Osuamadi v Okoroafor [2011] NSWDC 1

District Court New South Wales

Medium Neutral Citation: Osuamadi v Okoroafor [2011] NSWDC 1 Hearing dates: 19 January 2011 Decision date: 21 January 2011 Before: Levy SC DCJ Decision: 1. Verdict and judgment for the defendant cross claimant against the plaintiff cross defendant in the sum of $49,000; 2. The cross defendant is to pay the cross claimant's costs on the ordinary basis, unless otherwise ordered; 3. The exhibits may be returned; 4. Liberty to apply on 7 days notice for further orders if required. Catchwords: TORTS – defamation; DAMAGES – assessment of compensatory and aggravated damages for defamation published by email in small socio-ethnic community Cases Cited: State of NSW v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496 Category: Principal judgment Parties: Chief Maximus Onu Osuamadi (Plaintiff/cross defendant) Bartholomew Okoroafor (Defendant/cross claimant) Representation: The plaintiff cross defendant did not appear Ms D Reid (Cross claimant) The plaintiff cross defendant did not appear ALIS Lawyers (Cross claimant) File Number(s): 2110 of 2009 2009/335142

JUDGMENT Nature of case

1. The matter for assessment involves a claim by Mr Bartholomew Okoroafor, the defendant/cross claimant, against Chief Maximus Osuamadi, the plaintiff/cross defendant, seeking damages for defamation. Both parties are NSW members of a small ex-patriot community from Igbo in south-western Nigeria. The matters that gave rise to the proceedings concerned the distribution of a series of email communications both within and beyond the constituent membership of the socio-ethnic association of the Igbo people from Nigeria, both in Australia, and overseas. Publications underlying the proceedings 2. The first email in the series was sent by Mr Osuamadi on 5 March 2009. The material parts of that email are reproduced as Appendix I to these reasons. That email, which was distributed to some 100 recipients, generated a reply from Mr Okoroafor. That reply, the second email in the series, was not tendered in evidence. 3. The third email in the series, which is reproduced as Appendix II to these reasons, was sent by Mr Osuamadi to Mr Okoroafor on 10 March 2009 in response to Mr Okoroafor's email in reply to Mr Osuamadi's first email. 4. The fourth email in the series of email exchanges, the last word, was sent by Mr Okoroafor to Mr Osuamadi on 11 March 2009. That fourth email is reproduced as Appendix III to these reasons. 5. The context of these emails was a schism in the Igbo community organisation in NSW. In reproducing emails in the appendices to these reasons, the names and addresses of the recipients have not been included. Procedural history and subject matter of the proceedings 6. Mr Osuamadi filed his proceedings on 19 June 2009. Until 27 May 2010, he had been formerly represented by Mr Barrie Goldsmith, solicitor. Mr Osuamadi discontinued his proceedings against Mr Okoroafor on 30 August 2010. 7. As Mr Osuamadi's proceedings have been discontinued against Mr Okoroafor, there is no need to review the imputations that were alleged to have been raised in those proceedings, and which were then subsequently abandoned as a result of the discontinuance. 8. Notwithstanding that Mr Osuamadi had discontinued his proceedings against Mr Okoroafor, Mr Okoroafor's cross claim against Mr Osuamadi still remained on-foot. This is the matter for which damages are required to be assessed in these proceedings. 9. In his cross claim, which was based on the emails reproduced in Appendix I and Appendix II, Mr Okoroafor claimed that he had been defamed by the imputations he claimed had arisen from within those emails. I will refer to those imputations in connection with my findings. In respect of these matters, Mr Okoroafor claims both compensatory and aggravated damages. 10. The hearing of the cross claim was fixed for trial on 11 November 2010, however, it did not proceed on that date, due to a lack of readiness. Following subsequent case management orders, the assessment hearing ultimately took place on 19 January 2011. Mr Osuamadi did not appear at the hearing. Nevertheless, I am satisfied that the hearing date fixture had been appropriately drawn to the attention of Mr Osuamadi : Exhibit "A". Overview of the evidence