FEDERAL COURT OF AUSTRALIA
Tribe v Simmons (No 2) [2021] FCA 1164
File number: NSD 322 of 2021 Judgment of: LEE J Date of judgment: 14 September 2021 Date of publication of reasons: 24 September 2021 Catchwords: DEFAMATION – permanent injunction to restrain republication of the defamation – where default judgment entered – where respondent failed to file a defence or attend the hearing – whether there is a real risk of repetition of the defamation – where respondent engaged in sustained campaign of tweets repeating the defamation – permanent injunction ordered
DAMAGES – where applicant sought general compensatory damages for non-economic loss – where applicant sought aggravated damages – assessment of general or compensatory damages – consideration of appropriate and rational relationship between harm sustained by applicant from the publication and the amount of damages – consideration of “grapevine effect” – whether alleged unjustifiable conduct supports award of aggravated damages – where no defence filed despite respondent foreshadowing a justification defence – where respondent did not appear at the hearing – circumstances relating to publication warrant award of aggravated damages
Legislation: Evidence Act 1995 (Cth) s 144
Defamation Act 2005 (NSW) Pt 4 Div 3, Sch 4 cl 7, s 34
Defamation Amendment Act 2020 (NSW)
Cases cited: Al Muderis v Duncan (No 3) [2017] NSWSC 726
Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154; (2018) 56 VR 674
Carson v John Fairfax & Sons Limited (1993) 178 CLR 44
Cassell & Co Ltd v Broome [1972] AC 1027
Crampton v Nugawela (1996) 41 NSWLR 176
Chau v Australian Broadcasting Corporation (No 3) [2021] FCA 44; (2021) 386 ALR 36
Nationwide News Pty Ltd v Rush [2020] FCAFC 115; (2020) 380 ALR 432
Nine Network Australia Pty Ltd v Wagner [2020] QCA 221; (2020) 385 ALR 328
Rayney v Western Australia (No 9) [2017] WASC 367
Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15; (2021) 387 ALR 123
Tavakoli v Imisides (No 4) [2019] NSWSC 717
Tribe v Simmons [2021] FCA 930
Division: General Division Registry: New South Wales National Practice Area: Other Federal Jurisdiction Number of paragraphs: 57 Date of hearing: 14 September 2021 Counsel for the Applicant: Ms S Chrysanthou SC with Mr B Dean Solicitor for the Applicant: Company Giles Counsel for the Respondent: The Respondent did not appear ORDERS
NSD 322 of 2021 BETWEEN: SEAN RICHARD TRIBE
Applicant
AND: OLIVIA ALICE SIMMONS
Respondent
ORDER MADE BY:
LEE J
DATE OF ORDER:
14 SEPTEMBER 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…
Continue reading Tribe v Simmons (No 2)
Sign in free to access the full text
Details
- AGLC
- Tribe v Simmons (No 2) [2021] FCA 1164
- Case
- [2021] FCA 1164
- Decision Date
CaseChat Overview and Summary
The case of Tribe v Simmons (No 2) involved a defamation dispute between Mr Sean Tribe and Ms Olivia Alice Simmons. The proceedings were before the Federal Court of Australia, with Justice Bromberg presiding over the assessment of damages and the application for a permanent injunction. The central issue was whether the court should grant a permanent injunction to prevent Ms Simmons from repeating the defamatory statements and whether to award damages for non-economic loss and aggravated damages to Mr Tribe.
In terms of legal issues, the court had to determine if the defamatory statements warranted a permanent injunction, given Ms Simmons' continued attempts to publish the defamatory content. Furthermore, the court needed to assess the appropriate amount of general compensatory damages for non-economic loss and whether aggravated damages were warranted due to Ms Simmons' conduct.
The court's reasoning was based on the procedural history of the case, which showed Ms Simmons' repeated attempts to publish the defamatory statements despite previous court orders. The court found that there was a real risk of repetition of the defamation due to Ms Simmons' sustained campaign of tweets repeating the defamatory content. Consequently, the court ordered a permanent injunction to restrain Ms Simmons from making further defamatory publications.
Regarding the damages, the court considered the principles of compensatory damages as established in Stead v Fairfax Media Publications Pty Ltd. The court found that the appropriate and rational relationship between the harm sustained by Mr Tribe and the amount of damages awarded should be based on the subjective effect of the defamation on him. The court awarded Mr Tribe $550,000 in damages for non-economic loss, including aggravated damages, due to the circumstances of the publication.
Final orders included judgment for Mr Tribe against Ms Simmons in the sum of $550,000, costs of the proceeding, and a permanent injunction to prevent Ms Simmons from repeating the defamatory statements. The injunction did not prevent Ms Simmons from communicating with medical practitioners, mental health professionals, or the police regarding the applicant.
In terms of legal issues, the court had to determine if the defamatory statements warranted a permanent injunction, given Ms Simmons' continued attempts to publish the defamatory content. Furthermore, the court needed to assess the appropriate amount of general compensatory damages for non-economic loss and whether aggravated damages were warranted due to Ms Simmons' conduct.
The court's reasoning was based on the procedural history of the case, which showed Ms Simmons' repeated attempts to publish the defamatory statements despite previous court orders. The court found that there was a real risk of repetition of the defamation due to Ms Simmons' sustained campaign of tweets repeating the defamatory content. Consequently, the court ordered a permanent injunction to restrain Ms Simmons from making further defamatory publications.
Regarding the damages, the court considered the principles of compensatory damages as established in Stead v Fairfax Media Publications Pty Ltd. The court found that the appropriate and rational relationship between the harm sustained by Mr Tribe and the amount of damages awarded should be based on the subjective effect of the defamation on him. The court awarded Mr Tribe $550,000 in damages for non-economic loss, including aggravated damages, due to the circumstances of the publication.
Final orders included judgment for Mr Tribe against Ms Simmons in the sum of $550,000, costs of the proceeding, and a permanent injunction to prevent Ms Simmons from repeating the defamatory statements. The injunction did not prevent Ms Simmons from communicating with medical practitioners, mental health professionals, or the police regarding the applicant.
Orders
Orders of the court
1. Judgment be entered for the applicant against the respondent in the sum of $550,000.
2. The respondent pay the applicant’s costs of the proceeding.
3. Pursuant to s 23 of the Federal Court of Australia Act 1976 (Cth), until further order of the Court, the respondent, Olivia Alice Simmons is hereby permanently 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.
4. For the avoidance of doubt, the injunction preventing publication does not prevent the respondent from communicating any matter relating to the applicant to any medical practitioner or mental health professional or the police.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
The relevant facts relating to this defamation proceeding are set out comprehensively in Tribe v Simmons [2021] FCA 930 (principal judgment or J). These reasons assume a familiarity with that judgment and adopt its abbreviations. In the principal judgment, I dealt at some length with the lamentable procedural history of this proceeding. It is unnecessary to rehearse that history again for present purposes. It suffices to say that, on 10 April 2021, Ms Simmons made a number of tweets (annexed to these reasons), being the publications sued upon, which contained accusations of grave misconduct. On 3 August 2021, I entered judgment in favour of the applicant, Mr Tribe, against the respondent, Ms Simmons, in respect of the statement of claim and made an interlocutory injunction restraining Ms Simmons from publishing until the final hearing a matter in any form to the effect that: (1)Mr Tribe sexually molested Ms Simmons; or (2)Mr Tribe is a liar because he denied he sexually molested Ms Simmons. At the same time I set down the balance of the proceeding for hearing today on the question of assessment of damages and the prayer for relief relating to enjoining Ms Simmons on a permanent basis. When the matter was called on this morning there was, perhaps unsurprisingly in the light of the procedural history, no appearance on behalf of Ms Simmons. I adjourned the matter for a short period in order to allow my Associate to undertake the virtual equivalent of having the matter called outside of court, and he attempted to contact Ms Simmons by way of telephone and email. She was called three times but no telephone contact was able to be made, and an email was sent, which obtained the response that she was not appearing because she had a “medical appointment”. Regrettably, in the absence of any evidence or application for an adjournment, I am not prepared to find that the non-appearance of Ms Simmons was anything other than a further indication of her unwillingness to participate in the proceeding and to take any active step to defend the claim brought by Mr Tribe.B RELEVANT PRINCIPLES It is against this background that I come to the issue of damages. Whatever else the law of defamation needs, it does not need another judgment by a judge restating, yet again, the principles relating to the award of damages. In Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15; (2021) 387 ALR 123 (at 170–172 [228]–[240]), I set out the principled approach to the award of compensatory damages (including aggravated damages) as governed by Pt 4 Div 3 of the Defamation Act 2005 (NSW) (Act). There is no need for me to do anything but repeat those observations: 228In this case, the damages sought relate to damages for non-economic loss comprising general damages (damages for injury to reputation and hurt to feelings said to have been suffered by [the applicant]) and, if found to be relevant, aggravated damages (damages for non-economic loss, which are said to have been increased by some illegitimate conduct of [the respondent]). 229The award of damages is governed by the provisions of Pt 4 Div 3 of the Act. By s 34 of the Act, the Court is required “to ensure that there is an appropriate and rational relationship” between the harm sustained and the amount of damages awarded. Further, by reason of the operation of s 35(1) of the Act and by declaration of the Minister pursuant to s 35(3), the maximum amount of damages for non-economic loss that may be awarded – the so-called “cap” – is currently $421,000. This cap may only be exceeded if the Court is satisfied that the circumstances of the publication of the defamatory matter are such as to warrant an award of aggravated damages: s 35(2). 230In considering this appropriate and rational relationship, it is necessary to bear in mind that reputation is not a commodity having a market value and because the available remedy is damages, courts can and must have regard to what is allowed as damages for other kinds of non-economic injury: see Rogers v Nationwide News Pty Ltd [2003] HCA 522; (2003) 216 CLR 327 (at 349–51 [66]–[70] per Hayne J). Because the only measure or yardstick against which the required relationship may be measured are decisions placing a value by way of an award of damages to harm to reputation (and awards of damages for other forms of non-economic loss occasioned by other types of wrongs), there is a need to have some regard to “comparables”. This not only allows the Court to fix upon a sum which reflects the necessary statutory relationship, but serves the allied purpose of providing some consistency in damages between closely comparable cases.231But it is important that this does not go too far. Fixing upon a sum which represents an appropriate and rational relationship between the harm sustained and the amount of damages awarded is a necessarily bespoke exercise. In examining the nature and gravity of the attack on [the applicant]’s reputation, it will be necessary to consider and make findings as to a variety of matters peculiar to [the applicant] and the publications. The amount allowed in this case must reflect the subjective effect of the defamation on [the applicant]. True comparability is difficult magic – except very roughly. “Headline” comparisons between different awards (which cannot reflect the idiosyncratic circumstances that attended each of the assessments) may be distracting, or possibly even misleading.232Returning to the cap, it should be explained that its operation has caused controversy, although, given the recent enactment and likely commencement of the [Defamation Amendment Act 2020 (NSW)], this debate will be rendered moot. But a claim for aggravated damages is made by [the applicant] in this case, and although it is unnecessary for me to become embroiled in a constructional battle that has wounded many, it is necessary for me to explain how I propose to apply s 35 in its current, unamended form.233Historically, and conventionally, given the nature of aggravated damages, judges do not “break down” awards into components for “pure” compensatory damages and “aggravated” compensatory damages: see Nationwide News Pty Ltd v Rush [2020] FCAFC 115; (2020) 380 ALR 432 (at 505 [380]–[381] per White, Gleeson and Wheelahan JJ). Needless to say, by way of contrast, exemplary damages, which are not compensatory in nature (and are unavailable in defamation by reason of s 37 of the Act), are separate awards, and only assessed after compensatory damages are awarded.234An issue arises about the correct interpretation of s 35 and whether the cap acts as a “cut-off” or is the “top end” of the range of damages for non-economic loss. Despite the view being expressed in a number of cases, commencing with Bell J in Attrill v Christie [2007] NSWSC 1386 (at [44]), that the cap is to be understood as fixing the outer limit of damages for non-economic loss and that awards for non-economic loss are to find a place within the range marked out, a different approach was adopted in Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154; (2018) 56 VR 674 (per Tate, Beach and Ashley JJA), with the Victorian Court of Appeal construing s 35 to permit the cap to be disregarded where aggravating circumstances could be established (at 732 [249]). 235The Full Court of this Court had reason to consider this issue in Rush (at 522–7 [442]–[466] per White, Gleeson and Wheelahan JJ). In that case, Mr Rush contended, consistently with Bauer Media, that s 35(2) of the Act permits the cap to be exceeded in respect of both general compensatory damages and aggravated damages, which may be awarded in a global sum. Counsel for Nationwide News in Rush did not put this question in issue at the trial, but before the Full Court submitted that the primary judge erred in following Bauer Media and that Bauer Media ought not be followed.236Notwithstanding that before me it should be recorded that a submission was made that Bauer Media was plainly wrong, and whatever attraction the construction arguments summarised by the Full Court in Rush (at 524–5 [452]–[453] per White, Gleeson and Wheelahan JJ) may have, the Full Court was not persuaded that Bauer Media ought not be followed and this approach should, obviously enough, be adopted by me sitting in the original jurisdiction of this Court. Accordingly, it follows that if an award of aggravated damages is appropriate in this case, the cap is inapplicable and an order for damages for non-economic loss that exceeds the cap in respect of both pure compensatory damages and aggravated compensatory damages can be made: Bauer Media (at 732 [249]); Rush (at 526–7 [459]–[466]). But it is of significance, as the Full Court pointed out, that it is always necessary to bear in mind that s 34 of the Act continues to apply and provides an “ever-present guide to ensure remedies are fair and effective in the context of achieving the objects of the Act with the aim of ensuring consistency of awards in defamation proceedings across jurisdictions and to correct any imbalance with awards of damages for personal injuries”: Bauer Media (at 731 [244]). 237For reasons I will explain, like in Rush, it is unnecessary to determine a further issue of construction as to whether the circumstances of publication that engage s 35(2) might extend to other conduct of the respondent after publication. There is some support in the case law for the notion that it does, despite what might be thought to be some difficulty with reconciling such an approach with the statutory text. What matters for present purposes is that it is common ground that aggravated damages may be awarded for post-publication conduct, but only after particular conduct in connexion with the publication of the defamatory matter has triggered the application of s 35(2) of the Act.238Unsurprisingly, as to the more general principles as to calculating damages, including when aggravating damages may be awarded, there was common ground. A very brief summary suffices. The three purposes of an award are: (a) consolation for the personal distress and hurt caused by the publication; (b) reparation for the harm done to the person’s reputation; and (3) vindication of reputation. The assessment is an intuitive, evaluative process “at large”, but subject to the provisions of Pt 4 Div 3 of the Act.239Under s 8, there is only one cause of action for the publication of defamatory matter (regardless of the number of imputations conveyed) and, where there are multiple causes of action, s 39 permits the Court to assess damages in a single sum. 240It will be necessary to return to aggravated damages in more detail below, but it suffices for the purposes of this introduction to note: (a) they may be awarded by way of compensation for injury resulting from the circumstances and manner of a respondent publisher’s wrongdoing; and (b) a respondent’s conduct after publication may relevantly be taken into account as improperly aggravating injury done to the applicant, but only if that conduct meets the threshold of being unjustified, improper or lacking bona fides.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.