McEwan v McDaniel[2020] QDC 321

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 21 February 2020, the plaintiff filed proceedings seeking damages for defamation against the defendant in an amount of at least $250,000 together with costs.
2. [2]
   On 15 June 2020, the plaintiff obtained default judgment, the defendant not having filed a notice of intention to defend.  The judgment of the Court was that the defendant pay to the plaintiff damages to be assessed upon the plaintiff’s statement of claim together with costs to be assessed.
3. [3]
   Given that the matter was to proceed as an assessment following the plaintiff having obtained judgment by default, questions as to whether the publication of the video and post were defamatory and issues as to whether the defendant had any defences did not arise for the court’s consideration.  The allegations in the statement of claim as to the video and post being defamatory are taken as proven.
4. [4]
   The matter was listed for an assessment of damages on 17 August 2020. The plaintiff was self-represented but appeared in Court with Ms Madden, who had sent emails to the court on behalf of the plaintiff and who the court was told was a “senior consultant” engaged by the plaintiff, who was a lawyer but did not hold a practising certificate and was not and could not be the solicitor on the record. 
5. [5]
   There was no appearance by the defendant.  In fact, it became apparent that the defendant had not been served with the notice of assessment as required by rule 509 of the Uniform Civil Procedure Rules 1999 (Qld).  As such, the matter could not proceed to an assessment on that date.
6. [6]
   Prior to adjourning the assessment to a later date, I raised with the plaintiff a question as to the injunctive relief sought in the submissions filed in support of the application.  The statement of claim had not sought injunctive relief. It was explained to the plaintiff that an amendment to the statement of claim would be required if such relief was to be pursued.  Absent an amendment to the statement of claim, such relief could not be granted on the assessment.  The plaintiff confirmed that he would not pursue a request for injunctive relief.
7. [7]
   An order was made adjourning the assessment of damages to 21 September 2020.

8. [8]
   On 21 September 2020, when the matter was first called, there was an appearance by the plaintiff and no appearance by the defendant.  In the initial discussion with the plaintiff, in the presence of Ms Madden and prior to any appearance by the defendant, it was explained to the plaintiff that if it was to be alleged that the plaintiff had suffered actual loss as a result of the making of the defamatory statement, the plaintiff would need to put on evidence to support such a statement. 

9. [9]
   Upon the late appearance of the defendant at that hearing, following discussion with both the plaintiff and the defendant, orders were agreed for the filing of further material by the plaintiff and material by the defendant, with a telephone mention to be held on 19 October 2020 for the purpose of agreeing a date for the hearing of the assessment.  It was explained to the defendant the fact that judgment by default had been obtained, the only question before the court was one of assessing the damages to which the plaintiff was entitled.

Background facts

10. [10]
    The plaintiff is a proprietor of a business known as Silverlake Australia Martial Arts (SAMAS) which supplies performance fight clothing and equipment to the mixed martial arts (MMA) industry in Australia. 
11. [11]
    In addition to his fighting clothing and equipment business, the plaintiff was a sponsor of fighters and owned and operated a tile business.
12. [12]
    As a sponsor, the plaintiff stated that he provided a sponsored fighter with his SAMAS brand merchandise and products and covered general expenses associated with a fighter's career.  In return, the fighter wore SAMAS merchandise and products at gyms, MMA events and public appearances and was required to credit SAMAS as a sponsor in press and social media releases.
13. [13]
    The plaintiff did not consider that as a sponsor he was required to pay travel costs for fighters to attend particular fights.  He considered the promoters of a fight were required to pay the travel costs. 
14. [14]
    The plaintiff was known to the defendant, as both are active members of the MMA industry in Australia.  The plaintiff had been a member for over 20 years.  The defendant had at one time been sponsored by the plaintiff and had worn the plaintiff’s SAMAS products.
15. [15]
    At or around the time of the video and post, the plaintiff had been the sponsor of a fighter, Brian Morley, for about three years.  Brian was a fighter with special needs. 
16. [16]
    It would seem from the evidence of both the plaintiff and the defendant that the plaintiff refused to pay for Brian to fly from Melbourne to attend a fight in Brisbane. The defendant advised the plaintiff that he would find a sponsor for Brian, and the plaintiff relieved of responsibility for Brian. The plaintiff says he responded that Brian was under contract to him, and that he would not support or endorse Brian to attend the event. The defendant says that the statement made by the plaintiff was in fact that the plaintiff would not allow Brian to attend the event.

The Posts

17. [17]
    The defendant subsequently created a video of himself in which he included references to and concerning the plaintiff which the plaintiff alleges are defamatory.  On 16 October 2019, the defendant caused the video to be published publicly on his Facebook account.  The defendant uploaded the video with a post.  The post stated that: 

“David McEwan you’re a weasel of a man.

How you can do this to someone like Brian Morley who is the sweetest personality around just because “You won’t get anything out of it.” You were supposed to be his friend. But you’re a weasel. Straight up.

You’re a petty little man David and you don’t deserve the gum I scrape off my shoe.

Everyone needs to name and shame this dill pickle. He is a pretender to Brian as a friend and not really his friend. Or a sponsor. Just poses to help his business.

SAMAS gear in my opinion sucks anyway and it totally represents the attitude of the owner. #SAMASSUCKS”

18. [18]
    In the statement of claim, it is alleged that in the post the defendant:

• Identified the plaintiff by name;
• Referred to the plaintiff as a “weasel”, “petty little man” and “dill pickle”; and
• Stated that the plaintiff’s products “suck”.

19. [19]
    In the statement of claim, it is alleged that in the video the defendant:

• Identified the plaintiff by name;
• Referred to the plaintiff as a “weasel”;
• Stated that the plaintiff’s business “sucks”; and
• Stated that the plaintiff’s products are “crappy”.

20. [20]
    The video was five minutes and 10 seconds in length. 
21. [21]
    The plaintiff responded to the video and post via text message to the defendant which said, “Brian is under contract to SAMAS, this is childish behaviour.  He will not now attend this event.”
22. [22]
    The defendant replied via text message saying, “I’ll let Brian know this and the MMA community. Thank you David.”
23. [23]
    The plaintiff replied via text message on 18 October 2019 saying, “Nice Facebook posts, I have forwarded copies of your videos and all the derogatory comments to my lawyers and if they’re not removed, legal proceedings shall commence with Brisbane Magistrates Court next week.  Enjoy your day. SAMAS”
24. [24]
    In a text message to the plaintiff the defendant refused to remove the video and post and said the plaintiff’s lawyer are free to pursue any course they see fit. 
25. [25]
    Upon a request being made by the plaintiff to Facebook, the video and post were removed by Facebook on 18 October 2019, two days later.  The plaintiff asserts that the post was removed as “hate speech”; though there is no evidence as to the reason for the removal by Facebook.
26. [26]
    By the time of its removal the post, which had tagged 41 other Facebook users, had received 75 likes, 90 comments and been shared by seven third party Facebook users on their own accounts.
27. [27]
    Subsequent to the removal of the video and post, the plaintiff caused to be sent to the defendant by Facebook messenger a letter dated 1 November 2019 referring to the making of the video and post, alleging its defamatory nature and requiring the defendant to make an offer to make amends or otherwise the plaintiff would commence proceedings seeking, it was said, non-economic damages up to the limit of $250,000 as prescribed by the Defamation Act 2005 (Qld). 
28. [28]
    The defendant responded to the letter from the plaintiff through Facebook messenger saying that he wished to have nothing else to say or do with the plaintiff and said that Brian wanted nothing more to do with SAMAS. 
29. [29]
    There were subsequent email exchanges between the plaintiff and the defendant.  In those email exchanges, the defendant made reference to the plaintiff having taken advantage of a person like Brian who is in the category of special needs.
30. [30]
    After the issue of proceedings in February 2020, the defendant made a further post on 22 July 2020 in which he again referred to the plaintiff.  In responding to a Facebook post by a fighter wearing the plaintiff’s SAMAS clothing, the defendant posted, “Stop advertising that nasty cretin’s gear! He doesn’t deserve good people like you advertising his crap gear.  It stinks.”  The making of that post does not form part of the plaintiff’s claim.

The evidence

31. [31]
    In the proceedings, it is not disputed that the video and post arose as a result of a decision made by the plaintiff to refuse to cover the costs of Brian to attend a fight in Brisbane.  It was the plaintiff’s view that the cost of the flight should be paid by the promoter, not the sponsor.
32. [32]
    It is not disputed that the plaintiff is no longer the sponsor of the fighter and, that subsequent to the events surrounding the payment of his flight to Brisbane, the fighter terminated the relationship with the plaintiff.
33. [33]
    It is also not disputed that Brian is a person with special needs.
34. [34]
    In the statement of claim, the plaintiff says that “the plaintiff believes that the post and video have damaged, or could reasonably be considered to have damaged, the plaintiff’s reputation, both personally and as a business owner, as well as the plaintiff’s business.”
35. [35]
    In his affidavit material in support of the claim, the plaintiff alleges that the post and video suggests that the plaintiff was broke and the making of such a claim could potentially affect his credit with customers and suppliers across Australia and that the making of such claim called into question his solvency.
36. [36]
    There is no reference in the statement of claim to the making of any statement suggesting the plaintiff was broke.  The making of any such statement, if it were made, is therefore not relevant to any assessment of damages.  It is simply not a matter raised on the pleading in respect of which judgment by default was obtained.
37. [37]
    The plaintiff has asserted damage to his business but during the interlocutory hearing gave the impression that he was a successful businessman and included in his submissions that he “has lots of friends who are barristers, judges [and] lawyers”  suggesting that he had status in the commercial world.
38. [38]
    In any event, the plaintiff has not lead any evidence of actual damage or loss, nor has the plaintiff established what his reputation was within the MMA industry.  The only evidence presented by the plaintiff, going to his reputation within MMA community was within the 21 September hearing, where the plaintiff commented “I am sort of in the upper echelon of my world.”
39. [39]
    There is no evidence as to the size of his SAMAS business nor any evidence as to the number of fighters sponsored by SAMAS. 
40. [40]
    In the process of cross examination, it would seem in referring to the plaintiff’s tile business, the plaintiff referred to having dealings with a number of different construction companies. 
41. [41]
    There is no evidence that any person or company associated with his tile business had any knowledge of the video or post.
42. [42]
    The plaintiff says he was subjected to “public humiliation, vilification and ridicule.” The plaintiff refers to numerous communications from people within the MMA industry enquiring as to what led to the video and post and says that some of the communications received were abusive and aggressive.
43. [43]
    In his affidavits, the plaintiff attached by way of one example, an extract from his Facebook messenger correspondence with a third party (TP) where the following exchange occurred:

“TP: Fuck me mate you’ve upset a lot of people.

P: It’s all rubbish.

TP: What’s the go. MMA community is in uproar about you.

P: No contract. No pay. And they want me to pay for it.  No thanks, not the way I do business.  We are not a charity.  Charges will be pressed next week.

TP: You have to be kidding right? Talking contracts for someone like Brian is weak as piss.  You won’t be doing much business after this fuck up.

You legit or pulling my leg about contracts? You can’t be that stupid can you?”

44. [44]
    In cross examination, the plaintiff indicated that person was a customer.  That is certainly not clear from the words used in the post.  When asked in cross examination, the plaintiff declined to provide the name of that customer or the numerous other customers whom it was said had sent him communications.  The plaintiff said he did not wish for them to become involved.
45. [45]
    The clear impression left is that there is no evidence of the business of the plaintiff being affected.  Rather, there was commentary, like the one example provided by the plaintiff, as to whether the approach being taken by the plaintiff to Brian was appropriate.
46. [46]
    Brian was called and cross examined by the plaintiff.  Brian gave evidence as to feeling intimidated by the plaintiff.
47. [47]
    It was not apparent from his oral evidence that the plaintiff had any hurt feelings or distress as a result of the video or post.  He was robust in his approach to the posts and the court and appeared to genuinely consider that merely by being called a weasel, petty little man and a dill pickle and it being said that his business or products sucked or were crappy that he was entitled to the substantial damages claimed.  His arrogant manner suggested that the driving motivation for the litigation was not vindication of his reputation, but a monetary reward.
48. [48]
    I do not accept that the plaintiff suffered hurt feelings or distress, and none was alleged in the statement of claim or written submissions or sworn to in any of his affidavits.  The plaintiff himself asserted, in the 21 September hearing: “If every time someone whinged at you, then you reported it, you’d never do anything else but that, you know, so I take it with a grain of salt. I’ve got thick skin. I’ve been in business for 40 years.”
49. [49]
    Further, in the assessment hearing on 30 November 2020, the plaintiff said:

“…your Honour, if – if – if I took issue with every hater, honestly, it’s – the skin’s thicker than that. I can’t walk. I’m sorry. This – this was – this stuff was coming through my feed on a regular basis, but I just delete it. Do you know? I didn’t get where I am today…”

50. [50]
    That Brian, whose evidence I accept, felt intimidated by him is consistent with my observations of the plaintiff.  It is unlikely the plaintiff felt anything as a consequence merely of the defendant’s defamatory comments. 
51. [51]
    It is clear that matters external to the plaintiff’s reputation were driving the suit.  In his affidavit the plaintiff says, “Due to the Defendants interference and influence, Brian Morley terminated both his professional and personal relationships with me.” That eventuality had nothing to do with the publications, but, in the plaintiff’s own words, occurred as a consequence of the defendant’s relationship with Brian; a relationship which, on the material, appears to have developed as a result of the plaintiff’s own actions in refusing to pay for Brian’s flight and his reaction to the defendant making other arrangements for him.

Approach to damages

52. [52]
    In proceeding to assess damages, I do so on the basis that there is no evidence of any actual loss, nor did the plaintiff claim in the statement of claim any economic loss. 
53. [53]
    Absent a claim for economic loss, an award of damages for defamation serves three overlapping purposes:^[1]

    1. (a)
       Consolation for the plaintiff’s hurt and distress caused by the publication;
    2. (b)
       Reparation for the harm done to the plaintiff’s reputation; and
    3. (c)
       Vindication of the plaintiff’s reputation.
54. [54]
    A single amount is awarded by way of reparation, consolation and vindication.^[2] No claim is made for aggravated damages.
55. [55]
    The purpose of an award of damages is not to punish the defendant but to compensate the plaintiff.  There is no precise formula for the calculation of damages.  The amount is arrived at by “good sense and sound instincts” and by “what is a fair and reasonable award, having regard to all the circumstances of the case.”^[3]
56. [56]
    The extent of the publication and the seriousness of the defamatory sting are pertinent considerations.^[4]  The extent of the person’s hurt feelings “must be established on the evidence and the court’s assessment of it.”^[5] The court will need to assess the subjective response of the plaintiff.^[6]
57. [57]
    But ultimately, in determining the amount of damages to be awarded in any defamation proceeding, s 34 of the Defamation Act 2005 (Qld) requires the court to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.
58. [58]
    The keeping of the rational relationship is particularly significant here having regard to the words used and the context in which they were said.

Assessment of Damages

59. [59]
    In this case some of the words were little more than abusive, albeit taken to be defamatory given the default judgment, and ones used in the context of a value judgment by the defendant about the plaintiff’s admitted conduct in relation to another person; which conduct, according to the evidence adduced by the plaintiff and the defendant, was also negatively viewed by others in the community of which the plaintiff was a part.
60. [60]
    It is clear from the video that the defendant considered that the plaintiff had wrongly treated Brian in refusing to pay for his flight from Melbourne to Brisbane to attend the fight and thereby potentially denying him the right to participate in the fight. 
61. [61]
    The publication of the post and video appears to have limited exposure and seems to have been viewed by those within the MMA industry.
62. [62]
    There is no evidence as to the plaintiff’s reputation in that industry nor the extent of the harm to that reputation.  It does not follow from the absence of any evidence as to reputation that the plaintiff is not entitled to damages: the court will presume that the plaintiff suffered some injury.^[7]
63. [63]
    It is hard, however, to ignore the inference from the evidence that any harm done to the plaintiff’s reputation occurred, not by reason of the publications, but because of the plaintiff’s own actions in insisting on binding a person like Brian to a contract and, perhaps, given the statement of a person involved in the industry which became part of the evidence, the plaintiff’s unwillingness to pay Brian’s airfare in the first place.
64. [64]
    Prior to the assessment hearing, the defendant had not apologised for the making of the posts but rather had sought to provide an explanation for the making of the posts by him.
65. [65]
    At the hearing, the defendant apologised sincerely to the plaintiff for the events which had unfolded; but continued to stand by Brian who he remained of a view had been wrongly treated by the plaintiff.
66. [66]
    Given the absence of any evidence as to the reputation of the plaintiff or that the posts had any effect upon the plaintiff’s reputation, that any harm to the plaintiff’s reputation appears to have been caused by his own conduct not by the publication, and that the plaintiff did not suffer in truth any hurt feelings or distress as a result of the publications, the award of damages should be very low.
67. [67]
    Doing the best that I can, I assess damages in the sum of $100. 

Costs

68. [68]
    It is appropriate for costs to follow the event but, given that the proceedings could have been brought in the Magistrates Court, the costs must be limited to the filing fees allowed in that court:
69. [69]
    By reference to the Magistrates Court’s scale, the costs to be awarded will be in an amount of:

• For filing of the claim and statement of claim: $413.15.^[8]
• For service of the claim and statement of claim: $52.50.