Written by Peter CarterMay 29, 2015
The brother of two women with whom he was accused in Txts sent in March 2014 of engaging in consensual and non-consensual sex, has sued the sender for damages he argued should take into account that to be called a paedophile “in the current community climate,” is the worst assassination of a person’s character, possible.
Aroz Hancock sued Nancy Conquest for the offensive messages and sought an injunction restraining her from making or repeating any statements to the effect of those contained in the SMS messages.
In an application in Brisbane’s District Court, judge Nicholas Samios agreed that any accusation bordering on that of paedophilia was of the utmost defamatory nature. He noted that even being accused of having been investigated for sex crimes has in the past brought damages awards of $50k.
The maximum for non-economic loss currently set by the Defamation Act is $366,000 and there must be an appropriate and rational relationship between the harm sustained by the plaintiff and the damages awarded.
In determining whether the $100k claimed by Hancock was reasonable, judge Samios noted he had to disregard any malice of the sender “except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff”.
Damages were rather to be assessed firstly for consolation for the personal distress and hurt caused by the publication, secondly for reparation for the harm done to his reputation and thirdly to vindicate Mr Hancock’s reputation.
“They should include a ‘solatium’ for injured feelings and also should be such as to enable the plaintiff to point to the sum as being sufficient to convince a bystander of the baselessness of the charge.”
The plaintiff produced affidavit evidence that the episode had a serious impact upon him by way of a “grapevine effect” through the family. For example, he is now excluded from family gatherings, whereas before he enjoyed a good relationship.
The court issued the injunctions sought and made a compensatory damages award to the plaintiff of $100k.
Ms Conquest ignored the opportunity to make amends in response to Hancock’s concerns notice, filed no defence to the claim and played no part in the court proceedings.
Noting she “actively sought to avoid being served” with the court process and “showed no remorse”, judge Samios also ordered she pay Hancock’s legal costs on an indemnity basis.