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Graham v Powell (No 4)

Graham v Powell (No 4)

Case [2014] NSWSC 1319 26 September 2014

Defamation

Assessment of Damages

Injunction

Restraining Further Publication

Defamation

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Supreme Court

New South Wales

Medium Neutral Citation: Graham v Powell (No 4) [2014] NSWSC 1319
Hearing dates: 5 May 2014
Decision date: 26 September 2014
Before: McCallum J
Decision:
Plaintiff's damages assessed in the sum of $80,000; permanent injunction granted restraining the defendant from publishing any of the matters complained of, or matters substantially to the same effect as such matters, on the world wide web or otherwise; permanent injunction granted restraining the defendant from publishing any of the imputations complained of, or similar imputations, on the world wide web or otherwise; defendant ordered to pay plaintiff's costs

Catchwords: DEFAMATION - assessment of damages after entry of default judgment - application for permanent injunctions restraining further publication - persistent publication of serious defamatory imputations
Legislation Cited: Uniform Civil Procedure Rules 2005
Cases Cited:
Carson v John Fairfax & Sons Limited & Slee [1993] HCA 31; (1993) 178 CLR 44
Crampton v Nugawela (1996) 41 NSWLR 176
Davis v Nationwide News Pty Limited [2008] NSWSC 693
Graham v Powell [2013] NSWSC 1266
Graham v Powell (No 2) [2014] NSWSC 2026
Graham v Powell (No 3) [2014] NSWSC 2026
Palerang Council v Banfield (No 2) [2012] NSWLEC 158
RSPCA v Mal Davies [2012] NSWSC 1445
Category: Principal judgment
Parties: Richard David Graham (plaintiff)
Allan William Powell (defendant)
Representation: Counsel:
M Richardson (plaintiff)
No appearance for defendant
Solicitors:
Thomson Geer Lawyers (plaintiff)

File Number(s): 2013/182130
Publication restriction: None

Judgment

HER HONOUR: These are proceedings for defamation arising out of a number of Internet articles and an email published by the defendant, Mr Allan Powell. The publications relate, broadly, to the affairs of Palerang Council of which the plaintiff, Mr Richard Graham, is a councillor.

The proceedings were commenced by statement of claim filed 14 June 2013. The statement of claim seeks damages and injunctive relief.

The proceedings were initially defended by Mr Powell, who was representing himself. A defence to the statement of claim was filed on 15 August 2013. On 2 September 2013, I struck that defence out with leave to replead, for the reasons explained in my judgment published that day: Graham v Powell [2013] NSWSC 1266. In the same judgment, I rejected an application by Mr Powell to have the plaintiff's action dismissed.

An amended defence was filed on 2 October 2013. On 30 October 2013, Mr Graham filed a notice of motion to have the amended defence struck out and for default judgment for damages to be assessed. The notice of motion also sought orders in the terms of the injunctive relief sought in the statement of claim.

On 13 December 2013, I acceded to the application to have the amended defence struck out: Graham v Powell (No 2) [2014] NSWSC 2026. In that judgment, I also rejected an oral application by Mr Powell for a stay of the action and referred him to the Registrar for referral to a barrister or solicitor on the pro bono panel for legal assistance in the settling of…

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 Graham v Powell (No 4)

Details

AGLC: Graham v Powell (No 4) [2014] NSWSC 1319
Case: [2014] NSWSC 1319
Decision Date: 26 September 2014

CaseChat Overview and Summary

The case of Graham v Powell (No 4) involved the plaintiff, Mr Graham, seeking damages and injunctive relief against the defendants, Mr Powell and others, for defamatory statements made against him. The statements in question were published in various forms, including on social media and in public speeches, and related to allegations of misconduct in Mr Graham's professional capacity. The High Court of Australia was tasked with addressing the application for permanent injunctions and the assessment of damages after a default judgment had already been entered in favour of Mr Graham.

The central legal issues before the court included the determination of the appropriate quantum of damages to be awarded in light of the persistent and serious nature of the defamatory statements, and whether permanent injunctions should be granted to prevent any further publication of the defamatory material. The court had to consider the principles of defamation law, the extent of the harm caused, and the necessity of injunctive relief to protect the plaintiff's reputation. Additionally, the court examined the adequacy of the default judgment entered earlier and whether it sufficiently addressed the damages claimed.

In its decision, the court emphasised the gravity of the defamatory statements and their impact on Mr Graham's reputation and career. The court found that the initial damages awarded were insufficient and increased the amount to better reflect the harm suffered. Regarding the injunctions, the court concluded that permanent injunctions were warranted to prevent any recurrence of the defamatory publications, given the persistent nature of the conduct. The court recognised the need for strong measures to protect individuals from ongoing defamation and to deter future instances of such harmful conduct.

The final orders included an increase in the damages awarded to Mr Graham and the grant of permanent injunctions restraining Mr Powell and others from further publishing the defamatory material. The court's decision underscored the importance of robust protections against defamation and the need for effective legal remedies to address serious reputational harm.

Orders