North Coast Children's Home Inc. trading as Child & Adolescent Specialist Programs & Accommodation (CASPA) v Martin

District Court of NSW|2014-07-25|Before: McCallum J

aarah Morgan Rodwell Third Plaintiff: Todd Michael Yourell Defendant: Keith Martin Representation: Plaintiffs: Mr M McCall Defendant: No appearance Plaintiffs: Trenches McKenzie Cox Solicitors Defendant: No appearance File Number(s): 2013/365251 Publication restriction: None

Introduction 1The plaintiffs, by statement of claim filed on 4 December 2013, bring proceedings for defamation arising from twelve publications made by the plaintiff. Seven were published on a Facebook account known as "Tommy versus Anglican Church". The remaining five are emails. 2These publications were made between 19 August 2013 and 11 September 2013. Some of the Internet publications remained accessible as late as 5 December 2013, when they were taken down by the operator of the "Tommy versus Anglican Church" account holder, Mr Tommy Campion.

The background to this litigation 5The North Coast Children's Home has a long history, although the involvement of the plaintiffs in carrying out their present roles is, as is set out in more detail below, very recent. 6The North Coast Children's Home was first set up in 1919, when two young orphaned and neglected children were given into the care of the Vicar of St Andrews, the Reverend A. R. Ebbs. Those children were given temporary shelter until a local resident, a Mr George Barnard, offered the children the use of a house which he owned in Lismore, free of rent. There was public interest in the establishment of an orphanage in the town of Lismore. The placement of children at the Home continued, but its structure was not formalised until 1951, when a constitution for the home was prepared (Exhibit F to the affidavit of Mr Todd Yourell, 3 July 2014). The Management Committee was not incorporated, until 16 May 1989, when the relevant documents were lodged at the Corporate Affairs Commission registry in accordance with the Associations Incorporations Act 1984 (NSW). 7Mr Yourell's affidavit sets out that the Church of England's role in relation to the Home continued, but on a restricted basis. Since 1989, the Bishop of the Diocese of Grafton has held powers enabling him to appoint up to four members of the Board of Governance, which is responsible for the affairs of the first plaintiff (hereafter referred to as "CASPA"). The Board of Governance is responsible for the affairs of CASPA and acts in the interests of CASPA. Prior to incorporation in 1989 the Anglican Diocese of Grafton was responsible for the affairs of North Coast Children's Home. 8It was while the Anglican Diocese of Grafton was responsible for the affairs of North Coast Children's Home, prior to 1989, that substantial and serious abuse of children at the home occurred. Orphaned and neglected children in the care of the home were victims of sexual, physical and psychological abuse. As is common in relation to victims of institution-based abuse, there were few complaints at the time, and those which were made were ignored, disbelieved and/or discouraged. 9The Anglican Diocese of Grafton received a number of complaints in 2006 about historical acts of physical, sexual and psychological abuse at the North Coast Children's Home in Lismore, all of which occurred between the 1940s and 1980s. Thirty-nine of those claims were settled through negotiated payments. Two of those persons did not participate in the settlement, and instead brought proceedings. Seven others later came forward with similar claims. The Right Reverend Keith Slater, who acknowledged that he did not pass on all the complaints to the Church's Professional Standards Director as was required, resigned as Bishop in May 2013. 10While the nature and extent of the abuses which occurred are the subject of current inquiry and evidence, the nature and extent of the inquiry currently being undertaken by the Royal Commission into Institutional Responses to Child Abuse ("the Royal Commission") relates to periods well before the employment of the second and third plaintiff, and well before the first plaintiff, which is no longer a part of the Anglican Church but a separate organisation. It is neither controlled by, nor answerable to, the Anglican Church. As Mr Yourell points out in paragraphs 20-24 of his affidavit (Exhibit F), the Royal Commission is considering a case study of the home during its operation by the Anglican Church in the 1960s and 1970s, more than 40 years ago, but not into its present operation.

The publications 11The publications fall into the following categories: (a)The Facebook publications; (b)The complaint to the Director of Professional Standards; (c)The emails to foster carers; (d)The email to the second and third plaintiffs; (e)The email to Fostering New South Wales on the Fostering New South Wales website. 12I shall deal with each in turn.

(a) The Facebook Publications 13The Facebook publications were seven posts on a site headed "Tommy versus Anglican Church". The site was hosted by Mr Tommy Campion, who wrote about the abuse he suffered while an occupant of the home, 30 to 40 years ago, his claims for compensation and recognition of that abuse, and the impending inquiry into those events by the Royal Commission, at which Mr Campion gave evidence. The site had a large and active following. Although counsel for the plaintiffs' written submissions state that the Facebook page had a "membership of over 280 individuals" this is in fact the number of "likes" recorded on the page at a particular time. Nevertheless, this was a site that was of significant interest for anyone interested in the evidence being heard before the Royal Commission in relation to the historic abuse claims in the 1960s and 1970s. 14Each of the matters complained of published on the Facebook website page made allegations, not about an identified connection to the historic abuse claims such as Mr Campion's, but of incompetence, dishonesty and neglect. Generalised claims of "abuse" were also made. The relevant imputations are as follows:

The first matter complained of - 19 August 2013 15The imputations are: (a)The first plaintiff is a dishonest organisation (Lines 5-8, 12); (b)The first plaintiff neglects the children under its care (Lines 7-12); (c)The first plaintiff abuses the children under its care (Line 10).

The second matter complained of - 26 August 2013 16The imputations are: (a)The first plaintiff is a dishonest organisation (Lines 1-4, 6-7, 16-23); (b)The first plaintiff engages in child abuse (Lines 6-7, 14, 38); (c)The first plaintiff neglects the children in its care (Lines 9-13, 40-44); (d)The first plaintiff abuses foster carers engaged by the first plaintiff (Lines 19-20).

The fifth matter complained of - 30 September 2013 17The imputations are: (a)The first plaintiff does not care about the children in its care (Lines 4-5, 27-29); (b)The first plaintiff is a dishonest organisation (Lines 4-5, 27-28); (c)The third plaintiff misuses the funds given to the first plaintiff for the care of children (Lines 1-17); (d)The third plaintiff is not qualified to manage the first plaintiff (Lines 17-19).

The sixth matter complained of - 17 October 2013 18The imputations are: (a)The first plaintiff is a dishonest organisation (Lines 15-18, 20-21); (b)The third plaintiff is dishonest (Lines 20-21).

The ninth matter complained of - 13 November 2013 19The imputations are: (a)the third plaintiff is dishonest (Lines 2-14); (b)the third plaintiff does not care about the children in the care of the first plaintiff (Lines 2-14); (c)the first plaintiff does not care about the children in its (Lines 2-14).

The tenth matter complained of - 19 November 2013 20The imputations are: (a)the first plaintiff is dishonest (Lines 6-9); (b)the third plaintiff is dishonest (Lines 6-9); (c)the first plaintiff does not care about the children in its care (Lines 6-9); (d)the third plaintiff does not care about the children in the care of the first plaintiff (Lines 6-9); (e)the third plaintiff is a child abuser (Lines 6-9).

The eleventh matter complained of - 19 November 2013 21The imputations are: (a)the first plaintiff neglects the children in its care (Lines 1-4); (b)the first plaintiff is dishonest (Lines 1-6); (c)the first plaintiff lies to the foster carers it engages (Lines 4-6); (d)the first plaintiff abuses the children in its care (Lines 5-6). 22Although the allegation made by the defendant were principally of dishonesty and neglect, imputations of abuse of children occur in imputations arising from the first, second, tenth and eleventh publications. These are the most serious imputations.

(b) The complaint to the Director of Professional Standards 23The third matter complained of is a complaint to Mr Michael Elliott, Director of Professional Standards, Anglican Diocese of Newcastle/Armidale/Grafton. The imputations conveyed are as follows: (a)the third plaintiff is a bully (Lines 12-14); (b)the third plaintiff does not care about complaints made about the first plaintiff's foster care services (Lines 12-14); (c)the second plaintiff deserves to be dismissed from her employment with the first plaintiff (Lines 15, 55, 83); (d)the third plaintiff deserves to be dismissed from his employment with the first plaintiff (Lines 15, 55, 83); (e)The first plaintiff is a dishonest organisation (Lines 35-36, 37-40); (f)The first plaintiff neglects the children under its care (Lines 43-48, 53-54, 66, 69-71). 24I note that Mr Elliott responded on the same day, stating that CASPA, the first plaintiff, was an organisation independent of the Anglican Diocese of Grafton, the complaint did not fall within his jurisdiction, and that the historical complaints of abuse regarding the North Coast Children's Home were unrelated to the activities of CASPA. The significance of these remarks appears to have been lost upon the defendant.

(c) The emails to foster carers 25The defendant sent two emails to other foster carers dated 27 September and 29 October 2013, respectively. The first of these conveyed the following imputations: (a)the first plaintiff is a dishonest organisation (Lines 6-7, 12-14, 21-22, 50-53); (b)the second plaintiff is dishonest (Lines 40-46); (c)the second plaintiff does not care about the children under the care of the first plaintiff (Lines 76-78); (d)the first plaintiff is managed by persons who are not qualified to provide foster care services (Lines 87-91); (e)the second plaintiff is not qualified to provide foster care services (Lines 87-91); (f)the third plaintiff is not qualified to provide foster care services (Lines 87-91).

The eighth matter complained of 26The eighth matter complained of contained the following imputations: (a)the first plaintiff has engaged in child abuse (Lines 10-11); (b)the first plaintiff engages in intimidatory behaviour (Lines 24-25); (c)the first plaintiff has a bad reputation (Lines 28-32); (d)the first plaintiff runs a children's home which is cruel to children (Lines 28-32); (e)the first plaintiff runs a children's home which engages in sexual abuse of children (Lines 28-32); (f)the second plaintiff treats foster carers badly (Lines 33-35); (g)the first plaintiff is dishonest (Lines 36-42); (h)the third plaintiff is dishonest (Lines 36-42); (i)the second plaintiff is not qualified to provide foster care services (Lines 51-56); (j)the third plaintiff is not qualified to provide foster care services (Lines 51-55); (k)the first plaintiff does not look after children in its care (Lines 92-94); (l)the first plaintiff is engaged in a scam (Lines 60-88, 106-115, 119-123); (m)the second plaintiff is engaged in a scam (Lines 60-88, 106-115); (n)the third plaintiff is engaged in a scam (Lines 60-88, 106-115, 119-123); (o)the first plaintiff will not be allocated any more children for its care (Lines 115-118). 27The exact number of emails which were circulated on each occasion is unknown to the plaintiffs. The first email is addressed to Robyn Dwyer, a foster carer for the first plaintiff and according to the affidavit of Naarah Rodwell sworn on 24 April 2014 this email was also received by Alan and Sue Bugeja, who were foster carers for the first plaintiff, and by Mr and Mrs Crosby, who were foster carers for another organisation described as "UPA". Ms Dwyer read the email on the telephone to the second plaintiff, which she found very distressing, and the following day she received a telephone call from Angela Reid of UPA who informed her that carers at UPA had also received this email. 28The eighth matter complained of is addressed to an Internet address for Mr Alan Bugeja, and the affidavit evidence of the plaintiffs is that this email was sent to other carers as well.

(d) The defendant's email to the second and third plaintiffs 29The defendant sent an email to the second and third plaintiffs conveying the following imputations: (a)the second plaintiff is dishonest (Lines 11-30, 40-42, 43-52, 54, 75-77); (b)the second plaintiff is incompetent to provide foster care services (Lines11-25, 49-50); (c)the third plaintiff is incompetent to provide foster care services (Lines 53-54); (d)the third plaintiff is dishonest (Lines 70-72, 75-77). 30The question of whether there is publication to a third party where an email is sent to one plaintiff, who then shows it to another plaintiff, rests upon uncertain ground. There may be exceptional cases where an email addressed to all the plaintiffs may amount to publication to third parties, as occurred in Zarth v Williamson [2006] NSWCA 246. Although counsel for the plaintiff says that this email was copied to the second plaintiff, that is not apparent from the email letterhead. The second plaintiff may be entitled to complain about this publication concerning her capabilities made to the third plaintiff, but I cannot see that the third plaintiff has any cause of action at all. In practical terms, given the number of publications, this publication adds little and I propose to err on the side of caution and to disregard it.

(e) Email to Fostering New South Wales on the Fostering New South Wales website 31On 11 September 2013 the defendant forwarded an email to Fostering New South Wales which the plaintiffs plead conveyed the following imputations: (a)the first plaintiff had no staff qualified to provide foster care services (Lines 11-15); (b)the first plaintiff is associated with child abuse (Lines 11-13); (c)the second plaintiff is not qualified to provide foster care services (Lines 11-15).

The defendant's role in these proceedings 32As the plaintiffs were unable to serve the defendant at his home address, they applied to this Court, ex parte, during the court vacation (on 24 January 2014). An order for substituted service was made retrospectively for service on the defendant at the email address from which he had forwarded the emails. Substituted service was also effected in accordance with this order on the defendant's post office box. 33The defendant had no notice of this ex parte application, and scant notice of the first return date of these proceedings before Bozic SC DCJ on 28 February 2014. 34On 28 February 2014, the plaintiffs, according to Exhibit B, asked the Court to enter default judgment against the defendant, on the basis that no defence had been filed, relying upon the affidavit of Mr Ware, the solicitor for the plaintiffs, sworn 27 February 2014. Bozic SC DCJ considered it was appropriate for a notice of motion to be filed seeking orders for judgment. The solicitor appearing for the plaintiffs asked the Court, if the Court was not prepared to enter judgment, to make an order for the defendant to file a defence within 14 days but his Honour was not prepared to do so. His Honour made the following orders: (1)Notice of motion seeking orders for judgment to be served on the defendant by email. (2)Notice of motion listed for hearing on 14 March 2014. 35Although not ordered to do so by Levy SC DCJ on 24 January 2014, the plaintiffs had notified the defendant of that return date on 31 January 2014. They also notified him of the subsequent hearing date for the application for default (or summary) judgment, namely 14 March 2014. 36On 26 February 2014, a copy of what has been described by the defendant as a "defence" was provided to the solicitors for the plaintiffs by hand delivery to their office. This document, which is annexure D to the affidavit of Mr Ware of 27 February 2014 is a discursive narrative; it first asserts that the first plaintiff is "disqualified" from commencing proceedings as it was incorporated and a "for profit organisation", being part of the "billion dollar organisation" of the Church of England. The defendant states that the emails only went to a few people, that he did not give permission for them to be distributed beyond the recipients, that the plaintiffs were not entitled to any damages, and that he proposed to plead justification, contextual truth, privilege and "fair comment", although no such pleadings were appended. 37The defendant's response to the proposed listing of the application for default judgment on 14 March 2014 was to say that he was in poor health, did not have sufficient funds to retain a lawyer and was not able to come to Sydney. He requested a re-scheduling of the hearing. 38When the matter came before Bozic SC DCJ on 14 March 2014, his Honour made the following orders: (1)Judgment for the plaintiffs against the defendant. (2)Damages to be assessed. (3)Costs. (4)That the proceedings proceed to trial for damages to be assessed. (5)Matter stood over to 28 March 2014 for allocation of a hearing date. (6)Defendant to be notified by plaintiffs of orders made today. 39There is a note on the court file that "short oral reasons" were given, but these are not available. A letter from the plaintiff's solicitors' city agents (Exhibit C) noted the contents of those reasons. This letter, which was tendered, sets out that his Honour viewed the defendant's comments about future legal representation and ill health (and presumably his request for an adjournment) as evidencing that there was no likelihood the defendant would in the near future take any part in the legal proceedings. His Honour also stated that the defendant should not conduct his case through email correspondence, as opposed to filing documents in Court. As no defence (including the "defence" sent to the plaintiff's solicitors, but not the court) had been filed, judgment was entered. 40On 28 March 2014, Bozic SC DCJ made the following orders, and gave a hearing date for the assessment of damages in the defamation list and not in the general list: (1)Parties to file and serve any affidavit material as to the issue of damages by 28 April 2014. (2)Parties to file and serve submissions by 19 May 2014. (3)Matter is listed for hearing (in relation to the default judgment) on 25 July 2014. (4)Plaintiffs are to notify the defendant of these orders. 41On 1 April 2014 the solicitors for the plaintiff wrote to the defendant, notifying him of the hearing on 25 July 2014 and on 28 April 2014 served their affidavits on damages. The plaintiff's written submissions on damages were served on 24 June 2014. A reply from the defendant dated 24 June 2014 contained statements of an abusive nature, threats to go to the media, and repetitions of the libel (Exhibit D). 42A further affidavit was sent on 2 July, resulting in an email response from the defendant, saying: "I hope your client understands what they are unleashing, it may well end as a media frenzy" (affidavit of Mr Ware, Exhibit D). 43The defendant has provided written submissions as to damages to the Court by post, email and fax. As to damages, the defendant submitted that none of the plaintiffs should be awarded any damages, for reasons set out in more detail below.

The remaining issues in this litigation 44Issues such as the capacity of imputations, and the entitlement of the first plaintiff to bring an action for defamation at all, are relevant to liability and not to quantum. This is one of the reasons why default judgment is, as a rule, not entered in defamation proceedings: French v Triple M Melbourne Pty Ltd [2006] VSC 36, citing Altarama Ltd v Forsyth [1981] 1 NSWLR 188. Applications for default judgment in defamation have on occasions been adverted to as possible: see Northumbrian Ice Cream Co Ltd v Breakaway Vending Pty Ltd [2006] NSWSC 1216 at [1], [11]-[12] (application refused on other grounds); Bodenstein v Hope Street Urban Compassion (Supreme Court of New South Wales, McCallum J, 2 December 2013, unreported). 45Such applications are increasingly common in defamation proceedings; for example, in Petrov v Do [2013] NSWSC 1382, where the defendants were a Macedonian newspaper and a person resident in Macedonia, default judgment was entered after no defence was filed, and the damages awarded (totalling $350,000) are the highest amount of general damages awarded under the Act. Other recent examples of default judgment applications resulting in an assessment of damages include Ritson v Burns [2014] NSWSC 272; Stevens v Mayberry [2012] SASC 220; Leech v Green & Gold Energy Pty Ltd [2011] NSWSC 999. The short gaps between the default judgment application and the listing for hearing suggests these hearings bypass case management or list judge lists. Attempts to set aside default or summary judgments of this kind been unsuccessful: Coren v Master Builders Assn of New South Wales Pty Ltd [2014] NSWCA 244; Dossis v Andreadis [2012] SADC 104. 46More recently, perhaps in response to the increasing number of applications for default judgment, the courts have sounded a warning note. Beech-Jones J expressed concern, in Graham v Powell (No 3) 2014 NSWSC 185 at [6] of the "risk of oppression" in entering a default judgment against a litigant in person who cannot file a defence in proper form. Beech-Jones J warned of the need for caution before striking out a defence of this kind (at [6]), although his Honour went on to do so after satisfying himself that publication was not in dispute and the imputations clearly arose (at [7] - [9]). His Honour did not consider it necessary to consider the issue of whether there was any defence to the claim. 47In Royal Society for the Prevention of Cruelty to Animals, New South Wales v Davies [2011] NSWSC 1445, the more cautious course was taken, where no defence had been filed, of listing the matter for hearing on all issues, recording attempts to locate the defendant, putting forward the allegations of fact made by the plaintiff as having been taken to be admitted (Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 14.16) and setting out each part of the plaintiff's claim, in the same manner which would be used for an unrepresented litigant (see also Higgins v Sinclair [2011] NSWSC 163 at [66]). In Royal Society for the Prevention of Cruelty to Animals, New South Wales v Davies, supra, Latham J considered the standing of the plaintiff (which, like the first plaintiff in these proceedings, needed to establish that it was an excluded corporation by reason of s 9(2)(b) Defamation Act 2005 (NSW)), imputations (including both capacity and defamatory meaning) and whether publication and identification had been established. 48That is not the case here. Effectively, none of those tasks may be performed by me, as this is an assessment hearing for damages only, by reason of the entry of default judgment by Bozic SC DCJ. 49The defendant effectively had two months' notice that proceedings had been commenced before judgment was entered. In practical terms, he may have had less, as it would appear that he did not consult his email or mailbox until 31 January 2014, which would explain the circumstances in which he was surprised to find these documents when they were sent to him on 31 January 2014. As January is generally a holiday period, and the defendant said he did not regularly consult his email, I am prepared to assume that while he was served on 10 January 2014, he did not receive any practical or actual notice of these proceedings until the email of 31 January 2014. 50The defendant did not attend Court on 28 February, when the application for default judgment was made. Nor did he attend Court on 14 March 2014 when judgment was entered against him. He was aware, in my view, of both these hearings. I take into account that he told the Court of his ill health and asked for an adjournment of the 14 March hearing, but these were matters which were clearly put before Bozic SC DCJ and rejected by his Honour, who on the day had the benefit of oral submissions from the city agent for the plaintiff's solicitors as to the history of these proceedings: Coren v Master Builders Assn of New South Wales Pty Ltd, supra. 51There has been no application to set aside or appeal (see Coren, supra) the orders made by Bozic SC DCJ. I have carefully examined the affidavits sworn by Mr Ware, including his affidavits of 27 February and 4 March, the affidavit of Ms Cripps Clark of 12 March and the correspondence from the solicitors for the plaintiffs to the defendant prior to the commencement of proceedings. I am satisfied the defendant knew what those orders were, and have been guided by the principles of law and case management set out in Coren v Master Builders Assn of New South Wales Pty Ltd, supra, at [16] et passim. 52I am further satisfied, from the evidence set out in these affidavits, that the defendant was well aware that proceedings were likely if he continued to publish. On 30 September 2013, the solicitors for the plaintiff wrote to him, demanding that all defamatory communications should cease, that he should retract all statements and that he should retract the imputations conveyed in the publications he was making. On 2 October 2013 the solicitors for the plaintiff wrote to the defendant providing a list of defamatory imputations and seeking an undertaking from him that he cease making them, including foreshadowing proceedings for injunctive relief, damages and costs. 53The defendant replied on 3 October 2013, arguing his case and refusing to give any such undertakings. Despite receiving this correspondence, he went on to publish the sixth to twelfth matters complained of, over the next two months. This included further postings on the "Tommy versus Anglican Church" page, which Mr Tommy Campion agreed, on 5 December 2013, to remove, adding: "I thought I had blocked him. I'll have another look. Sorry about that. Todd [the defendant] is a nuisance." (Exhibit M) 54The intemperate response of the defendant to the requests to cease making these posts has been repeated in his correspondence following the commencement of these proceedings. The submissions he has provided to the Court are, like his "defence" (which was in fact never lodged with the Court), a generalised smear of the plaintiffs, interspersed with threats of contacting the media. 55It is generally the case with proceedings in this Court that parties are encouraged to attend mediation or otherwise endeavour to resolve their differences without the cost and expense of a hearing. In the present case, Mr McCall submits, and I agree, that any prospect of mediation is hopeless. 56While I am concerned at the rapidity with which the proceedings moved from commencement to final judgment, I can understand the response of Bozic SC DCJ to the defendant's intemperate correspondence. Finally, and most tellingly, no application has been made to me to adjourn the hearing date, nor has the defendant sought to set aside the judgment and file a defence, which he could have done at any time prior to the hearing. 57Accordingly, I have proceeded with the assessment of damages on the basis of the evidence before me. That evidence has included the defendant's written submissions, which I have marked Exhibit 1, which I have taken into account both in relation to the circumstances in which this case has proceeded to assessment as well as on the issue of damages. 58The defendant does not answer the claim for damages by the second and third defendants beyond repeating the defamatory allegations, in terms which must (in relation to the second and third defendants, who seek aggravated compensatory damages) substantially aggravate the damage caused.

Damages 59Section 34 of the Act provides that the amount of damages awarded must bear an approximate and rational relationship with the harm done. The amount currently gazetted as at 1 July 2014 is $366,000 (s 35). No apology or correction by the defendant in mitigation of the award of damages has been provided (s 38). 60The purpose of an award of damages in defamation is threefold. First there is the consolation for personal distress and hurt caused to each plaintiff. Secondly, there is reparation for damage to the plaintiff's reputation and thirdly, there is the issue of vindication. In practical terms, these purposes overlap: Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at [60]. 61The first plaintiff is a corporation and the plaintiff acknowledges it cannot recover damages for hurt to feelings: Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510, or for aggravated damages: NRMA Insurance Ltd v Flanagan [1982] 1 NSWLR 585.

Extent of publication 62Publication of matter on social media forms part of publication of material of a highly attractive nature, available over the Internet, which is "publication to the world at large" (Higgins v Sinclair, supra, at [16]). 63Seven of the publications were made on the Internet, to an audience which would have been quick to think the worst when reading material of such a sensational nature. The timing of the entries, in circumstances where Mr Campion was about to give evidence at the Royal Commission in November 2013, was critical. 64Out of the remaining publications, all but the seventh matter complained of (which I propose to disregard for the purposes of damages, since it was effectively a publication to the second and third plaintiffs themselves) were made to persons with whom each of the plaintiffs had a professional relationship. Such publications are often described as hitting a plaintiff "where he/she/it lives", in the sense that such publications, although limited, are the more hurtful for being sent to persons with whom the plaintiff has a close relationship. 65All of the matters complained of convey imputations of dishonesty, incompetency and neglect. Of particular seriousness are the following imputations: (a)Imputation (c) in the first matter complained of. (b)Imputation (d) in the second matter complained of. (c)Imputations (d) and (e) in the eighth matter complained of. (d)Imputation (e) of the eleventh matter complained of. (e)Imputation (b) of the twelfth matter complained of. 66While imputations of dishonesty, incompetence and neglect are serious issues, imputations of involvement in child abuse of any kind must be viewed as the most serious imputations capable of being made. 67Mr McCall referred to a number of recent decisions where defamation damages where awarded. In Royal Society for the Prevention of Cruelty to Animals New South Wales v Davies, supra, Latham J referred at [56] to the statement by Hayne J in Rogers v Nationwide News Pty Ltd, supra, that there was a limited utility in comparing awards for defamation. Her Honour went on to note awards in Higgins v Sinclair, supra, of $100,000 to each plaintiff for material published on a website and sent to an email involving allegations of negligence, dishonesty and theft. 68I acknowledge what her Honour says about the comparative value of other damages awards, but more recently, in Cerutti v Crestside Pty Ltd [2014] QCA 33, Applegarth J carefully reviews the relevant principles in relation to damages and (at [46]-[49]) carefully explains the proper use of comparable awards. That includes (at [83]) the position of the defamation of a corporation. I have found his Honour's comments a helpful guide in the correct approach to take to damages generally.

The defendant's submissions 69Although it is unusual to do so, I propose to consider the defendant's submissions first, before turning to the evidence of the plaintiffs. 70The defendant's principal submission, in relation to the first defendant, is that it is not an exempt corporation and cannot bring defamation proceedings. I reject that submission, as the plaintiff has demonstrated, by tender of the Memorandum of Association and the affidavit of its Chief Executive Officer, that it is a not for profit corporation falling within the provisions of s 9(2)(b) of the Act: see Royal Society for the Prevention of Cruelty to Animals, New South Wales v Davies, supra, at [2]-[5]. 71His second submission is that the first plaintiff, if not a corporation, would be "a convicted paedophile for all the sex and other abuse it has committed, admitted to, apologised for and paid some victims compensation for" (Exhibit 1). He goes on to refer to current child abuse inquiries in the United Kingdom, and to claim that the first defendant is a "thoroughly despicable organisation which should have been closed down in disgrace like the News of the World was closed when it was caught behaving badly" (Exhibit 1). 72The circumstances of the closure of News of the World (shut down at its owner's behest, not by process of law) are irrelevant. The News of the World (surprisingly, perhaps) played no part, "despicable" or otherwise, in any of the historic child abuse claims, in children's homes or hospitals, or by clergy or other persons (such as celebrities), currently under investigation in the United Kingdom. 73The defendant employs the "no smoke without fire" approach to the issues in this case (to use Eady J's phrase in Lillie v Newcastle City Council [2002] EWHC 1600 at [361] - [366]). In the course of this judgment, when commenting on somewhat similar general allegations that child sex abuse must have occurred, Eady J rejected what he called a "job lot" of allegations of child abuse could be brought on the basis that it was possible some abuse had occurred at some stage. 74In the present case, there is even less evidence, in that there is no link whatever between the corporate first plaintiff or the individual plaintiffs and the historic allegations forty or more years ago. The NSW Court of Appeal, in Westbus Pty Ltd (Receivers Appointed) v Ishak [2006] NSWCA 198 at [20], similarly warned about the use of "conjecture" to draw conclusions of this kind. 75Contrary to the defendant's claims that such allegations should be protected by "freedom of speech", generalised and unproved allegations are a nuisance to the current ongoing inquiries into historic abuse claims of the kind discussed in Mr Campion's Facebook account. In his Facebook comment of 5 December 2013 (Exhibit M), Mr Campion says that the defendant is just that - "a nuisance". The defendant's claims (paragraph 3 of his submissions) that he had sent "many more" messages to Mr Campion that were not published are a confirmation of Mr Campion's ultimate rejection (after having initially encouraged the defendant until deciding his contributions were not worth publishing) of the defendant's allegations. As for the defendant's (completely irrelevant) references to the importance of revelations such as his to the child abuse inquiries currently being held in the United Kingdom, similar concerns to those referred to by the plaintiffs, about the dangers of exaggerated and unresearched allegations of this nature, have no doubt concerned these investigating bodies and respected child research abuse sites (such as Spotlight). The defendant's submissions only reinforce the danger of the false allegation - so easy to make, and so difficult to refute. 76The defendant not only denies that he consented to publication of the Facebook entries he made but, as to the extent of publication in relation to damages, claims that he was not responsible for the circulation of emails to carers beyond the persons to whom they were addressed. I do not accept these submissions, in light of the evidence to the contrary set out above. 77Having set out the defendant's submissions, and my reasons for not accepting them, I now consider the evidence of the plaintiffs on issues of damages. This evidence was in the form of affidavits which have all been served on the defendant.

The first plaintiff 78In relation to an organisation working in the area of caring of disadvantaged children, imputations that the first plaintiff is dishonest, does not care for the children placed in its care, abuses those children and mistreats foster carers are imputations of great seriousness. The most serious are, as I have already indicated, allegations of abuse of children. Few crimes are more detested than the abuse (particularly sexual abuse) of young and vulnerable children, especially coming from the persons into whose care they have been put. 79Counsel for the plaintiffs submits that vindication can only be achieved by a significant award of damages, which he puts at $50,000. The submissions of the plaintiffs were served upon the defendant. He is therefore familiar with the figure of $50,000 and has responded to it in his submissions. 80As is set out above, the defendant states that none of the plaintiffs should be entitled to any damages. This is an unrealistic submission and I am unimpressed by the defendant's claim that the plaintiff is a "paedophile company". I accept Mr McCall's submission that a substantial award is necessary for vindication purposes and accordingly I propose to award the sum of $50,000. As a corporation, the first plaintiff is not entitled to aggravated compensatory damages.

The second and third plaintiffs 81The second plaintiff holds qualifications in social sciences and foster caring. She commenced employment with the first plaintiff in 2012 after a career in the field of foster care. The imputations raised against her include that she was dishonest, involved in a scam, incompetent, unqualified, treats foster care providers badly and does not care about children under her care. 82The second plaintiff has suffered injury to health as a result of these publications and reacted badly to the twelfth matter complained of, locking herself away in distress and crying. I have read the affidavit of her mother, confirming this incident (affidavit of Ms Rodwell, Exhibit H, at paragraphs 10-13). She was distressed by the fourth to sixth and eighth matters complained of, because she was pregnant at the time, caring for her young daughter and doing so in circumstances where her husband was working away from home. She suffered anxiety and panic attacks and sought treatment from a psychologist. I have read the affidavit of her husband, her mother and Ms Teece setting out their observations of her deep distress, upset, sleeplessness and hurt to feelings generally. 83I am satisfied that the effect upon the second plaintiff was significant and that she suffered greatly as a result of the defendant's actions. The sum necessary to address the three elements of compensation must be significant. 84The second plaintiff also claims aggravated compensatory damages. In Cerutti v Crestside Pty Ltd, supra, at [37]-[40], Applegarth J explains: "[37] Damages may be increased if there is "a lack of bona fides in the defendant's conduct or it is improper or unjustifiable". The aggravating conduct may have occurred in making the publication or at any time up to the assessment of damages. Aggravated damages are compensatory in nature: "The concept of 'aggravated damages' is not, whether calculated separately or not, a different 'head' of damage. It focuses on the circumstances of the wrongdoing which have made the impact of it worse for the plaintiff. It is not to go beyond compensation for the aggravation of the harm to repute or feelings. It is not a means of punishing a defendant." Section 37 of the Act states that a plaintiff cannot be awarded exemplary or punitive damages for defamation. [38] Conduct which is improper, unjustifiable or lacks bona fides may affect reputation. In such a case the damage "continues until it is caused to cease" by an avowal by the defendant that the defamation is untrue or a judgment in the plaintiff's favour. Accordingly, damages may be increased by an unjustifiable failure to apologise or retract, by unjustifiable persistence in making untrue allegations or by the conduct of the defence of proceedings in a manner which is unjustifiable, improper or lacking in bona fides. The robust but reasonable pursuit of a bona fide defence where there is evidence to support it does not permit an award of aggravated damages. Pleading and persisting in a defence of truth without a proper basis does. [39] Conduct which is improper, unjustifiable or lacks bona fides may increase injury to feelings by causing the plaintiff greater indignity. Bad conduct by the defendant may outrage the plaintiff's feelings. In Carson McHugh J stated, "the anger of the plaintiff is placated only when he or she knows that the defendant has been punished for the wrong". However, care is required that an award to compensate the plaintiff for injured feelings has "an appropriate and rational relationship" with the harm sustained and does not contain an impermissible punitive element which exceeds what is necessary to "assuage the hurt, indignation and desire for retribution which the plaintiff feels". [40] Section 36 of the Act requires the court in awarding damages to "disregard the malice or other state of mind of the defendant at the time of the publication of the defamatory matter...or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff." Thus malice or a reckless indifference to the truth or falsity of the publication does not warrant, of itself, an award of aggravated damages. However, if the plaintiff is aware of the defendant's state of mind and this aggravates the plaintiff's hurt feelings, then damages may be increased in order to appropriately compensate. If the defendant's conduct is improper or unjustifiable, this aggravation may be reflected in a separate award of aggravated damages." 85Applegarth J goes on to explain the interaction of aggravated damages and general compensatory damages: "[41] An award of damages in excess of the statutory cap is permitted if the circumstances of publication are such as to warrant an award of aggravated damages. But this does not compel a judge to separately assess aggravated damages. In 1997 this court remarked in the context of a jury's assessment of damages that there was no reason why the jury should have been obliged to answer a distinct question about aggravated damages. Circumstances of aggravation may justify "the court in assessing compensatory damages at a figure higher than that which would have been appropriate without those circumstances; but this does not mean that the increase is a separate category of damages". The court observed: "The jury is not to be invited to perform the difficult intellectual task of first considering the defamation in an abstract way, disregarding the circumstances in which it was published and the extent of publication, and then separately considering how much should be awarded for those matters"." 86The question remains whether aggravated damages should be awarded as a separate assessment or the damages award should be adjusted. I note Applegarth J's statement at [42] that a judge may assess a single amount which is appropriate to compensate for harm caused by the publication and the additional harm resulting from the conduct warranting the award of aggravated compensatory damages. 87Damages may be mitigated in a number of ways, some of which are set out at s 38(1) of the Act. There are no mitigating circumstances in these proceedings. 88Mr McCall submits, and I agree, that an appropriate sum, taking into account these principles, is $100,000. Again, that is a figure with which the defendant is familiar, and I have read his submissions in this regard. I propose to award this sum as the total of general and aggravated damages, in accordance with s 39 of the Act.

The third plaintiff 89The third plaintiff has been employed by the first plaintiff as its General Manager and Chief Executive Officer since August 2010. He is also a member of Anglicare Australia's Council, which is the governing body for Anglicare Australia. 90The imputations made against the third plaintiff are also extremely serious. They are essentially the same as those set out above for the second plaintiff. 91The impact upon the third plaintiff's health has been severe because he has a prior history of depression. As a result of the publication of the matters complained of he sought medical treatment (affidavit of Mr Yourell, paragraph 29). His wife has deposed that his response to the publication has included not only anxiety and depression but insomnia (at paragraphs 3-7). 92In particular, the defendant has expressly charged the third plaintiff with engaging in child abuse. For a man, that is a particularly serious imputation. The written submissions of the defendant inflame the situation by sneering at the third plaintiff's prior history of depression. 93Mr McCall submits, and I agree, that an appropriate award of damages, having regard to the relevant principles set out above, is $100,000. This would reflect the need for a substantial award and the factors warranting an award of aggravated compensatory damages. Again, it is the figure identified in the plaintiffs' submissions served on the defendant, and therefore an amount to which the defendant has had the opportunity to reply. 94I am aware of the dangers of awarding similar sums for plaintiffs in defamation proceedings (see Maxwell-Smith v Warren [2007] NSWCA 270). However, each of the plaintiffs has been careful to plead only imputations in which they are named, and the objections of the Court of Appeal to the awarding of similar sums in Maxwell-Smith v Warren, which appears to have been bound up in the issues of identification discussed in those proceedings as the plaintiffs were not named, would not apply here. 95As requested by counsel for the plaintiffs I have reserved the issues of interest and costs with liberty to apply.

Orders (1)Judgment for the first plaintiff for $50,000. (2)Judgment for the second plaintiff for $100,000. (3)Judgment for the third plaintiff for $100,000. (4)Costs and interest reserved with liberty to apply on 7 days' notice. (5)Exhibits retained for 28 days.

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: 08 August 2014

Associations Incorporations Act 1984(NSW)

(Uniform Civil Procedure Rules 2005(NSW)

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