SUPREME COURT OF QUEENSLAND

CITATION:

Sierocki & Anor v Klerck & Ors (No 2) [2015] QSC 92

PARTIES:

JARROD SIEROCKI

(first plaintiff)

INSOLVENCY GUARDIAN PTY LTD

ACN 149 298 313

(second plaintiff)

v

PAUL GRANT KLERCK

(first defendant)

INTERACTIVE ENTERTAINMENT AUSTRALIA PTY

LTD

ACN 068 003 805

(second defendant)

SK & ASSOCIATES PTY LTD

ACN 155 04t 491

(third defendant)

BRENT THOMPSON

(fourth defendant)

INFOLINK IT PTY LTD

ACN 128 081 489

(fifth defendant)

CHRISTINE WAKE

(sixth defendant)

FILE NO/S:

SC No 638 of 2013

DIVISION:

Trial

PROCEEDING:

Hearing

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 April 2015

DELIVERED AT:

Brisbane

HEARING DATE:

30 March 2015; 8 April 2015

JUDGE:

Flanagan J

ORDER:

1. That the first defendant pay to the first plaintiff damages for defamation in the sum of $80,000.00 plus interest in the amount of $11,627.20;

2. That the second defendant pay to the first plaintiff damages for defamation in the sum of $20,000.00 plus interest in the amount of $2,906.80;

3. That the third defendant pay to the first plaintiff damages for defamation in the sum of $20,000.00 plus interest in the amount of $2,906.80;

4. That the fourth defendant pay to the first plaintiff damages for defamation in the sum of $60,000.00 plus interest in the amount of $8,720.40; That the fifth defendant pay to the first plaintiff damages for defamation in the sum of $10,000.00 plus interest in the amount of $1,453.40; That the first defendant pay to the second plaintiff damages for defamation in the sum of $30,000.00 plus interest in the amount of $4,360.20; That the second defendant pay to the second plaintiff damages for defamation in the sum of $5,000.00 plus interest in the amount of $726.70; That the third defendant pay to the second plaintiff damages for defamation in the sum of $10,000.00 plus interest in the amount of $1,453.40; That the fourth defendant pay to the second plaintiff damages for defamation in the sum of $20,000.00 plus interest in the amount of $2,906.80; and That the fifth defendant pay to the second plaintiff damages for defamation in the sum of $5,000.00 plus interest in the amount of $726.70. The first defendant is permanently restrained, by himself and/or his servants or agents from publishing or causing to be published:

(a) any of the ten matters complained of in paragraphs 6, 12, 18,22,26,32r 38, 45,49 and 58 of the amended statement of claim filed 26 April 2013 in these proceedings or matters substantially to the same effect as those matters complained of, on the internet or otherwise;

and

(b) any of the imputations pleaded in the amended statement of claim filed 26 April 2013 of and concerning the first plaintiff, or any imputation that does not differ in substance to any of those imputations.

The fourth defendant is permanently restrained, by himself and/or his servants or agents from publishing or causing to be published:

(a) any of the two matters complained of in paragraphs 38 and 58 of the amended statement of claim filed 26 April 2013 in these proceedings or matters substantially to the same effect as those matters complained of, on the internet or otherwise; and

(b) any of the imputations pleaded in paragraphs 39 and 59 of the amended statement of claim filed 26 April 2013 in these proceedings of and concerning the first plaintiff, or any imputation that does not differ in substance to any of those imputations.

CATCHWORDS:

DEFAMATION – DAMAGES – GENERAL DAMAGES – ASSESSMENT – IN GENERAL – where judgment had been awarded against the first to fifth defendants pursuant to r 374 of the Uniform Civil Procedure Rules 1999 (Qld) – where there were ten publications, two by email and the rest on the internet – where the first plaintiff was the director of the second plaintiff – where the second, third and fifth defendants were companies associated with the first defendant – where the fourth defendant was a former client of the second plaintiff – where two publications were extremely difficult, if not impossible, to remove from the internet where the publications carried the imputations that, inter alia, the first plaintiff was fraudulent; is a conman; committed adultery; participated in illegal drugs; was evil; was a thief; was a liar; preyed on the innocent – where the publications carried the imputations that, inter alia, the second plaintiff s services were disreputable; were unprofessional; were run by the first plaintiff, a man with the imputations above; that the second plaintiff encouraged threatening behaviour – where the first plaintiff suffered, inter alia, humiliation and embarrassment; loss of business and reputation; loss of chairmanship of Brisbane Spartan’s Basketball Club; loss of membership of the Order of the Knights Templar, Knights of Malta and the Freemasons – where there was no plea of aggravated or special damages * what the proper assessment of damages for defamation against each individual defendant is for each plaintiff as a global sum.

DEFAMATION – INJUNCTIONS – JURISDICTION AND GENERALLY – where judgment had been awarded against the first to fifth defendants pursuant to r 374 of the Uniform Civil Procedure Rules 1999 (Qld) – where there were ten publications, two by email and the rest on the internet – where the first plaintiff was the director of the second plaintiff – where the second, third and fifth defendants were companies associated with the first defendant – where the fourth defendant was a former client of the second plaintiff – where, following service of the claim and statement of claim, the first and fourth defendants persisted in further publications – whether the first and fourth defendants have evidenced an intention to continue to publish defamatory matter concerning the first plaintiff – whether a permanent injunction against the first and fourth defendants ought to be granted.

Defamation Act 2005 (Qld), s 34, s 35(2), s 36, s 39

• Atholwood v Baryett 12004] QDC 505, cited
• Bristow v Adams l20l2l NSWCA 166, cited
• Carson v John Fairfax & Sons Ltd (1993) 178 CLP. 44 [1993] HCA 31, cited
• Cerutti & Anor v Crestside Pty Ltd & Anor [20141 QCA 33, considered
• Feo v Pioneer Conqete Uic) Pty Ltd ll999l3 VR 417; ll999l VSCA 180, considered
• Grahamv Powell Q’lo 4) [2014]NSWSC 1319, considered
• Klerck & Ors v Sierocki & Anor 12014] QCA 355, cited
• Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510, cited
• North Coast Children’s Home Incorporated trading as Child & Adolescent Specialist Programs and Accommodation (CASPA) v Martin 12014) NSWDC 125, cited
• Phillips v Robab Pty Ltd l20l4l NSWSC 1520, cited
• Roberts v Prendergast l20l4l 1 Qd R 357;120137 QCA 47 , cited
• Royal Society for the Prevention of Cruelty to Animals (NSW) v Davies [2011] NSWSC 1445, cited
• Ryan v Premachandran 120091 NSWSC 1 186, cited
• Sierocki & Anor v Klerck & Ors [20141 QSC 9, cited

COUNSEL:

A M Nelson for the plaintiffs

C J Main (clerk) for the second, third and fifth defendants

No appearance by the first and fourth defendants

SOLICITORS:

Whitehead & Associations for the plaintiffs

Irish Bentley for the second, third and fifth defendants

No appearance for the first and fourth defendants