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

---

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.

---

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

---

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

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Lorbek v King

Details

AGLC: Srecko and David Lorbek v Peter King [2022] VSC 218
Case: [2022] VSC 218
Decision Date: 5 May 2022

CaseChat Overview and Summary

Lorbek v King involved a defamation dispute where the plaintiffs sought to hold the defendant liable for defamatory statements made in Google reviews and an online post. The dispute was heard in the Federal Court of Australia.

The court was tasked with determining whether the defendant’s Google reviews and online post were communicated to and comprehended by someone other than the plaintiffs. It also had to decide whether the defendant's conduct in publishing the defamatory matter was reasonable in the circumstances, and whether the publications contained statements which were untrue. Additionally, the court examined whether the opinions expressed were based on proper material, and whether the imputations conveyed by the publications were substantially true.

The court found that the plaintiffs had not proven publication of the Google reviews, as there was no evidence that anyone other than the plaintiffs themselves had read them. The court held that the online post did constitute publication as it was accessible to the public. Regarding the pleaded imputations, the court determined that the publications did not convey the imputations alleged by the plaintiffs. The court also found that the defendant's conduct was not actuated by malice and that the publications contained opinions based on proper material. The court concluded that the publications were substantially true, and thus, the plaintiffs' pleaded defamatory imputations were not harmful beyond the contextual truth of the statements.

The court ordered that the defendant was not liable for defamation, and the plaintiffs' claims were dismissed.

Orders