Case Law: Australia, North Coast Children’s Home Inc. v Keith Martin, the perils of digital defamation – Yvonne Kux

17 08 2014

gazetteIn the case of  North Coast Children’s Home Inc. trading as Child & Adolescent Specialist Programs & Accommodation (CASPA) v Martin ([2014] NSWDC 125) a foster care organisation and two of its employees who sued over Facebook posts and emails which alleged child abuse, have been awarded a total of $250,000 in damages.

NSW District Court Judge Judith Gibson included aggravated damages in two awards of $100,000 each to the employees, who she described as having suffered injury to their health.

Background

The North Coast Children’s Home in Lismore and two of its staff, Naarah Rodwell and Todd Yourell launched defamation proceedings against Keith Martin over 12 separate publications – seven Facebook posts and five emails sent to various recipients including foster carers and the director of professional standards, Anglican Diocese of Newcastle/Armidale/Grafton.

As Judge Gibson noted:

“It 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.”

Her Honour also noted that:

“The inquiry currently being undertaken by the Royal Commission into Institutional Responses to Child Abuse 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.”

Martin posted the Facebook comments on a page titled Tommy versus Anglican Church in August, September, October and November last year.

Richard “Tommy” Campion (pic) who gave evidence to the Royal Commission about the abuse he suffered 30-40 years ago, hosts the site.

According to Judge Gibson, “the site had a large and active following”.

The defendant also wrote emails to various people – foster carers, the director of professional standards at the Anglican Diocese and Fostering NSW.

The home pleaded a host of imputations including that it was dishonest, neglected and abused children under its care, lied to foster carers and misused funds.

Rodwell and Yourell pleaded similar imputations including that they do not care about the children under their care, they are bullies, child abusers, incompetent, they engaged in a scam, treated foster carers badly and deserve to be dismissed.

After the defendant failed to respond to the commencement of proceedings, the plaintiffs sought a default judgment.

Martin then hand-delivered to the plaintiffs’ solicitors a “defence”, which Judge Gibson described as “a discursive narrative”.

“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.”

On March 14, NSW District Court Judge Michael Bozic entered a default judgment for the plaintiffs, noting that “the defendant should not conduct his case through email correspondence, as opposed to filing documents in court”.

He stood the matter over for the assessment of damages.

Damages

The plaintiff’s written submissions on damages were served on June 24, 2014.

Judge Gibson noted that the defendant’s reply “contained statements of an abusive nature, threats to go to the media, and repetitions of the libel”.

Martin’s submissions were forwarded via post, email and fax and stated that “none of the plaintiffs should be awarded any damages”.

In assessing the appropriate damages, Judge Gibson concluded that the defendant “was well aware that proceedings were likely if he continued to publish” and that his response continued to be “intemperate” when asked to cease making Facebook posts of a defamatory nature.

Some of the posts were later removed by the Facebook page operator, Tommy Campion, although in assessing damages Judge Gibson took into account the following:

“The timing of the entries, in circumstances where Mr Campion was about to give evidence at the Royal Commission in November 2013, was critical.”

Judge Gibson awarded the home, a not-for-profit corporation, damages of $50,000.

The employees were awarded $100,000 each, with Her Honour stating:

“While 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.”

She added:

“The defendant’s submissions only reinforce the danger of the false allegation – so easy to make, and so difficult to refute.”

The damages awarded to Rodwell and Yourell included an amount for aggravation.

This case report was originally published in the Gazette of Law and Journalism, Australia’s leading online media law publication.


Actions

Information

Leave a Reply




%d bloggers like this: