Lorbek v King
[2022] VSC 218
•5 May 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S CI 2017 04600
| SRECKO FELIX LORBEK | First Plaintiff |
| and | |
| DAVID PETER LORBEK | Second Plaintiff |
| v | |
| PETER LAWRENCE KING | Defendant |
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JUDGE: | McDonald J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 11 to 15, 18 to 20 and 29 October 2021; 1, 5 and 18 November 2021 |
DATE OF JUDGMENT: | 5 May 2022 |
CASE MAY BE CITED AS: | Srecko and David Lorbek v Peter King |
MEDIUM NEUTRAL CITATION: | [2022] VSC 218 |
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DEFAMATION – Publication – Whether the defendant’s Google reviews and online post were communicated to and comprehended by someone other than the plaintiffs – Whether appropriate to infer publication of Google reviews and online post.
DEFAMATION – Imputations – Whether pleaded imputations conveyed by matters complained of.
DEFAMATION – Defences – Statutory qualified privilege – Whether defendant’s conduct in publishing defamatory matter was reasonable in the circumstances – Whether defendant’s publication of defamatory matter was actuated by malice.
DEFAMATION – Defences – Common law defence of fair comment – Statutory defence of honest opinion – Whether publications contained statements which were untrue – Whether opinions were based on proper material.
DEFAMATION – Defences – Justification – Whether imputations conveyed by publications were substantially true.
DEFAMATION – Defences – Contextual truth – Whether contextual imputations were substantially true – Whether the plaintiffs’ pleaded defamatory imputations did not further harm the reputation of the plaintiffs because of the substantial truth of contextual imputations.
Defamation Act 2005 – ss 4, 25, 26, 30, 31, 34.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr JD Catlin | MDM Lawyers |
| For the Defendant | In Person – 11 to 15, 18 to 20 October 2021 Mr TJ Mullen – 29 October 2021, 1, 5 and 18 November 2021 | Sanicki Lawyers |
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TABLE OF CONTENTS
| SUMMARY OF FINDINGS | 1 |
| INTRODUCTION AND BACKGROUND | 2 |
| Mr King buys a Porsche Panamera | 7 |
| Mr King drives into a pothole | 13 |
| Mr King’s posts in relation to LLC | 15 |
| PUBLICATION | 17 |
| IDENTIFICATION | 30 |
| IMPUTATIONS | 31 |
| Fraud imputation: Each plaintiff was fraudulent in that he knowingly sold a vehicle with a fraudulent RWC | 33 |
| Fraud imputation: Srecko Lorbek | 35 |
| Fraud imputation: David Lorbek | 36 |
| Criminal Imputation: Each plaintiff engaged in criminal behaviour | 38 |
| Srecko Lorbek: no respect, dishonest and untrustworthy imputations | 39 |
| David Lorbek: liar, dishonest and untrustworthy imputations | 41 |
| Conclusion on imputations | 41 |
| STATUTORY QUALIFIED PRIVILEGE | 42 |
| Did the recipients of the publications have an interest in having information in respect of LLC? | 43 |
| Was the conduct of PK in publishing the defamatory matters reasonable in the circumstances? | 45 |
| Section 30(3)(a): The extent to which the matter published is of public interest | 54 |
| Section 30(3)(b): The extent to which the matters published relates to the performance of public functions or activities of the plaintiffs | 55 |
| Section 30(3)(c): The seriousness of any defamatory imputation carried by the matter published | 55 |
| Section 30(3)(d): The extent to which the matter published distinguishes between suspicions, allegations and proven facts | 55 |
| Section 30(3)(e): Whether it was in the public interest in the circumstances for the matter to be published expeditiously | 56 |
| Section 30(3)(f): The nature of the business environment in which the defendant operates | 56 |
| Section 30(3)(g): The sources of the information in the matter published and the integrity of those sources | 56 |
| Section 30(3)(h): Whether the matter published contained the substance of the person’s side of the story, and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person | 56 |
| Malice | 59 |
| FAIR COMMENT / HONEST OPINION | 69 |
| JUSTIFICATION | 71 |
| Is the imputation that SL deserved no respect as a business owner substantially true? | 72 |
| Is the imputation that SL is and was a dishonest car dealer substantially true? | 74 |
| Is the imputation that SL is untrustworthy as a car dealer substantially true? | 75 |
| Is the imputation that DL is and was a liar substantially true? | 76 |
| Is the imputation that DL is and was a dishonest car salesman substantially true? | 77 |
| Is the imputation that DL is an untrustworthy car salesman substantially true? | 77 |
| CONTEXTUAL TRUTH | 78 |
| DAMAGES | 80 |
| CONCLUSION | 84 |
| ANNEXURE A – Google review dated 4 April 2017 (‘GR1’) | 85 |
| ANNEXURE B – Google review dated 19 October 2017 (‘GR2’) | 86 |
| ANNEXURE C – Google review dated 20 October 2017 (‘GR3’) | 87 |
| ANNEXURE D – Law Answers post dated 17 December 2016 | 88 |
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HIS HONOUR:
SUMMARY OF FINDINGS
The defendant published defamatory material regarding the plaintiffs on 4 April 2017, 12 September 2017, 19 October 2017 and 20 October 2017 by causing the material to be communicated to and comprehended by someone other than the plaintiffs with resulting damage to the plaintiffs’ reputation;
Each of the four publications identified the plaintiffs;
Each of the four publications conveyed an imputation that the first plaintiff deserved no respect as a business owner;
The first publication published on 4 April 2017 conveyed the imputations that the first plaintiff:
(a) is and was a dishonest car dealer; and
(b) is untrustworthy as a car dealer;
Each of the four publications conveyed the imputations that the second plaintiff:
(a) is and was a liar;
(b) is and was a dishonest car salesman; and
(c) is an untrustworthy car salesman.
The defendant has established a defence of statutory qualified privilege under section 30 of the Defamation Act 2005. As a result of the investigations which he undertook in the second half of 2016, the defendant had a genuine and reasonably held belief that the plaintiffs knew that the vehicle he purchased on 13 July 2016 was unroadworthy. The defendant’s conduct in publishing the four publications was reasonable in the circumstances. The plaintiffs have failed to establish that when publishing the defamatory matters the defendant was actuated by malice.
The defendant has failed to establish each of the other defences upon which he relies:
· Fair comment/honest opinion;
· Justification; and
· Contextual truth.
As the Court has upheld the defence of statutory qualified privilege, the plaintiffs’ claim is dismissed.
INTRODUCTION AND BACKGROUND
The plaintiffs, Srecko and David Lorbek are brothers. Solely for the purpose of avoiding confusion between them, I shall refer to them throughout this judgment as ‘SL’ and ‘DL’. I shall refer to the defendant, Peter King, as ‘PK’.
SL and DL’s parents arrived in Australia from Slovenia with nothing.[1] SL completed a motor mechanic apprenticeship in 1979.[2] Soon after, he commenced operating his own business as a motor mechanic. SL bought his first showroom for selling second-hand cars in 1984, trading as SOS Motors.[3] From these relatively humble beginnings, SL has built a very substantial business selling luxury second-hand motor vehicles. The business trades as Lorbek Luxury Cars (‘LLC’).
[1]Transcript of Proceedings, T 449 L 5–11 (18 October 2021).
[2]Ibid T 449 L 14–17 (18 October 2021).
[3]Ibid T 449 L 20–23 (18 October 2021); CB351, ‘Witness Outline of Srecko Felix Lorbek dated 26 February 2021’, [2]–[3].
SL is the owner of LLC and its chief executive officer. He purchases all of the vehicles sold by LLC. These vehicles are acquired from wholesalers. He is responsible for the overall running of LLC’s business.[4] LLC has an annual turnover of approximately $51 million, selling approximately 1,200 cars per calendar year.[5] Approximately 30 per cent of the cars sold by LLC are Porsches.[6] LLC also sells Ferrari, McLaren, Bentley, Rolls-Royce and Maserati.[7]
[4]Transcript of Proceedings, T 150 L 21–29 (12 October 2021).
[5]Ibid T 453 L 10–12, T 542 L 27 (18 October 2021); T 181 L 21 (12 October 2021); T 803 L 1–2 (5 November 2021).
[6]Ibid T 452 L 12–13 (18 October 2021).
[7]Ibid T 452 L 25–29 (18 October 2021).
LLC is affiliated with many luxury car clubs. SL is a lifetime member of the Ferrari Car Club, a member of the Porsche Car Club since 1983 and the Maserati Car Club since 1995. SL regularly makes the LLC showroom in Port Melbourne available for these clubs to conduct events.[8] SL is a member of the Victorian Automobile Chamber of Commerce (‘VACC’). He is a committee member of the Used Car Traders Division and a member of the VACC Industry Policy Council.[9] SL has been actively involved in raising funds for charities, particularly Race Against Dementia and the Cancer Council.[10] One function alone for Race Against Dementia at LLC’s showroom raised $485,000.[11]
[8]Ibid T 456 L 1–9 (18 October 2021).
[9]Ibid T 458 L 10–14 (18 October 2021).
[10]Ibid T 461 L 26 – T 462 L 4 (18 October 2021).
[11]Ibid T 462 L 7–9 (18 October 2021).
DL is SL’s younger brother. He left school at 14 years of age prior to completing Year 9 and started a motor mechanic apprenticeship working for SL at SOS Motors.[12] DL completed three years of his apprenticeship but decided to pursue a career in car sales. Save for the period between 2001 and 2010 when he worked for another dealership, DL has always worked with SL.[13] DL is the senior salesperson employed by LLC.[14]
[12]Ibid T 148 L 24 – T 149 L 2 (12 October 2021).
[13]Ibid T 149 L 17–27 (12 October 2021).
[14]Ibid T 150 L 30–31 (12 October 2021).
On 13 July 2016 the defendant, PK, purchased a 2011 Porsche Panamera from LLC for $159,726. The vehicle had 50,267 kilometres recorded on its odometer.[15] LLC purchased the vehicle from a wholesaler, Sullivan Automotive Pty Ltd, on 30 June 2016 for $117,000.[16] LLC’s chief financial officer, Ilija Cicak, transferred the funds for the purchase of the vehicle on 8 July 2016.[17]
[15]CB2000, ‘Contract of Sale dated 13 July 2016’.
[16]CB2426, ‘Contract of Sale dated 30 June 2016’.
[17]Transcript of Proceedings, T 252 L 23–26 (14 October 2021).
Prior to its acquisition by Sullivan Automotive Pty Ltd, the vehicle had been owned by Porsche Centre Brighton (‘PCB’).[18] Sullivan Automotive Pty Ltd purchased the vehicle from PCB on 30 June 2016 and sold it to LLC on the same day.[19]
[18]CB354, ‘Witness Outline of Srecko Lorbek dated 26 February 2021’, [24]; CB2426, ‘Contract of Sale dated 30 June 2016’.
[19]CB2870, ‘Contract of Sale to Sullivan Automotive dated 30 June 2016’.
Soon after the contract for the purchase of the vehicle was signed on 13 July 2016 the Porsche was sent by LLC to Europei Motori Pty Ltd (‘Europei’) for the purpose of obtaining a roadworthy certificate (‘RWC’).[20] It is common ground that in Victoria the ownership of a motor vehicle cannot be transferred without the provision of a RWC in respect of the vehicle. On 18 July 2016 Europei issued a RWC in respect of the vehicle. Subsequently, following an investigation of Europei instigated by PK, in February 2017 Europei’s licence as a RWC provider was suspended by VicRoads for four weeks.[21] Europei’s licence was suspended because, inter alia, they had issued a RWC for a Porsche when it was unroadworthy by reason of having an undersized front wheel rotor.
[20]CB2716, ‘Letter from Europei Motori to VicRoads dated 24 January 2017’; CB2720, ‘VicRoads Statement of Evidence, Nino Menolascina’; CB2730, ‘Certificate of Roadworthiness dated 18 July 2016’.
[21]CB2713, ‘Letter from VicRoads to Europei Motori dated 1 February 2017’.
When the vehicle was sold to PK on 13 July 2016 by LLC the vehicle was unroadworthy because the rotors on the front brakes were less than the prescribed width.[22] The unroadworthy condition of the Porsche is first recorded in an internal PCB job card prepared on 22 June 2016.[23] As at 22 June 2016 the Porsche was owned by PCB. PCB is an authorised Porsche dealer. As such, when servicing a vehicle it is required to use only genuine Porsche parts, which are approximately double the price of generic parts.[24] Further, if PCB sells a second-hand Porsche it must be sold with a ‘Porsche approved’ warranty.[25] ‘Porsche approved’ is a much higher standard than that which is required in order for a car to be given a RWC.[26]
[22]Transcript of Proceedings, T 78 L 21–22 (11 October 2021); T 193 L 23–24 (12 October 2021); CB1960, ‘Porsche Centre Brighton Repair Order Work Card dated 22 June 2016’; CB1963, ‘Porsche Centre Brighton Repair Order Work Card dated 4 July 2016’; CB2720–1, ‘VicRoads Statement of Evidence, Nino Menolascina’.
[23]CB1960, ‘Porsche Centre Brighton Repair Order Work Card dated 22 June 2016’.
[24]Transcript of Proceedings, T 407 L 8–19 (15 October 2021).
[25]Ibid T 424 L 8–18 (15 October 2021).
[26]Ibid T 416 L 30–31 (15 October 2021).
On 22 June 2016 PCB sent the Porsche to its own workshop for a ‘Porsche approved’ check.[27] PCB’s technician identified numerous items which had to be replaced to bring the Porsche up to ‘Porsche approved’ standard.[28] Each of the identified items was costed. The total cost of bringing the car up to ‘Porsche approved’ standard was $12,000.[29] The job card also contains an entry: ‘Front pad NG disc 35.5 min 36’. The abbreviation ‘NG’ means ‘non genuine’.[30] This entry in the PCB job card records the vehicle as being unroadworthy.
[27]Ibid T 416 L 14–16 (15 October 2021).
[28]CB1960, ‘Porsche Centre Brighton Repair Order Work Card dated 22 June 2016’.
[29]Ibid; Transcript of Proceedings, T 417 L 5–6 (15 October 2021).
[30]Transcript of Proceedings, T 418 L 24–25 (15 October 2021).
On 30 June 2016 the Porsche was sold by PCB to Sullivan Automotive Pty Ltd. It is common ground that none of the work identified in PCB’s 22 June 2016 job card had been undertaken. I infer that PCB made a commercial decision to onsell the Porsche rather than spending the $12,000 necessary to bring the vehicle up to ‘Porsche approved’ standard. LLC purchased the Porsche on 30 June 2016, the same day Sullivan Automotive had purchased it from PCB. SL only had limited information about the Porsche when he bought it. He was contacted by Simon Sullivan who offered to sell him the car. He was given a general overview of the vehicle: its year of manufacture, model, kilometres, and an assurance that it was in good condition.[31] He was given three to five minutes to decide whether to buy the vehicle, failing which Simon Sullivan intended to offer it for sale to a competitor.[32] Although SL was only given a short period of time in which to decide whether to buy the vehicle, he had an agreement with Simon Sullivan that if he was not satisfied with the Porsche he could ‘bounce’ it. This means he had the right to return the vehicle to Simon Sullivan without any financial penalty if he was not satisfied with the quality of the car.[33]
[31]Ibid T 483 L 30 – T 484 L 5 (18 October 2021).
[32]Ibid T 482 L 17–19 (18 October 2021).
[33]Ibid T 485 L 2–24 (18 October 2021).
Upon receiving the Porsche, SL took it for a test drive, and considered that ‘the car drove excellent’.[34] A member of LLC’s sales team noted that the car was due for a service and decided to send it to PCB for an annual service.[35] The vehicle was sent to PCB to be serviced because a stamp in the service book from an authorised dealership such as PCB adds to the value of a Porsche.[36]
[34]Ibid T 486 L 7–8 (18 October 2021).
[35]Ibid T 68 L 26–28 (11 October 2021).
[36]Ibid T 526 L 17–19 (18 October 2021).
On 4 July 2016 the Porsche was delivered to PCB for the purpose of having the car serviced. The invoice for the annual service identifies the customer as LLC and the PCB ‘advisor’ as Jake Parsons.[37] The invoice records two email addresses: [email protected] and [email protected]. It is common ground that these are the email addresses of Jeff Devers, a member of LLC’s sales team, and Ilija Cicak, LLC’s chief financial officer. It is also common ground that a mobile phone number written on the invoice is that of Mr Cicak. The invoice records the cost of the annual service as $627.73. The invoice also includes a section under the heading ‘Recommendations’, as follows:[38]
Car is due for the major service including; [sic]
Spark plugs, engine air filters x 2, cabin pollen filter, brake fluid, POK oil and PDCC reservoir
Front and rear brakes worn low
Both rear jacking points broken
Rear seat cup holder broken
[37]CB1986, ‘Porsche Centre Brighton Invoice dated 5 July 2016’.
[38]Ibid.
Mr Cicak is responsible for paying invoices for mechanical work undertaken at the request of LLC.[39] He usually gets SL to sign off on an invoice before it is paid.[40] As Mr Cicak’s email address appears on the invoice of 4 July 2016 I infer that the invoice was sent to him for payment. I also infer that he would have followed his usual practice of seeking SL’s approval before paying the invoice.
[39]Transcript of Proceedings, T 238 L 21 (14 October 2021).
[40]Ibid T 239 L 7–8 (14 October 2021).
PCB’s internal job card for the 4 July 2016 annual service of the vehicle identified the cost of undertaking the major service and replacing the front and rear brakes. [41] The job card records the cost of the major service at $3,100. It records the cost of replacing the brakes at $3,987. Although the job card includes a notation ‘front brakes 3987’ it is clear from the itemised costs recorded on the job card that the cost of replacing the front and rear brake pads and discs was $3,987.[42]
[41]CB1963, ‘Porsche Centre Brighton Repair Order Work Card dated 4 July 2016’.
[42]Transcript of Proceedings, T 616 L 1–2 (19 October 2021).
The PCB job card of 4 July 2016 also contains an entry:[43]
Front 35.7 min 36
Rear 25.2 min 26.
[43]CB1963, ‘Porsche Centre Brighton Repair Order Work Card dated 4 July 2016’.
The entries set out above in the PCB job card record the Porsche as being unroadworthy by reason of both the front and rear rotors being less than the minimum prescribed width. PCB’s internal job card was not forwarded to LLC.[44] The invoice which was forwarded to LLC includes an entry: ‘Front and rear brakes worn low’.[45] There is an issue, addressed later in this judgment, as to whether PCB’s advisor, Mr Parsons, told any employee of LLC that the vehicle was in fact unroadworthy by reason of the undersized rotors.
[44]Transcript of Proceedings, T 440 L 12 (18 October 2021); T 605 L 10–14, T 610 L 8–11 (19 October 2021).
[45]CB1986, ‘Porsche Centre Brighton Invoice dated 5 July 2016’.
Mr King buys a Porsche Panamera
In July 2016 PK was living in the southern highlands of New South Wales. He travelled to Melbourne to buy a car. Prior to visiting LLC’s showroom on 13 July 2016 he had spoken to Jeff Devers by telephone and enquired about the Porsche. Mr Devers explained to him the features of the car and its accessories.[46] When PK arrived at LLC’s showroom, Mr Devers introduced himself and PK replied that he was ‘just looking’.[47] Mr Devers subsequently discovered that DL had sold the Porsche to PK.[48]
[46]Transcript of Proceedings, T 811 L 13–18 (5 November 2021).
[47]Ibid T 811 L 21–22 (5 November 2021).
[48]Ibid T 811 L 24–26 (5 November 2021).
There is a significant factual dispute between the parties as to whether, prior to completing the sale, DL and PK discussed the condition of the vehicle’s tyres, brakes and suspension. PK, who represented himself for a substantial part of the trial, put to DL during the course of cross-examination that he had specifically asked DL about the condition of the tyres, brakes and the suspension. For his part, DL denies that there was any such discussion.[49] DL recalls that PK asked whether the vehicle had any structural damage and whether it had been in an accident.[50] They discussed the vehicle’s service history[51] and DL showed PK the vehicle’s service booklet.[52] DL denies that PK asked him about the condition of the brakes:
He didn’t ask. He didn’t ask at all. In fact he was quite stand-offish right through the whole process. So he wasn’t connecting to ask those questions. He was actually very stand-offish, hence why the first sales person, he didn’t even want to talk to him.[53]
[49]Ibid T 158 L 6–10 (12 October 2021).
[50]Ibid T 85 L 6 (11 October 2021).
[51]Ibid T 85 L 9–13 (11 October 2021).
[52]Ibid T 86 L 14–15 (11 October 2021).
[53]Ibid T 86 L 26–30 (11 October 2021).
I do not accept DL’s evidence that there was no discussion between himself and PK regarding the condition of the vehicle’s brakes and suspension. PK was seriously considering the purchase of a vehicle costing more than $150,000 which was five years old and which had been driven for in excess of 50,000 kilometres. It is common ground that the vehicle is capable of travelling at speeds exceeding 300 kilometres per hour. PK’s account of the discussion with DL whereby he specifically asked about the condition of the brakes and suspension is entirely plausible.
So too is his account of having asked DL whether the original tyres from the vehicle were still in good condition. It is common ground that the vehicle was sold with a new set of 20 inch wheels and tyres. The original wheels and tyres were in storage. It is also common ground that PK asked DL whether he could purchase the original 22 inch wheels and tyres.[54] DL’s evidence is that there was no discussion about the condition of the tyres. I do not accept this evidence. There would have been no point in PK acquiring the original tyres if they were unroadworthy.
[54]CB2000, ‘Contract of Sale dated 13 July 2016’.
DL was at pains to present PK as being disinterested or incapable of engaging with him about the condition of the vehicle. However, DL also gave evidence that when he approached PK and they started talking ‘he started opening up and he started asking questions about the Porsche Panamera and we just kept talking about the vehicle’.[55] DL admits that there was discussion about whether the car had structural damage, whether it had been in an accident and its service history. Further, he and PK went for ‘a substantial test drive, approximately 25, 30 minutes in total’.[56]
[55]Transcript of Proceedings, T 84 L 29–31 (11 October 2021).
[56]Ibid T 88 L 25–27 (11 October 2021).
PK had a specific recollection that DL told him that he owned three cafes. DL accepts that he did tell PK that he owned three cafes.[57] This evidence lends credibility to PK’s recollection of the discussion he had with DL on 13 July 2016. It is also inconsistent with DL’s account of PK as having been stand-offish and unwilling to engage in discussion.
[57]Ibid T 158 L 24–26 (12 October 2021).
There are significant issues in respect of PK’s credit as a witness. He denied having any knowledge of how a company, MNPK Pty Ltd, of which he is a shareholder and director, came to be the owner of the registered business name, ‘Six Star Models’.[58] His evidence that some unknown third party had fraudulently lodged and extended the business name registration using his personal details is not credible.[59] Further, his inability to provide an explanation as to how MNPK Pty Ltd had generated taxable income of $341,000 in one financial year as a ‘booking agent’ was also not credible.[60] His evidence that he had no explanation because ‘I look after the kids’ is similarly not credible.[61]
[58]Ibid T 667 L 29–31, T 668 L 5–17 (19 October 2021); T 688 L 8–11 (20 October 2021).
[59]Ibid T 688 L 19–20 (20 October 2021).
[60]Ibid T 689 L 16–24 (20 October 2021).
[61]Ibid T 690 L 1–10 (20 October 2021).
Notwithstanding my adverse assessment of PK’s credit as a witness, it does not follow that wherever there is a conflict between the evidence of PK and the plaintiffs, the plaintiffs’ evidence should be preferred. PK is an individual with a highly developed sense of his own self-interest. It would not have been in his interest to purchase the Porsche Panamera for in excess of $150,000 without enquiring as to the condition of the tyres, brakes and suspension.
Further, notwithstanding that the proceeding was conducted as a virtual trial, the mutual disregard of the plaintiffs and PK for each other was palpable. The plaintiffs are genuinely aggrieved by what they consider to be a malicious campaign waged against them by PK via social media platforms. For his part, PK is genuinely aggrieved because he believes LLC sold him an unroadworthy and dangerous vehicle. DL was very emotional at times when giving his evidence. For example he stated:
I’ve seen all these bullying fucking posts over the last five years… I’m so fed [up] of this bullshit bullying that he’s been getting away with and it’s affecting us.[62]
I have concluded that DL and PK had a tendency to exaggerate matters which they perceived to be of assistance to their case and to play down matters which they perceived to be potentially disadvantageous.
[62]Ibid T 136 L 19–25 (12 October 2021).
DL refused to make any concession that any aspect of LLC’s conduct vis-à-vis PK was deficient. The purchase price for the vehicle included a five year premium platinum warranty at a cost of $4,950. It was unnecessary for PK to have purchased this warranty because, unbeknownst to him and LLC, the car was still covered by an extended Porsche factory warranty in July 2016.[63] LLC received a commission of ‘around $1000’ on the sale of the five year platinum warranty.[64] When PK subsequently discovered that it was not necessary for him to have purchased the five year platinum warranty he was very upset. This was compounded by what he considered to be unreasonable delays in securing a refund of the money which he had paid for the warranty.[65]
[63]Ibid T 83 L 10–11 (11 October 2021).
[64]Ibid T 118 L 18 (12 October 2021).
[65]CB2053, ‘Email from Peter King to Daniel Novak dated 29 August 2016’.
The existence of the extended Porsche factory warranty would have been known to LLC if it had made enquiries of Porsche Australia. When asked why LLC could not simply have contacted Porsche Australia and enquired as to whether PK’s vehicle was covered by a Porsche factory warranty, DL stated:
We have to ring on 1,200 cars that we sell. We’ve got to stop and ring every manufacturer. No dealer does that.[66]
[66]Transcript of Proceedings, T 117 L 19–21 (12 October 2021).
When asked whether LLC had changed its practices post-July 2016 in order to ascertain whether vehicles have factory warranties, DL responded:
We try to find out as much information on every motor vehicle as we can. We don’t get – we’ve got to employ another ten people just to do that then, because it’s impossible to get every piece of information on every car.[67]
[67]Ibid T 117 L 31 – T 118 L 4 (12 October 2021).
When asked whether, post-July 2016, LLC contacts Porsche Australia to enquire whether a vehicle is subject to a factory warranty, SL stated that LLC has now employed one staff member to check whether vehicles sold by LLC are subject to a factory warranty.[68] Further, SL agreed that the sale of warranty insurance to PK for $4,950 in circumstances where the vehicle was already subject to an extended factory warranty was ‘sub-optimal’.[69] SL gave evidence that LLC ‘learnt from that experience so that we can give better customer service’.[70]
[68]Ibid T 496 L 24–27 (18 October 2021).
[69]Ibid T 496 L 28–30 (18 October 2021).
[70]Ibid T 496 L 30–31 (18 October 2021).
The contrast between the evidence of DL and SL regarding the sale of the premium warranty to PK is striking. First, rather than acknowledging that LLC’s conduct in failing to check with Porsche Australia if the vehicle was subject to a factory warranty, was deficient, DL’s response was ‘no dealer does that’.[71] Second, his reference to LLC having to employ another ten staff to get information about vehicles is not credible. The true position is that LLC has employed one full-time staff member to check whether vehicles have a factory warranty at point of sale.
[71]Ibid T 117 L 20–21 (12 October 2021).
PK signed the contract to purchase the vehicle on 13 July 2016. On the same day the vehicle was sent to PCB to repair a coolant leak which had manifested itself when the Porsche was being test-driven by DL and PK.[72] Shortly thereafter the vehicle was sent to Europei for the purpose of obtaining a RWC. LLC does not obtain RWCs for vehicles until after a contract of sale has been signed.[73] A vehicle cannot be registered in the purchaser’s name unless it has a RWC. A RWC is valid for 28 days. LLC does not obtain RWCs prior to the sale of a vehicle because of the risk that a RWC obtained prior to sale may lapse, resulting in LLC having to incur the cost of obtaining a further RWC.[74]
[72]CB1988, ‘PCB Repair Invoice dated 15 July 2016’.
[73]Transcript of Proceedings, T 93 L 9–11 (11 October 2021).
[74]Ibid T 93 L 6–8 (11 October 2021).
Europei provided a RWC for the Porsche on 18 July 2016.[75] VicRoads suspended Europei’s licence as a RWC provider for a four-week period in February 2017. Europei’s licence was suspended, inter alia, because it provided a RWC certificate for PK’s vehicle when in fact it was unroadworthy.[76] It also failed to take certain prescribed photos of the vehicle, including of the car on the hoist whilst it was being inspected. Further, it was found to have pre-signed RWCs prior to undertaking vehicle inspections. Mr Rocco Rossi, the Europei mechanic who provided the RWC for PK’s vehicle, told SL in February 2017 that Europei’s licence had been suspended because it had provided a RWC for the Porsche when it was unroadworthy.[77]
[75]CB2730, ‘Certificate of Roadworthiness dated 18 July 2016’.
[76]Transcript of Proceedings, T 365 15–19, T 367 L 19–22 (15 October 2021).
[77]Ibid T 367 L 7–11, 26–29 (15 October 2021).
DL stated that he was not aware prior to giving evidence that Europei’s licence as a RWC provider had been suspended for issuing a RWC for PK’s vehicle when the vehicle was not roadworthy.[78] I do not accept that DL was unaware prior to giving evidence at trial that Europei’s RWC licence had been suspended as a result of providing a RWC for PK’s vehicle. In 2016 Europei was providing five to seven RWCs per week to LLC.[79] When Europei’s licence was suspended Mr Rossi told SL that the licence had been suspended because he had given PK’s vehicle a RWC when it was not in fact roadworthy.[80] This discussion would have taken place within two months of Mr King posting on the ‘Law Answers’ site on 17 December 2016. That post included the following:
The roadworthy certificate without a doubt was fraudulent from Europei Motori in South Melbourne and they are under a very serious investigation from VicRoads. I hope for all the motoring public that they get made an example of and lose their roadworthy certification licence.
[78]Ibid T 125 L 24–26; T 126 L 29 – T 127 L 5 (12 October 2021).
[79]Ibid T 359 L 1–3 (15 October 2021).
[80]Ibid T 367 L 26–29 (15 October 2021).
The Law Answers post is one of four posts which the plaintiffs claim defamed them. The subsequent posts upon which the plaintiffs sue comprise three Google reviews. The first of these Google reviews was posted on 4 April 2017 (‘GR1’). It contains the same statement about Europei set out above. In two subsequent Google reviews posted on 19 October 2017 (‘GR2’) and 20 October 2017 (‘GR3’) PK stated ‘[t]he roadworthy certificate without a doubt was fraudulent from Europei Motori in South Melbourne and they have been the subject of an investigation from VicRoads and are being censured for their conduct’.
DL was emphatic that he had read all of these ‘bullying fucking posts over the last five years’.[81] If he read the posts he would have seen the reference to Europei being under investigation and/or being censured over the provision of a RWC for PK’s vehicle. Further, as LLC’s sales manager DL would have become aware in February 2017 that Europei was not available to provide RWCs for a period of four weeks when they would have otherwise have provided approximately 20 to 28 RWCs for LLC. Further, SL would have told DL when he was informed by Mr Rossi that Europei’s RWC provider licence had been suspended by VicRoads because it provided a RWC for PK’s vehicle when it was not roadworthy.
[81]Ibid T 136 L 19–20 (12 October 2021).
I do not consider DL gave deliberately false evidence when he denied that he had any knowledge that Europei’s RWC licence had been suspended. I accept that when giving evidence he did not have any recollection of having previously been aware that Europei’s RWC provider licence had been suspended for providing a RWC for PK’s vehicle. DL’s failure to recall the details of Europei’s suspension supports a finding that he does not have a good recollection of the events relating to the sale of PK’s vehicle. This includes the details of his conversation with PK regarding the condition of the vehicle’s original tyres, suspension and brakes on 13 July 2016.
Mr King drives into a pothole
On the morning of 21 July 2016 PK’s vehicle was delivered to his home in the southern highlands of New South Wales.[82] In early August 2016 PK drove into a large pothole. In a post on Porsche Forum dated 14 January 2017 PK described the pothole as ‘a crater’.[83] There is a dispute as to whether damage to the Porsche’s rear suspension, which also rendered the vehicle unroadworthy, was caused by PK driving into the pothole. I shall address this issue below. For present purposes it is sufficient to record that as a result of PK driving into the pothole he destroyed the vehicle’s front left tyre and broke the front left wheel. When PK purchased the vehicle he did so with a new set of 22 inch wheels and tyres. In addition to buying the new set of 22 inch wheels and tyres he also purchased the original 20 inch wheels and tyres.[84] After hitting the pothole PK had the original wheels and tyres put back on the car.
[82]CB2162, ‘Text Messages from Peter King to David Lorbek dated 21 July 2016’.
[83]CB2117, ‘Porsche Forum Post dated 14 January 2017’.
[84]CB2000, ‘Contract of Sale dated 13 July 2016’.
Shortly after driving into the pothole PK took his car to Porsche Centre Canberra (‘Gulson’) to have a faulty door strap repaired. Gulson discovered that the vehicle was still under 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 he had paid LLC for the five year platinum warranty.[85] Whilst the vehicle was with Gulson, a number of other defects were identified. These were set out on an email from the service manager, Craig Homann, to PK on 23 August 2016:
As discussed on the phone here are the details of the work required -
• Front tyres worn below legal limit (Pirelli 255/40R20) - $595 each – total $1190 fitted
• Front brake pads and rotors worn well below minimum, and rear rotors worn below minimum - $6017 fitted
• RHF door control strut broken and door has been damaged as a result – this will be covered under the existing factory warranty
• Rear lower control arm bushes are split severely, unable to set wheel alignment as a result - this will be covered under the existing factory warranty
Given the condition of the brakes, tyres and suspension I would deem the vehicle to be in an unsafe, unroadworthy condition. As such I would have to advise the vehicle [not] to be driven until all these issues have been addressed.[86]
[85]CB2041, ‘Email from Peter King to David Lorbek dated 9 August 2016’.
[86]CB2046, ‘Email from Craig Homann to Peter King dated 23 August 2016’.
After Mr Homann advised PK that he considered the vehicle to be in an unsafe, unroadworthy condition, the relationship between PK and LLC rapidly deteriorated. On 23 August 2016 PK emailed Daniel Novak, warranty and sales support at LLC, requesting LLC cover any expenditure necessary to make the vehicle roadworthy, which was not covered by the extended factory warranty.[87] On 29 August 2016 PK emailed Daniel Novak again requesting a copy of the fully documented roadworthiness file including photos. He also reiterated his request for a refund of the $4950 which he paid for the platinum warranty: ‘Also tell David to send me my refund!!!!! It must be the twentieth time I have asked.’[88] In response, Mr Novak told PK that LLC wished to have the vehicle brought back to Melbourne to undergo an independent inspection of the brakes.[89] PK did not agree with this request.
[87]CB2046, ‘Email from Peter King to Daniel Novak dated 23 August 2016’.
[88]CB2053, ‘Email from Peter King to Daniel Novak dated 29 August 2016’.
[89]CB2054, ‘Email from Daniel Novak to Peter King dated 29 August 2016’.
Mr King’s posts in relation to LLC
Between 26 August 2016 and March 2018 PK made 13 posts detailing his adverse perception of his dealings with LLC. The chronology of posts is as follows:
| Date | Event |
| 29 August 2016 | PK creates Carsales post[90] |
| 30 August 2016 | PK posts Google Review under name ‘PKavo’[91] |
| 1 September 2016 | PK posts Google review under his real name[92] |
| 17 December 2016 | ‘Petez’ (PK) posts a comment on Joanne Painter’s Law Answers thread (Annexure D)[93] |
| 13 January 2017 | ‘Petez’ (PK) posts on Porsche Forum[94] |
| 14 January 2017 | ‘Petez’ (PK) posts on Porsche Forum[95] |
| 15 January 2017 | ‘Petez’ (PK) posts on Porsche Forum[96] |
| 4 April 2017 | PK posts Google review under his real name (Annexure A)[97] (‘GR1’) |
| 19 October 2017 | PK removes 4 April 2017 Google review (Annexure A) and posts another Google review (Annexure B)[98] (‘GR2’) |
| 20 October 2017 | PK amends Annexure B Google review to replace it with Annexure C[99] (‘GR3’) |
| 21 December 2017 | ‘Petez’ (PK) publishes Herald Sun article on Porsche Forum[100] |
| March 2018 | PK comments on Autotalk publication under his real name[101] |
| Undated | PK posts a Google review under name ‘Steve Smith’[102] |
[90]CB2062, ‘Carsales Post dated 29 August 2016’.
[91]CB2058, ’Email from Google My Business to LLC dated 30 August 2016’.
[92]CB2059, ‘Peter King Google Review dated 1 September 2016’. For the avoidance of doubt, this post is not the subject of the present litigation.
[93]CB2658–9, ‘Law Answers Thread dated 17 December 2016’; Plaintiffs, ‘Statement of Claim filed 14 November 2017’, sch D.
[94]CB2110–2, ‘Porsche Forum dated 13 January 2017’.
[95]CB2110–8, ‘Porsche Forum dated 14 January 2017’.
[96]CB2119, ‘Porsche Forum dated 15 January’.
[97]Plaintiffs, ‘Statement of Claim filed 14 November 2017’, sch A.
[98]Plaintiffs, ‘Statement of Claim filed 14 November 2017’, sch B.
[99]Plaintiffs, ‘Statement of Claim filed 14 November 2017’, sch C.
[100]CB2120–4, ‘Porsche Forum dated 21 December 2017’.
[101]CB775, ‘Autotalk Article dated March 2018’.
[102]CB2273, ‘Transcription of ‘Steve Smith’ Google review’.
The plaintiffs’ claim for defamation is based on four of the 13 posts made by PK: three Google reviews posted on 4 April 2017, 19 October 2017 and 20 October 2017 and one Law Answers post dated 17 December 2016. The three Google reviews are in similar terms. The review of 4 April 2017 is set out below. The italicised text indicates variations between the review of 4 April 2017 and the other three publications upon which the plaintiffs sue.
In the end Srecko and David Lorbek sat like naughty schoolboys having being found out at the Melbourne Magistrates Court.[103] If you think of dealing with Lorbek turn and run away. They don't deserve any stars.
Lorbek Luxury Cars sold me an unroadworthy 2011 Porsche Panamera Turbo in July 2016. Through my own investigations initially they tried selling it to Porsche Brighton who rejected purchasing the car. A full report of that vehicle from the Porsche dealer shows major faults. It appears none of those faults were rectified prior to actually selling the Porsche. I foolishly believed lies about the car from the salesman. Also having very briefly driven the vehicle and that it passed a roadworthy certificate I had faith it was a safe and mechanically sound prestige vehicle.
Soon after delivery the car had some issues which I took to the local Porsche dealer, upon inspecting they told me it is unroadworthy. Brakes, tyres and suspension had to be replaced, this is when Lorbek Luxury Cars stopped being customer focused. Denying any liability and saying it was my treatment of the vehicle that caused these issues. I spent a lot of money to get the car back on the road. In all it has been in Porsche workshops for over a month since purchasing the vehicle.
The roadworthy certificate without a doubt was fraudulent from Europei Motori in South Melbourne and they have been the subject of an investigation from VIC Roads and are being censured for their conduct.[104] I hope for all the motoring public that they get made an example of and lose their roadworthy certification licence. Lorbek I understand have a close relationship with them and is where their Roadworthy Certificates are done for their car sales. Lorbek knew the Porsche was never roadworthy from the very detailed pre purchase report from the Melbourne Porsche dealer. The salesman David Lorbek lied to my face about several aspects of the vehicles condition. Lorbek's own website states that all there vehicles are inspected and tested, if so how can a defective vehicle be put up for sale let alone knowingly sold.
Lorbek Luxury Cars settled in a very long 3.5 hour pre trial hearing at the Melbourne Magistrate court on the 8 March. Srecko and David Lorbek sat looking like naughty schoolboys being found out. The weight of evidence subpoenaed told in the end. I am happy to finally recover the costs of repairing an unroadworthy car to get it roadworthy[105]
This was a very clear case of a company who acts dishonestly with intent to gain financial advantage. Lorbek's warranty department and management treated me with contempt at every stage when thing started unravelling for them. They threatened defamation and sent legal letters to what end. The truth is all I wanted was I paid for, a roadworthy car.
Lorbek deserve condemnation from the motoring public and industry. Certainly deserve no respect as business owners. The Motor vehicle licensing authority and police need to take a long hard look at this company and it's operations.
You have been warned, It's about time the lawmakers protect us from these dealers.
Peter[106]
[103]The italicised text is not included in the Law Answers post dated 17 December 2016, nor the Google reviews posted on 19 and 20 October 2017.
[104]The italicised text is not included in the Law Answers post dated 17 December 2016.
[105]The italicised text appears in an abridged form in the Google Review posted 19 October 2017, which omits reference to the pre-trial proceedings, SL and DL ‘looking like naughty schoolboys being found out’ and the subpoenaed evidence. The paragraph is absent in its entirety from the Google Review posted 20 October 2017. In lieu of this paragraph, the Law Answers post dated 17 December 2016 reads: ‘Now Lorbek are in the process of being sued for the costs of repairing an unroadworthy car to get it roadworthy.’
[106]Plaintiffs, ‘Statement of Claim filed 14 November 2017’, sch A (emphasis added).
The three Google reviews and the Law Answers post are Annexures A to D to this judgment.
PUBLICATION
It is common ground that PK posted the three Google reviews and the Law Answers post (‘the impugned publications’). Publication is an essential element of a cause of action in defamation. In order to prove publication, a plaintiff must establish that the defendant has caused defamatory material to be communicated to and comprehended by somebody other than the plaintiff, with resulting damage to the plaintiff’s reputation.[107]
[107]Dow Jones & Co Inc v Gutnik (2002) 210 CLR 575, 606–7 [44]; Sims v Jooste (No 2) [2016] WASCA 83, [8]–[9] (‘Sims v Jooste’).
It is necessary to distinguish between the publisher’s act of publication (publication in a colloquial sense) and the fact of publication to a third party. In cases of publication through traditional forms of mass media such as books, magazines, radio and television there is a presumption that the material complained of would have been seen by one or more readers, listeners or viewers whose identity cannot be ascertained with precision.[108] However, there is no equivalent presumption that material posted on the internet will have been downloaded and viewed by someone.[109]
[108]Sims v Jooste (n 107) [13].
[109]Ibid [10], [18]–[20]; Stoltenberg v Bolton (2020) 380 ALR 145, 158–9 [56] (‘Stoltenberg’); Dods v McDonald [2016] VSC 200, [9].
Where alleged defamatory material has been posted or uploaded to the internet, publication may be proved through direct evidence of a witness that they had seen the impugned material themselves. Absent direct evidence, publication may also be established through a ‘platform of facts’ from which an inference that the material has been downloaded and comprehended by at least one person can be ‘properly’ or ‘reasonably’ drawn.[110]
[110]Sims v Jooste (n 107) [18]–[20]; Stoltenberg (n 109) 151–2 [28], 152 [33], 158–9 [56]; MacDonald v Australian Broadcasting Corporation [2014] NSWSC 206, [28].
Although publication will not be inferred from the mere fact that material complained of has been posted on a website, an inference that the material has been downloaded by someone might be drawn from a combination of facts such as the number of ‘hits’ on the relevant website and the period of time over which the material was posted on the internet.[111] Screenshots or other evidence demonstrating that certain material has been the subject of ‘likes’ or otherwise responded to or interacted with may also support an inference of publication.[112]
[111]Sims v Jooste (n 107) [18]–[19].
[112]Stoltenberg (n 109) 152 [33], 168 [113]. See also the first instance judgment of Payne J in Bolton v Stoltenberg [2018] NSWSC 1518, [136]–[159].
The nature of the website or platform on which the impugned material is published should also be taken into account when considering whether an inference of publication should be drawn. For example, in Wilson v Matthys[113] Kenneth Martin J stated:
Each particular electronic publication situation needs to be carefully evaluated in order to reach a conclusion about electronic or internet publications of this character being read by someone, other than the plaintiffs.[114]
[113][2018] WASC 281.
[114]Ibid [109].
Similarly, in Sydney Cosmetic Specialist Clinic Pty Ltd v Hu,[115] Gibson DCJ stated:
While the Court may make presumptions from a ‘like’ or retweet, the mere fact that a website has readers, or a chat group has members, will not, without more, amount to evidence of downloading. The unique scrolling down nature of chat must be taken into account as well as the immediacy of social media.[116]
[115][2020] NSWDC 786.
[116]Ibid [59].
That the context in which defamatory material appears can affect the Court’s ability to draw an inference of publication is illustrated by the approach taken by McCallum J in Cronau v Nelson (No 2):[117]
It is plain from the pleading that the plaintiff does not know of any person who downloaded the material complained of within that period. In the case of each of the eight matters complained of, the particulars of publication expressly say as much and indicate that the plaintiff will rely rather on an inference that, having regard to the popularity of the ‘blocked by Pete Evans’ website, some person may have accessed the website and read the comments in question within that one year period.
As submitted by Ms Chrysanthou for the defendant, that appears highly unlikely. The very popularity of the website contributes to the unlikelihood of the inference contended for; in order to read any of the comments referred to, the reader would have to scroll down through many more recent posts to find the small number of small comments attributed to Ms Nelson concerning the plaintiff. The reader would also, it might be added, have to know that the ‘Christine’ referred to in Ms Nelson’s comments was the plaintiff. Some of the comments now sought to be sued on do not name any person at all.[118]
[117][2018] NSWSC 1905.
[118]Ibid [6]–[7].
Three of the four publications upon which the plaintiffs sue are Google reviews. It is necessary to set out the evidence as to how Google reviews operate. The plaintiffs called an expert witness, Mr Apostolos Velanas. His evidence addressed the way in which Google reviews operate.
If an Internet user searches for a business, corporate or otherwise, Google provides a package of information viewable on the computer screen or mobile phone including the website if any, directions to the business address and in particular Google reviews…
By activating (clicking) the link to the reviews a computer user can quickly sees [sic] these statements.
The statements have a set format in that the name of the reviewer can be seen, the age of the review (whether days, months or years). The review is in interactive form in that an Internet user might ‘like’ review [sic] or even reply to it. A significant feature of these reviews is that whatever the text might say whether, it be unclear, negative, positive or ambiguous reviews have a star rating manifest in large yellow stars at the top of the review. The maximum rating is five stars.
At any given time Google calculates the accumulated star ratings and gives an overall star rating to the person or entity being reviewed.
The rating system is simply an average of the starred reviews. Subjects of reviews can have a fraction of a star. For example LLC’s current rating is 4.8 stars.
There are no Rules, users can apply whichever star they like. There is just an assumption people will do the right thing. The technical effects is [sic] to the SEO ranking system because the lower the Star ranking the harder the business is to find on Google. Plus, businesses with lower stars are less likely to attract customers because people generally only buy online from high ranking businesses.
If a reader of Google reviews wishes to focus on the lowest ratings or worst reviews he or she can simply do so by clicking on the command ‘sort by’ and then choose ‘lowest rating’ and google will sort the reviews accordingly…
Google My Business refers generally a [sic] to a suite of google features that manifest to the internet user (phone or PC) by the provision of certain information when they conduct a search such as:
(a) identifying information (ranked);
(b) location (ranked)
(c) reviews;
(d) opening hours;
(e) links to web site;
(f) reviews.
To add the business information to Google Maps, Search, and other Google properties, a user needs to create a Business Profile on Google. Google My Business is a free service, to manage how the business information appears across Google, including Search and Maps.
Reviews on Google provide valuable information about the business to both the business and the customers. Business reviews appear next to the listing in Maps and Search and can help a business stand out on Google.
Google+ displays different reviews and displays these near Google search results, especially for businesses. Other sites which specialise in reviews, such as TripAdvisor and Yelp, will often show companies with good reviews near the top percentage of their search results as well.[119]
[119]Plaintiffs, ‘Expert Report of Apostolos Velanas filed 30 June 2020’, [8]–[13], [25]–[28] (citations omitted).
The plaintiffs plead publication of GR1 as follows:
On or about 4 April 2017, shortly after Magistrates’ Court proceedings were settled between the defendant and Lorbek Luxury Cars Pty Ltd, the defendant published on the website ‘Google Reviews’ an article of and concerning the first plaintiff and the second plaintiff, a copy of which is annexed hereto and marked ‘Schedule A’ (‘the first article’).
The first article was published on the internet worldwide website to an extensive audience of viewers and readers in the states of Victoria, New South Wales and elsewhere throughout the Commonwealth of Australia.[120]
[120]Plaintiffs, ‘Statement of Claim filed 14 November 2017’, [4]–[5].
The same form of pleading is used in relation to the publication of GR2, GR3 and the Law Answers post.[121]
[121]Ibid [8]–[9], [12]–[13], [16]–[17].
By his defence PK has put publication, in the legal sense, squarely in issue. At paragraph 5(a) PK pleads to paragraph 5 of the statement of claim as follows:
He objects to the allegations therein on the basis that they are rolled up and plead a legal conclusion without setting out or particularising the underlying facts, including the downloading and viewing of the particular version of the Google review by a third party or parties, and are thereby embarrassing.[122]
[122]Defendant, ‘Amended Defence filed 19 September 2018’, [5(a)]; A similar defence is pleaded at [9], [13] and [17] of the Amended Defence.
The particulars to paragraph 5(b) of the defence include:
This is not a media publication with a large circulation, such that no inference as to publication to a wide and extensive audience can sensibly be drawn, particularly when the alleged publication relates only to ‘the first article’ form of the review and no facts are alleged from which an inference can be drawn.[123]
[123]Ibid [5(b)].
In their reply the plaintiffs respond to paragraph 5 of the defence as follows:
Re 5 the plaintiffs assert as a matter of judicial notice and trite community understanding the internet is ubiquitous, international and widely used.
Further, the worldwide web is where Lorbek Luxury Cars gets most of its sales.
Re 5(b) evidence will be produced at trial of the audience for the internet and also for the phenomena of persons being able to view internet content without registering their viewing by ‘likes’.[124]
[124]Plaintiffs, ‘Amended Reply dated 9 October 2018’, [14]–[16].
The plaintiffs’ pleading of publication of the impugned publications is plainly deficient.[125] In order to establish publication it is not sufficient to simply allege, as the plaintiffs have, that defamatory material has been posted on the internet and has been accessible in the jurisdiction of the Court. Mr Catlin, who appeared for the plaintiffs, submitted that the Court could infer that each of the impugned publications had been accessed and read by third parties. Mr Catlin’s written submissions include the following:
[125]Mr Catlin, who appeared for the plaintiffs, did not draft the statement of claim.
The proof needed of internet publication is set out in Sims v Jooste [No 2] [2016] WASCA 83. In essence a plaintiff claiming to have been defamed by material posted on the internet must plead and prove facts which established [sic] that the material of which complaint was made had been downloaded and viewed by somebody, without necessarily having to provide particulars of the identity of the person or persons who downloaded the material. The cases also establish that an inference to the effect that the material of which complaint is made has been downloaded by somebody might be drawn from a combination of facts, such as the number of ‘hits’ on the site on which the allegedly defamatory material was posted and the period of time over which the material was posted on the internet…
The Plaintiffs rely on the following:
a. Hamman [sic] said the gateway to reviews, the LLC web site received 1500 hits a day;
b. The google review material was posted for in excess of three years;
c. Commentary on Kings [sic] posts can be seen on the Porsche Forum;
d. The Plaintiffs referred to members of the public talking about the matter;
e. Witnesses were aware of the matter;
f. Mr King said he had had responses to his car sales advertisement;
g. Davd [sic] Lorbek said people not only mentioned the google reviews to him:TT:143:1-5. Some reacted negatively: 143:10;
h. Srecko gave similar evidence of people reacting to having read the reviews: TT506:22-28.
i. In no affidavit or in oral evidence did Mr King assert by way of mitigation that he had taken down the reviews to mitigate loss and damage. He did eventually. When is not recorded. Given his sustained belief in his false assertions the court should not infer he did so until recently. When asked when he had taken them down he was repeatedly evasive:TT673:14 – 674.22. He finally said he took it down after the mediation. The mediation did not proceed: CB325(e);
j. Srecko said he had no choice but to issue proceedings to get the defamatory matter taken down because all else had failed: TT509:2-3;
k. He had tried to use professionals to remove them: TT511:5-12[126]
[126]Plaintiffs, ‘Closing Submissions filed 17 November 2021’, [210]–[211] (citations omitted).
Although the plaintiffs submit that the Court should infer publication, there is direct evidence that the Google reviews and the Law Answers post were accessed and read by a third party other than the plaintiffs themselves. LLC’s marketing manager Mr Hamann gave unchallenged evidence that he had read each of PK’s Google reviews.[127] Further, the Law Answers post dated 17 December 2016 contains a notation that it was edited by a moderator on 12 September 2017.[128] The statement ‘David Lorbek lied to the owner’s face about several aspects of the vehicles [sic] condition’ which appeared in the original post of 17 December 2016 was deleted on 12 September 2017. There is therefore direct evidence of publication of each of the impugned publications.
[127]Transcript of Proceedings, T 343 L 4 (15 October 2021).
[128]CB2659, ‘Law Answers Thread dated 17 December 2016’.
Notwithstanding the direct evidence of publication, there is utility in addressing the plaintiffs’ submission that publication should be inferred. The direct evidence of publication only supports a finding of very limited publication. A finding of more extensive publication is relevant to the assessment of damages if the plaintiffs establish that they have been defamed. Further, any finding regarding the identity of any third parties who accessed and comprehended the impugned publications may have a bearing on whether PK can establish the statutory defence of qualified privilege.
Before addressing the plaintiffs’ contention that there is a proper basis to infer publication, it is important to bear in mind the following matters. First, the plaintiffs did not lead any evidence from Google disclosing the number of people who had clicked on PK’s reviews. Mr Catlin submitted that Google does not provide information regarding the number of people who have read a review.[129] This submission is inconsistent with the evidence of Mr Velanas:
The Expert code of conduct dictates that I set out what further information would have informed my report but which was not available to me. There is analytical information most likely in google’s possession as to the number of people who would have read the google reviews. This would have informed me as to the audience of the relevant google reviews.[130]
[129]Transcript of Proceedings, T 948 L 15–22, T 948 L 31 – T 949 L 5 (18 November 2021).
[130]Plaintiffs, ‘Expert Report of Apostolos Velanas filed 30 June 2020’, [110].
Consistent with the evidence of Mr Velanas there are two judgments relating to Google reviews which make specific reference to the number of people who have read impugned publications. In Cheng v Lok[131] Bochner J stated:
Google My Business provides data on the number of people who have read a page. It has advised the plaintiff that during the month of April 2009, 887 read the page and in May 2019, 727 viewed the defendant’s post.[132]
[131][2020] SASC 14.
[132]Ibid [18].
In Dean v Puleio[133] Clayton J made a finding that a defamatory Google review had been viewed at least 1,300 times.[134]
[133][2021] VCC 848.
[134]Ibid [19].
The plaintiffs have failed to lead direct evidence regarding the number of people who read the impugned Google reviews. Further, there is no evidence that any of the three Google reviews on which the plaintiffs sue have been ‘liked’ by any third party or been subject to any comment by a third party. In this regard, Mr Velanas gave evidence that ‘Google reviews are social media to the extent that people can read them and comment on them’.[135] 747 Google reviews in respect of LLC were admitted into evidence.[136] Many of these reviews include comments in response from LLC. None of PK’s Google Reviews elicited a response. Further, none of the character witnesses called to give evidence on behalf of the plaintiffs gave evidence of having read any of the impugned Google reviews.
[135]Plaintiffs, ‘Expert Report of Apostolos Velanas filed 30 June 2020’, [16].
[136]CB1212–958, ‘Lorbek Luxury Cars Google Reviews’.
Most of the matters referred to in the plaintiffs’ written submission do not support an inference of publication of the impugned publications. The submission fails to address the question of whether there was material from which it could be inferred that the four publications on which the plaintiffs sue had been published. The submission draws no distinction between the four impugned publications and the ten publications on which the plaintiffs do not sue. For example, reliance is placed on the fact that ‘[c]ommentary on Kings [sic] posts can be seen on the Porsche Forum’.[137] PK’s Porsche Forum post was made in December 2017. It is not one of the publications on which the plaintiffs sue. The comments on the post do not relate to any of the impugned publications.
[137]Plaintiffs, ‘Closing Submissions filed 17 November 2021’, [211(c)].
The plaintiffs’ written submissions include the following: ‘[t]he Plaintiffs referred to members of the public talking about the matter’ and ‘[w]itnesses were aware of the matter’.[138] It is unclear what ‘the matter’ is a reference to. No evidence was given by the plaintiffs of exchanges with any third parties which supports a finding that third parties had read any of the impugned publications. The plaintiffs’ evidence did not address this issue. For example, DL gave the following evidence:
This 'lemon Porsche' comment, the comment on Google Review, 'lemon Porsche', has just gone (demonstrating) and then the Herald Sun, and then - it just, it keeps growing.[139]
None of the impugned publications contain the phrase ‘lemon Porsche’. The phrase does appear in PK’s post on Car Sales which was posted on 29 August 2016.[140]
[138]Ibid [211(d)–(e)].
[139]Transcript of Proceedings, T 143 L 20–24 (12 October 2021).
[140]CB2062, ‘Carsales Post dated 29 August 2016’.
DL gave evidence of reading emails from potential customers: ‘Oh just looking at your Google Reviews, we'll give it a miss. Sorry about the enquiry'.[141] I place no weight on this evidence. The emails referred to by DL were not tendered in evidence. It is unclear which Google reviews the evidence relates to. PK posted a Google review on 1 September 2016 which the plaintiffs do not sue on.[142] This review remained online for seven months before being replaced by GR1 on 4 April 2017. As the plaintiffs did not tender the emails referred to by DL, it is not possible to make a finding that customers were referring to the Google reviews on which the plaintiffs sue, as opposed to the review posted on 1 September 2016 on which they do not sue.
[141]Transcript of Proceedings, T 143 L 9–10 (12 October 2021).
[142]CB2059, ‘Peter King Google Review dated 1 September 2016’.
Any evidence from the plaintiffs that they were told by third parties that the third parties had read the impugned publications is inadmissible hearsay if led for the purpose of establishing that third parties had read the impugned publications. Although four witnesses gave character evidence on behalf of the plaintiffs, none of these witnesses gave evidence that they had read any of the impugned publications. I reject the plaintiffs’ submission that the evidence of SL and DL provides any proper foundation for drawing an inference that any third party had read the impugned publications.
The plaintiffs submit that publication of the Google reviews can be inferred from evidence regarding the number of visitors to LLC’s website. Mr Hamann gave evidence that LLC’s website normally has 1,500 visits per day.[143] Mr Hamann’s evidence did not relate to the number of Google searches for LLC which would bring up the LLC ‘Google My Business’ panel which incorporates Google reviews. Rather, his evidence was that the LLC website received 1,500 hits per day. While such hits might be the result of a Google search they could also be a consequence of an individual directly typing LLC’s web address into the address bar or navigating from other search engines or links to the site on other web pages. Mr Hamann’s evidence of 1,500 hits per day was in response to a question regarding an incident which occurred in 2020. Mr Hamann was not asked to give evidence about the number of hits on the website between 4 April 2017 (the date of the first impugned Google review, GR1) and 14 November 2017 when the writ was filed.
[143]Transcript of Proceedings, T 306 L 25 (14 October 2021).
The plaintiffs’ submissions contend that the LLC website is the ‘gateway’ to the Google reviews posted by PK. To the extent that this submission suggests that the Google reviews were actually on LLC’s website it is not correct. The evidence of Mr Velanas is that a link to the Google reviews for LLC was accessible when an individual conducts a Google search for LLC which brings up LLC’s ‘Google My Business’ page in the side bar to the search result.
The extract from LLC’s Google My Business page in Mr Velanas’ report states that LLC had a 4.7 star rating with 707 reviews. No extract from any reviews appear in the side bar. In order to read and comprehend PK’s posts it would have been necessary for an individual to have scrolled through the reviews. This could include by clicking on the command ‘sort by’ and then choosing the lowest rating. This would have taken a reader to one star reviews, which include PK’s reviews.
There are significant deficiencies in the material which the plaintiffs rely upon for the drawing of an inference of publication of the impugned posts. Foremost amongst these is their failure to lead direct evidence from Google regarding the number of people who clicked on PK’s reviews. Nevertheless, I am satisfied that there is a sufficient evidentiary foundation to infer that:
(i) During the period 4 April 2017 to 14 November 2017 approximately 1,500 people per day would have visited the LLC website;
(ii) A proportion of those who visited the LLC website would have taken the initial step of entering ‘LLC’ into the Google search engine;
(iii) A proportion of those who entered ‘LLC’ into the Google search engine would have clicked on the Google review for LLC on its Google My Business page; and
(iv) A proportion of those who looked at the Google reviews would have sorted the reviews from lowest to highest and would have read PK’s one star reviews which were posted on 4 April 2017 and 20 October 2017. I do not make any such finding regarding the Google review posted on 19 October 2017. As the review was only posted for 24 hours there is not a proper basis for inferring that a third party, other than the plaintiffs would have read the review.[144] However, based on the evidence of Mr Hamann the 20 October 2017 review was read by him and thus published.
[144]Cf Sands v Channel Seven Adelaide Pty Ltd [2009] SASC 215, [390]–[391].
It is not possible to make any finding as to the actual number of people who have accessed and read PK’s reviews of 4 April 2017 and 20 October 2017. There is no evidence of the reviews having elicited a ‘like’ or a comment. The absence of such evidence supports a finding that only a small number of people read the reviews. I infer that a small number of people accessed and read the posts. However, beyond this finding there is no platform of facts on which an inference can be drawn as to the extent of the publication. I infer that those who read the posts were customers or potential customers of LLC who had an interest in reading the reviews of people such as PK who had been dissatisfied with their experience of purchasing a vehicle from LLC.
Mr Velanas describes Law Answers as an online forum.[145] Save for this description, the only further evidence given by Mr Velanas regarding Law Answers is as follows:
These sites can be easily referred to as electronic word-of-mouth or eWOM. Google reviews has been the subject of some research and naturally fits into that character category in my opinion. The forums lawanswers and porscheforums also in my opinion fit into that category by reason of the serious nature of the subject matter of those sites namely as a repository for answers, respectively, on important legal questions and Porsche cars. In this report I have focussed on Google Reviews because the lawanswers and porscheforums posts are more conventional internet communications.[146]
[145]Plaintiffs, ‘Expert Report of Apostolos Velanas filed 30 June 2020’, [1(b)].
[146]Ibid 3[H(vi)].
Save for this evidence of Mr Velanas there was no direct evidence regarding the operation of Law Answers, its audience and the prominence of the impugned post in Google searches relating to the plaintiffs and/or LLC. There was some evidence given by Ms Joanne Painter during her examination in chief:
Could we bring up the Law Answers? Yes, please. Is this the online website that you were seeking help from?-–– LawAnswers.com, yes.
Can we go down to your review? Were you ‘Joanne142’, was that you?-–– Ah, yes, that’s me, yes.
So you wrote this article for what reason on Law Answers?-–– To get help, to get some sort of help, knowledge of where we could get help, what we could do, um, because of the continuous faults on the car.[147]
[147]Transcript of Proceedings, T 580 L 5–13 (19 October 2021).
Ms Painter gave evidence which suggests that she received email updates when new posts were made on her thread.[148] However, she was not asked whether she had in fact seen or read PK’s posts which appear on the thread she initiated.
[148]Ibid T 590 L 23–24 (19 October 2021).
The header of the Law Answers webpage includes the following:
Australia’s #1 for Law
Join 150,000 Australians every month. Ask a question, respond to a question and better understand the law today.[149]
[149]CB2650, ‘Law Answers Thread dated 8 October 2015’.
The Law Answers forum thread in which PK’s impugned post appears is titled ‘Purchased Lemon Car at Lorbek Luxury Cars – What to Do?’.[150] It was started by Ms Painter on 8 October 2015.[151] Ms Painter’s user information for her account which commences her two posts within the thread records that she had posted two messages and received three likes. Her post received a response from another user on 8 October 2015. There is then another response on 7 June 2016 from another user who records their experience with LLC. Ms Painter responded to that post on 28 August 2016. The next response is from another user on 10 September 2016 who states they are ‘also a victim of buying a car from Lorbek Luxury Cars’. The next post is PK’s post which was posted on 17 December 2016. PK’s profile for his account ‘Petez’ records that he joined the forum on 26 August 2016, had posted one message and received zero likes. His post also states that it was ‘last edited by a moderator: 12 September 2017’. Following PK’s posts, there are two further posts, the first on 19 March 2018 and the second posted ‘[y]esterday’. Although this second post is undated it was posted sometime after 19 March 2018. Neither of these subsequent posts respond directly to PK’s post. The first, by ‘Ivan Stojenavic’, makes a generalised comment of:
I have been told that most of Lorbeks [sic] cars are under consignment from other clients who park their cars there and Lorbek sell them. I believe this is also illegal. Someone needs to contact the L.M.C.T. and report him if this is true.[152]
[150]Ibid.
[151]Ibid.
[152]CB2660, ‘Law Answers Thread dated 19 March 2018’.
The second, by ‘Jarrad C’, directly responds to Ms Painter’s posts and does not respond to any of the matters stated in PK’s post. Other than this evidence, there is no evidence recording the number of views of Ms Painter’s thread, which included PK’s post.
I infer from the note which records that PK’s post was edited by a moderator that the moderator read and comprehended the post on or about 12 September 2017. I infer that Ivan Stojenavic read PK’s post as he made a specific reference to LLC, albeit not addressing PK’s particular complaint. I do not infer that Jarrad C read PK’s post as the contents of his post respond specifically to Joanne Painter’s complaints about the car which she purchased from LLC. Although Mr Stojenavic read PK’s post he did not do so until March 2018, four months after the writ was filed. The statement of claim does not plead reliance upon publications occurring after the filing of the writ. I therefore have no regard to any publication of PK’s post arising from Mr Stojenavic having read and comprehended the post. Save for the finding that PK’s post was published when it was read by the Law Answers moderator on or about 12 September 2017, there is no proper platform of evidence from which an inference can be drawn that anybody else read PK’s post.
The plaintiffs have established that GR1, GR2 and GR3 were published to Harry Hamann. They have also established that GR1 and GR3 were published to a small number of customers and potential customers of LLC who read the posts via LLC’s Google My Business page. The plaintiffs have established that the Law Answers post was published to the moderator who amended the post on 12 September 2017. However save for this limited publication I do not infer that the post was read by anybody else.
IDENTIFICATION
The plaintiffs bear the onus of proving that the published statements were made ‘of and concerning’ the plaintiffs.[153] The test for whether a plaintiff is identified by words that do not specifically name a plaintiff is as follows:
Are they such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that the plaintiff was the person referred to?[154]
[153]Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348, 371.
[154]David Syme & Co v Canavan (1918) 25 CLR 234, 238.
PK accepts that DL is named and therefore identified in each of the four impugned publications. PK accepts that SL is named in GR1 and the Law Answers post. However, he submits that SL is neither named nor identified in GR2 and GR3.[155] PK submits that as a result SL’s claim fails in respect of GR2 and GR3. I reject this submission. SL is the owner and chief executive officer of LLC.[156] GR2 and GR3 were published to Mr Hamann. Each of these reviews contain the statement: ‘Certainly deserve no respect as business owners’. Mr Hamann knew that SL was the owner of LLC and would therefore have identified him as the business owner in respect of whom the statement in GR2 and GR3 was made.
[155]Defendant, ‘Closing Submissions filed 17 November 2021’, 18 [75] n 36–7, 19 [79]–[81].
[156]Cf Channel Seven Sydney Pty Ltd v Parras & Ors [2002] NSWCA 202, [45].
The same cannot be said of third parties who read GR2 and GR3. SL is not mentioned in GR2 or GR3. Unless a potential customer of LLC knew that SL was the owner of the business, there would be no basis upon which a third party would understand the imputations in GR2 and GR3 as referring to SL. GR2 was only posted for one day. I do not infer that anybody other than Harry Hamann read GR2 and identified SL as LLC’s business owner. I infer that a small proportion of the individuals who read GR3 via LLC’s Google My Business page would have known that SL is the owner of LLC and would therefore have identified him as the business owner referred to in GR3.
IMPUTATIONS
The plaintiffs plead that each impugned publication was defamatory of SL and in its natural and ordinary meaning meant and was understood to mean that SL:
(1) Was fraudulent who [sic] had knowingly sold a vehicle with a fraudulent RWC (‘fraud imputation’);
(2) Had engaged in criminal behaviour (‘criminal imputation’);
(3) Deserved no respect as a business owner (‘no respect imputation’);
(4) Is and was a dishonest car dealer (‘dishonest imputation’);
(5) Is untrustworthy (‘untrustworthy imputation’).
The statement of claim also pleads the fraud, criminal, dishonest and untrustworthy imputations in respect of DL. In addition, the statement of claim pleads that each publication in its natural and ordinary meaning meant and was understood to mean that DL is and was a liar (‘liar imputation’).
During final submissions Mr Mullen, who by that time appeared for PK, did not gainsay the proposition that GR1 conveys the pleaded no respect, dishonest and untrustworthy imputations in respect of SL. Mr Mullen also accepted that the impugned publications convey the dishonest and untrustworthy imputations in respect of DL as well as the imputation that he is and was a liar.
The dispute between the parties regarding GR1 is whether it conveys the fraud and criminal imputations in respect of SL and/or DL.
In Trkulja v Google LLC[157] the High Court set out the test for whether a published matter is capable of being defamatory:
The test for whether a published matter is capable of being defamatory is what ordinary reasonable people would understand by the matter complained of. In making that assessment, it is necessary to bear in mind that ordinary men and women have different temperaments and outlooks, degrees of education and life experience. As Lord Reid observed in Lewis v Daily Telegraph Ltd, ‘[s]ome are unusually suspicious and some are unusually naïve’. So also are some unusually well educated and sophisticated while others are deprived of the benefits of those advantages. The exercise is, therefore, one of attempting to envisage a mean or midpoint of temperaments and abilities and on that basis to decide the most damaging meaning that ordinary reasonable people at the midpoint could put on the impugned words or images considering the publication as a whole.
As the Court of Appeal of England and Wales observed in Berezovsky v Forbes Inc, that exercise is one in generosity not parsimony. The question is not what the allegedly defamatory words or images in fact say or depict but what a jury could reasonably think they convey to the ordinary reasonable person; and it is often a matter of first impression. The ordinary reasonable person is not a lawyer who examines the impugned publication over-zealously but someone who views the publication casually and is prone to a degree of loose thinking. He or she may be taken to ‘read between the lines in the light of his general knowledge and experience of worldly affairs’, but such a person also draws implications much more freely than a lawyer, especially derogatory implications, and takes into account emphasis given by conspicuous headlines or captions. Hence, as Kirby J observed in Chakravarti v Advertiser Newspapers Ltd, ‘[w]here words have been used which are imprecise, ambiguous or loose, a very wide latitude will be ascribed to the ordinary person to draw imputations adverse to the subject’.[158]
The plaintiffs have failed to establish that the impugned publications were actuated by malice. PK’s defence of qualified privilege is not defeated by reason of the impugned publications having been actuated by malice.
FAIR COMMENT / HONEST OPINION
In addition to the defence of qualified privilege, PK invokes the common law defence of fair comment and the statutory defence of honest opinion.
Each of the impugned Google reviews contains the statement:
Lorbek knew the Porsche was never roadworthy from the very detailed pre-purchase report from the Melbourne Porsche dealer.
The Law Answers post contains the same statement, save that the word ‘it’ appears in lieu of ‘the Porsche’.
It is common ground that the statement is untrue. The ‘pre-purchase report’ did disclose that the vehicle was unroadworthy. However, the report was an internal PCB document prepared for the purposes of determining the cost of bringing the vehicle up to ‘Porsche approved’ standard.[249] It is common ground that the report was never provided to LLC. The statement is a key element of each of the impugned publications. It is a statement of fact which precedes the statements of opinion:
·The salesman David Lorbek lied to my face about several aspects of the vehicles [sic] condition;
·This was a very clear case of a company who acts dishonestly with intent to gain financial advantage;
·Lorbek deserve condemnation from the motoring public and industry. Certainly deserve no respect as business owners.
[249]Transcript of Proceedings, T 415 L 18–23, T 417 L 5–6 (15 October 2021).
For the defence of fair comment to succeed the facts on which a comment or opinion is based must appear in the publication or otherwise be apparent to the reader.[250] Save for facts which are notorious it is not permissible to have regard to facts which are not referred to in the publication. If the facts in the publication are not true or the facts are not published on a privileged occasion, the defence fails.[251] The statement that ‘Lorbek knew the Porsche was unroadworthy from the very detailed pre-purchase inspection report from the Melbourne Porsche dealer’ is untrue. Further, the facts (the pre-purchase inspection report) were not published on a privileged occasion. The common law defence of fair comment fails.
[250]Herald & Weekly Times Pty Ltd v Buckley (2009) 21 VR 661, 680–1 [83]–[85] (‘Buckley’); Harbour Radio Pty Ltd v Ahmed (2015) 90 NSWLR 695, 704 [41]–[42]; Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245, 272 [49]; Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510, 553.
[251]Herald & Weekly Times v Popovic (2003) 9 VR 1, 56 [268] (‘Popovic’); Cleary v Hore-Lacy (No 2) (2009) 21 VR 692, 708–9 [58].
PK also relies upon the statutory defence of honest opinion under s 31 of the Act. Section 31(1) provides:
(1) It is a defence to the publication of defamatory matter if the defendant proves that—
(a) the matter was an expression of opinion of the defendant rather than a statement of fact; and
(b) the opinion related to a matter of public interest; and
(c) the opinion is based on proper material.
Sections 31(5) and (6) provide:
(5) For the purposes of this section, an opinion is based on proper material if it is based on material that—
(a) is substantially true; or
(b) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law); or
(c) was published on an occasion that attracted the protection of a defence under this section or section 28 or 29.
(6) An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material.
There is no difference between the common law defence of fair comment and the statutory defence of honest opinion regarding the necessity for the facts on which the opinion is based to appear in the publication or otherwise be apparent to a reader.[252]
[252]Buckley (n 250) 680–1 [84]; Hanks v Johnston [2015] VSC 570, [27], [32].
In order for the defence of honest opinion to be made out PK must establish that the opinion in the impugned publication is based on proper material. To do this he must establish that ‘the material’ is substantially true. The statement that LLC knew the Porsche was never roadworthy from the very detailed pre-purchase report from the Melbourne Porsche dealer, is not substantially true. Rather, it is untrue. Section 31(6) is not engaged. LLC’s knowledge of the vehicle being unroadworthy by reason of the PCB pre-purchase report is a key foundation of the opinion expressed in the impugned publications. The opinion expressed in the impugned articles could not be reasonably based upon other material in the impugned publications which is substantially true. The statement ‘Lorbek sold me an unroadworthy 2011 Porsche Panamera turbo in July 2016’, appears in each impugned publication. The statement is factually correct. However, it does not provide a reasonable basis for the opinions expressed in the publications. The primary basis for those opinions is the incorrect statement that Lorbek knew that the Porsche was unroadworthy because it had a very detailed pre-purchase inspection report from the Melbourne Porsche dealer.
Mr Mullen accepted that if I concluded that LLC’s knowledge of the pre-purchase report was a ‘fundamental fact’ PK’s honest opinion defence would fail.[253] I have concluded that LLC’s knowledge of the pre-purchase inspection report was a fundamental fact. The defence of honest opinion fails.
[253]Transcript of Proceedings, T 910 L 29 – T 911 L 11 (18 November 2021).
JUSTIFICATION
PK pleads the defence of justification under s 25 of the Act. Section 25 provides:
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.
The phrase ‘substantially true’ is defined in s 4 of the Act as ‘true in substance or not materially different from the truth’. PK bears the onus of establishing that the defamatory imputations conveyed by the impugned publications are substantially true. In determining whether PK has discharged this onus I have taken into account the very serious nature of the imputations conveyed by the publications.[254] I have found that the fraud imputation and the criminal imputation are not conveyed by the impugned publications. Nevertheless, the imputations which are conveyed by the publications are very serious and reflect most adversely upon both plaintiffs.
[254]Evidence Act 2008 (Vic) ss 140(1)–(2); Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, 449–50; West v Nationwide News Pty Ltd [2003] NSWSC 505, [47]–[48].
Is the imputation that SL deserved no respect as a business owner substantially true?
PK has failed to discharge the onus of establishing that this imputation is substantially true. SL has built a very substantial business since the mid-1980s. In doing so he did not have the advantage of family wealth. He is a self-made man. The unchallenged evidence is that he allows LLC’s showroom to be used for raising significant funds for charities such as Race Against Dementia and for breast cancer research. He regularly allows LLC’s facilities to be used by car clubs with which he is affiliated. He is a committee member of the Victoria Automobile Chamber of Commerce. These are matters which support a positive finding that SL does deserve respect as a business owner.
As against the matters set out above, SL’s company, LLC, sold PK an unroadworthy vehicle and warranty insurance which he did not need to purchase. Europei, who were engaged by LLC to provide a RWC, certified PK’s vehicle as roadworthy when it was not. These are matters which do not reflect favourably on LLC or SL as its owner.
The evidence does not support a finding that either SL or DL had knowledge that the vehicle was unroadworthy prior to it being sold to PK on 13 July 2016. However, an employee within LLC’s sales team was told by Jake Parsons from PCB on 4 July 2016 that the vehicle was unroadworthy by reason of the front rotors being undersized.
On 4 July 2016 the Porsche was sent to PCB for an annual service. The job card prepared by PCB’s technician records the front rotors as under the prescribed minimum. The job card also lists the work recommended by the technician, the part number, its price, and whether the part was available locally or would have to be shipped from Germany.[255]
[255]CB1963, ‘Porsche Centre Brighton Repair Order Work Card dated 4 July 2016’; Transcript of Proceedings, T 596 L 20–23 (19 October 2021).
Mr Parsons had no specific recollection of any discussion with any employee of LLC on 4 July 2016. However, his ‘strict practice’ in 2016 was that having received the technician’s report he would have contacted LLC and told an employee of the outcome of the service,[256] including the recommended items and the fact that the front rotors were under the minimum RWC requirement. He would not have gone to the trouble of getting the technician to report on the condition of the vehicle and not pass on that information to LLC, particularly the fact that the car was unroadworthy.[257] Mr Parsons would have sought authority from LLC to proceed to undertake the work recommended by PCB’s technician.[258]
[256]Transcript of Proceedings, T 622 L 14–16 (19 October 2021).
[257]Ibid T 599 L 20–28 (19 October 2021).
[258]Ibid T 622 L 14–16 (19 October 2021).
It was in PCB’s interests to generate revenue by passing on to a customer the details of recommended work in the hope that the customer would approve the work.[259] The value of the work which PCB’s technician recommended was $7,087, comprising $3,100 for a major service and $3,987 for the repair of the front and rear brakes.[260]
[259]Ibid T 600 L 27–30 (19 October 2021).
[260]CB1963, ‘Porsche Centre Brighton Repair Order Work Card dated 4 July 2016’; Transcript of Proceedings, T 616 L 1–2 (19 October 2021).
Mr Parsons usually spoke to Jeff Devers when PCB was servicing a vehicle for LLC.[261] Mr Devers denies that he had any discussion with Mr Parsons on 4 July 2016 or any time thereafter regarding the condition of the Porsche.[262] He denied that the presence of his email address on the 4 July 2016 invoice indicated that Mr Parsons would have spoken to him about the Porsche. His email address and that of LLC’s chief financial officer appeared on all PCB invoices by reason of PCB’s company profile for LLC which included his contact details.[263] Mr Devers believes that Mr Parsons would most likely have spoken to a member of LLC’s after sales team or it sales support team.[264] I accept this evidence. Mr Parsons did tell an employee of LLC on 4 July 2016 that the vehicle was unroadworthy. This information, however, was not passed on to either SL or DL. Nevertheless, the fact that an employee of LLC was told that the vehicle was unroadworthy with this information not being passed on to SL or DL reflects poorly on the business practices of LLC. This in turn reflects poorly on SL as the owner of the business. However, it does not support a finding that the imputation that SL deserves no respect as a business owner, is substantially true.
[261]Transcript of Proceedings, T 602 L 27–29 (19 October 2021).
[262]Ibid T 821 L 10–12 (5 November 2021).
[263]Ibid T 817 L 20–24 (5 November 2021).
[264]Ibid T 823 L 13–14 (5 November 2021).
Is the imputation that SL is and was a dishonest car dealer substantially true?
PK has failed to discharge the onus of establishing that this imputation is substantially true. The formulation of the imputation, ‘is and was a dishonest car dealer’, means that in order to establish that the imputation is substantially true PK must establish that SL was dishonest not only in his dealings with PK, but with other customers of LLC as well.
In order to establish that the dishonest car dealer imputation is substantially true, PK must establish that every material part of the imputation is true.[265] A material part of the dishonest car dealer imputation is that SL is a dishonest car dealer generally, not just in his dealings with PK. The sting of the imputation is that as a car dealer he is generally dishonest.
[265]O’Brien v Australian Broadcasting Corporation (2017) 97 NSWLR 1, 36 [172] (‘O’Brien’); Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232, 263–4 [138] (‘Mahommed’).
PK has failed to establish that SL was dishonest in respect of the sale of the Porsche. The evidence does not support a finding that SL knew the vehicle was unroadworthy when it was sold to PK on 13 July 2016. Nor does the evidence support a finding that SL requested Europei to provide a false RWC for the Porsche. This conclusion is a sufficient basis to reject a defence of substantial truth in respect of the dishonesty imputation.
Putting to one side SL’s conduct in respect of the sale of the Porsche, there is no basis for concluding that SL ‘is and was’ a dishonest car dealer. LLC sells approximately 1,200 cars per annum. There is no evidence of any dishonest dealings by SL in respect of the thousands of vehicles sold by LLC in the years prior to or after July 2016. Of the hundreds of Google reviews in evidence relating to LLC the overwhelming majority of these reviews are very favourable.
Joanne Painter, who initiated the Law Answers thread on which PK posted on 17 December 2016, had an adverse experience purchasing a second-hand Mercedes from LLC. The car was ten years old when it was purchased in December 2014 for $40,000.[266] Ms Painter brought proceedings in VCAT seeking to recover $18,000 which she had spent on repairs.[267] VCAT ordered LLC to pay Ms Painter $1,230 being the cost of repairs for faulty shock absorbers.[268] VCAT considered that the other faults with the vehicle were due to wear and tear. Ms Painter gave evidence that during the VCAT hearing LLC’s salesman, ‘Leon’ admitted that he knew that there was a fault with the vehicle’s suspension when the car was sold.[269]
[266]CB2664, ‘Letter from Joanne Painter to Luke Donellan dated 16 May 2018’.
[267]CB770, ‘Letter from AMK Law to Srecko Lorbek dated 26 April 2018’; CB3011, ‘Letter from AMK Law to Srecko Lorbek n.d.’; Transcript of Proceedings, T 583 L 4–7, T 589 L 7–31 (19 October 2021).
[268]Transcript of Proceedings, T 581 L 11–16 (19 October 2021).
[269]Ibid T 585 L 12–23 (19 October 2021).
In Ms Painter’s witness outline, which she accepted as being true and correct,[270] she states: ‘I consider Srecko Lorbek to be a rude, arrogant and dishonest man.’[271] Ms Painter gave evidence that she believed that SL was dishonest because LLC had sold her a car despite the salesman knowing that there was something wrong with the shock absorbers.[272]
[270]Ibid T 582 L 6–16 (19 October 2021).
[271]CB2853, ‘Witness Outline of Joanne Painter dated 30 April 2021’.
[272]Transcript of Proceedings, T 586 L 28 – T 587 L 21 (19 October 2021).
Ms Painter makes no allegation of dishonesty directly against SL. The evidence of Ms Painter does not support a finding that SL is and was a dishonest car dealer. The sting of the dishonest car dealer imputation is extremely serious. The onus of proving that the imputation is substantially true must reflect the seriousness of the imputation. The evidence falls well short of PK having discharged this onus.
Is the imputation that SL is untrustworthy as a car dealer substantially true?
The sting of this imputation is not as serious as the dishonest car dealer imputation. A car dealer may be untrustworthy by reason of being indifferent or complacent to the needs of a customer. Such indifference or complacency would not necessarily involve dishonest conduct. Nevertheless, the sting of the imputation is not limited to SL’s dealings with PK. Rather, the sting of the imputation is that SL is generally an untrustworthy car dealer in respect of any customer of LLC. PK has failed to establish that SL is an untrustworthy car dealer. The overwhelming majority of the 774 Google reviews in evidence in respect of LLC are very favourable and record positive experiences of customers of LLC. This evidence does not support a finding that the untrustworthy car dealer imputation is substantially true.
Is the imputation that DL is and was a liar substantially true?
I have concluded that DL told PK on 13 July 2016 that the (original) tyres, brakes and suspension on the vehicle were in good condition. The true position is that the car was unroadworthy by reason of the condition of the brakes and suspension. The sting of the liar imputation is not that DL gave PK false information regarding the condition of the vehicle. The sting of the imputation is that DL gave PK false information in circumstances where he knew that the vehicle was unroadworthy. The sting of the imputation arises from the sentence in the impugned publications which precedes the allegation that DL lied to PK: ‘Lorbek knew that the Porsche was never roadworthy from the very detailed pre-purchase report from the Melbourne Porsche dealer. The salesman David Lorbek lied to my face about several aspect of the vehicles [sic] condition.’
An ordinary reasonable person would read this statement as being an allegation that DL knew that the vehicle was unroadworthy when he sold it to PK. The words ‘the salesman lied to my face’ emphasise the brazen nature of DL’s conduct, advising PK of something he knew to be false.
The defence of substantial truth is concerned with meeting the sting of the defamatory imputation.[273] When giving evidence DL accepted that he did not have any reasonable basis for making any representations to PK, or any statement to him about the condition of the vehicle, because he had only undertaken a visual inspection of the vehicle.[274] If the sting of the liar imputation was that DL lied by reason of being recklessly indifferent as to the truth of what he told PK, the substantial truth defence may have been made out. However, the onus upon PK is to meet the sting of the imputation. He has not done so. He has failed to establish that DL knew that the vehicle was unroadworthy when he sold it to PK.
[273]O’Brien (n 265) 36 [172]; Mahommed (n 265) 263–4 [138]; Popovic (n 251) 57 [274].
[274]Transcript of Proceedings, T 222 L 18–22, T 220 L 29 – T 221 L 11 (14 October 2021).
Is the imputation that DL is and was a dishonest car salesman substantially true?
The sting of this imputation is that DL was not merely dishonest when dealing with PK, but is by nature a dishonest car salesman. If it had been established that DL had lied to PK about the condition of the vehicle knowing it to be unroadworthy, this finding could be indicative of DL’s character being that of a dishonest car salesman.[275] DL told PK the original brakes, suspension and tyres were in good condition in circumstances where he did not have any reasonable basis for making any representation to PK regarding the condition of the Porsche. This finding reflects adversely upon DL. However, it is not indicative of DL’s character being that of a dishonest car salesman. Further, there is no evidence to support a finding that DL has been dishonest in his dealings with any other customers of LLC. PK has failed to establish that the imputation that DL is and was a dishonest car salesman is substantially true.
[275]Cf Habib v Nationwide News Pty Ltd (2010) 76 NSWLR 299, 375 [328].
Is the imputation that DL is an untrustworthy car salesman substantially true?
DL made representations to PK about the condition of the Porsche when he knew nothing about the mechanical condition of the vehicle. DL’s willingness to express a positive opinion about the mechanical condition of the vehicle in circumstances where he knew nothing about its mechanical condition supports a finding that as a car salesman he is untrustworthy. Further, DL sold PK warranty insurance which he did not need because the vehicle was subject to an existing factory warranty. DL had no basis for knowing whether or not PK needed the warranty because he had not made any enquiries of Porsche Australia as to whether the vehicle was covered by an existing factory warranty. When PK subsequently took his vehicle to Gulson it was readily ascertainable that the vehicle was subject to a factory warranty. DL’s willingness to sell PK warranty insurance without first checking whether the vehicle was subject to an existing factory warranty also supports a finding that as a car salesman he is untrustworthy.
PK has discharged the onus of establishing that one of the three imputations conveyed by the impugned publications in respect of DL was substantially true. However, DL does not have a defence pursuant to s 25 of the Act in respect of the untrustworthy car salesman imputation. The defence of justification under s 25 operates on an all or nothing basis. All of the defamatory imputations conveyed by an impugned publication must be proved to be substantially true.[276] PK has failed to establish the substantial truth of the liar and dishonest car salesman imputations. As PK has failed to prove the substantial truth of two of the three imputations conveyed in respect of DL, s 25 does not provide PK with a defence.
[276]Fairfax Digital Australia & New Zealand Pty Ltd v Kazal (2018) 97 NSWLR 547, 566–7 [96]; Hutley v Cosco (2021) 104 NSWLR 421, 445–6 [124] (‘Hutley’).
CONTEXTUAL TRUTH
Section 26 of the Act provides as follows:
It is a defence to the publication of defamatory matter if the defendant proves that—
(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true; and
(b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.
PK’s amended defence pleads two contextual imputations:
(a) there are reasonable grounds for the Motor Vehicle Licencing Authority and/or the Police to investigate the conduct and operations of the company operated by the plaintiffs, in that Lorbek Luxury Cars sold the defendant a car, which a reputable Porsche dealership had told them had major faults and was unroadworthy, without rectifying any of those faults prior to sale (the First Contextual Imputation); and/or
(b) the plaintiffs have shown a complete disregard for their customers, in that rather than promptly and appropriately dealing with customer issues and complaints with the vehicles they purchased, they instead treated disgruntled customers terribly, by refusing to resolve their issues and instead threatening them for defamation (the Second Contextual Imputation).[277]
[277]Defendant, ‘Amended Defence filed 19 September 2018’, [33(a)–(b)].
In order for the defence under s 26 to succeed PK must establish that the contextual imputations are substantially true (s 26(a)) and that the plaintiffs’ defamatory imputations ‘do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations’ (s 26(b)). The defence will fail if the plaintiffs’ imputations would still have some effect on their reputation notwithstanding the effect of the substantial truth of the defendant’s contextual imputations.[278]
[278]O’Brien (n 265) 41 [201].
For the defence to succeed the defendant must plead and prove the substantial truth of contextual implications which are more serious than the plaintiffs’ imputations.[279] The ‘sting’ in the pleaded imputations of contextual truth must exceed the ‘sting’ of the imputations pleaded by the plaintiffs.[280] In undertaking the exercise of weighing the plaintiffs’ pleaded imputations against the defendant’s contextual imputations it is necessary to exclude any of the plaintiffs’ imputations which have been shown to be substantially true.[281] It follows that in undertaking the weighing exercise between the plaintiffs’ pleaded imputations and the defendant’s pleaded contextual imputations, it is necessary to exclude the imputation that DL is an untrustworthy car salesman, which has been proven to be substantially true.
[279]Ibid 41 [202].
[280]Palmer v McGowan [2021] FCA 430, [27]–[30].
[281]Hutley (n 276) 447 [130], 450 [142], 451 [146].
PK has not established that the contextual imputations are substantially true. The first imputation is that there are reasonable grounds for the Motor Vehicle Licencing Authority and/or the police to investigate the conduct and operations of the company operated by the plaintiffs. First, LLC is not ‘operated’ by DL. SL is the owner and sole director of LLC. DL is an employee of the company. Second, PK has failed to establish that there are reasonable grounds for the police to investigate the conduct and operations of LLC arising out of the sale of the Porsche. His failure to do so arises from his failure to establish that either SL or DL knew that the vehicle was unroadworthy at the time it was sold to him.
PK has failed to establish that the second contextual imputation is substantially true. First, there is no evidence that DL has ever threatened any customer of LLC with defamation. Second, there is no basis for concluding that the plaintiffs ‘treated disgruntled customers terribly, by refusing to resolve their issues and instead threatening them for defamation’.
Proceedings were brought against Ms Painter and the publisher of Law Answers in the County Court of Victoria.[282] The claim did not allege defamation. Rather, it was a claim for injurious falsehood as well as claims under the Australian Consumer Law. The proceedings were settled. Under the terms of settlement Ms Painter agreed to provide LLC with a signed letter of apology, which LLC was authorised to distribute online.[283] In light of Ms Painter’s agreement to provide a written apology to SL there is no basis for concluding that SL behaved terribly by threatening and bringing defamation proceedings against Ms Painter. Significant aspects of the second contextual imputation are not substantially true and therefore cannot sustain a defence under s 26.
[282]CB2636–49, ‘Writ Filed by Lorbek Luxury Cars dated 13 April 2018’.
[283]CB2881, ‘Deed of Settlement and Release dated 2 July 2018’; CB2890, ‘Letter from Joanne Painter to Srecko Lorbek dated 2 July 2018’.
Even if I had concluded that the contextual imputations are substantially true, the defence would not succeed. The contextual imputations are undoubtedly of a less serious character than the pleaded imputations in respect of SL and DL. The sting of the pleaded imputations is that SL and DL were not only dishonest in their dealings with PK, but are generally dishonest, in the case of SL, as a car dealer, and in the case of DL, as a car salesman. Further, the sting of the imputations is that SL and DL deliberately mislead customers by providing them with information about vehicles which they know is untrue. The sting of these imputations is much more serious than the two contextual imputations. Even if PK established the substantial truth of the contextual imputations the defence under s 26 could not succeed.
DAMAGES
PK has failed to establish any of the defences he relies upon, save for the defence of statutory qualified privilege. As a result of having established this defence he is not liable to pay the plaintiffs’ damages. Absent the finding that the defence of qualified privilege is made out, SL and DL would have been entitled to an award of damages. If I am wrong in concluding that the defence of statutory qualified privilege applies, there is utility in setting out my findings as to the quantum of damages which the plaintiffs would have been entitled to receive.
There are three purposes to be served by damages awarded for defamation:
(xii) Consolation for the personal distress and hurt caused by the publication;
(xiii) Reparation for the harm done to the plaintiffs’ personal and business reputation;
(xiv) Vindication of the plaintiffs’ business reputation.[284]
The first two purposes are often addressed jointly and provide consolation for the wrong done to the plaintiff. Vindication is concerned with the attitude of others to the plaintiff. The amount awarded must be the minimum necessary to convey to the public the vindication of the plaintiffs’ reputation.[285] Put another way, the amount must be sufficient to ‘nail the lie’.[286]
[284]Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, 60–1.
[285]Ibid.
[286]French v Herald & Weekly Times Ltd (No 2) (2010) 27 VR 171, 194 [87]; Dods v McDonald (No 2) [2016] VSC 201, [59].
The imputations which are conveyed by the impugned publications in respect of SL reflect adversely upon his standing as a business owner and his honesty. These are matters which weigh in favour of a significant award of damages to vindicate his business reputation. However, when considering the question of vindication it is necessary to have regard to findings which reflect unfavourably on SL’s business reputation. First, LLC sold PK a very expensive vehicle which was unroadworthy. Second, Europei, who were engaged by LLC to provide a RWC for the vehicle, certified the vehicle as roadworthy when it was not. Third, LLC sold PK warranty insurance which he did not need because the vehicle was subject to a factory warranty. Fourth, notwithstanding the fact that an employee of LLC was told by Jake Parsons that the vehicle was unroadworthy, this information was not passed on to SL. In light of the fact that SL is the owner of LLC and its chief executive officer, each of these matters reflect adversely on SL’s business reputation.
It is also necessary to have regard to the limited publication of the impugned publications. GR2 was not published to anybody except Mr Hamann. The Law Answers post was not published to anybody apart from the moderator who amended it. GR1 and GR3 were only published to a small number of customers and potential customers who read the posts via LLC’s Google My Business page.
Save for Mr Hamann and the Law Answers moderator there is no direct evidence of any individual having read any of the impugned publications, let alone having a diminished opinion of SL as a consequence of having done so. Nor is there any evidence of SL or LLC sustaining any economic loss as a consequence of the impugned publications.
Section 34 of the Act requires an appropriate and rational connection between the harm sustained by the plaintiff and the amount of damages awarded. An award of damages of $75,000 provides an appropriate and rational measure of compensation for the harm sustained by SL as a consequence of the impugned publications. This sum does not include any amount by way of aggravated damages. In order for there to be an award of aggravated damages, a plaintiff must establish a lack of bona fides in the defendant’s conduct or conduct which in some relevant way was improper and unjustifiable.[287]
[287]Hardie v The Herald and Weekly Times Pty Ltd [2016] VSCA 103, [65]; Wilson v Bauer Media Pty Ltd [2017] VSC 521, [84]–[88] (not disturbed on appeal in Bauer Media Pty Ltd v Wilson (No 2) (2018) 56 VR 674); Moroney v Zegers [2018] VSC 446, [241].
If I am wrong in concluding that PK has a defence of statutory qualified privilege, the matters I have relied upon in concluding that PK acted reasonably would nevertheless militate against a finding that he acted with a lack of bona fides. PK did bear ill will towards the plaintiffs. This was a product of his genuine and reasonably held belief that the plaintiffs knowingly sold him an unroadworthy vehicle. PK’s ill will towards the plaintiffs was not the dominant factor actuating the publication of the impugned publications. I am not satisfied that PK’s state of mind at the time of the publication of the impugned publications affected any harm sustained by the plaintiffs. As such, s 36 of the Act requires that PK’s state of mind is to be disregarded when assessing damages.
The plaintiffs submit that PK’s conduct as a litigant warrants an award of aggravated damages. I reject this submission. The plaintiffs have failed to establish that any deficiencies in the manner in which PK conducted his defence warrants an award of aggravated damages. The plaintiffs also point to PK’s rejection of an open offer of settlement on the third day of trial. PK’s rejection of the offer of settlement does not warrant an award of aggravated damages. Even if I am wrong in concluding that PK has a defence of statutory qualified privilege, there is no basis for concluding that PK’s defence was so lacking in merit that a refusal to accept an offer of settlement warrants an award of aggravated damages.
The plaintiffs also submit that they are entitled to an award of Andrews damages.[288] The plaintiffs submit that even though they have not established actual, particularised financial loss, the Court should nevertheless conclude that they have suffered economic loss as a result of the publication of the impugned publications.[289] I reject this submission. No claim for Andrews damages was pleaded. Further, there is no evidence which permits a finding that either plaintiff has suffered any economic loss as a consequence of the publication of the impugned publications.
[288]Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225.
[289]Plaintiffs, ‘Closing Submissions filed 17 November 2021’, [249].
I have concluded that the liar and dishonest car salesman imputations conveyed by the impugned publications in respect of DL are not true. I have concluded that the imputation that DL is an untrustworthy car salesman is substantially true. This latter finding militates against a significant award of damages to vindicate DL’s business reputation. The limited publication of the impugned publications also militates against an award of significant damages. So too the absence of any evidence of any person having a diminished opinion of DL’s reputation as a consequence of reading the impugned publications.
I accept that the impugned publications have caused DL personal distress. Such distress was palpable when DL gave evidence. However, there must be an appropriate and rational connection between such distress and any award of damages. I have no hesitation in concluding that DL is distressed by the imputation that he is an untrustworthy car salesman. However it is necessary to disregard this distress in the assessment of damages because I have determined that the imputation is substantially true.
Had the defence of statutory qualified privilege not been upheld, I would have awarded damages of $25,000. I would not have made any award of aggravated damages, for the reasons set out above in respect of SL.
CONCLUSION
PK has a defence of statutory qualified privilege for the publication of the impugned publications. As a result, the plaintiffs’ claim for damages and permanent injunctions is dismissed. I will provide the parties with an opportunity to make submissions on the costs of the proceeding.
ANNEXURE A – Google review dated 4 April 2017 (‘GR1’)
ANNEXURE B – Google review dated 19 October 2017 (‘GR2’)
ANNEXURE C – Google review dated 20 October 2017 (‘GR3’)
ANNEXURE D – Law Answers post dated 17 December 2016
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