorian Civil and AdministrativeTribunal, the Defendant asked the First Plaintiff to buy the Shapherland.

On a subsequent occasion, the Defendant asked the Second Plaintiff tobuy the Shapher land while in his office.

The Defendant subsequently asked the First Plaintiff to buy the Shapherland while on a site inspection at the Casacir quarry land on anoccasion.

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) mitigation of damages,

(b) the circumstances of the publication, or

(c) 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


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


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 couldbuild a house on a boundary to try and impact buffer zones. The house wason 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


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 Callander’s letter of 22 March 2007 which explained the basis for the calculation

and the client’s 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 Boer’s 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 Curnow’s 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 Curnow’s 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 – propersworn valuer who values for banks, for councils, for businesses. He’s a wellrespected person and yet you said that his valuation is not acceptable becauseit’s inflated?

MR CURNOW: Correct, and I used the example I gave as an example. I don’tknow the man or challenge his credentials at all but a valuation from a swornvaluer does not make it a sworn valuation unless it is a sworn valuation andthat’s what we were asking for.

MRS GILES: It was a sworn valuation. It was a sworn valuation. We actuallyput an offer to you to say, two sworn – two qualified, fully qualified valuersto give sworn valuations and you said no, you insisted on it being bankvaluers which are going to give a lower valuation purely and simply becausethat’s 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. Thevaluers in question and probably the one Mrs Giles is referring to is probablyon bank panels. The reason we put the $50,000 on top is because a swornvaluation is one that the valuer’s reputation assures us that that is what youwould get if you sold the property and certainly it won’t be inflated and weallowed an extra $50,000 on top of that to be reasonable. Had you beenserious you perhaps could have come back and said, “Well, why not allow$100,000 on top of it?”

MRS GILES: We did.

MR CURNOW: I’m 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 itwas not accepted by you.


MR CURNOW: Was that in writing?

MRS GILES: Yes, it is.

MR CURNOW: I’m unaware of it.

MRS GILES: I won’t take up the court’s time right now but if I can Mondaygive it or I can do it sort of when we have finished. It will only take me a fewminutes 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 I dwell upon this matter because it is significant to the plaintiffs’ claim for aggravated

41 Country Endeavours Pty Ltd v Baw Baw Shire Council [2011] VCAT 147.42 Country Endeavours Pty Ltd v Baw Baw Shire Council (No. 8) [2011] VCAT 2403.


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.


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 theplaintiffs to comply with their planning permission and work authorityconditions, then we felt we had to take action because the dust was pouringoff the site and impacting us, the water was getting polluted, and the noisewas horrendous. Mr Byard, the [VCAT] member, said that – because weoriginally tried – this is under our cancellation application – and he said topull the – it was more appropriate to pull out the conditions – the breaches oralleged breaches and to put them into an enforcement application. Over aperiod of time he actually told us that no less than five times. That’s what wedid. What we’re hoping to achieve with the website, or what was I hoping toachieve: I was hoping to notify people who were in a similar situation. Iwished that I had had somebody who had told me that, if you’re in an areathat could be subject to a quarry, a wind farm, anything like that, these are thesorts of things you need to watch out for, these are the things that authoritiescan overlook; they can ignore, they can pretend don’t happen. This is what acompany – it just happens to have been the company of the plaintiffs – this iswhat a company is willing to do or not to do as the case may be, this is whatthe tribunal will look at and overlook, so I was trying to give a perspective topeople who might be in a similar situation to us. I wasn’t being malicious onthe web – I wasn’t trying to be malicious on the website in having it, it wasjust purely a forum to log what the current situation was on a time-relativebasis.

…

I wasn’t trying to impact or stop the quarry by the website, I was just trying tonotify people, and there were people in the Neerim North area who wereinterested in what was going on at the quarry. Not everybody was feelingcomfortable in driving around the outside and looking at it. Some of thoseexpressed to me that they were so stressed that they found it difficult. That’shearsay 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.


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 howsoeverotherwise, reinstate the website quarryfight.com or other internet siteconcerning either Mr Jeffrey or Mr Curnow personally and I provide thefollowing apology:

There was never any intention to defame Mr Jeffrey or Mr Curnow and I givean unqualified apology for any hurt, humiliation, injury, embarrassment,concern or loss of reputation they have or feel they have suffered as a result ofthe 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].


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

complaint was made of their existence. There was no sufficient justification in

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.

jeffrey & anor v giles [2013] vsc 268

Documents

plaintiffs mr

proceeding mr jeffrey

plaintiffthomas curnow

plaintiffs distinction

plaintiffs injury

aggravated damages

quarry fight website

perjury damages