Dean v Puleio

[2021] VCC 848

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

DEFAMATION LIST

Case No. CI-20-03802

ALLISON DEAN	Plaintiff
v
CATHERINE PULEIO	Defendant

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JUDGE:	HER HONOUR JUDGE CLAYTON
WHERE HELD:	Melbourne
DATE OF HEARING:	22 June2021
DATE OF JUDGEMENT:	12 July 2021
CASE MAY BE CITED AS:	Dean v Puleio
MEDIUM NEUTRAL CITATION:	[2021] VCC 848

REASONS FOR JUDGMENT
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Subject:ASSESSMENT OF DAMAGES

Catchwords:              Defamation - Google review publications – “grapevine” effect

Legislation Cited:      County Court Civil Procedure Rules 2018; Defamation Act 2005 (Vic)

Cases Cited:Stewart v Coughlan (1885) 11 VLR 279; National Bank of Australasia v Cohen (1896) 22 VLR 269; Cribb v Freyberger [1919] WN 22; Nixon v W Phelan and Son Pty Ltd [1959] VR 83; Lombank Ltd v Cook [1962] 1 WLR 1133; [1962] 3 All ER 491; Parkville Court Pty Ltd v Salvaris [1975] VR 393; Patrick Finlayson v Indigenous Business Australia [2014] VSCA 95; Belbin v Lower Murray Urban and Rural Water Corporation [2012] VSC 535; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; Fraser v Business News Group Pty Ltd [2018] VSC 196; Cerruti v Crestside Pty Ltd & Anor [2014] QCA 33; Webster v Brewer (No. 3) [2020] FCA 1343; Cables v Winchester [2018] VSC 392; Reid v Dukic [2016] ACTSC 344; Parke v Zikovic & Ors [2021] VCC 41; Cheng v Lok [2020] SASC 14; Ali v Nationwide News Pty Ltd [2008] NSWCA 183; Hockey v Fairfax Media Publications Pty Ltd (No 2) [2015] FCA 750; Davis v Nationwide News Pty Ltd[2008] NSWSC 946

Judgment:Judgment entered pursuant to Order 24 of the County Court Civil Procedure Rules 2018

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Castelan	Matrix Legal
For the Defendant	No appearance	No appearance

HER HONOUR:

1The plaintiff, Dr Allison Dean, alleges that the defendant, Ms Puleio, defamed her in four publications on Google reviews of Dr Dean’s business, Kew Periodontics and Dental Implants. 

2Ms Puleio, representing herself, filed a Defence on 25 September 2020, but otherwise has not complied with any Court orders or participated in litigation.  On application by Dr Dean, the Defence was struck out and judgment was entered on 5 May 2021. 

3Pursuant to Order 51 of the County Court Civil Procedure Rules 2018, Dr Dean seeks to have her damages assessed.  Dr Dean relies on the following material:

(a)   affidavit of Allison Dean sworn 13 June 2021;

(b)   affidavit of James Reimers sworn 13 June 2021;

(c)   affidavit of Rhonda Dean sworn 11 June 2021;

(d)   affidavit of Megan Aginfort affirmed on 13 June 2021;

(e)   affidavit of Katya Buc sworn 12 June 2021; and

(f)    affidavit of Kirthi Kosalram sworn 12 June 2021.

4Although this is a case where the defence was struck out and judgment was entered for the plaintiff on the basis of noncompliance with Court orders, I am satisfied that the principles that should be applied to an assessment of damages in these circumstances are the same as the principles that should apply in circumstances where a defendant fails to file a Defence.  In cases where a defendant fails to file a Defence, the matters in the Statement of Claim are taken to be admitted.[1]  In the assessment of this case, I therefore proceed on the basis that the defendant is deemed to have admitted the facts contained in the Statement of Claim, including liability for publication, the imputations drawn from the publications and their defamatory nature. 

[1]        Stewart v Coughlan (1885) 11 VLR 279; National Bank of Australasia v Cohen (1896) 22 VLR 269; Cribb v Freyberger [1919] WN 22; Nixon v W Phelan and Son Pty Ltd [1959] VR 83; Lombank Ltd v     Cook [1962] WLR 1133; [1962] 3 All ER 491, 498; Parkville Court Pty Ltd v Salvaris [1975] VR 393 at [395]; Patrick Finlayson v Indigenous Business Australia [2014] VSCA 95 at paragraph [32]

Background

5Dr Dean is forty-two years old and holds the following qualifications:

(a)   A Bachelor of Dental Science (Honours) obtained from the University of Melbourne in 2001;

(b)   A Doctor of Clinical Dentistry (Periodontics) obtained from the University of Melbourne in 2007; and

(c)   Fellowship of the Royal Australasian College of Dental Surgeons (Periodontics) in 2007.

6Dr Dean achieved the prize of periodontics in her final year and went on to specialise in periodontics.  Since 2011, she has practised at Kew Periodontics and Dental Implants in Charles Street, Kew (“the practice”).  She married her husband, James Reimers, in 2013 and they have a five-year-old daughter and a three-year-old son.  Mr Reimers is the joint owner of the practice and works as the practice manager.  Dr Dean is a well-known periodontist in Melbourne.  Her database shows that approximately 450 dentists refer patients to her practice, she sees approximately 800 patients a year and the practice has approximately 1,600 patients.  Her patients are generally referred to her through word of mouth recommendations from other patients and from general dentists, or are self-referred through her website and online presence.  There is no requirement that a patient attending a periodontist has a referral from a general dentist.

7Kew Periodontics and Dental Implants maintains a website at Internet searches for terms including “Dr Allison Dean”, “Dean periodontist”, “Kew periodontist” or “Kew periodontics” and other similar searches would return a result that included Dr Dean’s business website (“Dean internet searches”). 

8Ms Puleio was a patient at the practice and attended for three appointments between 11 September 2019 and 18 December 2019.  On 11 September 2019, Ms Puleio attended Dr Dean for a new patient examination.  She then underwent a clean with a hygienist at the practice on 17 September 2019, and discussed the results of a dental scan at a consultation with Dr Dean on 18 December 2019.  Prior to Ms Puleio’s first consultation, Dr Dean had attempted to schedule appointments on 6 December 2018, in February 2019 and 22 July 2019.  Those appointments were cancelled by Ms Puleio.  Ms Puleio also cancelled appointments on 9 October 2019, 30 October 2019 and 16 December 2019. 

9As a result of the many cancelled appointments and the manner in which Ms Puleio conducted herself during consultations and when contacting the practice, Dr Dean made a decision to terminate the doctor/patient relationship. 

10On or about 6 March 2020, Ms Puleio published a statement on the website (“Google website”).  This statement was in the form of a ‘Google review’ which appears as a sidebar to the search results page. The statement was published under the name “Cat”.  To repeat in full the review here would be counter-productive.  In broad terms Ms Puleio accused Dr Dean of being unprofessional, undermining, failing to diagnose various illnesses from which she says she was suffering, trying to charge her more than was reasonable for work, making ‘ludicrous’ suggestions as to treatment and being someone who bullies and berates her patients.[2]

[2]Affidavit of Dr Dean, dated 21 June 2021 at paragraph [10]

11The first Google review conveyed the following imputations of and concerning Dr Dean:

(a)   Dr Dean caused the patient to suffer from anxiety;

(b)   Dr Dean caused constant illness to the patient;

(c)   Dr Dean was negligent in failing to properly diagnose the patient of constant illness;

(d)   Dr Dean was insensitive to the financial circumstances of the patient and sought to obtain $20,000 from the patient for treatment, knowing that the patient could not afford it;

(e)   Dr Dean falsely charged the patient for two hours of her time to read a scan/x-ray;

(f)    Dr Dean lied to the patient she had cancelled appointments on five occasions and illegitimately used that as an excuse to stop providing services to the patient;

(g)   Dr Dean bullied the patient;

(h)   Dr Dean berated the patient.

12The first Google review remained on the website until approximately 10 March 2020.  On 10 March 2020, the defendant uploaded a further Google review (“second Google review”) under the username Daniela.  The second Google review said:

“I’ll give a 1 star for the beautiful / worldly consulting room only.

Unprofessional and undermining service”

13The second Google review conveyed the following imputations of and concerning Dr Dean:

(a)   Dr Dean did not treat the patient to the standards expected of a periodontist; and

(b)   in treating the patient, Dr Dean made the patient feel weak. 

14The second Google review appeared on the right-hand column of the Google website in response to searches for terms such as described in paragraph 7 above.  On or around 6.00pm on 13 March 2020, Ms Puleio removed the second Google review and replaced it with a third Google review of Dr Dean.  That review was publicly accessible on the Google website and appeared in response to a search using the Dean internet searches or similar search terms.

15The third Google review stated, under the username “Cat”:

“I’ll give a 1 star for the beautiful / worldly consulting room only.

Unprofessional and undermining service.

Dr Dean apologised for the negligence of my care however the outcome is unsatisfactory.”[3]

[3]Affidavit of Dr Dean, dated 21 June 2021 at paragraph [18]

16The third Google review was defamatory of Dr Dean and in its natural and ordinary meaning meant and was understood to mean that:

(a)   Dr Dean did not treat the patient to the standards expected of a periodontist;

(b)   in treating the patient, Dr Dean made the patient feel weak;

(c)   Dr Dean was guilty of negligence in her treatment of the patient; and

(d)   Dr Dean admitted to having been guilty of negligence in her treatment of the patient. 

17At some time on 13 March 2020, Ms Puleio published a statement on the Google website under the name “Cat” and subsequently changed the name to “Daniela”.  This Statement is the fourth Google review and remained on the site until judgment was entered for Dr Dean.  The statement starts:

“I’ll give a 1 star for the beautiful / worldly consulting room only.

Unprofessional and undermining service.[4]

[4]Annexure B of the Writ at page 11 of the Statement of Claim; Affidavit of Dr Dean, dated 21 June 2021 at paragraph [22]

and continues for a number of paragraphs.  To repeat it here in full would be counter-productive.

18The fourth Google review was defamatory of Dr Dean and in its natural and ordinary meaning meant and was understood to mean that:

(a)   Dr Dean did not treat the patient to the standards expected of a periodontist;

(b)   in treating the patient, Dr Dean made the patient feel weak;

(c)   Dr Dean was guilty of negligence in her treatment of the patient;

(d)   Dr Dean admitted to having been guilty of negligence in her treatment of the patient;

(e)   Dr Dean operates her practice as a periodontist unethically;

(f)    Dr Dean callously refused to treat the patient when she was in urgent need of treatment because of dental problems;

(g)   Dr Dean lied to the patient;

(h)   Dr Dean sought to have the patient sign an agreement that was false; and

(i)    Dr Dean displayed ill intent to the patient.

The breadth of the publications

19The fourth Google review has been viewed at least 1,300 times and an extract of the publication which says “unprofessional and undermining service” was at the time of writing the judgment visible to anyone who conducts a search in the terms described in paragraph 7.  This phrase was searched approximately 7,700 times in the month of June 2021.  There was no evidence that views in the months preceding June 2021 would have been significantly higher or lower, save that it is likely that during the period of lockdown in Melbourne in 2020 caused by the COVID-19 pandemic, there may have been fewer people seeking periodontic services and consequently fewer people conducting internet searches which would have returned results showing the defamatory statements.  Nevertheless, I accept that the defamatory statements and, in particular, the fourth Google review have been viewed by a large number of people, and it is likely that somewhere in the vicinity of 100,000 people have viewed the extract of that review which states “unprofessional and undermining service”.  I further accept that the “grapevine effect” means that it is likely the impact of the publications would have spread beyond those people who saw the actual page.  The grapevine effect is:

“… no more than the realistic recognition by the law that, by the ordinary function of human nature, the dissemination of defamatory material is rarely confined to those to whom the matter is immediately published”.[5] 

[5]Belbin v Lower Murray Urban and Rural Water Corporation [2012] VSC 535 at paragraph [217]

20While the community of people who may have conducted such a search would include, or could include, anyone seeking periodontic services in the Kew area, the community of periodontists in Melbourne is not large and it is likely that there was a grapevine effect within this community. 

The impact of the publication on Dr Dean’s reputation

21The publications have had a particularly egregious effect on Dr Dean because she is clearly a person who has worked extremely hard, and over an extended period of time, to establish herself in her chosen profession.  In addition to her degree as a dentist and her specialist degree as a periodontist, she is a Fellow of the Royal Australasian College of Dental Surgeons, a member of the Australian Dental Association, a member of the Victorian Branch of the Australian Dental Association and a member of the Australian and New Zealand Academy of Periodontists.  She is also a member of the International Team for Implantology and the Victorian branch of the Australasian Osseointegration Society.

22Kirthi Kosalram, a specialist prosthodontist who works at Melbourne East Prosthodontics,says that, in her experience, most patients tend to gravitate towards Google reviews for feedback, directions and research into the reviews of the clinician, and that a poor review is not a good start for any business.  Katya Buc, in her affidavit of 12 June 2021, says that while she would continue to refer patients to the practice of Dr Dean, a dentist or patient wishing to consult Dr Dean for the first time might rethink that decision in light of the negative online review.  It was her view that such reviews would most certainly have had an impact on the referral base of dentists and any potential clients.  In her opinion, the reviews had damaged Dr Dean’s reputation. 

23The affidavits from Ms Kosalram and Ms Buc also attest to Dr Dean’s outstanding reputation in her field.  Ms Buc notes she was an exceptionally-diligent student, who won the prize in periodontics in her final year, and was very well liked  by peers, tutors and patients.  Ms Buc has referred a number of patients to Dr Dean and is impressed by the positive comments from those patients about the gentle and caring manner and the high quality of the work Dr Dean performs, as well as the excellent clinical results achieved.  Ms Buc notes Dr Dean displays a very high level of attention to detail, has a gentle manner with excellent communication skills, and has always shown compassion and empathy for her patients while she tries to achieve the best outcome for them. 

24Ms Kosalram says she has only ever received excellent feedback from patients she has referred to Dr Dean, and notes her great professionalism, thoroughness and integrity.  She notes Dr Dean is a very careful practitioner who has a great understanding of treatment outcomes for the short and long term.

25In addition to the opinions of Dr Dean’s peers, one of Dr Dean’s patients, Ms Aginfort, provided an affidavit in which she describes Dr Dean as having ‘a star’ that ‘shines so brightly’ and notes the compassionate and brilliant care provided. 

26Fortunately for Dr Dean, it is likely that her excellent reputation in the field of periodontics, coupled with the rambling and at times incoherent content of Ms Puleio’s longer reviews, makes it unlikely that many people would take seriously the content of those reviews.  Whilst the full reviews contain serious imputations, they also demonstrate, I think, the unreasonableness of the defendant’s assertions about Dr Dean.  However some readers, especially those who may have had unpleasant experiences with medical professionals in the past, may be ready to believe.  And many, perhaps most, would simply note the headline - ‘unprofessional and undermining’ – and click on past, preferring to steer clear of any doctor with such a review.

27In the immediate aftermath of the publications, there was a distinct downturn in average weekly page views of the website and in new-patient referrals.  Whilst the business is likely to have been impacted by the restrictions imposed as a result of the COVID-19 pandemic, there is likely to have been some impact from the negative reviews on the business.  No claim is made for special damages, but this is relevant to the concern, stress and anxiety that Dr Dean felt as to the impacts of the publications on her business.

28I accept that the publications have damaged Dr Dean’s reputation amongst her peers and in the eyes of the broader community and, in particular, people who may have considered referring patients to Dr Dean, or people who may have considered attending Dr Dean and were deterred by the negative reviews.

Impact of the publication on Dr Dean’s well being

29Dr Dean gave evidence that: 

“If it was the defendant’s intention to cause as much damage as possible when writing these publications, I can confirm that she has been successful in this regard.  The impact of her written word and her associated conduct have caused immeasurable damage to my emotional wellbeing, my psychological and physical health, my reputation, my work and my business.  The amount of stress caused by these publications has been more than I have been able to endure and I am desperate to put this experience behind me and move on with my life and my career.”[6]

[6]Plaintiff’s affidavit, dated 12 June 2021, at paragraph [49]

30This is a strong statement from Dr Dean as to the impact of the publications, and is borne out by the evidence before the Court. 

31Dr Dean clearly takes pride in providing the highest standards of care and treating patients with compassion and attention to detail.  The reviews made her feel that everything she worked hard to achieve  had been compromised.  She explored all avenues to resolve the situation without coming to Court.  I will deal in more detail later with her attempts to resolve the matter directly with Ms Puleio.  She also engaged a private company to try liaising with Google to take the reviews down, but that was unsuccessful.   She tried to have her Google My Business account deleted but was told that was not possible.  She was left with the option of having the fourth Google review remain on view in perpetuity for an ever broader audience to see, or to issue proceedings and try to seek redress through the Court.

32She describes the sadness, distress and embarrassment she has felt as a result of the publications.  They have caused her ‘constant worry’.  She says they are consistently the first and last thing she thinks of each day.  They have impacted her confidence and self-esteem.  She finds it difficult to sleep and often wakes in the night.  She is extremely anxious that other reviews will be posted. It has impacted on the way she runs her practice as she is worried what Ms Puleio might do and how she might respond.  She has become teary, withdrawn, has low mood and describes herself as sombre.  She has sought professional help with her psychological symptoms.

33Because of the extreme stress she has experienced arising from the publications, she has suffered physical impacts on her health.  She has lost about seven kilograms from her already slight frame.  She is medically ‘underweight’ and this has had a consequential effect on her immune system.  She has sought treatment from a nutritionist to try to increase her weight.  Her pre-existing medical condition which causes low blood pressure and tachycardia has been exacerbated by the heightened stress.  Her treating general practitioner and treating specialist have provided evidence that her medical condition has been exacerbated by the stress caused by these publications.

34Dr Dean’s husband describes the distress and anxiety that the reviews have caused his wife.  He says she is a person who takes others’ views about her ‘extremely personally’ and her behaviour and decisions are often driven by her concerns about what others might think.  He describes the impact of the reviews on Dr Dean as ‘severe’, and that it has caused her sleepless nights and consumed a substantial amount of her attention.  She is less happy and the quality of their family relationships has suffered. He has seen her physically shaking and dry-retching at times of heightened stress and anxiety.  He says ‘I have witnessed a fun and vibrant wife and mother, be turned into a devastated individual which absolutely breaks my heart’.

35Dr Dean’s mother, Rhonda Dean, has also witnessed the profound impact the publications have had on her daughter.  She has observed the ‘extreme worry’ and the noticeable decline in Dr Dean’s overall health.

36Ms Buc has noticed that the publications have ‘plagued Allison’s thoughts for the past year’.  She has witnessed a noticeable change in her friend  in that her usual bubbly personality has become more serious and withdrawn.  She says Dr Dean appears to have lost confidence and has been ‘second guessing herself’ and ‘focuses more on her weaknesses and not on her strengths and good qualities.’  She has noticed Dr Dean’s weight loss and withdrawal from social activities.

37The evidence supports a finding that the publications have caused Dr Dean to suffer significant emotional distress and damage.  Although she continues in her practice, she has changed, both personally and professionally.  She is more anxious, feels constant worry, is concerned that people will have read and believed the reviews, and has lost confidence.  She approaches patients with a degree of trepidation that she previously did not experience. She is concerned about what Ms Puleio might do next.  She has required medical and psychological intervention.

Assessment of Damages

38To the extent that it is necessary to do so, given that judgment has been entered, I find that:

(a)   the publications carried the imputations alleged by Dr Dean in her claim and as set out in this ruling;

(b)   those imputations were defamatory of Dr Dean; and

(c)   those imputations are untrue.

39There are well-established principles for assessing damages in defamation, such principles helpfully summarised by John Dixon J in Wilson v Bauer Media & Anor (‘Wilson’) as follows:[7]

[7] [2017] VSC 521 [59]

(a)   damages should provide consolation for hurt feelings, damage to reputation and vindication of the plaintiff’s reputation;[8]

[8]        Belbin v Lower Murray Urban and Rural Water Corporation [2012] VSC 535 at 242

(b)   damages ought to reflect the high value which the law places upon reputation and, in particular, upon the reputation of those whose work and life depends upon their honesty, integrity and judgment;[9]

[9]        Wilson citing Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44

(c)   the gravity of the libel and the social standing of the parties are relevant to assessing the quantum of damages necessary to vindicate the plaintiff.  The award must be sufficient to convince a bystander of the baselessness of the charge;

(d)   there must be an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded;

(e)   the extent of publication and the seriousness of the defamatory sting are pertinent considerations;

(f)       in determining the damage done to a plaintiff’s reputation, the court should also take into account the ‘grapevine’ effect arising from the publication;[10]

[10]Belbin & Ors v Lower Murray Urban and Rural Water Corporation (2014) 42 VR 348 at 388-390; [2012] VSC 535

(g)      it is well accepted that injury to feelings may constitute a significant part of the harm sustained by a plaintiff;[11] and

(h)      aggravated damages are a form of compensatory damages and, where appropriate, form part of the general damages awarded to a successful plaintiff for non-economic loss, designed to reflect aggravation caused to a plaintiff’s hurt or injury by reason of some conduct of the defendant.

[11]        Wilson citing Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 [71]

40The Court may also consider an award for aggravated damages where the conduct of the defendant has increased the injury suffered by the plaintiff.  Aggravating conduct may include a failure to publish a retraction or an apology, that amounts to a continuing assertion of the defamatory imputations[12].  Counsel submitted that an award of aggravated damages was appropriate in this case because of the following conduct of Ms Puleio:

(a)   the sole purpose of the published words was to injure Dr Dean’s reputation;

(b)   Ms Puleio has refused to apologise;

(c)   Ms Puleio has refused to attend a mediation;

(d)   Ms Puleio has refused to take down the fourth Google review; and

(e)   the manner in which Ms Puleio engaged with Dr Dean after publishing the first Google review.

[12]        [2017] VSC 521 [84] – [88]

41The conduct of Ms Puleio requires closer examination.

42After seeing the first Google review which was posted on 6 March 2020, Dr Dean quickly surmised who ‘Cat’ was and corresponded with Ms Puleio asking her to remove the review.  Ms Puleio responded on 10 March 2020  that she had ‘sound legal advice’ and she was ‘entitled to my personal opinion and google review/complaints to Medical Authorities’ (sic).  She went on to say she had gone ‘to the appropriate medical authorities with my complaint’ and asserted that she was also a health professional.  If indeed Ms Puleio is a health professional, she would be aware of the stress that would be caused to Dr Dean by a threat to make such a complaint.  Even the most unfounded complaint is likely to require investigation and a response from the relevant professional body.  She also wrote ‘my Brother (Criminal Lawyer) and Father (Barrister) are both well-known and highly respected Legal Practitioners within Australia.’

43Taking a pragmatic approach to try to resolve a tricky situation with a patient who was able, through the power of social media, to cause her business damage, Dr Dean offered to refund Ms Puleio her treatment costs in the amount of $725.

44Unfortunately for Dr Dean, Ms Puleio used Dr Dean’s willingness to make such an offer as an opportunity to attempt to extract more money from Dr Dean.  In a rambling letter dated 12 March 2020 full of self-justification, Ms Puleio says ‘you would have noted that I condensed my google review to a few lines only and of course will be more than happy to remove’.  She dangled the promise that the google review would be removed, but did not do so. Instead, she told Dr Dean she had decided to accept the offer to reimburse the fees but ‘I am now asking for an extra $1000’.  This extraordinary demand was ostensibly made because Ms Puleio found Dr Dean’s offer ‘undermining’.  Ms Puleio ends her letter with a thinly veiled threat: ‘I believe this to be fair, considering what damages would cost if I were to proceed ahead and which I have been advised to do.’ 

45Dr Dean, after discussing matters with her husband, decided not to meet Ms Puleio’s demand for a further $1000.  She was concerned that, if she did pay the money, there would be further attempts by Ms Puleio to use the threat of a Google review to extract additional sums from her.  Instead, Dr Dean decided to write a response to the Google review.  She wrote that, whilst she disagreed with the contents of the review and that her practice strove to provide the highest standards of periodontal treatment in a gentle and caring manner, she wished Ms Puleio all the best.

46In response, Ms Puleio removed the second Google review and, on about 13 March 2020 published the third Google review.  This review mischaracterised Dr Dean’s attempts to resolve the situation as an apology for ‘the negligence of my care’.

47A short time later, Ms Puleio, now using the name ‘Daniela’ published the fourth Google review which again mischaracterised Dr Dean’s offer as an ‘apology’ for ‘negligence’ and went on ‘saying sorry repeatedly represents guilt….negligence is surprisingly on the rise again and completely unacceptable’.

48On 24 June 2020 Ms Puleio wrote to Dr Dean’s lawyers and said she would ‘welcome the reimbursement of my monies spent $725 and the additional $1000 I asked for’.  She said, ‘if this is done then I shall review my google review/modify or remove’. She said ‘I will not be bullied or berated in being told that I’ve defamed another’ and said that her brother and father (who she purported to be highly regarded legal practitioners)  ‘have advised me several times of my rights and what I can do, I will act accordingly if I choose to do so’.  She wrote ‘Again, if Dr Alison Dean resolves this matter as produced to you then the “issue” she has will end.  Clearly she must not be doing too badly financially, to continue on a plight that will cost her thousands of dollars as opposed to $1725 in reimbursement to myself.  Or maybe with COVID 19 she financially suffered and is now trying to indulge in trying to fund her loses through me which is just woeful behaviour from a so called “professional”.’

49Finally, in response to a Concerns Notice, on 7 September 2020 Ms Puleio wrote to Dr Dean’s solicitors:

‘In regard to the following “dodgy documents” in trying to blackmail an innocent patient who has not defamed your client – these documents were reviewed by other legal professionals and deemed bizarre and unfit…To prey on an innocent patient, with ongoing serious illnesses, no income and cannot work and who has become a victim of unethical/immoral practising isn’t going to look good on a national enquiry platform! I have been advised to report you and your client once again to the appropriate authorities which I will consider if you continue with your infamous warrioring”.

50Ms Puleio did file a notice of appearance and a defence to the proceeding, in which she substantially denied the imputations, except to the extent that she said they were true, and denied that Dr Dean had been injured.  She pleaded that her Google reviews were ‘an honest opinion’, a ‘genuine true experience’ and that ‘I have a right to express my thoughts as a Human Being’.  She denied her publications had caused any damage to Dr Dean and did not admit to having published either the third or fourth Google reviews as ‘there is no recollection’ of writing these reviews.

51After filing the defence, Ms Puleio has taken no further part in the proceeding, has refused to attend a judicial mediation with a Judge of this Court, and has denied Dr Dean the opportunity to fully vindicate her reputation by having the defamatory remarks found to be untrue by a Court of law.  Whilst judgment in default proceeds on the basis that the defamatory publications are false, it may fall short of the vindication that a verdict after trial can achieve.

52I consider that Ms Puleio’s conduct has aggravated the injury to Dr Dean, for the following reasons:

(a)   she published the statements with the sole purpose of harming Dr Dean’s reputation;

(b)   she has refused to apologise and has filed a pleading that substantially relies on a defence of justification;

(c)   she has refused to take down the review;

(d)   she has refused to attend a mediation or participate in the Court process in circumstances where she has filed an appearance and pleading;

(e)   she attempted to extract additional money from Dr Dean whilst using the promise to remove the review as leverage;

(f)    she has revisited and revised the review to inaccurately reflect the content of negotiations;

(g)   she has threatened to report Dr Dean to medical authorities, and other unspecified authorities, and has said she has had legal advice to do so;

(h)   she has accused Dr Dean of blackmail;

(i)    she has accused Dr Dean of unethical conduct in trying to recoup losses caused by a global pandemic through defamation proceedings.

53I accept that, rather than quantify a sum to be awarded for aggravated damages, damages ought to be awarded as a global sum.[13]  

[13]        Wilson v Bauer Media & Anor [2017] VSC 521 at [69]

54In assessing the damages to be awarded I am mindful that engaging in a comparative exercise is apt to mislead, as expressed by Hayne J in Rogers v Nationwide News Pty Ltd.[14]On the other hand, consideration of the award in comparable cases can be appropriate, particularly, as in this case, where the matter is undefended and there is no contradictor to respond to the submissions of the plaintiff.[15]

[14] (2003) 216 CLR 327 at 350 [69]

[15]        Fraser v Business News Group Pty Ltd [45] citing Cerruti v Crestside Pty Ltd & Anor [2014] QCA 33 [46] – [49]

55In the case of Fraser v Business News Group Pty Ltd,[16] Daly AsJ considered that a review of other cases was ‘instructive in illustrating what features the current case does not have’.[17]

[16] Ibid

[17] Ibid [46]

56Whilst assessing damages is not a matter of ticking off boxes of elements present or absent, it is instructive in this case to compare the range of damages awarded in comparable circumstances.

57In Webster v Brewer (No. 3),[18] the first applicant was a member of the House of Representatives and social worker with a history of community service in Mildura. The second applicant was the husband of the first applicant and the third applicant was a not-for-profit organisation founded by the first applicant in 2011.  The respondent published material on Facebook that was intended to undermine the charitable objects of the third applicant.[19]  Over two weeks, the respondent uploaded text and videos onto a Facebook page that alleged the applicants were participants in a secretive criminal network involving the sexual abuse of children.  The allegations were of the most serious kind, though the judge found that only the most easily led would be likely to believe them.  The respondent was ordered to pay damages, including aggravated damages in the amount of $350,000 to the first applicant, $225,000 to the second applicant and $300,000 to the third applicant.

[18] [2020] FCA 1343

[19] Ibid [15]

58In Cables v Winchester,[20] the plaintiff owned a number of McDonald’s franchises and sued over defamatory publications on a Facebook page that had about 9500 followers.  The publications carried imputations that the plaintiff was abusive and had physically attacked and underpaid her staff, as well as imputations that she was dishonest, abusive and mentally unstable.  There was evidence that the defamatory publications had spread well beyond the local community in which she lived, and had made their way to McDonald’s head office in Sydney.  The plaintiff was the subject of a 2-year investigation into her fitness to be a McDonald’s franchisee, and was pressured into selling some of her franchises.  Although the publications were removed within a short period of time, the impacts on the plaintiff had been profound, both professionally and personally.  She was awarded $200,000 including aggravated damages.

[20] [2018] VSC 392

59Reid v Dukic[21] also involved defamation on a Facebook page involving the local sports team that the plaintiff managed as CEO.  The defendant had about 400 friends on Facebook, but the Judge accepted that defamatory publications on social media can spread quickly.  The plaintiff was awarded approximately $180,000.

[21] [2016] ACTSC 344 at [8]

60In Parke v Zikovic & Ors[22] the defendants published Google reviews about a lawyer, the  plaintiff, which contained imputations that the plaintiff was unethical, had refused to pay the defendants money he owed which had caused the defendants in turn to default of payments of superannuation to employees, was complicit in theft of technology and was a guilty hypocrite who profits from the sale of unsafe merchandise.  The plaintiff suffered a great deal of anxiety and stress as to who might have read the reviews, which persisted even after the reviews were removed.  The plaintiff was awarded $160,000 in damages.

[22] [2021] VCC 41

61In Cheng v Lok[23] the plaintiff, a solicitor, was awarded general damages of $100,000 as well as special damages of $550,000 for defamatory publications on Google My Business.  That review, whilst about a lawyer rather than a periodontist, was in a similar vein to the sorts of statements made in this case about Dr Dean.  It accused Mr Cheng of a lack of professionalism, said he brings ‘shame’ to all lawyers, gives false and misleading advice and is only concerned about getting money.  The defendant then posted further reviews stating ‘poor service’ and ‘bad lawyer! not at all reliable’.  The reviews were also posted in Mandarin.  There was evidence that the reviews had caused a significant and immediate downturn in the plaintiff’s business which had meant he had to retrench staff.  The Court accepted that he had suffered great distress and anxiety.

[23] [2020] SASC 14

62In this case, the imputations are serious, but not of the most serious kind.  They do not allege criminal conduct, for example, but do go to Dr Dean’s reputation as a professional and make serious allegations about her personal conduct – that she ‘bullies’ and ‘berates’ her patients. 

63The damages awarded must also recognise that the ‘harm caused to the plaintiff by the publication of the defamation often lies more in his own feelings, what he thinks other people are thinking of him, than in any actual change made manifest in their attitude towards [her]’.[24]

[24]        Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [72]

64I have no hesitation in accepting the evidence that these publications have had an extremely significant impact on Dr Dean, perhaps a disproportionate impact, and that they have caused her physical as well as mental harm.

65The defamation was widespread, the publications were seen by around 100,000 people, and it occurred over an extended period. It has the flavour of a ‘vendetta’ or a campaign against Dr Dean. 

66Having regard to all the circumstances of this case, I consider that the appropriate award of damages is the amount of $170,000.

Costs

67Section 40 of the Defamation Act 2005 (Vic) (‘the Act’) states:

1)In awarding costs in defamation proceedings, the court may have regard to-

a.    the way in which the parties to the proceedings conducted their cases (including any misuse of a party’s superior financial position to hinder the early resolution of the proceedings); and

b.    any other matters that the court considers relevant.

2)Without limiting sub-section (1), a court must (unless the interests of justice require otherwise)-

a.     if defamation proceedings are successfully brought by a plaintiff and costs in the proceedings are to be awarded to the plaintiff-order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the defendant unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff; or

b.    if defamation proceedings are unsuccessfully brought by a plaintiff and costs in the proceedings are to be awarded to the defendant-order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the plaintiff unreasonably failed to accept a settlement offer made by the defendant.

3)In this section-

a.    “settlement offer” means any offer to settle the proceedings made before the proceedings are determined, and includes an offer to make amends (whether made before or after the proceedings are commenced) that was a reasonable offer at the time it was made.

Application of section 40 of the Act to this proceeding

68In Hockey v Fairfax Media Publications  Pty Ltd (No 2)[25][26], White J said:

The effect of subs (1) is that, when determining both where the burden of costs should lie and the scale on which they be paid, the Court may have regard to the way in which the parties to the proceedings conducted their respective cases as well as to any other relevant matter. Subsection (2) specifies that the Court must make orders for indemnity costs in two circumstances, unless the interests of justice require otherwise. Subparagraph (a) relates to proceedings in which a plaintiff is successful, and subpara (b) to proceedings in which a plaintiff is unsuccessful. In each case, the Court must be satisfied that the specified conditions exist before making an order for indemnity costs.

[25] [2015] FCA 750 at [39]

[26]        at [39]

69The purpose of s 40 is to ensure that a plaintiff would not be out of pocket to such an extent that the risk of bringing proceedings would be unacceptable,[27] and that parties to a proceeding take a sensible and reasonable approach to negotiations.

[27]        Davis v Nationwide News Pty Ltd [2008] NSWSC 946 at [26]

70In circumstances where the Court is satisfied that the unsuccessful party unreasonably failed to make or accept a settlement offer, the Court must award indemnity costs unless it is in the interests of justice to require otherwise.

71Ms Puleio has had numerous opportunities to remove the offending review which she has refused to do.  In Cables v Winchester (No.2)[28] I found that an offer to make a public apology, in the context of a defendant who was impecunious and had already removed the offending publications from the internet, constituted a ‘settlement offer’ for the purposes of the legislation and was a reasonable offer at the time that it was made. Accordingly, indemnity costs were not ordered.

[28] [2019] VSC 78

72On the basis of the material before me, I am satisfied that Ms Puleio unreasonably failed to make or accept a settlement offer.  She refused to participate in a mediation.  At a very early stage, prior to proceedings being issued, Dr Dean attempted to resolve the matter without resorting to litigation. Ms Puleio used this as an attempt to extract money from Dr Dean.  Once litigation was contemplated, Ms Puleio again ‘offered’ to accept payment from Dr Dean of $1725.  I do not consider that that amounts to a settlement offer pursuant to the legislation.  It is therefore appropriate to order costs on an indemnity basis.