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Martin v Najem

Martin v Najem

Case [2022] NSWDC 479 17 October 2022

Defamation

Compensatory Damages

Aggravated & Exemplary Damages

Injunction

Costs

Tort Law

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District Court

New South Wales

Medium Neutral Citation: Martin v Najem [2022] NSWDC 479
Hearing dates: 12 October 2022
Date of orders: 17 October 2022
Decision date: 17 October 2022
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
Order:
(1)   Judgment for the plaintiff for the sum of $300,000, including aggravated damages, plus interest of $6,656.
(2) Defendant pay plaintiff’s costs, with liberty to apply for indemnity costs and/or a gross sum costs order pursuant to s 98 of the Civil Procedure Act 2005 (NSW).
(3)   The Defendant by himself or by his servants or agents, be permanently restrained from publishing, or causing to be published, any matter that conveys any one or more of the following imputations, or imputations not differing in substance, of and concerning the Plaintiff:
(a) he is a paedophile;
(b) he is a racist; and
(c) he is the most hated person in the social media marketing industry.
(4)   Exhibits retained until further order.

Catchwords:
TORT - defamation - two videos of abusive and threatening content accusing the plaintiff of paedophilia and racism - defendant challenges capacity and serious harm but raises no substantive defences - defendant fails to attend hearing and solicitors granted leave to withdraw - imputations conveyed and serious harm established - damages including aggravated damages - interest - permanent injunction granted

Legislation Cited:
Defamation Act 2005 (NSW) ss 10A, 34 and 35
Defamation Act 2013 (UK) s 1
District Court Act 1973 (NSW) s 46
Online Safety Act 2021 (Cth) ss 5 and 7
Uniform Civil Procedure Rules 2005 (NSW) rr 7.27, 17.3 and 29.7

Cases Cited:
Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
Andrew Hennessey v Architectus Group Holdings Pty Ltd [2010] NSWDC 61
Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154
Bazzi v Dutton [2022] FCAFC
Cerutti v Crestside Pty Ltd [2014] QCA 33
Dhir v Saddler [2017] EWHC 3155 (QB)
Fentiman v Marsh [2019] EWHC 2099 (QB)
French v Fraser [2015] NSWSC 1807
Gair and Turland v Greenwood [2020] NSWDC 586
Hague v Cordiner (No. 2) [2020] NSWDC 23
Johnson v Nationwide News Pty Ltd & 1 Or [2005] NSWCA 17; 62 NSWLR 309
Hague v Cordiner (No. 2) [2020] NSWDC 23
Hockey v Fairfax Media Pty Ltd [2015] FCA 652
Mahommed v Unicomb [2017] NSWCA 65
Mahommed v Unicomb [2018] NSWSC 291
Mahommed v Unicomb [2021] NSWCA 108
Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd [2022] NSWCA 150
Napag Trading Ltd v Gedi Gruppo Editoriale SPA [2020] EWHC 3034 (QB)
Newman v Whittington [2022] NSWSC 249
North Coast Children's Home Inc. trading as Child & Adolescent Specialist Programs & Accommodation (CASPA) v Martin [2014] NSWDC 125
Overmyer Industrial Brokers Pty Ltd v Campbells Cash & Carry Pty Ltd [2003] NSWCA 305
Pelechowski v Registrar (1999) 198 CLR 435
Rader v Haines [2022] NSWCA 198
Rothe v Scott (No 4) [2016] NSWDC 160
Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496
Satz v ACN…

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 Martin v Najem

Details

AGLC: Martin v Najem [2022] NSWDC 479
Case: [2022] NSWDC 479
Decision Date: 17 October 2022

CaseChat Overview and Summary

The matter of Martin v Najem was heard in a court where the plaintiff, Martin, sought damages for defamation caused by the defendant, Najem, through the publication of two videos containing serious and abusive allegations. These videos accused Martin of being a paedophile and a racist, leading to significant harm to his reputation. Najem contested the capacity and extent of harm but did not present any substantive defences. Najem failed to attend the hearing, leading to the withdrawal of his solicitors. The court had to determine whether the imputations made in the videos were defamatory, and if so, the extent of the harm caused and the appropriate remedies.

The court examined the content of the videos and the effect of the imputations on Martin's reputation. It found that the imputations were indeed defamatory and conveyed serious harm to Martin’s reputation. The court also considered the failure of the defendant to attend and the lack of substantive defences, leading to a conclusion that the plaintiff's claims were substantiated. The court awarded damages including aggravated damages, interest, and granted a permanent injunction against the defendant from making further defamatory statements about the plaintiff.

In its judgment, the court ordered that the defendant pay the plaintiff $300,000 in damages, including aggravated damages, plus interest of $6,656. Additionally, the court issued a permanent injunction preventing the defendant from making any further defamatory statements about the plaintiff. The defendant was also ordered to pay the plaintiff’s costs, with the possibility for the plaintiff to apply for indemnity costs or a gross sum costs order under the Civil Procedure Act 2005 (NSW). The exhibits in the case were retained until further order.

Orders

Orders of the court

Order:

(1) Judgment for the plaintiff for the sum of $300,000, including aggravated damages, plus interest of $6,656.

(2) Defendant pay plaintiff’s costs, with liberty to apply for indemnity costs and/or a gross sum costs order pursuant to s 98 of the Civil Procedure Act 2005 (NSW).

(3) The Defendant by himself or by his servants or agents, be permanently restrained from publishing, or causing to be published, any matter that conveys any one or more of the following imputations, or imputations not differing in substance, of and concerning the Plaintiff:

(a) he is a paedophile;

(b) he is a racist; and

(4) Exhibits retained until further order.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Martin v Najem [2022] NSWDC 479

Most Recent Citation

High Quality Jewellers Pty Ltd (ACN 119 428 394) v Ramaihi (Ruling) [2022] VCC 1924

Cases citing this decision · 5 of 5 shown

Bottrill v Graham (No 2)
[2025] NSWDC 221 Para 50

…phile activity have told the courts they have had to move home or work for safety reasons ( Rothe v Scott (No 4) [2016] NSWDC 160; Martin v Najem [2022] NSWDC 479; Newman v Whittington [2022] NSWSC 249). In Rothe v Scott (No 4) , where similar allegations were made on social media, there were two attempts on the pl…
Carbone v Fowler Homes Pty Ltd; Carbone v Fowler Homes Pty Ltd
[2024] NSWCA 192 Para 40

…he District Court (“Where such a transfer occurs, the powers of the Supreme Court travel with the claim”): see Martin v Najem [2022] NSWDC 479 at [126]. It is unnecessary for present purposes to express any views about the powers of the District Court in relation to matters which have not been transferred to it.…
Sommerville v Schieb; Horan v Schieb
[2024] NSWDC 6 Para 1

…ry to health may be taken into account not only in damages ( Iskander v Barcos [2023] VCC 2074) but also in relation to serious harm ( Martin v Najem [2022] NSWDC 479 at [71] and [76]) where the evidence is likely to include physical or mental problems and/or a need for treatment. Such matters must be particularise…
Doak v Birks
[2022] NSWDC 625 Para 1

…terms of the principles in Voller , are his calling on others on social media to attack the plaintiff (a feature also demonstrated in Martin v Najem [2022] NSWDC 479) and Schedule D, in which speaks of the “killing” of children in circumstances where, in five years’ time, there would be no children left to compete…
High Quality Jewellers Pty Ltd (ACN 119 428 394) v Ramaihi (Ruling)
[2022] VCC 1924

…a) Cases Cited: Wilks v Qu (Ruling 2) [2022] VCC 1503; Newman v Whittington [2022] NSWSC 249; Randell v McLachlain [2022] NSWDC 506; Martin v Najem [2022] NSWDC 479; Scott v Bodley [2022] NSWDC 459 Ruling: Application to adjourn dismissed.…

View all 5 citing cases →

Cases cited in this decision · 28 of 28 shown

Rader v Haines
[2022] NSWCA 198 Para 1

…not differing in substance) and, if so, whether the imputations are defamatory. In this regard I note the discussion by Brereton JA in Rader v Haines [2022] NSWCA 198 at [17] of the difference between the serious harm defence in England and in Australia, in relation to the interaction between serious harm and defam…
Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd
[2022] NSWCA 150 Para 125

…eal, in dismissing the appeal, similarly did not deal with the issue: Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd [2022] NSWCA 150 at [286] - [288].…
Newman v Whittington
[2022] NSWSC 249 Para 66

…scourage the bringing of cases likely to result in modest damages awards, where the costs were out of proportion to the damages: Newman v Whittington [2022] NSWSC 249 at [30] - [46]. Serious harm must be established in every action brought for publications in which s 10A has been enacted where those publications we…
Mahommed v Unicomb
[2021] NSWCA 108 Para 124

…pleading grew ever more hopeless ( Mahommed v Unicomb [2018] NSWSC 291 at [20] - [22]) and was eventually struck out ( Mahommed v Unicomb [2021] NSWCA 108), so the issue of equitable jurisdiction remained unresolved.)…
Gair and Turland v Greenwood
[2020] NSWDC 586 Para 126

…n proceedings in this court, but in specific circumstances, namely after transfer from the Supreme Court, as occurred in Gair and Turland v Greenwood [2020] NSWDC 586. Where such a transfer occurs, the powers of the Supreme Court travel with the claim. However, as this decision illustrates, if this court does not h…
Webster v Brewer (No 3)
[2020] FCA 1343 Para 88

…Children's Home Inc. trading as Child & Adolescent Specialist Programs & Accommodation (CASPA) v Martin [2014] NSWDC 125 and Webster v Brewer (No 3) [2020] FCA 1343. While differing amounts have been awarded, all these judgments stress that paedophilia is among the most serious of claims. Racism is similarly an i…
Hague v Cordiner (No. 2)
[2020] NSWDC 23 Para 1

…o enforce the injunction can be awarded their own costs at all ( Johnson at [25]; see the decisions referred to in Hague v Cordiner (No. 2) [2020] NSWDC 23 at [35]).…
Rush v Nationwide News Pty Ltd (No 7)
[2019] FCA 496 Para 38

…s are those which are set out in Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652 at [63] - [73]) and Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 at [70] - [85] (“ Rush ”) (which cites Hockey at [70] and [83]) .…
Stocker v Stocker
[2019] UKSC 17 Para 39

…first instance (which the Court set aside) was erroneous and contrary to the correct approach for social media publications, citing Stocker v Stocker [2019] UKSC 17; [2020] AC 593 (“ Stocker ”).…
Bauer Media Pty Ltd v Wilson (No 2)
[2018] VSCA 154 Para 85

…Sections 35(2A) and (2B) were introduced as part of the amendments made to the Act and following the decision in Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154 to clarify that the cap is applicable regardless of whether aggravated damages are awarded or not.…
Mahommed v Unicomb
[2018] NSWSC 291 Para 124

…n that any further amendments to the claim had to be settled by Senior Counsel, the pleading grew ever more hopeless ( Mahommed v Unicomb [2018] NSWSC 291 at [20] - [22]) and was eventually struck out ( Mahommed v Unicomb [2021] NSWCA 108), so the issue of equitable jurisdiction remained unresolved.)…
Wilson v Bauer Media Pty Ltd
[2017] VSC 521 Para 91

…sis predates the differing view of the relationship between general and aggravated damages as set out by John Dixon J in Wilson v Bauer Media Pty Ltd [2017] VSC 521, it is an accurate analysis of the relevant principles, including the manner in which the fixed cap on damages should be approached when aggravated d…
Mahommed v Unicomb
[2017] NSWCA 65 Para 124

…ions before the Court of Appeal but, as both were hopeless cases, neither was a suitable vehicle. In the first of these appeals, Mahommed v Unicomb [2017] NSWCA 65, the Court of Appeal accepted that the plaintiff’s statement of claim (which had been struck out as both hopeless and outside this court’s jurisdiction…
Rothe v Scott (No 4)
[2016] NSWDC 160 Para 105

…egrettably, there have been many cases since where attacks of this kind occur. In his written submissions, Mr Senior referred to Rothe v Scott (No 4) [2016] NSWDC 160, where I was the trial judge, where the sufferings the plaintiff endured included a serious physical assault. In approaching very similar issues to t…
French v Fraser (No 3)
[2015] NSWSC 1807 Para 1

…In the opening paragraph in French v Fraser [2015] NSWSC 1807, McCallum J (as her Honour the Chief Justice of the Supreme Court of the Australian Capital Territory then was) made the following observation:…
Hockey v Fairfax Media Publications Pty Ltd
[2015] FCA 652 Para 38

…determining whether a publication conveyed particular defamatory meanings are those which are set out in Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652 at [63] - [73]) and Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 at [70] - [85] (“ Rush ”) (which cites Hockey at [70] and [83]) .…
North Coast Children's Home Inc. trading as Child & Adolescent Specialist Programs & Accommodation (CASPA) v Martin
[2014] NSWDC 125 Para 88

…usly, by total strangers) include North Coast Children's Home Inc. trading as Child & Adolescent Specialist Programs & Accommodation (CASPA) v Martin [2014] NSWDC 125 and Webster v Brewer (No 3) [2020] FCA 1343. While differing amounts have been awarded, all these judgments stress that paedophilia is among the most…
Cerutti v Crestside Pty Ltd
[2014] QCA 33 Para 86

…nd extent of this relationship between damages and the relevant harm, as set out in s 34, is explained by Applegarth J in Cerutti v Crestside Pty Ltd [2014] QCA 33 at [26]-[36].…
Satz v ACN 069 808 957 Pty Ltd
[2010] NSWSC 365 Para 14

…The court must also honour its obligations towards the absent party. In Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365, Barrett J sets out the duties owed to the court by the party who is present, and the approach the judge should take in such circumstances. Conformably with those obligations, I have put questions…
Andrew Hennessey v Architectus Group Holdings Pty Ltd
[2010] NSWDC 61 Para 116

…t’s limited equitable jurisdiction has generally been accepted: see, for example, Andrew Hennessey v Architectus Group Holdings Pty Ltd [2010] NSWDC 61. However, Hardy may be distinguished because s 46 did not apply.…
Johnston v Nationwide News Pty Ltd
[2005] NSWCA 17 Para 1

…rar of the Court of Appeal conducts the enforcement, he or she may still to have to bear more legal costs: Johnson v Nationwide News Pty Ltd & 1 Or [2005] NSWCA 17; 62 NSWLR 309 (“ Johnson ”), as there is “a real question” as to whether the party seeking to enforce the injunction can be awarded their own costs at…
Overmyer Industrial Brokers Pty Ltd v Campbells Cash & Carry Pty Ltd
[2003] NSWCA 305 Para 123

…ncertainty are all the more the case in this century than it was in the past, as Overmyer Industrial Brokers Pty Ltd v Campbells Cash & Carry Pty Ltd [2003] NSWCA 305 demonstrates. The first instance judge had refused to apply the principles of equitable estoppel and the Court of Appeal accordingly inquired as to h…
Amalgamated Television Services Pty Ltd v Marsden
[2002] NSWCA 419 Para 109

…The principles for interest awards are summarised in Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1540] ff. Interest rates on defamation awards tend to vary to take into account how the hurt decreases over time.…
Triggell v Pheeney
[1951] HCA 23

…it has. There can be no doubt that most if not all of Mr Fraser’s conduct towards Dr French was improper and unjustifiable: cf Triggell v Pheeney (1951) 82 CLR 497. Mr Fraser’s conduct could probably also be characterised as lacking in bona fides, especially since he abandoned his defence and capitulated to the entr…
Dearman v Dearman
[1908] HCA 84

…had the matter been before this Court from the beginning other orders could be made is to my mind irrelevant. As Isaacs J said in Dearman v Dearman (1908) 7 CLR 549, 561, "the whole duty of every Court of Appeal is to give the judgment which in its opinion ought to have been given in the first instance." However, t…
[2020] AC 593
[2020] AC 593 Para 39

…which the Court set aside) was erroneous and contrary to the correct approach for social media publications, citing Stocker v Stocker [2019] UKSC 17; [2020] AC 593 (“ Stocker ”).…
[1991] 1 QB 283
[1991] 1 QB 283

…erious harm is the likelihood of percolation/repetition of the allegation beyond the original publishees ("the grapevine effect") ( Slipper v BBC [1991] 1 QB 283, 300 per Bingham LJ). In Sloutsker v Romanova [2015] [2015] EWHC 545 (QB); [2015] 2 Costs LR 321, Warby J said at [69]: "… It has to be borne in mind tha…
Thunder Studios Inc (California) v Kazal (No 13)
[2022] FCA 256 Para 3

…enforcement process may not only be expensive and uncertain but also lengthy, as the history behind Thunder Studios Inc (California) v Kazal (No 13) [2022] FCA 256 demonstrates.…

Legislation cited in this decision · 7

Defamation Act 2005 (TAS)
10A, 34, 35 4 mentions (from Para 80)
Online Safety Act 2021 (Cth)
5, 7 3 mentions (from Para 130)
Uniform Civil Procedure Rules 2005 (NSW)
17.3, 29.7, 7.27 3 mentions (from Para 9)
Defamation Act 2013
1 2 mentions (from Para 66)
District Court Act 1973 (NSW)
46 2 mentions (from Para 113)
Firebelt Pty Ltd v Brambles Australia Ltd
1 2 mentions (from Para 66)
Civil Procedure Act 2005 (NSW)
1 mention (from Para 2)

Medium Neutral Citation:	Martin v Najem [2022] NSWDC 479
Hearing dates:	12 October 2022
Date of orders:	17 October 2022
Decision date:	17 October 2022
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	Order: (1) Judgment for the plaintiff for the sum of $300,000, including aggravated damages, plus interest of $6,656. (2) Defendant pay plaintiff’s costs, with liberty to apply for indemnity costs and/or a gross sum costs order pursuant to s 98 of the Civil Procedure Act 2005 (NSW). (3) The Defendant by himself or by his servants or agents, be permanently restrained from publishing, or causing to be published, any matter that conveys any one or more of the following imputations, or imputations not differing in substance, of and concerning the Plaintiff: (a) he is a paedophile; (b) he is a racist; and (c) he is the most hated person in the social media marketing industry. (4) Exhibits retained until further order.
Catchwords:	TORT - defamation - two videos of abusive and threatening content accusing the plaintiff of paedophilia and racism - defendant challenges capacity and serious harm but raises no substantive defences - defendant fails to attend hearing and solicitors granted leave to withdraw - imputations conveyed and serious harm established - damages including aggravated damages - interest - permanent injunction granted
Legislation Cited:	Defamation Act 2005 (NSW) ss 10A, 34 and 35 Defamation Act 2013 (UK) s 1 District Court Act 1973 (NSW) s 46 Online Safety Act 2021 (Cth) ss 5 and 7 Uniform Civil Procedure Rules 2005 (NSW) rr 7.27, 17.3 and 29.7
Cases Cited:	Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 Andrew Hennessey v Architectus Group Holdings Pty Ltd [2010] NSWDC 61 Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154 Bazzi v Dutton [2022] FCAFC Cerutti v Crestside Pty Ltd [2014] QCA 33 Dhir v Saddler [2017] EWHC 3155 (QB) Fentiman v Marsh [2019] EWHC 2099 (QB) French v Fraser [2015] NSWSC 1807 Gair and Turland v Greenwood [2020] NSWDC 586 Hague v Cordiner (No. 2) [2020] NSWDC 23 Johnson v Nationwide News Pty Ltd & 1 Or [2005] NSWCA 17; 62 NSWLR 309 Hague v Cordiner (No. 2) [2020] NSWDC 23 Hockey v Fairfax Media Pty Ltd [2015] FCA 652 Mahommed v Unicomb [2017] NSWCA 65 Mahommed v Unicomb [2018] NSWSC 291 Mahommed v Unicomb [2021] NSWCA 108 Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd [2022] NSWCA 150 Napag Trading Ltd v Gedi Gruppo Editoriale SPA [2020] EWHC 3034 (QB) Newman v Whittington [2022] NSWSC 249 North Coast Children's Home Inc. trading as Child & Adolescent Specialist Programs & Accommodation (CASPA) v Martin [2014] NSWDC 125 Overmyer Industrial Brokers Pty Ltd v Campbells Cash & Carry Pty Ltd [2003] NSWCA 305 Pelechowski v Registrar (1999) 198 CLR 435 Rader v Haines [2022] NSWCA 198 Rothe v Scott (No 4) [2016] NSWDC 160 Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 Satz v ACN…