Iskander v Barcos
[2023] VCC 2074
•15 November 2023
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| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
DEFAMATION LIST
Case No. CI-23-00381
MICHAEL ISKANDER
| Plaintiff | |
| v | |
| DAVID BARCOS | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 October 2023 | |
DATE OF JUDGMENT: | 15 November 2023 | |
CASE MAY BE CITED AS: | Iskander v Barcos | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2074 | |
REASONS FOR JUDGMENT
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Subject:ASSESSMENT OF DAMAGES
Catchwords: Defamation – Facebook post publication
Legislation Cited: County Court Civil Procedure Rules 2018
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 &Son Pty Ltd [1959] VR 83
Lombank Ltd v Cook [1962] 3 All ER 491
Parkville Court Pty Ltd v Salvaris [1975] VR 393
Finlayson v Indigenous Business Australia [2014] VSCA 95
Rader v Haines [2022] NSWCA 198
Zimmerman v Perkiss [2022] NSWDC 448Wilson v Bauer Media Pty Ltd [2017] VSC 521
Belbin & Ors v Lower Murray Urban and Rural Water Corporation [2012] VSC 535
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
Reid v Dukic [2016] ACTSC 344
Wellington v Metcalf [2022] VCC 1759
Cheng v Lok [2020] SASC 14
Judgment: Judgment entered pursuant to Order 24 of the County Court Civil Procedure Rules 2018.
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APPEARANCES: | Solicitors |
| For the Plaintiff | Matt Awad |
| For the Defendant | No appearance |
HER HONOUR:
1The plaintiff, Mr Michael Iskander, alleges that the defendant, Mr David Barcos, defamed him in a publication on Facebook on 19 December 2022.
2On 23 December 2022, Mr Iskander served a concerns notice on Mr Barcos. There was no response to that concerns notice. On 3 February 2023, Mr Iskander filed, a writ and statement of claim which was served on 8 February 2023.
3No notice of appearance was entered in the time allowed under the County Court Civil Procedure Rules 2018 and Mr Iskander entered judgment in default of appearance on 2 March 2023. After judgment had been entered, but apparently before service of judgment in default, Mr Barcos’s solicitors entered a notice of appearance on 6 March 2023. That notice was subsequently withdrawn.
4I made orders on 31 July 2023 allowing Mr Barcos an opportunity to make application to set aside judgment in default. No application was made, nor was any further appearance entered. No defence has been filed.
5Accordingly, the matter was set down for a trial assessment on 4 October 2023. Mr Barcos did not appear at that hearing.
6Pursuant to Order 51 of the County Court Civil Procedure Rules, Mr Iskander seeks to have his damages assessed. Mr Iskander relies on his affidavit of 5 September 2023.
7In 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 Mr Barcos is deemed to have admitted the facts contained in the Statement of Claim.
[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]; Finlayson v Indigenous Business Australia [2014] VSCA 95 at paragraph [32]
Background
8Mr Barcos owns a business, BNB leather, which provides custom upholstery for vehicles.
9Mr Barcos operates a Facebook page to communicate with BNB Leather customers (“the Facebook page”).
10Between 23 September 2021 and about April 2022, Mr Iskander was employed by Mr Barcos at BNB Leather, working as a custom upholsterer.
11In about April 2022, Mr Iskander left BNB Leather to set up his own business, Automotive Aesthetic Detailing (“AAD”), which also provided custom upholstery fitting for vehicles in competition with BNB Leather.
12On 19 December 2022, Mr Barcos uploaded a post to the Facebook page. The post read:
“Dear Customers and Followers
This is an official Scam Alert from BNB Products Pty Ltd.
Trev is a customer of BNB, we have worked together on multiple cars in the past, as usual everything went well.
Earlier this year he tried to book another project in but we were already booked out for 2022, so he went looking elsewhere, unfortunately this is where things have gone south.
Trev placed a Deposit with an account by the name of Michael Iskander that is advertising on FB market place. Once the deposit was taken he was blocked and the deposit today still has not been returned.
Michael is claiming to have had training and worked full time for BNB, THIS IS NOT TRUE.
Michael worked for BNB as a factory hand, casual 2 days a week for a total of 7 weeks and was dismissed due to misconduct ‘he lied about damaging a car and was caught’.”[2]
[2]Writ, dated 3 February 2023, page 10
13The post went on to warn people that Mr Iskander was taking deposits and then blocking customers and using BNB’s name to “gain confidence in the public”. Mr Barcos asked people to share the information as “it is not right for people to be scammed, especially before Christmas”.[3]
[3]Ibid
14The post attached pictures of improperly upholstered seats, purported screenshots of conversations with customers of AAD and pictures of Facebook messages from Mr Iskander to his customers with the title commentary “Just Lies, Lies, Lies”.[4]
[4](Ibid) page 12
15One commenter, Bailey Ich, questioned the veracity of the claims being made by BNB about Mr Iskander, suggesting there was no proof of any “scam” or of deposits not being returned.
16On 21 December 2022, Mr Barcos posted a screenshot which purported to be a $500 refund from Mr Iskander to a customer, supposedly sent after BNB Leather had raised the alarm about Mr Iskander’s business practices. The screenshot shows the money transferred from “M ISKLANDER” rather than and “M ISKANDER”. Mr Iskander says this receipt was clearly fabricated, as his name is spelt incorrectly.
17Mr Iskander says the post and comments convey the following imputations:
(a) Michael Iskander unreasonably refused to refund deposit money to one of his customers;
(b) Michael Iskander consistently exploited his customers by taking deposits from them and blocking their messages from reaching him;
(c) Michael Iskander so conducted his business as to be reasonably suspected of taking money deposits from customers online and then blocking their messages from reaching him;
(d) Michael Iskander gains financial advantages from his customers by using deception; and
(e) Michael Iskander, while conducting his business, has been involved in scamming customers.[5]
[5](Ibid) page 5 at paragraph [5]
18I take the final imputation to be that Mr Iskander has scammed his customers in the course of his business.
Extent of publication
19The Facebook page, at the time of publication, had approximately 20,000 followers.[6]
[6] Affidavit of plaintiff, sworn 5 September 2023 at paragraph [22]
20On 21 December 2022, the post itself has ninety-three reactions, fifty-three comments and sixy-four shares.[7] The post remained on the BNB Leather Facebook page until at least 27 February 2023.[8]
[7] (Ibid) at paragraph [23]
[8] (Ibid) at paragraph [27]
21There was no evidence before the Court as to the number of businesses in Melbourne offering this service, or the relative market share of BNB Leather and AAD respectively. Nevertheless, it is likely that there was some grapevine effect within the community of people interested in custom upholstery and Mr Iskander gave evidence of exchanges he had with people who had seen the post.
22I am satisfied the evidence establishes that it was read by at least a few hundred people, given the number of likes, comments and shares.
Serious harm
23Mr Iskander said his business relies on online marketing, particularly on Facebook, to attract customers.
24He says, at the time of the publication, his business was performing well and in the first eight months of operation, his business turned over about $74,000, although his affidavit was silent on what component of this was profit and there were no financial documents exhibited. There was no evidence about the financial performance of his business after the publication.
25Mr Iskander says he has suffered serious harm as a result of the publication in the following ways:
(a) On 19 December 2022, Mr Iskander received a message from a Mr Joel Paredes requesting custom seat upholstery to his vehicle. After quoting Mr Paredes $3,350 for the service and getting his approval to proceed, Mr Iskander was texted by Mr Paredes some days later, refusing to continue as a result of reading the post online. Mr Iskander lost the opportunity to make a sale with revenue of $3,350;[9]
(b) On 20 December 2022, Mr Iskander received a Facebook message from a Mr Caleb John Tomlinson, requesting a quote for custom seat upholstery. Mr Iskander quoted $10,000 for the upholstery sought by Mr Tomlinson. Mr Tomlinson professed interest in proceeding at this initial point. Later that afternoon, Mr Tomlinson accused Mr Iskander of being a deceptive person who “rips people off”, and cited the post as the basis for this claim. Mr Iskander lost the opportunity to make a sale with revenue of $10,000.[10]
(c) On 20 December 2022, Mr Iskander received a message from Mr Joel Zandt, requesting a seats upgrade to his vehicle. After quoting Mr Zandt $3,000 for the service, Mr Iskander was texted by Mr Zandt some hours later, refusing to continue as a result of reading the post online. Mr Iskander lost the opportunity to make a sale with revenue of $3,000.[11]
(d) Mr Iskander gave evidence that about 50 per cent of each of the above quotes was for materials and the balance was labour and profit. The labour was his own labour, as he did not have any employees, and, consequently, he lost the opportunity to earn wages from undertaking the jobs.
(e) On 20 December 2022, he received a Facebook message that said “Faggot” from a Mr Tayt Goverdik.[12]
(f) On 10 January 2023, he received a message from Mr Nathan Moss, who accused Mr Iskander of being “scum” and who left other threatening messages, calling Mr Iskander a “puss”.[13]
(g) On 5 May 2023, he received a message from Mr Adams Griffiths, who accused Mr Iskander of being a thief on the basis of the post by BNB leather.[14]
(h) He has also received further anonymous telephone calls from time to time, with verbal threats from unknown persons.
[9] (Ibid) at paragraph [12]
[10] (Ibid) at paragraph [10]
[11] (Ibid) at paragraph [13]
[12] (Ibid) at paragraph [18]
[13] (Ibid) at paragraph [19]
[14] (Ibid) at paragraph [14]
26Mr Iskander says the publication has caused him to lose work as a result of the serious harm to his reputation. He says the abuse he has sustained is evidence that his reputation has been seriously harmed by the publication.
27He says he has had to rebrand his business to try to reduce the damage to his reputation, but as he is named in the post, there is likely to be an ongoing impact to his reputation.[15]
[15] (Ibid) at paragraph [17]
Findings on serious harm
28Mr Iskander gave evidence that usually about 30 per cent of people who make an enquiry or seek a quote proceed. It is apparent from the text exchange with Caleb Tomlinson that the request for a quote was never going to result in an actual job for Mr Iskander.
29The text exchange from Joel Paredes requests a quote but there is no “approval to proceed”. I cannot be satisfied that this is a job that was lost to Mr Iskander by reason of the publication.
30The messages exchanged with Mr Zandt were not in evidence.
31Given that only about 30 per cent of people who make an enquiry or seek a quote proceed with an order, and there was no evidence about the number of people who had sought such a quote from Mr Iskander after the publication, and no pre and post comparison of business profit and loss, it is difficult to assess whether Mr Iskander lost any orders as a result of the publication.
32Only one of the other messages mentions the publication. However it is reasonable to infer that the publication was the catalyst for at least some of the abusive messages being sent to Mr Iskander, and reasonable to infer that these abusive messages demonstrate that Mr Iskander’s reputation had been damaged by the post. At least some within the community of potential custom upholstery customers are likely to have an adverse view about Mr Iskander as a consequence of the post.
33The following principles on serious harm can be distilled from the authorities.[16]
[16]Rader v Haines [2022] NSWCA 198; Zimmerman v Perkiss [2022] NSWDC 448
34Serious harm sits on the spectrum above “substantial”, but below “grave”. Importantly, there can be harm which, though substantial, does not reach the level of serious harm.
35The tendency of the words, themselves, to cause harm is a factor to be considered.
36Even where words amount to a grave allegation against a plaintiff, more than a “mere tendency” of the words is required to establish the element. Special emphasis is placed on the circumstances and extent of publication.
37Serious harm should not be conflated with hurt to feelings, however distraught the plaintiff may be as a result of the publications.
38There may be serious harm without permanent harm.
39The extent of publication, including the grapevine effect, is a factor to be considered in assessing serious harm, as is the likelihood that the publication will come to the notice of other people.
40As the defendant did not attend the trial assessment, there was no challenge to Mr Iskander’s evidence that, after the publication his business was quiet for a few months, even though documentary evidence was not provided.
41I am satisfied that the inherent tendency of the words, themselves, is likely to cause harm. In what I assume is a relatively small marketplace of people looking for custom vehicle upholstery, being identified as someone who:
(a) scams customers;
(b) takes deposits and then blocks the customer;
(c) fails to return deposits, and
(d) pretends to have received training that has not been received
is likely to cause serious harm to reputation.
42I am satisfied that publication on a Facebook page with some 20,000 followers, meant that a not insubstantial number of people read the post. Given the number of comments, and the content of those comments, it is reasonable to assume that a number of people believed the imputations.
43Particularly given the context of Mr Iskander’s fledgling business, it is likely that the damage to his reputation was sufficiently serious to impact his operation and cause him the loss of some business.
44Accordingly, in the context of a claim where judgment has been entered in default of appearance, no defence has been filed and no evidence has been put to challenge Mr Iskander’s claims of harm, I am satisfied that Mr Iskander has sustained serious harm to his reputation.
Assessment of damages
45To the extent that it is necessary to do so, given that judgment has been entered, I find that:
(a) the publication was read by some hundreds of people;
(b) the publications carried the imputations alleged by Mr Iskander; and
(c) those imputations were defamatory of Mr Iskander.
46Mr Iskander says his mental health deteriorated as a result of the publications, and that he had a heated discussion with his girlfriend about his reputation and the potential impact on her of being associated with him.
47Mr Iskander says there are a number of elements of the publication that aggravate the damage he suffered:
(a) the allegations were false and Mr Barcos knew them to be false;
(b) the supposed refund from “M Isklander” is not from Ms Iskander and must have been fabricated by Mr Barcos to add credence to his claims; and
(c) the Court should accept that Mr Barcos was motivated by a desire to cause harm to Mr Iskander’s business, which Mr Barcos perceived as a threat to his own business.
48There are well-established principles for assessing damages in defamation, such principles helpfully summarised by John Dixon J in Wilson v Bauer Media Pty Ltd[17] (“Wilson”) as follows:
(a) damages should provide consolation for hurt feelings, damage to reputation and vindication of the plaintiff’s reputation;[18]
(b) damages ought to reflect the high value which the law places upon reputation and, in particular, upon the reputation of those whose work depends upon their honesty, integrity and judgment;[19]
(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; and
(f) 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.
[17] [2017] VSC 521 at paragraph [59]
[18] Belbin & Ors v Lower Murray Urban and Rural Water Corporation [2012] VSC 535 at paragraph [242]
[19] Wilson, citing Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
49I accept that Mr Iskander has suffered abuse, hurt and embarrassment as a result of the publication. I accept that this has likely taken an emotional toll on him, although there is no evidence of the way in which this has manifested, or what impact it has had on his mental health.
50I accept that some people within the custom upholstery community likely believed the allegations made by Mr Barcos were true, and that this has likely had an impact on Mr Iskander’s personal and business reputation.
51The imputations were serious, and it is important that the award of damages “nail the lie” and demonstrate the baselessness of the imputations.
52I am not satisfied that the impact on Mr Iskander’s business can be quantified. This is because of the lack of evidence provided to the Court to support such a claim, for example business profit and loss statements, tax returns or other financial records.
53Nevertheless, the impact on his reputation is likely to also impact his business, and this is a factor I have considered in assessing appropriate damages.
54I also consider the following matters to be aggravating factors that warrant an award of aggravated damages:
(a) Mr Barcos, although being aware of the proceeding and engaging solicitors, did not file a defence or attend court;
(b) Mr Barcos apparently fabricated a document to support his false claims about Mr Iskander;
(c) Mr Barcos encouraged others to share the allegations he made about Mr Iskander; and
(d) Mr Barcos was motivated by an improper purpose to damage Mr Iskander’s fledgling business by making serious allegations designed to harm his reputation.
55Awards of damages in other cases can provide assistance, but no two cases are entirely comparable.[20]
[20]See, for example, Reid v Dukic [2016] ACTSC 344; Wellington v Metcalf [2022] VCC 1759; Cheng v Lok [2020] SASC 14
56Having regard to all these matters, I consider an appropriate award of damages, including aggravated damages, is $90,000.
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