The NSW Supreme Court awarded aggravated damages and granted a permanent and mandatory injunction against a defendant who published serious imputations against a family dispute resolution practitioner, including matters concerning pedophilia and fraudulent behaviour.
In issue
- Whether the publications conveyed the defamatory imputations as pleaded
- Assessment of damages, costs and other remedies
The background
Jasmin Newman (the plaintiff), a family dispute resolution practitioner, brought an action in defamation against Adam Whittington (the defendant), founder of a child recovery organisation. The claim related to 12 defamatory publications made by the defendant on various social media sites about the plaintiff. The plaintiff alleged the publications gave rise to 59 defamatory imputations, including, inter alia, that she supported paedophiles, was a fraud, falsely claimed to be a psychologist, endorsed domestic violence offenders, and other harmful claims. The defendant’s publication campaign was in response to a book published by the plaintiff that referred to the defendant, which the court presumed was in a manner that displeased him.
As the defendant failed to file a defence, default judgement was entered in favour of the plaintiff under rule 16.3 of the Uniform Civil Procedure Rules 2005 (NSW). As a result, the plaintiff was relieved from having to prove that the relevant publications were published, and that the defendant was the author, but she still bore the burden of proving that each publication conveyed the imputations as alleged. Additionally, the plaintiff had to relate her injuries, loss, and damage to one or other of the defamatory imputations.
The decision at trial
The court was satisfied that each of the publications clearly and unambiguously conveyed the pleaded defamatory imputations. The imputations were considered inherently serious, particularly those that falsely suggested that the plaintiff supported paedophiles.
The court considered whether the defamatory statements caused or were likely to cause serious harm to the plaintiff’s reputation. Whilst the plaintiff failed to persuade the court that the publications were read by any significant number of individuals, nor anyone within her professional or local community, the court took into consideration the ‘grapevine effect’, i.e. the tendency for defamatory material to disseminate over time. Given the gravity of the defamatory imputations, the court was satisfied that there had been a degree of harm to the plaintiff’s reputation, particularly her professional integrity.
The court was satisfied the case warranted an award of aggravated damages because of the defendant’s failure to apologise or retract the statements, and his continued publication of defamatory statements even after the commencement of legal proceedings. Further, the defendant’s non-participation in the proceedings was conduct that was considered to be aggravating.
The plaintiff was awarded aggravated damages in the sum of $150,000, interest of $10,000, and counsel costs of $147,796. Additionally, the court granted a permanent and mandatory injunction requiring the defendant to remove the publications referred to in the judgment and refrain from republishing.
Implications for you
This case highlights the importance of engaging with defamation proceedings as a defendant, including offering an apology or retraction of the defamatory content. In this case, the defendant's ongoing publication of defamatory material, and refusal to apologise, significantly contributed to the award of aggravated damages. The case also highlights the difficulties faced by plaintiffs in satisfying a court of readership of allegedly defamatory material over social media and other sites. In this matter, the court was not persuaded that the readership, or extent, of the publication, was anything other than limited, with only the potential for it to be greater.
Further, we are seeing courts are increasingly willing to issue injunctions to protect reputations and it is expected the number of cases where such a relief is granted will continue to grow in the future.
