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. The pleadings 11The first matter complained of was published on 19 May 2008 on a chat forum or blog on www.unenergy.org having been posted by the second defendant on his own behalf and on behalf of the first defendant. (This was the position in respect of all the matters complained of.) 12The "unenergy.org" website provides information about various types of solar systems and alternative energy sources. It also provides a section where people can post comments. The first matter complained of continued to be published daily until July 2011. 13I am satisfied that the comments published on www.unenergy.or g by the defendants carry the following defamatory imputations: (a) the plaintiff is a stalker; (b) the plaintiff is not credible; (c) the plaintiff is a serial liar; (d) the plaintiff has no morals; and (e) the plaintiff is not ethical. 14The second matter complained of was published on 13 March 2009 on www.google.com on a chat forum or blog which was dedicated to or connected with the defendants' products. The comments continued to be published on that website until at least a few days before the assessment hearing when the most recent search was undertaken by the plaintiff. This was also the case in respect of the third, fifth and sixth matters complained of. The fourth matter complained of was not pressed. 15I am satisfied that the comments published on www.google.com by the defendants carry the following defamatory imputations: (a) the plaintiff has caused loss to the first defendant and associated entities; (b) the plaintiff had committed criminal offences; (c) the plaintiff had committed criminal offences serious enough to render him subject to imprisonment; and (d) the plaintiff made unfounded comments which have led to financial damage. 16The third matter complained of was published on 31 January 2009 on a chat forum or blog on www.yahoo .com. It was identical to the material published on the Google website two months later, being the second matter complained of. 17The fifth matter complained of was published on 6 February 2010 on a chat forum or blog on www.yahoo .com. 18I am satisfied that the comments published on www.yahoo .com in both January 2009 and February 2010 by the defendants carry the following defamatory imputations: (a) the plaintiff had committed fraud; (b) the plaintiff had lied; and (c) the plaintiff made comments designed to cause loss to the businesses associated with the first defendant and SunCube. 19The sixth matter complained of was published on 5 February 2010 on a chat forum or blog on www.yahoo .com. It was similar in import to the second matter complained of in that it carried the defamatory imputation that the plaintiff had a willful and sustained intention to cause financial loss to many parties, including the defendants. Damages 20The plaintiff did not tender his criticisms of the defendants published on any of the Internet sites where the defamatory comments about him were published, or any dialogue in which he may have engaged with the defendants or others from time to time concerning those criticisms. He did give evidence however that he was involved, on almost a daily basis, in online discussions concerning the SunCube and the defendants and that he read each of the matters complained of on a regular basis whenever he undertook an Internet search either of "SunCube" or his own name. As I understand his evidence, it was in part at least because of the ongoing dialogue in which he was actively participating that he had occasion to read each of the matters complained of at least twice each month since July 2009. 21He gave no evidence of making any request of the defendants to desist from making defamatory comments about him or any request that they remove the material or that the Internet site providers remove it. While this does not diminish his damages claim (and in one sense may add to them since it cannot be said that duration of the defamation is limited in time) it was still necessary for the plaintiff to establish that his reputation will continue to be damaged by the ongoing publication of the material if the damages awarded is to account for that fact. 22In addition, while the plaintiff's conduct in criticising the defendants seems to have been the catalyst for the publication of the defendants' defamatory comments, this does not derogate from his claim for compensatory damages for harm to his reputation, hurt to his feelings and for vindication of his reputation. Even were there evidence that he actively incited the ongoing defamatory dialogue he would still have a claim to an award of damages greater than nominal damages assuming there is evidence establishing some damage to his reputation, either directly or by inference, and evidence of his hurt to feelings which might be consoled by an award. 23There was no evidence as to the number of readers or likely visitors to any of the nominated website destinations by reference, for example, to electronic data registering traffic to or through any of the websites where the defamations were published. I am invited to regard the readership as being at large (potentially worldwide) with four of the five matters complained of published on the Google and Yahoo websites from the various dates of publication in 2009 and 2010 up to and including 15 August 2011. While both search engines are notorious for their reach and ubiquity, that does not compel a finding that the particular websites where the defamatory comments are published are visited with any regularity by a wide range of Internet users or are likely to be. The fact that the plaintiff was directed to those sites by typing in his own name and that of SunCube does not establish the fact that others would have had in the past, or might have in the future, any reason to do so. (Since my judgment will be published on the Internet, were someone to undertake an Internet search of the kind the plaintiff has undertaken, my judgment will also be able to be downloaded by any interested reader.) Furthermore, there is no evidence that the defendants' solar products remain available for sale or that the company continues to trade in any capacity on the Internet or at an ordinary retail level such as may provide a basis for inferring consumer interest in their products. 24The plaintiff said in his statement that he was aware of at least 20 people who regularly posted comments as bloggers under nominated pseudonyms on the websites upon which the matters complained of were posted (the last being posted in February last year after a gap of over twelve months), and a further 20 people who posted comments on an infrequent basis on those websites during that time. I am not informed as to a more precise time frame within which that interest was focused and/or the subject matter of the dialogue between those bloggers. While the fact that there is evidence from the plaintiff that 40 people participated in the online forums from time to time, there is nothing in the materials tendered that would enable me to draw any reliable conclusions as to the number of people who may have read what was said about the plaintiff or to have regarded the plaintiff's reputation diminished by what they had read, as distinct, perhaps, from their contributions to the online forum being in defence of his position or in solidarity with it, (supporting an available inference that they positively reject the defendants' comments as unfounded and untrue) or perhaps indifferent to it altogether. 25A further difficulty the plaintiff faces is that there is no evidence that he is known by, or had an established reputation of any kind with any of the 40 anonymous bloggers, or for that matter whether they are separate individuals or one or more people using different pseudonyms. On the other hand, I accept that for assessment purposes damage to reputation is presumed once publication of a defamatory comment is established even if only nominal damages are ultimately awarded. I accept that the quantum of the award in this case is designed to mark the fact that the defamatory comments are baseless and to enable the plaintiff to point to the award as a measure of that fact. 26Mr Hyde and Mr Knight said that they downloaded and read each of the matters complained of at the date of publication or soon thereafter. While they each gave evidence that they were surprised and shocked by what was written about the plaintiff, they did not suggest that what they read diminished the plaintiff in their estimation or in any way damaged their view of him or his reputation. To the contrary. They regarded the plaintiff's comments about the defendants as reasonable and sensible and an honest airing of a genuinely held view about the solar products the defendants were promoting, in contrast to the defendants' reaction which they each regarded as being motivated by malice. Their evidence does not assist me in assessing plaintiff's claim for compensatory damages to any significant extent or his claim for aggravated damages. 27In his statement, the plaintiff says that he was sickened, shocked and horrified by reading the comments published about him and angered by being branded as a criminal and a liar. He asserts that he has always conducted himself and his past businesses with honesty and integrity and has never experienced exposure to offensive comments such as those comprised in the matters complained of. In particular, he says he has experienced distress in knowing that the defamatory commentary is available to be seen by anyone who has occasion to type his name into any Internet search engine. There is, as I have observed, no evidence as to the likelihood of this occurring in the future. There is no evidence to enable me to be satisfied as to whether Mr Hyde and Mr Knight chanced upon the websites or were directed to them by the plaintiff. The plaintiff's evidence does however entitle him to an award of compensatory damages. The plaintiff says he is also angered by the fact that the defendants have prolonged the proceedings at considerable cost to him and have not apologised to him, reflecting their intention to inflict ongoing harm. This will also be taken into account in my assessment of aggravated damages. 28Mrs Leech describes her husband's agitation and upset upon reading the first matter complained of in May 2008 - a reaction, which she claims persisted throughout 2008 and 2009. (She does not give any more precise evidence beyond that general time frame. No claim can be made for damages prior to 19 July 2009.) She does say that since that time she has noticed changes in ther husband's personality. He has become impatient and intolerant and has withdrawn from socialising with family and friends. The plaintiff gave evidence of being treated for depression. It is not clear whether his changed behaviour is a reflection of his medical condition. If it is, there is no medical evidence that would enable me to find a causal connection between the defamations and either the onset of his medical condition or its current symptomatology, although I accept the publication of the matters complained of may have been an environmental factor contributing to his change in behaviour. Mrs Leech says her efforts to discuss the matter with her husband have been met with his repeated statements of disbelief that the defamatory commentary was posted at all, coupled with his frustration at the defendants' conduct of the litigation by briefing counsel and taking a series of interlocutory steps between August 2010 and May 2011 before ultimately withdrawing from the litigation by failing to file a defence. 29In the result, and doing the best I can on the available evidence, qualified by the concerns I have identified as to the adequacy of the evidence in this case to meet each of the principled purposes for awarding damages in defamation (see Rogers v Nationwide News Pty Ltd [2003] HCA 52; 216 CLR 327) and also having regard to s 34 of the Defamation Act 2005, I assess the plaintiff's compensatory damages at $25,000 and his claim for aggravated damages at $5,000. I was unable to gain any particular assistance from the authorities to which I was referred for comparative purposes. 30Accordingly, the orders I make are as follows: 1. The defendants to pay the plaintiff's damages in the amount of $30,000. 2. The defendants to pay the plaintiffs costs. ********** 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: 06 September 2011