Edwards v Gill
[2020] ACTMC 21
•10 September 2020
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Edwards v Gill |
Citation: | [2020] ACTMC 21 |
Hearing Date(s): | 7 September 2020 |
DecisionDate: | 10 September 2020 |
Before: | Chief Magistrate Walker |
Decision: | See [1] - [56] |
Catchwords: | CIVIL LAW - PARTICULAR OFFENCES – COURT PROCEDURE RULES Defamation, revenge porn, absence of defendant. |
Legislation Cited: Cases Cited: | Civil Law (Wrongs) Act 2002 (ACT) Alesco Corporation Limited v Te Maari [2015] NSWSC 469 |
| Parties:
Solicitors: | F Edwards (Plaintiff) J Gill (Defendant) J Dempster (Plaintiff) Aulich (Plaintiff) |
File Number(s): | CS71 of 2018 |
CHIEF MAGISTRATE WALKER:
The plaintiff, Ms Edwards, sues for compensatory and aggravated damages in the tort of defamation from the defendant, Ms Gill (also known as Jay Kingsley).
The Claim
The published matter relied upon consists of items pleaded in 3 Schedules to the amended statement of claim:
a. a photograph of Ms Edwards displaying her face and in particular her right breast and nipple;
b. an exchange of messages downloaded from a Facebook Messenger Group Chat between Ms Gill and seven other people about the photograph in which the subject of the photograph is identified as Ms Edwards;
c. a series of posts copied from Facebook in which Ms Edwards is not named.
Ms Gill did not appear to defend the matter in person but by her amended defence admits publication of those items in Schedules 1 and 2 of the amended statement of claim. She did not admit publication of those items detailed in Schedule 3 and pleads in the alternative that even if she did publish them, the posts are incapable, as a matter of law, of reasonably identifying Ms Edwards.
Ms Edwards pleads that the published images and words conveyed a series of imputations namely that she was a whore, a slut, a fat whore, neglectful of her children, an unfit mother and a person who bore children by different men in order to exploit the welfare system.
These imputations it was pleaded were defamatory in that they had injured the plaintiff’s reputation and brought her into public scandal, odium, ridicule and contempt. Aggravated damages were claimed based on alleged malice in publication and Ms Gill’s post publication conduct.
Ms Gill denies that the publication(s) were capable of carrying the pleaded imputations, were “honest opinion” based on proper material and thus defensible pursuant to s139B Civil Law (Wrongs) Act 2002 (‘the Wrongs Act’) and, if published at all, were published in circumstances where the plaintiff was unlikely to suffer any harm pursuant to s139D of the Wrongs Act (“triviality”) .
I note that much of the evidence refers to Jay or Jay Kingsley. Ms Gill and Ms Kingsley are the same person; that admission is inherent in the Amended Defence in which Ms Gill admits posting items on 4 November 2017 in which she is referred to as Jay Kingsley. Ms Edwards also gave evidence that she knew Ms Gill to go by her partner’s name of Kingsley.
Procedural History
This matter was heard on 7 September 2020 in the absence of the Ms Gill against the following background.
The originating claim was filed on 28 March 2018 and served on Ms Gill on 16 April 2018. A directions hearing was held on 15 May 2018. A defence was filed by lawyers for Ms Gill on 26 June 2018 and a reply was filed on 20 August 2018.
10. An amended statement of claim was filed on 14 November 2018 and served on 20 November 2018. An amended defence was filed by Ms Gill’s lawyers on 15 January 2019. On 7 March 2019, the court received notice that Ms Gill would be representing herself.
11. A request for better particulars of the amended defence was made by Ms Edwards’ lawyers on 22 January 2019. When notified that Capital Lawyers no longer represented the defendant, they emailed Ms Gill enclosing the amended defence and request for particulars.
12. On 5 February 2019 the proceedings were listed for directions. Ms Gill did not appear, and the listing was adjourned until 19 February 2019. On that date Ms Gill was allowed a further three weeks to prepare her particulars and the matter was listed for directions on 16 April 2020.
13. On 10 April 2019 an in chambers order allowed a further 21 days for particulars of Ms Gill’s amended defence to be filed. Party/party costs were awarded in favour of Ms Edwards to be enforced at the completion of the substantive matters.
14. On 23 April 2019 Ms Gill emailed Ms Edwards’ lawyers enclosing further particulars. Ms Edwards filed an application and an affidavit in support seeking to strike out certain paragraphs of the amended defence, claiming that they did not receive proper or a further answer to the request. That application was dismissed, and again the question of costs reserved.
15. On 18 June 2019 the court made orders to progress the matter. The matter was listed for mediation in December 2019 and in the civil hearing callover on 23 March 2020 with a two-day estimate.
16. The matter did not resolve at mediation.
17. COVID-19 intervened and the Court was unable to proceed to hearing on 23 March 2020. The matter was then listed for 7 September 2020. Ms Gill was present when the matter was set down.
Proceeding in the absence of the defendant
18. Court Procedure Rule 1505(1) allows the plaintiff to call evidence to establish an entitlement to judgment against the defendant, if the defendant does not appear when the trial starts.
19. I have considered the principles outlined in Alesco Corporation Limited v Te Maari [2015] NSWSC 469 at [28] – [39] (“Alesco”) which deliberates the New South Wales equivalent of rule 1505 CPR. It was held that the clear purpose of rule 29.7 of the Uniform Court Procedure Rules 2005 (NSW) (“UCPR”) is the “efficient dispatch of the court” to facilitate the “just, quick and cheap resolution” of issues in dispute before the court. I also have regard to the purpose of the Court Procedures Act 2004 (ACT) which calls for the resolution of disputes, “as quickly, inexpensively and efficiently as possible”.
20. In NSW Trustee and Guardian as Executor of the Will of Michael Robert Walsh (Deceased) v Gregory [2012] NSWSC 681 at [18]-[20]), Hallen AsJ noted that in considering the dispatch of court business it is fundamental that the party who is subject to an adverse finding of the court has a right to be heard (citing Cameron v Cole [1944] HCA 5 at 589). Hallen AsJ opined that due to this right, in dispatching the courts business, there is a bare requirement that the defendant is made aware of the hearing date. His Honour noted that when considering whether a party is ‘absent’ within the meaning of the rule a judicial officer is to consider whether the person has knowledge or notice of the hearing date, and the party is not physically present or represented.
21. Hallen J in Alesco turned his mind to the defendant being unrepresented and concluded that fact alone does not mean, “they should be treated… with greater consideration than litigants who are legally represented”.
22. On 23 March 2020 when the matter was set down for hearing on 7 September 2020, court records confirm that the Defendant was present in person on that occasion. I take this as knowledge or notice of the hearing date on 7 September 2020.
23. The matter before me was heard initially in the hearing callover list at 9:30 a.m. on 7 September 2020. Ms Gill was called at approximately 9:40 a.m. three times outside of the court room by the associate. There was no response to that call. The matter was stood down in the list to allow time for her to appear. The matter was recalled at approximately 10:00 am. Ms Gill was again called three times outside of the court room without response. There was no evidence of any communication from Ms Gill to the court about any inability to attend. She did not appear during the hearing which continued into the afternoon.
24. It was drawn to my attention that Ms Gill in fact contacted the court at 10:06 a.m. on the morning after the hearing indicating an intention not to be involved in the case and to file for bankruptcy that very day.
25. Considering these circumstances, combined with a lengthy procedural history and a lack of explanation for the Defendant’s absence, I determined to allow Ms Edwards to call evidence to establish an entitlement to judgment by way of oral evidence.
The issues
26. The issues which arise are:
a. Were the matters in Schedules 1, 2 and 3 published? And if so, to whom?
b. Was Ms Edwards identified as the subject of the matters?
c. Did those publications convey the implications pleaded?
d. Were those implications defamatory in that they undermined Ms Edwards reputation or brought her into public scandal, odium, ridicule and contempt?
e. Were the defences pleaded available on the evidence before the Court?
f. If the tort is made out, what damages flow? Are they reduced by Ms Gill’s apology?
The evidence
Issue 1: Were the items in Schedules 1, 2 and 3 published? And if so, to whom?
27. Ms Serena McCulloch gave evidence that she had known Ms Edwards and Ms Gill since their school days. She was and remains very good friends with Ms Edwards but had limited contact with Ms Gill beyond being “Facebook friends” and a couple of actual conversations. She was however part of a Facebook Group Chat created by Ms Gill.
28. On the night of 4 November 17 she received a message to that Group Chat in the form of an intimate photograph of Ms Edwards. She took a screenshot of this and or a series of messages which followed in the Group Chat. These appear at Exhibit 1.2 pages 3 to 10 inclusive. At Exhibit 1.2 page 3, 10 names are listed along with “+77” which indicates the number of members that the photograph was distributed to. Exhibit 1.3 pages 11-18 is a list of members of the Group Chat to which the contents of pages 3-10 were published. Ms McCulloch “screen shotted” these also. Finally Ms McCulloch screen shotted names of people that she removed from the Group Chat (listed at Exhibit 1.3 pages 19-21 inclusive) before they saw the posted photograph.
29. Ms McCulloch’s evidence established that the items pleaded at Schedules 1 and 2 of the Statement of Claim were published.
30. Ms McCulloch also gave evidence that for a period of about two weeks she took screen shots of Facebook posts by Ms Gill until she was blocked from her page. These posts are in evidence at Exhibit 1.8 pages 34-38 inclusive.
31. When Ms Gill blocked Ms McCulloch, the latter arranged for a third person to keep a tab on what Ms Gill was posting on Facebook. She forwarded to Ms Edwards a series of posts which had been forwarded to her to keep Ms Edwards “in the loop”. Pages 28-31 of Exhibit 1.8 are in this category.
32. Ms Edwards gave evidence that she knew Ms Gill from high school, having been friendly with her father through sport and often receiving car transport with the family. Ms Edwards was not a social media friend to Ms Gill and only became aware of the posted photograph of herself when Ms McCulloch sent the screen shot via text message to her. She recognised the photograph as one she had exchanged with a former intimate partner for personal use only. She also received screen shots of messages posted to the group chat that night. She recognised at least six of the names of group chat members as people known to her. Ms Edwards also received messages from three people that night or the next day about the posts. One was Ken, her butcher (Exhibit 1.5 at page 22) who asked “Do you know there’s a nude pic of you doing the rounds?”. The second was from a person previously unknown to her (Exhibit 1.5 page 23) who wrote: “Hey I don’t even know you, but thought you might like to know Jay Kingsley is sending pictures of your titts around to me! No idea why!” A third was from Candice who wrote “Hey, so this is going to be weird but I got sent this photo in a group message and the person who posted it said it was you” with the subject photograph below and continuing: “Just thought you’d want to know because I think someone spreading pics like that of someone else is so wrong”. Ms Edwards messaged her former partner telling him to ask his “mrs” to delete the “tit pic” with a warning that Ms Edwards would otherwise go to the police about it. At 8.11 a.m. on Sunday 5 November 2017, Ms Gill sent an apology stating, inter alia: “I must apologize as I was wasted last night and didn’t realize that pic was forwarded to other ppl after it was forwarded to me until ppl started msging me about it. It was wiped out soon after”.
33. It is clear from the above, and I find, that those items replicated in Schedules 1 and 2 to the plaintiff’s state of claim were published to approximately 80 people directly and further published to an unknown number of people. It is not, nor will never be, known how widely the photograph was ultimately disseminated. The posts replicated at Schedule 3 (Exhibit 1.8 pages 34 – 38 inclusive) were open posts available to Ms Gill’s Facebook friends, an unknown number.
Issue 2: Was Ms Edwards identified as the subject of the matter?
34. As to the matters pleaded at Schedules 1 and 2 of the Statement of Claim, Ms McCulloch attested that she was able to recognise Ms Edwards from the photograph. Further, Ms Gill names the plaintiff as subject of the photograph “Bahahaha, no this is Francine Edwards….got sent this from a friend”.
35. As to the Schedule 3 matters, page 34-38 of Exhibit 1.8, none of these refers to Ms Edwards by name. However, the posts commence with a reference to “a fat whore with her ugly nipple hanging out”. This is consistent with the description given by Ms Gill when the photograph was first published on 4 November 2017 of the subject as “just a whore that likes to send ransoms (sic) their titts”. What follows is a running commentary of irrational vitriol directed to one person. From this it can reasonably be inferred that each post in fact refers to Ms Edwards.
Issue 3: Did those publications convey the imputations pleaded?
36. The imputations pleaded by the plaintiff are summarised as follows:
a. In relation to the photograph and group messages sent by Ms Gill on 4 November 2017, that Ms Edwards was a whore and slut;
b. In relation to Facebook posts between 8 and 12 November 2017, that Ms Edwards was a fat whore, a slut, neglectful of her children, an unfit mother and a person who bore children by different men in order to exploit the welfare system.
37. It matters not what Ms Gill intended, as the test is what imputation is open to the ordinary reasonable person. Where the imputations may be characterised as “abuse” or “mere abuse”, they may still be defamatory having regard to their terms and the context in which they were used: see Bennette v Cohen [2005] NSWCA 341 at [51].
38. The pleaded imputations are made out.
Issue 3: Were those implications defamatory in that they undermined Ms Edwards’ reputation or brought her into public scandal, odium, ridicule and contempt?
39. The harm pleaded is injury to Ms Edwards’ reputation and that by reason of the publications she was be brought into public scandal, odium, ridicule and contempt. Damage to reputation need not be proved as it is assumed: Reid v Dukic [2016] ACTSC 344 [46]. Whilst she need not establish that these outcomes eventuated, as opposed to there being potential for them, the evidence supports findings of actual harm.
40. Ms Edwards gave evidence that the group chat publications were sent to both people known to her and strangers. The publication of the photograph itself evidenced that the plaintiff had shared an intimate image with another in electronic form. She expressed the shock, embarrassment and humiliation she experienced on learning of the number of people to whom the image had been published in the group chat. Some were people known to her. She has not returned to her usual butcher as a result. She stopped attending sporting functions with her eldest son because some of the recipients were “football parents” whom she knew through the sport. Two women she did not know, Jana and Candice, wrote to advise her of Ms Gill’s action clearly because they considered it wrong and to bring Ms Edwards’ attention to it. Whilst none of these responses indicated a negative view of Ms Edwards’, they do reflect the public scandal that publication of the photograph and its associated comments created.
41. Ms Edwards also attested to the fact that she had lost friendships over this publication. In particular, she referenced a childhood friend who held a senior childcare position who told Ms Edwards that she needed to distance herself so that she was not “tarnished” by her friendship with Ms Edwards following the publication. Her reputation was damaged at least in the eyes of this person. This response also evidences the scandal associated with the matters published.
42. It is clear that the imputations could and did harm the plaintiff’s reputation in the manner pleaded.
Issue 4: Were the defences pleaded available on the evidence before the Court?
43. Ms Gill pleaded two defences:
a. triviality pursuant to s.139D Wrongs Act which provides:
It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.
The defendant has not put any evidence before the court to support such a finding. Such a finding is contrary to the evidence that is before the court as to both the likelihood and actuality of harm suffered by Ms Edwards.
b. honest opinion pursuant to s.139B Wrongs Act which provides, relevantly:
(1) It is a defence to the publication of defamatory matter if the defendant proves that—
(a) the matter was an expression of opinion of the defendant rather than a statement of fact; and
(b) the opinion related to a matter of public interest; and
(c) the opinion is based on proper material.
….
(4) A defence established under this section is defeated if, and only if, the plaintiff proves that—
(a) in the case of a defence under subsection (1)—the opinion was not honestly held by the defendant at the time the defamatory matter was published;
…..
(5) For the purposes of this section, an opinion is based on proper material if it is based on material that—
(a) is substantially true; or
(b) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law); or
(c) was published on an occasion that attracted the protection of—
(i) a defence under this section, section 138 (Defence for publication of public documents) or section 139 (Defences of fair report of proceedings of public concern); or
(ii) the defence of fair comment at general law.
(6) An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper matter if the opinion might reasonably be based on such of the material as is proper material.
44. Ms Gill asserted in her amended defence that the imputations carried by the matters complained of, although denied, were in any event honest opinion based on proper material. There is simply no material before the court upon which the defence could be made out. That being so, there is no defence for Ms Edwards to defeat.
Issue 6: If the tort is made out, what damages flow? Are they reduced by Ms Gill’s apology?
45. No economic loss is pleaded.
46. Ms Edwards’ evidence supports a claim for non-economic loss. Her evidence went beyond reputational damage to the harm she suffered as a result of the publications, in particular the impact on her psychological health. She, Ms McCulloch and another close friend, Ms Backman, gave evidence of the lifestyle impacts which resulted from the publications. Ms Edwards described good mental health and happy family relationships between herself and her four children prior to the publication. This contrasted to the anxious, withdrawn, paranoid person she described herself as after the publication. She described changing her work role as a carer who took clients out and about in the community to only taking on in-home care work due to the need not to be in public. She described reduced socialising both with friends and in family activities, difficulty waking up, going out and working. She was prescribed medication for anxiety and depression.
47. Whilst there is no doubt that this response was aggravated by Ms Gill’s post-publication conduct, which I address below, there is evidence of an impact on Ms Edward’s mental health shortly after the publication. At Exhibit 1.9 is a progress note from Dr Rangarajan Dikshata which records the following: “Poor sleep. Early morning wakening. Depressed mood. Low self-esteem. Panic attacks. No suicidal thoughts. No substance abuse. Is getting panicky and avoiding social places. Has been in contact with the police and going to see a counsellor through them for pressing charges against someone for a crime committed on her. Is teary. Avoiding eye contact, anhedonia ++, wants to have anti-depressant, is speaking to a counsellor, says the thoughts interfering with her activities, she is worried for her kids”. The doctor prescribed Cymbalta.
48. Compensatory damages should reflect the manner and extent of the publications which in the age of digital social media is often wide but difficult to assess Mickle v Farley [2015] NSWDC 295 [21]; the impact of their imputations upon their object; they should provide solatium for injured feeling and be sufficient to demonstrate vindication: see Carson v John Fairfax & Sons Ltd [1993] HCA 331; Reid v Dukic [2016] ACTSC 344 at [47].
49. I note the legislative cap on compensatory damages pursuant to s139 Wrongs Act. Noting that judicial views are divided as to whether this creates a measure for proportional assessment of damages, I decline to adopt that approach.
50. It has been found that people with particularly good reputations are to be compensated accordingly Zwambila v Wafawarova [2015] ACTSC 171. That said, the Court must recognise that even those lacking public profile or recognition may, and usually do, highly value a good and unbesmirched reputation.
51. In this case, noting the impact on friendships, social, family and employment amenity and the direct impact on Ms Edward’s mental health, I assess compensatory damages at $45,000.
52. It is open to the court to consider an award of aggravated damages where the evidence establishes that the defendant acted improperly, or without justification or bona fides: Cosco v Hutley (No 2) [2020] NSWSC 893; Brisciani v Piscioneri (no. 4) [2016] ACTCA 32 and Reid v Dukic at [63].
53. Evidence was received of Ms Gill’s ongoing conduct and its effect on Ms Edwards following publication. Ms Gill continued to post comments on Facebook relating back to the original publication. In these she continued to refer to Ms Edwards as a slut and a whore. Ms Edwards had no capacity to respond on the same Facebook page as she was not a “Facebook friend” of Ms Gill. The comments thus stood unchallenged.
54. Ms Gill then engaged in harassing and threatening conduct over a period of months. This consisted of multiple phone messages, in which Ms Edwards recognised Ms Gill’s voice referring to her repeatedly as a slag, slut and whore. This subsequently escalated into threatening conduct. Ms Edwards applied for and was granted a personal protection order against Ms Gill, initially on an interim basis on 13 November 2017, then as a final order in 2018. She was afraid for both her and her children’s safety. Ms Gill breached that order by threatening to kill Ms Edwards and was in fact intercepted by police on her way to Ms Edwards’ home, and repeated her intent to harm Ms Edwards in front of her children. Undeterred, Ms Gill chased Ms Edwards and one of her children around a supermarket making comments including “fat whore, I’m gonna kill you”. This only ceased with police intervention on that occasion. A criminal prosecution saw Ms Gill sentenced to a period of imprisonment. Ms Edwards felt it necessary to apply for a further personal protection order against Ms Gill in 2019.
55. Whilst a “sort-of” apology was proffered on 5 November 2017 (Exhibit 1.7), it was followed by further publications and what can only be described as malicious and harassing conduct by Ms Gill. That conduct, whilst inherently quite vile, is relevant insofar as it aggravates the defamation and demonstrates malice; aggravated damages do not extend to full compensation for any conduct against the defamed, only that which evidences aggravation of the defamation. I award a further $9,000.
56. The parties have leave to file submissions as to costs, limited to 2 pages, by 4 pm 17 September 2020.
| I certify that the preceding two hundred and seventeen [56] numbered paragraphs are a true copy of the Reasons for Decision of her Honour Chief Magistrate Walker. Associate: Monique Marie Munro Date: 10 September 2020 |
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