Supreme Court New South Wales

• Medium Neutral Citation: Ritson v Burns [2014] NSWSC 272
• Hearing dates: 7 August 2013
• Decision date: 20 March 2014
• Before: McCallum J

Decision

Judgment for the plaintiff in the sum of $7,500

• Catchwords: DEFAMATION - damages - publication to one person - considerable hurt to feelings
• Legislation Cited: Defamation Act 2005; Privacy and Personal Information Protection Act 1998; Uniform Civil Procedure Rules 2005
• Cases Cited: Ali v Nationwide News Pty Ltd [2008] NSWCA 183; Cassell & Co v Broome [1972] AC 1027; Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44; Clark v Ainsworth (1996) 40 NSWLR 463; Crampton v Nugawela [1996] NSWSC 651; (1996) 41 NSWLR 176; The Herald And Weekly Times Ltd v McGregor [1928] HCA 36; [1929] VLR 215; (1928) 41 CLR 254; Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419; Ritson v Gay & Lesbian Community Publishing Limited [2012] NSWSC 483; Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327; Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497
• Category: Principal judgment
• Parties: Brendan Ritson (plaintiff); Gary Burns (second defendant)
• Representation: Counsel: W R Potter (plaintiff); No appearance for the second defendant; Solicitors: Mitchell Lawyers (plaintiff); No appearance for the second defendant
• File Number(s): 2011/417650
• Publication restriction: None

Judgment

1 HER HONOUR: This is an action for defamation brought by Mr Brendan Ritson against Mr Gary Burns in respect of a single comment made by Mr Burns to a third person. Mr Ritson is a former policeman. In his pleadings, he describes Mr Burns as "a self proclaimed 'gay rights activist'".

2 Mr Burns has taken no part in the proceedings. As a result, default judgment was entered against him by the Registrar on 1 February 2013 for damages to be assessed. This judgment assesses those damages.

Circumstances in which the claim is brought

3 Mr Ritson's pursuit of a claim in this Court in respect of a single comment made to one person warrants some explanation.

4 The claim against Mr Burns is the only remaining part of proceedings brought by Mr Ritson against a number of defendants in respect of several defamatory publications. Some of those claims were settled by agreement. Others were struck out by Beech-Jones J: see Ritson v Gay & Lesbian Community Publishing Limited [2012] NSWSC 483. The present claim was added by leave granted by his Honour in that judgment (at [73] and order 2(ii) of the judgment).

5 Mr Ritson was a police officer with the New South Wales Police Force. As at 24 September 2006, he was stationed at Surry Hills Police Station. An allegation was made that he and another police officer provided confidential information to a person in custody at that police station to the effect that the person's partner was transgender. Mr Ritson was charged with an offence under the Privacy and Personal Information Protection Act 1998 on the basis of that allegation.

6 On 7 April 2009, Mr Ritson was convicted of that offence in the Local Court and sentenced to 125 hours of community service. As a consequence of the conviction, he was suspended from duty without pay. However, following a successful "hardship application", part of his salary was reinstated.

7 Those events were the subject of the several defamatory publications which Mr Ritson later attempted to sue on. In the main, the publications were made by individuals or organisations with an interest in lesbian, gay, bisexual and transgender rights. The focus of the comments was that Mr Ritson was still receiving a portion of his wage notwithstanding his conviction of the offence of revealing confidential information that the person in question was transgender. The defamatory publications on which Mr Ritson sought to sue included emails allegedly sent by Mr Burns to senior officers within the New South Wales Police Force.

8 Mr Burns had previously written about Mr Ritson in glowing terms. In 2002, he wrote to the Commissioner of Police as follows:

It's once again a great pleasure to be writing to you about the fine upstanding work ethic of one of your young Probationary Constables Brendan Ritson. Constable Ritson is attached to Surry Hills LAC. This young man is a striking individual, who will look you straight in the eye. His honesty shines in his face like a beacon. I really like this young man.

I think it's very important to take an interest in our young police officers, and for me it's good to watch them mature and grow in confidence, as Constable Ritson is.

So Commissioner your job is not safe - cause there are young men like Constable Ritson who will fit into your shoes very easily one day.

Sir, he is a great young fella, doing a grand job - for you and for me. So next time you're in Surry Hills LAC put out your hand and shake the hand of a man destined for leadership. Constable Ritson, you're a fine Australian.

May Constable Ritson's life be blessed with many great journeys and policing future and happiness.

9 Mr Burns' opinion of Mr Ritson evidently changed.

10 On 30 July 2010, Mr Ritson's appeal against conviction was upheld in the District Court and his conviction was quashed. Mr Ritson gave evidence of a conversation in which he informed Mr Burns of the outcome of the appeal. In that conversation, Mr Burns indicated that he was aware the conviction had been overturned.

11 Mr Ritson retired from the New South Wales Police Force on 11 March 2011. His retirement was not connected with any misconduct (see exhibits A and B). He commenced these proceedings on 30 December 2011 against four defendants (including Mr Burns) claiming damages for defamation and for breach of confidence (relating to the disclosure of information about his hardship application). As to a number of the publications, however, the proceedings fell outside the limitation period and the claims were struck out.

Defamatory publication

12 Mr Ritson engaged a process-server, Mr Mark Slater, to effect service of the original statement of claim upon Mr Burns. On 17 January 2012, Mr Slater telephoned Mr Burns to obtain his residential address. Upon being informed of the nature of the call, Mr Burns stated:

"Brendan Ritson is a criminal."

13 That is the defamatory publication complained of in these proceedings. The full statement made was "Brendan Ritson is a criminal. I'm not going to give you my address; you can go and serve Santa Claus." As already noted, Beech-Jones J granted leave to amend the pleading to include a claim for that publication.

14 In due course an order was made for substituted service (not in the manner suggested by Mr Burns to Mr Slater). The further amended statement of claim was served on 25 September 2012 in accordance with that order. The following day Mr Burns wrote to Mr Ritson's solicitor stating that he would not be filing a defence. Although not required by any order of the Court, the solicitor subsequently gave notice of the assessment hearing by letter sent to the same address.

Principles applicable to the assessment of damages

15 Mr Ritson claims general damages including aggravated damages. There is no claim for economic loss. Damages must be assessed on a premise consistent with the fact that judgment has been entered following Mr Burns' failure to defend the claim. The only remaining task is to quantify the damages having regard to the evidence before the Court.

16 In determining the amount of damages to be awarded, I am required to ensure that there is an appropriate and rational relationship between the harm sustained by Mr Ritson and the amount of damages awarded: s 34 of the Defamation Act 2005. The maximum amount of damages that may be awarded for non-economic loss is $355,500.00: s 35 of the Act; Gazette No 65 of 31.5.2013, p 2307.

17 As explained by the High Court in Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44, an award of general damages for defamation serves three purposes (at 60 per Mason CJ, Deane, Dawson and Gaudron JJ, citations omitted):

The three purposes no doubt overlap considerably in reality and ensure that "the amount of a verdict is the product of a mixture of inextricable considerations". The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant's personal and (if relevant) business reputation and vindication of the appellant's reputation. The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant. Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant's reputation.

18 The assessment of damages must be informed by a consideration of the circumstances of the publication and the imputations it conveyed. The publication in this instance was the comment, "Brendan Ritson is a criminal." It carried the obvious imputation that Mr Ritson is a criminal. No other imputation was relied upon.

19 This was a publication of the most limited scope. It was spoken to only one person. Mr Potter, who appeared for Mr Ritson, fairly conceded that the defamation accordingly falls at the lower end of the scale. He explained that the proceedings had already been commenced in this Court in respect of publications of much wider scope when the present claim was added.

20 Whilst the scope of the publication was very narrow, the imputation was a serious one. To be accused of having acted outside the law is among the most serious of allegations that could be levelled at a police officer (whether currently serving or not). As already explained, the circumstances in which the remark was made included a broader context of events which inform an understanding of Mr Ritson's extreme reaction to the remark.

Hurt to feelings

21 Mr Potter characterised this as a "hurt feelings case." Whilst the impact of the defamatory statement on Mr Ritson's reputation is not irrelevant, it is apparent that the need to provide consolation for the personal distress caused to him is very much at the forefront of this assessment.

22 In determining the amount of damages necessary to provide consolation for personal distress and hurt caused by a defamatory publication, the Court must have regard to the subjective response of the plaintiff to the publication in question: Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327 at [81] per Hayne J (Gleeson CJ and Gummow J agreeing); Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [102] per Tobias and McColl JJA; Basten JA dissenting.

23 Rogers was a case in which, as here, the degree of hurt and distress experienced by the plaintiff was exacerbated by the fact that the matter complained of repeated an allegation in respect of which he had fought hard to clear his name. Dr Rogers had been found negligent for failing to warn his patient of a risk but he had not been found to have been negligent in the exercise of his considerable medical skill. The defamatory publication was to the effect that he had negligently blinded a patient, which was quite wrong.

24 The High Court held that the Court of Appeal had fallen into error in taking no account of the plaintiff's subjective response in that circumstance (at [81] per Hayne J; Gleeson CJ and Gummow J agreeing at [35]). In a separate judgment, Callinan J noted (at [141]) that punitive damages are not available in defamation, adding "but that does not mean that damages properly assessed as compensatory do not have the salutary effect of deterring a repetition of hurtful and ill-considered defamatory matter in the future". Heydon J agreed with Callinan J (at [174]).

25 Mr Ritson gave compelling evidence of the hurt he experienced upon learning of Mr Burns' comment to Mr Slater. He said (T12.36-50):

It disgusted me. It was very hurtful and it did cause me significant distress that Mr Burns was persisting with making defamatory comments about me. I'd fought for several years to clear my name and successfully did so. At the time [presumably a reference to the time of the original allegation] I was a serving police officer and to be called a criminal is extremely hurtful, and I consider myself to be a person of integrity and honesty, and to be called a criminal is a very significant blow and it was frustrating and caused me some significant stress, especially given the fact that the comments were made after having already commenced proceedings against Mr Burns for other defamatory matters or comments. For him to be persisting with calling me a criminal and words to that effect was concerning because I didn't know at which point it would stop and if he would stop."

26 It may be accepted that, to some extent, the personal distress deposed to by Mr Ritson is likely to have arisen as a consequence of the history of events set out above, including not only Mr Burns' earlier comments but also the adverse media attention Mr Ritson received. Those events undoubtedly compounded and exacerbated the distress experienced by Mr Ritson in response to the matter complained of. That context cannot be disregarded. As explained by Hayne J in Rogers (at [80]-[82]), context plays a significant role in a person's subjective response to defamatory material. That is very much a relevant factor in the present case. Mr Burns is required to take the plaintiff as he finds him: Ali at [77].

27 I am satisfied that Mr Ritson was extremely hurt by the defamatory remark that he is a criminal.

Harm to reputation

28 A plaintiff in a defamation action is presumed, in the absence of evidence to the contrary, to come to Court with a good or untarnished reputation.

29 The law places a high value on a person's reputation, especially where that person's work and life depend upon their honesty, integrity and judgment: Crampton v Nugawela [1996] NSWSC 651; (1996) 41 NSWLR 176 at [195D] per Mahoney A-CJ (Handley JA and Giles A-JA agreeing). That principle is plainly applicable in the case of a retired police officer.

30 Some evidence was adduced as to Mr Ritson's reputation during his career as a police officer. Mr Ritson tendered a letter from the Assistant Commissioner of the New South Wales Police Force acknowledging some of his achievements and thanking him for his service. The letter noted investigations undertaken into Mr Ritson's conduct arising from the events summarised above and conceded that "a number of those investigations, and the communications with you about them, were not satisfactory in many respects." Mr Ritson also relied upon the letter written by Mr Burns set out above. I am satisfied that the evidence portrays Mr Ritson as a competent, honourable police officer who acted with integrity.

31 Mr Ritson also gave evidence that he has been working as a commercial agent since retiring from the police force. Mr Slater, the recipient of the defamatory publication in this case, also worked in that industry. I have had regard to the possibility that Mr Ritson's reputation in that industry could be adversely affected by the imputation that he is a criminal. That is obviously mitigated by the fact the publication was made to a single person.

32 As already noted, Mr Burns did not defend the present claim. Accordingly, there was no evidence contradicting the evidence summarised above, nor was there any evidence or submissions seeking to confine the assessment of likely harm. As conceded by Mr Potter, this was not a case involving any great damage to reputation. The award must nonetheless serve to vindicate Mr Ritson by operating to "convince a bystander of the baselessness of the charge": Cassell & Co v Broome [1972] AC 1027 at 1071. It follows that, even in the case of a publication of very limited circulation, an award of damages in respect of a serious imputation should not be derisory.

Aggravated damages

33 Mr Ritson claims that his damages are aggravated by the following matters:

(a) Mr Burns' knowledge of the falsity of the imputation; and

(b) Mr Burns' failure to apologise or retract the allegation.

34 Care must be taken in considering the first matter. The publisher's state of mind at the time of publication must be disregarded except to the extent that it affects the harm sustained by the plaintiff: s 36 of the Act.

35 As already noted, Mr Ritson gave evidence of a conversation he had with Mr Burns after his conviction was overturned. He said to Mr Burns:

Gary, you're aware that I was acquitted of the criminal charge?

36 Mr Burns responded:

Yes, I'm well aware.

37 Mr Ritson thought that conversation had taken place some time between 30 July 2010 and early November 2010.

38 Mr Ritson gave specific evidence that the remark made by Mr Burns to Mr Slater was very hurtful to him in circumstances where he was aware that Mr Burns had that knowledge. On that basis, I am satisfied that Mr Ritson's awareness that Mr Burns knew what he was alleging was not true was a source of great personal distress to Mr Ritson and exacerbated the harm sustained by him.

39 In respect of the second ground, a failure to apologise is not in itself a factor warranting additional compensation. It is necessary to consider whether the failure to apologise prolonged and intensified the hurt experienced by Mr Ritson: The Herald And Weekly Times Ltd v McGregor [1928] HCA 36; [1929] VLR 215; (1928) 41 CLR 254 at [263] per Knox CJ, Gavan Duffy and Starke JJ; Clark v Ainsworth (1996) 40 NSWLR 463 at [468] per Sheller JA, [474] per Abadee AJA; Ali at [82] per Tobias and McColl JJA.

40 Mr Potter acknowledged that, to warrant an award of aggravated damages, the failure to apologise must form part of a course of conduct that was lacking in bona fides, was improper or was unreasonable: Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497 at [514] per Dixon, Williams, Webb and Kitto JJ; McTiernan J agreeing; Ali at [79] per Tobias and McColl JJA.

41 Mr Ritson relied on the contents of an email sent to his solicitor by Mr Burns (exhibit E). The email was evidently sent shortly after Mr Burns had received a copy of the judgment of Beech-Jones J referred to above. As already noted, that judgment granted leave to Mr Ritson to amend his statement of claim to include the present claim (at [73]). The letter appears to have been intended, among other things, to explain Mr Burns' response to that claim. It concluded with the following remarks:

Your client Mr Ritson is a deceitful and contemptuous little grub.

Did you know Grubs crawl close to the ground Sir?

Your client Mr Ritson can go and get stuffed.

42 Mr Ritson gave evidence, which I have no difficulty in accepting, that those remarks were very distressing to him and caused him frustration because he had made it clear to Mr Burns that he was trying to vindicate his reputation through these proceedings. I am satisfied, having regard to the terms of Mr Burns' email, that his failure to apologise in fact intensified the hurt experienced by Mr Ritson.

Conclusion

43 The imputation carried by the words spoken by Mr Burns was highly defamatory. However, the publication was confined to a single person. The overriding aspect of this assessment has been the need to provide consolation for the significant hurt to feelings experienced by Mr Ritson but vindication of reputation is not irrelevant. It is necessary to include in the damages a measure of aggravation for the increased hurt caused by the plaintiff's knowledge that the defendant had been informed of the falsity of the imputation and his truculent response to the claim. In all the circumstances, I consider that the sum of $7,500 is an appropriate award.

Interest and Costs

44 The plaintiff claims interest on the whole damages sum up to the date of judgment at the rate of 3%, relying on the principles summarised in Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 from [1540]. It is difficult in the circumstances of the present case to determine what rate is appropriate over that period. The damage to reputation was limited; the hurt to feelings ongoing. One of the factors that aggravated that hurt came late during the relevant period. Having regard to the principles stated in Marsden, I consider that the appropriate course is to award interest at 2% for the period of one year, being the approximate period between the date of publication and the date on which default judgment was entered. The sum of $150 will be added to the judgment to reflect that calculation.

45 The plaintiff also seeks costs on an indemnity basis in accordance with s 40(2) of the Defamation Act. That section provides:

(2) Without limiting subsection (1), a court must (unless the interests of justice require otherwise):

(a) if defamation proceedings are successfully brought by a plaintiff and costs in the proceedings are to be awarded to the plaintiff--order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the defendant unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff, or

(b) if defamation proceedings are unsuccessfully brought by a plaintiff and costs in the proceedings are to be awarded to the defendant--order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the plaintiff unreasonably failed to accept a settlement offer made by the defendant.

46 As already indicated, I consider that the contents of Mr Burns' email set out above were unreasonable and that that is a factor which aggravates the damages to be awarded. However, it does not necessarily follow that Mr Burns' failure to make a settlement offer was unreasonable. That is an element of which I must be positively satisfied before s 40(2) applies. In the absence of any direct evidence on that issue, I cannot be satisfied in those terms.

47 I also consider that the scope of the publication did not warrant the prosecution of a claim in this Court. That is a factor which weighs, in the interests of justice, against an award of indemnity costs.

48 It is the usual course that costs follow the event. The plaintiff having been successful, the defendant should pay his costs of the claim pleaded in paragraphs 23AA to 24 and 26 of the further amended statement of claim as agreed or assessed on the ordinary basis. The defendant will not be required to pay the plaintiff's costs in respect of the claim against him that was struck out by Beech-Jones J.

Orders

49 The orders are:

(1) the plaintiff's damages are assessed in the sum of $7,500.

(2) that judgment be entered for the plaintiff in the sum of $7,650 including interest in the sum of $150.

(3) that the defendant pay the plaintiff's costs of the claim pleaded in paragraphs 23AA to 24 and 26 of the further amended statement of claim as agreed or assessed on the ordinary basis.

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Decision last updated: 20 March 2014