IN THE SUPREME COURT OF WESTERN AUSTRALIA BETWEEN DAVID RINDOS and GILBERT JOHN HARDWICK Heard: 25 March 1994 Delivered: 31 March 1994 No 1994 of 1993 (Unreported Judgement 940164) IPP J In this matter I am required to assess damages for defamation. The plaintiff issued an endorsed writ claiming: (i) Damages for libel published by the Defendant and contained on an entry on the DIALx science anthropology computer bulletin board on 26 June 1993. (ii) Damages for libel published by the Defendant and contained in a letter to the Secretary of the Anthropological Association of Western Australia on or about 9 September 1993. (iii) Interest on damages pursuant to Section 32 of the Supreme Court Act at the rate of 8% per annum or such other rate as the Court thinks fit from the 26 June 1993 and 9 September 1993 respectively until judgment or payment of damages The defendant did not enter an appearance to defend and judgement by default was granted to the plaintiff. Thereafter, an order was made that the damages payable by the defendant to the plaintiff pursuant to that judgment be assessed and that evidence be introduced by affidavit. Leave to serve the necessary documents on the defendant by way of substituted service was granted and service was effected as required. It appears that the defendant does not wish to defend the action. In a letter dated 9 September 1993 to the plaintiff's solicitor he stated: "Let this matter be expedited and done with ... If you wish to ... have your client allowed his day in court to air his grievances against Western Australians, then let it be. I can do nothing to prevent it lacking any resources whatsoever to defend myself from whatever charges anyone for that matter might wish to bring against me at (sic) time they see fit." The plaintiff is an anthropologist. He obtained a doctorate from Cornell University in the United States of America in August 1981 and worked for several years at universities in the USA as assistant professor and in other capacities as an anthropologist. In about 1988 he emigrated to Australia. In June 1989 he commenced employment as a senior lecturer in the Department of Archaeology at the University of Western Australia. In November 1989 he was appointed temporary acting head of the Department of Archaeology and in February 1990 he became the acting head of the Department. From March 1991 until June 1993 he was attached to the Geography Department of the University of Western Australia as senior lecturer in archaeology. He ceased being engaged at the University after June 1993 Numerous publications of the plaintiff's works have appeared throughout the world, including translations into languages other than English. He has given papers at numerous national and international conferences and has given lectures at different universities around the world. His work has been cited regularly in papers by other academics. He is well known internationally in the areas of anthropology and archaeology. While the plaintiff was employed at the University of Western Australia, a review took place as to whether he should be granted tenure. In early March 1993 the Tenure Review Committee recommended that he be denied tenure on the ground of insufficient productivity. This was made formal in June 1993 and the plaintiff was dismissed by the Vice Chancellor of the University with effect from 13 June 1993. There was a large amount of interest, internationally, about the actions of the University of Western Australia in denying the plaintiff tenure and in dismissing him. On 23 June 1993 a message appeared on a worldwide computer network bulletin board, inserted by one Hugh Jarvis, an anthropologist in the United States of America. The message criticised the University of Western Australia for refusing to grant tenure to the plaintiff and for dismissing him. The computer bulletin board on which the message appeared is devoted to "science anthropology". It is part of an international computer news service to which persons can have access through computers and by which users of computers can communicate with each other. Subscribers to or participants in the network utilise their computers to communicate and receive items of interest concerning anthropology. Most major universities throughout the world are participants in the network, which is also used by other persons. The main users are academics and students. There are approximately 23 000 persons worldwide whose computers have access to the bulletin board in question: The bulletin board has a wide international readership. The messages that appear on the bulletin board can remain on the computer of a subscriber or participant for a number of days or weeks, depending on the storage capacity of the computer in question. The types of messages vary. Examples include information on anthropological issues and personalities, debates on anthropological topics and personal messages between anthropologists. The messages come from persons all round the world, but particularly from the United States of America, the United Kingdom, Canada and Australia. Most of the persons who send messages and who view the bulletin board on a regular basis are persons who are working or studying in the general field of anthropology. Items of interest on the bulletin board can be printed on hard copy. Such print outs can be and at times, no doubt, are circulated. Persons who read the contents of the bulletin board and cause messages to be printed include not only the owner of the particular computer, but any person who has access to it, such as academics and university students. On 26 June 1993, in reply to the message published by Hugh Jarvis, the defendant caused a message to be published on the bulletin board. According to the material supplied by the defendant to the computer, it was transmitted by him from a computer in Derby, Western Australia. The distribution was to "the world", which means that the message was visible, and would have been able to have been read, on every computer around the world able to receive the science anthropology news bulletin. The relevant passages in the message that the defendant so sent, are as follows: "Well, here we have my old mate Hugh Jarvis, the guy responsible for the first anthropologist (myself) being denied access to ANTHRO-L, now crying over one of his fellow Americans being the first to be denied tenure at an Australian University. "Sorry, UWA is my own turf, Hugh. I know very well that problems there are associated with the Anthropology Department there (now including the Archaeology Department) but I am also well aware of the wider social and political issues associated with our discipline here in Western Australia centrally focussed around Aboriginal Affairs. "The first matter I would raise in comment here, is the very public difference between myself and Dr Rhindos (sic) on the matter of categories in Aboriginal culture, played out on this very news group. In that case Dr Rhindos (sic) quite openly attempted to discredit my own lifetime's experience with Aboriginal people on the basis of his one phone call apparently to an outstation! "I have met the man myself, and my impression is that his entire career has been built not on field research at all, but on his ability to berate and bully all and sundry on the logic of his own evolutionary theories. In the local pub, drinking and chain smoking all the while for that matter. "Secondly, and this is rumours passed to me by several reputable and long-standing Western Australian anthropologists as to Dr Rhindos' (sic) 'Puppy Parties' focussed I am told on a local boy they called 'Puppy'. Hmm, strange dicey behaviour indeed, especially here in an environment dominated by conservative fundamentalists. "Thirdly, and far more substantially, there are extremely serious questions arising here concerning an ongoing political campaign here against the Anthropology Department, most notably targetting (sic) the department's long-standing support for Aboriginal Land Rights against powerful international mining lobbies. This particular episode comes of great interest right in the midst of our national debate over the effects of the High Court's finding last year in favour of Eddie Mabo. "I am sorry Hugh, but if someone for whom I might have a little more respect than yourself had posted what you did, I would have hesitated to post my own reply to your scurrilous attack on the University of Western Australia, I can only imagine prompted by the powerful vested interests lacking the guts and integrity to come out and speak honestly on important issues deeply affecting Western Australia. If you are on their payroll, I detest your involvement in this matter; if you are not on their payroll I can only assume you are a complete fool. "As has been Dr Rhindos (sic), apparently believing that since he is an American he is somehow immune from the criticism of his non-American colleagues in *their* country. "In the meantime your hysteria, in my case earlier when you decided unilaterally to deny me access to ANTHRO-L, and in this present case now, does not in any way bring you credibility. "The rest of you professors, lecturers, staff, students, professionals and sundry lurkers and lookers-on, I do ask that you think critically about what is going on here. Please be a little more intelligent than to be swayed by grossly exaggerated and one-sided campaigns by a media to which only one party has ready access. Please think about which powerful politicians and vested interests might be behind this whole business. "Please think that the real victims are the Aboriginal people here. Thank you. Gil Hardwick" It was submitted that the publication of 26 June 1993 contained five defamatory imputations, namely: (a) The plaintiff engaged in sexual misconduct, in particular paedophilia with a "local boy" called "Puppy". (b) The plaintiff has no genuine academic ability in his field and has not based his theories on appropriate research but has simply depended upon berating and bullying others. (c) The plaintiff "is against Aboriginal land rights and Aboriginal people" and is a racist person. (d) The plaintiff is not a genuine anthropologist but a tool of mining corporations. (e) The plaintiff drinks to excess and spends most of his time "in the local pub" I accept that words in the message published by the defendant give rise to an imputation that the plaintiff engaged in sexual misconduct with a "local boy". I also accept that the message contains the imputation that the plaintiff's professional career and reputation has not been based on appropriate academic research "but on his ability to berate and bully all and sundry". This seriously denigrates his academic competence. I do not accept that the other paragraphs give rise to the imputations alleged. In the course of argument these other imputations were not pressed. The imputation of sexual misconduct, and that relating to the plaintiff's career being based on the ability to "berate and bully" and lack of professional competence are, in my opinion, seriously defamatory of the plaintiff. The inference is that these matters had some bearing on the failure of Dr Rindos to be awarded tenure and his dismissal from the University. These defamatory remarks were published in academic circles throughout the world. I accept the submission made by counsel for the plaintiff that the nature of the remarks is such that they are likely to be repeated, and that any rumours of a like kind that had circulated previously were likely to gain strength from their publication. The other publication of which the plaintiff complains, is a letter dated 9 September 1993 to the plaintiff's solicitor, copy of which was sent by the defendant to the secretary of the Anthropological Association of Western Australia. This letter contained the following remarks: "My further understanding is that Dr Rindos had deliberately launched his now infamous campaign in his attempts to revive an already shattered academic career by constantly, openly and publicly seeking to discredit those against whom he had acted as head of the then Department of Archaeology, when he might well have approached them to discuss whatever irregularities he is alleged to have uncovered in the first instance. He might very well have settled down to administer his department competently and professionally, and like the rest of us do some research, to present his papers and to seek the review of his peers. "His persist failure to do as I understand it is in fact the very reason for the University's decision to finally deny him his tenure." The imputation from the above quoted remarks is that the plaintiff did not administer his Department competently and professionally, and is again a denigration of his professional competence. There has been no attempt by the defendant to justify these defamatory remarks or set up any other defence to them. I repeat that the plaintiff is well-known internationally in academic anthropological and archaeological circles and that he is a person of high standing in those circles. The defamatory remarks published are likely to have a most harmful effect upon that standing. I am also satisfied that the plaintiff has endured serious personal suffering as a result of the defamation. There is evidence from a consultant psychiatrist that the publication was the cause of a marked exacerbation of symptoms of major depression and anxiety. While the two publications were different, there was a clear and close relationship between them. Their effect was similar to that of the two defamatory publications considered in Carson v John Fairfax & Sons Limited (1992) 113 ALR 577 where Mason CJ, Deane, Dawson and Gaudron JJ said (at 584): "The effect of the defamatory publications was cumulative. The second compounded the harm to the appellant caused by the first: it renewed and expanded the hurt to his feelings; it exacerbated the damage to the reputation which he had hitherto enjoyed in legal, commercial and other circles." In such circumstances, as their Honours remarked (at 585): "... it is permissible and sensible in a case where claims for closely related defamatory publications have been heard together for a jury, in determining what is the appropriate compensation to be awarded to the plaintiff in respect of each publication, to take account of the aggregate 'harm' suffered by the plaintiff by reason of both of them." In Coyne v Citizen Finance Limited (1991) 172 CLR 211 Mason CJ and Deane J approved the statement by Diplock LJ in McCarey v Associated Newspapers Limited (No 2)  2 QB 86 at 107 that the injuries sustained by the defamed person may b: "classified under two heads: (1) the consequences of the attitude adopted towards him by other persons as a result of the diminution of the esteem in which they hold him because of the defamatory statement; and (2) the grief or annoyance caused by the defamatory statement to the plaintiff himself." Also in Coyne v Citizen Finance Limited (at 235) Toohey J referred, with approval, to the following remarks of Windeyer J in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 150: "It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he operates in two ways - as a vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money." I accept that the defamation caused serious harm to the plaintiff's personal and professional reputation. I am satisfied that the publication of these remarks will make it more difficult for him to obtain appropriate employment. He suffered a great deal of personal hurt. The damages awarded must compensate the plaintiff for all these matters and must vindicate his reputation to the public. In all the circumstances I consider that the plaintiff should be awarded the sum of $40 000 in respect of damages. I also consider that the plaintiff should be awarded interest on that sum at the rate of 8% per annum from 9 September 1993.