Dabrowski v Greeuw
[2014] WADC 175
•22 DECEMBER 2014
DABROWSKI -v- GREEUW [2014] WADC 175
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WADC 175 | |
| Case No: | CIV:964/2013 | 3, 4, 5 & 6 JUNE, 18, 19, 20, 21 & 22 AUGUST & 1 DECEMBER 2014 | |
| Coram: | BOWDEN DCJ | 22/12/14 | |
| PERTH | |||
| 55 | Judgment Part: | 1 of 1 | |
| Result: | Judgment for the plaintiff in the sum of $12,500 | ||
| PDF Version |
| Parties: | MIROSLAW DABROWSKI ROBYN GREEUW |
Catchwords: | Defamation Post by estranged wife on her public Facebook page Distinct and separate imputations Defence of justification Aggravated damages Quantum |
Legislation: | Defamation Act 2005 (WA) Family Law Act 1975 (Cth) Restraining Orders Act 1997 (WA) |
Case References: | Dow Jones & Co Inc v Gutnick [2002] HCA 56 Ali v Nationwide News Pty Ltd [2008] NSWCA 183 Australian Medical Association (WA) Inc v McEvoy (No 2) [2012] WASC 416 Australian Medical Association (WA) Inc v McEvoy [2012] WASC 50 Baron v Walsh [2014] WASCA 124 Berezovsky v Forbes Inc [2001] EMLR 1030 Boyd v The State of Western Australia [2012] WASC 388 Briginshaw v Briginshaw (1938) 60 CLR 336 Buckeridge v Walter [2010] WASCA 134 Burstein v Times Newspapers Ltd [2001] 1 WLR 579 Caccavo v Daft [2006] TASSC 36 Campbell v News Group Newspapers Ltd (No 2) [2002] EWCA Civ 1143 Cassell & Co Ltd v Broome [1972] AC 1027 Chase v Newsgroup Newspapers Ltd [2002] EWCA Civ 1772 Cornes v The Ten Group Pty Ltd [2012] SASCFC 99 Crampton v Nugawela (1996) 41 NSWLR 176 David Syme & Co v Canavan [1918] HCA 50; (1918) 25 CLR 234 Douglas v McLernon [2013] WASC 126 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 221 ALR 186 Findlay v Grimmer [No 2] [2013] WASC 247 Gillick v Brooke Advisory Centre [2001] EWCA Civ 1263 Grumm v Norman [2008] EWHC 116 Harding v Essey (2005) 30 WAR 1 Hough v London Express Newspaper Ltd [1940] 2 KB 507 Howden v Truth & Sportsman Ltd (No 2) (1938) 38 SR (NSW) 287 Ives v State of Western Australia [No 8] [2013] WASC 277 Ives v The State of Western Australia [No 8] [2013] WASC 277 Jameel v Dow Jones & Co Inc [2005] QB 946 Jones v Dunkel (1959) 101 CLR 298 Lance v QAV Pty Ltd [2013] WASC 13 Lewis v Daily Telegraph Ltd [1964] AC 234 Ley v Hamilton (1935) 153 LT 384 Maher v Nationwide News Pty Ltd [2013] WASC 254 Maher v Nationwide News Pty Ltd [No 2] [2013] WASC 365 McDonald's Corporation v Steel [1995] 3 All ER 615; [1994] EWCA Civ 41 McPherson v Daniels (1829) 10 B & C 263 McPhilemy v Times Newspapers Ltd [1999] EMLR 751 Mickle v Farley [2013] NSWDC 295 Mirror Newspapers Ltd v World Hosts Pty Ltd [1979] HCA 3; (1979) 141 CLR 632 Morgan v Odhams Press Ltd [1971] 1 WLR 1239; [1971] 2 All ER 1156 Neat Holdings Pty Ltd v Karajan Holding Pty Ltd (1992) 67 ALJR 170 Palmer Bruyn & Parker v Parsons Pty Ltd ( 2001) 208 CLR 388 Plato Films Ltd v Speidel [1961] AC 1090 Polly Peck (Holdings) plc v Trelford [1986] QB 1000 Prager v Times Newspapers Ltd [1988] 1 WLR 77 Prince v Malouf [2014] NSWCA 12 Quancorp Pty Ltd v McDonald [1999] WASCA 101 Quine v Kerrasawat [2014] WADC 150 Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 Re H (minors) [1996] AC 563 Reader's Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500 Roberts-Smith v Crawshaw [2014] WASC 12 Sims v Jooste [No 2] [2014] WASC 373 Slim v Daily Telegraph Ltd [1968] 2 QB 157 Sutherland v Stopes [1925] AC 47 Swansdale Pty Ltd v Whitecrest [2010] WASCA 129 (S) Trkulja v Google Inc [2010] VSC 490 Trustees of the Property of Cummins v Cummins (2006) 227 CLR 278 Turcu v News Group Newspapers Ltd [2005] EWHC 799 Universal Communication Network Inc t/as New Tang Dynasty v Chinese Media Group (Aust) Pty Ltd [2008] NSWCA 1; (2008) Aust Torts Rep 81-932 Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118 Vella v The State of Western Australia [2007] WASCA 59 Viney v TCN Channel Nine Pty Ltd [2006] NSWSC 1273 Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 Webb v Bloch (1928) 41 CLR 331 Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89 Wilson v Coxon [2014] WASC 268 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
ROBYN GREEUW
Defendant
Catchwords:
Defamation - Post by estranged wife on her public Facebook page - Distinct and separate imputations - Defence of justification - Aggravated damages - Quantum
Legislation:
Defamation Act 2005 (WA)
Family Law Act 1975 (Cth)
Restraining Orders Act 1997 (WA)
Result:
Judgment for the plaintiff in the sum of $12,500
Representation:
Counsel:
Plaintiff : Mr B Goldsmith
Defendant : In person
Solicitors:
Plaintiff : Goldsmith Lawyers
Defendant : Not applicable
Case(s) referred to in judgment(s):
Dow Jones & Co Inc v Gutnick [2002] HCA 56
Ali v Nationwide News Pty Ltd [2008] NSWCA 183
Australian Medical Association (WA) Inc v McEvoy (No 2) [2012] WASC 416
Australian Medical Association (WA) Inc v McEvoy [2012] WASC 50
Baron v Walsh [2014] WASCA 124
Berezovsky v Forbes Inc [2001] EMLR 1030
Boyd v The State of Western Australia [2012] WASC 388
Briginshaw v Briginshaw (1938) 60 CLR 336
Buckeridge v Walter [2010] WASCA 134
Burstein v Times Newspapers Ltd [2001] 1 WLR 579
Caccavo v Daft [2006] TASSC 36
Campbell v News Group Newspapers Ltd (No 2) [2002] EWCA Civ 1143
Cassell & Co Ltd v Broome [1972] AC 1027
Chase v Newsgroup Newspapers Ltd [2002] EWCA Civ 1772
Cornes v The Ten Group Pty Ltd [2012] SASCFC 99
Crampton v Nugawela (1996) 41 NSWLR 176
David Syme & Co v Canavan [1918] HCA 50; (1918) 25 CLR 234
Douglas v McLernon [2013] WASC 126
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 221 ALR 186
Findlay v Grimmer [No 2] [2013] WASC 247
Gillick v Brooke Advisory Centre [2001] EWCA Civ 1263
Grumm v Norman [2008] EWHC 116
Harding v Essey (2005) 30 WAR 1
Hough v London Express Newspaper Ltd [1940] 2 KB 507
Howden v Truth & Sportsman Ltd (No 2) (1938) 38 SR (NSW) 287
Ives v State of Western Australia [No 8] [2013] WASC 277
Ives v The State of Western Australia [No 8] [2013] WASC 277
Jameel v Dow Jones & Co Inc [2005] QB 946
Jones v Dunkel (1959) 101 CLR 298
Lance v QAV Pty Ltd [2013] WASC 13
Lewis v Daily Telegraph Ltd [1964] AC 234
Ley v Hamilton (1935) 153 LT 384
Maher v Nationwide News Pty Ltd [2013] WASC 254
Maher v Nationwide News Pty Ltd [No 2] [2013] WASC 365
McDonald's Corporation v Steel [1995] 3 All ER 615; [1994] EWCA Civ 41
McPherson v Daniels (1829) 10 B & C 263
McPhilemy v Times Newspapers Ltd [1999] EMLR 751
Mickle v Farley [2013] NSWDC 295
Mirror Newspapers Ltd v World Hosts Pty Ltd [1979] HCA 3; (1979) 141 CLR 632
Morgan v Odhams Press Ltd [1971] 1 WLR 1239; [1971] 2 All ER 1156
Neat Holdings Pty Ltd v Karajan Holding Pty Ltd (1992) 67 ALJR 170
Palmer Bruyn & Parker v Parsons Pty Ltd ( 2001) 208 CLR 388
Plato Films Ltd v Speidel [1961] AC 1090
Polly Peck (Holdings) plc v Trelford [1986] QB 1000
Prager v Times Newspapers Ltd [1988] 1 WLR 77
Prince v Malouf [2014] NSWCA 12
Quancorp Pty Ltd v McDonald [1999] WASCA 101
Quine v Kerrasawat [2014] WADC 150
Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16
Re H (minors) [1996] AC 563
Reader's Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500
Roberts-Smith v Crawshaw [2014] WASC 12
Sims v Jooste [No 2] [2014] WASC 373
Slim v Daily Telegraph Ltd [1968] 2 QB 157
Sutherland v Stopes [1925] AC 47
Swansdale Pty Ltd v Whitecrest [2010] WASCA 129 (S)
Trkulja v Google Inc [2010] VSC 490
Trustees of the Property of Cummins v Cummins (2006) 227 CLR 278
Turcu v News Group Newspapers Ltd [2005] EWHC 799
Universal Communication Network Inc t/as New Tang Dynasty v Chinese Media Group (Aust) Pty Ltd [2008] NSWCA 1; (2008) Aust Torts Rep 81-932
Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118
Vella v The State of Western Australia [2007] WASCA 59
Viney v TCN Channel Nine Pty Ltd [2006] NSWSC 1273
Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58
Webb v Bloch (1928) 41 CLR 331
Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89
Wilson v Coxon [2014] WASC 268
1 BOWDEN DCJ: Mr Dabrowski brings this action arising from a post allegedly made by Ms Greeuw on her public Facebook page in December 2012.
2 Facebook is an internet based 'social media' forum which permits a user to create their own Facebook profile within that forum.
3 A user's Facebook profile consists of several pages and the user can activate settings so that some pages (private pages) are visible only to persons to whom they have granted access (friends). Other pages are able to be viewed by any person accessing the user's Facebook profile (public pages). A user can publish written and visual information on any of the pages in their profile (a post).
The plaintiff's case
4 The plaintiff says that in December 2012 the defendant posted on her public Facebook page an entry saying 'separated from Miro Dabrowski after 18 years of suffering domestic violence and abuse. Now fighting the system to keep my children safe' (the disputed post).
5 The plaintiff says that the disputed post was not removed until early February 2013 and the contents were, in their natural and ordinary meaning, defamatory.
The defendant's case
6 The defendant denies she published the disputed post, and says if she did the post did not have any defamatory imputations and if they did, relies upon the defence of justification pursuant to s 25 of the Defamation Act 2005 (WA).
The evidence
Witnesses called by the plaintiff
Edward Gregory Dabrowski
7 Mr Edward Dabrowski is the plaintiff's brother.
8 He said that on or about 26 December 2012 he used his computer to access Ms Greeuw's public Facebook page.
9 When he saw the disputed post he took a number of screen shots of it and said exhibit 1 was a hard copy of a screen shot which accurately portrayed the words he saw. Although he said that one screen shot he took displayed the date he viewed the disputed post, that shot was not tendered. He denied editing the disputed post by putting the writing the subject of the defamation action on it.
10 After seeing the disputed post he rang Mr Miro Dabrowski and emailed him a copy of a screen shot. He could tell Mr Miro Dabrowski was angry, fuming, upset and agitated when he spoke to him.
11 Mr Edward Dabrowski said that prior to seeing the disputed post, he had no doubts about his brother's character however, after he saw the disputed post, he began to wonder whether there was a different side to that character and whether he and his children were safe because Mr Miro Dabrowski was spending time at his house. He said the disputed post caused him to have lingering doubts and he wondered if there could be a grain of truth to it although he maintained there was nothing in his brother's past that would lead him to that conclusion (ts 151).
12 He noticed when he accessed Ms Greeuw's Facebook page at a later unspecified date the disputed post had been removed.
13 He denied that he had ever been abusive towards Ms Greeuw or detained her or made accusations against her.
14 Ms Greeuw submits that Mr Edward Dabrowski's evidence was evasive and vague. That was not my assessment of his evidence. Nor did I notice any particularly long pauses in his evidence. He is the defendant's brother and that is a matter to be taken into account. When he gave evidence he treated Ms Greeuw with disdain. I would not describe his manner as intimidating but I accept he did not shy away from making eye contact with Ms Greeuw and was emphatic in his denial of any impropriety towards her.
15 There is no evidence to show he breached a violence restraining order. There was no such order against him nor is there any evidence that his brother Miro asked him to look at Ms Greeuw's public Facebook page. He is entitled, should he wish, to access Ms Greeuw's public Facebook page. On the central issue of whether he saw the words depicted on exhibit 1 on his computer screen, I accept his evidence.
Christine Josephine Hill
16 Ms Hill has known Mr Miro Dabrowski for about 10 years having met him through his brother, Mr Edward Dabrowski, and his parents.
17 She said until the end of 2012 she saw Mr Miro Dabrowski roughly every three months and thought he was a nice, kind person.
18 Ms Hill said that about the end of January 2013 she was at home browsing through her Facebook site and ultimately went to Ms Greeuw's Facebook site.
19 She said she saw the disputed post and was quite appalled because she had gone through very long divorce proceedings herself and had many things said about her publicly.
20 She said that although she knew Mr Dabrowski as a very caring, kind and thoughtful person, the disputed post caused her to have doubts in her mind and she wondered whether what was written was true. Although she had not heard both sides to the story she felt a little bit unsure deep inside about Mr Miro Dabrowski character and had doubt in the back of her mind. She said she would feel a little bit more reassured once the matter was resolved.
21 Ms Hill agreed that on the day her statement was made, 24 April 2014, Mr Miro Dabrowski collected her from her house, drove her to another house where she typed her statement in his presence which he then witnessed and then drove her back to her house.
22 She agreed that her statement contained the following:
To this day I still have serious concerns about … who the real Miro is, I really am unsure of him. Unless or until a judgment is granted in his favour over the falsity of statements made by Robyn against Miro I will always have those concerns and fears. If the court finds that the statements made by Robyn were false then they will give me great confidence to resume my friendship and relationship with him until then I deliberately shy away from him for my own good (ts 231).
I felt that I could not socialise with him in any capacity nor did I want to socialise with him nor could I trust him to be honest when speaking of this past matter or events …I felt unsure, vulnerable and hesitant when thinking about visiting the household of Ed to see my friend … (ts 245 - 246).
23 Notwithstanding her statement that she would 'deliberately shy away from Mr Miro Dabrowski for her own good' and 'was really unsure of him' Ms Hill agreed that she had no concerns about being alone with Mr Miro Dabrowski in the vehicle or at the house on the very day she signed the statement.
24 I reject the suggestion that her evidence is suspect because she travelled to Perth with Mr Edward Dabrowski or stayed overnight at the same hotel as Mr Miro Dabrowski who paid for her meal and accommodation and with whom she dined during the trial. However, I do not accept her evidence as I found her to be an unsatisfactory witness. Under cross-examination she was hesitant with prolonged pauses before her answers and she seemed more interested in providing answers that she considered would assist Mr Miro Dabrowski than answering the questions.
25 I do not accept that she did not want to socialise with Mr Miro Dabrowski or shied away from him and felt unsure or had concerns about him when on her own admission she had been alone with Mr Miro Dabrowski in his vehicle and at the house where her statement was prepared. Her conduct is simply so inconsistent with her expressed reluctance to associate with Mr Miro Dabrowski that it causes me to doubt her evidence in its entirety and I do not rely on it in any way.
Amanda Kaye Draper
26 Ms Draper is a separated woman with six children under her care, four biological, one adopted and one foster child. She told the court that she had known Mr Miro Dabrowski since 2009 through their common profession of teaching and about the middle of 2012 they started dating.
27 She said that on the 23 December 2012 she went on a date with Mr Miro Dabrowski and upon returning to her residence went onto Facebook to see what his ex-wife looked like. She opened Ms Greeuw's Facebook page and saw the disputed post which left her shocked, horrified, confused and upset.
28 Ms Draper said what she read was inconsistent with her own experiences with Mr Miro Dabrowski. She had never seen him shout abuse or become angry nor seen anything from him that was remotely violent or abusive. She said exhibit 1 contained the words she saw on her computer screen.
29 She was worried by the reference to the domestic violence and abuse and said the word 'suffering' indicated to her that the abuse must have been 'terrible' and ongoing. The evidence given by Ms Draper or any witness as to what they understood the words to mean is ignored by me as it is irrelevant when determining what imputations are said to be conveyed by the natural and ordinary meaning of the publication: Hough v London Express Newspaper Ltd [1940] 2 KB 507 515; Slim v Daily Telegraph Ltd [1968] 2 QB 157, 172 - 173 ; Reader's Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500, 505 – 506 .
30 Ms Draper said she was not sure what to do or if she wanted to see Mr Miro Dabrowski again. She spoke to her best friend and made a decision to stop seeing him and discontinued their relationship not long after that.
31 She said that for a period of about 10 months they stopped dating, although they saw each other occasionally and were still friendly. In October 2013 they recommenced dating as she felt more confident and had not seen anything that made her think that the disputed post was true.
32 Her primary concern was that as a foster carer someone might read the disputed post and raise with the Department of Child Protection (DCP) her association with Mr Miro Dabrowski and they may reason that she was not capable of protecting people from domestic violence thereby creating an issue for her.
33 She said she was asked by Mr Miro Dabrowski to make a statement in September/October 2012 but did not do so and was asked again in April 2014.
34 Ms Draper said that she typed her statement on a Word document at the university, emailed it to Mr Miro Dabrowski and it was then put into a more formal document. Ms Draper said she read every single part of the statement before she signed it.
35 Notwithstanding her statement saying 'annexed hereto marked A is a copy of the only page that was publicly visible' she agreed that the screenshot was not annexed when she signed her statement. She became aware it was later annexed to her statement, that occurring she said, with her approval.
36 It would appear from Mr Miro Dabrowski's evidence that during the 10-month period between December 2012 and October 2013, when they were not in a relationship, Ms Draper provided information about Ms Greeuw's movements between March 2013 and June 2013 which found its way into one of Mr Miro Dabrowski's family court affidavit's (exhibit 33). This is not inconsistent with Ms Draper's evidence that she remained friendly with Mr Dabrowski over that 10-month period.
37 Whilst I accept Ms Draper signed a statement saying a document was annexed to her statement when it was not, I found her to be an articulate, forthcoming and credible witness who simply told it as it was, as is evidenced by her ready admission that the annexure was not on the statement when she signed it. I accept her as a witness of truth.
38 I reject Ms Greeuw's submission that Ms Draper was evasive and hesitant in her evidence and stalked her at Mr Dabrowski's behest and in breach of the violence restraining order. I do not find it surprising that Ms Draper was curious enough to check out the estranged wife of the person she was dating by accessing their public Facebook page and on occasions reported to Mr Dabrowski what she saw when she droving past Ms Greeuw's house.
39 The fact that her hotel and evening meal were paid for by Mr Miro Dabrowski and that she worked at the same school as he did does not cause me to doubt the truthfulness of her evidence.
Miroslaw Bogdan Dabrowski
40 Mr Miro Dabrowski was born on 14 June 1960 and is currently employed as a school teacher. He has an impressive background in education having worked in that vocation for approximately 30 years (exhibit 2).
41 He married Ms Greeuw in 1992 having been in a relationship since about 1987. They have two children, Joanna born on 6 March 1997 and Daniel born on 9 October 1998.
42 Mr Miro Dabrowski (hereinafter referred to as Mr Dabrowski) said they separated on 2 March 2012 when he returned from a walk and found police at his residence with an ex parte interim violence restraining order (IVRO) requiring him to vacate the premises. Before he vacated the premise he left a birthday present and card for Ms Greeuw as her birthday was approaching. He said he was not aware at that time of the terms of the IVRO, although the police may have read them to him. He said he had not seen his children since 2 March 2012.
43 In evidence-in-chief he said he left the house on 2 March. In cross-examination he said that he spoke to the police officers and they gave him until the next morning (3 March) to leave. Ms Greeuw makes the point that the IVRO (exhibits 41A, 41B, 41C) came into force when served and pursuant to those orders Mr Dabrowski should have left the premises as soon as the orders were served. Ms Greeuw also points out that in exhibit 19 Mr Dabrowski stated that from 2 March to 4 September he was not allowed back into his home, whereas in fact he did not leave the home until 3 March.
44 I accept the validity of the point made by Ms Greeuw in this regard. Notwithstanding Mr Dabrowski's evidence that he had arranged with the police to leave the next morning, he was in breach of the order by not leaving forthwith.
45 Mr Dabrowski said the first he was aware of the disputed post was when his brother rang and told him. He first viewed the disputed post three or four days later which was after Christmas 2012. He said he typed his wife's name into his Facebook account's search bar and clicked on it when it appeared on the dropdown menu and then opened up her Facebook page. He said one of the tags that presented itself was 'about' and either he clicked on 'about' and the disputed post appeared or he may have clicked on another post on the 'about' page which caused the disputed post to appear. After that date he checked Ms Greeuw's Facebook page a couple of occasions each week to see if it had been removed and last saw the disputed post in mid-February 2013.
46 I reject Ms Greeuw's submission that Mr Dabrowski breached either the IVRO (exhibits 41A, 41B, 41C) or the undertaking (exhibit 13) by viewing her public Facebook page. The act of viewing Ms Greeuw's public page does not, in my opinion, constitute communicating or attempting to communicate with her and in light of the public nature of the page viewing it to confirm what had been publically posted about himself does not constitute behaving in an intimidatory, offensive or emotionally abusive manner towards her.
47 Mr Dabrowski said he did not mention the disputed post to anyone.
48 He said he was angry, shocked, dismayed and horrified when he saw the disputed post and could not believe what he was reading. It caused him to have palpitations and mixed feelings about what was going on and what was happening.
49 He said that from December 2012 to February 2013 he could not recall anyone other than his brother, Ms Hill and Ms Draper speaking to him about the disputed post. He did not refer to his sister, Ms Christie, saying she had seen the disputed post. He denied he gave anyone instructions to access Ms Greeuw's Facebook page.
50 Mr Dabrowski said the disputed post caused him concerns about his employment as a school teacher because it was a high profile position which involved sports coaching and residential care for the boarding school and he was concerned about how students, their parents, fellow teachers, police and others would react particularly in light of the fact that Bunbury was a small town. He was concerned that his friends, family and partner would think that he was not above board.
51 He said he was stressed and worried because he knew internet/Facebook was worldwide and he was concerned that what had been posted may come back to haunt him.
52 He said he never engaged in domestic violence or domestic abuse and had never been abusive towards Ms Greeuw. He said he had been critical of her sometimes but he had never been abusive physically or otherwise. Mr Dabrowski accepted that in the course of the marriage there had been occasional arguments and bickering and quarrels over small things which he could not specifically recall.
53 Mr Dabrowski said the parties temporarily separated in 2003 but denied that before this occurred he shouted at Ms Greeuw, interfered with her mail, accused her of having an affair, told her she would never see the children again, prevented her from leaving the home, snatched the phone out of her hand, took the car keys from her, locked the door, physically assaulted her by pushing her down the corridor into the bedroom or in any way, detained her in the bedroom or heard her shouting for help or to be left alone and denied that his brother had ever blocked her exit or shouted at her. He denied accusing Ms Greeuw of being mentally ill or hearing her ever tell his brother to get out of the house.
54 In relation to an alleged incident occurring at the Narrikup Farm of Ms Greeuw's parents he denied anything untoward occurred.
55 He recalled an occasion in February 2012 when he arrived home and noticed that there were three laminated pieces of paper pinned to the front of his house which contained notices saying in effect that his wife had nothing to do with him and he did not make decisions for her or the children. He said the notices shocked him and he immediately pulled them down. In evidence-in-chief he said exhibit 4 was one of the notices he removed, however, in cross-examination said he was not sure but believed it was one of the notices.
56 He said Family Court proceedings were still outstanding and complaints had been made by Ms Greeuw and a friend of hers that he had abused the children and the department had written to him advising that the complaint had been dismissed (exhibit 3).
57 He said the fact that Ms Greeuw had not apologised, nor made any effort to resolve the issue by mediation, or respond to his lawyer's correspondence calling for mediation, and still held the views portrayed in the disputed post left him infuriated, angry, vulnerable, disgusted and uncertain as to the future and aggravated his damages as had her advice that she would call the two children as witnesses. He said he had done everything to avoid the trial and the costs.
58 He said Ms Greeuw's subsequent Facebook entry of 12 April 2014 (exhibit 9) made him angry and disappointed and was an example of her continuing to maintain the views expressed in the disputed post.
59 He denied he had entered the house and caused any damage to Ms Greeuw's property after he had received the IVRO and denied that he was asked to return any of the house keys.
60 He said Mr Springer had looked at his computer on a couple of occasions and this had led him to believe that his computer may have been tampered with.
61 I found some aspects of Mr Dabrowski's evidence unsatisfactory. It was put to him by Ms Greeuw that during the period from the purchase of the Wentworth Drive residence in December 2011 to the issue of the IVRO in March of 2012 the house was effectively divided into two halves with each party remaining in their side of the house. He maintained there was never an agreement or impediment stopping either party going from one side of the house to the other but said as a matter of fact on most occasions the parties kept to their side of the house (ts 362, 367). He said he went into the other side of the house when he was invited and on other occasions, for example, when he came home with the children from school or had informal meals with friends (ts 385).
62 However, this evidence is contradicted by exhibits 24 and 25 which are letters to the children's school in which he claims that in February and March of 2012 he was unable to monitor the children's school attendance as 'he did not have access to the house' and say that since July 2010 Ms Greeuw had access to the house and he did not. This would seem to me to be an example of Mr Dabrowski saying what suits him. When it suited his purposes to say to the school he had no access to the house, he was prepared to do so. When it suited his purposes for this trial, he said he did have access to the house.
63 In evidence-in-chief Mr Dabrowski said he challenged the IVRO and when it came on for hearing in August 2012 it was either cancelled or dismissed because both parties gave mutual undertakings not to contact each other, drive past each other's house or be in close proximity to each other. In exhibits 19 and 26, a letter to the DCP of 19 December 2012, he also referred to mutual undertakings.
64 In cross-examination it emerged that exhibit 13 the document he signed prior to the restraining order being dismissed or cancelled was not a mutual undertaking but rather his unilateral undertaking. Notwithstanding this he maintained that he understood mutual undertakings had been given. This is contradicted by an affidavit sworn in the family court proceedings on 7 January 2013( exhibit 30) in which he refers only to the undertaking provided by him and it supports my conclusion that he knew mutual undertaking were not given. Mr Dabrowski's evidence to the contrary is simply not credible. In my opinion he maintained that there were mutual undertakings quite deliberately to portray himself in a more favourable light and this reflects adversely on his credit.
65 He was cross- examined at length about an occasion in about 2010 when he, Ms Greeuw and children intended to take a holiday. He agreed he was reluctant to go on that holiday because he said there was no firm plan as to where they were going or staying. He denied he yelled or shouted or indulged in any abusive behaviour on this trip, although he agreed that when he got back to Bunbury he was told to move to the caravan or stay in the lower part of the house.
66 Mr Dabrowski's attention was drawn to exhibits 14, 15 and 16 (ts 436 - 441), being correspondence sent by him to Ms Greeuw relatively contemporaneously with those events.
67 In exhibit 14 he said, inter alia:
I guess I have a right to freak out, panic or whatever I do when things get on top of me but I don't have the right to make my family and you suffer because of it. I can only try to act the way I ought to and put you all at the front and enjoy the occasions we make … You are right to be disappointed with me and I understand. I am quite ashamed of taking you and life for granted and having no-one or nothing or no other means to blow off instead of making my loved ones suffer my problems. The holiday was a great idea of yours and I could not cope .I am so sorry. I could do with one to be honest. … I apologise for my ways. I won't ever take you for granted again I will take your hand instead. Love Miro
68 Exhibit 15 contained, inter alia:
I'm very sorry for spoiling the holiday. I'm still catching up with stuff six weeks later that caused me panic (and some hype and anger) during week 2 of the holidays… I guess I need to prioritise things and put you and the kids first always … I came across badly, but I really am good intentioned. … I apologise for the way I acted and spoilt the holiday plans you all needed and wanted so badly …
69 Exhibit 16 contained, inter alia:
Hi Robyn. You have every right to be angry and disappointed because that's how I feel about me for not living up to your needs of a husband and friend. … I didn't deal with my pressures well and the panic and freak out period I had re holiday just showed that …
70 Mr Dabrowski said the expressions 'I have a right to freak out, panic or whatever I do when things get on top of me but I don't have the right to make my family and you suffer', 'I'm quite ashamed', 'no other means to blow off instead of making my loved ones suffer my problems', 'acting the wrong way towards you … I apologise', 'I don't deal with my panic attacks well … the panic and freak out period I had re holidays just showed that' referred to his internal state of mind, not to his physical actions, as he was a deep thinker who internalised matters and said those words were used when he was in an 'emotional state, frustrated and disappointed'.
71 He said that he was 'possibly' disappointed because he had suggested to Ms Greeuw that the holiday should not proceed due to her stressed state when in fact he wanted the holiday to occur and was angry with himself because the holiday did not eventuate. He said his use of the word 'panic' probably referred to his disappointment that the trip failed.
72 He consistently maintained that the correspondence referred to his internal state of mind and not any outward display of anger. He agreed that his internal anger may have shown in his face and possibly in his talk but maintained he could not recall using any angry tones.
73 I found Mr Dabrowski's evidence in this regard lacked credibility. I agree with Ms Greeuw's submission that the correspondence contradicts Mr Dabrowski's evidence. Notwithstanding that the contents of the three communiques are to the effect that he wished to apologise for his behaviour, he was not prepared to concede that there was any outward behaviour for which he should apologise and maintained that his uncommunicated 'deep and internalised thoughts' were all he was apologising for. It is incredulous that Mr Dabrowski would consider it necessary to apologise for his 'internal thought bubbles' which had not been expressed in any physical anger or verbal abuse. His evidence in this regard was simply incredulous.
74 Mr Dabrowski's evidence that he internalises' his thoughts is contradicted by Mr Edward Dabrowski's evidence that the former was angry and annoyed when told of the existence of the disputed post.
75 Further, Mr Dabrowski agreed that in December 2012 (exhibit 19) he referred to hate-filled Family Court matters being run by Ms Greeuw and that letter, inter alia, stated:
… It is obvious that care and residency of my children is no longer an option with my estranged wife who in my view has significant mental health issues and is unable to look after the children and appears to have abdicated her parental responsibilities.
76 Mr Dabrowski said he based his conclusion that Ms Greeuw had a mental illness on the fact that she made the allegations against him and had been taking medication for anti-anxiety, which he claimed was a form of mental illness. He said her conduct towards him was such that it could only be carried out by a person with a mental health issue.
77 He agreed he had never taken Ms Greeuw to a doctor for a mental health issue nor had she ever told him that she suffered such issues nor had he collected medication for her alleged issues.
78 He denied that he ever told Ms Greeuw that she was mental or mentally ill and said he had not told anyone, other than via exhibit 19, his view that she had a mental illness.
79 However, he agreed that in two affidavits 6 June 2012 (exhibit 23) and 6 November 2012 (exhibit 22) he deposed to discovering that Ms Greeuw had been taking anti-anxiety medication in 2003 and in the following sentence referred to her sister's mental health issues. Clearly he was seeking to link his wife's medication to a family history of mental illness.
80 In exhibit 32, an email of 4 November 2013, Mr Dabrowski refers to Ms Greeuw's emotional and mental state being of concern to many authorities and states it is widely believed that her delusional and erratic behaviour is attributed to her current health issues. Mr Dabrowski also agreed that in his affidavit of discovery in the Family Court proceedings (exhibit 43) he disclosed documents relating to Ms Greeuw's sister and her death. Contrary to his evidence, exhibits 22, 23, 32 and 43 show that Mr Dabrowski was referring others expressly or implicitly to Ms Greeuw's alleged mental illness. His evidence that he had not told anyone, other than via exhibit 19, his view that she had a mental illness is contradicted by those exhibits. This is a matter which adversely reflects on his credit.
81 Ms Greeuw's allegation that Mr Dabrowski repeatedly breached the violence restraining order by vandalising her property, entering her home, taking her property, leaving written communication, subjecting her to abusive taunts, stalking her and encouraging people to stalk her and repeatedly sending malicious, untruthful, threatening and intimidating letters to her and her family and friends is not supported by evidence which I accept.
82 I accept that Mr Dabrowski breached the interim violence restraining order by remaining on the premises from 2 – 3 March and by leaving a note to her when he left the premises.
83 There is no evidence to establish that he encouraged Ms Draper to drive past Ms Greeuw's residence. It is clear that Ms Draper did report to him what she saw when she drove past Ms Greeuw's residence. That does not mean she drove past at his instructions or at his encouragement. It simply means that he used information that was passed to him by her.
84 Despite Ms Greeuw's submissions to the contrary there is no evidence to establish that Mr Dabrowski is responsible, either as principal or as an aider, for the sending of exhibit 47, an anonymous letter. I have no doubt its contents are upsetting to Ms Greeuw. Clearly it was sent by persons who know Mr Dabrowski and Ms Greeuw and have some knowledge of the relationship between the parties and this court case. That does not establish directly or inferentially that it was sent by Mr Dabrowski or with his connivance.
85 In assessing Mr Dabrowski's evidence I note its shortcomings. He breached the IVRO by not vacating the premises as soon as the order was served on him and by leaving the birthday note for Ms Greeuw after receiving the order. His explanations as to the level of access shared at the Dalyup house is contradicted by his previous letters. His evidence relating to the mutual undertakings lacked credibility as did his explanation for the phrases used in exhibits 14, 15 and 16. I also find that in exhibits 22, 23, 32 and 43 he was referring others expressly or implicitly to his wife's alleged mental illness despite his evidence to the contrary. I also take into consideration the bitterness of the breakup and his preparedness to maximise his damages as demonstrated by his evidence in relation to his claim for aggravated damages.
Barbara Christie
86 Ms Christie is Mr Dabrowski's sister. Ms Christie said she had never passed any comments on Mr Dabrowski's alleged anger issues and had no recollection of Ms Greeuw complaining about receiving abuse from Mr Dabrowski's nor of Mr Dabrowski contacting her and apologising for abusing Ms Greeuw.
87 She said Ms Greeuw had not spoken to her about Mr Dabrowski's alleged anger and never expressed any concern about his behaviour towards his daughter.
88 Ms Christie also told the court that she saw on her computer screen the comments contained in exhibit 1 when she accessed Ms Greeuw's Facebook site about Christmas 2012. She did not take any screenshots because she did not think she needed to. The comments she saw included the word 'Miro Dabrowski'.
89 Ms Christie said she did not think a hardcopy of a screenshot of a Facebook page showed any date other than the date it was printed.
90 In accessing her evidence I have taken into account her relationship to Mr Dabrowski and that she sat in court throughout the trial, including the evidence of both Mr Dabrowski and Ms Greeuw. For these reasons I have scrutinised her evidence with care and after doing so I accept her as straightforward witness of the truth.
Evidence called by the defendant
Robyn Greeuw
91 Ms Greeuw said that from the early years of her marriage (1997), Mr Dabrowski denigrated her friends and was reluctant to visit them.
92 She said that there were arguments every few weeks over minor things with Mr Dabrowski shouting in her face that she was useless, stupid and going mental. She said he would quite often stand in front of the door to prevent her from leaving and if she managed to get her phone he would snatch it from her hands.
93 She said that on at least two occasions he grabbed her and pushed her onto the bed and on one such occasion had grabbed her on the shoulder when she was struggling and forcibly pushed her down the passageway and onto the bed leaving her arms with red marks which ultimately became bruises (ts 730, 1084). She said that on one occasion when she was crying near the bedroom door he shouted that she was mental and was not to leave him and punched the door leaving a hole in it.
94 She said that after Joanna's birth (in 1997), Mr Dabrowski would criticise her and shout at her and failed to pay her any compliments. She said during arguments Mr Dabrowski prevented her from leaving by blocking the doorway and pushing the pram away and gave as an example an occasion when he forcedly pushed her away from the door while she was holding Joanna.
95 She said that when they moved to the Eaton property in around about 2000, Mr Dabrowski would come home from work angry, kick the children's toys and swear and throw things. Whenever she asked for assistance with domestic chores, he would abuse her, say she was a useless bitch, raise his voice and shout at her in front of the children and would not compliment or hug her.
96 Ms Greeuw recalled an occasion when her parents came for dinner and she cooked a special meal and used her Royal Doulton china set. She said Mr Dabrowski complained that he did not like the food in front of her parents which resulted in her retreating into the bedroom crying and humiliated. When her mother challenged Mr Dabrowski about his behaviour, he said he was only joking.
97 Ms Greeuw also described an incident when the family visited her parents at their Narrikup property. She said Mr Dabrowski criticised her in front of her parents and after a short argument shouted that she was a stupid bitch and the marriage was over and told her he had enough and got into his car and drove away, leaving her with the children and no money or transport and literally with only the clothes they had on.
98 She said that the next day when she rang to see if he was coming to pick them up, he said he was not and told her he had enough and the marriage was over and did not apologise for his behaviour. Eventually Ms Greeuw made her way home and found that he had bought gifts for the children by way of an apology, but not for her, and he acted as if nothing had happened. Ms Greeuw said that because she had withdrawn money from their bank account after he left them at Narrikup he would in subsequent arguments allege that all she was after was his money and remind her that her first act after the Narrikup argument was to withdraw money from the account.
99 She said that in early 2003 she had difficulties sleeping, suffered migraines, restlessness and anxiety and obtained medication to assist her. She said she did not start using that medication until after they separated in June 2003 and then only used it intermittently in 2003 taking half a tablet every two months (ts 747, 1092).
100 Ms Greeuw said that in April 2003 she obtained a lift with a male acquaintance to a country fair that Mr Dabrowski did not want to attend, and the next day, in front of the children, he accused her of having an affair and became angry, walking and stomping around and shouting at her. Her evidence was that Mr Dabrowski accused her of having an affair on other occasions.
101 Ms Greeuw described an incident occurring near the middle or early 2003 where Mr Dabrowski accused her of lying when she told his mother she was going to a doctor but went to a counsellor. Ms Greeuw said that when she admitted this occurred Mr Dabrowski shouted in her face that she was mental, that she could not leave him, and that she would never get the kids. Ms Greeuw said that when she fled to the bathroom Mr Dabrowski started to bang and pound on the bathroom door while shouting that she was mental, would not get the kids and would get nothing and be out on the street. When she fled to the car Mr Dabrowski continued shouting at her and when she got into the car, he pounded his fists on the car and the passenger window and continued shouting as she drove off. On that occasion she stayed at a friend's place and he later rang that friend shouting over the phone that she was not allowed to leave him, would not get the kids, and was just after the money.
102 Ms Greeuw told the court that in around May 2003, she received a letter from Centrelink. Mr Dabrowski opened the letter and shouted at her, inter alia, that she could not leave, would never get the kids, and was a bitch, all she wanted was the money, that she was ripping him off, was mental and would get nothing. Ms Greeuw said she fled to the bedroom and shortly thereafter, Mr Edward Dabrowski arrived and blocked her access to the front door and pushed her away from the door and back into the bedroom. Whilst this occurred, Mr Dabrowski verbally abused her and when she tried to get out of the bedroom, Mr Edward Dabrowski pushed her back, in Mr Dabrowski presence, and the latter failed to intervene and ultimately she ended up in the wardrobe crying.
103 She also said that throughout the marriage, Mr Dabrowski would regularly examine her phone to see who she called.
104 Ms Greeuw recalled that in June 2003, she left Mr Dabrowski and obtained a residence in Stratham. When the parties reconciled in December 2003, Mr Dabrowski told him that whilst they were separated his brother Edward rang the police in his presence and told them she was mentally ill, had abducted the children and would harm them.
105 She said that after they reunited in December 2003, occasions occurred when she was disciplining the children and Mr Dabrowski would intervene in an aggressive tone and raise his voice and challenge what she was doing in front of the children.
106 She said that if she raised her voice at the children, he would say she was going mental and if the children hit or swore at her, which occurred on occasions, they were never reprimanded nor reminded that such behaviour was inappropriate.
107 Ms Greeuw said Mr Dabrowski would not help when requested and those request were often met by him saying things like 'fuck off' and 'you're useless' in front of the children.
108 Ms Greeuw said that on occasions when she or the children would challenge Mr Dabrowski about his abuse or ask for an apology, he would say he was only joking.
109 She said after the reconciliation he would shout in her face and on occasions would prevent her from leaving by standing in front of her and pushing her, sometimes causing her to fall against the metal railing and to fear she was going to fall down the steep stairs. She said he would swear at her and shout abuse such as that she was mental and was not going anywhere, and would rip her phone from her and take her car keys.
110 Ms Greeuw recounted an occasion in 2008 when Mr Dabrowski and Joanna were moving her antique Singer sewing machine from the hallway to the shed against her wishes. When she asked them to put it back in the house Mr Dabrowski started swearing at her in front of Joanna and took the machine down to the shed where it was subsequently eaten by white ants. She repeatedly asked that it be brought back and Mr Dabrowski's response was either to swear at her or tell her he could not be bothered.
111 Ms Greeuw said that while they were at Stratham she could only remember one or two occasions when Mr Dabrowski hugged or kissed her.
112 Ms Greeuw gave evidence that after 2008, every time Mr Dabrowski passed her in the passageway, he would drop his shoulders and bump her causing her to bang into the passageway wall, sometimes hurting her wrist or hand when she made efforts to cushion the impact.
113 She said that from about 2008 to 2010, every second month at least, Joanna would swear and hit her and any efforts she made to discipline Joanna would result in Mr Dabrowski shouting at her to justify her actions. She said that on some occasions Mr Dabrowski would smack Joanna on top of her legs or bottom, repeatedly, despite requests not to do so and she would grab Mr Dabrowski and pull him off Joanna.
114 Ms Greeuw said that on occasions when Daniel was misbehaving he would be belted and she gave an example of an incident occurring in 2008 or 2009 when Daniel was chased by Mr Dabrowski and hit with a wooden pole, resulting in Daniel screaming, and sheltering behind her.
115 She also said there was an occasion in 2008 to 2009 when Joanna swore at Mr Dabrowski and he raised his hand as if he was going to strike Joanna and then chased her with some webbing saying that she needed to be taught a lesson, and ultimately Joanna sheltered behind her.
116 Ms Greeuw also gave evidence of an incident occurring in June 2010 when a family holiday was planned. She said Mr Dabrowski was reluctant to go on the trip and did not pack until the last minute and continually said that he did not want to go. Eventually when the family left he was swearing so she stopped the car until he apologised, and when he did so she continued to drive the vehicle until he said something rude or unnecessary to her, and she then turned the vehicle around and drove back towards Bunbury, however when they reached Australind he said he would behave and apologised.
117 Eventually they arrived in a hotel at Perth and Ms Greeuw said she specifically asked Mr Dabrowski not to be rude or embarrass her and asked him to make the booking at the hotel. However when they both went to the front counter to make that booking he stood back leaving her at the counter where a long embarrassing pause occurred, as she did not know how to do the booking, and both receptionists stared at her.
118 Ms Greeuw said she felt humiliated and was reduced to tears before Mr Dabrowski stepped forward, grinning and smirking, and proceeded to make the booking. When they went back to the car, Ms Greeuw said she took her rings off and told him the marriage was over. Shortly thereafter she told Mr Dabrowski she was taking him to his sister's house whereupon he screamed that the marriage was not over, demanded the car be stopped and that he not be taken to his sister, and commenced yelling and banging the car's dashboard and the side window and tried to get out of the car door. She said he was banging his head on the dashboard and saying he was not going to his sister's. Ms Greeuw said that as soon as she stopped driving towards his sister's, Mr Dabrowski stopped 'like a switch' had been turned off.
119 The next morning when she and the children decided to continue their holidays she told Mr Dabrowski she would drop him off at his sister's house, and he commenced to scream, pounded on the car's dashboard and window with his fists and head, took off his seatbelt, tried to open the cars door whilst it was moving and was 'going berserk and demanding to be taking home'. Once she acceded to this request and headed towards their home this behaviour stopped.
120 Ms Greeuw said that when they returned to their Stratham residence, she told him that he could stay a couple of weeks in the caravan but he would then have to leave the premises. She said that every day for at least three weeks he pounded on the door, screaming and shouting at her that they were not separating and that their marriage was not over. She said he also screamed abuse such as that she was mental and would not get the kids and would end up with nothing, and on one occasion he threatened, within the hearing of the children, to suicide.
121 Ms Greeuw said that every day for at least two months she would tell Mr Dabrowski that he had to leave, and he would shout that the marriage was not over, that she had no right to tell him to leave, that she was mental and would get nothing, and he would also scream at the children when they said he should leave.
122 Ms Greeuw said in early 2010 Mr Dabrowski rang a work colleague of hers when she had asked him not to.
123 Ms Greeuw said that in October 2010 Mr Dabrowski was involved in criminal activity when he fraudulently signed her name on the bottom of a letter and faxed it to an investment company so that money deposited in her name would be transferred into his name (ts 1038) (exhibit 56).
124 Ms Greeuw said that in July 2010 Mr Dabrowski showed no concern over an issue (photos on his mobile phone) that she told him had distressed their son (exhibits 39 and 40).
125 She said in January 2012 she voiced her concerns to Mr Dabrowski about an angry man who had reportedly knocked on her front door and Mr Dabrowski was very casual about what had occurred and fobbed it off. She said a day later a man knocked on her door and gave her an email which led her to conclude that Mr Dabrowski had an affair with that man's wife.
126 She said that in February 2012 she and Daniel told Mr Dabrowski that they did not want him to attend the same school camp as Daniel. She said Mr Dabrowski, who taught at that school, responded with a raised voice that it was none of her business and said he had a right to go and although he subsequently did not attend that camp, he later shouted at his son that he had no right not to ask him to go to the camp. Ms Greeuw said that Mr Dabrowski's behaviour was so bad that from that date the children never travelled to school in the same vehicle with him.
127 Ms Greeuw said that in March 2012, she obtained an IVRO (ex parte) against Mr Dabrowski as did the two children (exhibits 41A, 41B and 41C).
128 She said on 23 June 2012 she was in her vehicle at night and saw Mr Dabrowski in his white Prado on the road outside her residence glaring at the house and the trailer attached to her vehicle. She grabbed her phone and took a photo of the vehicle; however, Mr Dabrowski drove off (exhibit 34).
Did Ms Greeuw publish the post?
129 Ms Greeuw maintained that she was not that familiar with Facebook (ts 1129, 1131) saying she did not know it very well (ts 685) having only started to use it in April 2012 (ts 1016). She said Mr Springer set her Facebook up and told her all the settings were private (ts 687).
130 Ms Greeuw's final position was that she typed the words that appear on exhibit 1 under the heading 'separated' with the exception of the words 'Miro Dabrowski,' (ts 1194, 1120) onto her computer screen but did not save or upload (post) the words onto her public Facebook page and that after she typed the words they somehow disappeared, or were deleted by her from the screen. She said she knew she did not type the words 'Miro Dabrowski' because she was aware that could be flagged.
131 She said that after she typed the words she 'clicked' back to find them and they were not there and she then typed 'Now a client of Waratah Support Centre. Waratah offers support and counselling to victims of Domestic violence and Abuse' (the Waratah post) and posted (uplifted) those words on her Facebook profile and saw them on that profile. She said she did this at 9.02 am on 20 December 2012 as shown on exhibit 37, a hardcopy of a screenshot of her Facebook activity log and she said the Waratah post was still on her Facebook account on 6 February 2013 as shown by exhibit 38, a hardcopy of a screenshot from her Facebook account.
132 She said someone must have accessed her computer remotely and observed the words she had typed (but not saved or posted) (ts 1141) and cut and paste them and added the words 'Miro Dabrowski' to create their own hard copy document (exhibit 1) of the words she had typed (ts 1136). She said this scenario was supported by the fact that exhibit 1 does not disclose either a printout date or the date the post was uploaded nor any date showing when it was viewed. In respect to the latter point, no expert evidence was called by either party to explain how Facebook operates and Ms Christie said she did not think a hard copy of a screenshot from a Facebook page showed any date other than the date it was printed, although this evidence seems contrary to parts of the evidence of Mr Edward Dabrowski.
133 Ms Greeuw said she did not post to her Facebook profile the words that appear in exhibit 1 and that exhibit was a complete fabrication and part of a malicious and vindictive campaign conducted against her by Mr Dabrowski and others.
134 Mr Dabrowski's position is that I should accept the evidence of the five witnesses who swore that when they viewed Ms Greeuw's public Facebook page they saw on their computer screens the disputed post.
135 Mr Goldsmith also relies on exhibit 35, being Ms Greeuw's then solicitor's response to his concern notice of 30 January 2013 (exhibit 5). That response was sent after the solicitors consulted with Ms Greeuw and they responded that they did not consider the matters complained of were defamatory and would defend any proceeding but did not deny the publication by Ms Greeuw of the material.
136 However, the concerns notice refers to the publication by Ms Greeuw of 'the separation statement posted on Facebook on or about 21 December'. It does not contain the specific text of what is alleged to have been published. It refers only to the defamatory nature of what was published and the imputations said to arise from the publication. I therefore place no evidentiary value on the terms of the response.
137 Additionally, Mr Goldsmith relied on the nine-page defence prepared by Ms Greeuw and filed on 20 May 2013 (exhibit 53). This document is used by me only for its relevance in establishing a prior inconsistent statement. Ms Greeuw said she went to painstaking lengths to make sure it was thorough and precise (ts 1126).
138 Paragraph 1 provides:
The Defendant admits publishing on her Facebook personal profile on or about 21 December 2012 a statement of fact referring to her marital status i.e. separated in July 2010 after 18 years of an abusive marriage. The Defendant maintains that her defence is that the statements made are factual and can be supported by evidence of abuse over the years.
139 Paragraph 2 provides:
The defendant admitted making a statement also at the same time that she was 'fighting the system to protect her children'.
140 Ms Greeuw says these documents must be viewed in the light of the fact that she did not see exhibit 1, containing the precise words she is alleged to have posted until 24 May 2013 when she received a fax (exhibit 46) from Mr Goldsmith. She says the defence (exhibit 53) and her response (exhibit 35) were prepared on the basis that as Mr Dabrowski's lawyers were saying she had published remarks without specifying the words she published but specifying the imputations from those words, and as she recognised some of those imputations as being the same as the words she typed (although not posted), she thought what she typed must have been posted and therefore published. She says she did not recall, at that time, that the words she typed and did not post disappeared (or were deleted) and that she had typed and posted the 'Waratah' post (ts 1192, 1193).
141 It appears somewhat implausible for Ms Greeuw to say she did not know the exact words she is alleged to have published at the time of her response (exhibit 35) and defence (exhibit 53) but recognised the imputations alleged as words she typed but did not post. This appears to be an attempt to make her evidence 'fit' with the contents of her response and defence and reduce the impact of her failure to deny publishing the remarks in the response and the admission in the then defence that she published on Facebook a statement referring to 'separated in July 2010 after 18 years of an abusive marriage' and 'fighting the system to protect her children'. I note that those words, referred to in the then defence, do not appear in the Waratah post.
142 However it is not necessary for me to rely on the response (exhibit 35) or the then defence (exhibit 53) because even if Ms Greeuw had not receive a copy of exhibit 1 until 24 May 2013 (exhibit 46) she has admitted that she not only posted the disputed Facebook post but saw it on the site and removed it. That is the only conclusion that can be drawn from her statement in court on 3 June 2014 and her written submissions dated 24 June 2014.
143 On 3 June 2014, well after Ms Greeuw received exhibit 46, and when she clearly knew what she is alleged to have published, she stated to the court '… When I did put that Facebook post on there …' (ts 111).
144 Clearly this is an admission against interest. It is an admission that she placed the disputed post on her Facebook page.
145 Further, in exhibit 54, Ms Greeuw's written submission's dated 24 June 2014, made after four days of trial in relation to the plaintiff's application that I should limit the time within which she had to cross-examine Mr Dabrowski, she advised the court:
1. I was not even aware of the entry was on the Facebook site until I received a Notice of Concerns dated 30 January. I immediately searched the site, eventually found the note and removed it. No one had commented to me. I really did not know it was there as I could not find it and I thought it was to even save (sic). As we were in the Family Court negotiations at the time, The plaintiff could have just sent a letter or email to my lawyer requesting the removal of the comment.
2. I thought the site was private. That is what the settings were that I wanted set.
…
5. ..'18 years of marriage' was part of the statement on the Facebook site …
146 The words '… 18 years of marriage' do not appear on the Waratah post, but they do appear on the disputed post. Exhibit 54 is a clear admission by Ms Greeuw that the disputed post the subject of this action, the text of which is reproduced in exhibit 1, was visible on her Facebook site, and that upon receipt of the notice of concerns she searched her Facebook site found the entry and removed it.
147 Even if Ms Greeuw was unfamiliar with Facebook, as she says her site was set up by Mr Springer and she did not realise that what she typed had been uplifted to her public Facebook site, she typed the remarks, and is responsible for posting them onto her public page. She cannot say that she did not publish the defamatory post as all persons 'in any degree accessory' to the publication are liable in defamation including all participants in, and enables of, the dissemination of the material: Webb v Bloch (1928) 41 CLR 331; Trkulja v Google Inc (No 2) [2010] VSC 490 [23]. The defence of innocent dissemination cannot apply in her case and even if it did, she could not say the words were uplifted or posted on the site without negligence on her part. The post was typed by her, was on her public Facebook page and could be read by persons accessing that page and she was under a duty to monitor the posts appearing on that site.
148 I am satisfied on the balance of probabilities that Ms Greeuw typed the words the subject of this action, and posted them to her public Facebook page where they were seen by at least Mr Dabrowski, Mr Edward Dabrowski, Ms Christie and Ms Draper on their computers when they accessed Ms Greeuw's public Facebook page and the disputed post remained there until Ms Greeuw removed it after receiving the concerns notice.
149 I do not rely on the evidence of Ms Hill for reasons previously explained and I have scrutinised Mr Dabrowski's evidence with care due to the matters previously mentioned, however the evidence of the four witnesses referred to and Ms Greeuw's admissions compel the conclusion that the disputed post appeared on her public page. Ms Greeuw's evidence to the contrary is rejected by me as simply an effort by her to avoid the consequences of her actions.
150 Ms Greeuw says it is staggering and unbelievable that no one took a conventional photo or screenshot of the disputed post which included within the shot the date the disputed post was displayed and that the absence of such a screenshot should lead me to infer that the disputed post was not published.
151 Expert evidence was not produced by either party relating to computers or the mechanism of hardcopies of screen shots or the workings of Facebook. The reality is that there is no such screenshot or conventional photo, there is however the evidence of the four witnesses I have referred to who say they saw on their computer screens the words depicted on exhibit 1 and I accept that evidence.
152 Ms Greeuw also relies on exhibit 37 which she says is a hard copy of a screenshot of the activity/timeline log of her Facebook page and which shows the 'Waratah Post' she says was made on 20 December 2012. I note that exhibit contains no reference to the disputed post which Ms Greeuw admits she found and removed from her site (exhibit 54). There has been no evidence from any expert witness explaining for example how an activity/timeline log works and whether all Facebook entries are automatically saved to that log at the time they are typed, whether entries can be deleted or overwritten, or dates changed or whether entries require manual input to be saved and the like. Without such evidence exhibit 37 loses its evidentiary value.
153 I accept the evidence of the four witnesses previously referred to that they saw on their computer screen the words which appear on exhibit 1. I find that evidence credible and accept it.
154 A post on the internet is published when and where it is downloaded onto another person's computer: Dow Jones & Co Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575. The download was from Ms Greeuw's public Facebook site to the computers of those who viewed the post and once downloading occurs the post is published by her.
155 There is no publication for the purposes of the law of defamation when the defamatory material is transmitted only to the person defamed or when one spouse transmits defamatory matter to the other spouse: Roberts-Smith v Crawshaw [2014] WASC 12 (Edelman J); Gatley on Libel and Slander (12th ed, ch 6.1); Sims v Jooste [No 2] [2014] WASC 373 [58].
156 Mr Dabrowski must prove publication of the words to persons other than himself to maintain his action. He has done so.
157 I find that the post was publically available to any person who accessed Ms Greeuw's public Facebook page and posted there by her.
Was the post defamatory?
158 The law recognises that people have an interest in their reputation and that reputation may be damaged by the publication of defamatory matters: Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 [1]).
159 A person's reputation is said to be injured when the esteem in which that person is held by the community is diminished in some respect. Generally, the test is whether the published matter leads to a person standing in the community, or the estimation in which people hold that person, being lowered or where the imputation is likely to lead ordinary reasonable persons to think lesser of that person: Radio 2UE Sydney Pty Ltd v Chesterton [5], [36], [40], [53].
160 The test is what meaning an ordinary reasonable reader would give to the post.
161 The court will reject those meanings which can only emerge as a result of some strained or forced or utterly unreasonable interruption. It assumes that the ordinary reasonable reader is a reasonable fair-minded person of ordinary intelligence, experienced, and education and who does not live in an ivory tower, who is not unusually suspicious or naïve or avid for scandal and who is not inhibited by strict rules of construction and who bring to the matter in question their general knowledge and experience of worldly affairs: Lewis v Daily Telegraph Ltd [1964] AC 234, 285; Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 221 ALR 186, 190; Buckeridge v Walter [2010] WASCA 134 [18]; Radio 2UE Sydney Pty Ltd v Chesterton [6].
162 The court should avoid an over-elaborate analysis of the article, because an ordinary reader would not analyse the article as a lawyer or accountant would analyse documents or accounts. Judges should have regard to the impression the article has made upon them themselves in considering what impact it would have made on the hypothetical reasonable reader. The court should certainly not take too literal approach to its task: Australian Medical Association (WA) Inc v McEvoy [2012] WASC 50 [6]; Gillick v Brooke Advisory Centre [2001] EWCA Civ 1263 [7].
163 The natural and ordinary meaning of words includes inferences and conclusions that an ordinary person draws from those words (Prince v Malouf [2014] NSWCA 12; Morgan v Odhams Press Ltd [1971] 1 WLR 1239; [1971] 2 All ER 1156, 1245; Mirror Newspapers Ltd v World Hosts Pty Ltd [1979] HCA 3; (1979) 141 CLR 632, 641 (Mason & Jacobs JJ); Harding v Essey (2005) 30 WAR 1 [35]) and involves considering the words and the context in which they are used. The exercise is one of impression: Ives v State of Western Australia [No 8] [2013] WASC 277.Two defamatory stings or three
164 Mr Dabrowski pleads that in its natural and ordinary meaning, the post carried the following imputations (or imputations not different in substance):
(a) He subjected Ms Greeuw to domestic violence over a period of 18 years;
(b) He abused Ms Greeuw over a period of 18 years;
(c) Their children are not safe in his presence.
165 Ms Greeuw says imputations (a) and (b) are one 'overarching imputation', namely that Mr Dabrowski committed acts of domestic violence and abuse throughout the relationship.
166 The question of whether there is one defamatory imputation or more depends on whether the imputations convey a distinct and separate imputation.
167 Several defamatory allegations considered in their context may have a common sting in which event they are not to be regarded as separate and distinct allegations: Polly Peck (Holdings) plc v Trelford [1986] QB 1000. Whether one allegation is separate and distinct from other allegations contained in the publications is a question of fact and degree.
168 It is important to remember the observations by Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, 137, that virtually every phrase may be capable of further refinement and the solution to the question are often found in considerations of 'practical justice rather than philology': Findlay v Grimmer [No 2] [2013] WASC 247.
169 A useful test is whether the imputation attributes more than one condition or quality that is independent of one another; or whether, even where multiple adjectives or descriptors are used, they, in combination, express a single, even if composite, condition or quality: Viney v TCN Channel Nine Pty Ltd [2006] NSWSC 1273 [15].
170 Although the above authorities deal with pleading issues, the same principles apply to the substantive issue of whether one or more imputations are conveyed by the post in question.
171 Considering the post in its context, the first sentence is more than just one ingredient of a connected whole and it conveys two damaging imputations that are not contained in the parts taken separately. The first sentence expresses more than a single, composite, condition or quality.
172 The first sentence conveys imputations of both domestic violence and abuse. Giving the words their natural and ordinary meaning, the imputation that a person caused domestic violence is a different imputation from causing abuse.
173 Domestic violence clearly would constitute abuse, abuse of itself does not necessarily constitute domestic violence, accordingly, I find that the first sentence of the post contains two separate and distinct defamatory stings, that is Mr Dabrowski subjected Ms Greeuw to domestic violence (the first sting) and abuse (the second sting) over an 18-year period.
174 The third defamatory sting is contained in the second sentence of the disputed post.
The meaning of the words
175 The meaning of the words cannot be determined by evidence from witnesses, but only by an assessment of the ordinary reasonable person understanding of the words. In determining this issue, it is vital to focus on the publication complained of and put out of mind the evidence relating to other issues at the trial: Cornes v The Ten Group Pty Ltd & Ors [2012] SASCFC 99; Wilson v Coxon [2014] WASC 268 [18] - [19]. What the words mean is not influenced by the meaning Ms Greeuw intended them to have.
176 Ms Greeuw says the Family Law Act1975 (Cth) s 4AB(1) s 4AB(2) defines family violence as violent, threatening or other behaviour that coerce or controls a member of the person's family or causes a family member to be fearful and includes behaviour such as assault, sexual assault, other sexually abusive behaviour, repeated derogatory taunts, stalking, intentionally damaging or destroying property, unreasonably denying a family member financial autonomy that they would otherwise have had, unreasonably withholding financial support to meet the reasonable living expenses of the family member or preventing the family member from making or keeping connections with their family friends or culture, depriving a family member of their liberty and Ms Greeuw says that definition accords with the natural and ordinary meaning of the words domestic violence and abuse.
177 Ms Greeuw also points to s 6 of the Restraining Orders Act 1997 (WA) which defines assault or causing personal injury to the person, damaging the person's property, behaving in an ongoing manner that is intimidatory, offensive or emotionally abusive towards a person, pursing the person or causing the person to be pursued with intent to intimidate or in a manner that could be reasonably expected to intimidate and does in fact intimidate or threatening to commit any of the above acts as family and domestic violence (collectively hereafter referred to as 'the extended definition'). She also notes that the National Council to Reduce Violence Against Women and their Children generally defines domestic violence as 'abuse of a person … by the intimate partner'.
178 I find that the natural and ordinary meaning of the words domestic violence is the use or threatened use of physical force (Macquarie Dictionary (5th ed), Shorter Oxford English Dictionary (5th ed) to another person or their property within a domestic relationship and the natural and ordinary meaning of the word abuse is to maltreat a person including speaking to that person in an insulting or unkindly manner or maligning them (Shorter Oxford English Dictionary (5th ed)).
179 Ms Greeuw argues that the natural and ordinary meaning of the post's second sentence 'now fighting the system to keep my children safe' is that she was fighting the DCP as the children were in the care of Mr Springer, who had untruthfully told her the department had placed the children in his care and that there was a child protection order in place.
180 Given the context of the post and that the words 'now fighting the system to keep my children safe' immediately follow the words 'separated from Miro Dabrowski after 18 years of suffering domestic violence and abuse', I am satisfied that the imputation from the natural and ordinary meaning of the words was that Ms Greeuw was fighting the system to keep her children safe from the person that caused her 18 years of suffering domestic violence and abuse.
181 The post was 'of and concerning' Mr Dabrowski. It names him. It refers to the separation. The contents of the post compel the finding that an ordinary reader would find it referred to Mr Dabrowski.
182 I am satisfied that the natural and ordinary meanings of the words convey the imputations as pleaded by Mr Dabrowski.
The post was defamatory
183 To say that a person has for 18 years subjected their partner to domestic violence and abuse and that their children need to be kept safe from that person, tends to diminish the esteem in which that person is held by the community and/or diminish his standing in some respect and would lead an ordinary reasonable person to think lesser of that person and is defamatory: Radio 2UE Sydney Ltd v Chesterton [3], [37], [46], [60].
The defences
184 At common law and under the Defamation Act 2005 a claimant is not permitted to recover damages for an injury to a character which he does not possess, or ought not possess. For this reason a successful plea of justification is an absolute defence to a defamation claim.
185 The defence of justification is part of the framework by which free speech is protected it is therefore important that no unnecessary barriers to the use of such a defences are created: McDonald's Corporation v Steel [1995] 3 All ER 615; [1994] EWCA Civ 41.
186 Section 25 of the Defamation Act provides:
25. Defence of justification
It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.
187 For the defence to succeed, the court must find that the defamatory 'stings' are objectively true as a matter of fact.
188 Ms Greeuw does not have to prove that every word she published was true but she must establish the 'essential' or 'substantial' truth of the stings of the defamation. To prove the truth of some lesser defamatory meaning does not provide a complete defence: Chase v Newsgroup Newspapers Ltd [2002] EWCA Civ 1772 citing McPherson v Daniels (1829) 10 B & C 263, 272; Berezovsky v Forbes Inc [2001] EMLR 1030, 1039 [12]; McPhilemy v Times Newspapers Ltd [1999] EMLR 751, 774; Re H (minors) [1996] AC 563; Sutherland v Stopes [1925] AC 47, 79; and Caccavo & Anor v Daft & Anor [2006] TASSC 36.
189 Where there are separate and distinct meanings alleged by the plaintiff and the defendant justifies some, but not all, it may reduce the damages: Howden v Truth & Sportsman Ltd (No 2) (1938) 38 SR (NSW) 287; 290 - 1; Plato Films Ltd v Speidel [1961] AC 1090, 1141 - 2; Prager v Times Newspapers Ltd[1988] 1 WLR 77, 95; Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89 [80]; and Caccavo & Anor v Daft & Anor.
190 In deciding whether any given statement is substantially true, the court allows for exaggeration, at the margins, and has regard, in that context , to proportionality. In other words, one needs to consider whether the stings have been established having regard to their overall gravity and the relative significance of any elements of inaccuracy or exaggeration: Turcu v News Group Newspapers Ltd [2005] EWHC 799 [109] - [111]; Ives v The State of Western Australia [No 8] [2013] WASC 277.
191 The first question is whether Ms Greeuw has proven all or at least some of the factual propositions asserted by the particulars of justification.
192 The second question is whether the whole of the proven facts establish the essential or substantial truth of the 'stings' of the defamation: Chase v Newsgroup Newspapers Ltd.
Has Ms Greeuw proven on the balance of probabilities that she was the subject of domestic violence and abuse and their children were not safe in his presence?
193 The burden of proof is on Ms Greeuw. Her plea of truth and justification must be proven in respect of each of the three imputations. Obviously there is overlap as her evidence essentially forms the basis of the plea in each case.
194 I reject Mr Dabrowski's submission that Ms Greeuw's evidence, if accepted, even at its highest does not demonstrate repeated and consistent domestic violence and abuse over the entire 18-year period of the marriage or the need for the children to be kept safe from him. If Ms Greeuw's evidence was accepted it would establish the substantial truth of her three claims. The question is whether I accept her evidence as credible on these issues.
195 Much of Ms Greeuw's cross-examination appeared to proceed along the lines that she could not have been subject to domestic violence and abuse because she had not left the marriage earlier and did not complain to medical practitioners, counsellors, police or others. There is no merit in this approach.
196 Judicial notice can be taken of the fact that many women the subject of domestic violence and abuse do not report these matters to police, their friends, family members, or others and remain in the marriage for many years without seeking counselling or medical treatment for any injuries. The reasons proffered by Ms Greeuw for not leaving – that she felt trapped, hoped Mr Dabrowski would change, was trying to make the marriage work, wanted the family to stay together, had nowhere to go, stayed for the sake of the children, did not have ongoing money and had tried leaving previously (ts 1085, 1088, 1089, 1090, 1103, 1105, 1203, 1204) are all plausible reasons for staying.
237 Similarly, exhibit 17, the minute of consent orders, does not provide independent support for the allegations made by Ms Greeuw. The orders commence with the words 'without admission'.
238 There is some independent evidence to establish that in about 2010/2011 Mr Dabrowski was still expressing his love for Ms Greeuw. Exhibit 40 dated 5 July 2011 states '… I only care about the kids and you … always love you/kids' and parts of exhibits 14, 15 and 16 provides some evidence that Mr Dabrowski, at least at the date of those documents, hoped to continue the relationship and to that extent it provides some support to Ms Greeuw's claim that he was not able to accept the breakup but that it is far short of establishing he subjected her to domestic violence and abuse during the course of the marriage, and that the children needed to be kept safe from him.
239 There is no independent evidence to support Ms Greeuw's allegation of domestic violence or abuse by Mr Dabrowski towards the children or that the children need to be protected from him. The only evidence to support those claims was from Ms Greeuw and she is not a credible witness and I do not accept her evidence in this regard. Exhibit 3, a letter from DCP, does not establish that the allegations were not substantiated, it is simply evidence of what the department conveyed to Mr Dabrowski.
240 Ms Greeuw also says these proceedings are evidence of abuse and that the proceedings were instituted by Mr Dabrowski to control and intimidate her. The use of legally available procedures, if carried out for an improper or collateral purpose or motive could constitute abuse: Baron v Walsh [2014] WASCA 124 [60] – [68]. While I have not accepted all of Mr Dabrowski's evidence, I accept he was aggrieved by the defamatory post and has taken this action to obtain redress and not to abuse, control or intimidate Ms Greeuw. I also reject the allegation that Mr Dabrowski is breaching any Family Court orders that have been produced in this trial by maintaining this action and I reject Ms Greeuw's assertion that this action infringes on her human rights.
241 The burden of proof is on Ms Greeuw and she has not proven on the balance of probabilities that Mr Dabrowski subjected her to 18 years of domestic violence and abuse nor that the children need to be kept safe from him. She has not proven the factual propositions asserted by her plea of justification.
Has Ms Greeuw established the essential or substantial truth of the 'stings' of the defamation?
242 Ms Greeuw has not proven facts establishing the essential or substantial truth of the 'stings' of the defamation imputations.
243 At most, bearing in mind the independent evidence, she has established that there was an incident occurring over the family holiday in 2010 which led Mr Dabrowski to apologise. I am not able to qualify exactly what occurred because I do not accept Ms Greeuw's evidence due to her lack of credibility and propensity to say whatever advances her cause. The independent evidence supports the conclusion that something occurred does not establish exactly what occurred.
244 There is also some independent evidence establishing that in 2010/2011 Mr Dabrowski still expressed his love for Ms Greeuw.
245 Neither of these matters prove any essential or substantial truth to the stings of the defamation imputations.
246 Even applying the extended definition of the words 'domestic violence and abuse', as urged by Ms Greeuw, she has failed to prove any essential or substantial truth to the stings of the defamation imputations.
247 The defence of justification under the Defamation Act and at common law fails.
Damages
248 Pursuant to s 7 of the Defamation Act, Mr Dabrowski is not required to prove special damages. Section 34 of the Act requires that any damage awarded have an appropriate and rational relationship to the harm actually suffered. The damages must be realistic.
249 I have found that Mr Dabrowski was defamed. Mr Dabrowski has not claimed any consequential financial loss. Damages are appropriate.
250 Damages are awarded for the personal distress and hurt caused by the publication as reparation for the harm done to his personal and business reputation and for vindication to his reputation. The sum awarded must be at least the minimum necessary to signal to the public the vindication of the Mr Dabrowski's reputation: Carson v John Fairfax & Sons Limited 60 – 61l Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118, 150; Australian Medical Association (WA) Inc v McEvoy [No 2], 44, 60.
251 The three purposes served by an award of damages overlap considerably and the amount of any verdict is a product of a mixture of inextricable considerations: Carson v John Fairfax & Sons Limited.
252 In assessing damages both the extent of the publication and the gravity of the allegations must be considered.
The gravity of the allegations
253 Allegations relating to the integrity of a person are recognised as being amongst the most serious: Grumm v Norman [2008] EWHC 116. The allegations contained within the disputed post are undoubtedly serious allegations.
The extent of the publication
254 The defamatory post appeared on the public Facebook page of Ms Greeuw. It was seen by at least Mr Dabrowski, Mr Edward Dabrowski, Ms Draper and Ms Christie. Additionally, the defamatory post could be seen by anyone accessing that page.
255 For reasons previously explained, I do not accept Ms Hill's evidence. There is no evidence showing that Mr John Gare viewed the post. The evidence establishes he became a Facebook friend of Ms Greeuw's on 19 December 2012 and sent her a birthday greeting on 9 March 2013 (exhibit 37, page 13) that falls a long way short of establishing that he viewed the defamatory post. I would not draw the inference that he did.
256 In some cases the limited publication of defamatory remarks has led to a court concluding that it is unlikely to cause any significant damage to a claimant's reputation: Jameel v Dow Jones & Co Inc [2005] QB 946.
257 The defamatory post was first seen by Mr Edward Dabrowski on 26 December 2012. Mr Dabrowski accepts that the post appears to have be removed about 6 February 2013 (plaintiff's closing submissions par 46, 59), shortly after the concerns notice of 30 January 2013 (exhibit 5).
258 There is no evidence that the defamatory post has been republished by any of those persons who saw it.
The grapevine effect
259 An award for damages must be sufficient to convince a bystander of the baselessness of the allegations should the defamation spread along the grapevine and emerge at a future date: Crampton v Nugawela (1996) 41 NSWLR 176.
260 In Palmer Bruyn & Parker v Parsons Pty Ltd (2001) 208 CLR 388Gummow J said [88]:
The expression 'Grapevine effect' has been used as a metaphor to help explain the basis on which general damages maybe recovered in defamation actions; the idea sought to be conveyed by the metaphor was expressed by Lord Atkin in Ley v Hamilton (1935) 153 LT 384, 386 as follows:
It is precisely because the "real" damage can't be ascertained and established that the damages are at large. It is impossible to track the scandal, to know what quarters the poison may reach, it is impossible to weigh at all closely the compensation which will recompense a man or a woman for the insult offered or the pain of false accusation.
261 In assessing damages Ms Greeuw's conduct before or after the action and in court during the trial may be considered: Cassell & Co Ltd v Broome [1972] AC 1027, 1071; Campbell v News Group Newspapers Ltd (No 2) [2002] EWCA Civ 1143.
262 The content of what was said, the nature, size and character of the audience to whom it was said, and the ease of repetition are all to be considered Palmer Bruyn & Parker Pty Ltd v Parsons [118] (Kirby J).
263 The mode, medium and manner of publication is a relevant factor in assessing the impact on an ordinary reasonable reader Maher v Nationwide News Pty Ltd [2013] WASC 254 [21], thus a book or, letter is assumed to be read with more care than a newspaper or a transient publication: Prince v Malouf; Amalgamated Television Services v Marsden (165); Morgan v Odhams Press Ltd.
264 Similarly the mode, medium and manner of publication are relevant to an assessment of damages. The nature of the internet is such that it records what might once have been transient and ill-considered statement said in the heat of the moment: Boyd v The State of Western Australia [2012] WASC 388 [22] (Hall J).
265 Defamatory publications on social media spread easily by the simple manipulation of computers. A public Facebook page is able to be viewed worldwide by whoever clicks on that page and the grapevine effect stemming from the use of this type of medium must be considered: Mickle v Farley [2013] NSWDC 295. However it must also be recognised that Facebook is a source other than a mainstream news or information provider.
266 The context of the defamation must always be considered: Burstein v Times Newspapers Ltd [2001] 1 WLR 579. It is clear from the defamatory post that it was made by the estranged spouse of Mr Dabrowski. An ordinary hypothetical reader would be well aware that spouses often separate in acrimonious circumstances. Such persons would have no difficulty in understanding that partners to a marriage are likely to know how to wound and enrage each other and once the marriage has broken down they sometimes are willing to do so, as Wheeler JA said in a different context: Vella v The State of Western Australia [2007] WASCA 59.
267 That is not to say the defamation was trivial but the fact it was on Facebook and made by the estranged spouse is part of the relevant context. The doubts about the character of Mr Dabrowski would still exist but they would not be as grave as if the defamatory post had been published in a reputable newspaper.
268 However the grapevine effect could mean that the defamatory imputations are repeated without revealing that the source was a Facebook post made by an estranged wife and this must not be overlooked when assessing damages.
Aggravated damages
269 Mr Dabrowski seeks aggravated compensatory damages, inter alia, based on Ms Greeuw's failure to apologise, his knowledge that Ms Greeuw published the matters complained of deliberately to humiliate and demean him and as a result of her conduct throughout the proceedings.
270 Ordinary compensatory damages can be increased by aggravated damages. Aggravated damages are still compensatory, the award is increased to match the greater harm caused: Australian Medical Association (WA) Inc v McEvoy (No 2) [2012] WASC 416. Aggravated damages must not include any element of punitive damages: Carson v John Fairfax & Son Ltd, 71.
271 Aggravated compensatory damages do not have to be awarded as a separate amount: Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58.
272 The principles applicable to aggravated damages in defamation cases were conveniently summarized by Kenneth Martin J in Maher v Nationwide News Pty Ltd [No 2] [2013] WASC 365 as, inter alia:
…
(c) the conduct of a defendant may lead to aggravated compensatory damages being awarded, if there has been a lack of bona fides in the defendant's conduct, or if the defendant's conduct was improper, or unjustifiable: Triggell v Pheeney (1951) 82 CLR 497, 513 - 514);
(d) aggravated damages are compensatory to a plaintiff for harm that has been exacerbated by the defendant's conduct in publishing defamatory matter or by subsequent conduct: Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474, 496 (Hunt J); Taylor v Network Ten (Perth) Pty Ltd [1999] WASC 264, 31 (Steytler J) and authorities there cited);
(e) conduct of a defendant which aggravates a plaintiff's damages need not be malicious; and
(f) aggravated damages are not limited to injury or hurt to a plaintiff's feelings: Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58, 75 (Hunt J); Ali v Nationwide News Pty Ltd [2008] NSWCA 183 [80]. Aggravating conduct may also increase the reputational damage suffered (as distinct from being for compensation for hurt or injury to feelings). Prolongation of the defamation by an unsuccessful plea of justification in a defamation trial is one example of such conduct.'
273 Section 36 of the Defamation Act provides that the court in awarding damages is to disregard the malice or other state of mind of the defendant at the time of publication of the material except to the extent that it affects the harm sustained by the plaintiff.
274 Ms Greeuw's conduct up until the moment of verdict can properly be taken into account in assessing damages: Ali v Nationwide News Pty Ltd [2008] NSWCA 183 and her failure to apologise and her plea of truth and justification are matters properly taken into account in assessing damages.
275 In respect of Ms Greeuw's conduct at trial, Mr Dabrowski specifically relied on and gave evidence that the following aggravated his damages:
(i) Ms Greeuw's unwillingness to mediate (exhibits 6, 7, 8, ts 296).
(ii) Ms Greeuw's persistence in the truth defence (Mr Dabrowski at ts 301, 302, 657, Ms Greeuw's evidence in its entirety).
(iii) Ms Greeuw's stated intention to call the children (Mr Dabrowski ts 300, 301, exhibit 57, Ms Greeuw's list of witnesses).
(iv) Ms Greeuw's application to set aside the writ and have all documents removed from the court file.
(v) Ms Greeuw's denial that she published the material (defence 28 October 2013).
(vi) The publication of material on Facebook on 12 April 2014 (Mr Dabrowski ts 303, 304).
(vii) Ms Greeuw's late service of the statement of evidence and subsequent application for leave to rely upon it (Mr Dabrowski ts 657).
(viii) Ms Greeuw's unsuccessful application to amend her defence to include allegations of financial abuse (Mr Dabrowski ts 657).
(ix) Ms Greeuw's conduct in cross-examination which led to an unnecessary prolongation of the trial causing additional distress and costs.
276 In respect of Ms Greeuw's unwillingness to mediate that is a matter more appropriately reflected in cost orders.
277 The children were not called as witnesses. Mr Dabrowski said he applied to the Family Court to restrain them from being called because he wanted to protect them from psychological harm and said that had they been called it would affect the counselling he was undergoing in an effort to be reunited with them. Mr Dabrowski is an intelligent man, he knows that by not calling the children Ms Greeuw's allegations remain unsupported by the children who lived in the house at the material time. It also shortened the trial. I do not accept Mr Dabrowski's evidence that Ms Greeuw's stated intention to call the children as witnesses caused him additional harm.
278 Nor do I find Ms Greeuw's application to set aside the writ of summons and have documents removed from the court file, the late service of her statement of evidence and applications for leave to rely upon that statement or an unsuccessful application to amend her defence are matters which have actually exacerbated his harm.
279 Ms Greeuw's conduct in cross-examination did not seem to add to the distress of Mr Dabrowski. There was certainly nothing observable regarding his demeanour that would lead to this conclusion.
280 Mr Dabrowski's evidence in respect of (i) to (ix) above seemed to be an effort to try to maximise his damages and continue the cycle whereby whatever one party says or does is criticised by the other.
281 Ms Greeuw's conduct could in appropriate circumstances justify an award of aggravated damages, however, I am not satisfied that they exacerbated the harm Mr Dabrowski suffered. In Prince v Malouf aggravated damages were claimed on a generally similar basis and not awarded.
282 Insofar as Ms Greeuw's persistence in the defence of truth and justification and her denials of publication, they are matters properly taken into account in assessing the harm suffered by Mr Dabrowski but do not require a separate award under aggravated damages.
283 Although Ms Greeuw failed to apologise or mediate, she removed the post promptly once she received the concerns notice.
284 I do not accept the submission that exhibit 10 (a note left on the house whilst the parties were mainly living in separate sides of the house) was aimed at embarrassing, humiliating or demeaning Mr Dabrowski and that the defamatory post was a continuation of that aim. Exhibit 10 seems to be a declaration of Ms Greeuw's independence and quite different to the defamatory context of the post.
285 Mr Dabrowski also relies on the publication on 12 April 2014 of exhibit 9 as aggravating his damages.
286 A plaintiff may rely in aggravation of damages on the publication by the defendant on other occasions of statements that are allegedly false and have some connection with the allegations in the 'original' publication sued upon: Douglas v McLernon [2013] WASC 126 [5].
287 The further publication may refer the reader to the 'original' publication or otherwise give further life to that publication. There may be circumstances which cause the further publication to increase the damage caused by the original publication. On the other hand, a subsequent publication may cause a new injury to the plaintiff's reputation. In the former case the subsequent publication will aggravate the damage caused by the original publication. In the latter case the subsequent publication causes a new injury to the plaintiff's reputation and gives rise to a new cause of action: Australian Medical Association (WA) Inc v McEvoy (No 2) [25].
288 There is nothing in exhibit 9 which refers to the defamatory post. There is no link between the two that can be determined on an objective comparison of the posts by a reasonable reader. Nor is there anything that gives further 'life' to the defamatory post. How a reasonable reader understands the words is an objective test. The test is whether the words are 'such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he was the person referred to': Prince v Malouf; David Syme & Co v Canavan [1918] HCA 50; (1918) 25 CLR 234, 238 (Isaacs J); also see Universal Communication Network Inc t/as New Tang Dynasty v Chinese Media Group (Aust) Pty Ltd [2008] NSWCA 1; (2008) Aust Torts Rep 81-932 [43] (McColl JA). A reasonable reader, even being aware of the defamatory post, having read exhibit 9 in its context would not impute any of the behaviour complained about in that post to Mr Dabrowski.
289 The 12th of April post seems directed to matters involving Ms Greeuw's children, the allegations made against her by her daughter and is a complaint that defamatory material about her is being spread. There is nothing in that post which gives further life or connects it to the defamatory post.
290 I would not award aggravated damages.
Quantum
291 The post was defamatory. It seems quite apparent that Mr Dabrowski's long-term relationship with his brother Mr Edward Dabrowski has not been damaged. That can also be said for his relationship with Ms Draper, Ms Christie and Ms Hill. I have no doubt that the post caused Mr Dabrowski personal distress, humiliation and hurt and harm to his reputation and it did cause people to 'look at him twice' and be more reserved about their contact with him.
292 He is an experienced educator and is entitled to public vindication.
293 I have found that the defence of justification has not been established. Ms Greeuw's persistence in that defence and her denial of the publication are properly taken into account in assessing damages as is the grapevine effect.
294 There was no financial loss; the remarks were made to a limited audience, and were at the end of the day a Facebook post made by an estranged spouse and removed about six weeks after it was posted.
295 An award of $12,500 is realistic and appropriate considering the harm actually suffered.
Injunction
296 Ms Greeuw's evidence was that the defamation proceedings frightened her and she knew that they were serious (ts 977) and that she would be '… a hell of a lot carefuller …' in future (ts 1180). She said that she had learnt an expensive lesson (ts 1203). Indeed the evidence established that she had deleted some material from other documents due to legal advice and to avoid any issues of defamation (ts 1173).
297 Notwithstanding that I do not accept Ms Greeuw as a credible witness, the independent evidence establishes that the post was removed by her shortly after receipt of the concerns notice.
298 I accept that any future defamatory post would violate Mr Dabrowski's legal rights. However, I do not consider there is a realistic threat of future publication of the defamatory post or any similar statements or posts.
299 In considering the balance of convenience in issuing an injunction the public interest in free communication must be considered. In any event I am satisfied that if there was any further defamatory posts, damages would be an adequate remedy.
300 In those circumstances I do not consider it appropriate to grant an injunction of any type.
Interest
301 I order interest on the judgment sum pursuant to s 32 of the Supreme Court Act 1935 (WA) from the date of publication of the post at the rate of 6% per annum.
Costs
302 Mr Dabrowski seeks an order for indemnity costs.
303 The principles applicable to indemnity costs are as set out in Swansdale Pty Ltd v Whitecrest [2010] WASCA 129 (S). Such an order is discretionary and that discretion must be exercised judicially. The competing principles are that a party should not be discouraged from persisting in an action where success is not certain and a case should not be too readily characterised as 'hopeless' so as to justify an award of indemnity cost however, if a party has by its conduct unjustifiably increased the cost of litigation it is appropriate that party should bear that increase cost.
304 Persisting in a case which could only be characterised as hopeless is an example of this type of conduct which may lead the court to a view that the party whose conduct gave rise to the costs should bear them in full (Quancorp Pty Ltd v McDonald [1999] WASCA 101 [7] (Wheeler J). Where there are some elements of improper, or at least unreasonable, conduct by a party or their legal advisor, an indemnity costs order may be an appropriate sanction.
305 However, as McKechnie J in Lance v QAV Pty Ltd [2013] WASC 13 [20] noted allowances should be made for litigant in person and indemnity costs orders which are sparingly given in the normal case should be subject to particular scrutiny when there is a litigant in person whose arguments are not irrational.
306 I would not order indemnity costs.
307 Ms Greeuw's written closing submissions contained inappropriate criticisms of Mr Goldsmith's conduct of the case and made several allegations against him. The allegations need not be repeated. I specifically reject those allegations. They are without foundation.
308 The orders I make are:
1. There be judgment for the plaintiff in the sum of $12,500.
2. There be interest on the judgment sum pursuant to s 32 of the Supreme Court Act (WA) from the 20 December 2012 at the rate of 6% per annum.
3. The defendant pay the plaintiffs cost to be agreed or taxed.
4. There be liberty to apply within 21 days on 48 hours' notice to the other party.
0
50
3