Doak v Birks
[2022] NSWDC 625
•12 December 2022
|
New South Wales |
Case Name: | Doak v Birks |
Medium Neutral Citation: | [2022] NSWDC 625 |
Hearing Date(s): | 12 December 2022 |
Date of Orders: | 12 December 2022 |
Decision Date: | 12 December 2022 |
Jurisdiction: | Civil |
Before: | Gibson DCJ |
Decision: | (1) Judgment for the plaintiff for $283,358.79, made up as follows: |
Catchwords: | TORT - defamation - fifteen posts on Facebook accusing the plaintiff of recklessly endangering the lives of children in rodeo competitions - defendant files a submitting appearance and submits to the making of all orders sought except costs - whether imputations conveyed - whether serious harm established - claims for aggravated and special damages - judgment for the plaintiff for $283,358.79 |
Legislation Cited: | Defamation Act 2013 (UK) c 26, s 1 |
Cases Cited: | Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154 |
Texts Cited: | Council of Attorney-General Review of the Model Defamation Provisions – Background paper |
Category: | Principal judgment |
Parties: | Matthew Doak (plaintiff) |
Representation: | Counsel: |
File Number(s): | 2022/00205065 |
Publication Restriction: | Nil |
Judgment
The proceedings before the court
The plaintiff brings proceedings for defamation for the publication of two posts made by the defendant on his Facebook page and thirteen responses to those posts made by others for which the defendant is liable pursuant to the principles set out in Fairfax Media Publications Pty Ltd v Dylan Voller; Nationwide News Pty Ltd v Dylan Voller; Australian News Channel Pty Ltd v Dylan Voller [2021] HCA 27; 95 ALJR 767; 392 ALR 540 (“Voller”).
The defendant, through his solicitors, Zucker Legal, has filed a submitting appearance on 17 October 2022, thereby submitting to the making of all orders sought and the giving or entry of judgment in respect of all claims made, save as to costs.
The defendant having taken no part in the conduct of the proceedings and having filed no defence, the matter has been listed for hearing on the remaining matters to be determined, namely:
(a)Whether the publication of the matters complained of has caused, or is likely to cause, serious harm to the reputation of the plaintiff. This exercise includes having regard to the imputations conveyed as well as the particulars provided in the pleadings and concerns notice.
(b)The quantification of damages, including general, aggravated and special damages.
The circumstances leading to publication of the matters complained of
The plaintiff and defendant are members of the rodeo community in New South Wales and participate in a sport known as “bull bucking”, namely riding a bull in an arena in a competition with others to see who can stay on longest. Those contests are generally conducted under the aegis of the Australian Bushmen’s Campdraft Rodeo Association (“ABCRA”), an organisation for which the defendant is one of the directors. The ABCRA performs a supervisory role in relation to safety issues for bull riders and others who participate in these events.
As part of his rodeo activities, the defendant often fills the role of “Protection Athlete” whose role is to ensure the safety of the riders.
One feature of the sport is that children and teenagers up to about 15 years may participate in special events by riding on a “mini bull” in the children’s competition part of the rodeo program. The plaintiff’s company, Doak Bucking Bulls Pty Ltd (“DBB”), is a mini bull stock contractor company which was contracted to, and did, provide mini bulls for use in children’s competitions.
On 11 - 12 March 2022, the ABCRA hosted a rodeo in Coonabarabran. The plaintiff’s company supplied mini bulls for the competition. In the course of the evening a young male aged about 12 years, was thrown from a bull while competing in the rodeo.
According to a contemporaneous account of events sent to the ABCRA by Ms Keven (Exhibit KK2 to her affidavit of 5 December 2022), the defendant became angry about the plaintiff, calling him a “kid killer” and warning other persons present that “Any kid that rides Matthew Doak’s mini bulls will not be helped if they get into trouble”, by which he meant that any competitors who needed intervention from the Protection Athlete (i.e. if they were in danger and needed help in the arena) would not get any assistance. These words were heard by Ms Keven’s husband and son, both of whom were at the rodeo that night.
On 14 March 2022, the defendant posted a 7-second video of the child falling off the bull and posted:
“Not my bull not my kid but I think the rest of you will understand why it’s been put up!!!!
Feel free to send Matthew Doak a message and give him a peace [sic] of your mind. (But keep in mind) you can’t teach STUPID!!!!”
The readers who saw the post deluged both the plaintiff’s Facebook accounts and the defendant’s Facebook accounts. There were 204 comments and 163 emojis sent concerning the first matter complained of. Matters B and C and the publications following matter E fall into this category.
In response, the defendant published an even more vitriolic post (the fourth matter complained of, Exhibit D):
“Lindsey Kennedy apparently Matthew Doak was mate???? [sic] I’m sure something will be done or we won’t have any kids here in 5 years. We don’t got [sic] enough now let alone killing them off now.”
In fact the boy in question suffered some mild injuries as a result. Mr Finch informed me from the bar table that the boy was not taken to hospital or otherwise treated for any significant injury and was back riding bulls within a week.
There was never any investigation by the ABCRA into potential breaches of safety requirements. The ABCRA sent a polite letter of acknowledgement to Mrs Keven’s email of 15 March 2022 complaining about the defendant’s conduct and asking that he be tested to determine whether he had a drug issue, but has not carried out any inquiry into safety issues of any kind, either in response to the defendant’s claims about the plaintiff, or in response to the complaint by Mrs Keven about the defendant’s conduct, including the concerns she raised about his erratic behaviour on other occasions.
The matters complained of
The key publications are Schedule A and Schedule D, which are authored by the defendant. Important factors, in terms of the principles in Voller, are his calling on others on social media to attack the plaintiff (a feature also demonstrated in Martin v Najem [2022] NSWDC 479) and Schedule D, in which speaks of the “killing” of children in circumstances where, in five years’ time, there would be no children left to compete.
I set out each publication and the imputations pleaded, together with my findings in relation to imputations.
The first matter complained of
On 14 March 2022 the defendant published the following on his Facebook page, accompanied by a 7-second video of a young rider falling off a bull.
“Not my bull not my kid but I think the rest of you will understand why it’s been put up!!!!
Feel free to send Matthew Doak a message and give him a peace [sic] of your mind. (But keep in mind) you can’t teach STUPID!!!!”
The imputations pleaded are as follows:
“A. The plaintiff, as the operator of a children's rodeo, recklessly endangered the lives of children participating in the rodeo.
B. The plaintiff, as the operator of a children's rodeo, was recklessly indifferent to the safety of children participating in the rodeo.
C. The plaintiff, as the operator of a children’s rodeo, selfishly put profit ahead of the wellbeing of children participating in the rodeo.”
Each of the above imputations is conveyed. The drawing of an inference as to why the post has been “put up” is because of the plaintiff’s alleged reckless endangerment of children participating in the rodeo by providing bulls too dangerous for the children to ride.
This post was the catalyst for a torrent of abusive posts on the defendant’s Facebook account as well as responses to the defendant’s post and for which he is liable by reason of the principles set out in Voller.
The second matter complained of
On 14 March 2022, by reasons of the principles set out in Voller, the defendant published:
“Josh Birks lol that will happen. Probly [sic] right jacked up too about dusting little kids”.
The following imputation is pleaded:
“A. The plaintiff, as the operator of a children’s rodeo, was selfishly more interested in his own ego than the welfare of children participating in the rodeo.”
Read in the context of the post from which it is following, this imputation is clearly conveyed.
The third matter complained of
On 14 March 2022 the defendant published the following:
“Biggest killer of bullriders are fools with bulls”
The following imputation is pleaded:
“A. The plaintiff, as the operator of a children's rodeo, recklessly put children participating in the rodeo at risk of being killed.”
Read in the context of the post from which it is following on, this imputation is clearly conveyed.
The fourth matter complained of
On 14 March 2022 the defendant published the following:
“Lindsey Kennedy apparently Matthew Doak was mate???? I’m sure something will be done or we won’t have any kids here in 5 years. We don’t got [sic] enough now let alone killing them off now”
The following imputation is pleaded:
“A. The plaintiff, as the operator of a children’s rodeo, recklessly put children participating in the rodeo at risk of being killed.”
When reading the words in the context of social media, I take into account the observations of the Full Court of the Federal Court of Australia in Bazzi v Dutton [2022] FCAFC 84 at [29], citing Stocker v Stocker [2020] AC 593 concerning “the new class of reader”, namely the social media reader. The reader in question does not necessarily take words such as “strangled” (the word the subject of interpretation in Stocker v Stocker) literally, and will interpret terms such as “killing them off”, not as requiring literal proof of children being killed, but as children who could be at risk of serious injury or death (see also Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd [2022] NSWCA 150 where the term to be interpreted was “slit your throat”). The imputation pleaded here has correctly encapsulated these principles and distilled the meaning appropriately.
The fifth matter complained of
On 14 March 2022 the defendant, on Voller principles, published the following:
“That’s the kind of shit that kills r [sic] sport and then they wonder why we have no cowboys coming up the ranks and every time you wipe them kids out you create another golfer, true story”
The following imputations are pleaded:
“A. The plaintiff, as the operator of a children’s rodeo, recklessly put children participating in the rodeo at risk of being harmed.
B. The plaintiff, as the operator of a children’s rodeo, was recklessly indifferent to the safety of children participating in the rodeo.”
The words (“kills” sport and “wipe them kids out”) once again are used in a hyperbolic sense and the pleader has wisely eschewed overly serious pleadings of the kind seen in Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd. The likelihood that the post is not entirely serious is demonstrated by the author going on to warn that young children discouraged by the dangers of bull riding might sink to taking up golf instead.
The sixth matter complained of
On 14 March 2022 the plaintiff published (in the Voller sense):
“Gina Webb-hall
So let’s get kids injured before they even get up in ranks c’mon DOAK! Wtf”
The following imputation is pleaded:
“A. The plaintiff, as the operator of a children's rodeo, recklessly put children participating in the rodeo at risk of being killed.”
Read in the context of the first and fourth posts, from which it is following on, this imputation is conveyed by the matter complained of.
The seventh matter complained of
On 14 March 2022 the plaintiff, on Voller principles, published:
“John Birks
Mr Doak is a fuckwit people like him is one of the reasons I and lot of other concerned parents fired the JDC to protect our children from Mr know it all’s like him. If you Mr Doak want to learn what time of stock to put our juniors ongo [sic] talk to Tim and Peter kennedy [sic]. They were there to see our juniors ride there [sic] stock and learn how to ride, not to put them on and be bucked off at the and get hurt maybe the JDC should come back and get people like you out of junior rodeo. If you think you can fix me up I will be around.”
The following imputations are pleaded:
“A. The plaintiff, as the operator of a children's rodeo, recklessly put children participating in the rodeo at risk of harm.
B. The plaintiff, as the operator of a children’s rodeo, was recklessly indifferent to the safety of children participating in the rodeo.
C. The plaintiff, as the operator of a children’s rodeo, was more interested in his own ego than the welfare of children participating in the rodeo.
D. The plaintiff, as the operator of a children's rodeo, was so reckless and indifferent to the safety of the children participating in the rodeo that parents need to protect their children from him.”
Each of the pleaded imputations is conveyed from the text of this post.
The eighth matter complained of
On 14 March 2022 the defendant, on Voller principles, published:
“Kim Gallaway respectfully you don’t know the extent of it. And I guess it’s ok for Doaky to bully my son behind the chutes when no-ones [sic] around but can’t call him out in front of people on facebook on something that has been voiced and ignored.”
The imputations pleaded are:
“A. The plaintiff, as the operator of a children's rodeo, bullies children.
B. The plaintiff, as the operator of a children's rodeo, was recklessly indifferent to the mental wellbeing of children participating in the rodeo.”
Each of these imputations is conveyed by this post.
The ninth matter complained of
On 14 March 2022 the defendant, on Voller principles, published:
“It’s ment 2 b about building kids confidence n the future of our sport not destroying n gettin kids hurt n breakin them. N I 2nd the [sic] can’t fix stupid Josh Birks”
The imputations pleaded are:
“A. The plaintiff, as the operator of a children's rodeo, recklessly put children participating in the rodeo at risk of harm.
B. The plaintiff, as the operator of a children’s rodeo, was recklessly indifferent to the safety of children participating in the rodeo.
C. The plaintiff, as the operator of a children’s rodeo, was recklessly indifferent to the mental wellbeing of children participating in the rodeo.”
Each of these imputations is conveyed by this post.
The tenth matter complained of
The plaintiff, on Voller principles, published:
“Vicki Schiller
Not appropriate stock for event there is too much of this happening no wonder there aren’t many rough stock riders they break there [sic] hearts before they hardly get started”
The following imputations are pleaded:
“A. The plaintiff, as the operator of a children's rodeo, recklessly put children participating in the rodeo at risk of harm.
B. The plaintiff, as the operator of a children’s rodeo, was recklessly indifferent to the safety of children participating in the rodeo.
C. The plaintiff, as the operator of a children’s rodeo, was recklessly Indifferent to the mental wellbeing of the children participating in the rodeo.
D. The plaintiff, as the operator of a children’s rodeo, recklessly provides dangerous bulls for riding by children participating in the rodeo.”
Each of these imputations is conveyed by the contents of this post.
The eleventh matter complained of
On 14 March 2022 the defendant, on Voller principles, published:
“Houston Stuart
What the hell is wrong with these contractors bringing these juice monkeys for these young kids to get on. It’s not about making great bull rides and giving these kids nice bulls to gain confidence. It’s all about who has the rankest bulls and then calling these kids pussys [sic] when they get one jumped and hurt real bad and don’t wanna get on again. Rodeo is fading fast and these dip shits are killing off the up and comers. Soon it will all be just fatuity’s [sic] cause you won’t find any riders.”
The following imputations are pleaded:
“A. The plaintiff, as the operator of a children's rodeo, recklessly put children participating in the rodeo at risk of harm.
B. The plaintiff, as the operator of a children's rodeo, recklessly provided dangerous bulls for riding by children participating in the rodeo.
C. The plaintiff, as the operator of a children’s rodeo, bullies children.
D. The plaintiff, as the operator of a children’s rodeo, was recklessly indifferent to the mental wellbeing of children.
E. The plaintiff, as the operator of a children’s rodeo, was recklessly indifferent to the safety of children participating in the rodeo.”
Each of these imputations is conveyed by this post.
The twelfth matter complained of
On 14 March 2022 the plaintiff published:
“Tim Lane
Josh Birks nah agreed mate 100% there’s a fine line between chasing a passion and being put in harms [sic] way by others with no cares, that thing hit the corner like old ‘hard yards’ credit to the kid for getting on it and warning it up proper but should never of [sic] been put in that situation”
The following imputations are pleaded:
“A. The plaintiff, as the operator of a children’s rodeo, recklessly put children participating in the rodeo at risk of harm.
B. The plaintiff, as the operator of a children’s rodeo, recklessly provided dangerous bulls for riding by children participating in the rodeo.”
Each of these imputations is conveyed by this post.
The thirteenth matter complained of
On 14 March 2022 the defendant, on Voller principles, published:
“George Hempenstall
I could turn up with kid killers every week but why”
The following imputations are pleaded:
“A. The plaintiff, as the operator of a children’s rodeo, recklessly put children participating in the rodeo at risk of being killed.
B. The plaintiff, as the operator of a children's rodeo, was recklessly indifferent to the safety of children participating in the rodeo.”
This is one of the most serious publications. The pleader has wisely refrained from an imputation that the plaintiff’s bulls were killers of children, but this post comes close to saying it. The two imputations pleaded are, adopting the principles for interpretation set out in Bazzi v Dutton, conveyed.
The fourteenth matter complained of
On 14 March 2022 the defendant, on Voller principles, published:
“Michelle Wicks
Josh Birks the question you should ask is simply Where is the DUTY OF CARE??? He is responsible for providing stock suitable. See how that holds up in a court.”
The imputations pleaded are:
“A. The plaintiff, as the operator of a children’s rodeo, recklessly put children participating in the rodeo at risk of being killed.
B. The plaintiff, as the operator of a children’s rodeo, neglected his duty of care to the children participating in the rodeo.
C. The plaintiff, as the operator of a children’s rodeo, recklessly provided dangerous bulls for riding by children participating in the rodeo.”
These imputations are each conveyed.
The fifteenth matter complained of
On 14 March 2022, the plaintiff, on Voller principles, published:
“Ron Borghero
Jordan Robb I had a brother in a wheelchair so I do know a little bit about it he’s accident was caused by someone doing stupid shit at a rodeo Doaky from what I can see has been and is doing good stuff for the junior’s but when he does something like this it needs to be knocked on the head straight away, meaning STOPPED before a child gets seriously injured Jordan your injury was a pure accident it wasn’t caused by stupidity as for Doaky keep up the good work with the junior’s just tone them buckers down a bit”
The imputations pleaded are:
“A. The plaintiff, as the operator of a children’s rodeo, recklessly put children participating in the rodeo at risk of being seriously injured.
B. The plaintiff, as the operator of a children's rodeo, was recklessly indifferent to the safety of children participating in the rodeo.”
This is one of the more restrained publications, in that it appears to acknowledge that the plaintiff has not done this before and was not responsible now either. There is a considerable amount of bane to the antidote, in that the post acknowledges that the events in question were an accident. Nevertheless, the assertion that “when he does something like this” it needs to be stopped before a serious injury occurs is sufficient to convey the imputations.
Conclusions concerning the imputations
All of the imputations pleaded are conveyed.
Is it necessary for there to be a finding that each is defamatory? That is not the case under s 1 of the Defamation Act 2013 (UK), for the reasons explained by Brereton JA in Rader v Haines [2022] NSWCA 198 at [17]. That is not the case in relation to s 10A so a finding must be made.
There can be no doubt that the ordinary right-thinking member of the community would think less of anyone who was prepared to leave children at risk of injury or even death. Each of the imputations is defamatory.
Serious harm
Section 10A of the Defamation Act 2005 (NSW) (“the Act”) provides that, in any claim for defamation, there is a jurisdictional requirement for the plaintiff to demonstrate that the publication of defamatory matter has caused, or is likely to cause, serious harm to the reputation of the plaintiff. The serious harm must be in relation to harm to reputation and not of the imputations: Rader v Haines at [22].
The particulars of serious harm set out in the statement of claim
The particulars supplied in the statement of claim were as follows:
“A. Discouraging potential clients from using his rodeo services.
B. Discouraging existing clients from continuing to use his rodeo services.
C. Discouraging potential clients and existing clients from recommending the plaintiff's business and rodeo services.
D. Causing damage generally to the plaintiff's business reputation.
E. Causing damage generally to the plaintiff's personal reputation.
F. Causing loss of revenue leading to loss of profit.”
The plaintiff’s situation at the time of publication
The plaintiff is the co-owner and co-director of the business DBB. DBB is a stock contractor, providing mini bulls for use in children’s rodeos held in New South Wales. The plaintiff derives parts of his income from the profits made by DBB. The plaintiff, by DBB, has received recognition for his work in the rodeo community, and particularly for his work in providing mini bulls for junior bull riders and enjoyed a positive reputation both in rodeo circles and in the wider community.
The plaintiff has always enjoyed a positive reputation within the rodeo community, and has never been the subject of safety regulations imposed upon stock contractors
The evidence
I have had regard to the following evidence:
(a)The plaintiff’s affidavit affirmed on 28 November 2022.
(b)The plaintiff’s wife’s affidavit affirmed on 29 November 2022.
(c)Kristina Keven’s affidavit affirmed on 5 December 2022.
(d)Lou-Anne Albertson’s affidavit affirmed on 29 November 2022.
The plaintiff’s evidence
The plaintiff, who is currently 38 years of age, has lived in the countryside and been involved in farm work and rodeos all his life. He had to take over the responsibilities of the family farm at an early age due to his father’s health problems. In addition to those duties, he purchased a parcel of land from his parents to operate the business Doak Bucking Bulls Pty Ltd (“DBB”) and he has operated this business in conjunction with the farm on which he raises beef, cattle, sheep and mini bulls. He is married and has a four year old son.
The plaintiff is well recognised in rodeo and related activities. On 9 November 2021, he and his wife received a community recognition statement from the legislative assembly of New South Wales for their contribution to the production of bulls which were used to train and teach junior rodeo stars. In 2022 one of his bulls was awarded a prize as the best bull of the year, an award given by the vote of the riders.
The plaintiff’s business, DBB, is jointly owned by the plaintiff and his wife. Their personal finances are therefore reliant upon this business’s financial success. DBB is a stock contractor to several organisations for the purpose of providing stock to be used in rodeos. DBB’s stock is about 100 mini bucking bulls; these are used for rodeo competitions for junior age groups, namely riders under the age of 15 years. The plaintiff’s activities include hosting training sessions for junior bull riders at his farm to help them learn how to ride. Not only are the bulls valuable as rodeo stock, but each has its own individual personality, and the plaintiff and his wife are emotionally attached to them (affidavit, paragraph 27).
The plaintiff is also a senior member of the ABCRA as well as providing stock for its rodeos. There are strict rules about the welfare of the animals and the conduct of rodeo events. The plaintiff and his company have never been sanctioned for any breaches and until publication of the matters complained of were highly regarded.
The plaintiff has known the defendant since about 2007 or 2008, when the defendant was a junior rider aged 14 or 15 years. He is currently the ABCRA national event director for protection athletes, who are the persons in the rodeo that ensure the safety of competitors. For example, a protection athletes will distract a bull if the rider is dismounted or jumps off, so that the rider can get away safely.
The plaintiff had no prior warning of the defendant’s publications until he was told by others, including his wife, about the Facebook posts, which occurred on the day they were posted, namely 14 March 2022. The plaintiff was not a Facebook friend of the defendant at the time of publication. He was shown a text message containing a screenshot of at a Facebook page by his wife on that day. He was devastated.
Over the following 24 hours the plaintiff received about 20 telephone calls and text messages inquiring about the posts put up by the defendant. He received many hurtful and offensive posts on his own Facebook account. Even the more friendly of the text messages often just consisted of screenshots of a particular entry with the words “what is this about?”.
Not all the calls and text messages were unsupportive. He received a message from one person, Ms Carlon, advising him not to “get into it” on Facebook because “all of it can be used in court if things get out of control”, wise counsel which is indicative of the degree of awareness about the dangers of defamation in a defamation nation such as Australia. Ms Carlon advised him to save the post and comments to prove what was said, and to call the association and inform them of the defendant’s actions.
The plaintiff did not respond to any of these emails and decided to delete them as he was so upset that he did not want to deal with the social media onslaught he was going through. This is a common response from persons who find themselves under attack out of the blue; the plaintiff in Geyer v Ghosn [2020] NSWDC 744 gave very similar evidence.
In June 2022, the defendant published on his Facebook page a subsequent post about the plaintiff and about these proceedings. This is discussed in more detail below. This deeply offensive post, which includes a photograph of the defendant sticking his middle finger up in an obscene gesture, was removed from Facebook on about 10 June 2022.
The consequences of the defendant’s publications were devastating to the plaintiff. People he did not know would come up to him at rodeos and making comments such as “don’t go killing any kids this week”. On one occasion, on 19 November 2022, a stranger came up to him and said words to the effect “what kid killers did you bring this weekend?”. In each case where the plaintiff was approached by persons making such comments, he would become distressed, anxious and frustrated that he was being called someone who would put young persons at harm.
The hurt to feelings from this unceasing campaign was extensive. The plaintiff was not only shocked and speechless as to what had been written about him by the defendant and the widespread reaction in support of his posts, but also to observe that people he had thought were his friends were making comments of this kind. He was particularly hurt by the comments of a rodeo rider named Marty O’Brien, a prominent rodeo rider currently competing in the United States, and by long-term friends who shared with him their interest in bulls and rodeo. One such person was Lindsey Kennedy, who made a post commenting that “I’m sure something will be done or we won’t have any kids here in five years. We don’t get enough now let alone killing them off now”.
As well as the personal hurt, the plaintiff suffered significant damage to his business reputation. Since the Facebook posts were made, DBB has not received any invitations from the ABCRA. He has not been invited to any of their rodeos or to tender as a stock contractor for any of their events. This is unusual, in that, in his experience, he would normally attend about 10 such functions each year. By comparison, between 2016 and 2022, DBB contracted to the ABCRA for about 10 rodeo events each year except for 2021, due to the pandemic.
In particular, the plaintiff has not been contacted to be a stock contractor for the national finals taking place in January 2023, which will be the first time that this has occurred. These finals are the most prestigious events of the rodeo calendar and are live streamed internationally. He is disappointed that he has not been asked to be a stock contractor for the upcoming national finals, as having his stock take part in the event raises awareness of himself as well as his company both nationally and internationally. His accountant has prepared a report setting out the relevant financial losses.
The plaintiffs had to change his business activities to attend functions in south-eastern Queensland and Central Queensland where the reputation damage he has suffered is not so apparent. However, this places a heavy burden on his business because it takes him 5 to 6 hours to drive to these events from his house transporting the stock for each rodeo event. It is twice as long as the trip he would normally make and there are additional costs as a result.
A concerns notice was sent on 20 April 2022 but no compliant offer was made.
The impression the plaintiff made on the court from his affidavit material is that he is a man of few words who is reluctant to display emotions. Mr Finch informed me that the plaintiff was too distressed by these proceedings to be present in the courtroom.
For these reasons, the affidavit of his wife provides greater insight into the degree of distress that he has suffered.
Affidavit of Patricia Doak
Mrs Doak assisted her husband with his bull and rodeo business and is also a mine production trainer with her own business, which operates as a subcontractor at mine sites in New South Wales.
As a result of her activities with her husband she met the defendant, whom she hired as a protection athlete for a rodeo in about January 2017. She was aware that he was a successful rodeo rider who had competed in and won a number of events both in Australia and internationally. She was not aware of any issues that the defendant had with the plaintiff or the plaintiff’s business prior to the Facebook post.
Mrs Doak became aware of the Facebook post on 14 March 2022 when she was sent a screenshot by a friend. She attempted to locate the defendant’s Facebook page but was unsuccessful. She was not a Facebook friend of the defendant and she suspected that he had blocked her access to his Facebook page.
Mrs Doak then made other attempts to find out more. She sent a text message to a personal friend that I will not name, the mother of a child who was riding the bull in the video published with the Facebook post. The friend did not reply, which concerned Mrs Doak, as she had thought that they were good friends. She has not received any correspondence or communication from this woman since the Facebook post was published. On the now much rarer occasions when Mrs Doak and her husband have attended rodeo events, she has observed this friend distancing herself from the plaintiff and from herself. Mrs Doak also noticed other young riders holding back from approaching her husband at rodeo functions.
Mrs Doak observed the effect of the Facebook post on her husband as being profound. He was speechless and visibly distressed as well as despondent. He was reluctant to answer telephone calls, unable to sleep, and concerned about his future. He told her that people were avoiding talking to him at the rodeos and that strangers were harassing him about being a “kid killer”.
Affidavit of Christina Keven
Mrs Keven has been involved in rodeo since about 1992, when she was a regular rider. She stopped competing in rodeos in about 1997 due to work and family activities. She passed on her love of rodeo to her son, Deacon, who began competing in rodeos in about 2019. In that same year she met the plaintiff and saw him regularly about six or seven times a month. Her son Deacon attended a rodeo training course run by the plaintiff about 15 times a year for the purpose of training and competing in rodeos. She observed that the plaintiff was a role model for her son, who watched videos of rodeos the plaintiff took part in on YouTube. The plaintiff’s career was a subject of interest to him, and he would discuss these professional activities in rodeos and bull riding training with his friends. As a result, Ms Kevin says, the plaintiff was “an icon in our home”. It was well known that he had achieved, in Australia, a number of rodeo wins.
Mrs Keven first met the defendant in about March or April 2019 and has seen him about 15 times per year since. In about the middle of 2020 she became his Facebook friend.
Mrs Keven became aware of the matters complained of on 14 March 2022 when her son came to her, visibly upset, and said: “is Josh Birks right about Matthew Doak being a kid killer? Should I be avoiding Matthew Doak and his bulls?” She logged into Facebook and saw some of the posts that the plaintiff now sues on.
Mrs Keven was deeply shocked. She had always considered the plaintiff to be a very professional and safety conscious conductor of children’s rodeos. She was concerned about how the allegations would impact upon her own son and his future in rodeo because he had had so much training and development from the plaintiff.
Subsequent to her seeing the post for the first time, she received many Facebook notifications notifying her the comments were being made on the post. She was surprised to see a number of her friends and acquaintances making negative comments about the plaintiff and restating what was said by the defendant in his original post, even though they had not been present at the rodeo under discussion. She became so concerned about the public allegations made by the defendant that she sent an email to the ABCRA on 15 March 2022, the day after publication, asking them to look into the matter.
Mr Finch told me that, apart from a polite acknowledgement of her email shortly thereafter, there has been no inquiry by the ABCRA into the concerns she raises, or into the circumstances of any asserted danger to the child who fell off the bull on 11 March 2022, or indeed anything at all. Since the ABCRA is a body which regulates rodeo and bull riding, safety issues are paramount, and their failure to look into either the defendant’s allegations or Mrs Keven’s complaint (or, for that matter, both) does not reflect well on this organisation. It is all the more of concern that the defendant is one of its directors.
The consequences of the publications upon the reputation of the plaintiff were observed by her to be significant. She sets out, in her affidavit, that the rodeo community is a tightknit and supportive community but, as a result of these posts, there has been a “divide” between those who agree with the defendant and those who support the plaintiff. At a number of the rodeos she has attended, she has heard others present talking about the post. In particular, she heard some of those persons say or suggest that if an individual was a supporter of Mr Doak, and they would not receive the same benefits as if they were a supporter of the defendant. That makes the inaction by the ABCRA all the more regrettable, given the potential for danger to riders in such circumstances.
She has also observed that the plaintiff is not present at any rodeos she has attended over the past six months. So far as she is aware, none of his bulls are used in those rodeos.
The evidence of Ms Keven paints a stark picture of the plaintiff being the subject of a sustained and serious attack. Not only he but also his supporters are made to feel unwelcome, to the extent that, in the case of the supporters, they may find themselves on the receiving end of unfair treatment by reason of their support of the plaintiff.
Affidavit of Lou-Anne Albertson
Ms Albertson is an accountant in Tamworth who has been the accountant for DBB since 2016. She has prepared a financial report for the purpose of setting out the financial losses for the company since publication of the matter complained of. Her evidence is relevant to the issue of special damages. I note the Code of Conduct is set out in the affidavit.
In her experience as the accountant for the company, during the financial year ending on 30 June 2022 and until the date of swearing this affidavit, the company has gone from demonstrating signs of growth in terms of income, allowing for the impact of the pandemic, but that since March 2022, the company’s contract stock to rodeo income with the ABCRA has ceased entirely. She interprets this loss to the company no longer receiving contracts with ABCRA.
The company does not bring a claim for defamation and I can only award damages for the impact of the profitability of the company on the plaintiff’s own income. I propose to take a broad brush approach to the issue of special damages generally.
The loss of income to the plaintiff is likely to be about $8,000 a year. Mr Finch submitted that I should allow for such a loss over a three-year period and award $24,000, a submission that I have accepted.
The defendant’s evidence
The defendant led no evidence and did not attend court.
Evidence in relation to extent of publication
At the time of publication, the defendant had about 1,959 Facebook “friends”. The matters remained available online for 81 days. It is plainly established that numerous persons read the matters complained of, or each of them, by evidence of the thread of comments published in response to the first matter complained of. From that thread of comments, it is established that many hundreds of persons read, at the very least, the first matter complained of, as it received at least 163 “likes”, 204 “comments” and 9 “shares”.
The damage caused to the plaintiff’s reputation as a result of the matters complained of came not only as a result of readers of Facebook, but also as a result of the grapevine effect.
The grapevine effect is of particular significance in these circumstances, as the publications were made by a notable member of a small community of which the plaintiff was part, and on which the plaintiff relied, at least in part, for his business success. The defendant is a highly respected bull rider in the rodeo community, having had success within Australian rodeo and on an international scale. In the rodeo community, the defendant’s name was a household name. The defendant also holds the position of National Event Director for Protection Athletes employed by the ABCRA. As a result of the defendant’s status within the community, statements made by him inevitably carry some considerable weight to other members of it. The defendant’s insulting post in June 2022 in which he “gives the finger” to the plaintiff would have been a damaging reinforcement, in terms of the grapevine effect, of what he had said before; he was not repeating the allegations, but reminding his followers of his disdain for the plaintiff.
Conclusions concerning serious harm
As was the case in Martin v Najem, the defendant actively called on his claque of followers to attack the plaintiff. This is a classic example of conduct that is strong evidence of serious harm. As was also the case in Martin v Najem, the imputations are serious, and involve the wellbeing of children. Allegations of this kind are strongly indicative of the potential for serious harm.
Mrs Keven’s affidavit paints a stark picture of the social isolation of the plaintiff and even of persons sympathetic to him. Mrs Doak’s affidavit contains similar information.
The business loss is self-evidently caused by the ABCRA taking the defendant’s side in the case, as the affidavit evidence of the plaintiff’s accountant makes clear.
Damages
The relevant statutory provisions
Section 34 of the Act provides that there must be an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded:
“34 Damages to bear rational relationship to harm
In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.”
This section provides that the amount of damages awarded must have “an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.
There are three purposes to an award of damages in defamation:
(a)Consolation for hurt to feelings;
(b)Recompense for damage to reputation (including, where relevant, business reputation); and
(c)Vindication of the plaintiff’s reputation.
Section 35(1) now limits, by a “hard cap”, the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings. Currently, the maximum award is $443,000 from 1 July 2022 (Government Gazette No 250 of 10 June 2022). Section 35(2) of the Act provides that the maximum damages amount is to be awarded only in a most serious case. This provision reflects amendments made to the Act to clarify that the cap on damages for non-economic loss operates as a maximum amount in a scale of damages: Council of Attorney-General Review of the Model Defamation Provisions – Background paper at p 30.
Sections 35(2A) and (2B) were introduced as part of the amendments made to the Act by reason of the decision in Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154, to clarify that the cap is applicable regardless of whether aggravated damages are awarded or not. However, s 35(2A) of the Act provides that the maximum damages amount in s 35(1) of the Act does not limit the Court’s power to award aggravated damages if an award of aggravated damages is warranted in the circumstances.
Section 35(2B) of the Act provides that an award of aggravated damages is to be made separately to any award of damages for non-economic loss to which subsection (1) applies. This is a significant change, as previously only one sum was to be awarded without any breakdown.
Non-economic loss
The nature and extent of this relationship between damages and the relevant harm, as set out in s 34, is explained by Applegarth J in Cerutti v Crestside Pty Ltd [2014] QCA 33 at [26]-[36].
As to the seriousness of the imputations, allowing children to be maimed or killed out of selfish profit motives is conduct of the worst kind. Only allegations of paedophilia could be regarded as more serious.
Hurt to feelings
Hurt to the plaintiff’s feelings is of particular importance in this claim. The plaintiff has suffered not only hurt and anxiety because the publications have, in the vernacular, “hit him where he lived”, but they have affected everything from his business life to his home life, as the evidence set out in detail above makes clear.
All of these factors call for a substantial award of general damages for each of the publications.
The effect of the defendant not contesting these proceedings
The defendant in these proceedings showed the same redeeming characteristic as the defendant in French v Fraser (No 3) [2015] NSWSC 1807 did, namely that he consented to the entry of judgment and did not contest any of the material on damages, sparing the plaintiff what McCallum J called the “unhappy prospect” of the plaintiff having to face the defendant in court and be cross-examined:
“[91] I also have regard to the fact that the harm suffered by Dr French, although aggravated by Mr Fraser’s conduct (including his abandoned plea of truth), has in some small measure been stemmed by the fact that Mr Fraser ultimately consented to the entry of judgment against him and did not contest any of the material put on damages, sparing Dr French the unhappy prospect of facing Mr Fraser in court. That has afforded Dr French an opportunity to vindicate his reputation and to have that vindication recorded in this judgment without further aggravation. That is not a mitigating factor – I mean only to record the absence of an aggravating factor which must be kept in mind when comparing this case with other recent verdicts in defamation cases.”
I have, therefore, taken this factor into account when assessing aggravated damages
Aggravated damages
The plaintiff relies upon the following in support of his claim for aggravated damages:
(a)In or about June 2022, the defendant published a further Facebook post of and concerning the plaintiff. The post does not reiterate the defamatory imputations, but does emphasise the defendant’s continued support of the publications that he made about the plaintiff. The defendant takes no responsibility for the severity of the matters complained of.
(b)The publications made by the defendant placed full blame of the child’s injuries upon the plaintiff, and the responses to the publications indicate that readers of the publications believed what the defendant wrote.
(c)The plaintiff provides stock for rodeos run by the ABCRA. The ABCRA has Rules and Regulations about the suitability of stock for rodeo events, and sanctions individuals and companies for breaches of those Rules and Regulations. Neither DBB nor the plaintiff have ever been sanctioned as a result of the incident in March 2022, or at all, and no suggestion has been made by ABCRA that DBB or the plaintiff are responsible for that incident.
The high handed and contumelious conduct of the defendant, as set out above, warrants an additional amount to be awarded for aggravated damages.
Special damages
As noted above, for the reasons set out in Ms Albertson’s affidavit, I have accepted Mr Finch’s submission that the claim for special damages should be assessed at $24,000.
Conclusions concerning damages
Given the fact that all these publications were made on the same day and on the same social media site, a single figure for damages is appropriate.
The amount for aggravated damages must be assessed separately: s 35(2B) of the Act. Although prior to the amending legislation, one sum was awarded for both general and aggravated damages, the impact of s 35(2B) requires a separate sum to be assessed.
I consider that general damages of $200,000 should be awarded and that a further sum of $50,000 should be awarded as aggravated damages. To these figures a sum of $24,000 should be added as special damages.
Interest and costs
Like Martin v Najem, this case is unusual, when compared to other defamation trials, in that the matters complained of were only published nine months ago. This means that damages are being assessed at a time when the sting is still the strongest.
I am unaware of any interest calculation adjustments relating to such a short period of time in other judgments, other than Martin v Najem.
Given the very short period of time since publication, the hurt is arguably still considerable, so I propose to award 4.55% from the date of publication to the date of trial (12 December 2022).
As aggravated damages must be awarded in a sum separate from general damages, it is perhaps wiser to separate the interest as well. The following is a table setting out the sums to be awarded and the interest component for each:
The total is $283,358.79.
Costs should follow the event. The plaintiff seeks costs on the ordinary basis. I note that the Submitting Appearance specifically identified costs as an issue upon which the defendant may wish to be heard and I have accordingly granted liberty to apply.
Order:
(1)Judgment for the plaintiff for $283,358.79, made up as follows:
(a)General damages of $200,000 plus interest in the sum of $6,831.23.
(b)Aggravated damages of $50,000 plus interest in the sum of $1,707.81.
(c)Special damages of $24,000 plus interest in the sum of $819.75.
(2)Defendant pay plaintiff’s costs, with liberty to apply.
(3)Exhibits retained until further order.
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Amendments
13 December 2022 - Paragraphs [74],[78] and [84] - typographical errors
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