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:
- The defendants to pay the plaintiff's damages in the amount of $30,000.
- The defendants to pay the plaintiffs costs.