Citation: Egan v Santamaria [2021] NSWDC 418
Court: District Court of New South Wales
Date: 19 August 2021
Judge: Gibson DCJ
Background
The plaintiff was a man who had separated from his wife in early 2018. The defendant was the plaintiff's former brother-in-law, an accountant employed in Bondi Junction. Following the marital breakdown, the defendant sent a series of eight emails to a wide and varied audience, including politicians, a media organisation, local council members, legal practitioners, and the plaintiff's accountants, business associates, and friends.
The emails were written in inflammatory language and contained false imputations of serious misconduct. The alleged imputations included corrupt dealings with police, physical abuse of the plaintiff's former wife and son, condoning abuse of the son by the plaintiff's own father, being arrested for distributing racist pamphlets, and using corrupt police connections to avoid prosecution.
The plaintiff commenced defamation proceedings in July 2020. Despite briefly retaining solicitors and consenting to court orders, the defendant ultimately failed to file a defence. Judgment was entered against him on 24 June 2021, and the matter proceeded to an assessment of damages hearing conducted in the defendant's absence.
Legal Issues
- Whether the court could proceed to assess damages in the complete absence of the defendant
- What level of general damages was appropriate for the defamatory publications, having regard to the nature of the imputations and the breadth of publication
- Whether aggravated damages were warranted on the facts
- Whether any mitigating factors should reduce the quantum of damages
Decision
The District Court was satisfied it could proceed in the defendant's absence under r 29.7 of the Uniform Civil Procedure Rules 2005 (NSW). The procedural history made plain that the defendant was aware of the proceedings: he had entered an appearance through solicitors, consented to court orders, and then allowed his solicitors to cease acting without engaging further. Despite being served with the plaintiff's evidence, he took no part in the damages hearing.
On quantum, Gibson DCJ considered the gravity of the imputations themselves. Allegations of corruption, racism, domestic violence, and criminal conduct are among the most serious that can be made against a person. The breadth of publication was also significant: the emails reached politicians, lawyers, a media organisation, council members, and people close to the plaintiff personally and professionally.
The court applied the "grapevine effect", recognising that the damage from defamatory publications spreads beyond the identifiable recipients to others who may hear the allegations second or third hand. Witness evidence before the court confirmed actual reputational harm and personal distress to the plaintiff, not merely theoretical or speculative injury.
Aggravated damages were awarded on the basis that the defendant's overall conduct was contumelious and high-handed, and had exacerbated the plaintiff's hurt. Gibson DCJ considered but declined to apply any discount on the basis that the emails read as irrational rants, distinguishing the position taken in French v Fraser and finding that the evidence showed recipients had taken the content seriously.
Orders Made
- Judgment for the plaintiff in the sum of $250,000
- Interest at 3.5% from 9 July 2019, totalling $18,506.85, bringing the total judgment to $268,506.85
- The defendant to pay the plaintiff's costs, with liberty to apply for indemnity costs and/or a gross sum costs order
Key Takeaways
- The District Court confirmed it may proceed to assess damages in the complete absence of a defendant who has defaulted on pleadings, provided the defendant has been properly served with the evidence and given adequate notice of the hearing.
- Where defamatory emails are sent to a broad audience spanning professional, political, and personal contacts, the grapevine effect can substantially increase the assessed harm, even where the precise number of recipients cannot be determined.
- Imputations of corruption, racism, domestic violence, and criminal conduct are treated as among the most serious in defamation law, and the court assessed damages accordingly.
- Aggravated damages are available where the defendant's overall conduct throughout the relevant period was contumelious and high-handed, going beyond the publications themselves.
- The argument that inflammatory or irrational-sounding emails should attract a discount in damages will not succeed where evidence establishes that recipients actually took the content seriously and harm to reputation was real rather than theoretical.
Legislation and Cases Referenced
Legislation
- Uniform Civil Procedure Rules 2005 (NSW), r 29.7
Cases
- Anderson v Mirror Newspapers Ltd (No 2) (1986) 5 NSWLR 735
- Bauer Media v Wilson [2018] VSCA 154; 56 VR 674; 361 ALR 642
- French v Fraser [2015] NSWSC 1807
- Gayle v Fairfax Media Publications Pty Ltd (No 2) [2018] NSWSC 1838
- Kostov v Amelie Housing [2018] NSWSC 1800
- Nugawela v Crampton (1996) 41 NSWLR 176
- Satz v CAN 069 808 957 Pty Ltd [2010] NSWAC 365