FEDERAL COURT OF AUSTRALIA
Szymczak v Balijepalli (No 2) [2019] FCA 1093
ORDERS
Applicant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. Judgment for the applicant against the respondent for $72,347.40.
2. The applicant have leave for a warrant to be issued for the arrest of the respondent in a form to be approved in accordance with r 41.05 of the Federal Court Rule 2011 (Cth).
3. The respondent pay the applicant’s costs of the proceeding to be taxed on an indemnity basis.
4. Liberty to restore the proceeding to the list on application by either party immediately upon execution of the warrant for the arrest of the respondent by notification to the Associate of Justice Lee.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Revised from the transcript
1 This proceeding for defamation was called on for final hearing today. After being called outside Court three times, there was no appearance on behalf of the respondent. For reasons that will become evident, this is unsurprising.
2 On 4 April 2019, I noted that despite having been served with a defence, and at one stage being represented by solicitors, the respondent had not filed a defence. In those circumstances, I considered it appropriate that there be default judgment in favour of the applicant, and adjourned the matter for further hearing. In doing so, I was satisfied that the respondent was responsible for the impugned publication on the basis that:
(1) he was at all material times the owner and user of the email address: bali.nice81@yahoo.com;
(2) the email address was registered with Yahoo! through the use of IP address 220.244.205.38 as at Saturday 10 January 2015 at 13:43:36 GMT (Identifying IP Address);
(3) the internet service provider for the Identifying IP Address is TPG Internet Pty Ltd; and
(4) the subscriber account holder details for the Identifying IP Address as provided by TPG on 19 July 2018 were those of the respondent.
3 These factual contentions (as to publication of the anonymous email to which I will make further reference below) are made by the applicant based on material in possession of the applicant’s solicitors, and have not been the subject of any contradiction by way of defence by the respondent.
4 In addition to the orders of 4 April 2019 to which I have already referred, I directed the applicant to serve the orders of the Court made that day on the respondent via email and post.
5 I made the orders of 4 April 2019, conscious of the observations of McCallum J in Al Muderis v Duncan [2016] NSWSC 1726 at [3], where her Honour explained that where a respondent in a proceeding for defamation does not appear, it is appropriate for the Court, before finally entering default judgment, to consider the legal question reserved for the Court at final hearing, as to whether the matters complained of are reasonably capable of conveying the pleaded imputations: see also Graham v Powell (No 3) [2014] NSWSC 185 per Beech-Jones J.
6 Accordingly, the matter is before me today for consideration of the following matters: (a) whether the impugned publication is capable of conveying the pleaded imputations; (b) whether they were conveyed; and (c) the assessment of any damages and the entry of judgment.
7 In Szymczak v Balijepall [2019] FCA 234 at [1], I explained that:
The applicant is the chief operating officer of United Petroleum Pty Ltd (United Petroleum) and alleges that in May 2018, the respondent sent an anonymous email to over 600 recipients on the United Petroleum email system, including all employees, franchisees and commission agents, conveying defamatory comments. The detail of the publications and the imputations said to be conveyed are unnecessary to detail for present purposes. The applicant claims damages, including aggravated damages and seeks an order that the respondent be permanently restrained from publishing the matter complained of or any matter to the same effect.
8 I interpolate that relief by way of permanent injunction of publication of the matter was not pressed at the final hearing.
9 The principles relevant to determining both questions of capacity and the natural and ordinary meaning of the impugned publication are unnecessary to rehearse for the purposes of this judgment. The applicant submits that in its natural and ordinary meaning, the impugned publication (which I will not set out in this judgment) contains the following imputations:
(1) the applicant has no ethics or morals;
(2) the applicant makes money by torturing people;
(3) the applicant is responsible for treating United Petroleum franchisees and commission agents as slaves;
(4) the applicant is responsible for operating a business that involves the commission of crimes against humanity; and
(5) the applicant is responsible for operating a large-scale criminal enterprise.
10 The applicant submits that because he is named in the impugned publication and identified as the Chief Operating Officer (COO), the statements made about the operation of United Petroleum are directly attributable to the conduct of the applicant as its COO (T12.20). It seems to me that such submission is clearly correct, and that not only are imputations (1)-(3) capable of being conveyed, I am satisfied they are plainly conveyed on the face of the impugned publication.
11 The last two imputations fall into a different category, and indeed in respect of imputation (4), the applicant was content to submit that an alternative imputation “the applicant is responsible for operating a business that involves the infliction of torture” (T13.25) was an imputation not substantially different in effect than the imputation pleaded. I am satisfied that this alternative imputation, together with imputation (5), was also capable of being conveyed by the impugned publication and was, in fact, conveyed.
12 There is no question that each imputation conveyed is defamatory.
13 Given no defence has been filed, it is then appropriate to turn to the issue of damages.
14 Again, it is unnecessary to detail the well-known principles, the starting point being, of course, s 34 of the Defamation Act 2005 (NSW) (Act) which provides that in determining the amount of damages to be awarded in any defamation proceeding, the Court is to ensure that there is an appropriate and rational relationship between the harm sustained and the amount of damages. The following proposition extracted from the applicant’s submissions at [31] are well established by authority and are a convenient summary of applicable principles (see Wilson v Bauer Media [2017] VSC 521 at [59]):
(a) the purpose of an award of damages in defamation is to provide consolation for hurt to feelings, compensation for damage to reputation, and vindication of the [applicant’s] reputation;
(b) the sum awarded must demonstrate vindication of the [applicant’s] reputation; the level of damages ought to reflect the “high value which the law places upon reputation and, in particular, upon the reputation of those whose work and life depends on their honesty, integrity and judgment”;
(c) the gravity of the libel and the social standing of the parties are relevant to assessing the quantum of damages necessary to vindicate the [applicant]; the award must be sufficient to convince a bystander of the baselessness of the charge;
(d) the “grapevine effect” is relevant and it is clear that by the ordinary function of human nature, the dissemination of defamatory material is rarely confined to those to whom the matter is immediately published; it is well accepted that injury to feelings may constitute a significant part of the harm sustained by an [applicant], and for which an [applicant] is to be compensated by damages; injured feelings include the hurt, anxiety, loss of self-esteem, sense of indignity and the sense of outrage felt by the [applicant].
15 Further, in circumstances where it is contended that it is appropriate for the court to award aggravated damages, it is appropriate to note that the circumstances of aggravation can be found in the respondent’s conduct from the commission of the tort up to the date of the judgment. The aggravating conduct may be found in both the circumstances of publication and the conduct of the respondent (provided the conduct is lacking in bona fides, unjustifiable or in some way improper).
16 The applicant relies on a number of affidavits and gave viva voce evidence before me. I accept the evidence of the applicant who commendably did not seek to “gild the lily” when it came to giving evidence of his subjective hurt. In his oral evidence, the applicant described feeling “a little bit panicked” upon first seeing the email which he regarded as being “patently untrue” (T7.10). After having showed it to his wife and also other members of the family, he was “a bit upset about it” (T7.15); he considered himself “under a bit of pressure” (T7.20) after making a number of calls seeking to minimise the damage occasioned by the dissemination of the matter complained of which it appears was sent to 2703 email addresses and 942 recipients; he felt “a bit helpless” because he “did not know who sent it” (T7. 20); and regarded the “very untrue” (T8.03) contention that he had been concerned with an organisation that treated persons as “slaves” as particularly hurtful.
17 After making the observation that some “mud sticks”, (T8.05) he did not give evidence of any real reputational damage and was appropriately circumspect in suggesting that he is unlikely to suffer any such damage in the future, apart from noting there may be a “small risk” (T8.35) that should he leave his current employer, someone may find out about the allegations made against him.
18 It appeared to me to be quite telling when asked as to why he commenced the proceeding, the applicant indicated that he wished to obtain “closure” (T8.40) and to ensure he has nailed as lies the imputations conveyed by the publication.
19 I was taken to a number of cases which were said to be comparable. Counsel, correctly, accepted that the drawing of direct comparisons between particular cases is apt to mislead: see Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327 at 350 [69]. Despite this caution, consideration of comparable cases may provide some assistance, particularly in undefended matters where there is no contradictor or response to the submissions on damages advanced on behalf of the applicant: see Cerutti & Anor v Crestside Pty Ltd [2014] QCA 33 at [46]-[49]; Fraser v Business News Group Pty Ltd [2018] VSC 196 at [45]. Having said that, I did not find any of the comparable cases to be of particular assistance given the somewhat unusual circumstances of this case.
20 I have already indicated that the publication was an email sent to a large number of recipients. It was couched in such extraordinary terms, and can be described as a capricious fancy. Having said that, it did convey the imputations identified above, and I have no doubt this caused the real distress to which the applicant made reference in his evidence.
21 Additionally, the fact that it was sent anonymously was an aggravating factor in the circumstances of this case. The applicant, more than once in his evidence, indicated his frustration and distress that he could not confront the author, and this deprived him of a fair opportunity to respond promptly. Plainly, the respondent intended to prevent the applicant seeking any remedy and set barriers in the way of any attempt to do so. No doubt this is why it is evident from the publication that the respondent acted with impunity which, no doubt led to the intensity of the attack. Further, I am satisfied the respondent published the words for the improper purpose of, among other things, injuring the applicant’s reputation and that the publication was both malicious and unjustifiable.
22 There is an additional matter relating to the conduct of the proceeding which is also relevant to aggravation. As I will explain below, the respondent, despite being served and appearing briefly in the proceeding, has failed to comply with Court orders and has absented himself from the jurisdiction, preventing the examination of his computer and undermining processes of the Court in seeking to obtain further information concerning the circumstances of publication.
23 As is well known, the purposes of an award for damages are to provide consolation for hurt to feelings, compensation for damage to reputation and vindication of the applicant’s reputation. Although I do not believe the damage to reputation has been widespread, I accept that there has been hurt feelings and that an award of damages will serve the important purpose of vindication. The assessment is necessarily imprecise and, as guided by s 34 of the Act, must be sufficient to demonstrate vindication of the applicant’s reputation and sufficient to convince a bystander of the baselessness of the serious imputations contained in the impugned publication. Additionally, given that I have found there are features of aggravation, when viewed in connexion with general compensatory damages, the damages awarded must also reflect the aggravation caused to the applicant by reason of the conduct of the respondent to which I have made reference.
24 In all the circumstances, it seems to me that an amount of $70,000 is appropriate.
25 Before leaving this matter, there is an outstanding issue that must be dealt with. In Szymczak, I gave my reasons for making the following orders on 15 February 2019:
(1) Ananth Balijepalli attend before the Court at 10.15am on 18 March 2019 to be examined orally about the description of any person who participated in the publication of an email dated 6 May 2018, that is Schedule A to the statement of claim in this proceeding (Email), being a Prospective Respondent; and
(2) Ananth Balijepalli on or before 18 March 2019 produce to the Court any document or thing in Ananth Balijepalli’s control relating to the Email, the Email Recipients or containing the Prospective Respondent‘s description, including:
(a) the device used to send the Email on 6 May 2018;
(b) any device used that received or retained the list of the recipients to whom the Email was sent (the Recipients); and
(c) any communication between Ananth Balijepalli and any person relating to the Email, the list of the Recipients or any other communication intended to be sent to the Recipients.
26 The chronology both prior to and subsequent to these orders was as follows:
DATES
18 December 2018 Originating Application filed by the applicant.
21 December 2018 Originating Application and Statement of Claim served on the respondent.
23 January 2019 Respondent travels to India.
3 February 2019 Respondent returns to Australia.
4 February 2019 An application for preliminary discovery served on the respondent, with a return date of 15 February 2019.
15 February 2019 First case management hearing and return of application for discovery, at which time the orders identified above were made.
21 February 2019 Respondent served with orders made on 15 February 2019, with a cover letter indicating that in the event of non-appearance, an application would be made under FCR 41.05 for the issue of a warrant for the arrest of the respondent.
24 February 2019 Respondent departs again for India, where he has thereafter remained.
15 March 2019 Respondent provides an affidavit (Exhibit A) dated 14 March 2019 to the Court, indicating that he flew back to India on
24 February 2019 to be with his parents and take responsibility for them, and that he was currently experiencing financial, mental and emotional distress, and requested the Court to adjourn the matter to a “later date”.
18 March 2019 At the interlocutory hearing, the applicant applies for a warrant for the arrest of the respondent, and the respondent appears by his solicitor, seeking an adjournment of the requirement of compliance to produce the documents the subject of the order, with the matter being adjourned to 4 April 2019 for there to be compliance with the order.
4 April 2019 No attendance by the respondent, with the application for the issue of the warrant to be stood over to the final hearing.
10 April 2019 Orders made on 14 April 2019 and transcript served on the respondent.
28 May 2019 Respondent provides a further affidavit to the Court (Exhibit B) in which he denies publication and asks the Court to dismiss the proceeding.
27 Exhibits A and B were before the Court but subject to a limitation that they be admitted only as reflecting the awareness of the respondent of what was occurring during the course of the proceeding, but not evidence of the representations deposed to by the deponent who, despite being well aware of the proceeding, has not appeared. Needless to say, prima facie, it is wholly unacceptable that having been served with an order requiring the production of the device used to send the impugned publication, and requiring his attendance at Court for the purposes of examination, the respondent has absented himself from the jurisdiction and taken no steps, despite at one stage in the proceeding being represented by solicitors, to provide any measure of compliance with the orders of the Court.
28 The respondent left Australia three days after the service of an order made by the Court, and has thus far demonstrated no intention whatsoever of complying with it in a satisfactory way. In these circumstances, the applicant seeks an order under FCR 41.05, which is in the following terms:
41.05 Failure to attend Court in response to subpoena or order
(1) If the Court has issued a subpoena or made an order that a person attend Court:
(a) to give evidence; or
(b) to produce any document or thing; or
(c) to answer a charge of contempt; or
(d) for any other reason;
and the person fails to attend, a party may apply to the Court for an order that a warrant, in accordance with Form 90, issue to the Sheriff, or another person named in the warrant:
(e) for the person’s arrest and detention in custody until the person is brought before the Court; and
(f) for the production of the person before the Court.
(2) Subrule (1) does not limit the power of the court to punish for contempt.
(3) This rule does not apply to an order or direction of the Court requiring a party to comply with these Rules.
29 Although the rule does not limit the power of the Court to punish for contempt, there is no proposal on behalf of the applicant to make an allegation that the respondent is guilty of contempt. As I explained in Szymczak at [3], the intention of the applicant was to obtain further information as to persons who might be prospective respondents, as being involved in the publication of the impugned matter.
30 I am satisfied that the order was duly issued and properly served, and I am not satisfied that any reasonable excuse has been communicated by the respondent, at least at this stage, as to his non-compliance with the terms of the order. This does not foreclose the possibility that some reasonable excuse will be provided by the respondent, should he attend Court, but it seems to me necessary to vindicate the processes of the Court that a warrant be issued to ensure that he be brought before the Court in order for him to either comply with the order, or seek to be heard in relation to its terms.
31 In all the circumstances, this seems to me a case where an appropriately framed warrant, which reflects the basis upon which the warrant has been issued, should be issued.
32 Accordingly, the orders of the Court will be as follows:
(1) Judgment for the applicant against the respondent for $72,347.40.
(2) The applicant have leave for a warrant to be issued for the arrest of the respondent in a form to be approved in accordance with FCR 41.05.
(3) Liberty to restore the proceeding to the list on application by either party immediately upon execution of the warrant for the arrest of the respondent by notification to the Associate of Justice Lee.
33 The applicant applies for indemnity costs. The conduct of the proceeding by the respondent has been, for the reasons explained above, entirely unsatisfactory and caused unnecessary expense. Given my requirement to have regard to the overarching purposes in exercising my costs discretion, it seems to me that this unreasonable behaviour merits an award of indemnity costs, notwithstanding that the exercise of my discretion to award costs is compensatory and not punitive.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. |
