Tribe v Simmons (No 2)
[2021] FCA 1164
•14 September 2021
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
Nettle v Cruse [2021] FCA 935
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
Pell v Queen [2019] VSCA 186
Wagner v Harbour Radio Pty Ltd [2018] QSC 201
Webster v Brewer (No 3) [2020] FCA 1343
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 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 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.
REASONS FOR JUDGMENT
(Delivered ex tempore, revised from the transcript)LEE J:
A INTRODUCTION
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.
Given the date of publication in this case, the law as stated in Stead remains a correct statement as to the approach that governs the award of damages in this proceeding. In particular, these proceedings involve publications made on 10 April 2021; accordingly, the amendments in relation to damages made by the Defamation Amendment Act 2020 (NSW) that came into force on 1 July 2021 do not have any present relevance: see Sch 4, cl 7 of the Act.
C THE IMPUTATIONS
It is useful to set out again the conveyed imputations of each publication, as set out in the principal judgment (at [19]–[21]):
19. 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.
20. The imputations pleaded in respect of the Second Tweet are as follows:
(a) Tribe sexually molested his sister Olivia Simmons;
(b)Tribe is a liar because he had sexually molested his sister Olivia Simmons and then falsely claimed to release a statement on behalf of the Simmons family; and
(c)Tribe is a liar because he had sexually molested his sister Olivia Simmons and then released a statement falsely denying having molested her.
21. The imputations pleaded in respect of the Third Tweet are as follows:
(a) Tribe sexually molested his sister Olivia Simmons;
(b)Tribe sexually molested his sister Olivia Simmons causing her to have post traumatic stress disorder;
(c) Tribe is a liar because he had sexually molested his sister Olivia Simmons and then released a statement falsely denying to having molested her; and
(d)Tribe is a racist because he was attacking Olivia Simmons, a black woman, and calling her crazy for speaking up about trauma she had suffered from him [although this imputation was found not to have been conveyed – see J [22]].
Although the evidence in this matter was largely received by affidavit, there were some exceptions. In respect of Mr Tribe, I required evidence as to his hurt feelings to be led viva voce. His fiancé, Ms Diane Ling, also gave oral evidence directed to this issue (as well as evidence relating to reputation).
Both Mr Tribe and his fiancé were impressive witnesses and I accept their evidence. Given the nature of the imputations, it is hardly surprising that upon reading the relevant publications, Mr Tribe felt a very high degree of subjective hurt. In part, this appeared to relate to the sense of distress directed at his family member who had thought it appropriate to make accusations of the type made. When it came to this aspect of his hurt to feelings, there was also an element of sadness and perplexity, given that someone with whom he had previously shared a familial relationship would regard it as appropriate to make such accusations.
A further aspect of his hurt feelings seems to me, however, to have been even more significant. That is the anxiety and vexation that would have been caused by knowing that the imputations had been published in such a way as to result in very widespread and highly damaging publicity. During the course of his oral evidence, Mr Tribe echoed (at T18.10–15) the well-known quotation of H R Haldeman, the former White House Chief of Staff to President Nixon: “once the toothpaste is out of the tube, it’s difficult to get it back it in again.”
The difficulty for Mr Tribe is that, when the accusations were made, he was faced with the prospect that whatever he did, there would be some people who would always believe that he had conducted himself in a way that was depraved. As Weinberg J observed in Pell v Queen [2019] VSCA 186 (at [936]), the sort of allegations which were made are “some of the most serious allegations that can be levelled at any member of this community.”
It is not unduly stretching the bounds of s 144 of the Evidence Act 1995 (Cth) to observe that allegations of sexually depraved conduct towards children, let alone children within the same family unit, excite feelings of intense hostility toward the accused perpetrator and, in contemporary times, the extent of public opprobrium is even greater than it may have been even in the relatively recent past. The evidence that Mr Tribe gave as to the extent of his hurt, caused by being publicly accused of such conduct, had a real ring of clarity about it. Further, the evidence given by his finance, Ms Ling, regarding her assessment of the hurt suffered by her partner, was particularly impressive. Ms Ling gave evidence, for example, of Mr Tribe being somebody who simply did not want to leave their home and was concerned with people seeing him in public: T33.29–47. She described Mr Tribe as a man who was clearly depressed and felt anxious about engaging with others in public.
This evidence given by both Mr Tribe and Ms Ling is corroborated by other evidence that was read at the hearing. Mr Tribe’s older brother, Mr Liam Tribe, described him as “stoic”, but gave evidence that it was nevertheless clear that he was confused and extremely hurt. Indeed, one of the reasons why I found Mr Tribe’s evidence as to hurt feelings to be compelling is that he did not seek to gild the lily and overstate his reaction, which was consistent with him at least attempting at times to be stoic about the extent to which he has been affected. Similarly, his older sister, Ms Emily Tribe, gave evidence consistent with Mr Tribe’s evidence that he was sad and angry. Also, his mother, Ms Julianne Simmons, who spoke to her son, it appears, very regularly after the tweets, gave evidence that he was absolutely devastated and shocked and said that there were no words to describe the impact on Mr Tribe. She also gave evidence of the distress that she heard through the course of their telephone calls, and his lament that he could not believe what was happening to him.
In the light of all the above, I am prepared to accept that Mr Tribe suffered a very high degree of subjective hurt by reason of the publication by Ms Simmons of the three tweets.
D PERSONAL CHARACTERISTICS AND REPUTATION
Mr Tribe is a 35-year-old man who lives in the United States with his fiancé, Ms Ling, and their infant daughter. He is an employee of a company incorporated in the United States, PRVN LLC. As an officer of the company, he performs management services on behalf of his brother, Mr Ben Simmons, who, the evidence reveals, is a prominent sportsman playing professional basketball in the United States. The evidence also discloses that at the time the tweets were published Mr Tribe had a personal and professional reputation of a high order, both in Australia and the United States.
Ms Ling gave evidence, which I accept, of Mr Tribe’s reputation among their friends and colleagues and that he was a kind, well-mannered and good person. This evidence was, again, corroborated by others. Mr Paul Ramondetta, who has known Mr Tribe and the family since Mr Tribe was a young boy, described Mr Tribe’s reputation as not only a clean and fair basketball player, but as an honest, polite and affable young man who “did not have a nasty bone in his body”.
Ms Julianne Simmons, perhaps unsurprisingly given she is the applicant’s mother, described him as a good, kind and caring person, a hard worker, and a generous man who has given his time to some charitable activities. His older brother, Liam, described his reputation among the people with whom both he (and Mr Tribe) worked as being, before the tweets, a “tremendous professional, who was easy to work with and serious about his job”.
In addition to evidence from members of the family to a similar effect, Mr Mike Morack, a professional sport and entertainment consultant who is based in the United States also gave reputational evidence. Mr Morack said that since 2016 he had been friends with Mr Tribe and that they had jointly mixed with a range of people in the worlds of sport, entertainment and fashion – the so-called “movers and shakers” of those industries that “help move culture in the United States”. Mr Morack gave evidence that, before the tweets, Mr Tribe’s reputation in the social circles with which he was associated in the United States was as a highly respected sporting figure who worked with “one of the top athletes in the world” and who conducted himself with confidence and in a manner commanding respect.
The reputation evidence, particularly that of Mr Morack, is impressive and I accept that the evidence establishes that Mr Tribe enjoyed an excellent personal and professional reputation prior to the publications.
E FURTHER MATTERS RELEVANT TO DAMAGES
There are three aspects of this matter that present unusual challenges.
First, is the mode of publication, which deserves some close examination. The evidence reveals that Twitter provides, on a commercial basis, a stream of data that includes the content of tweets and various data linked to each tweet – including time stamps, engagement with other users of each tweet, etc. – which has been described by Twitter as a “firehose”. The term “firehose” is said to convey the large volume as well as the real-time velocity with which this data is produced by Twitter, which has a large global base of active users, including 4.6 million users in Australia alone.
By its very nature, Twitter encourages the dissemination, by repetition, of messages sought to be conveyed by users. The dissemination of information with great velocity is no doubt a significant reason why it has become such a pervasive and popular social medium. If one looks at the evidence in this case, one obtains a graphic modern-day example of the so-called “grapevine effect” often referred to in matters of this kind.
An annexure to Mr Tribe’s affidavit provides evidence of the abusive messages on Twitter and Instagram that Mr Tribe received following the publication of the tweets. He gave evidence that the messages that he received made him feel angry, but as he continued to receive the messages, he also felt threatened and fearful for the safety of Ms Ling and their daughter. This is hardly surprising when one has regard to the content of these messages. For example, one Instagram user messaged Mr Tribe directly, saying “Perv ass nigga. Can’t wait till you’re locked up. Why you been touching your sister since she was 3?”
Another Instagram user calling himself “Raul M Carrion” messaged Mr Tribe directly, saying: “Weird ass. You’re sick. You don’t deserve to get help just straight to prison then hell. I wonder what your [sic] doing to your kid.”
Someone, using the Twitter ‘handle’ “Thybubble Bible” (perhaps ironically) observed, in a notably unchristian tone:
Fuck you! You’re gonna get what you deserve bitch!
Enjoy prison where you belong! Hope you rot in there for a long time :D
I will mention only one further example from someone who used the Instagram handle “cowboys_culture” who expressed himself as follows:
Rapist
Coward
Molester
Pussy
It is difficult to equate the distribution of publications by way of newspapers, television, or radio, with the distribution of publications by way of social media because of the differences in the nature of the publication, as this case demonstrates. At the time of the First Tweet, Ms Simmons had 12,896 twitter followers. This meant that there was an estimated reach to each of those followers; but that is only a part of the story.
The extensive immediate online reactions to the tweets demonstrate graphically the damage to reputation in this case. As of 13 April 2021, there were 414 engagements (favourites, re-tweets and mentions) to the First Tweet; 209 engagements with the Second Tweet; and 174 engagements with the Third Tweet. Then the discussion of the allegations moved onto Reddit and other online media. The material substance of the defamation was then widely republished in publications throughout Australia, the United Kingdom and the United States with the potential reach of many of those publications extending to the millions. It is a graphic illustration as to how three social media messages can spread.
It is notable that on 11–12 April 2021, the material substance of the defamation was republished in the Daily Mail Australia, Herald Sun, Perth Now, Daily Telegraph, Courier Mail, Cairns Post, Adelaide Now, Geelong Advertiser, Gold Coast Bulletin, news.com.au, NT News, The Australian, The Chronicle, The Mercury, Townsville Bulletin, The Weekly Times Now, Foxsports.com.au, and New York Post.
The extent and the effect of the defamatory publications are further evidenced by the fact that Mr Ramondetta, who was known to some in Victoria as being close to Mr Tribe’s family, was approached by at least ten people asking whether the substance of the tweets was true. Further, the evidence of Mr Morack was that he received messages from at least 20 people from within the Philadelphia basketball community and the “commercial network” within which he and Mr Tribe operated. These included messages with multiple question marks and “raised eyebrow” emojis. Mr Morack also gave evidence: (a) that he had been asked about the allegations by five other people from within these communities; (b) the tweets had been published on several Philadelphia basketball Facebook group sites that are, apparently, accessed by about 8,000 people; and (c) as to his surprise as to how many people in the community found out about the allegations from different sources (so much so that he is now under the impression that every person with whom he mixes professionally has now seen the tweets or heard about the tweets).
The reason I emphasise this aspect of the case is that it illustrates the extent of the damage to Mr Tribe’s reputation and the need for an award of damages to be of a significant magnitude so as not only to provide consolation to him for the harm done, but also to act as vindication of Mr Tribe for where the poison has reached and where it may yet be lurking: Cassell & Co Ltd v Broome [1972] AC 1027 (at 1071 per Lord Hailsham of St Marylebone LC), cited in Crampton v Nugawela (1996) 41 NSWLR 176 (at 193–5 per Mahoney A-CJ).
This is a case where there is a real need for the damages to be such as to provide a proper vindication of reputation. It is perhaps expecting too much, given the nature of the allegations, that a sum of damages will be sufficient to convince some bystanders, at least in the social media world, of the baselessness of the charge made. Even an acquittal following a detailed criminal trial is often not enough to convince some bystanders of the baselessness of charges of this nature. An award of damages can only do so much.
The second unusual aspect of this matter is that, although Mr Tribe is relying on this case to do all that he reasonably can to restore his reputation and to nail the falsehood of the serious allegations made against him, he does not intend, at least as presently advised, to enforce the monetary judgment against his half-sister. This does not seem to me to be a material factor in how I should approach the quantification of damages. It is trite to note that the three purposes of an award for general damages are consolation for hurt feelings, recompense for damage to reputation, and vindication of the applicant’s reputation: see Carson v John Fairfax & Sons Limited (1993) 178 CLR 44 (at 60–1 per Mason CJ, Deane, Dawson, and Gaudron JJ). The issue of whether the monetary award is to be enforced is a separate issue from its quantification in accordance with principle and the statutory requirements.
The third aspect of the matter which causes a challenge is how one approaches the motivations of Ms Simmons, to the extent this is relevant to aggravation. The instinctive reaction of Mr Tribe and the extended family was, commendably in my view, one of sadness as much as it was of anger: they expressed publicly their concern for Ms Simmons’ mental health and their incredulity that she would have made the allegations if she was not suffering some distress in her personal life.
Ms Simmons was given every opportunity to seek to make out a defence of the substantial truth of her allegations, being something which she said at an early case management hearing she would attempt to do. Indeed, I went so far as to take the unusual step of not only forgiving numerous defaults with the court timetable, but appointing pro bono counsel to assist her in putting together affidavit material and filing a defence in support of any truth defence. It is unclear the extent to which Ms Simmons is suffering from any ongoing mental health difficulties. It is also unclear on the material as to whether the tweets were the result of a deliberate and purposeful fabrication in order to hurt Mr Tribe, the product of some fantasy, or a combination of the two.
In any event, it is unnecessary to engage in speculation as to what motivated Ms Simmons to make the publications. Implied admissions have been made by the failure to file a defence. Ms Simmons has made no attempt to prove substantial truth and Mr Tribe is entitled to vindication. The Court must accept the unchallenged evidence of Mr Tribe, none of which is inherently improbable, and proceed on the basis that the defamatory imputations were made without any basis in fact.
F AGGRAVATED DAMAGES
In addition to general compensatory damages, Mr Tribe seeks aggravated damages. Although touched upon above, it is worth revisiting briefly the principles that inform such an award.
As is well known, an award of aggravated compensatory damages may be made where the conduct of the respondent towards the applicant is found to have been improper, unjustifiable or lacking in bona fides. The circumstances that justify an award of aggravated damages are sufficiently broad to include where the Court may be hesitant in making a definitive finding about the good faith or otherwise of a respondent, but nevertheless is persuaded that the respondent’s conduct connected to the publication or in the conduct of the litigation can objectively be described as improper or unjustifiable.
There are a number of matters relied upon by Mr Tribe to justify an award of aggravated damages. The following is pleaded in Mr Tribe’s statement of claim (at [11]):
Tribe’s harm as a result of the publications of the Tweets was aggravated by his knowledge of the following matters:
a) The sensational, accusatory and spiteful tone and language of the Tweets;
b) Olivia Simmons’ failure to seek comment from or give notice to Tribe before publishing the Tweets;
c) Olivia Simmons knew and intended given the public status of Ben Simmons … her allegations of sexual misconduct and her relatively large social media following that the Tweets would be widely reported on and republished in social media and mass media in Australia and globally;
d) Olivia Simmons intended that the Tweets would irrevocably damage Tribe’s personal and professional reputation and in particular his professional career and relationship with Ben Simmons;
e) Olivia Simmons knew that her entire family did not believe her allegations against Tribe;
f) Olivia Simmons knew that her entire family including her father had released the statement on 10 April 2021 posted in the Second and Third Tweets denying her allegations;
g) The conduct of Olivia Simmons in failing to immediately take down the First Tweet and tweets that repeated the defamatory imputations (or imputations which do not differ in substance) after receiving a concerns notice from Company Giles on behalf of Tribe on 10 April 2021;
h) Olivia Simmons engaged in a campaign to damage Tribe’s reputation by publishing tweets before and after the Tweets that repeated the defamatory imputations pleaded above (or imputations which do not differ in substance) from 7 April 2021 and following, copies of which are in Schedule D;
i) The conduct of Olivia Simmons in publishing the Second and Third Tweets and other tweets in Schedule D after receiving a concerns notice from Company Giles on behalf of Tribe on 10 April 2021; and
j) The failure of Olivia Simmons as of the date of this pleading to apologise either privately or publicly for publishing the Tweets.
There has been no joinder of issue in relation to the allegation that Mr Tribe’s harm was aggravated by his knowledge of the matters pleaded. Although the evidence that I have received may be insufficient for me to be satisfied of the matter in [11(e) and (f)] (because of the ambiguity in the expression “entire family”), it is clear that there is no evidence of anyone believing the allegations within the family unit, to the extent that that family unit is revealed in the evidence. In any event, these undisputed pleaded factors seem to me to be conduct which objectively can be categorised appropriately as improper or unjustifiable.
Further, Mr Tribe relies upon the following conduct of Ms Simmons since the publications as being relevant to an award of aggravated damages:
(1)Ms Simmons further tweets made after the Second Tweet and the Third Tweet;
(2)Between 13–14 April 2021, Ms Simmons, after receiving the concerns notice, de-activated her Twitter account, re-activated her account, and then published further tweets;
(3)On 16 April 2021, Ms Simmons, after receiving the statement of claim, de-activated her Twitter account, re-activated it, and then published further tweets;
(4)Between 20–21 April 2021, Ms Simmons published further tweets and retweeted the Third Tweet;
(5)During the further case management hearing on 14 May 2021, Ms Simmons stated (at T4.10–2): “Yes, your Honour. So I would, you know, like the chance to defend myself. And as far as the allegations, I am in the middle of conducting a police report.”
(6)Ms Simmons instructed her counsel to appear at the case management hearing on 9 July 2021 to say that it was her intention to defend these proceedings after being served with all the evidence from her family (at T3.24–5) – instructions that were then published in the mainstream media; and
(7)Ms Simmons has failed to apologise in circumstances where the matter is undefended.
Mr Tribe gave evidence that the factors identified did aggravate his subjective hurt, and I am also satisfied that aspects of the above conduct ((1) to (4) and (7)) could be regarded objectively as being both improper and unjustifiable in the circumstances.
I do not consider it appropriate to award a separate sum in relation to general compensatory damages and aggravated compensatory damages, for the reasons I explained in Stead (at [233]):
Historically, 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.
In working out what that single sum should be, I have had regard to the principles that I extracted above from Stead, along with a number of comparable cases. I adhere to my view that comparability is difficult magic and no two cases are the same. For example, reference was made to the following judgments that involved individuals using internet and social media sites to defame: Nettle v Cruse [2021] FCA 935 (Wigney J); Webster v Brewer (No 3) [2020] FCA 1343 (Gleeson J); Tavakoli v Imisides (No 4) [2019] NSWSC 717 (Rothman J); and Al Muderis v Duncan (No 3) [2017] NSWSC 726 (Rothman J).
Further, it was submitted that the intended and natural and probable consequence of the original tweets being published was that the material content of the tweets would be republished throughout the mass-media in Australia and globally. The written submissions also state that the allegations were coming “from a complainant in the context of the ‘me too’ movement and commonly-held modern views that all women and children complainants are to believed”. In the light of these factors, it was said that the publications could be compared to the following cases: Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154; (2018) 56 VR 674 (Tate, Beach and Ashley JJA); Nine Network Australia Pty Ltd v Wagner [2020] QCA 221; (2020) 385 ALR 328 (Morrison and Mullins JJA and Jackson J); Nationwide News Pty Ltd v Rush [2020] FCAFC 115; (2020) 380 ALR 432 (White, Gleeson and Wheelahan JJ); Wagner v Harbour Radio Pty Ltd [2018] QSC 201 (Flanagan J); Rayney v Western Australia (No 9) [2017] WASC 367 (Chaney J).
There is no useful purpose in me going through the individual cases and identifying where there are similarities and where there are differences. Particular emphasis was placed on the recent comments of Rares J in Chau v Australian Broadcasting Corporation (No 3) [2021] FCA 44; (2021) 386 ALR 36 (at 70 [132]–[133]) where his Honour said the following:
132Lord Judge CJ, Lord Neuberger of Abbotsbury PSC and Eady J suggested in Cairns v Modi [2013] 1 WLR 1015 at 1025 [32] that there will be occasions when the reasons for judgment will provide a sufficient vindication, but whether they did so “is always a fact-specific question”. Their Lordships did not give any examples or cite authority for that obiter dictum, although they said (at 1025 [30]–[32]), following Dingle [1964] AC 371, that there is no general principle for making any allowance in reduction of an award of damages based on the court’s reasons for finding for the claimant. As they also said (at [32]), correctly in my view:
It is more likely, as in so many cases, that the general public (or rather, interested “bystanders” who need to be convinced) will be concerned to discover what might be called the “headline” result. What most people want to know, and that includes those who read the judgment closely, as Mr Caldecott submitted, is simply “how much did he get?”
(emphasis added)
133I agree. The ordinary reasonable viewer of the program and those to whom its imputations about Dr Chau were republished are not likely to spend hours reading these reasons and nor is anyone else except the present parties and their lawyers and any appellate court. The public are interested in what amount the Court awards, not the dross of legal reasons or, as Lord Macnaghten once remarked in another context: “Thirsty folk want beer, not explanations”: Montgomery v Thompson [1891] AC 217 at 225.
Irrespective of how “thirsty” people are for detailed explanations as to how one comes to an appropriate award of compensatory damages, fixing upon a sum that represents an appropriate and rational relationship between the harm sustained and the amount of damages awarded is often somewhat difficult to explain in any detail. There is a certain instinctive synthesis about the approach.
Given the extreme level of subjective hurt and the particular need for vindication in the circumstances of these publications, it seems to me that anything less than $550,000 in damages, including aggravated damages, would be insufficient. This sum is appropriate, having regard to comparable cases and is sufficient, in my view, to provide appropriate consolation for hurt feelings, recompense for damage to reputation and vindication.
G FINAL RELIEF
Mr Tribe seeks an order that the interlocutory injunction made on 3 August 2021 be made on a final basis. As has been explained, the main consideration in determining whether or not to issue a permanent injunction in defamation proceedings is whether there is a risk or apprehension that the respondent will republish the imputations that have been found to be defamatory.
Notwithstanding the tweets have been taken down, in my view, there is a sufficient reason as to why the Court should enjoin Ms Simmons from publishing a matter in the form as provided in the interlocutory injunctions made on 3 August 2021. I have already explained in the principal judgment (at [26]) the unusual circumstances where Ms Simmons has made a series of implied admissions of the matters contained in the statement of claim, made further tweets since the commencement of the proceeding, and also made statements protected by absolute privilege to the effect that she has a defence of justification to the claim, and yet has not filed a defence despite being given every opportunity to do so.
Even today, she has not engaged with the proceedings on the basis, unsupported by any evidence, that she has a “medical appointment”. There is no suggestion that Ms Simmons resiles from the very serious allegations that she made. Further, Ms Simmons has failed to take any steps to withdraw her allegations and appears to continue to maintain her social media accounts, including Twitter.
These factors indicate that this is a case where there is a real risk of repetition of the defamation unless the Court does something to prevent it from occurring. This case stands in stark contrast to one involving a mass-media defendant which could be expected not to repeat a defamation following the delivery of judgment after a contested hearing.
Accordingly, I propose to make orders which will have the effect of enjoining Ms Simmons in the same terms as I have previously restrained her on an interlocutory basis (although I will clarify that the injunction does not prevent any communication with health professionals or the police).
In this regard, those acting for Mr Tribe should ensure that the orders to be sent up reflecting this judgment provide the appropriate penal notice and steps are taken to serve the notice personally on Ms Simmons in order to ensure that there can be no misapprehension as to the importance of her complying with the orders of the court and making it clear to her that disobeyance of the order could render her liable to imprisonment, sequestration of property or other punishment for contempt.
I note that the orders that accompany these revised reasons are those ultimately entered.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee. Associate:
Dated: 24 September 2021
Annexure A – The First Tweet
Annexure B – The Second Tweet
Annexure C – The Third Tweet
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