Linsley v Domaille (aka James)
[2009] VCC 554
•6 May 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
DEFAMATION DIVISION
DAMAGES AND COMPENSATION LIST
Case No. CI-08-03689
| RAYMOND BRIAN LINSLEY | Plaintiff |
| v | |
| TERRI-ANNE DOMAILLE | Defendant |
| (aka Cara JAMES) |
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| JUDGE: | HIS HONOUR JUDGE SHELTON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 30 April 2009 |
| DATE OF JUDGMENT: | 6 May 2009 |
| CASE MAY BE CITED AS: | Linsley v Domaille (aka James) |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0554 |
REASONS FOR JUDGMENT
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Catchwords: DEFAMATION – Assessment of damages – publication on Internet – aggravated damages – injunction restraining further publication – McCarey v Associated Newspapers Ltd (No. 2) [1965] 2 QB 86 – Coyne v Citizen Finance Ltd (1991) 172 CLR 211 – Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 – Cassell & Co Ltd v Broome [1972] AC 1027 – Triggell v Pheeney (1951) 82 CLR 497 – Barrick Gold Corp. v Lopenhandia (2004) 71 O.R. (3d) 416 – Ross v Holley (2004) ABQB 68 – Rindos v Hardwick (unreported, Supreme Court of Western Australia, 31 March 1994) – Cullen v White [2003] WASC 153 – Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr M Collins | Gibsons Solicitors Pty Ltd |
| For the Defendant | No appearance | |
| HIS HONOUR: |
Introduction
1 This is an assessment of damages for defamation, interlocutory judgment having been entered in default of appearance on 26 November 2008. The plaintiff also seeks a permanent injunction.
2 The defendant was the registered proprietor, and publisher of the contents of the website, Since 17 June 2008, the defendant has published the following on this website:
“Site Update / RKd
New Section – About this Site.
The first article in this section is Cult of Butler FAQ which contains the questions put to me primarily by Radha Krishna das (Ray Linsley) and my responses to them.
With regards to Ray Linsley I have not yet filled out the section of the site set up to document Sol’s response to us, but he will definitely be featuring prominently. This man has taken it upon himself to threaten me through a friend with the Queensland Police, manufactures lies which the Sol lawyer had the audacity to put in a letter to our service vendor in an attempt to have this site taken down (which seem[s] a very desperate attempt from where I am sitting), offer to purchase this site (yes I do have evidence of this) and attempt to manipulate me by offering to reconcile the relationship which he broke up in the first instance (which he put to me in a letter which was on the old site but has not been put up here yet).
One might wonder how Radha Krishna das feels himself so important as to take all these actions on, given that from all sources I have spoken to he really wasn’t all that close to Jagad Guru Siddhaswarupanarida. As an introduction to Radha Krishna des he is the main preacher for Chris Butler in Australia on the Gold Coast, rumor (sic) has it a former butcher and amateur boxer, a militant homophobe who once attended a gay pride rally dressed up as the Grim reaper and enjoys the reputation of having an exemplory (sic) marriage among other followers here.
The fact that he is a pedophile who groomed the daughter of his long- time friend Vrindarvan dasi (Margaret Doyle) to be his wife from the time she was a child and he was the same age as her father and that this does not raise any eyebrows among the devotees, or stop Margaret Doyle from being one of the most pious disciples in existence is one of the more disturbing stories about Science of identity that I personally know. Radha Krishna das has just made a video promoting Australian School of Meditation and continues to teach classes on a weekly basis.”
3 Obviously, the plaintiff relies upon the imputation that he is a paedophile and that he groomed the daughter of a long-time friend to be his wife from the time that she was a child and he was the same age as her father.
4 Pursuant to Rule 40.03(1)(b) of the County Court Rules, I ordered the evidence in this proceeding be given by affidavit.
5 I thought it was appropriate to make this order since the defendant did not appear at trial and would not be prejudiced in any way by having the trial conducted on the basis of affidavit evidence without the presence of the deponents. In her absence, the defendant was in no worse position than had the deponents of the affidavits given oral evidence. Further, three of four deponents reside outside Victoria, and inconvenience and expense would have been incurred by requiring them to attend and give oral evidence.
The Evidence
6 The witnesses who swore affidavits are the plaintiff, his wife, Brandon Raynor and James Petrohilos, and I turn to consider their evidence.
7 In an affidavit sworn 20 April 2009, the plaintiff gave evidence that he was aged fifty-five years, had been married for fourteen years to his wife, Mrnalini, and that they have a twelve-year old son. He stated that he resided on the Gold Coast and was the principal and co-ordinator of the Australian School of Mediation and Yoga (“ASMY”) at its head office in Mermaid Beach, Queensland, and that he had been principal and co-ordinator of ASMY for about fourteen years. ASMY had four other centres, including one at Collingwood in Victoria, and also held programs at various other venues in other States, including Winchelsea in Victoria. ASMY was a “not for profit” organisation. The plaintiff stated that he was its only paid employee, all other staff, who numbered approximately fifty, being volunteers. He stated that in the month of February 2009, 4720 people attended ASMY programs.
8 Linsley stated that his involvement with yoga began in 1978 and that he had been heavily involved since then. He states:
“In 2000 I established the ASMY’s centre on the Gold Coast, commenced regular national speaking engagements, lecturing both publicly and at ASMY centres on yoga, lifestyle and philosophy and in my capacity as media spokesperson interviewed on various radio programs.”
9 The plaintiff states that he first became aware of the defamatory publication on or about 12 July 2008 when he searched his name on the Internet and found the defamatory publication on the defendant’s website. He states:
“Upon becoming aware of the defamatory publications my reaction was one of complete disbelief. I was horrified, dismayed and angered by the revolting and offences accusations. I felt numb when I read it. I felt that the defendant had published the most vile and perverted allegations against me for the whole world to read.”
10 He immediately engaged solicitors, who are acting for him in this proceeding, and have them write a “Concerns Notice” on 31 July 2008. The plaintiff states that he attempted to resolve the matter by arranging an independent mediation through the Community Justice Centre in Sydney. It wrote to the plaintiff on 2 September 2008 indicating that the defendant did not wish to mediate.
11 The plaintiff states in his affidavit:
“Prior to the defamatory publications my work-life and family life have been a source of great satisfaction and pride to me. I believe l am held in high regard and with respect by students, colleagues and the general public. I frequently receive compliments from students and colleagues about my work at the ASMY, which is something I am both humbled and pleased by. I believe I am generally a happy-go-lucky person who enjoys life’s challenges. My relationship with my family has always been an exceptionally close and happy one, and a source of great satisfaction and pleasure in my life. However, since the defamatory publications appeared my life has been affected considerably for the worse. The impact on my life of Ms James publishing her allegations on the world- wide-web has been overwhelming; it has had a major impact on my health, my family and my work.
As a result of the defamatory publications, I have since about 20 July 2008 at all times felt incredibly stressed and despondent. This stress has strained both my personal and professional relationships. I have lost some of my happy-go-lucky outlook and tend to be more reactive to pressure and less tolerant with people and situations. Due directly to the stress and worry caused by the allegations made in the defamatory publications I now suffer from chronic insomnia. Although the defamatory statements are completely false I nevertheless worry that they may result in doubts arising in the minds of family, friends, work colleagues and the public. I now find I have a tendency to be overly careful when interacting with my son’s friends and other children. For example, I avoid any physical contact with children, such as hugging, in case it might be misinterpreted by someone who has read these allegations about me. This has had an impact on the nature of my relationship with my son, it is not as carefree and fun as it once was. For example, prior to James’ defamatory publication we would engage in regular back yard games of football and cricket. Due to my general feeling of despondency brought about by the stress and increased workload I rarely feel like it now. He does not understand why and has stopped asking, he just says ‘I know you’re too busy dad’ or ‘I suppose you’re too tired’. My relationship with my wife has also suffered due to the impact of the stress and my changed emotional state. My wife and I have always enjoyed a very close, affectionate and fun loving relationship, joking and laughing a lot. Our interactions are now more serious, less spontaneous and fun. Due to the chronic insomnia caused by the stress we spend most nights in separate rooms. To assist with dealing with the effect of this stress along with increasing my personal yoga and meditation practices I have been regularly availing myself of Traditional Chinese Medicine in the form of herbs, acupuncture and Massage. This treatment regime costs on average $120 a week.
I am aware that many people who know me and like and respect me, at least until the defamatory publications, have read the defamatory publications. For instance, James Petrohilios (sic), the principal of ASMY Melbourne whom I have known for over 20 years, called me after reading the defamatory publications. He was planning a series of public programs at which he was going to invite me to be the keynote speaker. He told me that due to concerns that potential attendees would come across the defamatory publication and the potential negative effect it would have on ASMY it would be best the program not go ahead until this situation was addressed. I agreed with his assessment and the program did not proceed. In another instance a leading member of the teaching staff, Andrew Galvin approached me after reading the defamatory publication and inquired (sic) if there was any substance to the accusation and where James would have gotten such an idea from. I explained to Andrew my understanding of what James’ motive is and assured him the accusation was completely false. He seems to have accepted my explanation but the fact that he approached me in the first place is a cause of great stress for me. I feel like I am under a spotlight and my actions are being judged.
I have had a number of students question me about the veracity of the accusations in the defamatory publications. This has been very distressing, extremely embarrassing and injurious to my personal and professional life. Although not stated openly I feel there has been a change in some students’ opinion of, trust in and respect for me as a teacher and a person. I estimate that three or four students have questioned me in this way about the allegations on James’ website. Typically, these conversations involve the student saying they found the allegations after conducting an internet search for either my name or ASMY. The conversations typically went along the lines of ‘I was shocked when I read it’. ‘I know it can’t be true’. ‘Why would anyone say that about you’. My response was always the same, I assured them that the accusations are completley (sic) false and I am taking legal action to remedy the situation.”
12 I have quoted from the plaintiff’s affidavit at length since it captures well the devastating effect which the defamation has had upon him.
13 The plaintiff’s wife, in an affidavit sworn 20 April 2009, states that she is now thirty-seven years old and married the plaintiff when aged twenty-three. She deposes to her husband’s high profile as follows:
“… My husband is easily recognizable having lectured around Australia in mediation, yoga and natural therapies for the past 20 years. People know him at the local swimming pool, shops, cafes and beaches. He is even recognized by airline staff and customs officials when he takes a flight.”
14 As to the effect of the defamatory publication upon her husband, she states:
“Due to Miss Domaille’s continual attacks on him and the school he represents, Ray’s workload and stress levels have overwhelmingly increased. He has less time for his family. He works late at nights, often finishing after the family has gone to bed. Before the publication of the defamatory website, he was a very ‘hands on’ dad. He would never have missed important events in his son’s life. Now he rarely has time to attend. It’s been very hard on his relationship with his son. We have tried to shelter our son as much as possible from these allegations; he doesn’t grasp the ramifications so he doesn’t understand why his father spends so much time away from him.
Ray has always been a very balanced, even tempered person. Since having to deal with these allegations he has become generally more pessimistic. His stress levels are higher and he suffers from chronic insomnia. Ray has had to deal with people’s suspicions caused by Ms Domaille’s aspersions. Ray used to be a very spontaneous and fun loving person. He was one of those rare adults who hadn’t lost the ability to play, able to relate to children on their level. He has now become very circumspect in his behaviour with children, and is careful never to be alone with them. I am sad to see this change in him because it’s completely unnecessary.”
15 Raynor, in an affidavit sworn 21 April 2009, deposes as to the plaintiff’s reputation. He is principal of Brandon Raynor’s School of Natural Therapies on the Gold Coast. He states that his school is accredited by the International Therapies Association. He states the he first met the plaintiff twenty-one years ago when he was aged eighteen. He states:
“… I found him inspiring and he taught me a lot about Meditation, Massage and Chinese Medicine. Ray continues to be an influential figure in my life and has always in my view upheld the highest of moral standards.
Over the years Ray has specialized in teaching Meditation and yoga and I have specialized in Massage Therapy. I have continued to have great respect for Ray’s abilities as a Massage Therapist as well as a Meditation Teacher and hired him for several years as a massage teacher.
During the years Ray was a teacher at my School, he always performed his duties in an exceptional manner, maintaining extremely high levels of professionalism, which is vital for a Massage Therapist and instructor. To my knowledge, he has always been held in the highest regard by the students he has taught, not only for his skill and knowledge as an instructor but for his approach to life, in fact to my observation he became a mentor to many of his students. As his reputation grew he became one of the most popular and sought after instructors at the school.
… I am aware from things that have been said to me by potential students that it has become known that the Defendant has a website on which she accuses Ray of pedophilia and other matters. …”
16 Petrohilos is the principal and coordinator of the Victorian Branch of ASMY which is located in Collingwood. In an affidavit sworn 23 March 2009, he deposes:
“I have known the Plaintff (sic) Rayond (sic) Linsley (“Linsley”) for about thirty (30) years. In that time I have considered Linsley to be a good family friend. I have always found Linsley to be an honest and honourable person and I respect him immensely (sic). I have also known that it is Linsley’s life’s work and aspiration to introduce people to the teachings of yoga and meditation.
Part of my duties in the ASMY is to co-ordinate programs for the Melbourne branch of the ASMY, including lectures and seminars. A few years ago Linsley gave a series of lectures at the Melbourne branch of the ASMY which were very successful and [as] a result of that Linsley became very well known here. Indeed, Linsley became one of the people at the top of our list of potential and desired guest speakers and I very much wanted him to return.
In August 2008 I was considering which people I would invite to come and give guest lectures at the Melbourne branch of the ASMY. The list of people included Linsley. As a matter of routine, I ‘googled’ Linsley’s name to see if he had been in the news in any way recently. The ‘google’ results were headed by a link to the website (‘the website’). When I went to the website by clicking on the link I was horrified to observe the accusations made against Linsley on that website, in particular ‘the fact that he is a pedophile’.
As I have been friends with Linsley for about thirty (30) years I knew that the accusations were untrue and nothing more than an outright lie. However, this would not be the same for people who do not know Linsley well or at all.
As the accusations about Linsley on the website appeared to be a permanent fixture this presented the Melbourne branch of the ASMY with a problem. If we were to promote any lectures using Linsley’s name it is likely that our newer and potential new customers who do not know about Linsley would ‘google’ his name to find out more information about him and would very quickly come across the accusations about him.
As a result we are now unable to consider inviting Linsley to come to Melbourne to be a guest speaker here. I have told Linsley about this and he is saddened but realises there is nothing he can do about it. Generally Linsley would not be paid to provide such lectures but his expenses would always be covered.
… .”
The Law
17 The relevant legal principles are clear. In McCarey v Associated Newspapers Ltd (No. 2) [1965] 2 QB 86, at 107, Diplock LJ said:
“In an action for defamation, the wrongful act is damage to the plaintiff’s reputation. The injuries that . . . [the plaintiff] sustains may be classified under two heads:
(1) the consequences of the attitude adopted towards him by other persons as a result of the diminution of the esteem in which they hold him because of the defamatory statement; and
(2) the grief or annoyance caused by the defamatory statement to the
plaintiff himself.”
18 The High Court endorsed this statement of principle in Coyne v Citizen Finance Ltd (1991) 172 CLR 211, at 216, per Mason CJ and Deane J.
19 In Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, at 150, Windeyer J stated:
“. . . It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways — as a vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money.”
20 In Cassell & Co Ltd v Broome [1972] AC 1027, at 1071, Lord Hailsham LC stated:
“Such actions involve a money award which may put the plaintiff in a purely financial sense in a much stronger position than he was before the wrong. Not merely can he recover the estimated sum of his past and future losses, but, in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge.”
21 Aggravated compensatory damages can be awarded where the defendant’s conduct is improper, unjustifiable or lacking in bona fides: (see Triggell v Pheeney (1951) 82 CLR 497, at 514).
22 Defamation on the Internet raises particular issues. In Barrick Gold Corp. v Lopenhandia (2004) 71 O.R. (3d) 416, Blair JA, in the Ontario Court of Appeal, introduced his judgment, at paragraph 24.02, with the comment of Dr Collins, who appeared for the plaintiff in this proceeding, in his The Law of Defamation and the Internet (Oxford University Press (2001)):
“The Internet represents a communications revolution. It makes instantaneous global communication available cheaply to anyone with a computer and an Internet connection. It enables individuals, institutions, and companies to communicate with a potentially vast global audience. It is a medium which does not respect geographical boundaries. Concomitant with the utopian possibility of creating virtual communities, enabling aspects of identity to be explored, and heralding a new and global age of free speech and democracy, the Internet is also potentially a medium of virtually limitless international defamation [emphasis added].”
23 He stated in his judgment:
“28 Is there something about defamation on the Internet – ‘cyber libel’, as it is sometimes called – that distinguishes it, for purposes of damages, from defamation in another medium? My response to that question is ‘Yes’. 29 The standard factors to consider in determining damages for defamation are summarized by Cory J. in Hill at p. 1203. They include the plaintiff’s position and standing, the nature and seriousness of the defamatory statements, the mode and extent of publication, the absence or refusal of any retraction or apology, the whole conduct and motive of the defendant from publication through judgment, and any evidence of aggravating or mitigating circumstances.
30 In the Internet context, these factors must be examined in the light of what one judge has characterized as the ‘ubiquity, universality and utility’ of that medium. In Dow Jones & Co. v. Gutnick, 120021 H.C.A. 56 (Australia H.C.) (10 December 2002), that same judge - Kirby J., of the High Court of Australia—portrayed the Internet in these terms, at para. 80: -
‘The Internet is essentially a decentralized, self-maintained telecommunications network. It is made up of inter-linking small networks from all parts of the world. It is ubiquitous, borderless, global and ambient in its nature. Hence the term ‘cyberspace’. [] This is a word that recognizes that the interrelationships created by the Internet exist outside conventional geographic boundaries and comprise a single interconnected body of data, potentially amounting to a single body of knowledge. The Internet is accessible in virtually all places on Earth where access can be obtained either by wire connection or by wireless (including satellite) links. Effectively, the only constraint on access to the Internet is possession of the means of securing connection to a telecommunications system amid possession of the basic hardware [emphasis added].’
31 Thus, of the criteria mentioned above, the mode and extent of publication is particularly relevant in the Internet context, and must be considered carefully. Communication via the Internet is instantaneous, seamless, inter-active, blunt, borderless and far- reaching. It is also impersonal, and the anonymous nature of such communications may itself create a greater risk that the defamatory remarks are believed: see Vaquero Energy Ltd. v Weir, 120041 A.J. No. 84 (Alta. Q.B.) at para. 17.
. . . 32 … ‘… The extraordinary capacity of the Internet to replicate almost endlessly any defamatory message lends credence to the notion that ‘the truth rarely catches up with a lie’. The problem for libel law, then, is how to protect reputation without squelching the potential of the Internet as a medium of public discourse [emphasis added]’
33 These characteristics differentiate the publication of defamatory material on the Internet from publication in the more traditional forms of media, in my opinion.”
24 In Ross v Holley (2004) ABQB 68, Low J in the Ontario Superior Court of Justice stated, at paragraph 11:
“11
The countervailing feature is the mode and extent of publication of the defamatory statements by the defendant in the case at bar. Cyber-libel takes a number of forms. I would not attempt to catalogue them here, but suffice it to say that there is a palpable difference between a posting on a popular website which may experience millions of ‘hits’ on an ongoing basis and thus give rise to the existence of millions of publishees, and the sending of an e- mail to all of the publisher’s acquaintances, even with the exhortation to pass the e-mail on to others as was the case here. Clearly, the use of e-mail is far more powerful than the sending out of a multiple of hard copy letters defaming the plaintiff, but on the other hand, the e-mail medium is far less powerful than a posting on a website that has, as its initial audience, a substantially wider reach and therefore an exponentially greater potential for re- dissemination.”
Damages
25 Here, of course, the defamatory material was contained on a website. The libel was of a very serious nature. The plaintiff had a high profile in the yoga world. The plaintiff has been damaged personally, professionally and in his business. It is not possible to accurately state the extent of publication. It has, however, been on the defendant’s website for over nine months and I take account of the above comments as to the powerful nature of libel on the Internet.
26 It is appropriate, in my view, that aggravated compensatory damages be awarded to the plaintiff given the refusal of an apology by the defendant when requested in the plaintiff’s solicitor’s letter of 31 July 2008, the defendant’s refusal to attend mediation and her continuing publication of the libel on her website.
27 As to the appropriate amount of damages to award, Dr Collins sought $70,000 for general damages and $25,000 for aggravated damages.
28 He referred to Rindos v Hardwick, an unreported decision of Ipp J. (Supreme Court of Western Australia, 31 March 1994) where the plaintiff was defamed by being accused of being a paedophile and also was defamed in his professional capacity as an anthropologist. Dr Collins also relied upon a decision of Master Newnes in the Supreme Court of Western Australia, Cullen v White [2003] WASC 153, where, again, the plaintiff was defamed by being accused of being a paedophile, as well as with respect to his standing as an academic.
29 In both cases, the publication of the defamatory material was on the Internet. Dr Collins referred to similarities and differences between these two cases and the present proceeding.
30 Dr Collins urged me to award aggravated damages separately. I note, however, the comment in Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58, at 74-5, and the comment in Australian Defamation Law and Practice, at paragraph [20030], that, rather, a global amount should be awarded for damages.
31 Taking all of the above matters into account, I award the plaintiff by way of damages, including aggravated compensatory damages, the sum of Seventy Thousand Dollars ($70,000.00).
32 I assess these damages at today’s date and therefore no question of the awarding of interest arises, apart from that which accrues after today.
33 After conclusion of the hearing, I indicated that I was prepared to grant an injunction permanently restraining the plaintiff from continuing to publish the defamatory material or any other words to the same purport or effect via the Internet or otherwise, and I have already signed an Order giving effect to this.
34 I further order that the defendant pay the plaintiff’s costs to be taxed on Scale “D”.
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