Scott v Baring
[2018] WASC 361
•22 November 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: SCOTT -v- BARING [2018] WASC 361
CORAM: MASTER SANDERSON
HEARD: ON THE PAPERS
PUBLISHED : 22 NOVEMBER 2018
FILE NO/S: CIV 2157 of 2018
BETWEEN: BARBARA ANN SCOTT
Plaintiff
AND
DEAN PATRICK BARING
First Defendant
TESTMATING PTY LTD
Second Defendant
Catchwords:
Defamation - Assessment of damages - Turns on own facts
Legislation:
Nil
Result:
Damages awarded
Category: B
Representation:
Counsel:
| Plaintiff | : | On the papers |
| First Defendant | : | No appearance |
| Second Defendant | : | No apperance |
Solicitors:
| Plaintiff | : | Lavan |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
Case(s) referred to in decision(s):
Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652
John v MGN Ltd [1997] QB 586
Kenyon v Sabatino [2013] WASC 76
McEloney v Massey [2015] WADC 126
Rayney v The State of Western Australia [No 9] [2017] WASC 367
Wilson v Bauer Media Pty Ltd [2017] VSC 521
MASTER SANDERSON:
By writ of summons filed 5 July 2018 the plaintiff brought a defamation action against the defendants. The indorsement of claim was in the following terms:
1.The plaintiff's claim arises in respect of:
1.1defamatory matter published of and concerning the plaintiff by the defendants on or about 24 February 2018 by posting it on the first defendant and the second defendant's, alternatively, the second defendant's, Facebook page @harnessbred, and the post of the defamatory matter being downloaded and read by persons accessing the Facebook page @harnessbred, from on or about 24 February 2018, which defamatory matter was also promoted, advertised and made available for download via a link to the @harnessbred Facebook page on the second defendant and the first defendant's, alternatively, the second defendant's, website at (Defamatory Matter);
1.2acts of republication of the Defamatory Matter, or the defamatory gist or sense and substance of the Defamatory Matter, by readers of the Defamatory Matter by 'liking' the Defamatory Matter (Facebook Likes) or in posting comments (Facebook Comments), in response to the Defamatory Matter on the @harnessbred Facebook page from on or about 24 February 2018, which Facebook Likes and Facebook Comments were, in turn, downloaded and read by persons accessing the Facebook page @harnessbred, from on or about 24 February 2018, such republication being the natural and probable consequence of the defendants publishing the Defamatory Matter, alternatively, the defendants knew or ought to have known or intended that the Defamatory Matter, or the defamatory gist or sense and substance thereof, would be republished by the Facebook Likes and the Facebook Comments, further or alternatively, such republication being authorised by the defendants;
1.3acts of publication of additional defamatory matter of and concerning the plaintiff made by third parties posting such defamatory matter on the Facebook page @harnessbred and on Sam Smith's Facebook page from on or about 24 February 2018 (Third Party Comments) in reaction to the Defamatory Matter, and the Third Party Comments being downloaded and read by persons accessing the Facebook page @harnessbred and Sam Smith's Facebook page, from on or about 24 February 2018, by 'liking' the Third Party Comments or posting their own comments, which Third Party Comments were the natural and probable consequence of the defendants publishing the Defamatory Matter, alternatively, the defendants knew, or ought to have known, or intended that the Defamatory Matter would induce publication of Third Party Comments, further alternatively, the defendants knew, or should have known, that there was a significant risk of defamatory observations about the plaintiff, in the form of the Third Party Comments, being posted by third parties on the Facebook page @harnessbred and on other Facebook pages in the guise of comments on the Defamatory Matter, further alternatively, the defendants authorised the publication thereof; and
1.4alternatively to sub‑paragraph 1.3 above, acts of publication of the Third Party Comments in reaction to the Defamatory Matter, in circumstances where both of the defendants knew that the Facebook page @harnessbred contained defamatory matter posted by third parties and downloaded and read by others 'liking' the Third Party Comments or posting their own comments and they did nothing to stop or remove the Third Party Comments, although both of them could have done so, alternatively, in circumstances where the inflammatory nature of the Defamatory Matter expressly or implicitly invited defamatory comment by others and both of them allowed the Third Party Comments to remain on the Facebook page @harnessbred and thereby encouraged, endorsed and published the Third Party Comments.
No appearance was entered by either defendant to the writ. Default judgment was entered on 13 September 2018. This is the assessment of damages. In assessing these damages I have given consideration to an affidavit of the plaintiff sworn 10 October 2018. I have also relied upon comprehensive submissions filed by the plaintiff's solicitors. Much of what follows is taken from those submissions.
The plaintiff has been in the harness racing industry in some form or another for 37 years. During that time she has worked hard to build her reputation and achieve her goal of becoming, as she did, the first female chief steward in the equine harness racing industry.
The first defendant is the sole director, secretary and shareholder of the second defendant. The defendants operate a business called 'Harnessbred', its associated website (Harnessbred website) and a Facebook account @harnessbred (Facebook Page). The defendants' Harnessbred business is intended to be a central point for people in the equine harness racing industry in Australia with the intent of sharing news and information directly related to the Australian horse racing industry. On the 'About Us' page of the Harnessbred website, the first defendant says it is intended the website will be independent and informative and provide information about the harness racing industry. The first defendant undertakes to stay away from material which is 'defamatory and is in bad taste'. If that is the intent of the defendants, they certainly failed conspicuously in this case.
As the sole director and shareholder of the second defendant, the first defendant is the controlling mind of Harnessbred. The first defendant is responsible for administering and controlling the Harnessbred website and the Harnessbred Facebook Page.
At 8.50 am on 24 February 2018, the defendants uploaded a post on their Facebook Page which showed a picture of the plaintiff and contained the following words of and concerning the plaintiff (Facebook Post):
[I]ts [sic] been reported Ms Barbara Scott the Chief Steward of Harness Racing WA will be packing her bags and leaving her position after a very embarrassing recording has been leaked. Barbara in the view of many, has let the sport down. Its [sic] time for harness racing and Barbara to part ways.
As at the date of the defendants uploading the Facebook Post complained of to their Harnessbred Facebook Page, there were 9,174 Facebook users who were followers of the Harnessbred Facebook Page.
The evidence in relation to the defendants' Facebook Post complained of is as follows:
(1)67 Facebook users 'liked' the defendants' Facebook Post (Post Likes);
(2)44 Facebook users 'shared' the Facebook Post (Post Shares);
(3)58 Facebook users 'commented' on the Facebook Post (Post Comments) and a further 104 Facebook users posted 'comments' in response to the post comments (Further Post Comments); and
(4)125 Facebook users 'liked' the Further Post Comments.
Accordingly, there were a total of 398 'interactions' with the defendants' Facebook Post.
There is also evidence that as a consequence of the defendants' publications of the Facebook Post, which spawned the Post Likes, Post Shares, Post Comments and Further Post Comments, the plaintiff suffered and was exposed to:
(1)uninvited negative attention by an article published in The West Australian newspaper on 2 March 2018 reporting on a 'campaign of criticism against Racing and Wagering WA Chief Harness Steward Barbara Scott'; and
(2)a further demeaning, derogatory and disparaging social media attack in another Facebook post (the Sam Smith Publication). This is dealt with in some detail in the plaintiff's affidavit at [31] ‑ [33].
The plaintiff contends that the words of the defendants' Facebook Post in their natural and ordinary meaning conveyed the following imputations which were false and therefore defamatory of and concerning her, namely, that the plaintiff:
(1)had behaved in a manner unbecoming to her position;
(2)had behaved in a manner warranting a termination of her employment;
(3)was under investigation for misconduct;
(4)had had her employment terminated;
(5)was incompetent;
(6)was not a fit and proper person to continue in her role as the Chief Steward of Harness Racing in Western Australia; and
(7)had brought the harness racing industry in Western Australia into disrepute and that the plaintiff should be terminated from her position as the Chief Steward of Harness Racing in Western Australia.
Together, these are referred to as the defamatory imputations.
The plaintiff contends that the defendants are liable for defamation for the various modes of defamation that took place, namely in respect of:
(1)the Facebook Post which conveyed the defamatory imputations published of and concerning the plaintiff by the defendants posting it on their Facebook Page and the defamatory Facebook Post being downloaded and read by persons accessing the defendants' Facebook Page from on or about 24 February 2018 when the defamatory matter was also promoted, advertised and made available for download via a link to the Facebook Page at the defendants' website;
(2)acts of republication of the defamatory matter or the defamatory gist or sense and substance of the defamatory matter by readers of the defamatory matter 'liking' the defamatory matter or sharing or posting comments in response to the defamatory matter on the Facebook Page from on or about 24 February 2018. The Post Likes, Post Shares and Post Comments were in turn downloaded and read by persons accessing the Facebook Page from on or about 24 February 2018, such republication being the natural and probable consequence of the defendants publishing the defamatory matter. In the alternative, the plaintiff says the defendants knew or ought to have known or intended that the defamatory matter or the defamatory gist or sense and substance thereof would be republished by the Post Likes, Post Shares and Post Comments, such republication being authorised by the defendants;
(3)acts of publication of additional defamatory matter of and concerning the plaintiff made by third parties posting such defamatory matter on the Facebook Page and on Sam Smith's Facebook Page from on or about 24 February 2018 (further post comments) in reaction to the defamatory matter and the further post comments being downloaded and read by persons accessing the Facebook Page and Sam Smith's Facebook Page from on or about 24 February 2018 by 'liking' the Further Post Comments or posting their own comments. The plaintiff alleges the Further Post Comments were the natural and probable consequence of the defendants publishing the defamatory matter or alternatively the defendants knew or ought to have known or intended that the defamatory matter would induce publication of further comments. As a further alternative, the plaintiff says the defendants knew or should have known that there was a significant risk of the defamatory observations about the plaintiff in the form of the further post comments being posted by third parties on the Facebook Page and on other Facebook pages in the guise of comments on the defamatory matter.
Turning then to the general principles, the plaintiff accepts she has the onus of establishing that the defendants published the matters complained of and at least one person other than the plaintiff saw, read or heard the matter complained of comprising the so‑called bilateral nature of the publication. In Kenyon v Sabatino [2013] WASC 76 Le Miere J put the position as follows:
As a general principle everyone who knowingly takes part in communicating defamatory material, in whatever degree, is a publisher and is therefore liable for defamation. Enquiry into the precise degree of involvement is unnecessary. However, practical guidance as to the operation of the principle can be usefully obtained from a consideration of circumstances in which a person has been held to be a publisher [19].
It is clear the defendants knowingly took part in communicating the Facebook Post complained of at the Facebook Page. Publication of a matter posted on the internet (or a social media platform) requires a plaintiff to prove the matter complained of was 'downloaded' and viewed by somebody. The plaintiff gives direct evidence of the defendants' Facebook Post having been read by her son, her daughter and her sister. It was also read by Mr Denis Borivica, a work colleague of the plaintiff's, and several other of her work colleagues.
The plaintiff submits, and I accept, that it can be inferred third parties have downloaded internet content made available by the defendants so publication in the legal sense has occurred. Postings that respond to online defamatory matter may be relied upon to draw an inference that publication has occurred: see McEloney v Massey [2015] WADC 126. In this case, it is clear the Facebook Post was downloaded and understood by at least persons that were responsible for each of the Post Likes, Post Shares, Post Comments, Further Post Comments and the Sam Smith Publication.
Every communication of defamatory matter to someone other than the plaintiff is a separate publication. In certain circumstances the publisher of defamatory matter may be liable not only in respect of the original publication but also in respect of the republication of such matter by someone else. It is clear by the very nature of the publication in this case that the original publisher authorised its repetition and indeed encouraged such repetition. That is the natural consequence of the defendants' original publication. As was submitted by the plaintiff, the defendants hosting their Facebook Page provided a forum of engagement for more than 9,000 Facebook followers. Where a post such as the one complained of here is inflammatory, it expressly or implicitly invites users to post replies and responses of a kind that add fuel to the defamatory fire.
It is clear, then, that the defendants are liable in damages for the republication of their defamatory Facebook Post in the form of the Post Likes, Post Shares, Post Comments, Further Post Comments and the Sam Smith Publication.
If a defendant does not appear in proceedings the defendant is taken to have admitted the allegations of fact indorsed on the writ filed in the proceedings. While no statement of claim has been filed in this matter, the plaintiff contends, and I accept, that the detailed particularisation in the writ as to the plaintiff's claim and defamatory matters complained of and the prior issuing of two detailed defamation concern notices to the defendants have given adequate notice of the plaintiff's grounds and allegations of fact. The defendants have elected to do nothing. They have not responded to any communications in relation to the concern notices or these proceedings whatsoever. The only apparent reaction by the defendants was to take down their defamatory Facebook Post and so the associated thread of Post Likes, Post Shares, Post Comments and Further Post Comments. In all the circumstances, the defendants can be taken to have admitted the allegations that have been made against them, including as to their Facebook Post conveying defamatory imputations complained of.
In John v MGN Ltd [1997] QB 586, Sir Thomas Bingham MR said:
In assessing the appropriate damages for injury to reputation the most important factor is the gravity of the libel; the more closely it [the publication] touches the plaintiff's personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be (607 ‑ 608).
The plaintiff's affidavit makes it plain the defendants' Facebook Post was made to an audience that included the plaintiff's colleagues, employer, future possible employers and peers. It made allegations that questioned the plaintiff's honesty, integrity and professional reputation. It also questioned the plaintiff's suitability to carry on as chief steward. It is clear the publication was of utmost gravity.
As to the size and influence of the Facebook Page, it is difficult to precisely measure the reach of social media. Notwithstanding that difficulty, it can be stated that the Facebook Page had been 'liked' and 'followed' by over 9,000 Facebook users. As at 1.00 pm on 26 February 2018, the Facebook Post itself had been liked 67 times. There were 58 'comments' made in response to the Facebook Post. Those comments were liked 125 times and 100 further replies were made to those comments. Without restating those comments, many ramped up the criticism and many were crude. Further, the Facebook Post was shared by 44 Facebook users, republishing the Facebook Post to the network of those users. The total number of users who read the Facebook Post cannot be measured by simply adding up the number of likes or comments on the page; some users commented on the Facebook Post multiple times while others may have read the Facebook Post without liking or commenting at all. Regardless, it is clear that the Facebook Post was read and understood by many Facebook users, including both members of the Harness racing industry and the public in general.
The plaintiff has over the course of her 37 year involvement in the harness racing industry built a professional reputation that has resulted in the plaintiff being appointed chief steward. Fundamental to the ability to discharge her duties as chief steward is the plaintiff's ability to act with integrity and honesty. The harness racing industry must have the utmost confidence in the fact that their chief steward is always acting with integrity and honesty.
The plaintiff is unable to say the extent to which the publication within the industry has affected the views of members of that industry. However, the plaintiff is able to identify certain persons and organisations who were aware of the publication - in particular, the plaintiff's colleagues and the media - and it is inevitable there would have been discussion within the industry about the matters raised against the plaintiff.
At [61] ‑ [78] of her affidavit, the plaintiff details the effect upon her of the publication. She was hurt and upset. Her sleep was affected and eventually she was forced to take two weeks leave to deal with the stress. She felt she had to take that leave because she was concerned her distress might affect her ability to discharge her duties. She was subsequently diagnosed with Adjustment Disorder with Mixed Anxiety and Depression and was prescribed medication. I accept the publication of the material had a substantial deleterious effect on the plaintiff's mental state.
When she became aware of the publication the plaintiff acted immediately and appropriately. She sought legal advice and took steps to notify the defendants of the defamatory nature of the matter complained of and to request it be removed and an apology issued. It seems clear that a letter from the plaintiff's solicitors on 26 February 2018 caused the defendants to take the Facebook Post down. That limited the damage caused. There can be no suggestion the plaintiff did anything which exacerbated the position. In fact, her actions mitigated the damage.
As to the defendants they appear to have taken no steps until they were served with a solicitor's letter. Despite multiple requests they have failed to apologise or formally retract the Facebook Post. They have not engaged at all with the judicial process and appear to have taken steps to avoid service of proceedings. In short, apart from taking the Facebook Post down, they have done nothing to remedy the situation.
Damages in defamation are awarded for three separate purposes. First, consolation for personal distress and hurt caused by the publication. Second, reparation of the harm done. Third, vindication for the harm done to reputation. In awarding damages, the court is to disregard malice or any other state of mind of the defendants at the time of publication unless the malice or other state of mind affected the harm sustained.
One of the difficulties with this case is that it is impossible to ascertain how far‑reaching the publication was. That is the nature of social media and the internet generally. This is sometimes referred to as the 'grapevine' effect: see Wilson v Bauer Media Pty Ltd [2017] VSC 521 and Rayney v The State of Western Australia [No 9] [2017] WASC 367 [838].
Aggravated damages may also be awarded for defamation where the injury to the plaintiff has been exacerbated by the defendant's conduct. Where an apology is requested, failure to make that apology may be an aggravating factor.[1] Given the facts set out earlier in these reasons – particularly at [26] - the conduct of the defendants has served to exacerbate the injury suffered by the plaintiff. For this reason, an award of aggravated damages is appropriate.
[1] Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652 [446], [505].
That then leads on to the question of the assessment of damages. It is often said that, because each case is so particular, use of comparable awards is of limited value. Nonetheless, the solicitors for the plaintiff provided a comprehensive list of recent awards and I have attached these as an appendix to these reasons. Taking into account the extent of the publication and the vile nature of the material which was published, I am satisfied that an award of $120,000 for ordinary compensatory damages is appropriate. That takes into account the hurt caused to the plaintiff, the actual and potential damage to her reputation and the actual physical consequences she suffered as a result of the publication. Further, an award of $20,000 should be made to reflect aggravated damages. There are two defendants and I am satisfied that the award ought be made against the first defendant as to $100,000 and against the second defendant as to $40,000. The first defendant is the moving hand behind the second defendant. It may well be the case the second defendant is a company with limited assets and any award made against it may prove to be of little value. That is the reason for apportioning the award in the way that I have.
The plaintiff seeks interest on the whole of the award at 6% per annum. I would award interest on that basis. The defendants ought pay the costs of the action and the costs of the assessment of damages.
Attachment
| Case name | Year | Citation | Case facts | Award |
| Maroney v Zegers | 2018 | VSC 446 | The defendant established websites and email accounts to anonymously attack Mr Wegman The emails were sent to approximately 4,000 people | First plaintiff -$175,000 |
| Cables v Winchester | 2018 | VSC 392 | The defendant was held liable for 6 posts on a community Facebook page soliciting feedback from people with bad experiences for the local McDonalds and held liable for subsequent 'comments' The community Facebook page had 9,477 followers and the initial post was liked by 9,510 followers | $200,000 |
| Johnston v Aldridge | 2018 | SADC 68 | The defendant posted two Facebook posts about a dispute between the parties which generated various vitriolic comments about the plaintiff | $100,000 |
| Fraser v Business News Groups Pty Ltd ` | 2018 | VSC 196 | The defendant published an article to a subscriber based news site targeted to the hotel and tourism industries about the plaintiff The article was online for two days | $150,000 |
| Stokes v Ragless | 2017 | SASC 159 | The defendant published material on his website in relation to the plaintiff and was held liable for the defamation for 41 website publications and 15 email | $90,000 |
| Zaia v Eshow | 2017 | NSWSC 1540 | The defendant posted 7 defamatory Facebook posts about the plaintiff, 6 of which were held to be defamatory. The defendant had 264 followers at the time of the first post which increased to 332 by the time of the final post, furthermore the defendant's Facebook profile was not private. | $150,000 |
| Al Muderis v Duncan & Anor | 2016 | NSWSC 726 | The defendant created a fake website with an address similar to that of the plaintiff's, posted a 10 minute YouTube video about the plaintiff and created a Facebook page which linked to the fake website, the YouTube video and several Pinterest websites featuring grotesque photos of the plaintiff | $480,000 |
| Douglas v McLernon (No 4) | 2016 | WASC 320 | The defendants posted various posts about the plaintiffs on 3 separate websites | First plaintiff - $250,000 |
| Rothe v Scott | 2016 | NSWDC | The plaintiff sued the defendant for a Facebook post that implied the plaintiff was a paedophile or conducted business so as to be a danger to children through the undisclosed presence of paedophiles | $150,000 |
| Reid v Dukic | 2016 | ACTSC 344 | The defendant posted 9 publications on Facebook viewed by between 5 and 23 people and left online for up to 395 days. | $180,000 |
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DG
ASSOCIATE TO MASTER SANDERSON22 NOVEMBER 2018
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