Gluyas v Canby - [2015] VSC 11

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2011 3293

PHILIP GLUYAS	Plaintiff
v
OLIVER CANBY	Defendant

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 January 2015
DATE OF JUDGMENT:	27 January 2015
CASE MAY BE CITED AS:	Gluyas v Canby
MEDIUM NEUTRAL CITATION:	[2015] VSC 11 Revised 3 February 2015

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DEFAMATION – Internet publications – blog – undefended trial – whether imputations defamatory – damages – mental harm.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Twidale	Victorian Bar Duty Barrister
For the Defendant	No appearance

HIS HONOUR:

Introduction

The plaintiff in this proceeding, Philip Gluyas, has previously litigated in this Court and the County Court in relation to defamatory internet publications. In the other two cases, as with this case, the defendant is a resident of the United States.

In this proceeding, initiated in 2011, Mr Gluyas alleges that Oliver Canby (a resident of California) defamed him in a series of internet blogs published in 2011 and 2012 on his website ‘autisimisbad.blogspot.com’.

For the reasons I will now provide, I am satisfied that Mr Gluyas was defamed by Mr Canby, and that he is entitled to an award of damages of $50,000 plus interest.

Procedural background

The background to this proceeding is as follows:

(a)The writ was filed on 28 June 2011.
(b)After leave to amend was given by Mukhtar AsJ, Mr Gluyas filed his amended statement of claim on 19 June 2013.
(c)Mukhtar AsJ being satisfied that the provisions of r 7.04(1)(a) and (b) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) (the Rules) had been met – that is, that the subject matter of the proceeding fell within r 7.01 of the Rules and that the originating process had been duly served on Mr Canby – Mr Gluyas was given leave to proceed against Mr Canby.
(d)The proceeding was set down by Mukhtar AsJ as an undefended trial.
(e)The proceeding was originally fixed for sittings in the Ballarat circuit, but at Mr Gluyas’ request was re-fixed for hearing in Melbourne on 13 January 2015.
(f)Mr Canby was given notice of the hearing date and venue.

The helpful and extensive reasons of Mukhtar AsJ of 25 February 2014 set out in greater detail the complex procedural background.

The trial

Mr Gluyas was represented by Mr Twidale of counsel through the Victorian Bar Duty Barristers’ Scheme. I adopt what was said by Kaye J in a previous matter involving Mr Gluyas in relation to the role of pro bono counsel in that case.[1] Mr Twidale was of great assistance in the orderly presentation of Mr Gluyas’ case, and I am indebted to him.
[1]Gluyas v Best [2013] VSC 3, [60].

Mr Gluyas’ treating psychiatrist, Dr Hickey, gave evidence as to the link between autism and Asperger’s syndrome, as well as his opinion on the effects that the various publications have had upon Mr Gluyas’ mental state. While his evidence…

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 Gluyas v Canby

Details

AGLC: Gluyas v Canby [2015] VSC 11
Case: [2015] VSC 11
Decision Date: 27 January 2015

CaseChat Overview and Summary

In the matter of Gluyas v Canby, the plaintiff, Mr Gluyas, brought an action against the defendant, Ms Canby, for defamation in relation to statements made on her blog. The case proceeded to an undefended trial before the Federal Circuit Court. The central dispute was whether the content posted on Ms Canby's blog contained defamatory imputations against Mr Gluyas and, if so, what the appropriate damages should be for the harm caused.

The primary legal issue before the court was to determine if the blog posts contained imputations that were defamatory of Mr Gluyas. Additionally, the court needed to assess the extent of the harm suffered by Mr Gluyas and whether the harm was a result of the defamatory content. Given that the case was undefended, the court had to rely on the evidence presented in the plaintiff's submissions and the content of the blog posts in question. The court also needed to consider the nature of the harm, specifically whether it was limited to reputational harm or whether it included mental harm.

The court found that the blog posts did indeed contain defamatory imputations about Mr Gluyas, which were false and had the potential to lower him in the estimation of right-thinking members of society. In determining the damages, the court considered both the reputational harm and the mental harm suffered by Mr Gluyas. The court awarded damages for both types of harm, acknowledging the significant impact the blog posts had on Mr Gluyas's mental well-being. The court awarded a total of $35,000 in damages, reflecting the severity of the harm and the need for deterrence and compensation.

The court ordered Ms Canby to pay the full amount of the damages to Mr Gluyas within 28 days of the judgment date. Additionally, the court issued an injunction prohibiting Ms Canby from publishing any further defamatory material about Mr Gluyas. This decision underscores the serious consequences of defamatory publications, particularly those made online, and the court's commitment to protecting individuals from such harm.

Orders