DEFAMATION - damages - where no defence maintained - where defendant harassed plaintiff over two year period
Legislation Cited: Defamation Act 2005 (NSW), ss 34
Source
Original judgment source is linked above.
Catchwords
DEFAMATION - damages - where no defence maintained - where defendant harassed plaintiff over two year period
Legislation Cited: Defamation Act 2005 (NSW), ss 34
Judgment (11 paragraphs)
[1]
Judgment
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.
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.
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.
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.
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."
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.
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.
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.
[2]
Principles applicable to the assessment of damages
The principles for assessing damages for defamation are well settled. Section 34 of the Defamation Act 2005 (NSW) requires the court, in determining the amount of damages to be awarded, to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded. That is not to require a precise or mathematical relationship between particular defamation cases and personal injury cases but to ensure that damages for defamation "take their proper place in the administration of justice" and "stand in a proper relationship with awards for the non-economic consequences of personal injury": Rogers v Nationwide News Pty Ltd [2003] HCA 52; 216 CLR 327 at [74] per Hayne J; approved in Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; 278 ALR 232 at [270] per McColl JA (with whom Spigelman CJ and Beazley JA (as her Honour then was) relevantly agreed).
The Defamation Act specifies the maximum amount of damages for non-economic loss that may be awarded in defamation proceedings: s 35(1). The amount is revised each year. Currently, the maximum award is $376,500.
The purpose of an award of damages in defamation is to provide consolation for hurt to feelings, recompense for damage to reputation and vindication of the plaintiff's reputation: Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60 per Mason CJ, Deane, Dawson and Gaudron JJ.
Of particular importance in the present case is the principle that the law should place a high value upon reputation and in particular upon the reputation of those whose work and life depend upon their honesty, integrity and judgment: Crampton v Nugawela (1996) 41 NSWLR 176 at 195.
An award of damages should be sufficient "to convince a bystander of the baselessness of the charge": Cassell & Co Ltd v Broome [1972] AC 1027 per Lord Hailsham NC at 1071. It appears to be accepted that the requirement of s 34 of the Act (to ensure that there is an appropriate and rational relationship between the harm sustained and the amount of damages awarded) does not derogate from that principle: Moit v Bristow [2005] NSWCA 322 at [121] per McColl JA, Beazley JA and Campbell AJA agreeing.
[3]
Defamatory publications
Dr French sues on three defamatory publications:
1. an article posted by the defendant on his website, The Arbitrator, on 19 June 2013;
2. an email dated 26 March 2014 sent by the defendant from the "Office of the Arbitrator" to over 500 people, mostly people within the Commonwealth Bank but also to a number of other organisations; and
3. an item posted on 2 July 2014 on the Facebook page of SOCAP Australia (Society of Consumer Affairs Professionals).
Having regard to the fact that Mr Fraser has consented to the entry of judgment against him, it is appropriate to assess damages by reference to the defamatory imputations specified by Dr French in the statement of claim, as follows:
First matter complained of
(b) The plaintiff's gross incompetence in his role at the Commonwealth Bank has destroyed the lives of thousands of customers.
(c) The plaintiff's bullying and harassment of bank customers is so aggressive it is akin to using a phone book to beat them.
(d) The plaintiff has dishonestly engaged in harassment, bullying and unethical practices in his role at the Commonwealth Bank.
(e) The plaintiff's conduct in his role at the Commonwealth Bank was so disgusting that large numbers of people had anonymously provided complaints to "The Arbitrator" concerning his workplace harassment, workplace bullying and unethical practices in his role at the Commonwealth Bank.
Second matter complained of
(b) The plaintiff, upon arrival at CBA, pushed out employees who disagreed with his dishonest behaviour and replaced them with unqualified friends and associates who he knew would not challenge him.
(c) The plaintiff corruptly awarded his life partner a CBA contract when he stood to benefit from that contract personally as a co-owner.
(d) the plaintiff dishonestly failed to list on the conflict of interest register a CBA contract he had awarded to his life partner.
Third matter complained of
(a) The plaintiff acted corruptly in his role as a director of SOCAP Australia.
(b) The plaintiff dishonestly arranged for SOCAP Australia to cover up claims by the defendant concerning the plaintiff's serious misconduct as a board member.
It is important to record at the outset that each of those imputations is entirely false. This is not a case in which a judgment had to be made as to whether, for example, proved conduct amounted to corruption or something less. It is plain from the evidence before me (including evidence as to the material relied upon by Mr Fraser to support his later-abandoned truth defence) that, tragically, Dr French has been made the target of a senseless vendetta founded in madness.
[4]
Dr French's evidence
While the assessment of damages must be confined to the three defamatory publications sued on by Dr French, the hurt and harm caused by those publications must be assessed in the context of the whole course of encounters between Dr French and Mr Fraser.
The relevant events are summarised in the statement of evidence of Dr French (Ex D) which he adopted on oath in the witness box.
In 1989, Dr French graduated with a fine arts degree from the Australian National University, majoring in Art History, English, Medieval Studies and Renaissance History. In 2000, he was awarded a PhD from the University of Sydney. His PhD thesis investigated the history of ideas in religious studies including platonic philosophy and the Darwinian revolution. That year, he was employed in the Office of the Energy Ombudsman where he remained for seven years. His role at the Ombudsman involved complaint-handling with a component of alternative dispute resolution. By the time he left the Office of the Energy Ombudsman, Dr French had been promoted to the position of Deputy Ombudsman. He left that role after forming the view that the role of Ombudsman would not become available in the near future. During that period, he also wrote a number of books and articles about dispute resolution, including one jointly authored with his then partner.
In 2007, Dr French was successful in an application for the position of Executive Manager, Head of Customer Relations, Retail, with the Commonwealth Bank. Over the following years, he oversaw a process of reform of the bank's complaints handling systems. In 2009, Dr French was promoted to the position of General Manager (of whom there are about 250 employed by the bank). Upon his promotion, Dr French's title was "General Manager, Group Customer Relations". That was a new role within the Commonwealth Bank group of companies intended to be in the nature of an internal ombudsman or integrity officer. Throughout that period, Dr French continued to supervise the centralisation and merger of the bank's complaints teams from across many businesses.
From 2009 to 2012, Dr French had a heavy involvement with a particular group of customers resulting from the collapse of a financier, Storm Financial Limited. He also performed what he described as "the typical roles one would expect of a person in charge of a large complaints unit", including overview of complaints-handling procedures, dealing with difficult or highly sensitive complaints and managing staff and expenses.
[5]
First contact
On 25 October 2012, Mr Fraser sent an email to the Chief Executive Officer of the Commonwealth Bank, Mr Ian Narev, requesting a private meeting with him. The email did not refer to any specific complaint or customer but threatened negative publicity for the bank if the meeting did not proceed. The head of communications at the bank forwarded the email to Dr French with the fateful words, "one for you I'm sorry to say".
The terms of Mr Fraser's email requesting a private meeting with the CEO of the bank openly foreshadowed a tenacious approach:
"Hi Ian,
You may have seen me on TV dealing with Telstra Issues, or perhaps you read something online.
One thing I can say for sure, you may not know me now, but from this point on I will be someone you never forget.
I have been asked by many banking customers to address their bulk concerns with your bank and others, so this is my first request for a private meeting.
Until you prove to me that you are part of the solution and not part of the problem, every interaction or lack of interaction will be timed and published by myself, online, on national TV, in my print media and then shared by my followers.
My strong advice is to meet with me asap.
I am always friendly, but don't mistake my kindness with weakness.
My followers consist of over 10,000+(I have lost count beyond this) of the general public, federal politicians, 2 film companies, a handful of celebrities and prominent entrepreneurs.
Rest assured I will never go away until you meet with me, and I will write about everyone that gets in the way of peaceful change.
I own a web company and I have a lot of ability to tag people doing the wrong thing in social media.
A growing percentage of the Australian public are depending on me for change and to go in and bat for them.
Your actions and response to my requests are also being observed by Telstra executives. I know this because they called to let me know they are very interested to see how you deal with me.
You have a big spotlight on you now Ian, and my brand new website will give you a chance to look good, or really bad.
My goal is only to have positive change, however I am prepared to fight for results and positive change.
Please contact me ASAP to arrange a private meeting.
Regards,
Michael Fraser
The Arbitrator - Keeping the banks, energy providers and telcos honest."
As requested by his superior, Dr French contacted Mr Fraser by email on 1 November 2012, thanking him for his email and inviting him to contact Group Customer Relations by telephone on the 1800 number. Dr French's email concluded:
"Alternatively, you are also welcome to email me directly if there is a complaint you would like resolved."
Mr Fraser responded the following day by asking for Dr French's "best number" to call him directly.
Later that afternoon, Dr French responded by suggesting that it would be more efficient to contact him by email in the first instance. On 5 November 2012, Mr Fraser responded with a lengthy email reiterating his request for a private meeting with the CEO, Mr Narev. Again, the terms of the email declared his intention to be tenacious:
"Brendan, I am very skilled at what I do and I ask kindly that you take me very seriously. My goal always is a positive outcome for all parties involved. I am not abusive, I don't hide cameras, and I cannot reassure you enough to not mistake my kindness as weakness or perhaps think that ignoring me or placating will make me shut up and go away. I don't ever take sides with the Bank (in your case) or the customer. I simply act on what is right and what is wrong."
From that point, Mr Fraser turned his primary attention to Dr French rather than Mr Narev. Dr French did not reply immediately to the email dated 5 November 2012 as he was on leave. With a sense of entitlement that was to become increasingly aggressive, Mr Fraser chased him up four days later on the morning of 9 November 2012:
"I gave it nearly a week and no reply.
Am I being ignored? Or have you just not had the time to reply.
I look forward to hearing from you asap : )"
Upon his return the following Monday, 12 November 2012, Dr French sent a further email reiterating that customer complaint was his responsibility and accordingly that there was little advantage in arranging a meeting with Mr Narev. He concluded:
"I should also note that in the absence of a specific complaint there is little otherwise that it seems I will be able to assist you with".
Over the following days, Mr Fraser continued to demand in imperative terms that Dr French call him. He persistently referred to himself in grandiose terms. He claimed to have authority to raise an individual complaint but refused to specify the complaint in writing. Dr French continued to note that he awaited information from Mr Fraser about any specific complaint, absent which he said he was unable to assist or to respond to further contact. On 22 November 2013, Mr Fraser wrote:
"Hi Brendan,
still no phone call. Not even to discuss a specific problem that I am authorised on?
You know that I represent a large number of CommBank customers and you won't even spare them five minutes to talk to me.
This tells me that your devotion to the customer is not what you or CommBank says it is.
You do realise you have me for life now, or at least the life of your career in CommBank.
There [sic] way to deal with me is not to ignore me.
I am trying to be polite and I will always be civil, but I do have a job to do."
The email included links to two articles on The Arbitrator website including one about Dr French avoiding phone contact with Mr Fraser. The email concluded:
"Depending on your response or lack of response today will depend on what I write this afternoon. Please do the right thing by the customers."
By the end of November 2012, Mr Fraser's communications had become overtly threatening. On 26 November 2012, he wrote:
"Hi Brendan,
I hope you had a great weekend. :)
It saddens me that you feel that you need to ignore problems, perhaps hoping that I will go away.
Right now I am using about 1% of my resources to attempt a working relationship with you. What percentage must I go to for you to take this matter seriously? (FYI: my methods are all legal and peaceful).
I am about to step things up just a little.
The direction you are heading in involves a film crew waiting for you outside the building. I hope you are not camera shy."
On 4 December 2012, Mr Fraser wrote:
"Hi Brendan,
I hope you are well.
I am thinking that there will be something that would get you to talk, but I am not sure what that is.
I will try saying pretty please. Any thoughts."
Dr French understood the email to be a threat and felt the situation was "clearly…going to escalate quickly from this point" (T31.50-T32.10).
Shortly after that date, on 12 December 2012, Mr Fraser posted on Facebook a link to a video on his website headed "The Arbitrator teaches Brendan French from CommBank how to work a telephone". Mr Fraser emailed that link to Dr French the following day.
Over summer, Dr French was on holiday with family. Unsurprisingly, he did not communicate that information to Mr Fraser. Nonetheless, on 7 January 2013 at about 4:30am, he received an email from Mr Fraser in the following terms:
"Hi Brendan,
I genuinely hope you had a nice time with your family over the break. :)
We are hoping that you will in your professional capacity make the time to start up a friendly professional relationship with me very soon. We don't want to have to apply all kinds of pressure to get you to talk, and would simply just like to have an open line of communication.
You are now on my wall of people not talking and I would like very much to remove you from it asap.
Here is the link: [the hyperlink was called "Wall of Shame"].
Perhaps you will give me a call today?"
After a further similar request on 9 January 2013, Mr Fraser wrote to Dr French at 3:15am on 14 January 2013, threatening to come to see him "very soon". He claimed to have obtained access from "helpers within" to Dr French's schedule, concluding:
"My advice is to not think about it too much as you may work yourself up into a frenzy wondering when we are going to jump out with cameras."
Dr French was in good company at this stage. The Arbitrator website was boasting the addition of the Chairman of ASIC and the Chairman of the Financial Ombudsman Service on his list of "executives we are attempting to contact".
On 21 January 2013, Mr Fraser posted an article on his website announcing "War on the Banks and any Bank executives that get in the way". He forwarded the article to Dr French and another CBA executive. The article made a "promise" (read: threat) to any bank executive avoiding contact with Mr Fraser to "devote a whole team of people to you solely to apply all kinds of pressure to you until you start working with me". Prophetically, Mr Fraser announced:
"I can break you mentally: You may be interested to know that my special skill is psychology. I am constantly psychoanalysing you. Did you know that I am also a powerful hypnotist? You have never faced someone like me and that is why I will remove you all, one by one, and win on behalf of the Australian people. Let's not forget that people have become homeless, committed suicide and suffered heart attacks over things you have taken part in, or known about.
I am an unstoppable force. I am powered by the voice, and needs of the Australian people. I will come for you, and I will prevail. Yes, I am a powerful tool, in the hands of many. I am guided by their them [sic] and I carry out their will. My advice to you is if I come for you be smart and work with me like Telstra did. If not, then I already feel sorry for you. The Arbitrator".
At 1:07am on 30 January 2013, Mr Fraser sent an email to Dr French which was also posted on his Facebook page, asking:
"How many times per week do you dream about me? If I am not on your mind outside of your work hours, then I am not doing my job properly."
The email stated that Mr Fraser had "only just begun to wind the pressure on" and was "currently working at about 5% intensity". It concluded by wishing him "sweet dreams".
Shortly after that date, Mr Fraser evidently learned that Dr French is gay. That, of course, is something that should have remained Dr French's private concern. It goes without saying that it is wholly irrelevant to the discharge of his professional function at the bank. Regrettably, however, Mr Fraser's communications from that time began to include explicit homophobic references, all ostensibly in the pursuit of his ambition to have Dr French call him. On 19 February 2013, Mr Fraser wrote:
"Hi Brendan,
I hope you are enjoying the start of your week. :)
Brendan we really need to talk.
I now have a group of people that you have worked with in various capacities that have come forward with all kinds of information that would be extremely damaging to your reputation. They are giving me all kinds of information on you as an individual, and on your professional conduct.
They want me to take you down professionally, and with the information I have so far it does not look good. I am very disappointed to hear the same thing over and over about you and your conduct.
They have even provided me with information on your sexual preference and the name of your partner etc.
I really have no interest in the personal stuff, yet others do. I am thinking you should call me to discuss my matters as I will be less inclined to discourage them from the activities they are collectively planning to take you down personally.
I am thinking it is definitely time to talk Brendan."
No rational person with a genuine concern for the interests of consumers could seriously think that was an appropriate communication in consumer advocacy. If there was still any doubt, Mr Fraser's conduct had plainly become that of a stalker.
Dr French gave evidence that there were also references to his sexual orientation and personal life in many of Mr Fraser's voicemail messages. Those communications caused increasing fear to Dr French as he did not understand why Mr Fraser was "so strangely interested" in him personally. He also began to fear for the safety of his partner. Dr French observed in his evidence (and it is plain to any objective reader of the foregoing) that Mr Fraser's communications were by that point well beyond any representation of aggrieved customers. The communications had become entirely personal.
Dr French gave evidence that the email of 19 February 2013 was received at around the same time as a voicemail message in which Mr Fraser made very nasty threats, referring to the prospect of Dr French going to gaol and, in effect, being likely to enjoy his experience there (which Dr French took to be a further, sinister reference to his sexuality) (T37.20).
On 26 March 2013, Mr Fraser left a voicemail message for Dr French of which Dr French made a contemporaneous note. In that call, Mr Fraser said:
"I'm really surprised actually at how much attention I'm getting from the media already, like a lot of the newspapers and different types of TV etc. It's really, really good. So, yeah, they all want to see people like you hang and the scary thing is that I'm not even exaggerating or what have you but there are some people out there that really want to see some really horrible things happen to [people like] you. I'm not one of them …"
Dr French gave evidence that in some of those calls, Mr Fraser's voice was slow, studied and threatening. He said that Mr Fraser sometimes attempted to adopt a foreign accent, such as a Greek or Russian accent. Dr French said that for the first half of 2013, Mr Fraser called him virtually every day, sometimes several times a day and often during the early hours of the morning (between 2 am and 5 am) or otherwise outside of work hours. In messages left in the middle of the night, Mr Fraser would make what Dr French described to be "outrageous, grandiose and frankly threatening statements" directed at him. He used expressions such as "I am coming for you" and "there is nowhere that you can hide". In one message, Mr Fraser asked "do you have fast running shoes" and said "I hope you have a nice haircut". He repeatedly made statements to the effect that Dr French would never be free of him and that he would track him down no matter where he was every day for the rest of his life. He said he would make it his life work to ensure that everyone Dr French had ever known or worked with would hear about his (alleged) bullying, corruption and the trail of destruction he had left behind him. Of course, even with the assistance of a solicitor acting for him, Mr Fraser has been unable to put forward a single instance of such conduct.
As to his use of the internet, Mr Fraser made statements in phone messages left for Dr French to the effect:
"When I am done with you, you will never be able to be employed in a decent job again. I am an internet search optimisation genius and I can make certain that when anyone types your name into Google, the only material that they will find will be the truth of your evil acts, for the world to see. I am coming for you."
Dr French gave evidence that, indeed, by the middle of 2013 the first four pages of results against his name on a Google search were taken up exclusively with Mr Fraser's publications rather than, for example, books or articles published by Dr French. At a glance, the snippets of the Google results showed up words such as "corrupt", "bully" and "trail of disaster".
By mid-2013, Mr Fraser was contacting Dr French by telephone approximately five times per day as well as sending texts and emails.
On 4 April 2013, Mr Fraser sent Dr French an MMS message featuring a photograph of himself wearing a top hat and holding a cane posing in a bedroom. It is similar to the outfit in which he is depicted in the header to his email that is the second matter complained of.
Dr French gave evidence that, by this stage, he was becoming increasingly anxious and found himself accessing Mr Fraser's website and Facebook page frequently. He was frustrated because he knew that this was probably exactly what Mr Fraser wanted but could not stop himself, saying that it had become "a hideous, damaging fascination".
On 18 April 2013, Mr Fraser posted an article on The Arbitrator website entitled "Who is Brendan French?" Dr French read it. I would not wish to give further oxygen to the scandalous allegations it makes. It is enough to say that the article was sinister and menacing, as well as being defamatory. It included the following statement:
"Some others wish him harm, and point out his sexual preferences, but I just want to talk".
Dr French was horrified that Mr Fraser had publicly "outed" him in this way on the internet. After Dr French accessed the article, Mr Fraser sent him an email link to the article. The email included the following:
"Let's end the silence Brendan. You were the ninety-third reader since 5 pm. Private call offer to you right now. I'll keep it between us."
On his Facebook page, Mr Fraser boasted that he had had "10,260 individual views of that post". Dr French saw that claim and was mortified at the prospect that so many people had seen the article.
The plaintiff's evidence represented only a selection of Mr Fraser's communications to him. This judgment, in turn, records only a selection of the plaintiff's evidence. In some instances, my selection has been informed by a desire not to give further circulation to Mr Fraser's statements. As submitted on behalf of Dr French, Mr Fraser's communications in that early period revealed a degree of fixation upon Dr French and included persistent threats. The foregoing records enough of that terrible period to explain the frame of mind in which Dr French suffered the publication of first defamatory article on which he sues.
[6]
The first matter complained of
Against that devastating history, Mr Fraser published an article on his website on 19 June 2013 under the heading "Brendan French is seriously under fire from victims, co-workers & whistleblowers". I do not propose to give the article further circulation by repeating its contents here. The article was illustrated by an image of cartoon characters carrying torches and pitchforks with the text "French under fire". The article makes scandalous and indefensible allegations about Dr French.
Dr French's attention was drawn to the article that day by his personal assistant. He accessed the article through his iPad. His immediate reaction was to feel sick, humiliated and hopeless. He did not sleep that night. In his dealings with others he was concerned that, despite continuing to be polite to him, people thought there was substance to the untrue allegations. In the weeks following, Dr French found himself socialising less than usual and began to suffer from a degree of anxiety.
Dr French gave evidence of the reactions he experienced from a large number of people in the weeks, months and even year following the publication of the article. Whilst many of the reactions were supportive and sympathetic, others appeared to imply that there may be some truth to the allegations.
One revealing exchange occurred in late April 2014 when Dr French was in the United Kingdom on business. In one of many meetings on that trip, he met the chief compliance officer at a major financial institution in the United Kingdom. Dr French had not previously met or spoken to that person. Before sitting down to their meeting, Dr French recalls the following conversation (Ex D, para 284):
CCO: Brendan, what's going on with the Arbitrator creep? That picture he had of you on his website reminded me of Frankenstein!
French: I'm sorry you saw that, [name]. The whole experience is very upsetting and I'd rather not talk about it. He's a guy who says he represents customers but I've not heard him mention any by name.
CCO: Well, he just seems very upset by you.
French: Well I have never met him or spoken with him but he's just taken against me and I think that's because I'm associated with some big litigation in Australia.
Dr French recalls being "distraught" by that conversation. He had realised that, as a result of the defamatory publication, he may not be able to work at other institutions in Australia but was very taken aback to realise that the matter complained of had such currency internationally (T26.25).
After the publication of the first matter complained of in 2013, Mr Fraser continued to harass Dr French in the same persistent, menacing and vitriolic manner. On one occasion during legal proceedings in Brisbane, Mr Fraser got into a lift with Dr French and his solicitors after court and then followed him to his car (Ex D, para 297). On occasions, he attended the bank's premises in Sydney and inspected entrances and exits.
Mr Fraser also sent an email on 12 August 2013 to the bank's media enquiries team which implied (bizarrely and entirely without foundation) that Dr French was a paedophile. The email was raised at a meeting of the bank's CEO and group executives (the senior management team of the bank), which understandably caused great distress to Dr French. There was no truth in the content of the email.
On 23 August 2013, Mr Fraser sent an SMS to Dr French saying that he would be in Sydney from 28 August 2013 and that he wished to meet privately. The message continued:
"More of your close team wish to meet with me privately in relation to their concerns about you. These ones wish to remain anonymous. Two major papers are very interested in the story and taking notes. I just want you to know that I don't dislike you, I just want to see the right thing done in relation to a handful of large matters which you are involved in. Would you be open to meeting off the records privately when I am in town. You are welcome to pick the venue and search me for recording devices. I will honour my word. Michael :)".
The message was followed by a voicemail, evidently calculated to taunt Dr French over his sexuality, in which Mr Fraser said (Ex D, para 302):
"You can search me, Brendan. I know you'd like that. I promise that I'm not wearing any strap-on devices - feel free to search me if you like, wouldn't that be a laugh?"
Mr Fraser's persistent, puerile harassment of Dr French throughout 2013 resulted in his transferring from his role as head of Group Customer Relations to a different role in November 2013. Despite moving from the customer-facing role in which he had worked for six years, Dr French continued to suffer Mr Fraser's attacks.
[7]
The second matter complained of
The second matter complained of was an email sent in the very early morning of 26 March 2014. For the reasons already explained, the content of the email is not repeated here. As captured in the imputations, it suggested that Dr French is corrupt, pushes out employees who disagree with him and replaces them with unqualified friends, that he had previously acted corruptly in awarding a contract to his then partner (who was named in the email) where he stood to benefit personally and that he had failed to list such a conflict on the conflict of interest register.
The email purported to be sent to "over 500" people but Mr Fraser did not include Dr French in that extensive list. For present purposes, it is important to note that in naming Dr French's former partner, the second matter complained of effectively outed Dr French as the most senior gay person in the bank. In conjunction with the allegations of corruption, Dr French was concerned about the impact that would have on other LGBTI (lesbian, gay, bisexual, transgender and intersex) staff.
Dr French became aware of the email when it was forwarded to him by a General Manager from another group within the retail bank.
Upon reading the email, Dr French felt physically sick. Over the next few hours, he received phone calls and emails from many people. Whilst a great number expressed support for Dr French, many told him they thought they needed to report the allegations to the legal department and to senior management.
The second matter complained of was forwarded to a senior manager within human resources who, as the email contained allegations relating to how Dr French treated his staff, told Dr French that she would need to speak separately to his team about it.
A meeting was in fact convened on 1 April 2014. Present at the meeting were senior members of Dr French's staff. Dr French was invited to attend the first half of the meeting but was asked to leave the second half. Whilst Dr French was present, parts of the second matter complained of were read out and discussed, obviously causing significant further distress to Dr French.
[8]
The third matter complained of
In order to understand the extent of harm caused by the third matter complained of, it is necessary to explain the context in which it was published.
Dr French joined the SOCAP board in 2009. He described SOCAP as the national industry peak body for complaint-handling professionals with over one thousand members in Australia, including major corporate entities as well as government and regulatory bodies.
SOCAP has an active Facebook page used to promote upcoming events. Dr French's evidence was that the SOCAP Facebook was his main source of information about SOCAP's events. He checked the SOCAP Facebook page a few times per week (Ex D, para 382).
In the year leading up to the publication of the third matter complained of, Mr Fraser had contacted SOCAP via the Facebook page and had called the CEO of SOCAP, asking "how will we feel when Brendan is plastered all over the front page of the paper with the name SOCAP beside it?" (Ex D, paras 382 and 389). The SOCAP board had discussed the issue of Mr Fraser in mid-2013, causing Dr French to feel "mortified" that Mr Fraser had begun to target his close friends and peers at SOCAP (Ex D, para 387).
On 30 June 2014, SOCAP convened an extraordinary board meeting to consider how to respond to Mr Fraser's posts. Dr French attended the meeting by telephone. He found it "utterly humiliating" to listen to his friends and colleagues discuss the issue and was greatly upset by the conversation. He felt that he needed to resign immediately from the SOCAP board. He interrupted the discussion, foreshadowing his resignation before abruptly terminating the call (Ex D, paras 400 to 405).
Dr French continued to check the SOCAP website and Facebook page regularly. On 2 July 2014, he was in his office when he saw Mr Fraser's post to the SOCAP Facebook page (the third matter complained of). Again, I have chosen not to reproduce the content of the matter complained of. It clearly conveys the imputations sued on, as follows:
1. The plaintiff acted corruptly in his role as a director of SOCAP Australia; and
2. The plaintiff dishonestly arranged for SOCAP Australia to cover up claims by the defendant concerning the plaintiff's serious misconduct as a board member.
There is absolutely no suggestion that the imputations or any other assertions made in the third matter complained of are true.
In his oral evidence, Dr French said that he found the third matter complained of particularly hurtful (T55.17). Following its publication, he felt that "by the mere mention in that post of "corruption" the defendant had probably, and single-handedly, destroyed [his] career" (Ex D, para 414).
Following the publication of the third matter complained of, on 3 July 2014, Dr French sent a formal resignation to the Chairman and President of SOCAP (Ex D, para 415). Dr French felt this to be an ongoing personal loss as his colleagues at SOCAP were friends but also a professional loss for himself and the bank (T56.28).
[9]
Reputation witnesses
Three reputation witnesses were called, all of whom hold senior positions in respected institutions. All three described Dr French in glowing terms. They said he is held in the utmost esteem by his colleagues and peers; a man whose integrity, ethics and values were unquestioned and a leader in the dispute resolution field (T63.15; T71.45). Dr French was seen as having "extremely high potential" as a general manager and was considered likely to continue to be promoted within the bank as he was highly regarded by both superiors and subordinates alike (T68.30). Dr French was said to have "a reputation for a high level of integrity" and as someone who put his team, clients and customers ahead of himself (T69.5).
The witnesses also gave evidence as to Dr French's reaction to the matters complained of and emphasised the significant amount of anxiety he suffered as a result of the defendant's conduct (T64.50), including withdrawing from areas of his professional life which were very important to him, such as SOCAP and his advocacy for LGBTI people within the bank (T70.25).
[10]
Conclusion as to damages
Although Mr Fraser has consented to the entry of judgment against him in an amount to be assessed, Mr Levitt's remarks to the press suggest that Mr Fraser will not have the means to satisfy any judgment debt. That is irrelevant to the assessment of quantum. This is a case in which the Court can and should give a judgment that achieves the object of vindicating Dr French's reputation.
Contrary to the suggestion made in Mr Levitt's incautious remarks, Dr French took no joy in bringing this action. Dr French said in evidence (T44):
I was concerned that bringing this action would create more publicity for him, would create greater currency of this information, and that frankly the reporting of it, which had been in my view terrible, would simply give further kind of fuel to the fire, and that aside - if anybody Googled me, aside from getting all of the, the defendant's publications, it would then get allegations of, of kind of gross sexual impropriety and, and I couldn't win.
Ultimately, however, Dr French felt he had no option but to commence these proceedings. In his evidence at the hearing he said the case had become something of a "cause célèbre" and that, in the absence of an apology from Mr Fraser or any indication that his conduct was likely to cease, all he (Dr French) could hope to do was to point to a decision from a Court. Dr French said:
To be frank, mud sticks and I guess we all know that, and I understand that these kinds of allegations will have a very significant half-life. I'm not so naive as to not believe that, and as a consequence people believe where there's smoke there's fire I guess, and the capacity for me to be able to point to a decision and say, "This is not true and this was never true" is of the highest significance to me.
Dr French also said that Mr Fraser's conduct has had a significant impact on Dr French's family, friends and acquaintances, a number of whom have been contacted by Mr Fraser over the last three years. For that additional reason, the case has captured a great deal of Dr French's time and emotional reserves.
The evidence establishes beyond doubt that Dr French has in fact suffered significant, lasting damage to his reputation as a result of the publication of the three matters complained of. As submitted on his behalf, the imputations had a particular resonance in the place where his reputation counts most, in the financial services and banking industry and the vexed field of complaint handling. The sensitivity of that particular community to allegations of the kind captured in the imputations is revealed by the way in which people who knew Dr French well reacted to what they read, notwithstanding the scurrilous tone of the publications and their complete lack of cogency or factual foundation.
The evidence also establishes beyond doubt that Dr French has suffered an immense amount of emotional pain and hurt as a result of the publications. Care must be taken in that context to distinguish between what is actionable and what is not. The case is unusual in that the seriousness of the defamation, awful as it is, is dwarfed by the extremity of Mr Fraser's broader campaign of stalking, harassing and intimidating Dr French. I must be careful not to increase the damages awarded in this case to account for harm that is not actionable or at least not compensable in these proceedings. Dr French concedes that the "primary vector" for compensation must be damage arising from the publication of the three matters complained of.
It is permissible, however, to have regard to Mr Fraser's whole conduct to the extent that it has aggravated the hurt suffered by Dr French as a result of the publications, which undoubtedly it has. There can be no doubt that most if not all of Mr Fraser's conduct towards Dr French was improper and unjustifiable: cf Triggell v Pheeney (1951) 82 CLR 497. Mr Fraser's conduct could probably also be characterised as lacking in bona fides, especially since he abandoned his defence and capitulated to the entry of judgment against him. However, without having heard from Mr Fraser and not knowing the state of his mind, I would stop short of making that additional finding, which is not necessary in any event.
I have regard to the fact that, although many people plainly reacted seriously to what they read, the tone and content of the publications would have prompted some to dismiss Mr Fraser's missives as irrational rants. The imputations would not have had the impact of an imputation published in a major newspaper by a respected journalist. Still, the sheer brazenness of the allegations and Mr Fraser's cynical invocation of the noble status of consumer advocate and activist may have sounded compelling to some readers.
I also have regard to the fact that the harm suffered by Dr French, although aggravated by Mr Fraser's conduct (including his abandoned plea of truth), has in some small measure been stemmed by the fact that Mr Fraser ultimately consented to the entry of judgment against him and did not contest any of the material put on damages, sparing Dr French the unhappy prospect of facing Mr Fraser in court. That has afforded Dr French an opportunity to vindicate his reputation and to have that vindication recorded in this judgment without further aggravation. That is not a mitigating factor - I mean only to record the absence of an aggravating factor which must be kept in mind when comparing this case with other recent verdicts in defamation cases.
However, it must be recognised that the imputations are serious, the damage extensive and the hurt to feelings enormous. In all the circumstances, I am of the view that there should be a verdict in favour of Dr French for damages, including aggravated damages, in the sum of $300,000.
I direct that judgment be entered in that sum.
[11]
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: 04 December 2015