Stevens v Boyle - [2012] SASC 232

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
STEVENS v BOYLE
[2012] SASC 232
Judgment of The Honourable Justice White
20 December 2012
DEFAMATION - DAMAGES - GENERAL DAMAGES - ASSESSMENT
By two emails in May 2011 and two emails in August 2011, the defendant defamed the plaintiff - the defamatory imputations included that the plaintiff is under investigation for child sex crimes and is an alleged paedophile, criminal and child abuser, that he has brought sport in Australia, particularly cycling, into disrepute, that he was sacked from Cycling SA, and that he is implicit in corruption - the defendant did not take any part in the proceedings and judgment was entered in default of a defence for damages to be assessed.
Held:
(1) the imputations are of a particularly grave kind and were capable of causing great damage to the plaintiff's reputation - however the damage to the plaintiff's reputation has not been significant, (at [43]-[44], [48]);
(2) although it appears that there were many other earlier derogatory communications by the defendant, the damages to be assessed in this case are to be confined to the detriments arising from the four subject emails only, (at [50]);
(3) it is appropriate that the award include a component of aggravated compensatory damages, given the emails were sent as part of a continuing process of vilification of the plaintiff by the defendant and were calculated to injure his reputation, (at [53]);
(4) the defendant's defamations have worsened the plaintiff's health problems to an extent and have been part of the cause of his hurt and distress, (at [61]);
(5) the plaintiff's damages, inclusive of interest, assessed in the sum of $51,000, (at [62]-[63]);
(6) the plaintiff's application for an injunction restraining the defendant from publishing further defamatory imputations concerning him is refused. (at [64]).
Defamation Act 2005 (SA), s 8, s 32, s 33, s 34, s 36, s 37, referred to.
Associated Newspapers Ltd v Dingle [1964] AC 371; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; Coyne v Citizen Finance Ltd (1991) 172 CLR 211; John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131; Ratcliffe v Evans [1892] 2 QB 524, considered.

STEVENS v BOYLE
[2012] SASC 232
Civil

WHITE J: By two emails in May 2011 and two emails in August 2011, the defendant defamed the plaintiff, giving rise to the present action. The defendant has not taken any part in the proceedings and judgment was entered in default of a defence for damages to be assessed. This judgment contains that assessment.
Background
The plaintiff is now 55 years old. He has a public profile, especially in South Australia, arising from his previous employment as a sporting journalist and presenter for the Seven Network and as a radio broadcaster and commentator for the Triple-M Network. In addition, the plaintiff was for several years a partner in a business trading under the name of “Elite Sports Properties” which involved the management of AFL footballers and other sports people, including Stuart O’Grady, a prominent cyclist. He sold his interest in that business in 2008.
In about 2004-05, the plaintiff turned his attention to the sport of cycling. He has been involved in the support of cyclists at an elite level and has undertaken several courses, including coaching courses.
In 2006-07, the plaintiff accepted a position on the board of Cycling SA and subsequently was appointed its Executive Manager. Cycling SA is the name by which the South Australian Cycling Federation Incorporated is known. It is the body which controls and manages track and road racing in South Australia. It operates under the rules of the national body, Cycling Australia, and in turn of the world controlling body, Union Cycliste Internationale (“UCI”). Cycling SA has about 1,200 members.
The plaintiff was Cycling SA’s first Executive Manager. His duties in that position involved the development of cycling in South Australia, including matters of administration, sponsorship, marketing and management of the 15 constituent clubs. The plaintiff, Stuart O’Grady and others, have developed a program called “Team O’Grady” which seeks to assist young cyclists with opportunities and financial support. This program is part of the South Australian Sports Institute.
In April 2011, the plaintiff resigned as Executive Manager of Cycling SA. He is presently a paid consultant to Cycling Australia.
The defendant also has an interest in cycling. His son participated in cycling competitions in about 2007. It seems that the defendant has a number of grievances about Cycling SA and the plaintiff in particular.
As already noted, the defendant has not taken any part in the proceedings and did not appear at the trial of the plaintiff’s damages. The evidence indicates that he may have taken steps to keep his whereabouts secret and, in particular, to avoid so far as possible receiving any communications regarding these proceedings.
I was satisfied that the plaintiff had taken reasonable steps to bring the hearing to the attention of the defendant and that it was appropriate for the damages hearing to proceed in his absence.
The evidence in the trial from the plaintiff and five other witnesses was given by affidavit and supplemented by some short oral evidence from the plaintiff. Subject to some matters arising from separate defamation proceedings which the plaintiff has brought in this Court to which I refer later, I am satisfied that the evidence from each deponent and that from the plaintiff should be accepted. I have relied on their evidence for the background summary already provided, as well as for the findings which follow.
The first email
The defendant sent the first email on 24 May 2011 to [email protected]. About six members of the staff of Cycling SA have access to the Inbox of that address. It is a means by which members of the public may communicate information regarding cycling-related matters to Cycling SA.
In the email, the defendant referred to some driving offences said to have been committed by the plaintiff and continued:
Not only is Mr Stevens being pursued through the courts for the above but is also being investigated for child sex crimes by the South Australian Police.
…
Mr Stevens, the convicted drunk driver, apart from the new charges has not only brought the sport of cycling into disrepute in South Australia but also Australia, he has also made a joke out of all sports with this behaviour.
The second email
The defendant sent a second email on 28 May 2011. The three recipients of this email were Ms Marie Hedley, an employee of Cycling SA; Ms Rachel Sanderson, a member of the Legislative Assembly in the South Australian Parliament who has an involvement in the “cycling community”; and Ms Rebekha Sharkie, an advisor to Ms Sanderson. The subject line of the email indicated that it concerned the plaintiff and continued:
This email is to be given directly to the Board of Cycling South Australia (Not the Executive Officer).
The defendant referred to driving offences said to have been committed by the plaintiff and continued:
He is now charged with five counts of driving a vehicle without a licence while disqualified & convicted for drunk driving in the Cycling South Australia van with small children in this van.
Apart from this blatant disregard for these children, the law & other road users, he still drove, he also did this with the advertisement & sponsorship of the South Australian State Government, South Australian Institute of Sport (S.A.S.I.), Australian Institute of Sport (A.I.S.), Department of Recreation and Sports, Rendition Homes & a number of other sponsors’ names covered over it, his criminal disgusting ongoing behaviour has brought the sport of cycling & all other sports not only in South Australia but Australia into disrepute.
Mr Stevens has been sacked from his position with Cycling South Australia (Cycling South Australia & Mr Stevens attempting to water the sacking down with resignation: get real Gemma).
The third email
The defendant sent a third email on 4 August 2011 to the same three recipients of the second email. The subject line of the email was also the same as that of the second. In this email the defendant said:
I am still waiting for a reply from the emails sent to you Marie that was to be passed on to the Cycling SA Board Members, now that another person has taken the place of Stevens I want this email & the original also passed on to him. I expect an answer to my email in detail why you are covering for an alleged pheodaphile (sic), criminal & child abuser.
The fourth email
The final email which is the subject of these proceedings was sent on 7 August 2011 to Gary Simpson, the Executive Officer of Cycling SA. Its subject line included the following:
Alleged phedophile (sic) Max Stevens, criminal & child abuser, …
In the body of the email the defendant said:
As outlined in previous emails, I allege Max Stevens (real name: Mark John Stevens) is a paedophile, criminal & child abuser, I have intimate documents that the SA Police & State Ombudsman have. I have done my homework & covered myself.
Mr Stevens has been smart enough to befriend himself to the other child abuser [named person] …
I have been made aware that this child abuser along with his boyfriend Stevens have been threatening to sue others that are standing up to them, well bring it on with me, I am so wanting to provide the courts & public with tapes, videos, phone recordings etc, some [of] which have been provided already to the appropriate persons.
Mr Stevens now has no corrupt cops to cover up for him, his other boyfriend [named person] would be a fool to mess with motor vehicle records any more.
When I return we will be having a meeting to discuss the evidence I have so you can take the appropriate action.
….
By the way, I know that Marie & Board members are either paid off or intimidated by Stevens and …
The imputations
The plaintiff alleged that each of these emails contained defamatory imputations. In relation to the first, they are that he is under investigation for child sex crimes and that he has brought the sport of cycling in Australia into disrepute.
In relation to the second, the pleaded imputation is that the plaintiff has brought the sport of cycling and all other sports in Australia into disrepute and that the plaintiff was sacked from his position with Cycling SA.
The imputation said to arise from the third email is that the plaintiff is an alleged paedophile, criminal and child abuser.
The imputations alleged to arise from the fourth email are that the plaintiff is a paedophile, criminal and child abuser and that the plaintiff is implicit in corruption.
Judgment having been entered for the plaintiff in default of a defence, his damages are to be assessed on the basis that the emails do contain these imputations and that they are defamatory of the plaintiff.
Further background
The evidence indicates that the defendant had been disgruntled with Cycling SA for some years before sending the emails in May and August 2011. In fact, in June 2009, the plaintiff had recommended that the defendant’s membership of Cycling SA be revoked by reason of his “distasteful and offensive” communications to persons within the organisation. In that same email, the plaintiff recorded:
This Martin Boyle saga has been running for five years or so now, well before my time.
The plaintiff’s recommendation appears to have been prompted by emails which the defendant sent on 16 and 20 June 2009 in which he made a number of unparticularised allegations (not directed to the plaintiff) of child abuse, cover-ups and corruption in the sport of cycling.
On 26 June 2009 the President of Cycling SA had written to the defendant asking him to particularise his allegations and to provide evidence concerning them. It seems that at some stage an order was made by the Executive Director of the Office for Recreation and Sport, prohibiting the defendant from attending any premises of, or operated by, the Office for Recreation and Sport or the South Australian Sports Institute.
The plaintiff gave evidence of antipathy between him and the defendant extending back to January 2007. At about that time, the defendant had telephoned the plaintiff enquiring as to why his son had not been accepted as a member of the Team O’Grady development program. It is not necessary to quote the plaintiff’s response to that enquiry beyond saying that it appears to have had a brusquely dismissive tone which may well have rankled with the defendant.
Thereafter, there have been a number of incidents involving the defendant and directed to the plaintiff. These included the defendant punching the plaintiff at a cycling race in January 2007 and at the same time describing him loudly in the presence of a number of spectators as a “wife basher and paedophile”; the defendant disrupting the plaintiff’s presentation at the Annual General Meeting of Cycling SA on 15 June 2009 by saying “You are dishonest, you have got something to hide and need to come clean”; and the plaintiff receiving threatening and harassing messages with the defendant identified as the source of at least some, although others were anonymous.
One of the witnesses, Darren O’Grady, deposed that in about May 2009 the defendant had said words to the effect of:
I am on a mission to take out Stevens one way or another. I no longer work, and I have all the time and plenty of money to do so; Stevens is going to pay.
Ms Hallandal, the former Office Administrator of Cycling SA, deposed that in December 2009 she had received an email from the defendant in which he said words to the effect:
Stevens is an incompetent and dishonest person; he lied about his identity and improperly obtained a police clearance.
Another witness, Mr Alvaro, was on the Board of Cycling SA from about June 2009 until about July 2011. He deposed that he had seen numerous emails concerning the plaintiff sent by the defendant to various recipients, including other Cycling SA Board members. He described the emails as being offensive in tone and deposed that he was shocked at their content.
The plaintiff tendered evidence of a publication under the heading “Maxamillian Times” dated 21 April 2010, which is written in the style of a news sheet. It contains numerous derogatory statements concerning the plaintiff. The defendant is not identified as the author of “Maxamillian Times” but, given its content, I think it likely that he was.
On the basis of the evidence, I am satisfied that the four emails were incidents in a course of vilification of the plaintiff by the defendant.
Effect on the plaintiff
As previously noted, the plaintiff resigned as Executive Manager of Cycling SA in April 2011. I accept his evidence that this was a voluntary action on his part: it was not in any sense a resignation required of him by Cycling SA.
I also accept the plaintiff’s evidence that the pressure and harassment from the defendant were material causes of his resignation. The plaintiff thereby gave up a position carrying a remuneration package of about $80,000 per annum without, at the time, having any replacement job to go to. I note, however, that his resignation occurred before any of the four subject emails and cannot therefore be said to have been caused by them.
The plaintiff obtained his position as a consultant to Cycling Australia in May 2011, about one month later. This position entitles him to remuneration of the order of $40,000 per annum.
The plaintiff has been previously married and has three children. He describes having been “to hell and back” for some time before the resignation in April 2011 as a result of personal problems, including the breakdown of his marriage. He has been treated with medication for depression and anxiety for about 10 years.
The evidence did not disclose the means by which the plaintiff became aware of the subject emails, but I infer that he did so at or shortly after the time each was sent. I accept his evidence that the defendant’s emails in 2011 exacerbated his anxiety and depression, although plainly they are not its originating cause nor the sole cause of the exacerbation. I also accept that the plaintiff has been distressed by the defendant’s conduct. That distress has been manifest in sleeplessness and some shunning of public places and sporting events at which the plaintiff was previously an active attendee. The plaintiff has felt the strain of defending himself against claims made by the defendant.
Several of the witnesses deposed to the plaintiff’s agitation, anxiety and anger when talking about the defendant or the emails he sent. Mr Alvaro deposed that in early to mid 2010 the plaintiff’s “usually vibrant personality became noticeably depressed”, and that he appeared to be in a “dark emotional state”, and “constantly pre‑occupied, distant and timid”. I note that the effects to which Mr Alvaro deposed commenced before the publication of the emails which are the subject of this action. Ms Rouse, the plaintiff’s partner, deposed that she had observed the plaintiff becoming increasingly stressed and anti‑social before the commencement of these proceedings.
It is plain from the plaintiff’s affidavit that he seeks vindication for the hurt and detriment which he attributes to the defendant’s publications.
Mr Alvaro and Ms Rouse have noticed an improvement in the plaintiff’s health and mental outlook since these proceedings were commenced in November 2011.
Although there is no express evidence on the topic, I infer that the defendant has not published any further emails defamatory of the plaintiff.
It has to be kept in mind that the Court is presently awarding damages for four defamatory publications in 2011. It is not assessing damages for the whole of the harassment of, or pressure to, the plaintiff by the defendant since 2007 nor for his earlier derogatory statements concerning the plaintiff. As already noted, the plaintiff suffered from anxiety and depression before the defendant sent the subject emails and before the defendant’s vendetta towards him commenced.
The assessment of damages
The plaintiff claims damages, including aggravated compensatory damages.
The Defamation Act 2005 (SA) is applicable to the assessment. Each publication can give rise to a separate cause of action (s 8) but the Court may assess damages for all four publications in a single sum (s 37), and I propose to do so. By s 32 the Court is required, in assessing the damages, to ensure “that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded”. The damages are subject to the cap contained in s 33, but that cap has no practical application in the present case. The Court is to disregard the malice or other state of mind of the defendant at the time of the publication, except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff (s 34) and account must be taken of the factors in mitigation specified in s 36.
As is well-established, an assessment for damages for defamation serves three purposes; first, to compensate plaintiffs for the harm (whether as presumed or as demonstrated) to their reputation; secondly, to compensate for the hurt to the plaintiffs’ feelings; and, thirdly, to vindicate their reputation by showing the falsity of the allegations made against them.[1] As Lord Radcliffe observed in Associated Newspapers Ltd v Dingle:[2]
A libel action is fundamentally an action to vindicate a man’s reputation on some point as to which he has been falsely defamed, and the damages awarded have to be regarded as the demonstrative mark of that vindication.[3]
The plaintiff is not required to prove damage to his reputation. Once a finding of liability is made, some damage is presumed.[4]
[1] Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60.
[2] [1964] AC 371.
[3] Ibid at 396.
[4] Ratcliffe v Evans [1892] 2 QB 524 at 528-30; Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at 216.

I regard the following matters as being particularly relevant to the assessment.
First, the imputations in the defendant’s emails are of a particularly grave kind. In the present climate, the allegations that the plaintiff is a paedophile and a child abuser are particularly serious. They were capable of causing great damage to the plaintiff’s reputation and suggest that a significant award is warranted in order to provide a public vindication of his reputation.
Secondly, some damage to the plaintiff’s reputation is to be presumed. In addition to relying on the presumption, I am willing to accept that there has in fact been some such damage, especially because it seems that that is what the defendant set out to achieve. However, I do not consider that the evidence justifies a finding that the damage to the plaintiff’s reputation has been significant. The evidence showing actual damage does not extend beyond that of Ms Rouse and Ms Hallandal. Ms Rouse deposed:
[4]I did not believe any of the allegations contained in the emails, however, I recall being confronted by them, and I had doubts as to the character of [the plaintiff]. These doubts re‑surfaced today when discussing these proceedings.
Ms Hallandal deposed:
[5]Whilst I did not believe the allegations contained in the emails, I was upset and disconcerted by the allegations.
It is by no means clear that the emails to which Ms Hallandal refers are the subject emails.
I note that none of the other witnesses makes any statements to the effect that his own views of the plaintiff, or the views of those with whom they associate, have been impaired by the defendant’s emails.
Further, the defendant seems to have acquired his own reputation for making unjustified offensive and vexatious communications. It seems that many of the recipients may have discounted the significance of the statements he made concerning the plaintiff because of that reputation.
It is also to be observed that even though the defendant made allegations of a grave kind which went directly to the plaintiff’s fitness to continue as Executive Manager of Cycling SA, that organisation did not take any steps to terminate his employment. The plaintiff’s evidence does not indicate that Cycling SA even sought an explanation from the plaintiff in relation to the defendant’s accusations. That suggests that the responsible persons in Cycling SA were satisfied that the allegations in question had no basis.
Further again, the fact that the plaintiff was able to obtain a new engagement in May 2011 as a consultant for Cycling Australia suggests that, at least in the eyes of responsible persons in that organisation, his reputation had not been damaged by the defendant’s communications to that time. All this suggests that any damage to the plaintiff’s reputation in the cycling community has not been significant.
Thirdly, the limited number of recipients of the emails is pertinent. At the same time, I accept that it is reasonable to suppose that the defendant selected those recipients because of the positions of influence which they held. I also accept that emails can readily be distributed further, although there is no evidence that that did occur.
Fourthly, the plaintiff complains of only some of the publications of the defendant, even though it appears that many of the earlier communications were also derogatory. The damages to be assessed in this case are to be confined to the loss of reputation and other detriments resulting from the four subject emails only. The evidence does not permit any detailed findings as to the effect of the subject emails compared with the effect of the earlier communications.
Fifthly, as already noted, the plaintiff’s health problems were not caused by the defendant’s publications, only exacerbated by them. The exacerbation appears to have been temporary as the evidence indicates that the plaintiff’s health and mental outlook is improving.
Sixthly, the financial loss accruing to the plaintiff by reason of his resignation from Cycling SA and taking up his appointment with Cycling Australia cannot be attributed to the subject emails. His resignation from Cycling SA occurred before the first of the subject emails.
Seventhly, it is appropriate that the award include a component of aggravated compensatory damages. That is because it is evident that the emails were sent as part of a continuing process of vilification of the plaintiff by the defendant and were obviously calculated to injure his reputation. I am satisfied that the defendant was motivated by malice. Although his state of mind is to be ignored (s 34), I am satisfied that the fact that the emails were made with a malicious intent increased the distressing effect for the plaintiff. The defendant has not tendered any apology and, although he must be aware of these proceedings, has been indifferent to them.
Next, I do not regard the factors in mitigation of damages listed in s 36 of the Defamation Act 2005 (SA) to be relevant. Section 36 provides:
(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.
After judgment in this action had been reserved, I was informed that the plaintiff was also seeking damages for defamation in separate proceedings in this Court against a Ms Mayberry. Anderson J reserved judgment on 3 December 2012 on the assessment in those proceedings. The details of the defamatory statements made by Ms Mayberry are set out in the reasons of Anderson J which will be published on the same day as this judgment. Those reasons indicate that the defamations of the plaintiff by Ms Mayberry do not have the same meaning or effect as the present defendant’s defamations and, accordingly, the operation of sub‑pars (c), (d) and (e) in s 36(1) is not attracted.
However, the evidence adduced by the plaintiff in the Mayberry action is pertinent. Ms Mayberry’s defamations were contained in four emails sent between March 2011 and June 2011 inclusive. She had also made a number of statements before March 2011 to which the plaintiff took offence, but in respect of which he did not seek damages.
The description in the plaintiff’s affidavit in these proceedings of the detriments caused by the defendant’s defamations match substantially the descriptions in his affidavit sworn 13 days earlier in the Mayberry action of the detriments said to have been caused by Ms Mayberry’s defamations. In many cases, the only difference between the two affidavits is that it is the defendant, and not Ms Mayberry, who is said to have caused those detriments. Further, neither affidavit of the plaintiff attempts to differentiate the effect of the respective defamations. In other words, each affidavit on its face appears to attribute the whole of the plaintiff’s detriments to the defamations which are the subject of the action to which it relates.
In the action against Ms Mayberry, the plaintiff also adduced evidence by way of affidavits from Ms Rouse and Mr Alvaro. The affidavits of those deponents in the present proceedings replicate substantially their affidavits in the Mayberry proceedings and, again, do not seek to differentiate between the detriments caused by the respective defamations.
By drawing attention to these matters, I am not suggesting any untoward conduct by the plaintiff: I only do so to indicate circumstances which make the assessment in the present case quite difficult.
The Court received some further submissions on the proper approach to the assessment in the circumstances just outlined. Counsel seemed to accept that each of Ms Mayberry and the present defendant should be held responsible only for the consequences of their respective defamations and, in the absence of differentiation between the effect of the respective defamations, that each could be regarded as having contributed equally to the plaintiff’s detriments. That is to say, counsel did not contend that this is a case of concurrent tortfeasors publishing separately the same or substantially similar defamations, with the effect that each should be held responsible for the whole of the resulting detriment.[5]
[5] Associated Newspapers Ltdv Dingle [1964] AC 371 at 410-1.
I am content to proceed on that basis although noting that it may disguise a number of issues of underlying principle. Nevertheless, it remains difficult for the Court to make a confident assessment of the extent to which the detriments claimed by the plaintiff have been caused or exacerbated by the defamations of the present defendant. In the circumstances, I consider it appropriate to proceed on the basis that the detriments to which the plaintiff has deposed have more than one cause. I accept that the defendant’s defamations in May and August 2011 have been one such cause in the sense that they have contributed to the exacerbation of the plaintiff’s distress. As previously indicated, I doubt that they have in fact caused significant damage to his reputation but some such damage is to be presumed. I will regard the defendant’s defamations as having worsened the plaintiff’s health problems to some extent and to have been part of the cause of his hurt and distress. I accept, however, that the defamations are of a kind which requires a significant award by way of vindication.
Having regard to these matters, I assess the plaintiff’s damages, including compensatory aggravated damages, at $50,000.
In accordance with the usual practice for the calculation of interest in defamation actions,[6] I allow interest of $1,500.
[6] John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131.
The plaintiff also sought an injunction restraining the defendant from publishing further defamatory imputations concerning him. I decline to issue such an injunction. There is no suggestion that the defendant has made any further defamatory imputations since August 2011 or that he is threatening to do so.
Conclusion
For these reasons I assess the plaintiff’s damages inclusive of interest in the sum of $51,500 and will enter judgment for him in that amount. The plaintiff’s claim for an injunction is refused.