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Kelly v Levick[2016] QMC 11

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Kelly v Levick [2016] QMC 11

PARTIES:

JUNE MARION KELLY

(Plaintiff)

v

DAVID LEVICK

(Defendant)

FILE NO/S:

M14/15

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

Magistrates Court

DELIVERED ON:

14 June, 2016

DELIVERED AT:

Bowen

HEARING DATE:

31 March 2016

MAGISTRATE:

S Young

ORDER:

  1. The Defendant is liable to the Plaintiff for defamation.
  2. Damages to be paid by the Defendant to the Plaintiff are in the sum of $10,000.00 plus interest of $784.74.
  3. I will hear the parties as to costs.

CATCHWORDS:

DEFAMATION – FACEBOOK – PUBLICATION – JURISDICTION – ‘GRAPE-VINE EFFECT’ – ASSESSMENT OF DAMAGES – MITIGATION.

Dow Jones v Gutnick [2002] 210 CLR 575

Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279

Reader’s Digest Service Pty Ltd v Lamb [1982] HCA 4

David Syme & Co v Canavan [1918] HCA 50

Lee v Wilson & Mckinnon [1934] HCA 60

Cassell & Co Ltd v Broome [1972] AC 1027

Cerutti & Anor v Crestside Pty Ltd & Anor [2014] QCA 33

Ratcliffe v Evans [1892] 2 QB 524

Uren v John Fairfax & Sons Pty Ltd 1966) 117 CLR 118

Scalia v Scalia [2015] SADC 172

Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44

Crampton v Nugawela (1996) 41 NSWLR 176

Kilpatrick v Van Staveren [220] QCA 303

Roberts v Prendergast [2013] QCA 47

Beynon v Manthey [2015] QDC 252

Anderson v Gregory [2008] QCA 419

Hallam v Ross (no 2) [2012] QSC 407

Defamation Act  2005 (QLD)

Defamation Act 2005 (VIC)

COUNSEL:

Mr  S. Byrne instructed by Greenhalgh Pickard for the plaintiff.

Mr A. W. Collins instructed by Ruddy Tomlins & Baxter for the defendant.

Summary of facts

  1. [1]
    At 2:45pm on 24 November, 2014 the Defendant posted on his Facebook page:

“June turned out to be a thieving, lying, money crazed bitch who screwed me out of nearly 3 million rand – may she rot in Hell”  (the “Post”).

  1. [2]
    At 6:33am on 25th November, 2014, after being informed that the Post was generally viewable on his Facebook page, the Defendant says he removed the Post.
  1. [3]
    The Defendant denies that the Post was defamatory of the Plaintiff.
  1. [4]
    He further argues there is no evidence that the Post was downloaded in Queensland, the Plaintiff having particularised only two people to whom the post was allegedly published – one ordinarily resident in Melbourne, Victoria, the other in Durban, South Africa.
  1. [5]
    As there had been no ‘downloadin Queensland (within the meaning the High Court expressed in Dow Jones v Gutnick [2002] 210 CLR 575) the Defendant contends there is no jurisdiction for this Court to determine the claim (the “jurisdictional issue”).
  1. [6]
    As on the Plaintiffs case any publication occurred in Victoria and South Africa the Defendant argues this Court cannot find in favour of the Plaintiff as any cause of action exists within those jurisdictions (the “download issue”).
  1. [7]
    Details of the alleged publications only came to light during the course of the Plaintiffs evidence during the hearing of 31 March, 2016 and had not been addressed in the pleadings.
  1. [8]
    At the conclusion of the Plaintiffs case the Defendant sought Judgment against the Plaintiff on the basis of the jurisdictional issue and the download issue; he did not call or give any evidence.
  1. [9]
    The parties declined the opportunity to re-plead their cases.

Jurisdictional Issues

  1. [10]
    The legislation applicable to defamation in Queensland is the Defamation Act 2005 (Qld). It is part of a uniform law to apply to defamation in Australia[1]. It is noteworthy that this legislation was enacted some years after the high Court’s decision in Gutnick (supra).
  1. [11]
    Although the Defendant has consented to the jurisdiction of this Court and waived any jurisdictional irregularity by filing an unconditional Notice of Intention to Defend[2] it is still appropriate to consider whether this Court has jurisdiction to determine the matter.
  1. [12]
    Section 11 of Defamation Act includes a regime for the choice of jurisdiction, materially:
  1. “(1)
    If a matter is published wholly within a particular Australian jurisdictional area, the substantive law that is applicable in that area must be appliedin this jurisdiction[3] to determine any cause of action for defamation based on the publication.”
  1. [13]
    An “Australian jurisdictional area” includes the State of Victoria[4].
  1. [14]
    The Plaintiff must therefore establish that the Post was published within an Australian jurisdictional area. Any publication outside that area (such as South Africa) is not sufficient to establish the jurisdiction of this Court.
  1. [15]
    The Defendant, although admitting publication of the Post generally, did not admit to whom the publication was made[5].
  1. [16]
    The allegation of the Plaintiff is that the Post was published to one Ken Moull, a resident of Melbourne, Victoria. This allegation is contained in the pleadings (Further Particulars) of the Plaintiff and was addressed in cross examination of the Plaintiff[6].
  1. [17]
    Mr Moull was not called to give evidence at the hearing. Apparently he is the Defendant’s brother in law and told the Plaintiff at some unidentified time that he had seen the Post.
  1. [18]
    The Plaintiffs oral evidence in this regard was not challenged and I have no reason to doubt her veracity.
  1. [19]
    I find on the balance of probability Mr Moull was a person to whom publication of the Post was made and that he is ordinarily resident in the State of Victoria.
  1. [20]
    Pursuant to s.11 (1) of the Queensland Defamation Act, the legislation applicable to the State of Victoria must then be applied by this Court to determine any cause of action for defamation.
  1. [21]
    In all material respects the Victorian Defamation Act (2005)   - hereafter “the Act” - is the same as the Queensland Defamation Act (2005).
  1. [22]
    The “cause of action” is within the jurisdiction of this Court.
  1. [23]
    In relation to the issue of jurisdiction alone, the allegation that publication also occurred in South Africa does not disturb the word “wholly” contained in s. 11(1). The word “wholly” relates to whether publication occurs in more than one Australian jurisdictional area; that is not the case here. The publication in Australia is alleged to have been made to one person in Victoria so the provisions of s. 11(1) are applicable.
  1. [24]
    The Act only operates where a cause of action occurs within an Australian jurisdictional area so any publication outside that jurisdiction cannot be used to determine the issue (i.e. ss. 11(2) and (3) of the Act cannot enliven consideration of the jurisdiction which has the closest connection to the harm occasioned where the publication is extra-territorial).
  1. [25]
    In applying the Act I am satisfied that publication of the Post occurred within an Australian jurisdictional area and therefore the jurisdictional issue is resolved in favour of the Plaintiff.

Download issue

  1. [26]
    Similarly the Defendant did not raise the download issue in his pleadings and the Plaintiff says in submissions that she has now been taken by surprise by this allegation.
  1. [27]
    It is trite that the pleadings should define the issues in dispute between the parties[7] and although it may be argued that the ‘download issueswere not fully traversed in the Plaintiffs pleadings enabling the Defendant to respond, it is the Defendants responsibility to plead accordingly[8].
  1. [28]
    In the absence of pleading the Defendant cannot now introduce the ‘download issueto contest the Plaintiff’s allegations and the Defendants application in this regard must also be resolved in favour of the Plaintiff.
  1. [29]
    Further, the Defendant sought to rely upon Gutnick in support of a contention that jurisdiction is limited to where a person downloads the offending material:

“It is where that person downloads material that the damage to reputation may be done. Ordinarily then, that will be the place where the tort of defamation is committed.”[9]

  1. [30]
    The primary difficulty with this argument is that the Act now covers the field with respect to jurisdiction. While the location of the download continues to be fundamental to the issue of publication – and therefore jurisdiction - it is the Act and not the High Court principle that determines jurisdiction.
  1. [31]
    This argument is also resolved in favour of the Plaintiff.

Issues in dispute regarding liability

  1. [32]
    The issues raised in the Defence contesting liability can be summarised as follows:
  1. Whether the imputation of the ordinary meaning of the words of the Post were defamatory;
  2. Whether the Post sufficiently identifies the Plaintiff; and
  3. The inadvertent publication of the Post.

1 – Was the Post defamatory?

  1. [33]
    Consideration of whether the Post was defamatory within the natural or ordinary meaning of its words is a matter of fact to be determined by this Court.
  1. [34]
    In higher Courts that function falls to a jury however the principles to be applied by a jury are equally applicable to a Magistrate and can be conveniently summarised in the words of His Honour Brennan J: [10]

“The defamatory nature of an imputation is ascertained by a reference to general community standards, not by reference to sectional attitudes”.

  1. [35]
    In the present case it is alleged by the Plaintiff[11] that the ordinary and natural meaning of the words “June turned out to be a thieving, lying, money crazed bitch who screwed me out of nearly 3 million rand – may she rot in Hell” was that she was a person that:
  1. is of bad character;
  2. commits criminal offences;
  3. cannot be trusted; and
  4. suffers from a mental disorder.
  1. [36]
    The imputations of the words “…thieving, lying, money crazed bitch who screwed me out of nearly 3 million rand…” are that the person is a thief, dishonest and of bad character in relation to issues of money and therefore are within the ordinary meaning of the words used by the Defendant.
  1. [37]
    The imputation of the words “…money crazed bitch…” is not sufficient to establish that the person suffered from a mental disorder; it would ordinarily be considered an adverse reference to the character of that person in colloquial terms rather than an imputation about their mental health.
  1. [38]
    It is entirely within the natural and ordinary meaning of the words used and their imputations to conclude that the Defendant has made defamatory remarks about the person “June” and subject to the proper identification of that person, paragraphs 5(a) to (c) inclusive of the Statement of Claim are made out.

2 – Identification of the Plaintiff

  1. [39]
    To the extent that consideration of this issue is necessary - given the admissions in paragraph 3 of the Defence (that the Defendant published the Post) and the qualified denial contained in paragraph 4 of the Defence (that only persons who knew the Plaintiff and Defendant would identify the Plaintiff) - I consider that the Plaintiff was explicitly identified in the Post.
  1. [40]
    This is not a situation where there is a veiled or couched reference to a person or class of person as in David Syme & Co v Canavan [1918] HCA 50 but rather a specific reference to a person identified as “June”.
  1. [41]
    By inference the Defendant concedes that a person who knew both parties would understand the reference to “June” as being to his former wife, the Plaintiff.
  1. [42]
    In her evidence the Plaintiff estimated that the parties had a common network of friends of at least 300 -350 people in South Africa and 40 – 50 in Bowen of whom she estimates about 60% were Facebook friends with the parties.[12]
  1. [43]
    I do not accept these numbers to be anything other than a guess - and as they were referenced to the partiesposition in late 2011 there is a large degree of uncertainty about the actual situation at the time of the Post. Without attempting an actual quantification I accept that there was a social network of mutual friends located in South Africa and Queensland who remained in contact with the parties via Facebook at the time of the Post.
  1. [44]
    In response to a Request for Further Particulars of the Defence the Defendant refused to particularise the number of his Facebook friends (nor was he in any way required to do so).
  1. [45]
    In any event the Plaintiff only particularised two people to whom the Post was published: Anne Magnus of Durban, South Africa and the aforementioned Ken Moull. The Defendant did not raise an argument in his Defence or otherwise that these two people did not, or would not have, understood his reference to “June” as being a reference to the Plaintiff and it is clear from the Plaintiff’s evidence generally that these persons did in fact understand the Post as being about her.
  1. [46]
    I am satisfied on the balance of probability that the Post was also published to Anne Magnus as alleged by the Plaintiff. The oral evidence of the Plaintiff that Ms. Magnus first drew the Plaintiff's attention to the Post and then later forwarded a copy of it to the Plaintiff was not challenged and I do not doubt the Plaintiff's testimony in this regard.
  1. [47]
    The evidence clearly shows more people than the two particularised have seen the Post (the Facebook friend in South Africa, Roxy Bawden,[13] to whom the Defendant originally directed the Post and Anne Magnusson[14]) however it is not necessary to consider how far or wide the Post was published to determine whether the Defendants defamatory reference to “June” was a reference to the Plaintiff.
  1. [48]
    There is no doubt that the person to whom the Defendant was referring in his Post was the Plaintiff: he was responding to a congratulatory message from Ms. Bawden about his marriage and asking after "June", so the context of the words are entirely capable of being read as referring to the Plaintiff.
  1. [49]
    There is no allegation raised in the pleadings or submissions that there was another “June” who may have been confused with the Plaintiff as the subject of the Post.
  1. [50]
    Finally in his Facebook retraction (to which I shall return) the Defendant named “Ms J. Kelly” as the subject of his earlier “inadvertent” Post; there was no ambiguity in the Defendant’s mind as to whom he was referring.[15]

3 – Inadvertent publication

  1. [51]
    The Defendant seeks to qualify his admission of publication of the Post by raising issues of inadvertence.
  1. [52]
    The Post is said to be in the context of a private conversation with a Facebook friend in South Africa but rather than the reply being a private message the Post was mistakenly made available to his “Facebook friends” generally.
  1. [53]
    Whether the Defendant intentionally or inadvertently published the Post is irrelevant as inadvertence has long been held as no defence to libel (‘defamationin the modern expression) – for example per Dixon J Lee v Wilson & McKinnon [1934] HCA 60 at p288:

“… liability depends upon mere communication of the defamatory matter to a third person. The communication may be quite unintentional…”.

  1. [54]
    Even had the Post been limited to his correspondent, the Defendants Post would still have been defamatory in the proper sense.

Conclusion as to liability

  1. [55]
    The Defendants Post was defamatory of the Plaintiff in the ordinary and natural meaning of the words used and their imputations.
  1. [56]
    Jurisdiction exists for this Court to determine the cause of action.
  1. [57]
    The Post was admitted to have been published by the Defendant (although not to whom).
  1. [58]
    The Plaintiff particularised 2 people to whom that publication was made and I find on the balance of probability that publication was made to those persons after having considered the evidence of the Plaintiff.
  1. [59]
    As a result the Defendant is liable to the Plaintiff for damages in defamation.

Assessment of damages - considerations

  1. [60]
    Awards of damages are limited in this jurisdiction to a maximum of $150,000 being the amount sought in the Plaintiff’s Statement of Claim. The statutory cap for defamation awards under the Act is significantly more than the jurisdiction of this Court and is not a consideration in the circumstances.
  1. [61]
    Exemplary or punitive damages are not available.[16]
  1. [62]
    Factors to be regarded in mitigation are set out, in a non-exhaustive way in s.38 of the Act.
  1. [63]
    Damages for defamation are to be assessed so as to vindicate the Plaintiff's reputation, to give consolation for personal distress and hurt and to compensate the Plaintiff for the harm the defamation occasioned.[17]
  1. [64]
    The publication of defamatory material gives rise to a presumption of damage to reputation. It is not necessary for the Plaintiff to prove the damage to her reputation nor to establish that people thought less of her as a result of the Post.[18] 
  1. [65]
    Section 34 of the Act requires that there is to be an appropriate rational relationship between the harm sustained by the Plaintiff and the amount of damages awarded. However any award must be "at least the minimum necessary to signal to the public the vindication of the appellant's reputation".[19]
  1. [66]
    Damages for injured feelings are often the largest single (but not only) consideration in awarding damages. As stated in Cassell & Co Ltd v Broome[20] the harm caused often lies more in the Plaintiff's own feelings about what others are thinking of them than any actual change manifest in the attitude of other towards them - and such is the situation here; the Plaintiff in her evidence spoke of her concern about what others thought about her.[21] 
  1. [67]
    Damages should reflect the circumstances past and present as well as what is required to vindicate the Plaintiff's reputation in the future.[22]
  1. [68]
    Damages are not assessed in a formulaic way and the evidence of harm (together with the decisions of other Courts)[23] is not to be regarded as anything more than channel markers leading towards a broad anchorage; it is not a fixed track resulting in a mechanical and inevitable award.

Discussion of the decisions in Dow Jones v Gutnick [2002] 210 CLR 575 and Scalia v Scalia [2015] SADC 172

  1. [69]
    In Gutnick the High Court held at [44]:

"In defamation, the same considerations that require rejection of locating the tort by reference only to the publisher's conduct lead to the conclusion that, ordinarily, defamation is to be located at the place where the damage to reputation occurs. Ordinarily that will be where the material which is alleged to be defamatory is available in comprehensive form assuming, of course, that the person defamed has in that place a reputation which is thereby damaged[24]..." 

  1. [70]
    In Scalia Her Honour Judge McIntyre was unable to determine where publication had occurred due to the fact the material was posted on YouTube. However in reference to damages Her Honour held:

"[20]  Although the defamatory material may have been published and viewed in other States and Territories in Australia or indeed overseas, the plaintiff is entitled to recover damages in this action for any injury to his reputation and hurt to his feelings for the entire publication of the material including those publications outside the jurisdiction and outside South Australia."

  1. [71]
    The Defendant says in submissions that those authorities are incompatible and that the view expressed the High Court should be regarded as authority that damages for the harm experienced by the Plaintiff are limited to the jurisdiction of Queensland, and such authority must be followed by this Court.
  1. [72]
    I find these decisions are not mutually exclusive as they consider the different issues of jurisdiction and assessment of damages. In Gutnick the High Court was called upon the consider the appropriate jurisdiction to hear and determine an action for defamation arising out of an article published on the Internet however the Plaintiff had limited any consideration of damages arising from the alleged defamation to the State of Victoria only.
  1. [73]
    In Scalia, as in the present case, damages were sought without any reference to jurisdictional boundaries (once jurisdiction had been established).
  1. [74]
    Scalia is entirely consistent with the principle affirmed Windeyer J in Uren v John Fairfax & Sons Pty Ltd[25] that a person who is defamed does not receive compensation for their damaged reputation but simply because their reputation was defamed.
  1. [75]
    It is the assessment of the harm to reputation that allows a Court to consider evidence of that harm occurring extra-territorially. It is entirely separate to the consideration of jurisdiction.
  1. [76]
    As such I respectfully consider Judge McIntyre's statement to be correct in its proper context and I consider it highly persuasive.
  1. [77]
    Nothing in section 34 of the Act implies that in determining the appropriate and rational relationship between the harm suffered and the damage awarded that consideration is limited to harm in any particular jurisdiction (Australian or otherwise) and section 6(2) of the Act confirms that the usual law of defamation applies except to the extent as may be inconsistent with the Act.
  1. [78]
    Therefore in order to consider the appropriate and rational relationship of damages to be awarded I should have regard to any relevant evidence of harm suffered by the Plaintiff, whether in Australia or South Africa.

The "grapevine" effect

  1. [79]
    Damages may take into account what has been referred to as the "grapevine" effect;[26] the recognition that dissemination of the defamatory material may occur (whether through secondary publication or wider discussion and repetition) between a broader group of people than those to whom the publication was made - and that it may continue.
  1. [80]
    There is evidence in this case that the 'grapevine' effect already in operation; the Plaintiff's testimony was that she understood that Anne Magnus was told about the Post by her son before Ms. Magnus brought the Post to her attention.[27]  Ms. Magnus only sent the Plaintiff a copy of the Post around 30 December, 2014,[28] more than a month after the Post was said to have been removed from the Defendant’s Facebook page.
  1. [81]
    Consideration of the 'grapevine' effect in damages is relevant in the context of publication through social media, such as Facebook, as the speed and scope of dissemination is not limited solely to the 'Facebook friends' of the Defendant but potentially to anyone who has access to the 'feed' or 'timeline' of any of the friends of the friends (or of their friends etc).
  1. [82]
    Or to adopt the language of Lord Halisham LV in Cassell & Co v Broome[29] the potential "lurking places" from which defamatory material can emerge in the future is multiplied when such material is published on social media.  The scope of publication is potentially limited only by access to the Internet[30] and it seems practically impossible to completely expunge a post or entry (or republication or comment about it) from the virtual world - as has been demonstrated in this matter by Ms. Magnus’ subsequent email to the Plaintiff with a copy of the Post.
  1. [83]
    Further evidence supporting the application of the grapevine effect to the present circumstances includes the testimony of the Plaintiff that in 2011 the Plaintiff and Defendant shared many hundreds of mutual contacts in South Africa and Queensland (and one extended family member in Victoria), about 60% of whom were on-line with the parties. I have already indicated the caution with which I regard the accuracy of this evidence however it does carry some small weight in this context.
  1. [84]
    There was also a response from the Plaintiff when cross examined about why only 2 people had been particularised as having seen the Post - her reply was that there were others who had seen the Post but didn't want to be involved (in the litigation).[31]  Again I am hesitant to place any weight on this evidence other than as supporting a general conclusion that consideration of a 'grapevine effect’ in assessing damages is appropriate.

Vindication of Reputation

  1. [85]
    It is not necessary for the Plaintiff to prove damage to her reputation; it is presumed once defamatory publication is established. However such evidence may be relevant to the appropriate assessment of damages.
  1. [86]
    No evidence was called from either Ms. Magnus or Mr. Moull regarding the effect the Post had upon their opinion of the Plaintiff's reputation or whether it had changed as a result of the Post.
  1. [87]
    The only other person to give evidence (apart from the Plaintiff) was her current partner Mr. Dunlop who had not seen the Post, although he was aware of it in the ordinary course of his relationship with the Plaintiff.
  1. [88]
    Notwithstanding that the Post occurred in the context of years of acrimonious divorce and property settlement proceedings, which was no doubt known to Ms. Magnus and Mr. Moull, the Defendant's Post cannot be justified or diminished simply on the basis of this context as the Defendant contends.
  1. [89]
    That the Post is disingenuous even from the Defendant's perspective is relevant to the vindication of the Plaintiff's reputation. The assertion that the Plaintiff was a "...thieving lying, money crazed bitch who screwed me out of nearly 3 million rand[32]..." must be considered in the circumstances that the Defendant had just days earlier been called to account by the Plaintiff to perform the final terms of their Court ordered property settlement[33].
  1. [90]
    It is also relevant that the Defendant had stated some 2 ½ weeks earlier in an email to the Plaintiff that he would not shy away from publishing defamatory material about the Plaintiff.[34]
  1. [91]
    The Court has been provided with almost no information about the Plaintiff’s reputation in Victoria and so damages for vindication to the Plaintiff’s reputation (to the extent that it exists in the mind of one person) can only be nominal.
  1. [92]
    Similarly, while the Plaintiff gave evidence of maintaining contacts with mutual friends in Bowen[35] there is no evidence of publication in Queensland or that the group of mutual friends in Queensland have any interaction with the mutual friends in South Africa (that is, the extent to which a Facebook post to a South African based friend of the Defendant is likely to be viewed by the Plaintiff’s Queensland friends). As such this information is only relevant to the wider consideration of “grapevine” effects and can only have a nominal effect even then.
  1. [93]
    The tenor of the Plaintiff’s evidence was that the main concern for her reputation was that in Durban, South Africa. Although the Plaintiff alludes to maintaining old friendships and says she visits Durban regularly the only person actually nominated as having received the Post was Ms. Magnus.
  1. [94]
    Vindication of the Plaintiff’s reputation is assessed to be primarily for the benefit of 2 people with appropriate consideration of the possibility of wider future dissemination.

Personal distress

  1. [95]
    The Plaintiff gave evidence that she felt "devastated" and later “mortified” when she heard about the Post[36] and that she still remains “demoralised and hurt” about the Post.[37] 
  1. [96]
    She said she had troubling sleeping and had been using sleeping tablets[38] although this seems to be a continuation of similar difficulties she experienced during the protracted property settlement proceedings and exacerbated by the necessity of returning to Court to enforce the last tranche of the property settlement payment.[39]
  1. [97]
    She wondered what other people were thinking of her as a result of the Post.[40]
  1. [98]
    Mr Dunlop gave evidence that he could recall the Plaintiff becoming upset over the Post and it affecting her sleep.[41]  However he described the relationship between himself and the Plaintiff as very happy and contented.[42]
  1. [99]
    As I observed the Plaintiff giving evidence I formed the view that the Plaintiff had a tendency to overstate the distress she has suffered as a result of the Post.
  1. [100]
    I have no doubt that she was distressed however the evidence of Mr Dunlop about his relationship with the Plaintiff together with a copy of a Facebook photo showing the couple in a relaxed and happy social setting (and with the comments it attracted, together with the Plaintiff's replies) diminishes the evidence of the Plaintiff.
  1. [101]
    There is also Plaintiff's own communication with the Defendant in the lead up to the commencement of litigation which is pertinent to the Plaintiff’s attitude towards the Defendant and the distress she says she has suffered.
  1. [102]
    She conceded in cross examination that her email exchanges with the Defendant did not mention any distress she was experiencing[43] and it seems that the overall purpose of the email exchange from the Plaintiff’s point of view – exchanges which included casual abuse of the other by both parties - was to obtain a reaction from the Defendant.[44] 
  1. [103]
    I accept the Plaintiff was hurt, frustrated and irritated by the Post but not “crushed” or “demoralised”. The Post appears to have little to no impact upon her social activities or close personal relationships.

Harm

  1. [104]
    Malice was not pleaded by the Plaintiff in her Claim as justifying an award of aggravated damages even though that appeared to be her view of the Defendant’s motivation.[45] 
  1. [105]
    Section 36 of the Act relevantly provides:

“36.  In awarding damages for defamation, the court is to disregard the malice or other state of mind of the defendant at the time of the publication of the defamatory matter to which the proceedings relate or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff.”

  1. [106]
    Given the lack of evidence generally about any harm suffered by the Plaintiff other than her own personal distress I consider this to be a nominal issue with respect to damages.

Mitigation

  1. [107]
    Without limiting the factors that a Court can take into account in mitigation of damages, Section 38 of the Act provides:
  1. “(1)
    Evidence is admissible on behalf of the defendant, in mitigation of damages for the publication of defamatory matter, that—
  1. (a)
    the defendant has made an apology to the plaintiff about the publication of the defamatory matter;…”
  1. [108]
    At page 17 of Exhibit 1 there is shown an email from the Plaintiff to the Defendant’s solicitor dated 29 January, 2015 requiring an “acceptable handwritten apology and public Facebook apology…within 7 days”.
  1. [109]
    The Defendant says that he has substantially complied with the Plaintiff’s demand to provide a handwritten apology as well as on his Facebook page however the Plaintiff has urged me not to take the Defendant’s actions into account in mitigation as she says they were outside her self-imposed deadline and that the character and content of the apologies are extremely questionable.
  1. [110]
    The Defendant apparently posted the handwritten apology by registered mail on the 4 February, 2015 and a copy was attached to an email to the Plaintiff from the Defendant’s solicitors on 10 February 2015.[46]
  1. [111]
    A copy of the Defendant’s Facebook apology was included in Exhibit 1 at page 26 however it is undated and the Plaintiff complains there was no indication as to how long the apology remained on the Defendant’s page.
  1. [112]
    The Plaintiff said in cross examination that she did not consider the handwritten apology she ultimately received as being “genuine” but could not elaborate on what she meant by that or what type or style of apology would have satisfied her.[47]
  1. [113]
    By not specifying any content or form of the apologies the Plaintiff cannot rely upon a subjective view about the apology being “unacceptable” in asking the Court to disregard the actions of the Defendant nor can she resist a conclusion that the handwritten apology and Facebook post were in fact made – as she ultimately conceded in cross examination.[48]
  1. [114]
    There is no doubt that both the handwritten apology and Facebook apology were minimalist but as they were completed they are relevant to mitigation and I consider this to be so notwithstanding that they may not have been made within the seven day period specified by the Plaintiff.
  1. [115]
    I have been unable to identify any other mitigating factors in the Defendant’s conduct or in the Claim generally.

Authorities

  1. [116]
    I have been referred to a number of authorities with respect the assessment of damages all of which are helpful in framing the general principles of assessing damages however none are directly on point to this matter.
  1. [117]
    I have had regard to Cerutti & Anor v Crestide Pty Ltd & Anor [2014] QCA 33 (to which I have previously referred), Anderson v Gregory [2008] QCA 419 and Hallam v Ross (No 2) [2012] QSC 407 generally with respect to an appropriate award of damages however other decisions contained relevant considerations.
  1. [118]
    In Kilpatrick v Van Staveren[49] a total award of $50,000 was made ($30,000 general, $10,000 aggravated and $10,000 exemplary) where the defendant had sent a letter to the plaintiff’s employer effectively alleging theft by the plaintiff. No apology was made and there was evidence of the physical consequences suffered by the Plaintiff.
  1. [119]
    Roberts v Prendergast[50] awarded a sum of $50,000 to a builder who was defamed in his capacity as a reputable builder. Consideration was given to the grapevine effect as it applied to a smaller community where the plaintiff conducted business. There was also independent evidence of the emotional impact the defamation had had upon the plaintiff.
  1. [120]
    In Beynon v Manthey[51] the District Court allowed damages in the sum of $25,000 as a result of a television interview of a former nanny of the plaintiff’s children alleging the plaintiff was a reckless parent and not fit to be a parent in that he allowed his children to participate in, or were exposed to, debaucherous parties for adults.
  1. [121]
    No information about the plaintiff’s hurt or harm was tendered and the Court took into the general reputation of the Plaintiff (including photographs published by the Plaintiff on his Instagram account) as well as the fact that the defamation was published nationally. No apology had been made by the defendant.

Damages to be awarded

  1. [122]
    On the basis of the considerations set out above I award the Plaintiff the sum of $10,000 together with interest to the date of this judgment at the rate of 4%.
  1. [123]
    I will hear the parties further with respect to the issue of costs.

S. Young

14 June, 2016

Footnotes

[1] As expressed in s.3.

[2] UCPR rule 144(7)

[3] i.e. Queensland.

[4] s.11(5)(a).

[5] Paragraph 4 of the Defence.

[6] Transcript page 1-25 commencing at line 12.

[7] Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279.

[8] UCPR 149, UCPR 150.

[9] Gutnick (supra) at [44].

[10] Readers Digest Service Pty Ltd v Lamb [1982] HCA 4.

[11] Paragraph 5 of the Statement of Claim.

[12] Transcript commencing p. 1-9 at 44.

[13] Exhibit 1 p. 15.

[14] Transcript p. 1-25 at 45.

[15] Exhibit 1 p.26.

[16] s.37.

[17] Cerutti & Anor v Crestside Pty Ltd & Anor [2014] QCA 33.

[18] Ratcliffe v Evans [1892] 2 QB 524 at 530 per Bowen LJ.

[19] Op Cit 12 at [25] per Applegarth J.

[20] [1972] AC 1027 at 1125.

[21]Transcript p.1-16 line 1.

[22] Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44.

[23] The cautions of Applegarth J in Cerutti (supra) are particularly pertinent.

[24] Emphasis added.

[25] (1966) 117 CLR 118 at p148, cited by Lord Hailsham LC in Cassell & Co v Broome [1972] AC at 1071 and by Gotterson JA in Roberts v Prendergast [2013] QCA 47 at [39].

[26] Crampton v Nugawela (1996) 41 NSWLR 176, cited and applied by the Court of Appeal in Roberts v Prendergast [2013] QCA 47.

[27] T – P 1-25; L45.

[28] Transcript p1-14 at line 8.

[29] [1972] AC at 1027.

[30] Gutnick (supra) at 80.

[31] Transcript p. 1-25 at line 33.

[32] 3 million rand was approximately AUD $310,000 in November, 2014 (currency-converter.net).

[33] Transcript p. 1-8 at lines 36 – 47.

[34] Pursuant to paragraph 3(a) of the Statement of Claim and admitted in paragraph 2 of the Defence. The Defence continues with a further extraction from the email but chose to omit the remainder of that email which involves further abuse of the Plaintiff.

[35] Transcript p. 1-9 at 24.

[36] Transcript p. 1-15 at 6.

[37] Transcript p. 1-37 at 40.

[38] Transcript p.1-17 at 14 – 27.

[39] Transcript p. 1-17 at 19.

[40] Transcript p. 1-16 at 1 – 3.

[41] Transcript p. 1-48 at 23 – 34.

[42] Transcript p. 1-51 at 7.

[43] Transcript p. 1-27 at 40.

[44] Transcript p. 1-41 at 34

[45] Transcript p. 1-16 at 34

[46] Exhibit 1 p 23 - 25.

[47] Transcript p. 1-42 commencing at 1.

[48] Transcript p. 1-41 at 41 – 45.

[49] [220] QCA 303.

[50] [2013] QCA 47.

[51] [2015] QDC 252.

Close

Editorial Notes

  • Published Case Name:

    Kelly v Levick

  • Shortened Case Name:

    Kelly v Levick

  • MNC:

    [2016] QMC 11

  • Court:

    QMC

  • Judge(s):

    S Young

  • Date:

    14 Jun 2016

Appeal Status

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