A defamation claim in McEwan v McDaniel [2020] QDC 321, is a case where the Court considered an application brought by Mr McEwan for alleged defamatory comments made by Mr McDaniel in a video, and then posted to Facebook.
The statement of claim alleges that the publication by the defendant contained defamatory imputations such as calling the plaintiff a “weasel”, a “petty little man” and a “dill pickle”.
The statement of claim alleges that the defendant also states that the plaintiff’s business products “suck” and are “crappy”.
The defendant did not file a defence to the defamation claim. The plaintiff obtained default judgment with damages to be assessed. The matter proceeded to a damages hearing.
The Court considered how to calculate damages for non-economic loss for one defamatory publication by the defendant which made assertions about the plaintiff personally and about his business.
The Court also considered whether an award of damages should be made in the circumstances.
This case note will discuss McEwan v McDaniel.
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Background to the Defamation Claim
The plaintiff owns a business trading as Silverlake Australia Martial Arts (“SAMAS”), supplying fight equipment and clothing to the mixed martial arts (“MMA”) community.
The plaintiff also sponsored fighters, which included (inter alia) providing SAMAS clothing to fighters.
The plaintiff did not think that he was required to pay for fighters’ travel costs. The plaintiff considered promoters were the persons required to pay for fighters’ the travel costs.
The plaintiff had been a sponsor of Brian Morley (“Brian”), who was a fighter with special needs.
The evidence in the case seems to say that the plaintiff has refused to pay for Brian to fly from Melbourne to attend a fight in Brisbane.
After the defendant stated that he would find a sponsor for Brian, the plaintiff responded by stating that Brian contracted to him, and that he would not endorse or sponsor Brian to attend and/or the plaintiff would not allow Brian to attend.
The Publication on Facebook
On 16 October 2019, the defendant uploaded a video publicly on Facebook with a post.
In the statement of claim, it is alleged that the video stated words including (inter alia):
Identified the plaintiff by name;
Referred to the plaintiff as a “weasel”;
Stated that the plaintiff’s business “sucks”; and
Stated that the plaintiff’s products are “crappy”.
In the statement of claim, it is alleged that the written post stated:
David McEwan you’re a weasel of a man.
How you can do this to someone like Brian Morley who is the sweetest personality around just because “You won’t get anything out of it.” You were supposed to be his friend. But you’re a weasel. Straight up.
You’re a petty little man David and you don’t deserve the gum I scrape off my shoe.
Everyone needs to name and shame this dill pickle. He is a pretender to Brian as a friend and not really his friend. Or a sponsor. Just poses to help his business.
SAMAS gear in my opinion sucks anyway and it totally represents the attitude of the owner. #SAMASSUCKS”
On 18 October 2019, the video and post were removed by Facebook.
The post and the video were live for two (2) days, tagged 41 other users, had received 75 likes and 90 comments. It had also been shared by seven (7) other people.
The Defamatory Imputations
These publications contained a number of defamatory imputations about the plaintiff personally. These include:
That the plaintiff is a weasel or weaselly; is a petty little man; and is a dill pickle.
These publications contained a number of defamatory imputations about SAMAS. These include:
That the equipment sucks (in his opinion), and they are crappy.
The imputations will also carry their usual or common meaning.
When is an Imputation Defamatory?
The imputation contained in a publication is defamatory if it:
- Put’s the person/business in the position of being shunned and avoided; and/or
- Injures the reputation of the person/business by exposing it to hatred, contempt, ridicule, or being though less of; and/or
- Lowers the person/businesses estimation in the eyes of right-thinking, or reasonable members of the society generally.
So, on one reading of this case it might be considered that the Facebook post and video were defamatory.
The Court then considered the evidence.
The Evidence in the Defamation Claim
Because there was no defence by the defendant, the statement of claim is essentially undisputed.
There was no evidence of actual monetary damage or loss.
There was also no evidence in relation to what the plaintiff’s reputation was within the MMA industry prior to the publication or after, except from an earlier hearing where the plaintiff commented:
I am sort of in the upper echelon of my world.
There was also no evidence in relation to the size of SAMAS or the number of sponsored fighters.
The plaintiff says he was subjected to “public humiliation, vilification and ridicule.”
The plaintiff also states that he received abusive and aggressive messages from people in the MMA world. By way of example of this, the plaintiff provided an extract from his Facebook messenger chat with a customer of SAMAS (“COS”), which says:
COS: Fuck me mate you’ve upset a lot of people.
P: It’s all rubbish.
COS: What’s the go. MMA community is in uproar about you.
P: No contract. No pay. And they want me to pay for it. No thanks, not the way I do business. We are not a charity. Charges will be pressed next week.
COS: You have to be kidding right? Talking contracts for someone like Brian is weak as piss. You won’t be doing much business after this fuck up. You legit or pulling my leg about contracts? You can’t be that stupid can you?
There was no evidence of the business of the plaintiff being affected.
The Court considered whether the approach taken by the plaintiff to Brian was appropriate, as Brian gave evidence as to feeling intimidated by the plaintiff.
Approach Taken by the Court
The Court said that:
It was not apparent from his oral evidence that the plaintiff had any hurt feelings or distress as a result of the video or post.
Sheridan DCJ considered that the main purpose of the proceeding was not to save his reputation, but a monetary reward.
Sheridan DCJ also did not accept that the plaintiff suffered distress or hurt feelings, referring to evidence given at two (2) hearings, where the plaintiff said:
If every time someone whinged at you, then you reported it, you’d never do anything else but that, you know, so I take it with a grain of salt. I’ve got thick skin. I’ve been in business for 40 years.
And
…your Honour, if I took issue with every hater, honestly, it’s – the skin’s thicker than that. I can’t walk. I’m sorry. This – this was – this stuff was coming through my feed on a regular basis, but I just delete it. Do you know? I didn’t get where I am today.
An affidavit of the plaintiff states that Brian terminated his relationship with the plaintiff. The plaintiff says it was because of the defendant.
However, Her Honour Judge Sheridan stated that it appeared to have been as a result of the plaintiff’s own actions by:
- Refusing to pay for a flight for Brian; and
- The plaintiff’s reaction to the defendant making other arrangements for Brian.
Defamation Claim Damages Generally
Because there was no evidence of any actual loss to the plaintiff, an award of damages serves three (3) overlapping purposes.
Following Carson v John Fairfax & Sons Ltd & Slee [1993] HCA 31, these are:
(a) Consolation for the plaintiff’s hurt and distress caused by the publication;
(b) Reparation for the harm done to the plaintiff’s reputation; and
(c) Vindication of the plaintiff’s reputation.
At section 35 of the Defamation Act 2005 (Qld), these damages are capped in the amount of $250,000.00.
No aggravated damages were claimed by the plaintiff. Her Honour referred to the following cases.
Citing Carson v John Fairfax & Sons Ltd & Slee [1993] HCA 31, Sheridan DCJ said:
The purpose of an award of damages is not to punish the defendant but to compensate the plaintiff. There is no precise formula for the calculation of damages. The amount is arrived at by “good sense and sound instincts” and by “what is a fair and reasonable award, having regard to all the circumstances of the case.”
In Wilson v Bauer Media Pty Ltd [2017] VSC 521, Dixon J said:
The extent of publication and the seriousness of the defamatory sting are pertinent considerations.
In Smith v Lucht [2016] QCA 267, Margaret McMurdo P and Philippides JA and Flanagan J said:
The respondent submits that hurt feelings is, on an orthodox view of the law of defamation, a matter relevant only to damages. There is no legal presumption that a plaintiff is entitled to damages for distress or hurt to feelings. Such matters must be established on the evidence and the Court’s assessment of it.
In Rogers v Nationwide News Pty Ltd [2003] HCA 52, Gummow, Hayne, Callinan and Heydon JJ Said:
Nowhere in the reasons of the Court of Appeal is to be found any reference to the effect of this publication on the appellant beyond general statements that the appellant was entitled to be compensated for his distress and hurt feelings. Stein JA, with whose reasons in this respect the other members of the Court agreed, emphasised that only a “necessarily limited number of readers” of the article would have recognised that the appellant was the surgeon to whom it referred but did not name. No doubt that is so. But in significant respects the assessment of damages had to take account of the subjective response of the appellant.
Lastly, section 34 of the Defamation Act 2005 (Qld) states:
In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.
Her Honour Sheridan DCJ then proceeded to assess the damages in this case.
Assessment of Damages in this Defamation Claim
Sheridan DCJ weighed up all of the elements, namely:
- The words being little more than abusive, and simply a value judgment about the plaintiff’s conduct.
- The publication only had limited exposure to those within the MMA industry.
- There was no evidence of the plaintiff’s reputation, and no evidence of damage to that reputation.
The Court said:
The plaintiff’s reputation appears to have been caused by his own conduct not by the publication, and that the plaintiff did not suffer in truth any hurt feelings or distress as a result of the publications, the award of damages should be very low.
Topping off the judgment by saying “Doing the best that I can, I assess damages in the sum of $100”.
Awarding costs on the Magistrates Court scale fixed in the amount of $465.65.
What to Take Away from This Case
With the increase in defamation claims, especially in the online arena, the case must be genuine and must have actually caused damage to the plaintiff’s reputation.
A defamation claim is not an opportunity to simply get a easy cash pay-out.
The damage and loss suffered must be related to the publication and should not be the fault of the plaintiff.
You should be nice to Brian.
Contact our defamation lawyers today if you have a genuine defamation case, or call for a free 30 minute chat to see if you have a genuine defamation claim in Queensland.
CONTACT OUR LAWYERS FOR FREE TODAY
OR CALL: 1300 545 133 FOR A FREE PHONE CONSULTATION
