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French v Fraser (No 3)

French v Fraser (No 3)

Case [2015] NSWSC 1807 4 December 2015

Defamation

Compensatory Damages

Tort Law

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: French v Fraser (No 3) [2015] NSWSC 1807
Hearing dates: 14 October 2015
Date of orders: 04 December 2015
Decision date: 04 December 2015
Jurisdiction: Common Law
Before: McCallum J
Decision:
Verdict in favour of plaintiff for damages, including aggravated damages, in the sum of $300,000.

Catchwords: DEFAMATION – damages – where no defence maintained – where defendant harassed plaintiff over two year period
Legislation Cited: Defamation Act 2005 (NSW), ss 34; 35
Cases Cited: Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
Cassell & Co Ltd v Broome [1972] AC 1027
Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; 278 ALR 232
Crampton v Nugawela (1996) 41 NSWLR 176
Moit v Bristow [2005] NSWCA 322
Rogers v Nationwide News Pty Ltd [2003] HCA 52; 216 CLR 327
Triggell v Pheeney (1951) 82 CLR 497
Category: Principal judgment
Parties: Brendan French (plaintiff)
Michael Fraser (defendant)
Representation:
Counsel:
P Gray SC with M Richardson (plaintiff)
No appearance for the defendant
Solicitors:
Clayton Utz (plaintiff)
Levitt Robinson (defendant)

File Number(s): 2014/181578
Publication restriction: None

Judgment

HER HONOUR: This case provides a distressing illustration of the devastating harm that can be caused by the mischievous use of the internet as a medium for defamatory publications.
Dr Brendon French is an intelligent and well-educated man. He has extensive expertise in alternative dispute resolution. Until the events giving rise to these proceedings, he enjoyed an outstanding reputation for honesty and integrity, each an important quality in his chosen field.
In 2007, the hapless Dr French became “Head of Customer Relations” in the retail division of the Commonwealth Bank of Australia. From late 2012, his occupation of that role (and nothing else) made him the unsuspecting target of Mr Michael Fraser. Styling himself “The Arbitrator”, Mr Fraser claims the vocation of “keeping big business honest”. Under that pious mantle and purportedly in wreak of unspecified wrongs done by the bank to unnamed customers, Mr Fraser has subjected Dr French to a hellish two years of bullying and harassment. Publicly, he has mounted a wide-reaching and wholly unfounded attack on Dr French’s reputation. In a disturbingly more sinister private campaign, Mr Fraser has bombarded Dr French with hundreds of emails, texts and voice messages, many containing thinly-veiled threats evidently motivated by homophobia and other senseless vitriol.
To make matters worse, Mr Fraser has used these proceedings as a forum for repeating and aggravating the defamation. He initially pleaded a defence of truth to some of the defamatory imputations specified by Dr French. The defence was scandalous. It specified no facts, matters or circumstances remotely capable of proving the truth of the imputations. It is difficult to understand how his solicitor could have seen fit to certify the pleading. The defence was abandoned (with no explanation) shortly before the hearing, at which point Mr Fraser consented to the entry of judgment against him including mandatory “take-down” injunctions, injunctions against future publication,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading French v Fraser (No 3)

Details

AGLC: French v Fraser (No 3) [2015] NSWSC 1807
Case: [2015] NSWSC 1807
Decision Date: 04 December 2015

CaseChat Overview and Summary

The case of French v Fraser (No 3) was heard by the Supreme Court of New South Wales. The plaintiff, French, sued Fraser for defamation after Fraser had made false and unprivileged statements about French over a two-year period. The defamatory statements alleged that French was involved in criminal activity and were made in various contexts including to French's employer and to potential business partners. Fraser did not contest the defamation action and the court proceeded to assess damages only.

The central legal issue was the calculation of damages for defamation, given that Fraser had not disputed the allegations. The court was required to determine the extent of harm caused to French's reputation by Fraser's conduct, which included persistent harassment. The court also had to consider the impact of Fraser's actions on French's personal and professional life, as well as the appropriateness of any exemplary or punitive damages.

The court found that Fraser's conduct had caused significant harm to French's reputation, leading to a deterioration in personal relationships and professional opportunities. The court emphasised the persistent and malicious nature of Fraser's harassment, which exacerbated the harm. As a result, the court awarded French substantial compensatory damages for the defamation and the associated harassment. Additionally, the court considered Fraser's lack of remorse and ordered exemplary damages to reflect the seriousness of Fraser's conduct.

The final orders included an award of general damages for the harm to French's reputation, special damages for quantifiable financial losses, and exemplary damages to reflect the malicious nature of Fraser's actions. The court also issued an injunction prohibiting Fraser from making any further defamatory statements about French in the future.

Orders