Written by Peter CarterAugust 27, 2016
When David Kasik posted that his ex-wife “turned out to be a thieving, lying, money crazed bitch who screwed me out of nearly 3 million rand – may she rot in hell”, he claimed to have intended only a private message in reply to a mutual friend who was enquiring after the health of the ex.
He removed the post less than 24 hours later but not before another mutual friend who had read it in South Africa notified his ex, Julie Kenealle.
Kasik defended the resulting Magistrates Court defamation lawsuit on the ground that there was no evidence the post had been viewed in Queensland with the only definitive accounts of it having been viewed coming from Melbourne and Durban in South Africa.
The court noted that each Australian State has jurisdiction under their respective Defamation Acts if a defamation is proved to have occurred in any other state.
In this instance, publication in Victoria was therefore sufficient for the Queensland court to attract jurisdiction and then to consider the damage caused to the plaintiff in all places where it was published including the RSA.
That preliminary issue out of the way the court was satisfied that the post carried the imputation that Julie was “a thief, dishonest and of bad character in relation to issues of money”.
The words “money crazed bitch” did not though, carry that she had a mental disorder. Rather that was a “colloquial adverse reference to her character”.
Kenealle estimated in evidence that because she and her ex had a common network of at least 300 – 350 friends in South Africa and 40-50 in Yepoon 60% of whom were connected with them on Facebook.
The court ruled the statement was defamatory regardless of how far and wide it had been published.
Turning to assessment of damages, it was noted an order for “at least the minimum necessary to signal to the public the vindication of Kenealle’s reputation” was required to be made.
Other factors to be included in the computation were any need to provide consolation for personal distress suffered and to compensate for the harm actually occasioned both here and in South Africa (none was claimed).
The court acknowledged the “grapevine effect” – secondary publication or wider discussion and repetition among a broader group of people than those to whom the publication was made and may continue – also had to be taken into account.
The Magistrate accepted that Kenealle was hurt, frustrated and irritated by the post rather than “crushed or demoralised”. It appeared to have no impact upon her social activities or close personal relationships.
A vindication only award of $10k was made in Kenealle’s favour.