Cables v Winchester
[2018] VSC 392
•20 July 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S CI 2017 04668
| MAREE ELLEN CABLES | Plaintiff |
| v | |
| MATTHEW WINCHESTER | Defendant |
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JUDICIAL OFFICER: | Judicial Registrar Clayton |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 June 2018 |
DATE OF JUDGMENT: | 20 July 2018 |
CASE MAY BE CITED AS: | Cables v Winchester |
MEDIUM NEUTRAL CITATION: | [2018] VSC 392 |
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DEFAMATION – Application for assessment of damages – Facebook publications – ‘Grapevine effect’ – Followed principles in Wilson v Bauer Media & Anor [2017] VSC 521 – Defamation severe and consequences substantial – Damages including aggravated damages awarded $200,000.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Castelan | Litton Legal |
| The Defendant appeared in person |
JUDICIAL REGISTRAR:
The plaintiff, Ms Cables, alleges that the defendant, Mr Winchester, defamed her in nine publications on a Facebook page titled ‘Everything Albury Wodonga’ (EAW page).
Mr Winchester did not file an appearance or defence and Ms Cables obtained judgment in default of appearance on 16 March 2018. The Court ordered that ‘the defendant pay the plaintiff damages to be assessed and costs of $3,800’. Pursuant to Order 51 Ms Cables seeks to have her damages assessed.
This assessment was listed for hearing before me on referral pursuant to r 84.04(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘the Rules’).[1] The application for assessment also sought an order for:
…a permanent injunction restraining the defendant from publishing or causing to publish or continuing to publish, whether by himself, his officers or employees or agents or otherwise howsoever, any material to the same purpose or effect as the publications complained of in the statement of claim in this proceeding.
[1]Order made by Daly AsJ on 15 June 2018.
Mr Winchester was present at the assessment hearing. I informed the parties that I did not have power to hear the injunction application, and that, if it was to be pressed, it would be referred to a trial judge for hearing.
Background
Ms Cables is a prominent businesswoman in Albury. She is currently 60 years old and married with three adult sons. She is a qualified nurse and midwife and subsequently undertook a business degree at the University of Tasmania. In 1997 she received the Telstra Businesswoman of the Year award for Tasmania.
Together with her husband she has been a franchisee of McDonalds in Australia for some 24 years. At one point she was the franchisee of eight McDonalds restaurants, employing about 650 people. She is currently the franchisee of six McDonalds restaurants employing about 500 people.
In around 2003 Ms Cables moved with her husband to Albury and entered into franchise and license agreements in relation to the McDonalds Albury restaurant.
In 2010 she was instrumental in establishing Ronald McDonald House, a charitable organisation, in Albury. In 2013 she was the chair of Arts Albury and a significant fundraiser for the Murray Arts Museum. She is a member of the Albury Wodonga Business Chamber and a judge for the Albury Wodonga Business Awards 2018.
In 2016 Ms Cables was the franchisee of McDonalds restaurants in Albury, Albury East, Lavington, Gundagai, Tumut and Yass. She says that she was well known for operating the McDonalds restaurants, especially the McDonalds Albury restaurant which is close to where she lives.
The Posts on the EAW page
The First Publication
On 21 November 2016 Mr Winchester published the following post:
I would like to hear from anyone who has ever had bad experiences with the owner of the local McDonald’s (not the homemakers owner). For legal reasons I cannot name the owner but if you have ever worked for this person you will know who I am talking about.
I would like to hear from you if you have ever been unfairly treated, threatened, abused etc.
There are a lot of people out there that have been mistreated.
If you request we can keep any comments confidential but please do not be afraid to speak out.
Ms Cables submits that the publication was defamatory and in its natural and ordinary meaning meant and was understood to mean:
(a) she, as the owner of McDonalds restaurants, had engaged in such serious wrongful conduct that it warranted that her name could not be disclosed for legal reasons;
(b) she had threatened a lot of people at McDonalds restaurants;
(c) she had abused a lot of people at McDonalds restaurants;
(d) she had mistreated a lot of people at McDonalds restaurants; and
(e) her conduct had been so serious that employees at McDonalds restaurants would be afraid to speak out against her.
The Second Publication
Shortly after posting the first publication, Mr Winchester posted the following words:
If you are contemplating whether or not to say something, just think about this … if you were treated poorly by this person, you would know how belittling it is. Do you want someone who is just starting work to be treated like this? If you don’t speak up then this person will continue to abuse their power and make people feel worthless.
Ms Cables submits that the second publication was defamatory and carried the following imputations:
(a) she belittles her employees;
(b) she abuses her power as the owner of McDonalds Restaurants; and
(c) she makes people feel worthless by abusing her power.
The Third Publication
On 21 November 2016 at around 10.07pm Mr Winchester published the following words:
Thanks EVERYONE for sharing this story, commenting, liking the status and messaging me privately. Keep an eye on this page for further developments. We have a major news outlet interested in a story.
We will be pushing this as far as we can.
At this point I have had around 30 people message me with complaints ranging from physical assault to unhygienic food safety. I’m off to bed I hope to have more information tomorrow….
Just for everyone’s knowledge … I do not work for McDonald’s but am a concerned citizen who has heard many bad things. I have many connections and know how to make sure that this is taken care of.
Ms Cables submits that the third publication carried the following imputations:
(a) she had physically assaulted her employees;
(b) she operated the restaurants in an unhygienic and unsafe manner;
(c) her conduct was so serious that a major news outlet was interested in the story; and
(d) her conduct had caused around 30 of her employees to complain about her.
The Fourth Publication
At 10.08pm the following was published on the EAW page:
David George I would say McDonald’s CEO should be notified the way this owner of Franchisee is behaving. They obviously are not aware the bad name the company is getting in this area. No multi national company would tolerate this behaviour from its owners. Report this immediately before more staff are discriminated and abused.
EAW Sadly David this has been happening for 13 years but with all hope McDonalds HQ or Fairwork Australia will take interest.
Ms Cables submits that the fourth publication contains the following imputations:
(a) she had discriminated against her employees for 13 years;
(b) she had abused her employees for 13 years; and
(c) McDonalds Head Office (McDonalds HO) and Fair Work Australia ought to immediately act against her to prevent further discrimination and abuse.
The Fifth Publication
At around 10.17pm Mr Winchester published the following words:
It is hoping to achieve a class action against the owners. If head office don’t want to listen I’m sure Fairwork Australia will.
Ms Cables submits that this contains the following imputations:
(a) her conduct was so serious it warranted a class against being brought by her employees; and
(b) her wrongful conduct was so serious that Fair Work Australia ought to immediately act against her.
The Sixth Publication
At around 10.35pm Mr Winchester published the following words:
My advice to any person whom works for the McDonald’s in question…until this has been taken further or senior management request to talk to you about this subject, make sure you take a co-worker in with you to discuss this matter. These people will try anything to intimidate you and undermine you. For the sake of your job take a witness with you to any discussion.
Ms Cables submits that the sixth publication contains the following imputations:
(a) she would try anything to intimidate and undermine her employees;
(b) if an employee was asked to attend an interview with her, the employee should take a witness because she cannot be trusted;
(c) an employee’s job would be in jeopardy unless a witness was present at any interview with Ms Cables.
The Seventh Publication
At around 11.08pm Mr Winchester published the following:
Bronte Moscher Samantha Jane Simon take a geez. I worked for the family when I was 14 and I seen her slap another employer over the head with a chicken wrap bc it looked badly wrapped.
EAW seems like this wasn’t the only time someone was physically assaulted.
Ms Cables submits that the seventh publication contains the following imputations:
(a) she slapped an employee over the head with a chicken wrap; and
(b) she physically assaulted other employees at McDonalds.
The Eighth Publication
On 22 November 2016 Mr Winchester published a post that started ‘This is just one of the 40 plus stories I have been sent so far’. He then published what appears to be an account from a former employee of Ms Cables in which the following allegations are made:
(a) the employee was made a manager after two weeks because all the managers kept leaving;
(b) she was only paid for 40 hours a week despite working nearly 60 hours a week;
(c) she was constantly harassed by Ms Cables and the supervisor for being a ‘shit manager’;
(d) she was physically pushed into the cashier booth by Ms Cables;
(e) she was told she was too lazy and not smart enough;
(f) she was never given a break so could not eat or go to the toilet during a 10 hour shift;
(g) she lost 10-15 kilograms whilst working there;
(h) she was screamed at daily and told she should quit because she was useless but was also told she had potential and would be given harder shifts;
(i) her physical and mental health suffered dramatically and working there worsened her pre-existing depression, requiring her to take more antidepressants and tablets for iron deficiency;
(j) working there made her suicidal;
(k) she was scared and sick every time she thought about going to work; and
(l) Ms Cables had no respect for anyone, only cared about making money, and needed to be removed.
Ms Cables submits that the eighth publication contains the following imputations:
(a) she had treated employees badly on more than 40 occasions;
(b) she constantly harassed her employees;
(c) she oversaw a culture of harassment, intimidation and abuse; and
(d) she had no respect for her employees and only cared about making money.
The Ninth Publication
On 22 November 2016 Mr Winchester published the following statements, which were ‘comments’ in the thread set up by the first publication:
Imogen Bougoure: while most of my experience with that has been shady bookwork, like no overtime, changing my clocked on hours and having to deal with the woman’s bitchy Niece. These 2 had a very bad time before leaving so they were the first people to come to mind other than Kadrienne Rachel Hope.
Imogen Bougoure: she is horrible, she verbally puts down crew, she pretty much called me stupid because I was following the RMs orders. The apple doesn’t fall far from the tree.
Tracey Powell: my daughter worked at the ALBURY one, was constantly verbally abused to the point she stopped eating and now suffers from depression! Absolutely disgusted that nothing has been done as I know her incident is not the first time the owner has behaved this disgracefully towards their employees.
Hayley mcpherson: Does someone wanna name and shame this biarch?
Stacy Jourain: I made a formal complaint with both McDonald’s, the police, the Union after witnessing the female owner/manager of the Albury store bully threaten and intimidate a young female worker over a matter that was not work related. I made sure every customer in that store was aware of how that absolutely horrid, pathetic person was treating that young girl, that behaviour will not be tolerated.
Brodie Pollard: they hit me for being late once.
Noeline Elvin We involved the union but even their hands were tied as they write their own workplace policies which contradict the McDonalds agreements it’s a joke. I had the owner yelling at me over the phone because I rang to discuss the arrangements of their shifts. I can honestly say she is unstable. I had my son quit because the muck around trying to study for year 12 when they would throw random shifts was ridiculous. Seriously why bother asking kids for their availability if you have no plan on trying to work around it. Their behaviour is disgraceful and nothing short of bullying and workplace harassment.
Ms Cables submits that the ninth publication contains the following imputations:
(a) she was dishonest in her bookwork;
(b) she is a horrible person who verbally abuses her employees;
(c) she constantly abuses her employees;
(d) her abuse has caused employees to suffer depression and eating disorders;
(e) she is a bitch;
(f) she is a horrid, pathetic person;
(g) she bullied, threatened and intimidated young female employees;
(h) she is mentally unstable; and
(i) she engages in disgraceful bullying and workplace harassment.
The breadth of the publication of the EAW page
The EAW page was published to at least 9510 people who ‘liked’ the page and 9477 people who followed the page.
As a publicly accessible site, other people who did not ‘follow’ the page or like the page may have seen the page.
In addition, the ‘grapevine’ effect means that it is likely that the impact of the publications would have spread beyond those people who saw the actual page.
The ‘grapevine’ effect is ‘no more than the realistic recognition by the law that, by the ordinary function of human nature, the dissemination of defamatory material is rarely confined to those to whom the matter is immediately published’.[2]
[2]Belbin v Lower Murray Urban & Rural Water Corporation [2012] VSC 535 [217] Kaye J.
Albury-Wodonga is a relatively small community and the impact of the ‘grapevine effect’ is likely to be significant.
Michelle Crowe, a supervisor and area manager for the Cables Group, says that after the publications:
I received lots of messages from the community about what was being posted on Facebook. I mostly received texts and phone calls that asked me if I knew about the posts. I received calls from people outside the McDonalds organisation, including Maree’s builder and people even called me from around 300 kilometres away.[3]
[3]Affidavit of Michelle Crow sworn 1 June 2018 [5].
The publications also made their way to McDonalds HO. The affidavits of Ms Crowe, Ms Cables and Mr Cables each set out action taken by McDonalds HO following the publications.
The publications were also either seen by or brought to the attention of the Shop Distributive and Allied Employees Association (SDA), the union that represents workers in the fast food industry. On 23 November, SDA union organiser Struan Timms posted, on behalf of his union, in a series of Facebook pages, a request for people, whether union members or not, to contact him with complaints ‘which will be taken up with the company’.
The publications were taken down on 23 November 2016, following a request by Ms Cables’ lawyers to Mr Winchester. Ms Cables submits that the ‘grapevine’ effect of the publications continued after the posts were removed. Friends contacted her to say that they had heard about the posts.[4] Employees contacted Michelle Crowe to ask whether the stores were being shut down and whether they would lose their jobs.[5] Ms Crowe was also told by a customer that she was doing an interview with Prime News and would also contact ‘A Current Affair’.[6] Ms Crowe heard that the Yass Council had been told that McDonalds HO were closing the store.[7] To this day there are snide remarks and snickering amongst employees and a running joke that Ms Cables will lock someone in a stock cage or hit them with a chicken wrap.[8]
[4]Affidavit of Maree Ellen Cables sworn 30 May 2018 [87].
[5]Affidavit of Michelle Crow sworn 1 June 2018 [8].
[6]Ibid [14].
[7]Ibid [20].
[8]Ibid [19].
Impact of the Publication on Ms Cables’ Reputation
Ms Cables submits that the publication and the ‘grapevine’ effect had an enormous impact on her reputation in the community, her relationships with friends and family, and her relationship with McDonalds HO.
Prior to the publication Ms Cables had had a good relationship with McDonalds HO. In 2013 she had been asked to take over the running of struggling stores in Tumut, Gundagai and Yass. She was one of the most experienced franchisees of McDonalds restaurants in Australia.
McDonalds franchisees are subjected to compliance audits known as ‘Brand Standard Visits’. In the period April 2016 to December 2016, the McDonalds Brand Standard Visits disclosed no concerns with any of her franchises, apart from one incident that she herself disclosed to McDonalds and took appropriate steps to rectify. Given the length of Ms Cables involvement with McDonalds HO, and the lack of any evidence to the contrary, I accept that prior to December 2016 Ms Cables had a good working relationship with McDonalds HO.
After the publication Ms Cables and her husband were called to a meeting at McDonalds HO in Sydney on 12 December 2016. During that meeting Ms Cables was told that McDonald HO would send staff to Ms Cables’ McDonalds franchises to investigate the claims made on the EAW page and would interview employees. Ms Cables was told that when McDonalds HO had interviewed staff and had found something, she would have to sell her franchises, possibly before July 2017.
McDonalds HO sent six representatives to visit the eight stores. Ms Crowe believes that over a period of a few months, each store was visited around six times and staff were interviewed.[9] Ms Cables and Ms Crowe were not allowed to be in attendance in the stores during the interviews. The representatives of McDonalds HO told each shift manager and any crew present that they were investigating the Facebook allegations against Ms Cables. Interviews took place within the McDonalds restaurant in view of customers, as well as off-site. Interviews took place for at least three hours at a time. The investigators also searched the restaurants and took screenshots from mobile telephones belonging to staff.
[9]Ibid [7].
From January 2017 Ms Cables’ McDonalds stores were subjected to unscheduled and unexplained food safety visits and Brand Standards Visits from McDonalds HO.
Ms Cables said she felt strongly pressured by McDonalds HO to sell her franchises. She engaged lawyers to represent her in her negotiations with McDonalds HO which continued throughout 2017. She attended a meeting with the Chief Operating Officer of McDonalds HO, Shawn Rumney, and the head of McDonalds licensees, Chris Caroll, on 6 June 2017. At that meeting Mr Rumney told her that they wanted her to leave the system because of the Facebook posts and said ‘they could go to the media. They won’t just go to the Border Mail. They’ll go to the Herald Sun’.[10]
[10]Affidavit of Maree Ellen Cables sworn 30 May 2018 [83].
In October 2017 Ms Cables had a discussion with the Chief Executive Officer of McDonalds HO, Andrew Gregory, who said to her that ‘we have to see where the Facebook thing ends up’.[11]
[11]Ibid [84].
In a letter dated 23 December 2016, McDonalds HO, by its solicitors, noted that it had received over 100 complaints in relation to Ms Cables and that ‘By and large these complaints were received through the Facebook Page and from members of the SDA’.[12]
[12]Ibid, Exhibit CEB-1 86 [6.1].
In a letter dated 27 December 2016, McDonalds HO informed Ms Cables’ lawyers that:
Within the next week McDonalds will be issuing breach notices to your client under the various Licence Agreements in respect of multiple instances of failure to comply with the McDonalds’ Australia Enterprise Agreement 2013, the Fair Work Act 2009 (Cth) the Fair Work regulations and the McDonalds O & T Standards.[13]
[13]Ibid 93 [5.1].
Despite this letter and the protracted dispute between McDonalds HO and Ms Cables, no breach notices were ever issued against Ms Cables or any of her franchises. The Court must assume that a multinational company such as McDonalds would take extremely seriously any non-compliance with legislative and company standards. The fact that no breach notices were ever issued indicates that the investigations conducted by McDonalds HO did not support the allegations that had been made.
Ultimately Ms Cables spent a significant sum of money on lawyers to represent her in her dealings with McDonalds HO. These dealings were prompted by the EAW page publications.
It is highly plausible that, after the protracted legal dealings that continued throughout 2017, the relationship of mutual trust between Ms Cables and McDonalds HO that had developed over the preceding two decades would have significantly eroded. As a result of the publications and the subsequent legal dealings, Ms Cables’ reputation within McDonalds has suffered. Her status has changed from being, in 2013, the franchisee that McDonalds HO approached to take over struggling stores, to being the franchisee that McDonalds HO pressured to exit the system. It is improbable that this episode would not have damaged Ms Cables’ reputation within McDonalds and I have no hesitation in accepting that it has.
Apart from her reputation within the McDonalds’ system, I accept that the publications damaged her reputation within the Albury business community, the broader Albury community and amongst her own employees.
Impact of the Publication on Ms Cables’ Wellbeing
Ms Cables says that she has been severely impacted emotionally, mentally and physically, by the publication and the events that followed. She worries that parents might have formed negative opinions about her, and may not let their children work at her stores. She worries that people in her local community have formed opinions about her based on lies. She struggled to understand why this had happened and became paranoid. She became convinced that Mr Winchester was stalking her, and became anxious if a car pulled up outside her house. She would ring her husband and he would have to come immediately home. Fortunately she attended her local doctor who referred her for immediate psychological intervention. She attended a psychologist weekly for a year to help her cope. She describes the year from November 2016 to November 2017 as ‘a blur’. She says ‘I did function and I did run the business but I was not present and in the moment. I have not regained the confidence I had before’.[14]
[14]Affidavit of Maree Ellen Cables sworn 30 May 2018 [91].
Her husband says that, after the publication, Ms Cables changed. She became nervous, upset and tearful. When she attended work she would leave after a short time and go home to lie on the bed with the curtains pulled. She refused to go out socially and became paranoid about Mr Winchester. He says that Ms Cables is:
Still not back to where she was before the Facebook defamation. Her lack of trust of people and the second guessing of herself is probably the worst thing. She was never like that before.[15]
[15]Affidavit of Bruce Cables sworn 30 May 2018 [10].
Ms Crowe says, that before the publications:
I found Maree to have a sharp intellect and an unshakeable ability to make quick and decisive decisions for the business. I always found those decisions to be fair and balanced in meeting the needs of the business and the individual.[16]
[16]Affidavit of Michelle Crow sworn 1 June 2018 [15].
In contrast, after the publication:
Maree’s approach to decision making has markedly changed. Important decisions around performance management were often delayed or abandoned.[17]
She goes on;
Maree also began to lose sight of the direction of her business and she also oscillated between selling some stores to selling all of the stores, which had never been a part of the initial business strategy.[18]
[17]Ibid [16].
[18]Ibid [18].
She describes Ms Cables as ‘making desperate and at times irrational decisions’ and notes that although Ms Cables has now returned as head of the business ‘decisions are approached with extreme caution by her and are extensively deliberated over’.[19]
[19]Ibid [22].
Ms Butler, a friend of Ms Cables for over ten years, says that since the publication she has watched her friend’s ‘life, demeanour and personality change dramatically’. She became:
…regularly tearful and afraid. She would regularly forget appointments or engagements that she had committed to and would let down her friends at social functions by not attending. Her involvement in charity work and her community work stopped completely.[20]
[20]Affidavit of Laurel Butler sworn 5 June 2018 [5].
Ms Cables ultimately did sell two of her stores and is contemplating selling another three. Although she is now once again running her businesses full time, she has changed, both as a person and as a businesswoman. She is not as confident, she is more worried and anxious, and she does not feel that she can cope with running eight McDonalds stores. The evidence supports a finding that the publications have caused Ms Cables to suffer significant emotional distress and damage. She has lost confidence, has withdrawn from aspects of her social and community life and has required regular psychological help.
Assessment of Damages
To the extent that it is necessary to do so, given that the proceeding is undefended, I find that:
(a) the nine publications carried the imputations alleged by Ms Cables in her statement of claim, and set out in this ruling; and
(b) those imputations were defamatory of Ms Cables.
Counsel for Ms Cables referred to the well-established principles for assessing damages in defamation, such principles neatly summarised by John Dixon J in Wilson v Bauer Media & Anor (‘Wilson’) as follows:[21]
[21][2017] VSC 521 [59].
(a) damages should provide consolation for hurt feelings, damage to reputation and vindication of the plaintiff’s reputation;
(b) damages ought to reflect the high value which the law places upon reputation and, in particular, upon the reputation of those whose work and life depends upon their honesty, integrity and judgment;[22]
[22]Ibid citing Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44.
(c) the gravity of the libel and the social standing of the parties are relevant to assessing the quantum of damages necessary to vindicate the plaintiff. The award must be sufficient to convince a bystander of the baselessness of the charge;
(d) there must be an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded;
(e) the extent of publication and the seriousness of the defamatory sting are pertinent considerations;
(f) in determining the damage done to a plaintiff’s reputation, the court should also take into account the ‘grapevine’ effect arising from the publication;[23]
(g) it is well accepted that injury to feelings may constitute a significant part of the harm sustained by a plaintiff;[24] and
(h) aggravated damages are a form of compensatory damages and, where appropriate, form part of the general damages awarded to a successful plaintiff for non-economic loss, designed to reflect aggravation caused to a plaintiff’s hurt or injury by reason of some conduct if the defendant.
[23]Belbin & Ors v Lower Murray Urban and Rural Water Corporation (2014) 42 VR 348 at 388-390; [2012] VSC 535.
[24]Wilson citing Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 [71].
Counsel submitted that an award of aggravated damages was appropriate in this case because of the following conduct of Mr Winchester:
(a) he published words for the sole purpose of injuring the plaintiff’s reputation;
(b) he refused to apologise; and
(c) he has not appeared in the proceeding (until the hearing for assessment of damages).
Counsel also submitted that damages ought to be assessed as a global sum and not broken down into components for compensatory damages and aggravated damages.
Counsel submitted that, as this was an assessment only and the Court had not had the benefit of hearing all the evidence through the course of a trial, a comparison of verdicts in similar matters was appropriate to consider in determining the sum to be awarded.
Counsel pointed to a number of decisions which he said were relevant to the consideration of damages in the present case.
In Dods v McDonald (No 2)[25] the plaintiff was a police officer who was involved in an incident in which a 15 year old boy was killed. The defendant, a barrister, created a website which carried the meaning that the plaintiff had executed the boy without any adequate reason and had committed manslaughter. Although there was only evidence from one person who had read the website, the Court found that there was substantial publication and awarded $150,000. The award of damages was upheld on appeal.[26]
[25][2016] VSC 201.
[26]McDonaldv Dods [2017] VSCA 197.
In Trkulja v Yahoo! Inc LLC & anor[27] the plaintiff sued the defendants in respect of online search results which suggested that he was so involved in crime in Melbourne that his rivals had hired a hit man to murder him. He received awards of damages of $225,000 against Yahoo! and $200,000 against Google.
[27][2012] VSC 88.
In Fraser v Business News Group Pty Ltd (‘Fraser’)[28] the plaintiff managed a hotel business and gave an interview about the impact of Air BnB on the hotel industry. The defendant uploaded the interview to its industry based website with the headline ‘Hotel Management CEO makes disastrous press blunder’. The proceeding was undefended and the plaintiff was awarded $150,000.
[28][2018] VSC 196.
In Reid v Dukic[29] the plaintiff was the CEO of a football organisation. The defendant uploaded to his Facebook page nine defamatory statements with imputations that the plaintiff was dishonest, fraudulent and incompetent in her role. The Facebook page had 400 followers. The proceeding was undefended and the plaintiff was awarded $180,000.
[29][2016] ACTSC 344.
In Polias v Ryall[30] the plaintiff sued the defendants over comments, some of which were made on Facebook to the poker playing community, which carried imputations that the plaintiff was a thief who had tried to steal money. The plaintiff was awarded $125,000 against the first defendant and $130,000 against the second defendant.
[30][2014] NSWSC 1692.
The publications in this case contained very serious imputations. The imputations include that Ms Cables was dishonest, a bully, physically attacked staff, abused staff, underpaid staff, was mentally unstable, and was a horrible person who only cared about money. Apart from the nine publications complained of in the pleadings, Mr Winchester had allowed, and indeed encouraged, scores of comments which denigrated Ms Cables, to be published on his EAW page. There is no way to know whether the commenters were multiple people, a small group of people operating under a number of pseudonyms, or any real people at all. The structure of comment threads of Facebook pages means that people can leave comments with relative anonymity. Throughout the evening of 21 November 2016 and into 22 November 2016, Mr Winchester prompted, and then effectively fanned the flames of, an attack on Ms Cables’ reputation which caused her significant damage.
In written submissions Counsel submits that the seriousness of the imputations, the impact on Ms Cables reputation and well-being, as well as the surrounding circumstances, means that she should be awarded damages in the range of $150,000 to $200,000 plus 3 per cent interest from the date of publication. I note that s 60 of the Supreme Court Act 1986 limits the award of interest on damages to the period from the date of commencement of proceedings to the date of judgment. At the hearing Counsel noted that the Court is not bound by the range of damages submitted by Ms Cables, and if the Court considers it appropriate, damages above that range should be awarded.
Mr Winchester was present at the assessment of damages, although he had not filed an appearance or a defence and was not legally represented. He was invited to make any submissions he wished, and cautioned to confine those submissions only to the assessment of damages. Mr Winchester said that he had nothing to add to the plaintiff’s Counsel submissions and that he considered an award of damages in the amount of $150,000 to $200,000 to be appropriate.
It is difficult to know what to make of Mr Winchester’s submission as to the appropriateness of the award of damages. I took from his words that he was expecting the award to be in that range, rather than that he necessary supported an assessment in that amount. In any event he made no submissions that would challenge any of Ms Cables’ evidence about her prior good reputation or the impact of the defamation on her reputation and well-being.
In assessing the damages to be awarded I am mindful that engaging in a comparative exercise is apt to mislead, as expressed by Hayne J in Rogers v Nationwide News Pty Ltd.[31]On the other hand, consideration of the award in comparable cases can be appropriate, particularly, as in this case, where the matter is undefended and there is no contradictor to respond to the submissions of the plaintiff.[32]
[31](2003) 216 CLR 327 at 350 [69].
[32]Fraser [45] citing Cerruti v Crestside Pty Ltd & Anor [2014] QCA 33 [46]–[49].
In the case of Fraser, Daly AsJ considered that a review of other cases was:
Instructive in illustrating what features the current case does not have: there were no allegations of criminality, or dishonest conduct, which of course are more serious than the imputations conveyed by the defendant’s article. There was not a sustained and/or malicious campaign of harassment on the part of the defendant. There was no direct evidence of any actual harm to the plaintiff’s reputation (albeit I accept that some harm is presumed). Indeed, the evidence before me is that the plaintiff continues to enjoy an excellent reputation within the accommodation industry.[33]
[33]Fraser [46].
A review of other cases is also instructive in this case because the defamation in this case contained all of the features absent from Fraser. Ms Cables was accused of crimes, including assault and fraud, as well as very grave allegations of abuse and harassment. Her personality was attacked. Her mental state was impugned. The defamation was sustained over a two to three day period, with additional comments and publications throughout that time. There was direct evidence of damage to her professional reputation, in the form of the McDonalds HO investigation and the protracted legal dealings between Ms Cables and McDonalds HO. There was evidence of the personal toll that the defamation has taken on Ms Cables, her mental health and her well-being.
I consider the defamation to be severe and the consequences of the defamation to be significant.
The evidence supports a view that the defamation was broad. The EAW page had some 9000 followers and even though all those followers may not have viewed the publications before they were taken down, the grapevine effect of the defamation means it spread to, at least, those regional areas where Ms Cables had McDonalds stores and to people known to Ms Cables as far as 300 kilometres away. The defamation reached the Sydney office of McDonalds HO and the Chief Executive Officer.
There is little evidence before the Court as to the motivation of Mr Winchester, other than his statement in Court that his partner worked at one of Ms Cables’ McDonalds stores and, on the night of the first publication, had returned from work upset. The content of the publications themselves suggest a motive, which appears to have been to obtain information about Ms Cables that could be used in legal proceedings, taken to Fair Work Australia, or used to generate adverse publicity. Mr Winchester has not apologised to Ms Cables or put forward any defence. There is a degree of malice in the motivation for the publications which, combined with the lack of apology or retraction, supports a claim for aggravated damages.
Having regard to all the circumstances of this matter, the severity of the defamation, the extent of the defamation, the evidence of the damage, and the conduct of Mr Winchester, I consider that an appropriate award of damages, including aggravated damages, is at the top of the range suggested by Ms Cables’ counsel.
Accordingly I make the following orders:
1. The defendant pay the plaintiff the sum of $200,000 plus interest of 3 per cent per annum from the date of the commencement of the proceeding.
2. Within 14 days from the date of this order, the plaintiff is to inform the Court whether she intends to pursue her application for an injunction against the defendant.
3. If the application is pursued it will be listed before a trial judge on the earliest available date.
4. If the application is not pursued the proceeding will be otherwise dismissed.
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