Goldberg v Voigt

[2020] NSWDC 174

District Court

New South Wales

Medium Neutral Citation:	Goldberg v Voigt [2020] NSWDC 174
Hearing dates:	13-14 February 2020
Date of orders:	07 May 2020
Decision date:	07 May 2020
Jurisdiction:	Civil
Before:	Weinstein SC DCJ
Decision:	I award the plaintiff the sum of $35,000 in damages for defamation. I will hear the parties on the question of costs. The plaintiff is to pay the defendant the sum of $8,000 as a fixed sum for her costs incurred in proceedings 2019/00294969.
Catchwords:	Defamation – Application for assessment of damages - offer to make amends out of time – statement of claim as concerns notice – Facebook publication– closed group – serious imputations including killer and stalker of women – limited dissemination – grapevine effect
Legislation Cited:	Defamation Act 2005
Cases Cited:	Bolton v Stoltenberg [2018] NSWSC 1518 Carson v John Fairfax & Sons (1993) 178 CLR 44 Collier v Country Women’s Association of NSW [2017] NSWSC 1573 Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 Cripps v Vakras [2014] VSC 279 Hockey v Fairfax Media [2015] FCA 652 Mohareb v Booth [2020] NSWCA 49 Palmer Bruyn & Parker v Parsons (2001) 208 CLR 388 Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 Triggell v Pheeney (1951) 82 CLR 497 Zoef v Nationwide News PTY Ltd [2016] NSWCA 283
Category:	Principal judgment
Parties:	Bruce Goldberg (Plaintiff) Alice Voigt (Defendant)
Representation:	Counsel: Mr Matthew Richardson (Plaintiff) Mr Keiran Smark SC (Defendant)   Solicitors: Goldsmiths Lawyers (Plaintiff) Centennial Lawyers(Defendant)
File Number(s):	2018/363255
Publication restriction:	N/A

Judgment

1. The plaintiff, Mr Bruce Goldberg, has been defamed by the defendant, Ms Alice Voigt.

2. The proceedings concern a claim for damages for defamation arising from a single post about the plaintiff, made by the defendant on a community Facebook webpage on 16 November 2018 (“the post”).

3. This judgment determines the plaintiff’s claim for damages.

4. The circumstances are as follows:-

1. On 16 November 2018 the defendant posted the following on the “Rose Bay Community – Original and Official Group Facebook Page” (the Original Rose Bay FB page), which appears in a numbered format at tab 2 of the plaintiff’s Tender Bundle, which is exhibit 1.

3.“Dear Women of Rose Bay

4.Please be extremely careful when interacting with Bruce Goldberg on the 5.local websites. He gets his kicks out of intimidating, bullying and threatening 6.women. He finds where you live and hand delivers mail to your house.

7.Bruce, I’m happy to meet you face to face, I’d like you to come and deliver a 8.letter to my house but I don’t think you would get much joy out of dealing 9.with me. That’s not a threat it’s a fact.

10.Bruce it’s not slander if it’s truce. Too many women have been killed by 11.stalkers and unstable people to let this sort of stuff scare us into submission.

12.I call you out Bruce!” [sic] (emphasis added)

2. The plaintiff filed a statement of claim on 26 November 2018, which was served on 7 March 2019. [1]

3. In her defence of 15 May 2019, the defendant admits to uploading the matter complained of on or about 15 November 2018 and says that she removed the matter complained of “immediately upon receipt of the Statement of Claim on or about 7 March 2019.” The defence otherwise does not admit that the pleaded imputations were conveyed. The only substantive defence raised involves two Offers of Amends, dated 12 April 2019 and 14 May 2019.

   1. The defendant admits service on this date at paragraph 1(c) of her defence.

Identification of the plaintiff

5. Mr Goldberg was named in the publication. The defendant did not dispute that the article identified the plaintiff. In cases where a person is mentioned by name in an article, a plaintiff is not obliged to call evidence: ConsolidatedTrust Co Ltd v Browne (1948) 49 SR (NSW) 86 at 90-91 per Jordan CJ.

Defamatory meaning of the post

6. Mr Goldberg contends that the articles conveyed the following defamatory imputations about him:

1. The plaintiff was a danger to the women of Rose Bay (lines 3 – 5 and the matter as a whole) (Imputation A).

2. The plaintiff was a risk to the women of Rose Bay (lines 3 – 5 and the matter as a whole) (Imputation B).

3. The plaintiff was a person to be avoided by users of the internet (lines 3 – 5 and the matter as a whole) (Imputation C).

4. The plaintiff intimidates women (lines 5 – 6 and the matter as a whole) (Imputation D).

5. The plaintiff enjoys intimidating women (lines 5 – 6 and the matter as a whole) (Imputation E).

6. The plaintiff bullies women (lines 5 – 6 and the matter as a whole) (Imputation F).

7. The plaintiff enjoys bullying women (lines 5 – 6 and the matter as a whole) (Imputation G).

8. The plaintiff threatens women (lines 5 – 6 and the matter as a whole) (Imputation H).

9. The plaintiff enjoys threatening women (lines 5 – 6 and the matter as a whole) (Imputation I).

10. The plaintiff is a stalker (line 6 and lines 10 – 11 and the matter as a whole) (Imputation J).

11. The plaintiff was likely to kill women (lines 10 – 11 and the matter as a whole) (Imputation K).

12. The plaintiff was so mentally unstable that he was likely to kill women (lines 10 – 11 and the matter as a whole) (Imputation L).

13. The plaintiff was hostile towards women with a view to scaring them into agreeing to his demands (lines 10 -11 and the matter as a whole) (Imputation M).

7. For a basic statement of the principles to be applied by a judge alone assessing whether imputations are conveyed in fact, I have been referred to Hockey v Fairfax Media [2015] FCA 652; (2015) 332 ALR 257 at 272-274 [63]-[73], Collier v Country Women’s Association of NSW [2017] NSWSC 1573 at [280]-[281], Bolton v Stoltenberg [2018] NSWSC 1518 at [68]-[71] and Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 at [70]-[85].

Imputations A and B

8. Imputation B is pressed only in the alternative to imputation A. The plaintiff submits that the juxtaposition of the admonition to the women of Rose Bay “to be extremely careful when interacting with Bruce Goldberg on the local

9. websites”, with the statement that the plaintiff “gets his kicks out of intimidating, bullying and threatening women” is amply sufficient by itself to convey imputation A. When the material concerning the murder of women by “stalkers and unstable people” is added to the mix, the plaintiff says that the imputation is very clearly conveyed to an ordinary reasonable reader.

10. Mr Smark submitted that with respect to imputations A and B, the sense in which a reader would have understood the post as saying that the plaintiff was “a danger” or “a risk” was the same as covered by imputations D-I, which after argument, Mr Smark accepted were carried. However, Mr Smark submitted that so understood, they do not really go beyond them (that is, the plaintiff posed the danger or risk of trying to intimidate or bully or threaten women, particularly over the internet).

11. In my opinion, imputation A was clearly conveyed to the ordinary reasonable reader.

Imputation C

12. The plaintiff submits that this imputation arises from the opening part of the matter complained of - “Dear women of Rose Bay Please be extremely careful when interacting with Bruce Goldberg on the local websites”. When that remark is considered in the context of the subsequent references to the intimidation and threatening of women by the plaintiff, and the references to stalkers, Mr Richardson submits that the argument for the imputation being conveyed is so much the stronger.

13. Mr Smark submitted that the imputation was carried in relation to female users, but not users generally. I agree with this characterisation.

14. In my opinion, imputation C was clearly conveyed to the ordinary reasonable reader.

Imputations D-I

15. Mr Richardson submitted that these imputations arise from the sentence at lines 5-6 - “He gets his kicks out of intimidating, bullying and threatening women.”

16. In written submissions, Mr Smark conceded that imputations D-G were carried, and in oral argument conceded that imputations H-I were also carried.

Imputations J-L

17. The plaintiff submits that the court should consider the cumulative effect of the warnings and attacks in the matter complained of as follows:

1. Women (specifically women and not men) are warned to take extreme care when interacting with the plaintiff online;

2. Women are told the plaintiff enjoys intimidating and threatening them;

3. Women are told that the plaintiff finds out where they live so he can hand deliver mail to their houses; and

4. At the most significant lines, (10-11), the defendant says “Bruce it’s not slander if it’s true. Too many women have been killed by stalkers and unstable people to let this sort of stuff scare us into submission.”

18. Mr Richardson submitted that by those lines, there could be no doubt in the mind of an ordinary reasonable reader that the defendant’s allegation is that the plaintiff is a stalker, and that on account of the stalking behaviour he was exhibiting, he was likely to kill women, and/or was likely to do so because of his mental instability.

19. Mr Smark submitted that these imputations, seen in the context of a community social media post and reading the post as a whole, would not cause the ordinary reasonable reader to understand them to amount to a belief that the plaintiff was likely to kill women. He said that in the context of the post as a whole, the matter at lines 10-11 would not be understood to be an allegation about the plaintiff himself. Rather it would be understood as part of the unfortunate treatment that women have experienced at the hands of others and that it would have been understood as urging women not to yield to bullying. Likewise, the material at line 12 (“I call you out Bruce”) would be understood as calling him out as a bully rather than as a killer. Indeed, Mr Smark submitted that all of this is emphasised by the material at lines 7-9, where the defendant says she would be happy to meet the plaintiff face to face, suggesting he is not really much of a threat at all, at least not of a physical kind. Thus, taken as a whole, the post does not carry any meaning involving violence or physical harm. I do not agree.

20. In my opinion, looking at the post as a whole, an ordinary reasonable reader would understand the post to convey the meanings in imputations J-L, and I find them to have carried.

Imputation M

21. Mr Richardson submitted that the cumulative references to the need to take extreme care and the intimidation, bullying and threatening of women, convey the notion that the plaintiff is hostile towards women. The closing words of Line 11 “to let this sort of stuff scare us into submission” in his submission plainly conveys the plaintiff’s intention to scare women into agreeing to his demands.

22. Mr Smark submitted that whether this imputation is carried depends on how the ordinary reasonable reader would understand the reference to letting “this sort of stuff scare us in to submission”. If that is understood as being a reference to “demands” made by the plaintiff, then the imputation is carried, although the notion of “demands” is not spelled out. On balance, he submitted that it is not carried, but said that if it is, it adds little to imputations D-I. He said that ordinary reasonable readers of online posts expect a degree of rhetoric and inflammatory language.

23. In my opinion, the imputation is carried, but I agree with Mr Smark that it adds little, taking into account that imputations D-I are carried.

24. Mr Smark accepted that the imputations found to have carried would be regarded as being defamatory of the plaintiff, although he said that the degree of defamatory impact would be significantly less than if they had been published in a more formal publication like a newspaper or a news report. I agree with this submission.

Defence of Offer to Make Amends

25. The only defence relied upon by the defendant is the statutory defence created by s 18 of the Defamation Act 2005 of a failure to accept an offer to make amends.

26. The defence of s 18 must be considered in the context of the objects stated in s 3 of the Defamation Act, which are:

1. to enact provisions to promote uniform laws of defamation in Australia, and

2. to ensure that the law of defamation does not place unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance, and

3. to provide effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter, and

4. to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter.

27. Section 14 deals with the time requirements for an offer to make amends. Relevantly, it provides:

14 When offer to make amends may be made

1. An offer to make amends cannot be made if:

1. 28 days have elapsed since the publisher was given a concerns notice by the aggrieved person; or

2. a defence has been served in an action brought by the aggrieved person against the publisher in relation to the matter in question.

2. A notice is a concerns notice for the purposes of this section if the notice:

1. is in writing, and

2. informs the publisher of the defamatory imputations that the aggrieved person considers are or may be carried about the aggrieved person by the matter in question (the imputations of concern).

Whether the offer was a valid offer to make amends

28. The plaintiff in this matter did not provide a concerns notice to the defendant before the statement of claim was served, and treated the statement of claim as a concerns notice. In Zoef v Nationwide News PTY Ltd [2016] NSWCA 283, Gleeson JA, with whom Ward JA and Payne JA agreed, stated [at 92]:-

A statement of claim will operate as a concerns notice for the purposes of the Defamation Act if it complies with the requirements of s 14(2), namely that it is in writing and informs the publisher of the imputations that the aggrieved person considers may be carried by the matter complained of. The effect of s 14(1) is that an offer to make amends cannot be made if 28 days have elapsed since the publisher was given a concerns notice by the aggrieved person.

29. At the hearing of the matter, Mr Smark submitted that the statement of Gleeson JA was strictly obiter. However, since the hearing of the matter, the Court of Appeal comprising Basten JA, White JA and Simpson AJA, speaking in one voice, said in Mohareb v Booth [2020] NSWCA 49, at [11]-[13]:-

11. It is clear that the intention of a ‘concerns notice” is that it should precede the commencement of court proceedings. The applicant did not give the respondent a concerns notice prior to commencing proceedings. However, in Zoef v Nationwide News Pty Ltd, a case in which like the present, no concerns notice was given prior to the service of the statement of claim, Gleeson JA stated with the agreement of Ward JA and Payne JA…

12. In this case the offer to make amends was dated 13 September 2017, but the judge found was served on 6 October 2017. According to the trial judge, the defence was filed on 8 August 2018 and contained a pleading that the offer to make amends had been given on “6 October”. The judge set out the offer in full, and then addressed the applicant’s submissions in the following terms…

13. As noted above, the judgment of this Court in Zoef, delivered on 18 October 2016, was consistent with the applicant’s submission. The trial judge was therefore in error in rejecting the submission. The offer, made about a year after the service of the statement of claim, did not comply with s 14(1) of the Defamation Act.

30. The plaintiff’s statement of claim, filed 26 November 2018, was served on the defendant on 7 March 2019. The defendant’s first offer of amends was served on 12 April 2019, more than 28 days after the service of the statement of claim. It was submitted by the plaintiff that the offer was not a valid offer to make amends as 28 days had elapsed since the publisher was given a concerns notice by the aggrieved person (s 14(1)(a)). Taking into account the court’s view in Mohareb, which followed Zoef, I accept the plaintiff’s submissions on this point. The statement of claim served on 7 March 2019 was a valid concerns notice. The defendant did not comply with the strict time requirement. Therefore, her first offer of amends does not operate as a defence. Questions about the reasonableness of the purported offer of amends therefore do not arise. It follows also that a second offer of amends dated 14 May 2019, served some 68 days after the service of the statement of claim, was also not a valid offer of amends.

31. The defendant raised no other defence.

Damages

32. Absent a successful defence, I must assess the damages to be awarded to Mr Goldberg.

33. Section 34 of the Defamation Act requires the court to ensure that there is "an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded".

34. The purposes of an award of damages for defamation are "consolation for the personal distress and hurt caused to [the plaintiff] by the publication, reparation for the harm done to [the plaintiff's] personal and (if relevant) business reputation and vindication of [the plaintiff's] reputation": Carson v John Fairfax & Sons (1993) 178 CLR 44 at 60 per Mason CJ, Deane, Dawson and Gaudron JJ.

35. Damages for non-economic loss are capped. The present maximum is $407,500 (section 35 of the Defamation Act). The court may award damages exceeding that amount "if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages": s 35(2) of the Defamation Act.

Extent of publication

36. In my view the present case is towards the lower end of the scale in terms of the extent of harm to the plaintiff's reputation. Although the imputations are serious, it is clear from the evidence that the number of people who have likely viewed the post (it having been removed on or about 7 March 2019) is limited, and very much less than had it, for example, been published on a newspaper website.

37. On 18 November 2018 (two days after the material was posted), the original Rose Bay Facebook page had 3234 members. The precise number of readers of the matter complained of is unknown. No business records of Facebook were tendered. In Bolton v Stoltenberg [2018] NSWSC 1518 such records were in evidence. In that case the defendant was the administrator of the Facebook page upon which the matters complained of had appeared. In this case, the defendant was not the administrator of the page upon which the post appeared.

38. The plaintiff submits that given the sensational nature of the post, and given the evidence about the “chatter” in the community about the post, readership was likely significant, and certainly was at the least in the hundreds. That number does not include the number of people who may have heard about the allegations in one way or another, about which there was some limited evidence at trial.

39. The evidence discloses the following:-

1. The document at exhibit 1 tab 4 refers to 19 likes of the post and 72 comments. Some comments were favourable to the plaintiff, and some of the comments, on the balance of probabilities, appear to have been made be by the same persons. Exhibit 1 tab 6 refers to 17 likes and 12 comments.

2. The evidence is that the post was on a “closed” Facebook page which was not accessible to members of the public generally.

3. The defendant accepts that it is a reasonable conclusion that a substantial proportion of those who “commented” on the post (exhibit 1, tab 4) had read the post. However, he submitted that the position with likes is less clear. He says that there is no reason to conclude, in the absence of specific evidence, that those who “like” a post have taken the time to read it fully (or perhaps at all). Since the ordinary reasonable reader is a reader who is taken to read the whole of the matter complained of, a person who reads a publication only in part is not such a reader. Absent specific evidence, Mr Smark submitted that no definite conclusion can be drawn in relation to the position of the “likes”. I do not accept that submission. In my view, as a matter of common sense, someone who “likes” a post is likely to have read it, or they would not be “liking” anything at all.

1. The defendant submitted that the overall effect of the evidence with respect to the extent of publication is that a number of people, likely more than 10 but likely much less than 100 read the post in November 2018. It was, therefore, a very limited publication. The plaintiff submitted that readership was likely in the hundreds. I can count 28 persons in exhibit 1 tab 4 (including the defendant and the plaintiff, under the pseudonym Justin McDonald), but it is not possible to determine precisely how many persons saw, read or were told about the post. In my opinion, the number is likely to be between 150 to 250 individuals.

40. The Plaintiff relevantly gave evidence to the following effect:

1. That he received approximately five messages in the period shortly after the matter complained of was posted, alerting him to its existence (including from a Mr Diamond) and advising him to check “some stuff being written about me that’s pretty bad”;

2. That within hours of the matter complained of he received the disturbing message (at exhibit 1 tab 5), which he then reported to the police;

3. That in the weeks and months after the matter complained of, he experienced people yelling at him in the street as well as persons avoiding him in the supermarket and whispering and pointing at him;

4. That he recalled being regularly asked what was going on when he visited coffee shops and other places, and that people would look at him strangely and act in a distant fashion;

5. That on another occasion he was asked by an old acquaintance with whom he had gone to school, who is the proprietor of a chocolate shop, to “explain himself”;

6. That acquaintances at the East Sydney Business Chamber would no longer return his calls and that he felt excluded from the organisation; and

7. That in the months after 16 November 2018, when he returned to the original Rose Bay Facebook page, he observed that the defendant’s post could be viewed as the top comment. His understanding was that this occurred because more people were commenting on, reading and liking the post. There was no expert evidence to assist me with the plaintiffs understanding, and I make no positive finding to that affect. I accept that he felt that it was the case.

41. Ms Susan Kater, the plaintiff’s cousin, gave evidence that the post was raised at a dinner at which she was present in early 2019. A person (who apparently did not know that Ms Kater was the plaintiff’s cousin) referred to the dispute between the defendant and the plaintiff, described it as ‘explosive’, and observed that the defendant had “warned people to be careful of him” and described him as a “piece of work”.

42. Evidence was also given by Ms Hurst and Mr Baran, long term friends of the plaintiff, to the effect that prior to the post the plaintiff had enjoyed a good reputation in the community, but following the post they had entertained doubts about his character.

Grapevine effect

43. The plaintiff also relies upon the “grapevine effect” in relation to his claim for damages. The “grapevine effect” was defined (by Gummow J in Palmer Bruyn & Parker v Parsons (2001) 208 CLR 388) as follows:

“[88] The expression “grapevine effect” has been used a metaphor to help explain the basis on which general damages may be recovered in defamation actions; the idea sought to be conveyed by the metaphor was expressed by Lord Atkin in Ley v Hamilton as follows:

“It is precisely because the ‘real’ damage cannot be ascertained and established that the damages are at large. It is impossible to track the scandal, to know what quarters the poison may reach: it is impossible to weigh at all closely the compensation which will recompense a man or a woman forth insult offered or the pain of a false accusation”.

44. Kyrou J in Cripps v Vakras [2014] VSC 279 described the “grapevine effect” as:

“[565]… no more than the realistic recognition by the law that ‘by the ordinary function of human nature, the dissemination of defamatory material is rarely confined to those to whom the matter is immediately published’. Members of the community communicate with one another about matters of public interest and concern; as such, the ‘poison’ of a libel may spread well beyond the confines of the person or persons to whom it was immediately published”.

45. Mr Richardson submitted that the material complained of had an immediate and devastating effect on the plaintiff’s reputation, initially amongst the readers of the relevant Facebook page and then throughout his local community as the “poison” spread. He further submitted that the grapevine effect is likely to be particularly significant when one is considering a Facebook page serving a local community in which both the plaintiff and the defendant lived. I do not disagree with these submissions, although I note that the page, being of interest to a small locale in a large city, likely limited its spread.

Harm to reputation

46. So far as harm to reputation is concerned, Mr Smark accepted that the publication of the post caused some harm to the plaintiff’s reputation. However, he submitted that it will be transitory and readily forgotten over time, especially in circumstances where the post was deleted around 7 March 2019. Further, he said that the weight that readers of the post would give it should be doubted, when compared to other forms of publication.

47. Mr Smark said that the evidence of the witnesses called for the plaintiff (Ms Kater, Ms Hurst, Mr Barron) did not demonstrate that the defamation had greatly spread. Overall, he submitted, it seems that the post was read by tens of people, and he noted that some of them expressed positive comments about the plaintiff. On any view, Mr Smark submitted that it was a case of a “low scale” publication.

48. Mr Smark submitted that the defamatory impact of the post would be limited by the context in which it occurred. Whilst it is true that the post uses strong language, he said that ordinary readers of online material would be used to such language. That, he said, is not to deny that it was defamatory, but it is to observe that the defamatory impact of the imputations has to be understood in the context in which they occur. Ordinary readers would hardly be expected to give great weight to the allegations and nothing like the weight given to allegations by the police for example. Further, he said that the only allegation of particular fact was that the plaintiff had found where someone had lived and that he had hand delivered a letter to that person’s house (line 6).

49. The plaintiff gave evidence that he was shocked and speechless when he read the post. He believed that his reputation had been damaged. At the time of the trial, the plaintiff had difficulty sleeping and felt that his reputation had been “smashed”. He was not cross-examined on these matters, and I accept this evidence.

50. Mr Smark submitted that there was some evidence about what the plaintiff perceived was a difference in the way people were treating him, but that this evidence was not obviously referable to the defamation. Likewise, he gave evidence that he had been excluded from the Sydney East Business Chamber but Mr Smark said that there was no real basis in the evidence to link that exclusion to the publication of the post. There was neither a communication from the Chamber tendered, nor an account of a telephone conversation with someone from that organisation as to his exclusion. Thus, in his submission, it would be speculative to attribute such matters to the post. I accept this submission as far as it goes. I have no evidence linking an exclusion to the defamation. However, it is evidence about the plaintiff’s feelings. Whether or not any exclusion or isolation from others was in fact because of the defamation, the plaintiff had a fear or feeling (not unreasonable in my opinion), that this was the case.

51. In the context of the plaintiff’s evidence about concern about harm to reputation, Mr Smark submitted that the plaintiff was interested in money, rather than dealing with any hurt to his feelings or harm to his reputation per se. He conceded that the two were not inconsistent, but submitted that the court would take into account the plaintiff’s failure to attempt to seek to have the matter taken down before commencing proceedings, as indicating that the real extent of his harm, including hurt to feelings, was limited.

Hurt to feelings

52. The plaintiff gave evidence to the effect that he felt “shocked” and “speechless” when he read the matter complained of:

“I couldn’t think straight. I, I thought my reputation to be , being totally damaged and my credibility’s gone down the tube and there was not much I could do about it. It’s too late, too many people have seen and it was just I felt a lot of hurt, a lot of hurt and I still do.”

53. Ms Kater gave evidence that when she telephoned the plaintiff to advise him about what happened at the dinner party, he was very upset. Mr Baran and Ms Hurst gave evidence to the effect that in the period after the publication, they observed the plaintiff to appear stressed. Mr Baran also gave evidence that he understood that the plaintiff was having difficulty sleeping.

54. Mr Smark submitted that the range of damages should be low. First, although the plaintiff regarded the post as hurtful (and in particular because he believed that it suggested that he was a killer and stalker), Mr Smark says that the fact that the plaintiff may have been subjectively hurt by the imputations which it did not carry, does not form a basis for compensation. That may be the case, but as I have found, those imputations were carried.

55. Second, Mr Smark said that the plaintiff’s demeanour in the witness box was more one of anger than hurt, and that the language he used to describe the extent of his hurt may have been conveyed to put his recollection of his feelings of hurt at their highest level. I did not perceive the plaintiff’s demeanour to have been insincere.

56. Third, Mr Smark submitted that it was of some moment that when the plaintiff was taken to the letters of offer served by the defendant (exhibit 1, tabs 9 and 13), whilst the plaintiff accepted that the apologies offered were unreserved and fulsome, his reservation about accepting them was about money. Having regard to the terms of the offers in the exhibit, Mr Smark submitted that the plaintiff’s hurt feelings were not “to the fore”, as they ought to have been significantly assuaged by the offers, and (had it happened) the publication of the apologies.

57. I accept that the plaintiff’s reputation was damaged and his feelings hurt.

58. In this matter, although the imputations conveyed are undeniably serious, the dissemination is considerably limited and no evidence is provided to indicate that the defamation was ever spread outside of the Rose Bay area. In addition, the medium of the post, being a Facebook publication, carries far less weight when compared to other forms of publication. Finally, I accept the defendants submission that a Facebook post of this nature would be transitory, especially in circumstances where the post has long been deleted. For these reasons, I find the present matter is at the lower end of the scale.

Aggravated damages

59. For an award of aggravated damages to be made, the conduct of the defendant towards the plaintiff must be found to be improper, unjustifiable, or lacking in bona fides: Triggell v Pheeney (1951) 82 CLR 497.

60. The plaintiff relies on the following as matters of aggravation.

61. The first issue is about hand delivery of mail. The plaintiff’s unchallenged evidence was that he did not hand deliver a letter referred to at line 6 of tab 2 of exhibit 1. In fact, he had sent a letter by email and by registered post, headed “Cease and Desist”, to a Ms Damari which is exhibit 2. The plaintiff gave unchallenged evidence that he had seen a Facebook exchange between the defendant and Ms Damari who said that she had received this letter by email. The defendant did not give evidence, and no explanation was provided to the court about how the defendant arrived at a conclusion that the plaintiff hand delivered the letter.

62. Mr Richardson submitted that the only inference to be drawn is that the defendant knew the allegation (with respect to hand delivering the mail) was false or that she was recklessly indifferent to its falsity. In my opinion, this is the only inference to be drawn on the evidence, and in the absence of any explanation by the defendant.

63. Second, Mr Richardson submitted that there is an issue about subsequent publications (see exhibit 1 tab 4 at page 3). Within a day or so of the original publication, the defendant wrote a further post which, he submitted, in substance repeated parts of the defamation and emphasised the defendant’s commitment to what she has published. The context of these posts, he says, is that they emerge after the commentators Jacki Stern Shneier and Nyssa Waters attempt to defend the plaintiff. Instead of saying nothing, Mr Richardson says that the defendant “doubles down”. She also raises “70 women who have been slaughtered by men who bullied and intimidated them” and, Mr Richardson says, explicitly links the plaintiff’s conduct to one of the perpetrators. It is true that there was later a sub-conversation between these people and the defendant in these terms.

64. Third, Mr Richardson submits that in February 2019 the defendant sent the plaintiff the tweet which is found at exhibit 1 tab 7, and which he says was sent by the defendant after she became angry that the Plaintiff was attempting to serve her with the statement of claim in these proceedings. Mr Richardson says that public abuse of this kind, in the period following publication of the matter complained of, was improper and unjustifiable. I find, on the evidence, that the tweet was sent after the defendant became aware that she was to be served with the statement of claim. There is, however, no evidence as to its dissemination.

65. Fourth, Mr Richardson says that in November 2019 the defendant posted the material which is recorded in exhibit 1 tab 18 which he says repeats part of the defamation, and places (untrue and hyperbolic) blame on the plaintiff for ruining the life of the defendant without taking any responsibility for the publication of the original defamatory matter. So much is evident from the two posts on the document at tab 18. There is likewise no evidence as to its dissemination.

66. The plaintiff gave evidence of the additional hurt caused by each subsequent publication.

67. Mr Smark submitted that the effect of aggravation, if established, is simply to provide a basis for a slightly higher award of damages than would otherwise be the case, on the basis of increased hurt to feelings to the plaintiff. It is not a basis for a substantially increased award, or grounds to punish the defendant (exemplary damages not being available in defamation). Even if aggravation is made out, Mr Smark says that it is aggravation on the basis of a low award of compensable publication.

68. In my opinion, each of the four matters submitted by Mr Richardson had the effect of aggravation, albeit slight in all of the circumstances. They were unjustifiable, but should be seen in the context of the defamation generally, and in particular its limited dissemination.

69. In all of the circumstances, I am of the view that Mr Goldberg is entitled to an award of damages, (including aggravated damages) of $35,000. This reflects the facts and circumstances of the defamation, including its limited dissemination.

70. In my opinion, the conduct of the parties at the hearing of the matter would not affect any award I may make about costs. I would make an order for costs in favour of the plaintiff in accordance with section 40(2)(a) of the Defamation Act but I will refrain from doing so until such time as the parties consider the award of damages. I accept that they may wish to make further submissions.

71. As to the costs in matter 2019/00294969, which I understand is the only outstanding issue in those proceedings, I order the plaintiff to pay the defendant the fixed sum as claimed by the defendant in the sum of $8,000. Those proceedings ought never to have been commenced, and the defendant is entitled to her costs without having to endure a costs assessment.

72. I make the following orders:-

1. I award the plaintiff the sum of $35,000 in damages for defamation.

2. I will hear the parties on the question of costs.

3. The plaintiff is to pay the defendant the sum of $8,000 as a fixed sum for her costs incurred in proceedings 2019/00294969.

Endnote

Decision last updated: 07 May 2020