Supreme Court New South Wales Medium Neutral Citation: Nicholas Polias v Tobin Ryall [2014] NSWSC 1692 Hearing dates: 07 October 2014 - 10 October 2014 Decision date: 28 November 2014 Before: Rothman J Decision: (1)Judgment for the plaintiff; (2)The first defendant shall pay the plaintiff damages in the sum of $125,000; (3)The second defendant shall pay the plaintiff damages in the sum of $130,000; (4)The third defendant shall pay the plaintiff damages in the sum of $50,000; (5)The fourth defendant shall pay the plaintiff damages in the sum of $35,000; (6)The parties have liberty to address on interest and costs on a date to be set; (7)The plaintiff to provide a Short Minutes of Order to reflect judgment in accordance with these reasons within 14 days of the date hereof. Catchwords: DEFAMATION - allegation of theft - only issue was substantial truth - factual determination - no issue of principle Legislation Cited: Defamation Act 2005 Cases Cited: Ali v Nationwide News Pty Ltd [2008] NSWCA 183 Amalgamated Television Services v Marsden (1998) 43 NSWLR 158 Associated Newspaper v Dingle [1964] AC 371 Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 Chappel v Mirror Newspapers Ltd (NSWCA 14 June 1984, unreported) Crampton v Nugawela (1996) 41 NSWLR 176 David v Abdishou [2012] NSWCA 109 Dow Jones & Co Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575 Haddon v Forsyth [2011] NSWSC 123 Holt v TCN Channel Nine Pty Ltd [2014] NSWCA 90; (2014) 86 NSWLR 96 Ley v Hamilton (1935) 153 LT 384 Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; (2001) 208 CLR 388 Phillips v Robab [2014] NSWSC 1520 Rastogi v Nolan [2010] NSWSC 735 Reader's Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500 Category: Principal judgment Parties: Nicholas Polias (Plaintiff) Tobin Ryall (First Defendant) Andy Hun Wei Lee (Second Defendant) Sandy Jan (Third Defendant) Rhys Gould (Fourth Defendant) Representation: Counsel: S. Chrysanthou/with B. Regener (Plaintiff) M. Rollinson (First, Second, Third and Fourth Defendants) Solicitors: Kalantzis Lawyers (Plaintiff) Phoenix Attorneys (First Defendant) BPH Legal (Second and Third Defendants) File Number(s): 2013/161335 Publication restriction: None Judgment 1HIS HONOUR: The plaintiff sues four defendants for damages arising from allegedly defamatory material in eight publications. Three publications relate to words said and the remainder relate to comments on Facebook. 2Each of the defendants are alleged to have published different matters, some defendants allegedly having published more than one. It is therefore necessary to deal with the allegation against each defendant separately. Before doing so, it is necessary to note that the plaintiff and each of the defendants are poker players. The plaintiff attended a poker tournament in Las Vegas with the first defendant and others. The issues of fact in these proceedings revolve around an event that occurred in Las Vegas, and one later incident in Sydney. 3Without, at this stage, determining the truth of any allegation, it is sufficient to note that the plaintiff perceived that he was being vilified amongst the poker playing fraternity with which he mixed and sought to explain the events in Las Vegas so that people would understand the truth, from his perspective. 4The explanation of the plaintiff was by him published on Facebook. Responses, some of them quite short, were posted and other comments made on Facebook, which give rise to all of the "written" defamatory publications. Similar imputations were made orally and give rise to the allegations of slander on which these proceedings depend. 5The former distinction between libel and slander has been abolished and, in New South Wales, had been abolished at least since 1974. The historic difference between libel and slander was not quite as simple as the difference between written and published words, on the one hand, and spoken words on the other. There are various historical reasons why the distinction was more complex. Those historic reasons are currently irrelevant to any issue in the proceedings. Material that is defamatory, whether oral or written, is governed by the Defamation Act 2005. 6Leaving aside issues of publication, whether the words were spoken, and whether the words written or spoken were defamatory, which did not form a substantial aspect of the proceedings, the only pleaded "defence" is that the statements, in each case, were true. There are no issues in these proceedings of qualified privilege or contextual truth raised by any of the defendants. As a consequence, the major issue that the Court must determine is whether the allegations made by each of the defendants were true and, if not, to assess an appropriate level of damage. Publications (Written and Oral) 7As earlier stated, the plaintiff, because of rumours of which he had heard, published an explanation of the events in Las Vegas. That publication, which occurred on Facebook, was the subject of later comment. The second defendant published a comment on 31 July 2012 ("the first matter complained of"), which, it is alleged, carries the following imputations: (1)The plaintiff is a thief; (2)The plaintiff tried to steal money from Tolly; (3)The plaintiff is a person who bends facts to deny the fact that he is a thief. 8The "Tolly incident" was an incident that was said to have occurred after the plaintiff returned from Las Vegas. It related to a poker game played at The Star Casino in Sydney, in which the plaintiff obtained change for a gambling chip in circumstances where it is alleged the plaintiff sought to short-change the winner of the just completed poker hand. 9Shortly after the post on Facebook (the total Facebook thread is approximately 15 pages in length) the first defendant posted a comment in which it is alleged he imputed that the plaintiff was a person who distorts the truth to deny the fact that he is a thief; the plaintiff is a person who manipulates people to deny the fact that he is a thief; the plaintiff habitually lies to deny that he is a thief; and the plaintiff is a person who steals (the second matter complained of). 10The third matter complained of was a posting on the same Facebook page and in the same thread dated 3 August 2012 and published by the first defendant. In that posting, the first defendant is said to have imputed that the plaintiff told untruths to deny the fact that he is a thief; the plaintiff tried to get away with stealing money; and the plaintiff, having been caught taking $2,000 that belonged to the first defendant, gave implausible explanations in an attempt to get away with trying to steal money. 11The fourth matter complained of was another posting by the second defendant this time his Facebook "wall" rather than in the thread, on 22/23 January 2013 in which the second defendant, it is said, imputed that the plaintiff is a thief; and the plaintiff has a tendency to steal. 12The fifth matter complained of was a posting on the same Facebook page, again by the second defendant, on the same date as the fourth matter complained of, the imputations in which are said to be the same as the imputations in the fourth matter complained of. 13The sixth matter complained of is an oral publication, again by the second defendant, this time in August 2012 and, for obvious reasons, not on the Facebook thread. The imputations said to arise from the sixth matter complained were that the plaintiff is a thief in that he stole $2,000 of the first defendant's money from a room in "Vegas"; and the plaintiff lied when he denied the fact that he is a thief. 14The seventh matter complained of was another oral publication, this time by the third defendant, also in August 2012, which is said to impute that the plaintiff stole money from the first defendant when the plaintiff and the first defendant were in Las Vegas; the plaintiff is a thief; and the plaintiff denied the fact that he is a thief. 15The eighth matter complained of was another oral publication, this time said to be by the fourth defendant, in which the fourth defendant is said to have imputed that the plaintiff stole money from the first defendant when the plaintiff and the first defendant were in Las Vegas, and the plaintiff is a thief. 16Evidence was given by the plaintiff and each of the defendants. There were two relevant incidents, the truth of which are matters for the Court, although the difference between the version of primary facts in relation to each incident is within an extremely small compass. Las Vegas 17In the middle of 2012 (either late June or early July) the plaintiff and the first defendant, with others, travelled to Las Vegas to participate in a poker tournament. The plaintiff and first defendant stayed in the same room for the entire period during which they were in Las Vegas. They moved hotels, but for the entire time that each of the pair was in Las Vegas, each was in the same room as the other. 18Apparently, the security safe in their room was not working and it was agreed that the plaintiff could hide his cash in a soft toy that had been purchased by the first defendant. The only issue in the foregoing was whether the first defendant also hid money in the soft toy. 19Whether or not the first defendant hid money in the soft toy, the soft toy contained a significant amount of money. The soft toy was hidden in the hotel room. 20Also uncontroversial, in the context of these proceedings, was the fact that the first defendant had little or no money remaining after about the first week that he and the plaintiff were in Las Vegas. It matters not how this circumstance occurred. It is sufficient to remark that it was either because money was lost at the poker table or because some monies that were supposed to be transferred were not, or a combination of the two. 21As a consequence of the shortage of cash, the plaintiff lent the first defendant money for gambling and living expenses. Apparently, the first defendant recorded the amounts (in his head) and, on one version, perhaps on his mobile phone. The first defendant denies ever having hidden cash in the soft toy. The plaintiff alleges that the first defendant did hide monies in the soft toy, at least when he had money. 22On the evidence before the Court, by 22 and/or 23 July 2012, the first defendant had no substantial amounts of his own cash in his possession. 23Also in Las Vegas for the poker tournament was an acquaintance of the plaintiff and first defendant, Mr Tommy Yi. In the first or second week of July (on all accounts on 9 July 2012), Mr Yi borrowed $2,000 from the plaintiff, in order to bankroll his gambling. Apparently, there were difficulties associated with wire transfers from Australia to Las Vegas, which difficulties affected the plaintiff and the first defendant as well. These difficulties affected the timing and amount of money Mr Yi had available to him, hence the request for a loan. 24A few days later, on the evidence I accept, Tommy Yi gave $2,000 to the first defendant in order to give the money back to the plaintiff. Apparently, the first defendant returned to the room he shared with the plaintiff and put the $2,000 on a dressing table. 25The next morning the $2,000 was not on the dressing table. The foregoing account glosses over a number of discrepancies that are indirectly relevant to the issues in this trial. 26That evening, being the evening of the day on which the first defendant noticed the money was not on the dresser, a conversation occurred between the first defendant and the plaintiff during which the fact that money was left on the dressing table was mentioned. During this conversation, the plaintiff had no recollection of taking or moving the money. 27The plaintiff and first defendant returned to their hotel room, calculated the amount of money that should be in the room and searched for the $2,000. A count was taken of the money in the soft toy and there was $2,000 more than the plaintiff should have had in his possession, as a consequence of which each of the plaintiff and the first defendant concluded that the $2,000 had been put in the soft toy. 28There are some matters that need to be clarified. The allegation of "theft' related to the $2,000. It was never suggested, during the conduct of these proceedings, that the $2,000 was missing, except perhaps in the sense that it was not on the dressing table. 29The first defendant's recollection was that the $2,000 had been left, by him, on the dressing table and the conclusion was that it had been moved into the soft toy. The plaintiff's understanding was that he had no recollection of where the money was left (and was not present when it was said to have been put on the dressing table) but he accepted that it was the money Mr Yi had paid to him and that money was in the soft toy. 30The plaintiff was prepared to accept that he may have moved the $2,000 from the dressing table to the soft toy, without realising or recollecting that event and did not allege that any monies were missing. 31It seems that the allegation of "theft" arises from an interpretation of the conversation between the plaintiff and the first defendant at the casino when the first defendant informed the plaintiff that the $2,000 had been left on the dressing table and was no longer there. The first defendant, it seems, took the response of the plaintiff that he had no recollection of seeing the money as an attempt to obtain again the $2,000 he had already taken. I hasten to add that the first defendant never asserted that belief either to the plaintiff, in Court or at any other time. 32It is necessary to deal with the ownership of the $2,000 and the terms of the conversation between the plaintiff and first defendant, which gave rise to their search for the $2,000 said to have been left on the dresser. Before analysing those circumstances, it is necessary to deal with the credit of the witnesses. I will deal with the plaintiff last. Credit of Witnesses 33I will deal with the evidence of the defendants, before dealing with other witnesses and then the plaintiff. 34Tobin (Toby) Ryall is the first defendant. His demeanour and attitude in the witness box was undeniably one that would lead any person observing it to the view that he was deliberately prevaricating, dissembling and lying. His attitude was to try and hide behind what he said was a lack of recollection, but this recollection was obviously disingenuous. His answers to questions made fine, unreasonable distinctions in language and his answers were inaccurate or untruthful. 35His version of events in evidence and in the statement in the proceedings, to the truth of which he attested in oral evidence, were inconsistent, in a significant respect to the contemporaneous note written by him and tendered as Exhibit W. It was inconsistent in at least the following respects: how the conversation between Mr Ryall and the plaintiff commenced; the fact (if it be different from the first item) that the plaintiff raised the issue of the money owing with Mr Yi, who informed the plaintiff that the money had been given to Mr Ryall; whether the plaintiff was in the room at particular times when, in oral evidence, Mr Ryall insisted the plaintiff was there and other matters. 36Further, Mr Ryall also gave evidence about the placement of a "do not disturb" sign which does not accord with the proposition that the plaintiff was in bed, asleep, when Mr Ryall left the room the next morning after placing the money on the dresser. There was also a significant issue as to the time when the money was left on the dresser, i.e. which day/night and whether it was before or after the plaintiff's second tournament day. The later version, given for the first time by Mr Ryall in oral evidence in cross-examination, was never put to the plaintiff. 37Mr Ryall admitted in cross-examination that he affirmed a false affidavit, being the affidavit verifying his defence to the Amended Statement of Claim. He also admitted affirming two false interrogatories as to the identification of the plaintiff in the fourth and fifth matters complained of (interrogatories 17 and 23 admitted as Exhibit X). These are criminal offences committed, on Mr Ryall's evidence, with the intention of improving, illegitimately, his prospects in these proceedings. 38During the course of his examination, the first defendant suggested that the conversation about the $2,000, which was had between the plaintiff and the first defendant before they went back to the hotel room to search for it, included a comment by the first defendant identifying the money as "Tommy's", being a reference to Mr Yi. However, his statement attests to the truth of the fact that he had put the money on the dressing table and when he saw it was no longer there he "assumed that [the plaintiff] had taken it because it was meant for [him]". The attitude to the basis upon which he had assumed that the plaintiff had taken the money is inconsistent, in any common sense manner, to the proposition that he would describe the money as "Tommy's". 39His admission as to lying on oath, his attitude to the answering of questions, his dissembling and disingenuous answers, together with his general demeanour, has led me to conclude that his evidence ought not be accepted on any issue of controversy, unless otherwise corroborated by independent evidence. 40Lastly, in relation to Mr Ryall, it is appropriate to note his attitude to the plaintiff's state of mind. Despite informing the Court (and at times others) that he was wholly unaware of the state of mind of the plaintiff at the time that the money was taken from the dressing table and placed in the soft toy, he was prepared to assume, without knowing, that the plaintiff's intention was to "steal" the money. Mr Ryall was prepared to allege serious misconduct, without ever knowing (or at least on one view of his evidence, without ever forming a view) that the money was, in fact, taken with an intention of stealing it. 41To the extent relevant, it seems that underpinning the allegation made by Mr Ryall against the plaintiff was a developing dislike of the plaintiff based upon what was alleged to be the plaintiff's conduct in the hotel room and the plaintiff's deception of his girlfriend. However, Mr Ryall's motives are wholly irrelevant to the determination of the truth of the accusation or imputation. 42The second defendant published material repeating the allegation relating to the stealing of money in Las Vegas and also making an allegation that the plaintiff sought to steal money at The Star City. It is necessary to recount that which allegedly occurred at The Star City. 43Before repeating the circumstances upon which the second defendant relied for the allegation, it is necessary to recount that the poker games in which the plaintiff and each of the defendants was engaged, from time to time, were high stakes games, often involving thousands of dollars. The incident at The Star occurred in the following manner. 44The plaintiff was engaged in a game of poker and lost a hand, involving thousands of dollars. The winner of the hand, Tolly Sakellariou, was celebrating the win. The plaintiff requested change from the dealer, to be taken from the pot. There was a significant amount of celebration at the time. The dealer approved the change. The plaintiff took twenty $100 chips and put $1000 chip into the pot. 45Two things should be noted. It was the universal evidence that the practice of obtaining change from the pot, once approval had been given by the dealer, was common. Secondly, it was accepted by everyone (with the exception of the second defendant) that in large stake games such as this one often people, taking change, made initial errors, which were corrected. 46The mistake, made by the plaintiff (and I accept it was a mistake) was pointed out by another player at the table and the error was immediately corrected. There is no suggestion that the plaintiff intended to "short change" the winner. Further, the plaintiff was barely cross-examined on the basis that he had intended to "short change" the pot. The only evidence before the Court is consistent with the proposition that any mistake in the provision, initially, of a chip in response to the change, was a mistake corrected immediately. 47The overwhelming evidence was that any attempt by any player, including the plaintiff, to short change the pot in the manner suggested would soon be discovered. First, the winner of the hand would notice that he was $1000 short. Secondly, The Star is monitored by video in a way which would immediately determine who, if anyone, sought to attempt such a ruse. 48Further, the evidence before the Court discloses that it would have been impossible for a person with the plaintiff's size hand to hide ten $100 chips without it being noticed. The allegation that the plaintiff sought to steal this money in that way does not withstand any reasonable scrutiny. 49Yet, the second defendant maintained the accusation. The second defendant, with other defendants, agreed that he had witnessed errors of that kind on many occasions. He admitted that, given the security at the Star and the circumstances of the poker game, including the number of people at the table, a person would have to be "stupid or desperate" to attempt to steal chips, at all or in that manner. He agreed that the plaintiff was not stupid or desperate. 50The winner of the pot, Tolly Sakellariou, does not hold the view that the plaintiff attempted to steal from him. He observed the whole of the exchange, heard the plaintiff request change from the dealer, saw him take the change and heard the mistake pointed out by the other player. He saw the plaintiff correct it immediately. The winner of the pot, also, had witnessed many such errors in high stake games. 51The poker player, known to all parties, who sought to have the plaintiff correct the error, was not called in relation to this incident. 52The second defendant, who was sitting at the poker table at the time that this "short change" occurred, said nothing at the time. The second defendant republished the accusation that the plaintiff had stolen money in Las Vegas and published the accusation that the plaintiff attempted to steal money in the occasion just recounted. 53I find, positively, that the plaintiff did not attempt to steal the money in the events just described. In other words, while the burden of proof is on the defendants to prove that the plaintiff stole the money, i.e. that the imputation is true, my findings are not simply related to the burden of proof. I find that the plaintiff did not attempt to steal the money at The Star. 54Again, the second defendant showed himself to be a person not wholly committed to the truth. The second defendant denied publication of the sixth matter complained of, even though he had admitted it in a defence to the truth of which he had sworn (Exhibit C). Further, the second defendant swore to the truth of a number interrogatories that he admitted were false. Moreover, once these proceedings had commenced he had a conversation with Mr Sakellariou, which Mr Sakellariou recounted in a contemporaneous text message delivered at the time of the conversation or shortly thereafter. That conversation was recounted in a SMS message (Exhibit H), which is in the following terms: "We were playing together and I asked him why is this case still alive and going to court? Why not drop it? And he said: We've come to [sic] far for that. Plaintiff: Where did the threats come from...? About suing you and signing a false affidavit? He said: You better be sure about what you've signed because if it is not the truth then its perjury." 55It seems, on the face of the conversation between the second defendant and Mr Sakellariou, which I accept was in or to the effect of the terms outlined above, that the second defendant was seeking to dissuade Mr Sakellariou from giving evidence. I need not put the issue any higher than that. 56However, it is relevant to point that the second defendant denied use of the term "perjury" in the conversation with Mr Sakellariou. The contemporaneous note, the independence of Mr Sakellariou to any proceedings before this Court and the demeanour of each of them satisfies me that the term was used. I also find that the second defendant did not forget the use of the term and, in a manner not dissimilar to the verifying of false statements in defences and interrogatories, simply said what he thought most assisted his case. 57The third defendant was involved in a statement, it is said, which imputed that the plaintiff stole money from the first defendant. This was a reference to the events in Las Vegas. Evidence of this publication was given by Mr Ron Shabtay. Mr Shabtay is an independent witness who attended a dinner at which the statement was said to have been made. The words stated by the third defendant were to the following effect: "Nick stole money from Toby. Toby left money on a table in Las Vegas and Nick did something. I don't know when and where but the money was missing. Nick put his whole story on Facebook saying he did not steal the money but we do not believe him." 58On no account of that which occurred in Las Vegas was "the money missing". The third defendant knew nothing of the circumstances and repeated a defamatory accusation on the basis of that which she had heard or read, presumably on Facebook. After that statement, or those statements, were made by the third defendant, the plaintiff became a topic of conversation amongst the persons at the dinner table. The statements were made at an event at the Chinese restaurant at The Star, at which approximately twenty five people were attending. All of those people were from the "poker community". 59The third defendant denies ever making those statements. I do not accept her evidence and I do accept the evidence of Mr Shabtay. It was obvious from the evidence of the third defendant that she was prepared to give evidence to any effect which she considered would assist her case. A prime example of that proposition was her attempt to convince the Court that the term "thief" had a particular and special meaning in poker parlance. The proposition does not withstand scrutiny and no other witness had any knowledge of any such special meaning. 60The last defendant with which it is necessary to deal is the fourth defendant, Mr Gould. This relates to the eighth matter complained of, being a further oral publication accusing the plaintiff of stealing money from the first defendant when they were in Las Vegas. The fourth defendant's defence to the original Statement of Claim, filed 20 August 2013, admits paragraph 44 of the Statement of Claim, being the conversation referred to above, admits that the statements are defamatory but alleges they are true or substantially true. The defence was affirmed as true at the time it was filed. The aforesaid admission was continued in the defence to the Amended Statement of Claim, filed 25 October 2013, also verified by affirmation. It is not in issue in these proceedings that the statement was made as alleged and was defamatory. The truth of the statement has already been the subject of findings. 61The independent witnesses called by the plaintiff gave evidence that was truthful and generally accurate. Their evidence is accepted. 62The plaintiff gave evidence. Essentially, there is not a great deal of controversy, properly analysed, in the evidence that he gave. He was not cross-examined to suggest that The Star incident was one in which he intended to steal money. It was put to him by counsel acting for the defendants that he stole money in Las Vegas, or intended to steal it. (This was not put directly, but there was a question in which counsel suggested that he intended he took the $2,000 cash, because he was short of cash, intending to keep it. Transcript, 104, line 21 and see discussion at Transcript, 105, line 1). 63The plaintiff was prepared to accept, even though he did not recall it, that he may have taken the money from the dressing table in Las Vegas and put it in the soft toy. It is unnecessary for the Court to determine whether that is, in fact, what happened. Or, notwithstanding the denial of Mr Ryall, whether Mr Ryall placed the money in the soft toy. It matters not. 64During the course of proceedings, an ancillary question arose as to the relationship between Tommy Yi, the first defendant and the plaintiff on the issue as to who owned the $2000 at particular periods of time. The issue is now irrelevant, given the findings I have made, and it is strictly unnecessary for the Court to deal with the matter. 65It was suggested by counsel for the defendants that the relationship was one of bailment. This occurred after the possibility of that arrangement was raised by the Court. In final submissions, counsel for the defendants argued that the proper relationship was one of bailment; that Tommy Yi gave the money to the first defendant for delivery to the plaintiff. The issue is not wholly without complication. 66Obviously, none of the parties actually determined what was the arrangement between them when the money was given by Tommy Yi to the first defendant. It is possible that there was a bailment, although I doubt it. If the parties were to have been asked, it would not seem to me that the bailment was an appropriate refection of the relationship between them. 67Rather, it seems to me that the money was given to Tommy Yi by the plaintiff and was a loan. The amount was owed (albeit without interest) by Tommy Yi to the plaintiff. There was a special and close relationship (or perceived to be) between the plaintiff and the first defendant. 68It would seem that the better analysis is that the money was given by Tommy Yi to the first defendant on trust for the plaintiff and accepted on that basis. In other words, if the first defendant had spent the money gambling on the way back to the hotel room, the first defendant would have owed the plaintiff, not Tommy Yi, the $2000. At the same time, if Tommy Yi had desired to rescind the arrangement with the first defendant and spend the money elsewhere, he would have been required to obtain the consent or permission of the plaintiff. 69As earlier stated, the issue is now irrelevant. The money was never stolen, because it was never intended that the rightful owner be deprived of the money. The money was never missing. The money was in the soft toy. 70There is no evidence to suggest that the plaintiff intended to deprive anyone of the $2000. Indeed, the evidence from everyone who has knowledge of the incident seems to be to the contrary. However, if I were incorrect in that, I would take the view that the money was already the money of the plaintiff (i.e. he had beneficial ownership of it). At the time the money was taken from the dressing table by the plaintiff, assuming for this purpose it was so taken, the money belonged to the plaintiff. 71I conclude that the defendants have failed to prove the truth of the imputations alleged and that arise from the eight matters complained of that are the subject of these proceedings. Damages and Principles 72As noted above, I have concluded that the publications were made, as alleged in the Amended Statement of Claim, by the respective defendant to which each allegation relates. The evidence before the Court is that the oral publications were heard and, in the case of the Facebook publications, downloaded or the subject of access by others. The imputations were published: Dow Jones & Co Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575 at [26]; David v Abdishou [2012] NSWCA 109 at [259]. 73The number of persons who heard the seventh and eighth publications was small. So too was the number to whom the sixth matter complained of was published. Nevertheless, they were defamatory and there is a presumption of damage and an entitlement to some level of damages in relation to each defamatory publication. 74In relation to the Facebook publication, the number of readers of the material was confined, but the significance of the material was great. In some respects, the confined nature of the readership made the hurt and distress (and the need for vindication) even greater than would be case if it were a publication at large and not to persons who knew and dealt with the plaintiff on a regular basis. 75I am satisfied that the plaintiff suffered significant damage to his reputation and felt significantly distressed. The ordinary reasonable reader of the Facebook publication, and the listener to the oral publications, would understand that which was said as being defamatory, the imputations having arisen from each of the various publications. By any ordinary moral or social standards, to call a person a "thief" must be defamatory: Reader's Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500; Phillips v Robab [2014] NSWSC 1520. 76The plaintiff bears the onus of proving the publications. The plaintiff has satisfied that onus. The plaintiff also bears the onus of proving that the defamatory imputations, as alleged, arise. Similarly, the plaintiff has satisfied that onus. The imputations are manifestly defamatory. 77The defamatory imputations arise as a result of the application of the "ordinary reasonable reader/listener" test. Such a person is said to be of fair average intelligence, fair-minded, not overly suspicious, not naïve, not straining or forcing meanings, not avid for scandal and one who reads (or listens to) the entirety of the publication about which complaint is made: Amalgamated Television Services v Marsden (1998) 43 NSWLR 158 at 165; Haddon v Forsyth [2011] NSWSC 123; Phillips v Robab, supra, at [39]. 78The publications are defamatory and each of them is defamatory. Each of them has injured the reputation of the plaintiff and his standing amongst people with whom he has dealt in the poker playing community. The defamation is more cutting because it has been published to those people who deal with the plaintiff on that basis. The grapevine effect has been most significant. 79The only defence upon which each of the defendants relies is substantial truth (s 25 of the Defamation Act 2005), which each of the defendants have failed to prove. 80Moreover, the conduct of the matter by the defendants has been one in which they have displayed a contumelious disregard for the truth and for the hurt that must have been suffered. The manner in which some, or all, of the defendants changed the story each was telling to suit the exigencies of what they thought was the circumstance at a particular time must have been particularly hurtful. The manner in which these proceedings has been conducted and the attitude by each of the defendants to the plaintiff has been a source of aggravation and warrants aggravated damages. 81The damages awarded must be such as "to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded": s 34 of the Defamation Act. Damages are currently capped at $366,000 (s 35 of the Defamation Act and NSW Government Gazette 57, 27 June 2014). 82An award of damages for defamation is to serve three purposes: consolation for personal distress and hurt caused to the plaintiff; reparation for the harm done to the plaintiff's personal and business (in this case, poker playing) reputation; and vindication of the plaintiff's reputation: Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44. 83Damages are assessed on the basis of injury to reputation and injury to feelings. While the plaintiff is entitled to have his reputation vindicated, vindication is not a separate head of general damages; it is a function of the award of damages and the reasons for those damages otherwise awarded: Holt v TCN Channel Nine Pty Ltd [2014] NSWCA 90; (2014) 86 NSWLR 96. 84Relevant in the assessment of damages in these proceedings is the relationship between the various defamatory statements. Ordinarily, evidence of other publications of the same defamatory imputations does not ameliorate or effect the damage relevant to any particular defamation: see Associated Newspaper v Dingle [1964] AC 371; Chappel v Mirror Newspapers Ltd (NSWCA 14 June 1984, unreported); Carson v John Fairfax & Sons Ltd. Damages are assessed, in relation to any particular defamatory publication, on the effect of that particular publication, without regard to like or similar publications made. Other publications to like effect do not mitigate the damage. 85The relevant principles in the assessment of damage were discussed by the Court of Appeal in Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [70]-[78] and in particular at [72]-[77]. In the reasons for judgment of the Court, Tobias and McColl JJA said: "[72] The harm caused to the plaintiff by the publication of the defamation often lies more in his own feelings, what he thinks other people are thinking of him, than in any actual change made manifest in their attitude towards him. Thus '[a] solatium for injured feelings, however innocent the publication by the defendant may have been, forms a large element in the [general compensatory] damages': Cassell & Co Ltd v Broome [1972] AC 1027 at 1124 per Lord Diplock. [73] A person who is defamed receives damages because he or she has been injured in his or her reputation; that is, because he or she was publicly defamed. Damages in a defamation action vindicate the plaintiff to the public, and are consolation for a wrong done: Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118 at 150 per Windeyer J. [74] The damages awarded in a defamation action have to be regarded as demonstrating that the plaintiff has been vindicated in his or her reputation: Dingle v Associated Newspapers Ltd [1964] AC 371 at 396 per Lord Radcliffe; Carson at 69 per Brennan J. The level of damages should reflect the high value the law places upon reputation and, in particular, upon the reputation of those whose work and life depend upon their honesty, integrity and judgment: Crampton v Nugawela (1996) 41 NSWLR 176 at 195; applied in John Fairfax Publications Pty Ltd v O'Shane (No 2) [2005] NSWCA 291 at [3] per Giles JA, Ipp JA agreeing. [75] The harm done by the defamatory publication for which general compensatory damages are recoverable, does not come to an end when the publication is made: Cassell at 1124 per Lord Diplock. 'It is impossible to track the scandal, to know what quarters the poison may reach': Ley v Hamilton (1935) 153 LT 384 at 386 per Lord Atkin. Accordingly, the damages awarded for defamation must be such that 'in case the libel, driven underground, emerges from its lurking place at some future date, [the plaintiff] must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge': Cassell at 1071 per Lord Hailsham of St Marylebone LC. Mahoney ACJ referred to this statement with approval in Crampton at 193, holding (at 194-195) that "[t]he award must be sufficient to ensure that, the defamation having spread along the 'grapevine' ... and being apt to emerge 'from its lurking place at some future date', it was 'sufficient to convince a bystander of the baselessness of the charge'"; see also Carson at 70. [76] In assessing damages the tribunal of fact is entitled to take into consideration 'the mode and extent of the publication, that the defamatory statement was never retracted, that no apology was ever offered to the respondent, and that the statement had been persisted in to the end'. Such circumstances might in the opinion of that tribunal 'increase the area of publication and the effect of the libel on those who had read it or who would thereafter read it, might extend its vitality and capability of causing injury to the plaintiff': Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254 at 263 per Knox CJ, Gavan and Starke JJ. The assessment of damages involves an understanding of the nature and seriousness of the imputations and the defendants' conduct: see Coyne v Citizen Finance Ltd [1991] HCA 10; (1991) 172 CLR 211 at 241. [77] Finally under these general observations, we would observe that the defendant must take the plaintiff as it finds him or her: Humphries v TWT Ltd (1993) 113 FLR 402 at 418-419 per Miles CJ; Bashford v Information Australia [2000] NSWSC 665 at [42] per Davies AJ." 86Further to the foregoing, the comments of Mahoney ACJ in Crampton v Nugawela (1996) 41 NSWLR 176 are apposite. While the defamation in these proceedings does not affect the plaintiff's employment, it does affect his substantial social activity; an activity that consumed a huge proportion of the plaintiff's life. 87Reference has already been made to the grapevine effect: see Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; (2001) 208 CLR 388 at [88]-[89]. In that judgment, Gummow J refers to Ley v Hamilton (1935) 153 LT 384. In some respects, the oral publications about which complaint has been made in these proceedings are examples of and evidence of the huge grapevine effect that has occurred in relation to the imputations published about the plaintiff. 88I accept that the plaintiff had, prior to these incidents, a good reputation and a reputation as honest and affable, with great integrity: see the evidence of the witnesses: Borreggine, Exhibit F; Kozlov, Exhibit E; Steindl, Exhibit P. Even though damage is assumed, I accept that the actual damage to the plaintiff's reputation has been significant and has caused extensive hurt to feelings. Evidence was adduced as to the need of the plaintiff, as a consequence of these publications, to seek the assistance of a psychologist. Evidence was also adduced as to the perception of others, independent of the plaintiff, as to the plaintiff's depression and obvious upset. 89The plaintiff seeks aggravated damages on the basis of the following conduct: failure to apologise; maintaining the justification or truth defences in inappropriate or improper circumstances; the threat in relation to the conversation between the second defendant and Mr Sakellariou; the third defendant denying publication; the repetition of the defamatory allegations to a number of persons; the manner of the conduct of the proceedings, including the adducing of evidence or the attesting to conduct that was contrary to admissions that were previously made (the third and fourth defendants); the threat to avoid any satisfaction of the judgment by going bankrupt (second defendant); the giving of false evidence; and the cross-examination of the plaintiff, particularly in circumstances where his evidence did not contradict the first defendant's evidence. 90The plaintiff relies on the knowledge that the allegations against the plaintiff were untrue, at least in relation to the first defendant. It seems to me that applies equally to the other defendants in circumstances where the first defendant, himself, seems to have retracted, at least in part, any understanding or allegation relating to the state of mind of the plaintiff. 91The plaintiff's submissions on aggravated damages are compelling. Most of the conduct upon which reliance has been placed by plaintiff's counsel has been summarised above. The conduct of the proceedings, pleadings, the adducing of evidence and the general conduct of the cross-examination of the plaintiff, in circumstances where little primary factual contest existed, is exacerbated by the maintenance of the truth defences during the course of the proceedings. 92The publications remain on Facebook and, despite these proceedings and the admissions otherwise made, have not been removed. 93Aggravated damages should be awarded against each of the defendants, but will be small. The damages must remain compensatory. 94Damages against the first and second defendant should be far greater than the damages against the third and fourth defendant. I have already indicated that the defamatory publications and damages arising therefrom are not mitigated by the fact that other publications issued with the same imputations. Nevertheless, the Defamation Act requires that the cause of action against each defendant be treated as one set of proceedings, involving only one award of damage even though there may be more than one defamatory publication by each. That is not the case in relation to the proceedings against each defendant as against publications by any other defendant. 95The damage caused by the publications of the first and second defendant is significantly more serious than the damage caused by any of the publications of the third and fourth defendant. The award of damages must reflect that factor. The publication of the first defendant was to all or almost all of the social contacts within the poker playing community with whom the plaintiff dealt. To the extent that there were persons who were not included in the Facebook publication of the first defendant, they would have heard of the allegations of the first defendant through the grapevine effect. 96Likewise, the publication of the second defendant caused significant damage. Further, the conduct of the second defendant was vicious and malicious, in circumstances where the second defendant was wholly unaware of the truth or otherwise of the allegations made by the first defendant. 97A lack of knowledge of the truth of the allegations is true also of the third and fourth defendants. Some diminution or adjustment is to be effected to ensure no double counting of damage between the grapevine effect of the publications and the separate publications for which damages are sought, where those publications are part of the grapevine effect. 98In the circumstances I award the following damages, including aggravated damages: (i)As against the first defendant $125,000; (ii)As against the second defendant $130,000; (iii)As against the third defendant $50,000; (iv)As against the fourth defendant $35,000. 99Given the continuing nature of the publication and the refusal of the defendants to remove the publications or to cease and desist from the continuing repetition of the imputations, it is appropriate, particularly given the scurrilous nature of the defamatory imputations and their lack of bona fides, to grant injunctions, the effect of which is to enjoin the defendants and each of them from continuing to publish imputations of that kind relating to these incidents: see Rastogi v Nolan [2010] NSWSC 735, per Simpson J. 100The plaintiff shall file and serve a Minute of Order reflecting the foregoing reasons within 14 days of the date of this judgment and any other party shall have 7 days in which to contest the proposition that the orders reflect the reasons for judgment. 101Liberty is granted to the parties to address the Court on costs and interest. Such address will occur after the receipt of any objections to the Minute of Order or the conclusion of the period of time allowed for that process to have concluded. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 November 2014