Tribe v Simmons - [2021] FCA 930

FEDERAL COURT OF AUSTRALIA
Tribe v Simmons [2021] FCA 930

File number: NSD 322 of 2021

Judgment of: LEE J

Date of judgment: 3 August 2021

Catchwords: DEFAMATION – defamation proceeding brought by Mr Tribe, the half-brother of apparently famous basketballer Ben Simmons, against his half-sister, Ms Simmons – publication concerns a series of tweets by Ms Simmons alleging Mr Tribe sexually assaulted her at a young age – where no defence filed despite Ms Simmons foreshadowing a justification defence – multiple extensions of time – where pro bono counsel appointed to assist Ms Simmons with the drafting of a defence – where Ms Simmons ultimately decided it was not in her interests to defend the proceeding – application for default judgment – appropriate for the Court to consider the legal question as to whether the matters complained of are reasonably capable of conveying the pleaded imputations – only necessary to establish that one of the pleaded imputations in respect of each publication is capable of being found to have been conveyed – each publication defamatory despite one infelicity – default judgment entered – interlocutory injunction ordered pending final hearing

Legislation: Federal Court Rules 2011 (Cth) rr 5.23, 16.07

Cases cited:
Szymczak v Balijepalli (No 2) [2019] FCA 1093

Al Muderis v Duncan [2016] NSWSC 1726

Graham v Powell (No 3) [2014] NSWSC 185

Goodfellow v Fairfax Media Publications Pty Limited [2017] FCA 1152

Division: General Division

Registry: New South Wales

National Practice Area: Other Federal Jurisdiction

Number of paragraphs: 29

Date of hearing: 3 August 2021

Counsel for the Applicant: Ms S Chrysanthou SC with Mr B Dean

Solicitor for the Applicant: Company Giles

Counsel for the Respondent: Ms S Kaur-Bains

ORDERS

NSD 322 of 2021

BETWEEN:
SEAN RICHARD TRIBE

Applicant

AND:
OLIVIA ALICE SIMMONS

Respondent

ORDER MADE BY:

LEE J

DATE OF ORDER:

3 AUGUST 2021

PENAL NOTICE

TO: OLIVIA ALICE SIMMONS

IF YOU (BEING THE PERSON BOUND BY THIS ORDER):

(A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR

(B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO,

YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.

ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.

THE COURT ORDERS THAT:
1.Judgment for the applicant against the respondent in respect of the statement of claim.
2.Pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) (Act), until 5pm 14 September 2021, the respondent, Olivia Alice Simmons is hereby restrained from publishing a matter in any form to the effect that:
(a)the applicant, Sean Tribe sexually molested Olivia Simmons; or
(b)Sean Tribe is a liar because he denied he sexually molested Olivia Simmons.

3.The balance of the proceeding be set down for hearing on the question of assessment of damages and final injunctions…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tribe v Simmons

Details

AGLC: Tribe v Simmons [2021] FCA 930
Case: [2021] FCA 930
Decision Date: 3 August 2021

CaseChat Overview and Summary

In the case of Tribe v Simmons, Mr Tribe, the half-brother of basketball player Ben Simmons, brought a defamation action against his half-sister, Ms Simmons, over a series of tweets alleging he sexually assaulted her at a young age. Despite Ms Simmons having foreshadowed a justification defence, no defence was filed. Multiple extensions of time were granted, and pro bono counsel was appointed to assist Ms Simmons with drafting a defence, but she ultimately decided not to defend the proceeding. Mr Tribe applied for a default judgment.

The central legal issue before the Court was whether the tweets were reasonably capable of conveying the defamatory imputations pleaded by Mr Tribe. The Court held that it was sufficient for Mr Tribe to demonstrate that at least one of the pleaded imputations in respect of each tweet was capable of being found to have been conveyed. The Court found that each tweet was defamatory, despite one infelicity. Consequently, the Court granted a default judgment in favour of Mr Tribe and ordered an interlocutory injunction pending the final hearing.

In its orders, the Court entered judgment for Mr Tribe against Ms Simmons in respect of the statement of claim. It restrained Ms Simmons from publishing certain defamatory material and set down the balance of the proceeding for a hearing on the question of damages and final injunctions. The Court also made orders permitting remote testimony and stipulating that the public would be excluded from the hearing, with specific conditions for public observation.

Orders

Orders of the court

1. Judgment for the applicant against the respondent in respect of the statement of claim.

2. Pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth) (Act), until 5pm 14 September 2021, the respondent, Olivia Alice Simmons is hereby restrained from publishing a matter in any form to the effect that:

(a) the applicant, Sean Tribe sexually molested Olivia Simmons; or

(b) Sean Tribe is a liar because he denied he sexually molested Olivia Simmons.

3. The balance of the proceeding be set down for hearing on the question of assessment of damages and final injunctions at 10:15am on 14 September 2021.

4. Subject to further order, pursuant to s 17(4) of Act, and upon the Court presently being satisfied that the presence of members of the public in person at the hearing would be contrary to the interests of justice, the public is excluded from the hearing other than by adopting the following procedure:

If a member of the public wishes to observe the hearing they must contact the Associate to Lee J on +61 (02) 9230 8407 or by email to associate.leej@fedcourt.gov.au by 8.30 am AEDT on 14 September 2021.

5. Pursuant to s 47A of the Act, oral testimony be permitted to be given by any witness at the hearing remotely by internet connexion.

6. Pursuant to s 47E of the Act, a person who is to give oral testimony is permitted to swear an oath or make an affirmation remotely by internet connexion.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Understandably in these circumstances, Ms Kaur-Bains has taken the view that she can no longer continue to represent Ms Simmons in the proceeding. However, as a matter of courtesy to the Court, Ms Kaur-Bains indicated that for the purposes of today’s case management hearing she was content to appear as an amicus curiae, and make any arguments she thought appropriate to be make in relation to whether default judgment should be entered.B APPLICATION FOR DEFAULT JUDGMENT As might be expected, given this turn of events, Mr Tribe presses his application for default judgment. In the absence of a defence being filed, I indicated to Ms Chrysanthou that, consistent with the approach I took in Szymczak v Balijepalli (No 2) [2019] FCA 1093 (at [5]), where a respondent in a proceeding for defamation does not appear, it is appropriate for the Court, before finally entering default judgment, to consider the legal question reserved for the Court as to whether the matters complained of are reasonably capable of conveying the pleaded imputations: see also Al Muderis v Duncan [2016] NSWSC 1726 (at [3] per McCallum J); Graham v Powell (No 3) [2014] NSWSC 185 (at [6] per Beech-Jones J). The reasoning behind such an approach is clear; it is, of course, always a question of law to be determined by the Court as to whether an imputation is reasonably capable of arising from the publication. If that issue was ignored at the time when default judgment is sought, it could, as McCallum J explained in Al Muderis (at [4]), result in a “judgment in favour of the plaintiff in respect of a claim that was bad in law.” In this regard, it is important to draw a distinction between the question as to whether or not the imputations that are pleaded were, as a matter of fact, conveyed, and the separate inquiry as to whether or not the publications had the capacity to convey the meanings or imputations alleged by the applicant. There is no need for me, yet again, to set out the well-settled principles as to capacity. They have been, with respect, usefully set out by Wigney J in Goodfellow v Fairfax Media Publications Pty Limited [2017] FCA 1152 (at [76]–[80]). Although, of course, the tribunal of fact in this case would be a judge rather than a jury, the legal question which must be kept separate from the factual inquiry in the present circumstances is whether the meanings or imputations pleaded could reasonably be found to have been conveyed. Unlike in previous times in New South Wales, each imputation is not the cause of action – the cause of action is each publication. It follows, as a matter of logic, it is only necessary for Mr Tribe to establish that one of the pleaded imputations is capable of being found to have been conveyed by each publication to obtain judgment in the absence of a defence. The imputations pleaded in respect of the First Tweet are as follows:(a) Tribe sexually molested his half-sister before she turned eight years old;(b)Tribe sexually molested his half-sister before she turned eight years old causing her to have post traumatic stress disorder;(c) Tribe sexually assaulted his half-sister before she turned eight years old;(d)Tribe sexually assaulted his half-sister before she turned eight years old causing her to have post traumatic stress disorder;(e)Tribe sexually assaulted his half-sister before she turned eight years old causing permanent damage to her uterus; [and](f)In the alternative to (e), Tribe sexually assaulted his half-sister before she turned eight years old causing her to commence sexual activity from that early age that has resulted in permanent damage to her uterus.

Ratio Decidendi

Legal Principle Established

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File number:	NSD 322 of 2021
Judgment of:	LEE J
Date of judgment:	3 August 2021
Catchwords:	DEFAMATION – defamation proceeding brought by Mr Tribe, the half-brother of apparently famous basketballer Ben Simmons, against his half-sister, Ms Simmons – publication concerns a series of tweets by Ms Simmons alleging Mr Tribe sexually assaulted her at a young age – where no defence filed despite Ms Simmons foreshadowing a justification defence – multiple extensions of time – where pro bono counsel appointed to assist Ms Simmons with the drafting of a defence – where Ms Simmons ultimately decided it was not in her interests to defend the proceeding – application for default judgment – appropriate for the Court to consider the legal question as to whether the matters complained of are reasonably capable of conveying the pleaded imputations – only necessary to establish that one of the pleaded imputations in respect of each publication is capable of being found to have been conveyed – each publication defamatory despite one infelicity – default judgment entered – interlocutory injunction ordered pending final hearing
Legislation:	Federal Court Rules 2011 (Cth) rr 5.23, 16.07
Cases cited:	Szymczak v Balijepalli (No 2) [2019] FCA 1093 Al Muderis v Duncan [2016] NSWSC 1726 Graham v Powell (No 3) [2014] NSWSC 185 Goodfellow v Fairfax Media Publications Pty Limited [2017] FCA 1152
Division:	General Division
Registry:	New South Wales
National Practice Area:	Other Federal Jurisdiction
Number of paragraphs:	29
Date of hearing:	3 August 2021
Counsel for the Applicant:	Ms S Chrysanthou SC with Mr B Dean
Solicitor for the Applicant:	Company Giles
Counsel for the Respondent:	Ms S Kaur-Bains

ORDER MADE BY:	LEE J
DATE OF ORDER:	3 AUGUST 2021