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Lorbek v King

Lorbek v King

Case [2023] VSCA 111 12 May 2023

Reasonable Publication

Malice

Defamation

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0048

SRECKO FELIX LORBEK	First Applicant
DAVID PETER LORBEK	Second Applicant
v
PETER LAWRENCE KING	Respondent

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JUDGES:	BEACH, WALKER and OSBORN JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	27 April 2023
DATE OF JUDGMENT:	12 May 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 111
JUDGMENT APPEALED FROM:	[2022] VSC 218 (McDonald J)

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DEFAMATION – Appeal – Publication – Publication of Google reviews – Extent of publication – Google reviews concerning respondent’s experience relating to purchase of used vehicle from applicants’ business – Whether judge erred in concluding that Google reviews only published to a small number of customers and potential customers of applicants’ business who had an interest in receiving the reviews of other customers who had been dissatisfied with their experience of purchasing a vehicle from applicants’ business.

DEFAMATION – Appeal – Qualified privilege – Statutory qualified privilege – Whether persons to whom Google reviews were published had an interest or apparent interest in receiving information – Whether respondent believed on reasonable grounds that persons to whom Google reviews were published had requisite interest in receiving information – Whether respondent’s conduct in publishing impugned publications was reasonable – Whether publications actuated by malice – Applications for leave to appeal refused.

Defamation Act 2005, s 30.

Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185; KSMC Holdings Pty Ltd t/as Hubba Bubba Childcare on Haig v Bowden (2020) 101 NSWLR 729; Lee v Lee (2019) 129; Stoltenberg v Bolton (2020) 380 ALR 145, referred to.

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Counsel
Applicants:		Mr DP Gilbertson KC with Mr JD Catlin
Respondent:		Mr TJ Mullen
Solicitors
Applicants:	MDM Lawyers
Respondent:	Sanicki Lawyers

BEACH JA
WALKER JA
OSBORN JA:

Lorbek Luxury Cars (‘LLC’)[1] is a very substantial business involved in selling luxury second-hand motor vehicles. It has an annual turnover of approximately $51 million, and sells approximately 1,200 cars a year. Srecko Lorbek (‘SL’) is the owner and chief executive officer of LLC. His younger brother, David Lorbek (‘DL’) is the senior salesperson employed by LLC.
[1]For ease of reference, we have used the same definitions in these reasons as those used by the trial judge in his reasons for judgment.
On 13 July 2016, Peter King (‘PK’) purchased a 2011 Porsche Panamera from LLC for $159,726. The vehicle had 50,267 kilometres recorded on its odometer. As part of the purchase price, PK paid LLC $4,950 for a five year platinum warranty. The vehicle was sold with a roadworthy certificate, provided on 18 July 2016 by Europei Motori Pty Ltd (‘Europei’).
In early August 2016, PK drove the vehicle into a large pothole. Shortly after driving into the pothole, he took the car to Porsche Centre Canberra[2] (‘Gulson’) to have a faulty door strap repaired. Gulson discovered that the vehicle was still under a factory warranty which would cover the cost of repairs to the door strap. On 9 August 2016, PK emailed DL requesting a refund of the $4,950…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Lorbek v King

Details

AGLC: Lorbek v King [2023] VSCA 111
Case: [2023] VSCA 111
Decision Date: 12 May 2023

CaseChat Overview and Summary

Lorbek sought to appeal against a decision that dismissed their claim for defamation against King. Lorbek alleged that King had defamed them by writing negative Google reviews about their business, which they claimed had caused them to lose customers and profits. The court had to determine whether the Google reviews were indeed defamatory and whether the statutory qualified privilege applied to King’s actions.

The primary legal issue was whether the Google reviews were published to a limited audience, specifically to those with an interest in the information contained in the reviews. The court also needed to assess whether King reasonably believed that the recipients of the reviews had an interest in the information, and whether King’s actions were actuated by malice. The applicability of the statutory qualified privilege under the Defamation Act 2005 was a crucial point of contention.

The court found that the Google reviews were published to a small number of customers and potential customers who had an interest in the reviews of dissatisfied customers. The court concluded that King reasonably believed that these individuals had an interest in receiving the information, and there was no evidence of malice. The statutory qualified privilege applied, protecting King’s actions from being considered defamatory. The applications for leave to appeal were therefore dismissed.

The court did not make any specific orders as the applications for leave to appeal were dismissed without any substantive findings on the merits of the case.

Orders