Stevens v Mayberry

[2012] SASC 220

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

STEVENS v MAYBERRY

[2012] SASC 220

Judgment of The Honourable Justice Anderson

20 December 2012

DEFAMATION - DAMAGES - GENERAL DAMAGES - ASSESSMENT - IN GENERAL

DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION - PARTICULAR STATEMENTS - INJURY TO REPUTATION IN BUSINESS, PROFESSION, TRADE OR CALLING

The plaintiff was the executive manager of Cycling South Australia - he was also a jounalist, public media figure and a sports manager - the alleged defamatory statements made by the defendant were circulated via email to prominent people in the cycling organisation both locally and world-wide - the statements include allegations of unlawful threatening and harrassment, fraud, bringing the sport into disrepute, condoning criminal behaviour within Cycling SA, moral reprehensibility, intimidating witnesses, dishonesty, forgery, corruption -  the defendant has not filed a defence - the alleged defamatory statements are deemed to be admitted by the defendant by virtue of the default judgment entered in favour of the plaintiff on 17 August 2012 - whether the statements damaged the plaintiff in the area of his professional work  - whether the plaintiff is entitled to damages to compensate him for the harm sustained - whether the plaintiff is entitled to aggravated damages.

Held: The allegations made against the plaintiff have been proved - they caused harm to the plaintiff by damaging him in the area of his professional work - the plaintiff is entitled to an award of $46,575 including interest plus costs - the plaintiff is not entitled to aggravated damages.

Defamation Act 2005 (SA) s 32, s 33 and s 36, referred to.
Woolcott v Seeger [2010] WASC 19; Prendergast v Roberts [2012] QSC 144; Cornes v The Ten Group Pty Ltd [2011] SASC 104; Uren v John Fairfax & Son Pty Ltd (1966) 117 CLR 118; Carson v John Fairfax & Sons Limited (1993) 178 CLR 44, considered.

STEVENS v MAYBERRY
[2012] SASC 220

Civil

1. ANDERSON J.

   Introduction

2. The plaintiff has sued the defendant for compensatory damages for defamation. He also claimed an injunction restraining the defendant from publishing further imputations of and defamatory of him. Mr Winter, counsel for the plaintiff, conceded at trial that this was not an appropriate case for an injunction. The plaintiff claims general compensatory damages in an amount of $150,000 together with aggravated compensatory damages in the amount of $50,000.

3. At the time of the defamatory statements alleged, the plaintiff was the executive manager of Cycling South Australia. He held this position from March 2008 to March 2011. He was a prominent member of the South Australian and Australian cycling community. He was also a journalist and public media figure and a sports manager.

4. Judgment in default of defence was entered in favour of the plaintiff on 17 August 2012. The alleged defamatory statements summarised below are deemed to be admitted by the defendant by virtue of the default judgment: see r 229(1)(b) of the Supreme Court Civil Rules 2006. The statements were made between March and June 2011.

5. The defendant was served personally with a letter from the plaintiff’s solicitors on 29 October 2012. The letter enclosed the notice of trial and advised that the matter was proceeding on Monday 3 December 2012. The letter indicated that the defendant should seek legal advice. The defendant did not attend court on 3 December and I proceeded to hear the plaintiff’s submissions on damages.

   Background

6. The defamatory statements are listed in detail in the statement of claim. The plaintiff in his written submissions summarises the conduct imputed against him as follows:

   1.     Unlawful threatening intimidation and harassment

   2.     Fraud

   3.     Causing the sport of cycling to be brought into disrepute

   4.     Condoning criminal behaviour within Cycling SA

   5.     Moral reprehensibility

   6.     Intimidating a witness

   7.     Dishonesty

   8.     An act of forgery

   9.     Corruption

7. The plaintiff complains in particular as to the effect the defamatory statements have had on his high public profile in South Australia as a sporting journalist and his particular involvement within the management of Cycling SA.

8. An award of damages in these circumstances is now controlled by s 32 of the Defamation Act 2005 (SA). The maximum award has been capped in the sum of $250,000. Section 32 provides:

   32—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.

   The evidence

9. The evidence before me in support of the plaintiff’s claim for damages is contained in an affidavit sworn by the plaintiff and dated 5 July 2012. In addition I have the affidavit of Ruth Rouse dated 3 July 2012 and the second affidavit of Robert Alvaro dated 9 July 2012 in support of Mr Stevens’ claim for damages.

10. Mr Stevens is 55 years of age and is not married but has three children from a previous marriage. He outlines his professional career in television and radio and his partnership in an organisation managing high profile AFL footballers. He also managed other sporting people. He sold his share in this business in 2008.

11. He held the position of executive manager of Cycling South Australia which involved the development of the sport in South Australia and the general administration, marketing and management of 15 clubs associated with Cycling South Australia. The membership base was approximately 1,200 people.

12. In his affidavit Mr Stevens points to the differences of opinion which occurred from the time he took over as executive manager between he and the defendant who was also employed by Cycling South Australia. It is clear that there was a personality clash.

13. Mr Winter asked me particularly to examine the content of four emails sent by the defendant to various prominent people in the cycling organisation both locally and world-wide. On 28 March 2011 the defendant emailed Mr McQuaid who was the president of the International Union of Cyclists and copied the email to the CEO of Cycling Australia and the chairperson of Cycling South Australia. The email details complaints that the defendant had at that time relating to the plaintiff. It tends to go into a large amount of detail regarding Mr Stevens’ background and his involvement in cycling. It details alleged criminal conduct by Mr Stevens and effectively claims a breach of a duty of care by Cycling South Australia and Cycling Australia for failing to protect the defendant from what she calls “the disgraceful behaviour of their executive manager”.

14. The second email of 9 May 2011 is written to Michelle Vernier who is the assistant to the president of the International Union of Cyclists. The defendant complains of a failure to address the issues which she raised in the earlier email. She says in the email:

    I am aware that Mr Stevens has resigned from his position at Cycling SA. This however does not negate the facts that he has broken the law on many occasions, behaved in a morally reprehensible manner and has certainly brought the sport of cycling into disrepute.

15. The third email is dated 20 June 2011 and is written to officers of Cycling Australia and Cycling South Australia. The email contains the following:

    I am absolutely staggered and appalled to discover that Max Stevens still has a Cycling Australia email address let alone discover that he is using this address to attempt to intimidate witnesses in his upcoming court case, both of them! Court cases which could very well see Mr Stevens imprisoned.

    The sheer level of incompetence of Cycling Australia and Cycling SA in their unwillingness, inability or whatever it is, to control this man’s behaviour while he was employed by Cycling SA was staggering. However this is perpetuated by your total lack of judgment in allowing him to retain access to an email address associated with your organisation and although it shouldn’t surprise me, it does. I thought you should have all learned by now how damaging the “Max Factor” has been to cycling.

16. The fourth email is dated 22 June 2011 directed to Graham Fredericks, the CEO of Cycling Australia. In the email the defendant says:

    … The evidence that I have provided in the past (listed below) has been totally ignored by Cycling Australia and Cycling SA to this point. I wonder what has made you request evidence now? He has broken multiple laws on multiple occasions and you still allow him to use the cycling.org.au email address. You must be out of your mind!

17. The defendant claims in the email that she had forwarded, on an earlier occasion, documents including a death threat left in her letter box, allegations in an affidavit in the Family Court, copy of a pornographic photo of a female child left attached to a tree in her front garden, copy of messages sent from Mr Stevens to his ex-wife accusing her of passing on sensitive information and mixing with known criminals amongst other information.

18. It is quite clear that the defendant has, for whatever reason, engaged in a complete vendetta against Mr Stevens. She has not filed a defence and is taken to have admitted the defamatory statements alleged against her. None of them have been substantiated and I am not called upon to make determinations in that respect. It was for the defendant to file a defence and plead justification and place evidence before the court if that was her case.

19. The affidavit from Mr Stevens’ partner, Ms Rouse, describes how the plaintiff became agitated, anxious and frustrated whenever he talked about the defendant or her emails. Ms Rouse observed him to become increasingly stressed. She says she had noticed a marked improvement since these proceedings were commenced. I was informed from the bar table that there had been no more defamatory statements of any type since the proceedings were commenced on 28 September 2011.

20. Mr Alvaro in his affidavit deposes to the fact that he was a member of the board of Cycling SA between June 2009 and July 2011. He deposes to the fact that in his position on the board at Cycling SA he saw numerous letters and emails sent by the defendant concerning the plaintiff. He says that his recollection is that the emails and allegations were “particularly disparaging and offensive” and that he recalls being quite shocked. He said that the plaintiff became short tempered, angry and concerned whenever he talked about the defendant. He said in early to mid-2010 the plaintiff’s “usually vibrant personality became noticeably depressed, and he appeared to be in a ‘dark’ emotional state. He appeared to be constantly pre-occupied, distant and timid”.

21. Mr Stevens deposes in his affidavit to discussions he had with the defendant after she circulated the offending emails. She showed no remorse or offered in any way to change the situation and continued her campaign against the plaintiff.

22. The distribution of the email of 28 March 2011 was widespread. Mr Stevens deposes to the recipients as including Pat McQuaid, president of International Cycling Union based in Switzerland, Michelle Vernier, personal assistant to the president of International Cycling Union, Cycling Australia itself so that emails sent can be read by all members and staff of the cycling industry, Graham Fredericks, former CEO of Cycling Australia, Gemma Kernich, president of Cycling SA and SA Info which is an email group so that all staff members at Cycling SA can access the emails.

23. The emails with that wide distribution were clearly intended to harm Mr Stevens in his work at Cycling SA, and to that extent affects the hurt sustained by him. In early 2011 Mr Stevens says that he left his position as the executive manager of Cycling SA, for which he received a remuneration of approximately $80,000. He believed that he could no longer work in that capacity for cycling bodies with the allegations that had been made. He took up a lesser role within the organisation at a substantial salary reduction.

24. The defendant’s successful harassment by way of her emails caused Mr Stevens to suffer from anxiety and depression. His local doctor confirms the treatment he has given him for ongoing anxiety and depression. It appears that these conditions predated the incidents in question. The doctor states that he had been taking Aropax since early 2004. The medication was for ongoing anxiety and depression. Mr Stevens claims to have suffered greatly personally, financially and professionally through the harassment and defamatory material published by the defendant. Clearly the defamatory statements have caused an exacerbation of symptoms.

    Findings

25. I will not list all of the details from the statement of claim but I find that the allegations made in paragraphs 3 to 9 inclusive are made out. I find that the statements made by the defendant were intended to cause harm to the plaintiff by damaging him in the area of his professional work. That included Cycling Australia but also his other work in the media. The allegations by the defendant in very broad terms were intended to embarrass and harass the plaintiff in his work and at the same time bring both the plaintiff and the sport of cycling into disrepute. The allegations have not been substantiated and Mr Stevens is entitled to be compensated for them.

    Overlap with Boyle action

26. I was advised during argument about another matter of Stevens v Boyle in this Court awaiting an assessment of damages. I indicated I would confer with the trial judge to ascertain the potential of any overlap in the damages claimed by Mr Stevens in both matters.

27. It is apparent from comparing the materials relied on in each action that there is overlap. The matter was called back on before White J and I for further submissions. Mr Winter concedes the overlap. He referred to the statement by the High Court in Carson v John Fairfax & Sons Limited (1993) 178 CLR 44 as to the three purposes for damages for defamation. The court at page 60 said:

    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.

28. I have read in draft the reasons of White J in Stevens v Boyle. I agree with His Honour that neither s 36(1)(c) nor s 36(1)(d) of the Defamation Act are relevant here because the respective defamations in each action do not have the same meaning or effect.

29. The defamatory material carried different imputations in each matter. Boyle alleges that Mr Stevens is a paedophile whereas Mayberry alleges dishonesty and perjury. Both imputations however damage the reputation of Mr Stevens within the sport of cycling in South Australia in particular, but also in Australia generally. Apart from his reputation Mr Stevens is to be compensated for the hurt he suffered and this has been contributed to by both Boyle and Mayberry.

30. The end result of these additional considerations is in my view that the damages which I would have assessed need to be adjusted downwards to allow for some overlap in favour of the defendant (Ms Mayberry) even though she failed to file a defence and did not present any argument to the court.

    Damages

31. In my view the plaintiff has been seriously defamed in a wide range of hurtful and untrue allegations. The plaintiff is now aged 55 years and has spent a considerable part of his life as a public figure in the media and generally involved with sport and sports personalities. It is clear that the defamatory statements must have had some effect on his image in the eyes of the public. The distribution of the defamatory material, although limited, is nevertheless widespread through the cycling community in South Australia and elsewhere. I accept that it has damaged Mr Stevens in his media and sporting commitments.

32. The plaintiff has had to endure the allegations between March 2011 and September 2011 when the proceedings were issued. To that extent it is a relatively short period, albeit one in which considerable harm was suffered by the plaintiff. The commencement of these proceedings has brought the statements to a halt.

33. The defamatory statements by Ms Mayberry are serious and require a substantial award of damages to vindicate the plaintiff.

34. Several cases have been cited as providing some assistance as to the level of damages to be awarded. No one case is alike and each case must be assessed on its merits. Despite this, as in any assessment of damages, some guide can be obtained from these cases.

35. I refer to three of the cases cited. In Woolcott v Seeger [2010] WASC 19 the plaintiff was awarded $50,000 plus $20,000 for aggravated damages for a limited publication on the internet. The allegations made were that he was a shonk, charlatan and a person who had dishonestly claimed tax rebates and exemptions.

36. In Prendergast v Roberts [2012] QSC 144 a plaintiff was awarded $50,000 for publication to three people of statements that he was an incompetent and dishonest builder.

37. In Cornes v The Ten Group Pty Ltd [2011] SASC 104 the plaintiff, a married woman, was awarded $85,000 for a publication that she had sexual intercourse with another person to whom she was not married. The Full Court upheld the award of damages. The statement was made on a national network TV show.

38. It is my view that there is some form of de facto benchmark which has been established by the cases referred to above by counsel for the plaintiff. Some of Mr Stevens’ health problems predated the defamatory statements but were clearly exacerbated by them. In my view an award of $45,000 properly reflects the nature of the actual defamation and the damage caused having regard both to the breadth of the publication and the effect it has had on the plaintiff. This figure also allows for a discount I have made because of the overlap with the Boyle matter which I have referred to earlier.

39. Counsel submitted that in addition to that sum an award of $20,000 should be made for aggravated damages to reflect the defendant’s persistence in her deliberate course of conduct apparently intended to damage the plaintiff.

40. Aggravated damages as distinct from exemplary damages can be awarded pursuant to s 33(2) of the Act. The ordinary principles governing the award of aggravated damages apply. They are awarded to compensate a plaintiff for injury to feelings caused by a defendant’s insulting or humiliating conduct. Windeyer J in Uren v John Fairfax & Son Pty Ltd (1966) 117 CLR 118 at 149 described aggravated damages as those “given to compensate the plaintiff when the harm done to him by a wrongful act was aggravated by the manner in which the act was done”.

41. I must be careful not to over compensate the plaintiff or doubly compensate him with any aggravated damages. In my view, aggravated damages are not appropriate in this matter because of the factors I have taken account of in awarding the sum of $45,000. That includes the manner in which the statements were made.

42. The plaintiff is entitled to interest on the judgment amount. I award interest at the rate of 3.05% and allow a lump sum of $1,575. The court rate during the relevant period was 8.75%.

43. The plaintiff no longer seeks injunctive relief.

44. There will be judgment for the plaintiff against the defendant in the sum of $46,575 inclusive of interest plus costs.