Sarina v O'Shannassy (No 8)
[2025] FedCFamC2G 1651
•9 October 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sarina v O’Shannassy (No 8) [2025] FedCFamC2G 1651
File number(s): SYG 1339 of 2018 Judgment of: JUDGE CAMERON Date of judgment: 9 October 2025 Catchwords: DEFAMATION – assessment of damages Legislation: Defamation Act 2005 (NSW) ss. 33, 34, 35, 38
Defamation Amendment Act 2020 (NSW) sch 1 items 33, 34; sch 4, item 7
Cases cited: Carson v John Fairfax and Sons Ltd (1993) 178 CLR 44
Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33
Jameel v Dow Jones & Co Inc [2005] QB 946
Jones v Dunkel (1959) 101 CLR 298
O’Shannassy v Sarina (Appeal) [2024] FCA 880
Praed v Graham (1889) 24 QBD 53
Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496
Sarina v O’Shannassy (No 5) [2020] FCCA 2911
Sarina v O’Shannassy (No 6) [2020] FCCA 3422
Sarina v O’Shannassy (No 7) [2024] FedCFamC2G 102
Sarina v O’Shannassy [2021] FCA 1649
Division: General Number of paragraphs: 43 Date of last submissions: 14 May 2024 Date of hearing: On the papers Place: Sydney Counsel for the Applicants: Mr C Bolger Solicitor for the Applicants: Kalantizis Lawyers Respondent: Appeared in person ORDERS
SYG 1339 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CLINTON SARINA
First Applicant
MARTIN GREEN
Second Applicant
AND: JOHN O'SHANNASSY
Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
9 OCTOBER 2025
THE COURT ORDERS THAT:
1.There be judgment for the first applicant in the sum of $30,000 plus interest of $7,000.
2.There be judgment for the second applicant in the sum of $30,000 plus interest of $7,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE CAMERON
INTRODUCTION
The applicants, Mr Sarina and Mr Green, commenced this proceeding on 11 May 2018 alleging that the respondent, Mr O’Shannassy, had defamed them in an Email. The procedural history of the matter is:
(a)in their statement of claim filed on 11 May 2018, Messrs Sarina and Green alleged, relevantly, that they had been defamed by Mr O’Shannassy in the Email which he sent on 20 December 2017 to Andrew George and Bryan Coleman, directors of a company called Fleur de Vie Beverages Pty Ltd;
(b)four interlocutory judgments were delivered by this Court over the duration of the action at first instance;
(c)on 30 October 2020 the action was dismissed: Sarina v O’Shannassy (No 5) [2020] FCCA 2911 (Liability Judgment);
(d)on 17 December 2020 orders for costs were made: Sarina v O’Shannassy (No 6) [2020] FCCA 3422;
(e)the applicants appealed to the Federal Court of Australia;
(f)on 19 November 2021 Rares J allowed the appeal, gave judgment for the applicants, dismissed a cross-appeal and ordered that the matter be remitted to this Court for an assessment of damages: Sarina v O’Shannassy [2021] FCA 1649 (Appeal Judgment);
(g)on 29 April 2022 Mr O’Shannassy filed a debtor’s petition and became bankrupt;
(h)on 9 February 2024 I found that the damages ordered to be assessed were not a debt provable in Mr O’Shannassy’s bankruptcy: Sarina v O’Shannassy (No 7) [2024] FedCFamC2G 102; and
(i)Mr O’Shannassy’s appeal by leave from that decision was dismissed on 8 August 2024: O’Shannassy v Sarina (Appeal) [2024] FCA 880.
These reasons concern the assessment of damages remitted to this Court by Rares J’s orders of 19 November 2021, in particular the order that:
6.The matter be remitted for the assessment of the appellants’ damages to the Federal Circuit and Family Court of Australia (Division 2) pursuant to s 28(1)(f) of the Federal Court of Australia Act 1976 (Cth) and be heard by a judge other than the primary judge. (emphasis added)
That order reflects his Honour’s reasons at [94]-[99] of the Appeal Judgment.
LEGISLATION
The Defamation Act 2005 (NSW) as it stood in 2018 applies in this case.[1] Relevantly, it provided:
[1] Defamation Amendment Act 2020 (NSW) sch.1 items 33, 34; sch.4, item 7
34 Damages to bear rational relationship to harm
In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.
35 Damages for non-economic loss limited
(1) Unless the court orders otherwise under subsection (2), the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings is $250,000 or any other amount adjusted in accordance with this section from time to time (the maximum damages amount) that is applicable at the time damages are awarded.
(2) A court may order a defendant in defamation proceedings to pay damages for noneconomic loss that exceed the maximum damages amount applicable at the time the order is made if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant an award of aggravated damages.
(3) The Minister is, on or before 1 July 2006 and on or before 1 July in each succeeding year, to declare, by order published in the Gazette, the amount that is to apply, as from the date specified in the order, for the purposes of subsection (1).
…
38 Factors in mitigation of damages
(1) Evidence is admissible on behalf of the defendant, in mitigation of damages for the publication of defamatory matter, that:
(a) the defendant has made an apology to the plaintiff about the publication of the defamatory matter, or
(b) the defendant has published a correction of the defamatory matter, or
(c) the plaintiff has already recovered damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter, or
(d) the plaintiff has brought proceedings for damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter, or
(e) the plaintiff has received or agreed to receive compensation for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter.
(2) Nothing in subsection (1) operates to limit the matters that can be taken into account by a court in mitigation of damages.
A notice published in the NSW Government Gazette No 224 of 6 June 2025, declared $500,000 to be the amount specified for the purposes of s.35(1) of the Defamation Act as from 1 July 2025.
BACKGROUND
In their amended statement of claim the applicants alleged that the Email contained defamatory matter which:
… in its natural and ordinary meaning conveyed or was understood to have conveyed the following defamatory imputations:
(1) The second applicant is under investigation by the legal services commissioner for fraud. The second Applicant had so conducted himself, as at 20 December 2017, that the Legal Services Commissioner had a reasonable suspicion that the second Applicant had engaged in fraud and was investigating him for that conduct;
(2)The second applicant is a fraud;
(3)The second applicant is one of standover man Michael McGurk's two closest confidants;
(4) The second applicant was knowingly involved in a $150m loan fraud;
(5) The second applicant has been charged with fraud;
(6) The second applicant would have gone to gaol if he had given evidence at his fraud trial;
(7) The second applicant is a fraudulent business man;
(8) The first applicant is a fraud;
(9) The first applicant is one of standover man Michael McGurk's two closest confidants;
(10) The first applicant was knowingly involved in a $150m loan fraud;
(11) The first applicant has been charged with fraud;
(12) The first applicant is a fraudulent businessman;
(13) The first applicant has further supreme court proceedings against him for fraud;
(14) The first applicant went to gaol for 6 years.
It was alleged that the defamatory material was read by the applicants as well as by Messrs George and Coleman with whom the applicants were seeking to go into business. The evidence indicates that the proposed business was the sale of bottled water through Fleur De Vie, in which Messrs George and Coleman were investors and of which they were directors and shareholders.
The outcome of those allegations was tabulated in the Liability Judgment as follows:
No
Imputation
Conveyed?
1
Mr Green had so conducted himself, as at 20 December 2017, that the Legal Services Commissioner had a reasonable suspicion that he had engaged in fraud and was investigating him for that conduct
Yes
2.
Mr Green is a fraud
Yes
3
Mr Green is one of standover man Mr McGurk’s two closest confidants
Yes
4.
Mr Green was knowingly involved in a $150 million loan fraud
No
5.
Mr Green has been charged with fraud
No
6.
Mr Green would have gone to jail if he had given evidence at his fraud trial
No
7.
Mr Green is a fraudulent business man
Yes
8.
Mr Sarina is a fraud
Yes
9.
Mr Sarina is one of standover man Mr McGurk’s two closest confidants
Yes
10.
Mr Sarina was knowingly involved in a $150 million loan fraud
No
11.
Mr Sarina has been charged with fraud
No
12.
Mr Sarina is a fraudulent business man
Yes
13
Mr Sarina has further Supreme Court proceedings against him for fraud
Yes
14.
Mr Sarina went to jail for six years
No
As Rares J recorded in the Appeal Judgment:
15.The trial judge found that the matter complained of conveyed the following three common imputations about each of Mr Green and Mr Sarina, namely:
(1)he was a fraud (imputations 2 and 8);
(2)he is one of standover man, Mr McGurk’s two closest confidants (imputations 3 and 9); and
(3)he is a fraudulent businessman (imputations 7 and 12).
16In addition, his Honour found that the matter complained of conveyed the following separate imputations about, respectively, Mr Green and Mr Sarina:
(4)Mr Green had so conducted himself, as at 20 December 2017, that the Legal Services Commissioner had a reasonable suspicion that the second Applicant [Mr Green] had engaged in fraud and was investigating him for that conduct (Imputation 1).
(5)Mr Sarina has further supreme court proceedings against him for fraud (Imputation 13).
Each of the imputations that was proven was found by the trial judge to have been serious and defamatory. Further, the trial judge found that the defamatory statements made in the Email had been actuated by malice as they had been made without proper support in terms of evidence or argument and had been propounded with the intention of embarrassing the applicants in the eyes of the directors of Fleur de Vie.
At first instance, only one of the defences advanced by Mr O’Shannassy was made out, namely the defence provided by the then-s.33 of the Defamation Act, namely:
33 Defence of triviality
It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.
However, on appeal it was held that the trial judge had erred in his approach to s.33 and that the Email had been both calculated to do harm and had been likely to do so. It was further held that the trial judge had erroneously rejected evidence which showed that the allegations had caused Mr Coleman and Mr George concern in fact.
REMITTAL FOR RETRIAL LIMITED TO THE ASSESSMENT OF DAMAGES
As recorded earlier, Rares J allowed the appeal and remitted the matter to this Court for a retrial limited to the assessment of damages. In that connexion his Honour observed:
(a)damages were unlikely to be very large, publication of the defamation of each appellant having been to a limited audience of two, possibly three, other persons;
(b)although there was likely to be evidence of hurt feelings and impugned reputations, there was no suggestion of economic loss or an ongoing commercial relationship between the appellants and Messrs Coleman and George;
(c)nonetheless, this was not a case for nominal damages. Mr O’Shannassy’s imputations were very serious ones which he had sought unsuccessfully to justify at the trial. In this connexion at [99] his Honour cited Lord Esher MR’s statement in Praed v Graham (1889) 24 QBD 53 at 55 that:
… the jury in assessing damages are entitled to look at the whole conduct of the defendant from the time the libel was published down to the time they give their verdict. They may consider what his conduct has been before action, after action, and in court during the trial;
(d)the appellants were entitled to some damages for their hurt to feelings, their anxiety over the uncertainty of the trial, and the various meetings and discussions they had with people with whom they were in business arising out of Mr O’Shannassy’s allegations;
(e)although not justifying aggravated damages, Mr O’Shannassy’s persistence in his failed defences could be taken into account in assessing general damages; and
(f)together with damages for hurt feelings and anxiety surrounding the uncertainty of the trial, the appellants are entitled to compensation for further damage caused by Mr O’Shannassy’s conduct throughout the proceedings.
EVIDENCE
The parties relied on evidence that had been adduced at the trial and did not seek to lead or tender further evidence.
Applicants
Martin Green
In his affidavit of 10 March 2020, Mr Green deposed to a conversation with Mr George and Mr Coleman in November 2017 concerning “serious allegations” that Mr O’Shannassy had made against him and Mr Sarina. Mr Green deposed that Mr George asked to meet with him and Mr Sarina which they did about a week later at which time Mr George had said words to the effect of:
O’Shannassy says the two of you have been involved in fraud, that Clinton has been involved with McGurk and that Martin has been struck off as a solicitor.
Mr Green deposed that both he and Mr Sarina had sought to refute those allegations but Mr Green had nevertheless been worried about what would happen to the project with Fleur de Vie. He felt sick, anxious and depressed.
On about 21 December 2017 Mr Coleman sent him a copy of the Email which he had received from Mr O’Shannassy on 20 December 2017. On 21 December 2017 he received a call from Mr George who seemed to be treating him with suspicion. Mr George asked about the fraud matter and during the conversation Mr Green became lightheaded and felt ill. He was very embarrassed. After the telephone call he felt seriously ill and that night could not sleep. He became anxious and depressed and was very embarrassed to have to explain himself once more. He had been very upset by the allegations and between that call and Christmas, the worry and concern made it very difficult to sleep.
In cross-examination Mr Green agreed that issues concerning his reputation did not play any role in what ultimately happened with the business and said that he did not expect that Messrs George and Coleman had repeated Mr O’Shannassy’s allegations to anyone else. He agreed that his 2003 acquittal of charges of inciting a bribe and perversion of the course of justice had been published in the Manly Daily and the Sydney Morning Herald.
Clinton Sarina
Mr Sarina deposed that he had been very upset by the accusations made in the Email and was concerned that Messrs George and Coleman would believe what Mr O’Shannassy had said. He was also concerned for Fleur De Vie. Mr Sarina recalled that Messrs George and Coleman had been standoffish with him for some time after their receipt of the Email. He was angry but relieved when Mr Coleman told him on Boxing Day 2017 that he and Mr George had satisfied themselves that he and Mr Green were “OK”. That day Mr Coleman said to him and Mr Green words to the effect of:
Andrew and I have done some further research and due diligence regarding the email sent to us by O’Shannassy and we are satisfied that you guys are OK. The contents of the email did cause us some considerable concern however and we had to spend a little time satisfying ourselves that things were OK
Mr Sarina said that it had been very embarrassing to have to convince Messrs George and Coleman that Mr O’Shannassy’s accusations were untrue. He had been very upset that the allegations had been made and that Mr O’Shannassy had not apologised. This litigation had also caused him worry.
Mr Sarina agreed in cross-examination that he had successfully sued the Sydney Morning Herald’s publishers in the District Court over an article which stated or implied that he had been investigated in connection with a $150 million mortgage fraud and had been associated with criminal groups. He also agreed that he had successfully sued the Sydney Morning Herald’s publishers in the Federal Court over a different article which said something similar.
Andrew George
Mr George deposed to having received the Email from Mr O’Shannassy and to it having caused him concern and worry about his business arrangements with Messrs Sarina and Green. He deposed to having had a conversation with Mr Coleman to the following effect after receiving the Email:
I rang Coleman and asked if he had read the email he said, "I have".
I said: what did you think about it?
He said: I am worried about the email and doing business with these guys.
I said:They seem to have a tarnished reputation so we will probably have to be the face of the business.
Coleman agreed. Coleman said to me:
We had better have a detailed meeting with Clint and Martin about this email and the allegations that O'Shannassy is making about them.
Mr George became consciously and actively cautious of Messrs Sarina and Green because he was concerned that they were not of good character. However, he put risk management measures in place and over time his concern dissipated to a degree.
Mr George agreed that after receiving the Email he wrote by email to Mr O’Shannassy saying:
Our confidence in them and unwavering support in their abilities is founded on the strong relationship we have forged.
He did that because, although there were still a lot of unanswered questions, he had confidence in what Messrs Sarina and Green could “deliver” and he supported their ability to provide necessary services in circumstances where he had put safeguards in place. At the time of the trial he maintained a business relationship and friendship with Mr Sarina but, nevertheless, at the time of his affidavit in March 2020 he was still:
... subconsciously cautious in my interactions with Mr. Sarina and Mr. Green because of Mr. O’Shannassy’s statements.
SUBMISSIONS
Applicants
The applicants submitted that the task presently before the Court was to assess the amount of compensation to award to each of them for:
(a)the hurt to feelings knowing that the allegations were false and impugned their reputations; and
(b)the perceived damage to their reputations;
in circumstances where:
(c)all the defences failed;
(d)the trial judge’s credit findings were overturned on appeal;
(e)the defence did not allege bad reputation; and
(f)the defence had made no plea in mitigation.
It was argued that the rejection on appeal of the trial judge’s reasons for not accepting the evidence of the applicants and of Mr George was significant for the remittal. The applicants submitted that it meant that the Court ought now ‘unequivocally” accept their unchallenged evidence concerning the hurt to their feelings and Mr George’s unchallenged evidence as to the concerns that he and Mr Coleman had regarding the applicants’ reputations. In that connection, the applicants argued that the Court should have regard to the matters canvassed by Rares J in his reasons and summarised above at [11].
The applicants referred to the possibility that the Email’s contents might be disseminated beyond its recipients, i.e. the “grapevine effect”, but did not make any particular submission in that connection.
The applicants submitted that any award of damages should include a component for aggravated damages and particularised the basis of the claim as follows:
(a)their knowledge of the falsity of the imputations;
(b)Mr O’Shannassy’s conduct in raising defences of truth and contextual truth;
(c)Mr O’Shannassy’s conduct at trial;
(d)Mr O’Shannassy’s failure to apologise; and
(e)the sensational nature of the allegations.
As to interest, while recognising the discretionary nature of interest awards the applicants submitted that it was appropriate to approach the exercise of that discretion on the basis that vindication damages attracted interest from the date of publication and that damages for hurt, which were spread from publication to judgment, attracted interest that accrued similarly. They argued:
24.If one conceived of half a applicants’ damages as directed to vindication and initial hurt, and the other half equally spread over the period between publication and judgment, that would produce an interest rate overall of 3% (4% on half the amount, and 2% on the other half). Thus, an interest rate of 3% gives substantial acknowledgement to the principle that part of the applicants' loss is taken to be spread over the period from publication to judgment.
25.In a case such as the present, where an unusually long time has elapsed between publication and trial, it is likely that the bulk of the loss was suffered closer to the time of publication. That is, there is a strong basis for questioning the assumption that any part of the loss is equally spread over the period.
Respondent
Implicitly, Mr O’Shannassy invited an award of nominal damages. He submitted that apart from being “shocked”, neither applicant gave evidence describing the effect the Email had had on them and observed that, on appeal, Rares J had opined that
… the damages are unlikely to be very large.
Mr O’Shannassy also referred to a sharply adverse credit finding made against Mr Sarina in a Local Court proceeding in 2019 and to a 2004 Police Integrity Commission Report which made adverse credibility findings against Mr Green concerning his conduct as a solicitor and as a witness. It was argued that Mr Green’s reputation had been permanently injured by that report.
Mr O’Shannassy further submitted that the applicants’ reputations had been not much damaged by the Email and pointed in that connection to Mr George’s evidence that he and Mr Coleman still had confidence in the applicants. It was also noted that the Email had only been sent to the applicants and to Mr George and Mr Coleman and that Mr Coleman had not given evidence in the proceeding, in relation to which Mr O’Shannassy invited the Court to draw a Jones v Dunkel (1959) 101 CLR 298 inference.
It was further put that Mr Sarina had successfully sued Fairfax Media over a:
… publication having substantially the same meaning of effect as the matter now complained of …
with the consequence that the harm he now alleges had already been ameliorated by financial compensation received from Fairfax Media.
CONSIDERATION
In Carson v John Fairfax and Sons Ltd (1993) 178 CLR 44 at 60-61, the High Court said:
… there are three purposes to be served by damages awarded for defamation. The three purposes no doubt overlap considerably in reality and ensure that “the amount of a verdict is the product of a mixture of inextricable considerations”. The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant's personal and (if relevant) business reputation and vindication of the appellant's reputation. The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant. Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant's reputation. “The gravity of the libel, the social standing of the parties and the availability of alternative remedies” are all relevant to assessing the quantum of damages necessary to vindicate the appellant.
(per Mason CJ., Deane, Dawson and Gaudron JJ) (references omitted)
On the subject of the quantification of damages for defamation, in Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33 at 113-114 [446], White J said:
.. the following principles can be identified as being particularly pertinent to the assessments in the present case:
(a)Damage to reputation need not be proved as it is presumed;
(b)Damages for injured feelings, however innocent the publication by the defendant may have been, form a large element in the assessment. The harm caused to applicants by defamatory material often lies more in their own feelings about what others are thinking of them than in any actual change manifest in the attitude of others towards them;
(c)A person publishing defamatory imputations must take applicants as they find them. Accordingly, it is appropriate to have regard to the individual sensitivities of an applicant;
(d)The level of damages should 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;
(e)The circumstance that a respondent has not provided any apology is pertinent;
(f)Aggravated damages are a form of compensatory damages. They are not awarded to punish a respondent. Exemplary or punitive damages for defamation cannot be awarded;
(g)An award of aggravated damages may be made if a respondent has acted in a manner which demonstrates a lack of bona fides or in a manner which is improper or unjustifiable. Conduct with those characteristics will be such as to increase the harm which the defamation has caused or may be supposed to have caused;
(h)The failure to publish a retraction or an apology may make an award of aggravated damages appropriate if it amounts to a continuing assertion of the defamatory imputations;
(i)In awarding aggravated damages, the Court is still compensating applicants for the loss actually suffered by them as a result of the defamation but, in doing so, it may adopt the highest level of damages open as compensatory damages. (references omitted)
Section 34 of the Defamation Act requires the Court to ensure, when determining the amount of damages to be awarded, that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of those damages.
As noted earlier, the maximum damages that may be awarded for non-economic loss in the present case is $500,000.
Specifically as to aggravated damages, Wigney J said in Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496:
721Aggravated damages are a form of compensatory damages; they are not awarded to punish a respondent.
722Aggravated damages may be awarded where there is a lack of bona fides in the respondent’s conduct, or where the conduct is improper or unjustifiable. Conduct with those characteristics may be taken to increase or aggravate the harm the defamation caused or may reasonably be supposed to have caused. Where conduct of a respondent which is improper, unjustifiable or lacking in bona fides is established, an increase to the applicant’s sense of hurt may be presumed from all the evidence. It is not necessary for the applicant to give evidence that the aggravating behaviour of the respondent “augmented his [or her] sense of hurt”.
723Circumstances of aggravation can be found in the respondent’s conduct from the commission of the tort up until the day of judgment.
724The failure to publish a retraction or an apology may make an award of aggravated damages appropriate if it amounts to a continuing assertion of the defamatory imputations.
725Aggravated damages may be appropriate where the defamatory matter is published in an extravagant, excessive or sensationalist manner.
726The respondent’s aggravating conduct may be found in the circumstances of publication where the respondent increased the harm suffered by the applicant by recklessly inflicting damage on the applicant’s reputation, or failing to investigate the defamatory allegations before publishing them.
727The conduct of the litigation can in some circumstances justify aggravated damages, however mere persistence, even vigorous persistence, in a bona fide defence, in the absence of improper or unjustifiable conduct, cannot be used to aggravate compensatory damages. The conduct of the respondent’s counsel can provide a basis for aggravated damages, including where counsel puts to the applicant that he or she was lying to the court, or assertions were put to the applicant in cross-examination which were without support, or were gratuitous or calculated to insult. (references omitted)
As Rares J noted, the defamation of the applicants was published to only two people beyond the applicants themselves, Mr George and Mr Coleman. There is no evidence that the Email’s contents were disseminated beyond those original four recipients nor any reason to suspect that this might have occurred or will occur. The extremely limited dissemination of the Email’s contents is a matter of great significance in the assessment of damages in this case.
I accept that each of the applicants was upset, embarrassed and distressed by the accusations variously directed at them in the Email and that the Email caused them a degree of anxiety concerning the future of their business relationship with Messrs George and Coleman. I also infer that some of these feelings lasted for a period after Messrs George and Coleman indicated to them that they nevertheless considered them to be “OK”. I have noted that Mr O’Shannassy did not apologise and defended the case fully. The fact that despite the baselessness of the accusations Mr O’Shannassy required the applicants to proceed to judgment can be accepted to have led to them being further stressed and worried.
The Fleur de Vie enterprise did not progress but the Email was not responsible for that. The water source was not as accessible to the parties as had originally been anticipated.
It having been determined that the Email was defamatory of the applicants, the law as it was when the defamation occurred presumes damage to reputation: Jameel v Dow Jones & Co Inc [2005] QB 946. In this case, not only was the dissemination of the Email most limited, such harm to the applicants’ reputations as occurred appears to have been brief and of no large and lasting effect. Messrs George and Coleman undertook researches which set their minds at rest, at least as far as the potential business opportunity was concerned, and led to Mr George apparently happily enough discouraging further communication from Mr O’Shannassy.
As noted earlier, no evidence was led from Mr Coleman. Nonetheless, Mr George’s evidence that he had lingering concerns even at the time of his affidavit should not be overlooked and so the damages to be awarded will contain not only an award for the hurt caused by the traducement of the applicants’ reputations but also an element reflective of the need to vindicate their reputations in the eyes of at least Mr George. Given that Mr George did give evidence I am not persuaded that any particular significance should be attached to the fact that Mr Coleman did not.
I am also not persuaded that Mr Green’s vindication in earlier proceedings, referred to above at [15], was of any particular relevance to the present matter given the positive attitude adopted by Mr George and Mr Coleman only a few days after receiving the Email.
Finally, the circumstances of the publication of the defamatory statements, namely that they were found to have been actuated by malice and were not followed by an apology, justify an allowance for aggravated damages.
CONCLUSION
It is not apparent that the impact of the Email on one applicant has been greater than its impact on the other. Consequently, there will be:
(a)judgment for the first applicant in the sum of $30,000; and
(b)judgment for the second applicant in the sum of $30,000.
The applicants are entitled to interest on those damages which I quantify at $7,000 in each case.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 9 October 2025
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