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 11. Mr Okoroafor relied on his affidavit sworn on 10 November 2010. In addition, Mr Okoroafor gave oral evidence of the effect the content of the publications had upon him. Mr Okoroafor also gave evidence of the cultural significance to members of the Igbo-Nigerian community in respect of some of the remarks in contention that were published by Mr Osuamadi in the form of Appendix I and Appendix II, and which concerned him. Credit 12. After making due allowance for the fact the hearing of these proceedings was ex parte Mr Osuamadi, and therefore the evidence of Mr Okoroafor was not challenged by adversarial cross-examination, Mr Okoroafor nevertheless impressed me as being a sincere and truthful witness, whom I should accept on the matters which he described in his evidence, notably the effect that the publication complained of has had upon him, and upon his standing in his community. Findings 13. I am satisfied that in the mind of a reasonable person, the subject emails sent to the identified recipients by Mr Osuamadi, and which are reproduced as Appendix I and Appendix II, have defamed and injured the reputation of Mr Okoroafor by wrongfully bringing him into ridicule and contempt. In my view, each of the imputations claimed by Mr Okoroafor have injuriously arisen as claimed by him. 14. In the wider general community, for the past 20 years Mr Okoroafor has been in a responsible position of employment as a machinist and production planner with the same employer, a large international company. In the Igbo Nigerian community in Australia, he has been a respected office bearer and treasurer of his closely knit socio-ethnic association, which has about 150 members. 15. I find that in context, when Mr Okoroafor realised the offending emails received the distribution they did amongst the identified recipients as claimed, he became naturally upset and suffered injury to his reputation. 16. Mr Okoroafor was falsely accused of being a thief. He was also falsely accused of being deceitful, and having engaged in fraud. It was falsely alleged that he had intimidated the community of the Igbo people in Australia, known as the Nzuko Umunna Association, to which both parties had connections, and it was falsely alleged that he had been secretive and deceitful in respect of his dealings as treasurer of that association. 17. I am satisfied that the publication in question has given rise to injurious imputations that were defamatory of Mr Okoroafor as he has claimed, including with regard to the insulting assertion that his forefathers were of inferior stock, that Mr Okoroafor was guilty of corruption, that he had not conducted himself in a manner befitting of a public officer of an association, that he had wrongly withheld assets of the association, and the suggestion that he may seek to skip the country in order to escape the consequences of his alleged dishonest acts. 18. I accept the evidence of Mr Okoroafor and find that all of the factual matters raised by the identified imputations are baseless. 19. I accept the evidence of Mr Okoroafor that the imputations concerning his lineage and blood ancestry were particularly hurtful and insulting to him and to his reputation in his community. I accept that when he was contacted by members of his community who expressed outrage that Mr Osuamadi could have said such things about him and his ancestry, he was understandably hurt and upset. I also accept that Mr Okoroafor felt his reputation had been severely discredited and tarnished in his community and in the eyes of the Nigerian community overseas. I also accept that he found the allegations made against him to be extremely embarrassing and humiliating. 20. I find that these matters were particularly distressing and vexing to Mr Okoroafor, who as a consequence, felt obliged to lose time and income from work on account of the need to defend his reputation by attending some 16 court appearances during the interlocutory and related mentions of these proceedings, before they were finally listed for trial. 21. I find that Mr Okoroafor has suffered serious injury to his reputation in his small but significant community and has as a result, suffered hurt to his feelings as a consequence of the claimed but baseless imputations which arose from the publications in question. I also find that Mr Okoroafor has suffered a degree of social isolation, depression and loss of appetite as he has claimed. I accept his description that these events made him feel miserable. 22. I find that the email publications complained of were distributed by Mr Osuamadi in an attempt by him to influentially use his proclaimed title of Igbo Chief and crowned royalty in order to seek to influence the recipients of the email to think poorly of Mr Okoroafor. I find that such actions were calculated at seeking to set Mr Okoroafor aside as an outsider from his community and his society. In this regard I am satisfied that Mr Osuamadi acted maliciously and in contumelious disregard of Mr Okoroafor's rights, thus establishing Mr Okoroafor's entitlement to an award for aggravated damages in addition to his entitlement to compensatory damages. 23. I find that Mr Okoroafor is entitled to aggravated damages because Mr Osuamadi's offending emails were egregiously high-handed, humiliating, outrageous and went well beyond ordinary human fallibility : State of NSW v Riley [2003] NSWCA 208; (2003) 57 NSWLR 496, per Hodgson JA at [131]. Assessment of damages 24. I assess Mr Okoroafor's entitlement to economic damages for loss of time from work in the sum of $4000, being the claimed loss of income of $250 per day net in respect of 16 days of absence from his work. 25. I assess Mr Okoroafor's entitlement to compensatory damages for defamation in the middle range sum of $30,000. 26. I assess Mr Okoroafor's entitlement to aggravated damages in the sum of $15,000. In making that assessment I have selected this amount as an upper-middle range sum to balance the need to avoid the potential for overlap or double counting with the award for compensatory damages, whilst at the same time avoiding the risk of under-compensating the plaintiff : State of NSW v Riley, per Hodgson JA at [131]. Disposition 27. Having found that Mr Okoroafor is entitled to compensatory damages of $34,000 and aggravated damages of $15,000, as a consequence, unless special circumstances can be shown to have arisen, he is also entitled to have his costs of the cross claim paid by the cross defendant, Mr Osuamadi. Orders 28. I make the following orders: (a) Verdict and judgment for the cross claimant Mr Okoroafor against the cross defendant Mr Osuamadi in the sum of $49,000; (b) The cross defendant, Mr Osuamadi is to pay the cross claimant, Mr Okoroafor's costs on the ordinary basis, unless otherwise ordered; (c) The exhibits may be returned; (d) Liberty to apply on 7 days notice if further orders are required. Appendix I Email from Mr Osuamadi to Igbo Membership Subject: TRUE SPIRIT OF RECONCILIATION FOR NDIGBO NSW Date: Thu, 5 Mar 2009 12:36:15 +1100 Ndigbo NSW, This community has suffered very serious setbacks as peace still remains a mirage. As we look forward to the successful formation of IMPARTIAL AND NEUTRAL CARETAKER COMMITTEE in the near future hopefully, we should not lose focus of very cohesive terms of reference that will forestall all the errors of the past administrations. The Caretaker Members should aim at finding out without any prejudice the truth of what transpired between the Executive Members and especially the activities of the four principal key holders of the administration namely; Chairman, the Secretary, the financial Secretary and the Treasurer. Ndigbo want nothing short of the truth before we can move forward in love, care and unity. All members of the community should work together to usher in a peaceful era.We all should also be very mindful of the crafty mechanisations of these ex-officers who forment unnecessary confusion amongst the ignorant majority members of the community to cover-up their mischief and vigorously investigate if there is any looting of community's treasury, as alleged by some members, which I am not favouring currently. These ex-officio still have everything the innocent members of this community have managed to piece and save together in their care all these years, hoping to devour and share them among themselves. Anarchy and pandemonium favours them to the detriment of all of us. We shall not allow this to happen. If we have a flashback of the damages the Igbo community in NSW have been inflicted, no well-meaning Igbo person shall fold his/her arms and allow the current statelessness and unaccountability to continue. Look at the tireless efforts of our hardworking members in introducing our cultural ODINALA AND ODENIGBO Cultural dances. These young men who selflessly organised and contributed their hard earned money to buy the equipment and costume from faraway africa, spared their time to train and practise the dance and have improved tremendously to near perfection, are now in disarray as the community is in shambles and peace eludes. Look at the massive gains of bringing our cultural displays and dispositions to our kids in Australia. Just cast a glance at the display of our emptiness to neighbouring Nigerian communities and friends who used to hold us in very high esteem. Imagine the number of years we have wasted in motionless moves, yet we flourish at inertia and retrogression. Time is not on my side to keep going on and on in our enumerating our flaws. we need to put forward ideas that will help gather our house and ass together. The new caretaker committee Members will have enormous responsibilities awaiting them. The comittee members would be drawn from across the entire Nzuko Umunna membership. The committee members must be registered members of the Association but must not necessarily be financially up-to-date. Any member whose name was published as a contestant in any of the positions in November 2008 MUST NOT be part of the NEW Caretaker Committee Member, but such member would be encouraged to contest for an election once the committee has put all the formalities / policies in place. They are bound to establish a trusting relationship and confidence in the Association. They should be sensitive and sensible to the yearnings and aspirations of the entire members of the union. They should make sure that we the members actually know the crux of the matter before all of us now. The community wants free, fair and equitable management of the activities of the dissolved former Executive and inform the General Assembly in clear terms without minding whose ox is gored, as far as it is in the interest of our community.The committee members should make sure that there is mutual respect for both old and young members. And that all members will be treated fairly and with respect. They should ensure that the equipment , assets and liabilities of the Association are surrendered to them and subsequently these are made known to the entire Assembly. These will bring back the lost confidence members had in the dissolved Executive. Above all, the committee will clarify to office holders that they are only custodians of the community assets and equipment and not the primary stakeholders. Officers of the Association should be transparent in the way they handle and manage financial matters of the Association. The caretaker committee should ensure there are checks and balances.We should have the Executive Members running the internal and external affairs of the association as stipulated by the constitution. Other Arms to check compliance are in my opnion; "The Pioneer Founding Fathers of Nzuko Umunna", and "The Igbo community Press", who would publish from time to time events and progress of the activities of various sections of the community. They can interview members and elected officers and make publications in the community website. They will organise NDIGBO NSW community Newspaper just like the Chinese when the community is matured enough to operate that. They will visit projects run by the office holders from time to time.They will evaluate and publish honest Improvements and pitfalls in projects and events of the community, like Communty Barbeques events, parties and funtions. They will hold press conferences and interview with various members of the community as the case may be, especially the office holders. Their activities too should be communicated to the Pioneer Founding Fathers and they should not always be arbitrary. We need truth and transparency to be the bedrock of the "new" Nzuko Umunna Association when policies are all in place. Ndigbo in NSW should not be subjected to further intimidation in the community in addition to what we already suffer in the wider Australian community. The time to fix all mistakes is with a neutral Craetaker Committee and the New Executive once the committee have put all the mechanism in motion. Once everything is fixed and there is law, order and mutual respect in the community, then we can talk about a GENERAL election. We want our officers to be accountable in their duties. We need to establish our community Hall in this country. There is need for stocktaking and rapproachment. Housekeeping at this stage is fundamentally crucial. My observations of whatever happened in the community recently is a mini but vital revolution for change. Finally, I would appreciate Mrs Robyn Obeya to deposit all the money belonging to the Association to the recognised Nzuko Umunna Commonwealth Bank account, with all the interests before the next scheduled meeting on 15th March 2009. There is no negotiation, nor application for a certified copy from a Justice of Peace as suggested previously. NDIGBO ga-adi. May God bless us all, Ndigbo NSW, Nigerian in Diaspora & The Commonwealth of Australia, Amen !!!!!. Kind Regards! Chief Max Osuamadi Appendix II Email from Mr Osuamadi to Mr Okoroafor Sent: Tuesday, March 10, 2009 12:34 PM Subject: Re: Re. email add Dear Bart Okoroafor, This e-mail is to advise you that I have acknowledged the receipt of your reply e-mail which I wrote to members of Nzuko Umunna Association of NSW (aka Igbo Association) and the Ndigbo community in NSW. Your e-mail was a bit insulting, however, as a crowned and titled Chief in Igboland, I would not react to the traditional sacrilege from you. If your father, grand father, great grand father and your lineage had a blue blood in them, maybe, you would observe the required respect to a Chief. Barthlomew, as far as I could recall, the only time I have been to your house was when you and Otugeme Orie of the blessed memory held a joint meeting for the Igbo Association in your home. I have never sent you a private e-mail ever, except this Igbo community related one. You have been the Treasurer of the Igbo Association NSW for four years and your wife has been a Public officer of the Women Wing of the same Association. As long as you, your wife and any other person who has held positions in our Association have not accounted for your stewardship prior to the dissolution of that corrupt Executive, you all would continue to receive e-mails and correspondence from, we, the members of the Igbo Association. I also need to assure you that once a Caretaker Committee is successfully set up by the 15th March 2009, they would be given enormous powers to recover all our assets from you, ranging from the babeque equipment, the various drinks members have been donating to the Association which have been in your custody, to the Association money, which you are a signatory to, as a Treasurer. Members of Nzuko Umunna (aka Igbo Association NSW) have noticed your foolish tactics lately, of making applications for AVO. Your recent interim application would be shredded in Court once it comes up for hearing. You should know that anyone who decides to be a public officer would have to behave like one, and whereby you chose to ignore the people who put you there, then it becomes a different matter. You could not justify intimidation to your family when an issue happened in an Igbo Assembly. I would leave that to the Court to decide when the issue comes up for mention. Finally, Barthlomew, I would strongly urge you to seek an independent legal advise in relation to e-mail transmissions to you, from our members. If such e-mail is of personal nature, then you could oppose it, but as long as it is to do with our Association, and you are still holding our Assets and Liabilities, you could run but not hide. You, your wife and any other public officer of Igbo Association of NSW would continue to receive any e-mail to our members, until you have been cleared by the general Assembly. I have always informed our members not to panick because all the key signatories to our account are all Nigerian Australian citizens, so that even if you chose to skip the country, we would extradite you guys. Mr Barthlomew Okoroafor, I hereby promise you that, I, Chief Max Osuamadi, a Crowned / Titled Chief in Igboland, Nigeria and a Founding Father of Igbo Association NSW, I would never send you a personal e-mail, rather an Igbo community e-mail about moving our community forward and it must be about Nzuko Umunna Association, also known as Igbo Association of NSW (as registered by the NSW Fair Trade Department. Kind Regards! Chief Maximus Osuamadi Appendix III Email from Mr Okoroafor to Mr Osuamadi Sent: Wednesday, March 11, 2009 4:55 PM Subject: YOU MUST STOP 11/3/09 Dear Mr Maxwell Osuamadi, I refer to your e-mail of the 10th March 2009 which you abuse my wife and myself. I will not abuse your wife because I have regard for women. I am writing you for the last time that (1), you must stop sending your email to me or any member of my family. If you refuse to stop, Max, I promise you, someone will stop you. I am warning you for the last time. If you don't believe me, try it again. (2), Your mail shows your low level of mentality. As someone who bought his so call Chieftaincy title by default/deceit, I expect you to know that my wife is not a Public Officer of Umunna. For your record, my wife is not a member of the current Umunna executive. She handed over to the current as Secretary. (3) You have no right to abuse my father/grandfather. Max, onething you should know is that I was born by my father and I am proud of that. My father was not enslaved by anyone, go to my village and mention my father's name. He was not rich but he has a name. (3), On my AVO to some members of our community, I am not going to comment on that, as it is left for the court of the land to decide. I am not going to be foolish like you on this issue. Let me take you back to the phone call from you to my house on the 27th of January at 7am (twice) regarding this AVO issue. Did I tell you about it before? NO!. You called me and said, I quote: "IF I WERE YOU I WILL DO THE SAMETHING OR EVEN GO FURTHER TO PROTECT MY FAMILY". Unquote. Max, that was from you. In my village, Chiefs don't lie because, the Hat and Staff symbolises truth. But those backyard and self imposed Chiefs of these days who turn their back when they see the truth will one day account for their Stewardship to GOD. (4) On the Property and Assets of Umunna, I have no comment on that as Mr Max, you are not the right person to ask for them. When the time comes, I will deal with it with due respect and without fear. "A clear conscience fears no accusation" Finally, I am reminding you again, not to email me/family. If you refuse to do so, I will be lodging a serious complain to your Service Provider with all the evidence. If they didn't act, then the Law of the Land will take its stand. I have no problem receiving emails from Umunna Secretariat (if any), but not email regarding Umunna from Max or even your personal email. I DON'T WANT. You can start your campaign or propaganda but I can assure you that my God is by my side and I fear no man including you Maxwell Osuamadi. This is my last mail to you and those who care to read your junk. Bart Okoroafor DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 January 2011