French v Fraser (No 3) [2015] NSWSC 1807

Supreme Court New South Wales

Medium Neutral Citation: French v Fraser (No 3) [2015] NSWSC 1807 Hearing dates: 14 October 2015 Date of orders: 04 December 2015 Decision date: 04 December 2015 Jurisdiction: Common Law Before: McCallum J Decision: Verdict in favour of plaintiff for damages, including aggravated damages, in the sum of $300,000. Catchwords: DEFAMATION – damages – where no defence maintained – where defendant harassed plaintiff over two year period Legislation Cited: Defamation Act 2005 (NSW), ss 34; 35 Cases Cited: Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 Cassell & Co Ltd v Broome [1972] AC 1027 Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; 278 ALR 232 Crampton v Nugawela (1996) 41 NSWLR 176 Moit v Bristow [2005] NSWCA 322 Rogers v Nationwide News Pty Ltd [2003] HCA 52; 216 CLR 327 Triggell v Pheeney (1951) 82 CLR 497 Category: Principal judgment Parties: Brendan French (plaintiff) Michael Fraser (defendant) Representation: Counsel: P Gray SC with M Richardson (plaintiff) No appearance for the defendant

Solicitors: Clayton Utz (plaintiff) Levitt Robinson (defendant) File Number(s): 2014/181578 Publication restriction: None

Judgment 1. HER HONOUR: This case provides a distressing illustration of the devastating harm that can be caused by the mischievous use of the internet as a medium for defamatory publications. 2. Dr Brendon French is an intelligent and well-educated man. He has extensive expertise in alternative dispute resolution. Until the events giving rise to these proceedings, he enjoyed an outstanding reputation for honesty and integrity, each an important quality in his chosen field. 3. In 2007, the hapless Dr French became "Head of Customer Relations" in the retail division of the Commonwealth Bank of Australia. From late 2012, his occupation of that role (and nothing else) made him the unsuspecting target of Mr Michael Fraser. Styling himself "The Arbitrator", Mr Fraser claims the vocation of "keeping big business honest". Under that pious mantle and purportedly in wreak of unspecified wrongs done by the bank to unnamed customers, Mr Fraser has subjected Dr French to a hellish two years of bullying and harassment. Publicly, he has mounted a wide-reaching and wholly unfounded attack on Dr French's reputation. In a disturbingly more sinister private campaign, Mr Fraser has bombarded Dr French with hundreds of emails, texts and voice messages, many containing thinly-veiled threats evidently motivated by homophobia and other senseless vitriol. 4. To make matters worse, Mr Fraser has used these proceedings as a forum for repeating and aggravating the defamation. He initially pleaded a defence of truth to some of the defamatory imputations specified by Dr French. The defence was scandalous. It specified no facts, matters or circumstances remotely capable of proving the truth of the imputations. It is difficult to understand how his solicitor could have seen fit to certify the pleading. The defence was abandoned (with no explanation) shortly before the hearing, at which point Mr Fraser consented to the entry of judgment against him including mandatory "take-down" injunctions, injunctions against future publication, damages in an amount to be assessed and costs. It ought to be noted that a breach of those injunctions would amount to contempt of court, potentially punishable by imprisonment. To be clear, what that means is that Mr Fraser now admits defaming Dr French without justification and accepts that he must not do so again. All that remains is to quantify the damages. 5. Adding insult to injury, Mr Fraser's solicitor, Mr Stewart Levitt, has made statements to a journalist about these proceedings (presumably in accordance with Mr Fraser's instructions), resulting in further bad press for Dr French. Mr Levitt described the action as a "David and Goliath" battle against his client. He was quoted in The Australian as saying: "It's hard to understand why anyone, knowing Michael Fraser as a person, would target him. He's a person of no financial standing, and this is really a microcosm of what's alleged against banks in relation to their customers: they're using their wealth and position to litigate a matter against a young man who is an enthusiastic consumer advocate who has no assets whatsoever." 1. To a degree, those remarks were directed at the bank and its decision to fund an action aimed at silencing one of its critics. Unsurprisingly, that theme was embraced by the journalist in an article published under the headline "CBA backs executive Brendan French against activist" (Ex F). However, in the unusual circumstances of this case, the bank was right to fund Dr French's action. The harm caused to him by Mr Fraser's bizarre conduct is serious and has plainly occurred solely because he was the human face of customer relations at the Commonwealth Bank. There is not the smallest suggestion of any actual wrong-doing on Dr French's part. For the bank to back Dr French's attempts to stem the personal harm to him caused by Mr Fraser was entirely appropriate. 2. More pertinently, no person who has read what Mr Fraser has said about Dr French publicly and in his many messages to him could reasonably characterise Mr Fraser as no more than "an enthusiastic consumer advocate" being unfairly targeted by Dr French. In fact, the correspondence reveals that although Dr French sought information to enable him to address any complaint raised by Mr Fraser on behalf of people he claimed to represent, Mr Fraser refused to provide a single detail or even to specify a single grievance. Rather, he was obsessively fixated upon persuading Dr French by any means (including threats) to meet him in person. When, sensibly, Dr French declined to do so, it is no exaggeration to say that Mr Fraser became Dr French's stalker. Any person minded to pass judgment on Dr French's decision to bring these proceedings against an impecunious young man should first consider the whole of the evidence on that issue, summarised in detail below. 3. As already noted, the only remaining matter to be determined in the proceedings is the assessment of damages. After consenting to the entry of judgment on liability, Mr Fraser's solicitor informed the Court (through an email to my associate) that Mr Fraser did not intend to participate in or attend the damages hearing. He did not.