Webster v Brewer (No 3)

Case [2020] FCA 1343

FEDERAL COURT OF AUSTRALIA

Webster v Brewer (No 3) [2020] FCA 1343  

File number: VID 293 of 2020
Judgment of: GLEESON J
Date of judgment: 22 September 2020
Catchwords: DAMAGES – defamation – where default judgment ordered against respondent – principles concerning assessment of non-economic loss – where aggravated damages appropriate
Legislation: Federal Court Rules 2011 r 5.23(d)
Defamation Act 2005 (Vic) ss 34, 35, 36
Cases cited: Australian Broadcasting Corporation v Comalco Ltd [1986] FCA 300; (1986) 12 FCR 510
Bauer Media Pty Ltd & Anor v Wilson (No 2) [2018] VSCA 154; (2018) 56 VR 674
Belbin v Lower Murray Urban and Rural Water Corporation [2012] VSC 535
Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44
Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335
Cripps v Vakras [2014] VSC 279
Culla Park Ltd v Richards [2007] EWHC 1850 (QB)
French v Fraser (No 3) [2015] NSWSC 1807
Hayson v The Age Company Pty Ltd (No 2) [2020] FCA 361
Lewis v Daily Telegraph Ltd [1964] AC 234
Nationwide News Pty Ltd v Rush [2020] FCAFC 115
Pettiona v Nationwide News Pty Ltd [2019] FCA 1690
Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496
Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104
Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497
Wagner v Nine Network Australia [2019] QSC 284
Division: General Division
Registry: New South Wales
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 93
Date of hearing: 31 August 2020
Counsel for the Applicants: J Hooper
Solicitor for the Applicants: Norton Rose Fulbright Australia
Counsel for the Respondent: The respondent did not appear

ORDERS

VID 293 of 2020
BETWEEN:

ANNE WEBSTER

First Applicant

PHILIP WEBSTER

Second Applicant

ZOE SUPPORT AUSTRALIA (ABN 76161029705)

Third Applicant
AND:

KAREN BREWER

Respondent

ORDER MADE BY:

GLEESON J

DATE OF ORDER:

22 SEPTEMBER 2020

THE COURT ORDERS THAT:

1.The respondent pay the first applicant general damages, including aggravated damages assessed in the sum of $350,000.00.

2.The respondent pay the second applicant general damages, including aggravated damages assessed in the sum of $225,000.00.

3.The respondent pay the third applicant general damages, including aggravated damages assessed in the sum of $300,000.00.

4.The respondent pay the applicants’ costs of the proceeding.

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


REASONS FOR JUDGMENT

GLEESON J:

  1. On 18 June 2020, I made an order pursuant to r 5.23(2)(d) of the Federal Court Rules 2011 giving judgment for the applicants against the respondent (Ms Brewer) for damages to be assessed by the Court in respect of seven defamatory publications. Those damages are to be assessed under the Defamation Act 2005 (Vic) (Act).

  2. In the absence of any defence, I also made an order in terms of the interlocutory injunction made on 19 May 2020 (Webster v Brewer (No 2) [2020] FCA…

Continue reading Webster v Brewer (No 3)

Sign in free to access the full text

Details
AGLC
Webster v Brewer (No 3) [2020] FCA 1343
Case
[2020] FCA 1343
Decision Date

CaseChat Overview and Summary

In the case of Webster v Brewer (No 3), the applicants were Dr Anne Webster, Dr Philip Webster, and Zoe Support, a charity associated with the Websters. The applicants sought damages against Ms Brewer for defamatory publications made on her social media platforms. The court was tasked with determining the appropriate amount of damages to be awarded to the applicants, including aggravated damages, and whether the proposed single award of damages for each applicant was appropriate. The court also considered the seriousness of the defamatory imputations and the extent of their publication.

The court found that the defamatory imputations made by Ms Brewer were serious, particularly given the nature of the applicants' work and their reliance on public trust and confidence. The court noted that while the publications were not reasoned or plausible, they could still have an impact on suggestible members of the community. The court also found that the extent of publication was significant, with the posts receiving numerous reactions, comments, views, and shares. The court concluded that substantial awards of damages were necessary to vindicate the applicants' reputations and to demonstrate the baselessness of Ms Brewer's charges.

The court assessed the damages for each applicant, taking into account the seriousness of the imputations, the need for vindication, and the need for recompense for the hurt inflicted. The court awarded Dr Anne Webster $350,000 in damages, Dr Philip Webster $225,000, and Zoe Support $300,000. The court also ordered that the respondent pay the applicants' costs of the proceeding.

The court ordered that the respondent pay the applicants' costs of the proceeding. The court held that the seriousness of the defamatory imputations, the extent of their publication, and the need for vindication of the applicants' reputations justified the substantial awards of damages. The court also noted that the single award of damages for each applicant was appropriate, as it provided a clear and rational relationship between the harm sustained by the applicants and the amount of damages awarded.

Orders

Orders of the court

1. The respondent pay the first applicant general damages, including aggravated damages assessed in the sum of $350,000.00.

2. The respondent pay the second applicant general damages, including aggravated damages assessed in the sum of $225,000.00.

3. The respondent pay the third applicant general damages, including aggravated damages assessed in the sum of $300,000.00.

4. The respondent pay the applicants’ costs of the proceeding.

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

There can be no serious doubt about the value of an organisation like Zoe Support in a rural community like Mildura. Ms Brewer’s defamatory publications are designed to undermine the charitable objects of Zoe Support, to the potential detriment of some of the most disadvantaged people within its community.Evidence of applicants’ reputations Christopher Crewther is the Patron of the Tourette Syndrome Association of Australia and a member of the Commonwealth Government’s Modern Slavery Expert Advisory Group. He is a former member of the House of Representatives, former chief executive officer of the Mildura Development Corporation and was admitted as a legal practitioner in the ACT Supreme Court in 2006. Mr Crewther was a non-executive director of Zoe Support from 2014 to 2018. Mr Crewther has known Dr Anne Webster and Dr Philip Webster for several years. He considers them both to be fine upstanding members of the Mildura community who have dedicated themselves to working for the benefit of others and for the betterment of society as a whole. Mr Crewther noted the significant hours worked by Dr Anne Webster and Dr Philip Webster to make a difference to the lives of young women through Zoe Support who would otherwise have likely faced circumstances of relative social and educational disadvantage. Mr Crewther stated that, in his role at Zoe Support, he developed “complete trust” in Dr Anne Webster. He described his experience of the Websters in the following way:She is open, honest, wears her heart on her sleeve and has exceptional emotional and general intelligence. Equally, Philip’s meticulous focus on governance, reliability and his trustworthiness as chair of Zoe Support perfectly complements Anne’s skills, enabling her to focus on the grassroots work of Zoe Support. They are a dedicated, loving, Christian couple; dedicated to their children, grandchildren, family, church and the community. I believe they are always willing to work for and on behalf of the community and…as I know from my interactions with civic leaders and ordinary citizens alike, they are each highly regarded and respected by other members of the community at both a personal and professional level. Hannah Ryan, a client of Zoe Support from 2013 to 2019, gave the following touching evidence:I am especially grateful to Zoe Support in supporting me and encouraging me to pursue and eventually attain my Certificate 4 in Community Services. They also helped me find housing, by acting as a ‘housing advocate’ and accompanying me to my housing appointment interviews so that I would not be alone. If I had any trouble with Centrelink, a member of the Zoe Support staff would speak to Centrelink on my behalf. Cooking classes were also provided by the staff, which taught me how to prepare healthy meals for my family.I credit Zoe Support for creating a strong friendship group between the young mothers. Being able to speak to other women in similar circumstances and forge strong bonds with each other was invaluable and provided a strong support structure that we often lacked from our family and friends. For many of us young mothers with Zoe Support, our families did not provide the required support, but the staff welcomed us and made us feel a part of the Zoe family. I suffered from post-natal depression after the birth of my first child, and the staff helped me get the help and support I needed to combat my depression.Zoe Support did not just provide us with support during the time we were clients, rather they provided us with the tools to be independent, gain employment and take care of our children and families once we left Zoe Support.

Decision

Reasons for decision

This evidence tends to confirm that Ms Brewer is obsessive and defiant, and may not be deterred by this proceeding from further defamatory publications concerning the applicants. CONCLUSION The applicants proposed that the Court compensate them by a single award of damages in each case, rather than making separate awards in respect of each publication. I accept that this approach is appropriate: cf. Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [274]. Having regard to the legal framework and the evidence set out above, I assess general damages including aggravated damages in favour of the applicants against Ms Brewer as follows:(1)For Dr Anne Webster, in relation to the seven matters complained of, $350,000.(2)For Dr Philip Webster, in relation to the second, third and fourth matters complained of, $225,000.(3)For Zoe Support, in relation to the second to seventh matters complained of, $300,000. In each case, the need for vindication of reputation is the most substantial consideration in the damages assessed. The award of damages in favour of Zoe Support recognises that the entity may not be awarded damages for hurt feelings, but reflects my conclusion as to the sum required to convince a bystander of the baselessness of Ms Brewer’s terrible charges. For Dr Philip Webster, although he was the subject of only three of the matters complained of, the damages particularly reflect the need to vindicate his long standing reputation as a medical practitioner. In each case, the award is also intended to provide recompense for damage to the applicant’s reputation. In the cases of Dr Anne Webster and Dr Philip Webster, the damages assessed are also intended to provide consolation for the undoubted hurt inflicted by Ms Brewer’s defamatory conduct. The higher award of damages to Dr Anne Webster principally reflects the number of publications making imputations against her, and the viciousness of Ms Brewer’s conduct directed towards her. Costs should follow the event.

Ratio Decidendi

Legal Principle Established

However, by s 36 of the Act, the Court must disregard the malice or other state of mind of the respondent, except to the extent that the malice or other state of mind affects the harm sustained by the applicant.CONSIDERATIONSeriousness of defamatory imputations Each of the applicants is in a position where their work depends upon their honesty and integrity. In the case of Dr Anne Webster, her elected role as a member of parliament requires maintenance of community confidence in her. In the case of Dr Philip Webster, his role as a medical practitioner is based upon the provision of services to individual patients who rely upon his discretion and his professionalism. In the case of all three applicants, their charitable works depend upon their integrity and decency to inspire the confidence without which persons in need are unlikely to seek support. The majority of the imputations allege participation in deliberate and heinous criminality and moral depravity. Considered as a whole, they are the most serious kind of defamatory imputations that could be levelled at an individual or a charity. However, it is significant that Ms Brewer’s publications are not reasoned or plausible. They would not have had the impact of an imputation published in a major newspaper by a respected journalist: cf. French at [90]. The video posts are in the nature of rants. In my view, reasonable people would dismiss them as deranged and lacking in credibility. However, I accept that suggestible members of the Mildura community may have considered them credible, particularly in the light of Ms Brewer’s claims to be acting in the interests of the Australian community. I accept that the vile nature of the publications, considered as a whole, makes vindication of the applicants’ reputations of particular importance and calls for substantial awards of damages. While I consider that rational people would regard Ms Brewer’s publications as delusional, I accept that some people may find them persuasive. The applicants are entitled to substantial awards of damage to “nail the lie”, that is, to demonstrate the baselessness of Ms Brewer’s charges and to vindicate the good name of each of the applicants, which is of so much importance to them, while ensuring an appropriate and rational relationship between the harm sustained by the applicants and the amount of damages awarded: cf. Hayson v The Age Company Pty Ltd (No 2) [2020] FCA 361 at [169]; Wagner v Nine Network Australia [2019] QSC 284 (Wagner) at [223].Extent of publication I accept that the extent of publication of the matters complained of was significant. Ultimately, each was removed by Facebook for breaches of that organisation’s Terms of Service and Community Standards. However, the evidence was that, as at 7 May 2020:(1)the first matter complained of had received 120 reactions, 54 comments and 112 shares;(2)the second matter complained of had received 249 reaction, 315 comments, was viewed on 2,400 occasions and had been shared on 204 occasions;(3)the third matter complained of had received 157 reactions, 121 comments and 221 shares; and(4)the fourth matter complained of was viewed on 1,000 occasions, shared on 76 occasions, received 272 reactions and 350 comments.