Reid v Dukic [2016] ACTSC 344

Author: Jasmine Burrows, Progressive Legal

Facts

The plaintiff, Reid, was the CEO of Capital Football Pty Ltd for 12 years before standing down in April 2016.  

The defendant, Dukic, was a soccer coach that published nine posts on Facebook about Reid throughout 2014. 

The plaintiff claimed that the posts were defamatory to her reputation and sought damages and injunctions.  

The defamatory statements in question carried the following imputations that Reid was: 

• grossly incompetent; 
• a liar; 
• a fraud; 
• misappropriating funds; 
• a thief;  
• a negligent manager; 
• racist; and 
• gender biased in favour of women. 

All of Dukic’s posts were aimed at the plaintiff’s conduct in her role as CEO of Capital Football and were the subject of conversation both inside and outside of the plaintiff’s workplace. 

Reid claimed that she felt helpless as the defendant’s comments were baseless and false. 

Reid claimed that she was concerned that people believed Dukic’s posts about her and was deeply hurt by those that interacted with the posts.  

Reid claimed that the posts had induced serious distress and grief that affected her home life with her partner.  

Dukic had around 400 friends on Facebook and 5 to 25 friends liked each post.  

Dukic removed the posts from his Facebook wall on 12 February 2016. The posts had remained on his Facebook page for varying lengths of time, including a maximum of 395 days. 

Dukic sent an email to the court staff stating that he would go into voluntary bankruptcy. He also sent emails to the Reid’s solicitors making complaints about her. 

Dukic failed to file a notice of intention to respond, or a defence. This resulted in a default judgment.  

This case primarily looked at an assessment of damages for the plaintiff.  

Issues

Were Dukic’s posts defamatory to Reid? 

Do the posts warrant an award of damages and injunctions? 

Decision

Judgment was decided in favour of the plaintiff in the sum of $182,700 inclusive of interest.  

This included compensatory damages of $160 000 and aggravated damages of $20 000.  

Injunctions were also ordered restraining the defendant from publishing the matters complained of, or any other similar matters online.  

Reasoning

General Damages

As a result of the default judgment, the Facebook publications were deemed defamatory. Damage to reputation does not need to be proved as it is presumed.  

The award for damages in defamation serve three purposes: 

1. Consolation for personal distress and hurt; 
2. Reparation for harm done to the plaintiff’s personal and business reputation; and  
3. Vindication of the plaintiff’s reputation.  

It is clear the material contained within the defendant’s posts are baseless. The posts were a “sustained, repetitive attack on the Plaintiff’s reputation and character.” 

It was decided that the defendant’s posts had been the source of distress for the plaintiff. The posts had affected her work, the working relationships that she had with her colleagues and caused her to withdraw from the football community. 

It was considered relevant that Dukic’s profile was set to public, rather than private. This meant that the defamatory posts were accessible to everyone, including whether they were a friend of his on Facebook, a Facebook user, or someone that was neither.  

Despite Dukic having about 400 ‘friends’ on his Facebook page, the court relied upon the wider popularity of the Facebook service which is used by approximately 1.5 billion users worldwide.   

The court also noted that the number of “likes” or “comments” that Dukic’s posts received are not representative of the extent of the publication by any means. 

Social media publications have a tendency to spread. The court agreed that the evidence establishes that Dukic’s posts were not confined to a small pool of people, but had infiltrated, at the least, the wider community in the context of football. 

Following French v Fraser (No 3) [2015] NSWSC 1807, the plaintiff became the “Head of Customer Relations” in the retail division of the Commonwealth Bank of Australia. As a result of that role, the defendant commenced targeting the plaintiff over a period of two years. The imputations against the plaintiff in that matter included gross incompetence, dishonest and unethical practices. All imputations in that matter were entirely false. McCallum J referred to the plaintiff as “the target of a senseless vendetta founded in madness”. 

Aggravated Damages

The conduct was deemed to be ‘improper, unjustifiable or lacking in bona fides’ following Triggell v Pheeney (1951) 82 CLR 497. This is the basis for evaluating aggravated damages.  

The following behaviour justifies the making of an award for aggravated damages: 

Dukic accused the plaintiff of being dishonest with her solicitors.  

Dukic accused the plaintiff of wasting the Court’s time. 

Dukic sent an email to the court staff stating that he would go into voluntary bankruptcy. 

Dukic threatened in an email to the plaintiff’s lawyers to release a media statement about the plaintiff ‘breaking the law’. 

Injunctive Relief

Following Hockey v Fairfax Media Publications Pty Ltd & Ors (No 2) [2015] FCA 750, Dukic has demonstrated tendencies to act irrationally and with defiance of any judgment that may be entered.  

His threat to release further material about the plaintiff “breaking the law” is a clear case for the granting of injunctive relief. 

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