Mickle v Farley [2013] NSWDC 295

District Court New South Wales

Medium Neutral Citation: Mickle v Farley [2013] NSWDC 295 Hearing dates: 29/11/2013 Decision date: 29 November 2013 Jurisdiction: Civil Before: Elkaim SC DCJ Decision: Verdict for the plaintiff for $105,000 with costs. Catchwords: Assessment of damages, defamation via Twitter and Facebook. Category: Principal judgment Parties: Christine Mickle (Plaintiff) Andrew Farley (Defendant) Representation: A T S Dawson (Plaintiff) No appearance (Defendant) Kennedys (Australasia) Pty Ltd (Plaintiff) No appearance (Defendant) File Number(s): 2013/00174366 Publication restriction: No

ex tempore Judgment 1HIS HONOUR: The plaintiff commenced this action in defamation by a Statement of Claim filed on 6 June 2013. A Defence was filed and later an Amended Defence. 2The Amended Defence was struck out by her Honour, Judge Olsson, on 18 October this year. In addition her Honour entered judgment for the plaintiff and set the matter down for the assessment of damages today. 3In considering the assessment of damages I have heard from two witnesses and also read a number of affidavits. One of the affidavits is effectively an expert's report. The other affidavits go to the plaintiff's reputation and the hurt that has been caused by the defamatory comments. 4The defendant is a young man, now apparently aged 20, and was at the time of the publications one year out of high school. He had completed the Higher School Certificate in 2011 at Orange High School. In addition to him attending that high school his father was a teacher there and occupied the position of head teacher from about the year 2000 in the music and arts department. The defendant's father was described as a gentle man who had a number of health issues. 5The plaintiff was also a teacher at the school and was concerned mostly with music. She is now 58 years of age. She is married and has three children. By the time the events in this case occurred she had given many years of devotion to students and to teaching generally. She had established a widespread reputation not only in Orange but through a wide country area regarding her capacity as a teacher, her concern for her students and her devotion to the pursuit of excellence in teaching. This excellence was well known to the then principal of the school (Mrs Angus) who gave oral evidence before me and had been aware of the plaintiff's reputation before she joined the school as principal. 6In November 2012 Mrs Angus was retiring. Such was the esteem in which the plaintiff was held that students approached Mrs Angus and asked if part of her retirement function could be devoted to the re-naming of the music centre as the "Mrs Mickle Music Centre" in honour of the plaintiff and her history and devotion to her students and classes. 7I will return briefly to the defendant and in particular his father. His father left the school in 2008 in order to attend to personal issues. As a result of him leaving, the plaintiff, perhaps to some degree reluctantly, took over his position on an acting basis. For some reason it seems that the defendant bears a grudge against the plaintiff apparently based on a belief that she had something to do with his father leaving the school. There is absolutely no evidence to substantiate that belief. 8However, acting on that belief, on 15 November 2012 through the social mediums of Twitter and Facebook, a number of defamatory comments were posted about the plaintiff. Those comments are the subject of the plaintiff's action and are set out in the Statement of Claim and also in Exhibits G, H and K. 9They were brought to the attention of the plaintiff some days later by the principal who felt it appropriate to tell the plaintiff about them, no doubt out of a sense of concern for her and in the knowledge that the spreading of untruthful matters on social media could be very damaging. I note for example that the principal said that she devoted time each week to dealing with Facebook issues that arose in relation to students. It is well known that students can use Facebook for bullying. 10The defendant was not a student when the publications were made and he cannot rely on any suggestion that he was acting as a pupil who might be viewed as one of a group of students unhappy with a teacher's performance. The defendant in fact had never been taught by the plaintiff and he had left school a year before. 11The effect of the publication on the plaintiff was devastating. This was not only her evidence but, as I have said before, there is also affidavit material to that effect and there is the evidence of Mrs Angus. My impression of the plaintiff in the witness box was one of a very honest woman who had been terribly hurt both by the comments in general but perhaps more particularly by the suggestion that she may have been responsible for any harm, ill health or effect of any of her actions on the defendant's father. As I have said, these allegations have no substance whatsoever. 12On 24 November 2012 there were further Twitter publications. These are described in paragraph 5 of the Statement of Claim. The plaintiff has said, and I accept, that all of the imputations that are set out in the Statement of Claim are untrue. The devastation felt by the plaintiff is evidenced by the fact that she immediately left on sick leave and is only now returning on a limited basis to work. But for the publications, her evidence was that she would have continued in the manner that she was teaching in 2012 until she reached the age of 65 which is in about seven years time. 13The plaintiff is obviously entitled to an award of compensatory damages flowing from the established defamatory publications. I have had the benefit of concise submissions on damages from learned counsel for the plaintiff who has set out a number of the principles that I will apply. As he has submitted to me, the general damage to reputation is presumed to be the natural and probable consequence of a defamatory publication. The compensation is intended to vindicate the person's reputation in the eyes of the general community and compensate the person for the distress and insult felt. There must be a consolation for the personal distress and hurt caused to the plaintiff by the publication as well as an attempt through an award of monetary compensation to achieve as far as possible a reparation and vindication of the plaintiff's reputation. 14An award of damages must not be excessive but must signal to the public that the vindication of the plaintiff's reputation has been attempted so that the public will know that the lies published by the defendant have no truth whatsoever. 15I have been referred to a number of cases and reminded that the maximum that may be awarded under the legislation is $355,500. Mr Dawson's written submissions did not state a specific figure, perhaps because of his deference to the sometimes held view of courts that it is not appropriate for counsel to suggest specific figures. I do not take that view and so invited Mr Dawson to make a submission of a specific figure. His response was $100,000 in respect of compensatory damages. 16Having regard to the principles that I have set out above I think that figure is a little high but I do not think it is very far from the appropriate figure. In my view the award of compensatory damages should be $85,000. 17There is also a claim for aggravated damages. The entitlement to aggravated damages arises in this case I think because of the conduct of the defendant in the response to the claim. Exhibits J and M contain the relevant correspondence. The plaintiff's solicitors wrote to the defendant at the end of November 2012. He did not reply. They wrote again on 12 December. He replied about a week later on 20 December. His letter is Exhibit J. In this letter he says: "All comments referred to by you have been removed from my social media pages." 18He carries on a little later: "I apologise unreservedly to Mrs Mickle for any hurt or upset caused to her by statements made on my social media page." 19At first sight there is the appearance of an unequivocal apology and withdrawal of the publications. Unfortunately the apparent sincerity of that letter was contradicted by events that later occurred. The most obvious of these events is that in the Defence initially filed to the proceedings a defence of truth was put forward. The defence of truth when it is spurious is particularly hurtful to a person who has been the subject of such unsubstantiated allegations. That defence soon fell away and an Amended Defence asserting qualified privilege was filed. That defence also had no substance and was ultimately struck out. The defendant then seems to have abandoned his interest in the proceedings and has not appeared. I note that I am satisfied that he is aware of the orders made by Judge Olsson and of today's hearing - I refer to Exhibit A. 20Having regard then to the matters that I have just outlined, and which in my view justify an award of aggravated damages, I am of the opinion that that award should be in the sum of $20,000. 21There is one matter that I omitted in relation to the compensatory damages and that is to stress that when defamatory publications are made on social media it is common knowledge that they spread. They are spread easily by the simple manipulation of mobile phones and computers. Their evil lies in the grapevine effect that stems from the use of this type of communication. I have taken that into account in the assessment of damages that I previously made. 22The orders I make therefore are: (1)There will be judgment for the plaintiff in the sum of $105,000. (2)The defendant is to pay the plaintiff's costs of the proceedings. (3)The exhibits may be returned.