Emphatic win for Aspergers’ Advocate: Gluyas v John Best Junior [2013] VSC 3

Now 47, Philip Gluyas was 31 when he was diagnosed with Asperger’s Syndrome. On the one hand, Asperger’s can mean that a person has difficulties empathizing with people and dealing with social interactions that many people take forgranted. On the other hand, it can also mean that the person has exceptional gifts in other areas, such as a genius mind for detail, attention spans that can last for months and the ability to think so far outside the square that great inventions can result. While Aspergers sits on the autism spectrum, many of the world’s greatest thinkers and inventors probably had it (Bill Gates, Steve Jobs, Mark Zuckerberg, Isaac Newton, Albert Einstein), but that is another story.

Victorian Supreme Court

Victorian Supreme Court

The plaintiff has become an active advocate for the rights and interests of people with Asperger’s and those who are on the autism spectrum. For that purpose, he has set up and maintained websites, where he published his views concerning the rights of members of the autistic community. Attached to his website is a forum. He has also been an AFL Umpire for 29 years and has a keen interest in football and wrestling.

The defendant, who lives in USA, was engaged in a long-running dispute with the plaintiff over the causes of autism. The defendant has also maintained websites and has published a number of entries on the causes of autism. He contends that autism is caused by mercury poisoning and can be cured by a form of treatment called chelation (not sure what that is). The plaintiff contends that the causes are congenital and are not susceptible of a cure.

But the defendant’s responses to the plaintiff went well beyond ordinary discussion or intellectual debate. They became abusive, denigrating and vitriolic. There were numerous offending articles and they claimed, among other things, that the plaintiff had a history of brutality, was severely deranged, that he abused autistic women and, like Hannibal Lecter and Adam Lanza, that he was a danger to society.

The plaintiff sued him for it. He served the defendant with proceedings in America (a big step in its own right), and the defendant then wrote to the court and repeated his attacks.

But the defendant did not appear at the trial, and the plaintiff was represented by a barrister, Mr Tim Greenway, who appeared pro bono.

The plaintiff proved that articles were downloaded and read in Victoria, by at least one other person and he also gave evidence of comments made to him, indicating that the articles were read by others as well.

In considering the content of the offending items, His Honour Justice Kaye (an enormously clever judge, and not just because he goes for Hawthorn) found that the publications contained a whole gamut of imputations including:

  1. The plaintiff has on more than one occasion caused serious physical injury to others.
  2. By analogy with Hannibal Lecter, the plaintiff is a mentally unwell person who poses a serious threat to the physical safety of others.
  3. A medical authority and a court determined that the plaintiff was so physically dangerous to others, as a result of a medical disorder, that he was banned from working anywhere in Australia;
  4. The plaintiff suffers from a serious mental disorder that causes him to be violent towards others,
  5. By analogy with Adam Lanza, the plaintiff is a mentally unwell person who poses a serious threat to the physical safety of others.

His Honour held that these were seriously and highly defamatory of the plaintiff. The plaintiff also adduced evidence and satisfied His Honour that the imputations were not true and were “demonstrably without foundation” [36]. While he had been charged with assault once in 1999, the incident was a minor one where he had been provoked and he received a good behavior bond for it. Further, there existed no report or court finding that banned the plaintiff from working in Australia.

Then on to assessing damages.. His Honour was satisfied that the plaintiff was relatively well known, particularly among people interested in the autism spectrum. In 2008, he contributed to the development of an Autism Plan in Victoria and attended State Conferences on Autism. He had also developed a reputation for his football umpiring and his involvement in wrestling.

While the plaintiff only proved a limited number of people had read the articles, His Honour took account of the grapevine effect, and the severely hurt feelings of the plaintiff. His Honour also awarded aggravated damages because the defendant wrote letters to the court which repeated the defamatory remarks and insulted the plaintiff.

Originally, the plaintiff claimed $10,000 in his writ, but there were further publications since issuing and he was finally awarded $50,000 plus $4,375 interest. His Honour also said that it would have been considerably more, if there had been more widespread publication in Victoria.

The plaintiff will need some good luck getting the money from the USA, but a win for truth and justice nonetheless.

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