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Cables v Winchester

Cables v Winchester

Case [2018] VSC 392 20 July 2018

Defamation

Aggravated & Exemplary Damages

Defamation

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cables v Winchester

Details

AGLC: Cables v Winchester [2018] VSC 392
Case: [2018] VSC 392
Decision Date: 20 July 2018

CaseChat Overview and Summary

Cables v Winchester [2023] FCA 1205 involves a defamation action initiated by the plaintiff, Cables, against the defendant, Winchester, following defamatory comments made on Facebook. The court was tasked with assessing the damages that the plaintiff was entitled to recover as a result of the defamatory publications. The dispute primarily centred on the impact of the defamatory posts on Cables' reputation, particularly considering the 'grapevine effect' where the information spreads beyond the initial audience.

The central legal issue for the court to resolve was the extent to which the defamatory content had caused harm to Cables' reputation and the appropriate quantum of damages, including aggravated damages, that should be awarded. The court was required to weigh the severity of the defamation against the substantial consequences it had on Cables. The court considered the principles outlined in Wilson v Bauer Media & Anor [2017] VSC 521, which established a framework for assessing the severity of defamation and its impact on the plaintiff's reputation.

In determining the quantum of damages, the court found that the defamatory publications were severe and had substantial consequences for Cables. The court acknowledged the 'grapevine effect' and its potential to magnify the harm caused by the defamatory statements. Following the guidelines from Wilson, the court awarded Cables total damages of $200,000, which included aggravated damages. This decision reflected the significant reputational damage and the distress caused by the defamatory posts.

The court's final orders included an award of $200,000 to the plaintiff, Cables, to compensate for the defamation suffered. This sum included both general and aggravated damages, reflecting the severity of the defamation and its substantial impact on Cables' reputation.

Orders