Kumar v Raghupathy
[2021] VCC 532
•6 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
DEFAMATION LIST
Case No. CI-20-04321
| ALOKE KUMAR | First Plaintiff |
| and | |
| AAKASH KUMAR | Second Plaintiff |
| v | |
| RAVICHANDRAN RAGHUPATHY | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 April 2021 | |
DATE OF JUDGMENT: | 6 May 2021 | |
CASE MAY BE CITED AS: | Kumar & Anor v Raghupathy | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 532 | |
REASONS FOR JUDGMENT
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Subject:ASSESSMENT OF DAMAGES
Catchwords: Facebook publications – “grapevine” effect – followed principles in Wilson v Bauer Media & Anor [2017] VSC 521
Legislation Cited: County Court Procedure Rules 2018
Cases Cited:Finlayson v Indigenous Business Australia [2014] VSCA 95; Belbin v Lower Murray Urban and Rural Water Corp [2012] VSC 535; Mickle v Farley [2013] NSWDC 295; Cables v Winchester [2018] VSC 392; Bolton v Stoltenberg [2018] NSWSC 1518; Dods v McDonald (No 2) [2016] VSC 201; McDonaldv Dods [2017] VSCA 197; Zaia v Eshow [2017] NSWSC 1540; Trkulja v Yahoo! Inc LLC [2015] VSC 635; Wilson v Bauer Media & Anor [2017] VSC 521; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327
Judgment: Judgment entered in default of appearance pursuant to Order 21 of the County Court Civil Procedure Rules 2018
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mark Stanarevic, Solicitor | Matrix Legal |
| For the Defendant | No Appearance | No Appearance |
HER HONOUR:
1The plaintiffs, Mr Aloke Kumar and Mr Aakash Kumar, allege that the defendant, Mr Ravichandran Raghupathy, defamed them in a publication on a Facebook page operated by him in the name of Tamilmurasu Ragupathy.
2Mr Raghupathy did not file an appearance or a defence and interlocutory judgment in default of appearance was entered on 22 December 2020. The Court ordered that the defendant pay the plaintiffs’ damages, to be assessed, and costs in the amount of $3045.70.
3Pursuant to Order 51,[1] the plaintiffs seek to have their damages assessed. The defendant is taken to have admitted all of the allegations in the Statement of Claim.[2]
[1] County Court Civil Procedure Rules 2018
[2] Finlayson v Indigenous Business Australia [2014] VSCA 95 at paragraph [32]
4The plaintiffs rely on affidavits affirmed by each of them on 7 April 2021.
Background
5The plaintiffs are Victorian residents and members of the Indian community in Victoria. Mr Aloke Kumar is a member and delegate of the Australian Labor Party (“ALP”) and the President of Sub-Continent Friends of Labor (“SCFOL”) which promotes ideals of democracy to people of South Asian descent. He is also an executive member and former president of the South Asian Public Affairs Council which makes representations to the Australian and Victoria Government and their departments. He is an executive member of the Australian Indian Chamber of Commerce and Industry which promotes bilateral business between India and Australia. He received an award from the Governor of Victoria for Excellence in Multiculturalism.
6He is the owner of the Thornbury Theatre which hosts live events, wedding ceremonies and charity balls.
7Mr Aakash Kumar is the brother of Aloke Kumar. He is also well known in the Indian community in Victoria and is a member of the Labor Party (ALP). He is a committee member of SCFOL, secretary of the South Asian Public Affairs Council and the Victorian Indian Council. He is a member of the South Asian Community Ministerial Advisory Council which provides feedback to the Victorian Government and explains government policy to the community. He has received awards in recognition of his work with the South Asian Community.
8The defendant is also a member of the Indian community in Victoria and the operator of a Facebook page “Tamilmurasu Ragupathy” (“The Facebook page”). The Facebook page is headed “Australia India Business Organisation Business happens when likeminded people meet with ignited minds”. Although the Facebook page is operated by an individual, it was submitted that it purports to operate as a community page and a quasi-business page relevant to “Australia India Business:.
Background
9On or around 16 June 2020 the defendant uploaded statements to the Facebook page in relation to the plaintiffs. Those statements included the following:
·“It seems what they preach in life, they do quite opposite to it in their daily life. Is this true?”;
·“How many fake members fees & fundraising monies were diverted to this membership drive and for your own benefits?”;
·“Everyone knows Thornbury Theatre is not owned by you both brothers (Mr Aloke Kumar & Mr Aakash Kumar). How much wealthy businessman are you both? What are your revenue sources?”
10The plaintiffs plead that the publication was defamatory, in that it meant, and was understood to mean, that:
(a) Mr Aakash Kumar misrepresents himself as the proprietor of the Thornbury Theatre;
(b) the plaintiffs are deceitful;
(c) the plaintiffs have income sources that are questionable;
(d) the plaintiffs are corrupt;
(e) the plaintiffs are engaging in illegal political fraud.
11The plaintiffs seek aggravated damages from the defendant on the basis that:
(a) he had no genuine belief in the truth of the words at the time they were published;
(b) he pretended not to know the plaintiffs when he had used the Thornbury Theatre for an event, free of charge, a few years ago;
(c) he targeted an Indian community audience on the Facebook page to tarnish the plaintiffs’ reputations, knowing that they were deeply involved in the Indian community;
(d) he tagged the Parliament of Victoria Facebook page in his post so it would be visible to Parliament of Victoria Facebook page members, knowing that the plaintiffs were Labor Party members;
(e) he has refused to apologise for the publication and has not participated in these proceedings.
The breadth of the publication
12The Facebook page had about 2,625 “friends” and was followed by 843 persons at the time of the publication. The Parliament of Victoria Facebook page has around 71,851 “likes”. There are people who are Facebook “friends” of the plaintiffs who have also “liked” the Parliament of Victoria Facebook page. The plaintiffs say around 75,000 people were exposed to the publication, either through the defendant’s Facebook page or the Parliament of Victoria Facebook page.
13As a publicly accessible site, other people who do not follow the Facebook page or like the page, may have seen the page. In addition the “grapevine” effect means that it is likely that the impact of the publication would have spread beyond those people who saw the page for themselves. The “grapevine” effect is “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”.[3]
[3] Belbin v Lower Murray Urban and Rural Water Corp [2012] VSC 535 at paragraph [217]
14Any publication within a targeted community is likely, in my view, to have a significant grapevine effect. The plaintiffs’ evidence is that in days and weeks after the publication they received comments via phone calls and messages about the publication, and requesting an explanation. The plaintiffs have seen screen shots of the publication on WhatsApp groups and have heard from friends that people in the community are talking about the publications. The plaintiffs say they have heard comments such as “his political life is over. He is finished”.
15Some of the evidence submitted by the plaintiffs as to the reach of the defamatory publication was hearsay. The plaintiffs gave evidence that they had heard “gossip” that they were involved in “very dodgy stuff”, were “not the owner of the Theatre, it belongs to someone else” and that they were “absconding” or “hiding”. There was no further information before the Court as to the source of the gossip, the identity of the friends who had told them what other people were saying, or what WhatsApp groups screenshots of the publications had been posted in.
16Nevertheless. I accept that there was a “grapevine” effect in the community, and although I cannot be satisfied that the entire group of followers of the Parliament of Victoria Facebook page saw the publications, nor even that all the people who follow the defendant’s Facebook page saw the publications, I am satisfied that the publication was seen by at least hundreds, if not thousands, of people within the community.
17The publication was taken down within two days due to requests by the plaintiffs, however the plaintiffs submit that the “grapevine” effect has continued after its removal in the form of gossip and the tarnishing of their reputations. I accept that where defamatory publications are made on social media, they are easily spread.[4]
[4] Mickle v Farley [2013] NSWDC 295
Impact of the publication on the Plaintiffs’ reputations
18Mr Aloke Kumar says he has been “shunned” in the community since the publication. As the owner of the Thornbury Theatre, he noted a marked decreased in bookings at the theatre for Indian community events. The reduction was from an average of one a month, to one only “occasionally”. This was before the limitations imposed by the COVID-19 lockdown.
19Prior to the publication, he was invited to an average of two events a week by members of the Indian community. These included parties, office openings, multicultural events and so on. After the publication (and before the COVID 19 lockdowns) these had reduced to one invitation every month. He is aware that former friends were still having parties and events, but were not inviting him. He was used to being something of an “honoured guest” and would often be formally introduced.
20He says he has been embarrassed and humiliated by the publication, and has become concerned about going out, fearing that the gossip is circulating within the community. He feels targeted and that he is being made to feel like a criminal. He says his morale and confidence has been severely dented.
21He says he has worked hard to build a reputation as a hard-working businessman with good ethics. The defamation has left people questioning his ethics, character and financial standing. He says that due to the defamation he is “unable” to represent the Labor Party, or any other organisation, in any public capacity. Other than this assertion, there is no evidence to support this statement, nor any material upon which I can form an assessment about what capacity Mr Aloke Kumar may have expected to, or sought to, represent the Labor Party, and whether his alleged inability to now do so is due to his own personal feelings of embarrassment or humiliation, or something else.
22He says he has felt very depressed and has sought advice and assistance from family and friends. His blood sugar levels have spiked due to stress. It is unclear what, if any, weight I can give to this submission. There is no other evidence before the Court of any medical condition arising from the defamation. I take this to be evidence of the general stress and distress that the publication has caused to Mr Aloke Kumar.
23Mr Aakash Kumar’s affidavit material was in substantially the same terms as Mr Aloke Kumar’s evidence. He has heard the same gossip and, like his brother, feels embarrassed and humiliated, concerned that he will be targeted and made to feel like a criminal and that his morale and confidence has been severely dented. He says the damage done to one brother effects both, as they are known as “the Kumar brothers”. He has felt depressed and is concerned for his health and wellbeing. He has experienced tension headaches and migraines which have been treated weekly by a chiropractor. He has also experienced a spike in his blood sugar levels which he attributes to stress.
24The plaintiffs submitted that damages ought to be assessed as a global sum and not broken down into separate components. I accept that submission. The plaintiffs submitted that, due to their close relationship, the fact that the defamatory material was directed at both of them, and the fact that things said about one brother effects both, the damages awarded should be the same for each of them. It was not put to me that one had suffered more greatly than the other, nor that one had a more prominent position or a better reputation within the community than the other. I accept those submissions.
25Counsel relied on a number of decisions relevant to the consideration of damages in the present case.
26In Cables v Winchester,[5] the plaintiff was awarded $200,000 on an assessment in circumstances where judgment was entered in default. Like the present case that involved publications on a community Facebook page, that Facebook page had about 9,500 followers. In that case, the defamatory statements included imputations that the plaintiff was dishonest, a bully, abusive, had physically attacked her staff, had underpaid her staff, was mentally unstable and was a horrible person who only cared about money. The consequences of the defamation had included an investigation by McDonalds Head Office. The “grapevine” effect extended beyond the local community and into the McDonalds corporate system. She relied on evidence from her husband, a colleague and a personal friend. Following the defamation she had required help from a psychologist.
[5] [2018] VSC 392
27In Bolton v Stoltenberg,[6] the defendant published a site known as “Narri Leaks”, on which allegations against the former local council Mayor were published. The imputations in the publications were that the plaintiff was a bully and was comparable to other offenders such as Harvey Weinstein. Damages in the amount of $100,000 were awarded.
[6] [2018] NSWSC 1518
28In Dods v McDonald (No 2),[7] upheld on appeal McDonaldv Dods,[8] the plaintiff was a police officer who was involved in an incident in which a 15-year-old boy was killed. The defendant, a barrister, created a website which carried the meaning that the plaintiff had executed the boy without any adequate reason and had committed manslaughter. The Court found that there was substantial publication, notwithstanding that only one person who had read the website gave evidence, and awarded $150,000.
[8] [2017] VSCA 197
29In Zaia v Eshow,[9] the plaintiff was the Archbishop of the Assyrian Church of the East and the defendant was a former parishioner. The defendant published posts on his personal Facebook page that carried imputations, among other things, that the plaintiff was worse than (the terrorist organisation) ISIS, that the plaintiff was corrupt, that he was leading his parishioners into sin and was a hypocrite. The audience for published posts was around 300 but there was no way of knowing exactly how many people had read the posts. The defamation was serious and persistent. The plaintiff was awarded $150,000.
[9] [2017] NSWSC 1540
30In Trkulja v Yahoo! Inc LLC,[10] the plaintiff sued the defendants in respect of online search results which suggested that he was so involved in crime in Melbourne that his rivals had hired a hit man to murder him. He received awards of damages of $225,000 against Yahoo! and $200,000 against Google.
[10] [2012] VSC 88
Assessment of damages
31The publication in this case carried serious imputations about the good standing and ethics of the plaintiffs. The imputations included that the plaintiffs were corrupt and untruthful. The plaintiffs are prominent members of the community and hold positions of importance within the community. The publication is likely to have tarnished their good reputations.
32There was no affidavit material from any other members of the community, any relatives or friends of the plaintiffs as to the impact of the defamation on the plaintiffs, or the impact of the defamation within the community.
33I accept the submissions of the plaintiffs that the defamatory publication has caused them stress and embarrassment and has had a negative impact on their reputations within the community. Other than the plaintiffs’ own evidence, I have no evidence as to the impact of the statements within the community, but accept that the impact would be negative and would be likely to bring the plaintiffs into disrepute.
34I note that the publication was posted for two days, though it is unknown whether screenshots of the post exist and continue to circulate. I accept that this is a possibility.
35The principles for assessing damages are summarised by John Dixon J in Wilson v Bauer Media Pty Ltd & Anor (“Wilson”):[11]
[11] [2017] VSC 521 at paragraph [59]
“(a)… damages are to provide consolation for hurt feelings, compensation for damage to reputation, and vindication of the plaintiff’s reputation … .
(b)… damages ought to reflect ‘the high value which the law places upon reputation and, in particular, upon the reputation of those whose work and life depends upon their honesty, integrity and judgment.[12]
(c)The gravity of the libel and the social standing of the parties are relevant to assessing the quantum of damages necessary to vindicate the plaintiff. The award must be sufficient to convince a bystander of the baselessness of the charge … .
(d)… there [must be] an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.
(e)The extent of publication and the seriousness of the defamatory sting are pertinent considerations.
(f)In determining the damage done to a plaintiff’s reputation, the court should also take into account the ‘grapevine’ effect arising from the publication … .[13]
(g)It is well accepted that injury to feelings may constitute a significant part of the harm sustained by a plaintiff ….; and
(h)… aggravated damages are a form of compensatory damages and, where appropriate, form part of the general damages awarded to a successful plaintiff for non-economic loss, designed to reflect aggravation caused to a plaintiff’s hurt or injury by reason of some conduct if the defendant … .”
(Footnotes omitted.)
[12] (Ibid) citing Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
[13] Belbin & Ors v Lower Murray Urban and Rural Water Corp (2014) 42 VR 348 at 388-390; [2012] VSC 535
36Engaging in a comparative exercise is apt to mislead.[14] Nevertheless, in a case where the matter is undefended and there is no contradictor to respond to the submissions of the plaintiff, it can be appropriate to look at damages awarded in comparable cases.
[14] Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at 350
37In assessing the damages, I must consider the seriousness of the imputations, the breadth of their publication and the time that they remained posted on the Facebook page, the standing of the plaintiffs within the community and the impact upon them of the publication. I must award damages that provide appropriate compensation to the plaintiffs. Having regard to the circumstances of the case and the evidence before me, I consider that the appropriate award of damages is $100,000 for each plaintiff.
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[7] [2016] VSC 201
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