Rothe v Scott (No 4)

Case [2016] NSWDC 160

District Court


New South Wales

Medium Neutral Citation: Rothe v Scott (No. 4) [2016] NSWDC 160
Hearing dates:1 and 2 August 2016
Date of orders: 05 August 2016
Decision date: 05 August 2016
Jurisdiction:Civil
Before: Gibson DCJ
Decision:

(1) Judgment for the plaintiff against the defendant for $150,000.
(2) Plaintiff’s written submissions on interest and costs in 7 days.
(3) Defendant’s written submissions on interest and costs in 14 days.
(4) Proceedings listed for further directions on matters of interest and costs on Thursday 1 September 2016 at 9:00am.
(5) Liberty to apply in relation to interest and costs.
(6) Exhibits retained for 28 days.

Catchwords: TORT – defamation – defendant publishes Facebook post headed “Pedophile [sic] warning” naming the three motels owned and operated by the plaintiff in a small country town as being used to relocate paedophiles – plaintiff not named - whether plaintiff identified – whether imputations conveyed – extent of publication – defences of qualified privilege, honest opinion and triviality – damages –aggravated compensatory damages – judgment for $150,000
Legislation Cited: Child Protection (Working with Children) Act 2012 (NSW)
Defamation Act 2005 (NSW), ss 30, 31, 33, 34 and 38
Cases Cited: Cerutti v Crestside Pty Ltd [2014] QCA 33
Channel Seven Sydney Pty Limited v Parras [2002] NSWCA 202
Cole Myer Ltd v Webster; Coles Myer Ltd v Thompson [2009] NSWCA 299
French v Fraser (No 3) [2015] NSWSC 1807
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Mickle v Farley [2013] NSWDC 295
North Coast Children's Home Inc. trading as Child & Adolescent Specialist Programs & Accommodation (CASPA) v Martin [2014] NSWDC 125
Nowak v Putland [2011] QDC 259
Parras v Channel Seven Sydney Pty Limited (Supreme Court of New South Wales, Simpson J, 14 September 2001)
Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674
RJ v JC [2008] NSWDC 217
Rothe v Scott [2015] NSWDC 105
Rothe v Scott (No. 2) [2015] NSWDC 143
Rothe v Scott (No. 3) [2016] NSWDC 151
Category:Principal judgment
Parties: Plaintiff: Kenneth Rothe
Defendant: David Scott
Representation:

Counsel:
Plaintiff: Mr C J Dibb
Defendant: Mr D Scott (in person)

  Solicitors:
Plaintiff: Slater & Gordon
Defendant: Mr D Scott (in person)
File Number(s):2015/74837
Publication restriction:None

Judgment

  1. The plaintiff brings proceedings for defamation for a Facebook post (“the matter complained of”) posted on the defendant’s Facebook page by the defendant on 12 March 2014. The text of the matter complained of is as follows:

“David Scott

March 12. Edited

Pedophile [sic] warning:- Nambucca has been used as a relocation for these monsters – blue dolphin – nirvana hotel and above the indian restaurant! One of them even tried to change his name and get a job at the local public school? People what the fark [sic] share this post please! Can’t believe this just another council decision without consent! Bus stops are right out the front of these hotels for our children?”

  1. The imputations pleaded to arise from the matter complained of…

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Details
AGLC
Rothe v Scott (No. 4) [2016] NSWDC 160
Case
[2016] NSWDC 160
Decision Date

CaseChat Overview and Summary

Rothe, a motel owner in a small country town, sued Scott, who published a Facebook post warning of paedophiles operating in the area, naming three motels owned by Rothe. Scott did not name Rothe but argued that his post was an honest opinion protected by qualified privilege. Rothe claimed defamation, aggravated compensatory damages, and sought judgment for $150,000. The court had to decide if Rothe was identifiable, if the post conveyed defamatory imputations, the extent of publication, and the applicability of qualified privilege, honest opinion, and triviality as defences.

The court found that although Rothe was not directly named, the motels were sufficiently specific to identify him as the owner. The post conveyed the defamatory imputation that Rothe was involved with paedophiles. The court rejected Scott’s defence of qualified privilege, finding no duty or interest sufficient to justify the publication. The honest opinion defence was also dismissed, as the post was not based on facts but rather on a false premise. The triviality defence failed because the publication was widespread and damaging. The court awarded Rothe $150,000 in aggravated compensatory damages.

The court ordered judgment for Rothe against Scott for $150,000, with further submissions on interest and costs. The proceedings were listed for further directions regarding interest and costs. The exhibits were retained for 28 days, and liberty to apply for interest and costs was granted.

Orders

Orders of the court

(1) Judgment for the plaintiff against the defendant for $150,000.

(2) Plaintiff’s written submissions on interest and costs in 7 days.

(3) Defendant’s written submissions on interest and costs in 14 days.

(4) Proceedings listed for further directions on matters of interest and costs on Thursday 1 September 2016 at 9:00am.

(5) Liberty to apply in relation to interest and costs.

(6) Exhibits retained for 28 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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