Leech v Green & Gold Energy Pty Ltd and Anor [2011] NSWSC 999

Supreme Court New South Wales

Medium Neutral Citation: Leech v Green & Gold Energy Pty Ltd and Anor [2011] NSWSC 999 Hearing dates: 17/08/2011 Decision date: 31 August 2011 Jurisdiction: Common Law Before: Fullerton J Decision: 1. The defendants to pay the plaintiff's damages in the amount of $30,000. 2. The defendants to pay the plaintiffs costs. Catchwords: DEFAMATION - assessment of damages following default judgment - matters complained of published on Internet Legislation Cited: Defamation Act 2005 Limitation Act 1969 Cases Cited: Rogers v Nationwide News Pty Ltd [2003] HCA 52; 216 CLR 327 Category: Principal judgment Parties: Keith Leech (Plaintiff) Green & Gold Energy Pty Ltd (1st Defendant) Gregory Oran Watson (2nd Defendant) Representation: B Goldsmith (Solicitor) (Plaintiff) No appearance for defendants Goldsmiths Lawyers (Plaintiff) No appearance for defendants File Number(s): 2010/239633

Judgment 1HER HONOUR : By statement of claim dated 19 July 2010 the plaintiff claims damages in defamation, including aggravated damages, arising out of the publication by the defendants of defamatory commentary concerning him on three different Internet websites. 2The first matter complained of was published in May 2008 and the last matter complained of in 5 February 2010. 3Each of the websites was concerned generally with solar energy including the availability of solar energy services or products of various kinds. 4In 2007 the plaintiff was interested in acquiring the SunCube or the SunBall, the particular solar devices that were being promoted for sale by the defendants (and for distribution, assembly and manufacture under licence by them) to supplement a small solar system installed on his country property. He was also interested in seeking employment with the defendant company. Between 2002 and 2006 the plaintiff owned a business which sold solar hot water systems and associated solar energy equipment. He has not worked since that time. 5In about June 2007, upon a closer examination of the devices being promoted by the defendants and their industry practices, the plaintiff expressed his concerns about the legitimacy of the defendants' business on a blog on the defendants' website. He said he did this with a view to researching the views of others as to the suitability of the SunCube and sharing his own views. The defendants' reaction to the plaintiff's criticisms, and the online dialogue that it generated, comprise the matters complained of. 6On 9 May 2011 McCallum J entered judgment for the plaintiff after the defendants failed to file a defence in accordance with orders made by Nicholas J on 4 April 2011. 7On 17 August 2011 the proceedings were listed before me for an assessment of damages. There was no appearance for either of the defendants. Accordingly, the proceedings were conducted ex parte. 8At the commencement of the hearing the plaintiff's solicitor limited the claim for damages to five of the six matters complained of in the statement of claim. He also acknowledged that the claim is limited to damage suffered by the plaintiff from 19 July 2009, having regard to the operation of s 14B of the Limitation Act 1969 , that date being 12 months prior to the commencement of proceedings. 9The plaintiff contends that he has been brought into hatred, ridicule and contempt by reason of the publication of the matters complained of and that he continues to suffer loss and damage to his reputation and injury to his feelings, entitling him to an award of compensatory damages. The claim for aggravated damages is based upon the defendants' beliefs that the allegations were false; that they were published with malice and for an improper purpose, namely to punish, embarrass and humiliate the plaintiff because he had been critical of the defendants' business practices. 10The evidence tendered in the proceedings consisted of witness statements from the plaintiff and the plaintiff's wife, a statement from Larry Knight, a member of a cooperative on the north coast of New South Wales where both the plaintiff and his wife reside and a statement from Sean Hyde, a person who shares an interest in solar energy products and services with the plaintiff.