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District Court 7 May 2020

Goldberg v Voigt

[2020] NSWDC 174

Other
DEFAMATION APPLICATION FOR ASSESSMENT OF DAMAGES OFFER TO MAKE AMENDS OUT OF TIME STATEMENT OF CLAIM AS CONCERNS NOTICE FACEBOOK PUBLICATION CLOSED GROUP

Citation: Goldberg v Voigt [2020] NSWDC 174
Court: District Court of New South Wales
Date: 7 May 2020
Judge(s): Weinstein SC DCJ

Background

The plaintiff was a resident of Rose Bay who had been active on local community websites. The defendant posted a warning about him on the "Rose Bay Community – Original and Official Group Facebook Page" on 16 November 2018. The post, addressed to "Dear Women of Rose Bay," urged women to be "extremely careful" when interacting with him online.

The post accused the plaintiff of getting "his kicks" from intimidating, bullying, and threatening women, and of finding out where women lived to hand-deliver mail to their homes. Critically, the post also stated that "too many women have been killed by stalkers and unstable people," in a passage the court found tied directly to the plaintiff.

The plaintiff filed a statement of claim ten days after the post appeared. The defendant did not remove the post until she was served with that statement of claim in March 2019, roughly four months after the original publication. Her defence relied principally on two offers of amends, both made after the publication and after service of the claim.

  • Whether the Facebook post conveyed each of the thirteen pleaded defamatory imputations about the plaintiff, including that he was a stalker, likely to kill women, and mentally unstable
  • Whether the defendant's offers of amends were made out of time and therefore did not constitute a valid defence
  • The appropriate quantum of damages, including whether aggravated damages applied
  • Costs, including in related separate proceedings

Decision

The court found that all thirteen pleaded imputations were conveyed to an ordinary reasonable reader. The most serious imputations, that the plaintiff was a stalker (Imputation J), was likely to kill women (Imputation K), and was so mentally unstable he was likely to kill women (Imputation L), were found to be clearly conveyed by reading the post as a whole. The defendant's argument that the reference to women killed by stalkers was merely a general social commentary, rather than an allegation about the plaintiff specifically, was rejected.

The defendant's offers of amends were made after the statement of claim had been served, placing them outside the relevant timeframe under the Defamation Act 2005. That defence therefore failed. The court also found that the statement of claim itself satisfied the requirements of a concerns notice for the purposes of the Act.

On damages, the court acknowledged that dissemination was limited: the post appeared in a closed community Facebook group. The court applied the "grapevine effect" principle, recognising that defamatory material published online can spread beyond its initial audience even when access is nominally restricted. Four matters were found to have aggravated the plaintiff's damages, including the defendant's failure to remove the post until service of legal proceedings and subsequent conduct that increased hurt to the plaintiff's feelings. These aggravating factors were described as slight in the overall context of limited dissemination.

Taking all circumstances into account, the court awarded $35,000 in damages, inclusive of aggravated damages.

Orders Made

  • The plaintiff is awarded $35,000 in damages for defamation.
  • The question of costs in the defamation proceedings is reserved, with the parties to be heard.
  • In the related proceedings (2019/00294969), the plaintiff is ordered to pay the defendant a fixed sum of $8,000 for her costs, the court finding those proceedings should never have been commenced.

Key Takeaways

  • The District Court confirmed that a Facebook post within a closed community group can still carry serious defamatory imputations, and that limited dissemination goes to quantum rather than liability.
  • Where a post is read as a whole, a reference to women being killed by stalkers can be found to impute that the named individual is a stalker likely to kill, even without an explicit statement to that effect.
  • Offers of amends made after service of a statement of claim fall outside the statutory window under the Defamation Act 2005 and will not constitute a valid defence.
  • A statement of claim may satisfy the requirements of a concerns notice under the Act, depending on its content, though this point warranted careful scrutiny in the proceedings.
  • Aggravated damages remained available where the defendant's post-publication conduct increased the plaintiff's hurt to feelings, but such aggravation does not justify a substantially elevated award where the original publication was of limited reach.

Legislation and Cases Referenced

Legislation
- Defamation Act 2005 (NSW)

Cases
- Bolton v Stoltenberg [2018] NSWSC 1518
- Carson v John Fairfax & Sons (1993) 178 CLR 44
- Collier v Country Women's Association of NSW [2017] NSWSC 1573
- Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86
- Cripps v Vakras [2014] VSC 279
- Hockey v Fairfax Media [2015] FCA 652
- Mohareb v Booth [2020] NSWCA 49
- Palmer Bruyn & Parker v Parsons (2001) 208 CLR 388
- Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496
- Triggell v Pheeney (1951) 82 CLR 497
- Zoef v Nationwide News Pty Ltd [2016] NSWCA 283