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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…
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- AGLC
- Doak v Birks [2022] NSWDC 625
- Case
- [2022] NSWDC 625
- Decision Date
CaseChat Overview and Summary
The court found that the posts conveyed the imputations of reckless endangerment of children's lives for profit. The court also concluded that the plaintiff had suffered significant harm, including hurt to feelings, anxiety, and damage to both personal and professional reputations. The court awarded damages under three heads: consolation for hurt to feelings, recompense for damage to reputation, and vindication of the plaintiff's reputation. The court noted that the seriousness of the imputations warranted a significant award of damages, with aggravated damages included due to the deliberate and malicious nature of the defamation.
The court awarded the plaintiff a total of $283,358.79 in damages, including $200,000 for general damages, $50,000 for aggravated damages, and $24,000 for special damages, with interest applied to each component. The court also ordered the defendant to pay the plaintiff's costs, with liberty to apply, and retained the exhibits until further order. This decision underscores the importance of reputation and the significant impact that defamatory statements can have on an individual's life.
Orders
Orders of the court
(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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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 harmIn 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. 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 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.