NSW Defamation of My Character?

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23 October 2014
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I have a person that is talking to people whom I associate with and telling them that I am not of good character and I shouldn't be trusted. I know this is petty, but I am considering taking action if it is worthwhile.

Is it worth my time and effort and what do I have to do to make a defamation case against this person? Does what they are doing even stand a chance of taking it further.

What is the procedure for taking defamation action, if it is worth pursuing?
 
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PatrickJSP

Well-Known Member
15 July 2014
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Hey Peter... I thank you for this topic as I have the same question too. Is defamation similar to moral damages? I am considering taking a lawsuit and ask for monetary compensation.
 
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Sarah J

Well-Known Member
16 July 2014
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Melbourne, Victoria
Hi,

Defamation is not similar to moral damages. Defamation is damages for quantifiable loss to your reputation (e.g. loss of earning capacity due to the defamatory remarks).

A claim in defamation requires a few elements:

1. There was a representation made that is an allegation of fact which is defamatory (i.e. the allegation cannot be one of opinion or belief);
2. This representation was publicised;
3. There was loss or potential loss that is not remote.

Therefore, a statement that "person X is untrustworthy and a liar" may be defamatory, but the statement "I believe person X is untrustworthy and I think he's a liar" is not. The loss to your reputation should justify the claim. Therefore, whilst you may be personally hurt or feel insulted by the statement, if it did not significantly damage your reputation to your professional or personal life, there may not be a claim or the claim would be weak. If it caused you to lose the promotion or a job, then this would warrant an action.Also, think about whether you can prove that the statement was made by the defendant. If someone just uttered the statement to another person, then this would be more difficult to prove and would have less strength than something written down and publicised. If you're claiming potential loss, then you will need to consider the size of the audience, who this audience is and likelihood of it tarnishing your reputation and if likely, will this be permanent or temporary.
 
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Safety Rod

Well-Known Member
3 September 2014
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Hello,

This is an interesting topic I happened to read on passing. I also have a potential claim in this type of thing against a previous employer that is making unsubstantiated (and ultimately untrue) statements about my professional abilities and occurrences at my previous employment. This most certainly can be quantified in terms of loss of income in terms of it being detrimental to my ability to secure employment, whereby the words used by the person as a referee directly affect the outcome in terms of potential employment.

What kind of evidence would be admissible to have some sort of likely positive outcome for me if I took action to recoup damages against this person?
 

Sarah J

Well-Known Member
16 July 2014
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Melbourne, Victoria
Hi Safety Rod,

I'm sorry to hear that this is happening to you. Referees/past employees have some leeway, when asked about past employee performance, to give their opinion about said employee (see "fair comment" in the link).

1. You will need evidence, written documentation or a witness, that can attest and prove that defamatory remarks have been made about you.
2. These remarks need to be as to fact rather than an opinion or belief. This is because, one of the defences to defamation is fair comment.
3. You will need to show that these remarks are not true or that the remarks were made without reasonable basis.

Defamation by employers is actionable per se. However, there is probably a higher threshold of what courts are willing to accept as "fair comment" (i.e. fair opinion or belief). Hence, it will depend on the remarks complained of and the loss suffered (or likely to suffer).

Which state or territory are you in? As defamation is under state legislation and common law, it may be slightly different depending on where you are located. As a generality, this is a good brief information site on defamation: LawHandbook SA: defamation. Note that if defamation is unsuccessful or unavailable, you can also look into injurious falsehood as a remedy in tort.
 

Safety Rod

Well-Known Member
3 September 2014
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Hello Sarah,

I'm in WA. I looked at the legislation, it looks similar to what you have posted. I'm now wondering how I can get the evidence of this occurring? It won't be a simple matter of someone just providing a statement for a court appearance right?
 
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Sophea

Guest
Testimony by witnesses is valid evidence and can be submitted to court by way of statements or Affidavits in proceedings. The tricky part is obtaining and preserving this evidence and getting the witnesses to co-operate. You will need to establish first that the alleged statements were made, and second that the statements were of a defamatory nature.
 

Safety Rod

Well-Known Member
3 September 2014
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Ok, I see how that works I think. The difficulty lies in the validity of the witness to stand up to likely considerable scrutiny of a defense right?

Does that infer that I would need to make sure that the chosen witness was:

  1. A person that would be a reliable witness
  2. Understand what would be required if they were to be questioned about their evidence in court
  3. Have no conflict of interest with either party (such as a direct family member)
Is this a sensible approach?
 
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Sophea

Guest
Yes, what you have said is true however often you do not have the advantage of choosing who your witnesses are. They are who they are and if you don't call them the defence might. Therefore all you can do is get a good lawyer or barrister who will get the truth out of them through direct or cross examination in court.
 

Safety Rod

Well-Known Member
3 September 2014
24
1
124
The reason I am asking these questions is that I have tried some legal advice and been very unhappy at the outcome. If I went with this, it would be either on the premise of litigating the case myself, or use a firm that does work in Lieu of payment on winning the case. My opinion is that a person having a lack of resources does not make libelous statements any more appropriate.