FEDERAL COURT OF AUSTRALIA
Nettle v Cruse [2021] FCA 935
File number: NSD 369 of 2019 Judge: WIGNEY J Date of judgment: 11 August 2021 Catchwords: DEFAMATION – where respondent was alleged to have posted online publications in the form of reviews and commentary containing defamatory imputations concerning the applicant and his surgical practice – where online publications were made using false names – where respondent was unable to be personally served by the applicant – where respondent failed to file a defence or appear but service deemed to have been effected – where respondent had previously admitted to being responsible for some of the publications – whether online publications contained defamatory imputations – whether publications conveyed imputations that the applicant was dishonest, unethical and incompetent – where imputations were found to have been conveyed – where imputations conveyed in the online publications were found to be defamatory
DAMAGES – where applicant was found to have been defamed by online publications – where damages and injunctive relief sought for defamation – where applicant was found to have suffered substantial loss or damage as a result of the defamatory publications – relevant principles regarding the assessment of damages for defamation – where damage to the applicant as a result of defamation significantly affected the applicant’s personal, business and professional reputation – where defamatory publications caused hurt to feelings and emotional and mental distress to the applicant – where applicant awarded compensatory and aggravated damages – where applicant granted permanent injunctive relief restraining respondent from republishing content containing defamatory imputations
Legislation: Federal Court of Australia Act 1976 (Cth), s 23
Federal Court Rules2011 (Cth), rr 5.23(2)(d), 10.23, 10.24
Defamation Act 2005 (NSW), s 35
Cases cited: Al-Muderis v Duncan (No 3) [2017] NSWSC 726
Bristow v Adams [2012] NSWCA 166
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
Crampton v Nugawela (1996) 41 NSWLR 176
Nationwide News Pty Ltd v Rush (2020) 380 ALR 432; [2020] FCAFC 115
Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52
Rush v Nationwide News Pty Limited (No 9) [2019] FCA 1383
Tavakoli v Imisides (No 4) [2019] NSWSC 717
Division: General Division Registry: New South Wales National Practice Area: Other Federal Jurisdiction Category: Catchwords Number of Paragraphs: 72 Date of Hearing: 31 July 2020 Counsel for the Applicant: Ms S Chrysanthou SC and Ms S Ross Solicitor for the Applicant: HWL Ebsworth Counsel for the Respondent: The respondent did not appear ORDERS
NSD 369 of 2019 BETWEEN: DR WARWICK NETTLE
Applicant
AND: CATHERINE CRUSE
Respondent
JUDGE:
WIGNEY J
DATE OF ORDER:
11 AUGUST 2021
THE COURT ORDERS THAT:
1.Verdict and judgment be entered for the applicant.
2.The respondent pay the applicant damages for non-economic loss, including aggravated damages, assessed at $450,000.
3.The respondent be permanently restrained from publishing or re-publishing:
(a)the…
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- AGLC
- Nettle v Cruse [2021] FCA 935
- Case
- [2021] FCA 935
- Decision Date
CaseChat Overview and Summary
The court found that the online publications did indeed contain defamatory imputations about Dr Nettle, including allegations of dishonesty, unethical behavior, and incompetence. These imputations were found to be defamatory as they significantly harmed Dr Nettle’s reputation in his professional capacity. The court emphasized the substantial loss and damage Dr Nettle suffered, including emotional and mental distress. Given the nature of the defamatory content and the risk of future publications, the court granted Dr Nettle both compensatory and aggravated damages, totaling $450,000, and issued permanent injunctions to prevent Ms Cruse from republishing the defamatory content.
In conclusion, the court ruled in favor of Dr Nettle, awarding him damages and permanent injunctive relief. Ms Cruse was ordered to pay the damages and Dr Nettle’s costs. The permanent injunctions prohibit Ms Cruse from republishing the defamatory content or any similar imputations about Dr Nettle. This decision underscores the importance of protecting professional reputations from defamatory attacks, particularly in the digital age where such attacks can be easily disseminated.
Orders
Orders of the court
1. Verdict and judgment be entered for the applicant.
2. The respondent pay the applicant damages for non-economic loss, including aggravated damages, assessed at $450,000.
3. The respondent be permanently restrained from publishing or re-publishing:
(a) the first matter complained of (as pleaded at paragraphs [3]-[4] of the applicant’s Statement of Claim filed on 8 March 2019 (SOC));
(b) the second matter complained of (as pleaded at paragraphs [5]-[6] of the SOC);
(c) the third matter complained of (as pleaded at paragraphs [7]-[8] of the SOC); and
(d) the fourth matter complained of (as pleaded at paragraphs [9]-[11] of the SOC);
or any matters to the same or similar effect.
4. The respondent be permanently restrained from publishing any of the following imputations about the applicant:
(a) that the applicant colluded with another doctor in order to defraud the respondent;
(b) that the applicant, a surgeon, prioritised his own financial gain over his patient’s welfare;
(c) that the applicant helped another doctor take advantage of the respondent, his patient;
(d) that the applicant is an unethical doctor in that he colluded with another doctor to defraud his patient, and prioritised his own financial gain over his patient’s welfare;
(e) that the applicant, a doctor, is a compulsive liar;
(f) that the applicant colluded with another doctor in order to avoid paying a reimbursement which had been promised to the respondent;
(g) that the applicant, a doctor, failed to preserve the confidentiality of his patient’s (the respondent’s) medical records;
(h) that the applicant’s conduct, in colluding with another doctor to avoid paying a reimbursement which had been promised to the respondent and in failing to preserve the confidentiality of his patient’s medical records, was disgusting and unethical;
(i) that the applicant’s conduct, in colluding with another doctor to avoid paying a reimbursement which had been promised to the respondent and in failing to preserve the confidentiality of his patient’s medical records, was illegal;
(j) that the applicant is a fraudster and scammer;
(k) that the applicant, a surgeon, is a charlatan;
(l) that the applicant, a surgeon, is so careless and incompetent that he is a danger to his patients;
(m) that the applicant, a surgeon, has routinely caused physical harm to his patients as a result of surgeries he has performed;
(n) that the applicant, a surgeon, intimidates and threatens his patients;
(o) that the applicant, a surgeon, performed surgical procedures on a patient which that patient had not agreed to;
(p) that the applicant, a surgeon, abuses his position of power over his patients;
(q) that the applicant, a surgeon, provides inhumane medical care to his patients;
(r) that the applicant, a surgeon, has violated the rights of his patients;
or any imputations that do not differ in substance.
5. The respondent pay the applicant’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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