Lyell Steven Allen t/as AVL Electrical Services v Godley - [2023] WADC 54

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   LYELL STEVEN ALLEN t/as AVL ELECTRICAL SERVICES -v- GODLEY [2023] WADC 54
CORAM:   GILLAN DCJ
HEARD:   1 MAY 2023
DELIVERED          :   26 MAY 2023
FILE NO/S:   CIV 3975 of 2019
BETWEEN:   LYELL STEVEN ALLEN t/as AVL ELECTRICAL SERVICES
Plaintiff
AND
CHAD LEWIS GODLEY
First Defendant
KELIE TUCKER
Second Defendant
RHIANNA GRACE JOHNSON
Third Defendant
NATHAN JAMES SIMPSON
Fourth Defendant
ANTON JOHN FORKNALL
Fifth Defendant
ROSALINDA BARBULESCU
Sixth Defendant

Catchwords:

Defamation - Business reviews on Google and Facebook - Turns on own facts

Legislation:

Defamation Act 2005 (WA)

Result:

Judgment in favour of the plaintiff against the fourth defendant in the sum of:

$35,000 damages
Interest to 26 May 2023 in sum of $9,314.25
Indemnity costs
Injunction

Representation:

Counsel:

Plaintiff	:	In person
First Defendant	:	In person
Second Defendant	:	In person
Third Defendant	:	In person
Fourth Defendant	:	In person
Fifth Defendant	:	In person
Sixth Defendant	:	In person

Solicitors:

Plaintiff	:	Not applicable
First Defendant	:	Not applicable
Second Defendant	:	Not applicable
Third Defendant	:	Not applicable
Fourth Defendant	:	Not applicable
Fifth Defendant	:	Not applicable
Sixth Defendant	:	Not applicable

Case(s) referred to in decision(s):

Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225
Armstrong v McIntosh [No 4] [2020] WASC 31
Carter v Napper [2022] WADC 25
Embleton Motor Co Pty Ltd v St Kilda Beach Taxi School and Staffing Pty Ltd [2014] WASCA 183
Grattan v Porter [2016] QDC 202
John v MGN Ltd [1997] QB 586
Jones v Skelton [1964] NSWR 485
Kenyon v Sabatino [2013] WASC 76
McEloney v Massey [2015] WADC 126
Mickle v Farley [2013] NSWDC 295
Newcrest Mining Ltd v Thornton [2012] HCA 60; (2012) 248 CLR 555
Nine Network Australia Pty Ltd v Wagner [2020] QCA 221
North Coast Childrens' Home Inc t/as Child & Adolescent Specialist Programs & Accommodation (CASPA) v Martin [2014] NSWDC 125
Nowak v Putland [2011] QDC 259
Phonographic Performance Ltd v Maitra [1998] 2 All ER 638
Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460; (2009) 254 ALR 606
Rayney v The State of Western Australia [No 9] [2017] WASC 367
RJ v JC [2008] NSWDC 217
Rothe v Scott (No 4) [2016] NSWDC 160
Scott v Baring [2018] WASC 361
Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574
Trott v Rajoo [2020] WADC 144
Woolcott v Seeger [2010] WASC 19

GILLAN DCJ:

By a writ of summons filed 11 October 2019 the plaintiff (Mr Allen) bought a defamation action against six defendants including the fourth defendant (Mr Simpson) stating:
The plaintiff's claim is for damages for non-economic loss sustained or that could reasonably have been sustained as a result of statements of a defamatory nature published by the defendants with respect to the electrical business of the plaintiff.
The indorsement of the claim, as it related to Mr Simpson, was in the following terms:[1]
The defamatory statements were published as follows:
…
4.On 19th December 2018, the Fourth Defendant, Nathan James Simpson, published a one-star review of the Plaintiff's business on Google (with no explanation given by the Fourth Defendant in the publication as to the basis for the low review) and further published a review on a Facebook page operated by the Plaintiff for the Plaintiff's business indicating that the Fourth Defendant 'doesn't recommend' the Plaintiff's business (accompanied by the statement: 'blokes [sic] a grinch would not recommend'), in circumstances where the Plaintiff did not, and has never, provided electrical trade services to the Fourth Defendant.
…
At all material times the published reviews were (and remain) open to general access by any user of Google or Facebook.
[1] Indorsement of Claim dated 11 October 2019, pages 4 - 6.
The indorsement of claim pleaded with respect to the first, second, third, fifth and sixth defendants similarly related to publications on Google between 14 December 2018 and 19 December 2018 said in each case to be a one‑star review of the plaintiff's business on Google. The first, third, fifth and sixth defendants gave no explanation in the publication as to the basis for the low review and the second defendant's one‑star review was accompanied by additional comment. The reviews were pleaded to have been given in circumstances where no relevant electrical services had been provided by the plaintiff.[2]
[2] Only the first defendant had ever received electrical services for which he had posted a five‑star review. That review was changed to a one‑star review in circumstances described below. None of the other defendants had ever received electrical services.
Relevantly, the plaintiff claimed against all named defendants for aggravated damages for non-economic loss as a result of defamation pursuant to s 35(2) of the Defamation Act 2005 (WA) (the Act), in the alternative, general damages for non‑economic loss pursuant to s 35 of the Act, an order requiring each defendant to publish a correction of the defamatory matter on Google and, in the case of Mr Simpson, on the Facebook page operated by the plaintiff of the plaintiff's business, costs on an indemnity basis or alternatively on a party-party basis and interest.
Mr Simpson was personally served with the writ of summons on 23 October 2019.[3] He did not enter an appearance to the writ of summons. The other defendants entered appearances and defended the matter.
[3] Affidavit of Andrew Hunt sworn 13 December 2019.
A statement of claim was filed on behalf of Mr Allen on 29 January 2020. The statement of claim was served on Mr Simpson on 19 February 2020.[4]
[4] Affidavit of Rebecca Hunt sworn 26 February 2020.
The statement of claim relevantly pleaded as against Mr Simpson the two publications being the one‑star review of the plaintiff's business on Google and the review on the Facebook page, and further, at pars 27.1 and 28, that those publications conveyed the following imputations or representations:
27.1.1.That the Plaintiff supplies goods or services that are of poor and/or lower quality than can or should be reasonably expected or demanded by a consumer of the goods or services ordinarily supplied by an electrical trade business;
27.1.2.That the Plaintiff is an incompetent electrician/tradesperson;
27.1.3.That the Plaintiff's electrical trade services and/or skills as an electrician are inferior to his competitors or other businesses operating in the electrical trade; and
27.1.4.The Plaintiff's business ought to be avoided by the average consumer.
28.The reference in the Facebook review published by the Fourth Defendant to the Plaintiff being a 'grinch' that the Fourth Defendant 'would not recommend' additionally conveys the imputation that the Plaintiff is an unpleasant person that ought to be avoided or shunned.
On 19 October 2020 the plaintiff filed a Further Amended Statement of Claim in which, relevantly pleaded as against Mr Simpson the two publications being the one star review of the plaintiff's business on Google and the review on the Facebook page and further, at pars 23, 27 and 28, that in the ordinary and natural meaning, those publications meant and would have been understood to mean that:
23.1the Plaintiff provides very poor electrical services; further or alternatively,
23.2the Plaintiff provides electrical services that are of a lower standard than should reasonably be expected by a consumer of electrical services; further or alternatively;
23.3.the Plaintiff provides electrical services that are inferior to the electrical services provided by other electricians and electrical services businesses; further or alternatively,
23.4the Plaintiff provides such poor electrical services that consumers should avoid engaging him to provide electrical services.
…
27.[The one star review on Google], in its ordinary and natural meaning, further or in the alternative to the imputations set out in paragraph 23 herein, meant and would have been understood to mean that the Plaintiff provided such poor electrical services to the Fourth Defendant that the Fourth Defendant was extremely unsatisfied with the electrical services provided.
28.[The Facebook review], in its ordinary and natural meaning, further or in the alternative to the imputations set out in paragraph 23 herein, meant and would have been understood to mean, that:
28.1the Plaintiff provided such poor electrical services to the Fourth Defendant that the Fourth Defendant was extremely unsatisfied with the electrical services provided; and
28.2the Plaintiff is an unpleasant person to do business with.
Judgment in default of appearance with damages to be assessed was entered against Mr Simpson by Deputy Registrar Harman in chambers on 28 July 2021.
By the same orders, the deputy registrar ordered that the assessment of damages and the plaintiff's application for a final injunction be listed concurrently with any trial of the action between the plaintiff and the remaining defendants, that the plaintiff should serve notice of the trial dates on Mr Simpson and reserved the question of costs between the plaintiff and Mr Simpson to the trial judge.
As at 28 July 2021 Mr Allen was represented by solicitors but they subsequently ceased acting.
The matter was listed for trial before me as to liability and damages against the first, second, third, fifth and sixth defendants and for an assessment of damages and the application for an injunction against Mr Simpson on 1 May 2013. On 1 May 2023 the first, second, third, fifth and sixth defendants were in attendance and indicated a desire to settle the matter. The matter was referred to the principal registrar for further mediation. Judgments by consent were entered against each of those defendants.
I then proceeded to hear the assessment of damages. Utilising case management powers,[5] I directed that signed witness statements would stand as the evidence-in‑chief of any witness on whom Mr Allen relied.
[5] District Court Rules 2005 (WA) r 24.
Mr Allen gave evidence during which he confirmed his witness statement (contained in the plaintiff's trial bundle[6]) and augmented the evidence in that statement.
[6] Exhibit 1.
I took into evidence the witness statements of Jessica Allen dated 24 April 2023[7] and Tracy Wood dated 21 April 2023.[8] Each of them gave evidence confirming their witness statement and augmenting their evidence.
[7] Exhibit 2.
[8] Exhibit 4.
I took into evidence the signed witness statements of Ben Dyke dated 23 April 2023[9] and of Craig Pentland dated 23 April 2023[10] but did not require the attendance of those witnesses.
[9] Exhibit 5.
[10] Exhibit 6.
Mr Allen was unaware of or had overlooked the order (made by Deputy Registrar Harman on 28 July 2021) that notice of trial and the hearing of the assessment of damages and injunction application be served on Mr Simpson.
At the end of the hearing the plaintiff tendered proof of substituted service of the entry of the default judgment with damages to be assessed at a later date.[11] This is when I became aware that Mr Simpson had not been given notice of the hearing for the assessment of damages and application for injunction.
[11] Exhibit 7.
I then adjourned the matter to enable notice to be given to Mr Simpson should he wish to be heard on the question of the assessment of damages or the injunction application. That notice is attached to these reasons and was served, by substituted service on 9 May 2023.[12]
[12] Affidavit of service of Lyle Steven Allen sworn 16 May 2023; Annexure A (Notice of Assessment of Damges).
Mr Simpson not having indicated that he wishes to be heard, these are my reasons on the assessment of damages and the application for injunction.

The Law

The common law in respect of the law of defamation, as modified by operation of the Act,[13] applies in Western Australia.
[13] The Act s 6.
Mr Allen has the onus of establishing that Mr Simpson published the reviews and at least one person other than Mr Allen saw, read or heard the matter complained of comprising the publication.
Every communication of defamatory matter to someone other than Mr Allen will be a separate publication.
Defamatory imputations, once established, are presumed false and once publication, identification and defamatory meaning are established, then subject to any defences, the law presumes that damage to reputation has resulted.[14]
[14] Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225, 247, 250; The Act s 7(2).
Mr Simpson did not enter an appearance or file any defence. He is taken to have admitted the allegations of fact pleaded in the Amended Statement of Claim and this includes that he published the one‑star review on Google and the review on Facebook and that the allegations that the reviews carry the imputations and meanings pleaded, as long as those meanings are capable arising at law.[15]
[15] Jones v Skelton [1964] NSWR 485, 491. See Trott v Rajoo [2020] WADC 144 [28] (Burrows DCJ) citing Phonographic Performance Ltd v Maitra [1998] 2 All ER 638, 643. See also the Rules of the Supreme Court1971 (WA) O 20 r 14(1); Scott v Baring [2018] WASC 361 [18], Sanderson M; Embleton Motor Co Pty Ltd v St Kilda Beach Taxi School and Staffing Pty Ltd [2014] WASCA 183 [43] (Newnes JA) (Murphy JA & Edelman J agreeing); and Woolcott v Seeger [2010] WASC 19.
Mr Simpson was issued with a 'concerns notice' pursuant to the Act. He did not respond, make an offer of amends or offer any apology.
The test for whether a publication is defamatory is whether a person's standing in the community, or the estimation in which people hold that person, has been lowered or whether the imputation is likely to cause people to think less of the plaintiff.[16] It is an objective test: what would a fair-minded ordinary reasonable member of the general community understand the words to mean?
[16] Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460; (2009) 254 ALR 606 [36].
In John v MGN Ltd[17] Sir Thomas Bingham MR said:
In assessing the appropriate damages for injury to reputation the most important factor is the gravity of the libel; the more closely it [the publication] touches the plaintiff's personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be.
[17] John v MGN Ltd[1997] QB 586, 607 - 608.
There are three separate purposes in awarding damages in defamation. They are consolation for personal distress and hurt caused by the publication, reparation of the harm done and vindication for the harm done to reputation. In awarding damages, the court is to disregard malice or any other state of mind of the defendants at the time of publication unless the malice or other state of mind affected the harm sustained.
As with many cases concerning publications on Google and Facebook it is difficult to ascertain how far-reaching the publication was. That is the nature of social media and the internet generally. This is sometimes referred to as the 'grapevine' effect.[18]
[18] Wilson v Bauer Media Pty Ltd[2017] VSC 521 and Rayney v The State of Western Australia [No 9] [2017] WASC 367 [838].
Aggravated damages may be awarded where injury to the plaintiff has been exacerbated by the defendant's conduct, for instance, where an apology is requested but not forthcoming.
The assessment of damages turns in every case on the particular facts. This means that a straight out comparison of cases is not helpful.
Here, there is more than one defendant, each of whom have made separate publications of material, but those publications have resulted in an indivisible loss. Without something more, there are discrete causes of action against each of the defendants and each of them are several concurrent tortfeasors.[19]
[19] Nine Network Australia Pty Ltd v Wagner [2020] QCA 221.
In Thompson v Australian Capital Television Pty Ltd[20] Gummow J said:
Where the wrongdoers were concurrent rather than joint tortfeasors, the entry of judgment in an action against one was no bar to other actions against those tortfeasors because the plaintiff had a distinct cause of action against each of them. However, even here, once the plaintiff had fully recouped the loss, of necessity the plaintiff could not thereafter pursue any other remedy the plaintiff might have or which the plaintiff might earlier have pursued … It appears that satisfaction of the former judgment could be asserted by a plea in bar or a plea in estoppel to any later action at law. Moreover, equity would interfere by injunction to restrain the plaintiff receiving double satisfaction upon execution of a plurality of judgments which had been recovered by the plaintiff.
(citations omitted)
[20] Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574, 608.
Due to the settlement of the claims against the first, second, third, fifth and sixth defendants, the plaintiff has made some recovery. This may need to be taken into account, to the extent possible, in order to ensure that there is no double recovery. A necessary condition of the court's ability to prevent double recovery of loss is that the earlier judgments granted by the court in respect of the liability of other several concurrent tortfeasors for an indivisible harm is pronounced in such a way that it can be ascertained when a plaintiff has already recovered or recouped full satisfaction for that harm.
In my view this is not a case of double satisfaction by the entry of judgments by consent against the first, second, third, fifth and sixth defendants for these reasons. First, the other judgments are consent judgments for a payment which merely reflect settlement agreements and do not result from a judicial determination.[21]
[21] Newcrest Mining Ltd v Thornton [2012] HCA 60; (2012) 248 CLR 555.
Second, the judgment sums are inclusive of costs. It is unclear what if any sums are attributable to each component of damages claimed, either general or aggravated, or to costs. It is not possible from the consent judgments to ascertain the extent of the indivisible harm in respect of which those defendants have compensated the plaintiff as several concurrent tortfeasors so as to prevent further recovery against Mr Simpson.
Lastly, Mr Simpson made two publications, the Facebook posts containing words and so is in a different form to the Google post, whereas the other defendant's only made a post to Google. Mr Simpson has not removed either post, did not respond to the concerns notice, did not offer an apology and has not made any offer. Any aggravated damages arising from his publication will be different to those which might have been ordered against the other defendants.

The facts

As mentioned above, Mr Simpson has admitted the case pleaded against him in the Statement of Claim with which he was served prior to the entry of a default judgment. Nevertheless, it is necessary for me to make some findings of fact as the circumstances of the defamation including the background facts inform the assessment of damages and also whether an injunction ought to be granted. I have limited the findings that I might make to those which inform the assessment of damages mindful of the fact that the remaining defendants have consented to judgment and were not in attendance to defend their reputations.

Background about Mr Allen's business AVL Electrical Services and its marketing

Mr Allen is the plaintiff in this matter. He is 34 years of age, a qualified electrician who works as an electrical contractor trading as AVL Electrical Services. On gaining his electrical contracting licence he started the business in Kalgoorlie in 2011 and relocated to Perth in 2015. Under the business name of AVL Electrical Services Mr Allen offered commercial, residential, and solar electrical services. He undertook electrical inspections, installations and repairs, solar panel installations and repairs, electrical maintenance, smoke alarms, power points, lighting, switchboard replacements and installation and power upgrades.

At all times Mr Allen was the face of the business occasionally working with other contractors and only employing a permanent apprentice in October 2022.
Mr Allen had a limited client base on relocating to Perth in 2015 and spent considerable time, many hundreds of hours, learning how to build a business website and marketing the business through Facebook and Google. I accept his evidence that the electrical trades are very competitive in the metropolitan area.
Mr Allen explained that a component of website development involves ensuring the website ranks well in search results when a search is undertaken in Google. A well ranked website will attract more visitors and 'clicks'. I understand a 'click' to be a person clicking on a website found by way of a Google search. Google uses sophisticated computer algorithms to decide where to rank a website on Google.
In summary, Google rate a website based on an average rating of all published reviews. A low star rating is the equivalent of a poor Google review which results in a reduction of the overall rating of a business and affects its ranking position. A business receives proportionally fewer 'clicks' the further down the Google search results it is.
Mr Allen's business exclusively had a five‑star rating and had received five‑star reviews on all platforms including Facebook and Google leading up to December 2018. Importantly, Mr Allen said that AVL Electrical Services had a five‑star rating from 24 Google reviews prior to Mr Simpson's review.
Mr Allen also said that in the period around late 2018 that all other electricians in the Ballajura area with a Google profile had a five‑star overall rating. I will come back to what happened to Mr Allen's ratings after the publication complained of.
It is completely commonplace for members of the public to use online search engines including by undertaking Google searches in order to find services and, through the Google search results, to be directed to either a website operated by a business or a Facebook page maintained by a business. Exhibit 3 is a review by a customer of Mr Allen's which confirms that he found Mr Allen through Google reviews.
The ubiquitous nature of community use of Google and other search engines, taken together with the number of hours invested by Mr Allen in the development of his business website, means that I can and do readily accept his evidence about the process which he followed to establish his website and market his business on Google and Facebook along with his evidence of the importance of the reviews to his business.

Events leading up to December 2018

From September 2015 Mr Allen was living in a cul-de-sac in Ballajura with his wife and later his young child. The first defendant lived immediately next door.
Mr Allen had performed electrical contracting work for the first defendant in the period between September 2015 and July 2018. The first defendant published a five‑star Google review with positive comments following work done by Mr Allen for him in July 2018.[22] No further electrical work was undertaken by Mr Allen for the first defendant prior to 14 December 2018.
[22] Exhibit 1, pages 477 - 479.
The street in which the plaintiff and the first defendant were living is a cul-de-sac running off another cul-de-sac. The first defendant had, since 2017, decorated his home with Christmas lights and taken part in fundraising for charity. As part of the display the first defendant advertised the Christmas lights on Facebook as 'Ballajura Christmas Lights - Heron Close'. Photographs on that Facebook page along with drone and other photographs taken by the first defendant show a considerable display.[23]
[23] Exhibit 1.
In her written statement, Jessica Allen described the response to the Christmas lights display generally and to a large fundraising event held in 2017. Photographs taken at the 2017 fundraising event show a very substantial event with the street crowded with people, food vendors, a fire truck and activities like bouncy castles. In conjunction with a Christmas light display, in 2018 the first defendant intended to undertake a specific fundraising event on 22 December 2018. An event of that type required City of Swan approval.
Mr Allen was candid that he had difficulty with the way that the Christmas light display was handled. It impacted on his amenity and his young child's ability to sleep. I have no difficulty in accepting that neighbours of the first defendant, including Mr Allen, were considerably affected by the Christmas lights display including by light pollution, parking and traffic chaos in the street, people parking over resident's driveways, safety and noise concerns as described by Jessica Allen and Tracey Wood in their witness statements.
Another resident of the cul-de-sac raised issues with the proposed fundraising event and on 26 November 2018 Mr Allen indicated to the City of Swan that he did not approve of the proposed event being held.
Following Mr Allen's withholding of approval to the proposed fundraising event, a disagreement between Mr Allen and the first defendant by text message started in November 2018 and culminated on 14 December 2018. The argument concerned a number of issues including noise late at night including by the use of an angle grinder, dogs barking, trimming of plants over the dividing fence, damage caused the previous year during the Christmas lights period and also Mr Allen giving his approval to the proposed event. There was a face‑to‑face argument in the street on 19 December 2018.
There is no need for me to make any findings about the rights and wrongs of any of those arguments. The relevance of these arguments is that on 14 December 2018 the first defendant withdrew his five‑star review of Mr Allen's business and posted a one‑star review without any explanation given in the publication of the basis for the low review and despite having received no electrical trade services from Mr Allen since the five‑star review he posted in July 2018. The obvious inference is that the first defendant did that in response to the conflict with Mr Allen when that conflict concerned neighbourhood issues and not Mr Allen's business.
On 14 December 2018 the second defendant also posted a one‑star review of Mr Allen's business on Google accompanied by the words 'Wouldn't use this company [sic] for anything at all'. Mr Allen had never provided the second defendant with any electrical services.
On 19 December 2018 the third defendant, on 23 December 2018 the fifth defendant and on 24 December 2018 the sixth defendant each posted a one‑star review of Mr Allen's business on Google with no explanation given as to the basis of the low review. Mr Allen had never provided any electrical trade services to these defendants.
On 19 December 2018 Mr Simpson posted a one‑star review of Mr Allen's business on Google with no explanation given as to the basis of the low review. He also posted a one‑star review on a Facebook page operated by the Mr Allen for the AVL Electrical Services business indicating that Mr Simpson 'doesn't recommend' the plaintiff's business which was accompanied by the statement: 'blokes [sic] a grinch would not recommend'. Mr Allen had never provided any electrical trade services to Mr Simpson.
Each of the second - sixth defendants including Mr Simpson are known to the first defendant. The second defendant is the first defendant's sister, the third defendant is friends with and has assisted with the erection of the Christmas lights and is the daughter of the sixth defendant, Mr Simpson has been to the first defendant's home and associated with the first defendant's brother, the fifth defendant is the former partner of the third defendant and the first defendant previously lived in the sixth defendant's house and they had also been neighbours. Mr Allen had not met the second, third or fifth defendants or Mr Simpson.
I infer from the connection between them, the timing of the posts and the fact that none of them had ever been customers of Mr Allen that when each of the second - sixth defendants including Mr Simpson in posting their respective reviews were motivated to make those reviews by their knowledge gained from the first defendant of his dispute with Mr Allen and, in the case of Mr Simpson, that his statement in the Facebook review - 'blokes [sic] a grinch would not recommend' - that he was additionally motivated by Mr Allen's opposition to the proposed Christmas lights events.
After the one‑star reviews were given on Google first there was an considerable jump in the number of views of Mr Allen's Google business account. The Google rating of Mr Allen's business then reduced to as low as 4.4 stars of a maximum of 5.0 stars. Mr Allen's evidence is that rating was among the lowest of any rating of electricians in the Perth metropolitan area and considerably less than electricians in the area where Mr Allen lived and usually worked.

What steps did Mr Allen take?

First, Mr Allen asked the first defendant by text message to remove his and the other reviews. That was unsuccessful.
Mr Allen also replied to all of the reviews in moderate terms but pointing out that for the second - sixth defendants he had no record of ever having done any work for them.
Then Mr Allen issued a concerns notice to the first defendant. When no proper response was received to that concerns notice Mr Allen issued concerns notices to each of the other defendants including Mr Simpson. No responses were ever received.
Mr Allen reported the reviews to Google immediately and requested they be taken down. Despite further contact with Google that request was unsuccessful.
None of the defendants apologised to Mr Allen.
The first, second, third, fifth and sixth defendants eventually removed their reviews but this was not until about 13 October 2020 which was well after the proceedings were commenced. Mr Simpson has never removed his reviews.

Implications which can be drawn from Mr Simpson's posts

To the extent that it is necessary for me to make any findings in this regard, I have no difficulty at all in drawing the inference from the reviews posted by Mr Simpson that:
1.Mr Allen provides very poor electrical services and which are of a lower standard than should reasonably be expected by a consumer of electrical services and inferior to the electrical services provided by other electricians and electrical services businesses.
2.Mr Allen provides such poor electrical services that consumers should avoid engaging him to provide electrical services.
3.By the one‑star review on Google that Mr Allen had provided such poor electrical services to Mr Simpson that Mr Simpson was extremely unsatisfied with the electrical services provided.
4.By the Facebook review by the 1 star and the reference to Mr Allen being a grinch that:
(a)Mr Allen provided such poor electrical services to Mr Simpson that Mr Simpson was extremely unsatisfied with the electrical services provided; and
(b)Mr Allen is an unpleasant person to do business with.
By his non appearance Mr Simpson admits defaming Mr Allen but I would have found that to be the case in any event.

What effect did this have on Mr Allen and his business?

As mentioned above there was immediately a jump in the number of views to Mr Allen's Google business account and then Mr Allen's business' Google ratings dropped.
Mr Allen's accountant, Mr Craig Pentland, a chartered accountant gave evidence about a number of matters. He was candid that since becoming Mr Allen's accountant in 2017 he has used Mr Allen for electrical trades work both commercially at Mr Pentland's business and for residential work.
He spoke well of Mr Allen for his electrical work but also said he had become a friend and has seen the personal impact on Mr Allen which I will come back to.
Mr Pentland said that he understood Mr Allen's business to be in a start up phase at the time of the negative reviews and expressed the opinion that the start up phase is a particularly susceptible time with respect to impacts on business either positive or negative. I understand the start up phase to be the time after commencement until a business could be described as mature.
Mr Pentland undertook a review of the overall revenue immediately following the negative reviews and he expressed the opinion that both gross and net income had reduced for the three months following the posting of the negative reviews by the defendants comprised with earlier years but he could not say with certainty whether that was as a result of the reviews or whether there were other contributing factors.
Business growth also plateaued for the remainder of the financial year while the reviews remained published which suggested that the financial momentum had stalled.
Jessica Allen said that she did administrative work for Mr Allen's business which included answering emails, scheduling and reconciling. Clients would make appointments by phone calls to Mr Allen's mobile but he would also get lots of online inquiries through the website. New inquiries were mainly through online inquiries through the website and Google reviews.
Mr Allen does not claim for loss and damage by loss of business income. His claim is for damages general and aggravated damages for non-economic loss. I have outlined this evidence because it demonstrates that Mr Allen was rightly concerned about receiving one‑star reviews particularly any accompanied by additional comment.
Absent admissions implicit in the default judgment, Mr Allen would have the onus of establishing that Mr Simpson published the matters complained of and at least one person other than he saw, read or heard the matter complained of in the publication. In Kenyon v Sabatino,[24] Miere J said:
As a general principle everyone who knowingly takes part in communicating defamatory material, in whatever degree, is a publisher and is therefore liable for defamation. Enquiry into the precise degree of involvement is unnecessary. However, practical guidance as to the operation of the principle can be usefully obtained from a consideration of circumstances in which a person has been held to be a publisher.
[24] Kenyon v Sabatino [2013] WASC 76 [19].
To the extent that I am required to do so in circumstances where judgment on liability has already been obtained, I am prepared to infer from:
1.Jessica Allen's evidence that enquiries from new customers have come through the website;
2.taken with Mr Pentland's evidence about the drop in gross and net income;
3.along with Mr Allen's evidence about additional hits to the Google business app; and
4.the fact that both Google and Facebook are publicly accessible sites, that third parties have made searches for electrical services in the Ballajura area and have seen or downloaded internet content made available by the defendants so publication in the legal sense has occurred;[25]
that more than one person other than Mr Allen read the reviews and comments posted by Mr Simpson.
[25] McEloney v Massey [2015] WADC 126.
There is also the very real possibility in this case of the 'grapevine' effect which means that the likely impact of the publications would have spread beyond those people who saw the actual posts. The 'grapevine' effect is said to be 'no more than the realistic recognition by the law that, by the ordinary function of human nature, the dissemination of defamatory material is rarely confined to those to whom the matter is immediately published'.[26]
[26] Belbin v Lower Murray Urban and Rural Water Corporation [2012] VSC 535.
The grapevine effect was made more likely by there being additional posts to the 'Ballajura Christmas Lights - Heron Close' Facebook page on 19 and 20 December 2018 which had the capacity to identify to the community that the Christmas lights fundraising event had been cancelled because of the actions of the City of Swan and the first defendant's immediate neighbours. The grapevine effect is also supported by the evidence of posts to the AVL Electrical Services Facebook page and Google of photographs of Christmas decorations by a third party.[27]
[27] Exhibit 1, pages 499 - 509.
In a community like Ballajura and those who are interested in the Christmas lights the impact of the grapevine effect is likely to be not insignificant.
This is not to suggest that Mr Simpson was involved in any decision to make further posts to the 'Ballajura Christmas Lights - Heron Close' Facebook page but having published reviews on both Google and on the AVL Electrical Services Facebook page and not having withdrawn them he is responsible for the continued publication and any grapevine effect which might flow from that publication.

Affect of the defamatory posts on the plaintiff

Here the scope of the publications was very public. Those posts could have been read by anyone seeking an electrician in the northern suburbs and in particular in Ballajura.
The imputations are serious, Mr Allen's good reputation as an electrician is of paramount importance to the success of his business considering the professional and business environment in which he works.
The posts by Mr Simpson are still live. They can still be read by anyone who may choose to do so. That said, I accept that after the posts of the other defendants were removed Mr Allen seems to have enjoyed only good reviews and his business reputation may have returned.
The hurt to Mr Allen's feelings is profound and he suffered significant distress. On his evidence, that of his wife, Jessica Allen and his neighbour, Tracey Wood along with that of Mr Dye and Mr Pentland I am satisfied that Mr Allen spiralled into a deep depression and at one stage took some steps to self harm amid the very real concern about the effect on his business.
Some of that hurt and distress was caused by the additional posts to the 'Ballajura Christmas Lights - Heron Close' Facebook page and misplaced opprobrium which was directed towards Mr Allen as a result.
Further, I accept Mr Allen's evidence that on a number of occasions after he had threatened and then commenced proceedings the third and fifth defendants came to his street and acted in a very poor way which caused him further concern for the safety of himself, his wife and his child.
Again, Mr Simpson is not responsible for those events but they undeniably added to Mr Allen's hurt and distress.

Damages

In determining the quantum of damages to be awarded, s 23 of the Act requires the court to ensure there is an appropriate and rational relationship between the harm sustained by Mr Allen and the amount of damages awarded.
In considering the amount of damages to be awarded to Mr Allen, I read a number of cases but none of them could be said to be comparable.[28] I have taken into account the principles referred to by Le Miere J in Armstrong v McIntosh [No 4].[29]
[28] See Carter v Napper [2022] WADC 25; Trott v Rajoo; Rothe v Scott (No 4)[2016] NSWDC 160; RJ v JC [2008] NSWDC 217; Grattan v Porter[2016] QDC 202; Mickle v Farley[2013] NSWDC 295; North Coast Childrens' Home Inc t/as Child & Adolescent Specialist Programs & Accommodation(CASPA) v Martin [2014] NSWDC 125; Atholwood v Barrett [2004] QDC 505; Nowak v Putland[2011] QDC 259.
[29] Armstrong v McIntosh [No 4] [2020] WASC 31 [224] - [240] and [274] onwards.
Mr Allen seeks aggravated damages and relies on these further matters as against Mr Simpson to establish his right to those damages:
1.The falsity of the implication that he had performed electrical work poorly;
2.Mr Simpson ignoring the concerns notice;
3.The lack of any apology by Mr Simpson and the disregard for the consequences to Mr Allen;
4.The publishing of one‑star reviews was directed to his business and that must have been deliberate and for the purpose of damaging his business;
5.Mr Simpson's refusal to remove the reviews especially the words in the Facebook post and the disregard to the continued affect that may have on Mr Allen's livelihood;
6.That there is an element of ganging up on Mr Allen arising out of Mr Simpson knowing the first defendant;
7.Mr Simpson not entering an appearance or responding to service of the legal process.

In my view those matters are made out and Mr Allen is entitled to an award of aggravated damages and by reason that the reviews have not been removed an injunction requiring their removal.
I award damages including aggravated damages to Mr Allen in the sum of $35,000. In reaching this figure, I have taken into account in a very general way that Mr Allen has also secured judgments by consent against each of the other defendants and the submission to judgment by consent has provided some vindication of his action and some consolation by his hurt and distress. I have also taken into account that Mr Simpson's actions differed to each of the other defendants and that the loss he caused is not directly comparable to theirs, in particular, because the reviews have never been removed.

Injunction

I am of the view that a mandatory injunction should issue against Mr Simpson requiring him to remove the reviews and enjoining him from publishing any further review of a similar kind.
Those injunctions are in the following terms:
1.The fourth defendant take immediate steps to remove each of the Google and the Facebook reviews posted by him on 19 December 2018.
2.The fourth defendant be permanently restrained, by himself or his agent, from publishing or causing to be published an allegation or allegations with respect to the plaintiff to the following or similar effect:
(i)the plaintiff provides poor electrical services
(ii)the plaintiff provides electrical services that are of a lower standard than should reasonably be expected by a consumer of electrical services
(iii)the plaintiff provides such poor electrical services that consumers should avoid engaging him to provide electrical services
(iv)the plaintiff provides extremely unsatisfactory electrical services
(v)the plaintiff is an unpleasant person to do business with,
EXCEPT THAT, the fourth defendant will not breach this order if publications or communications are duly made to any court or tribunal, any legal representative acting on the Defendant's part or to any police officer or police body or authority.

Interest

Mr Allen seeks interest on the sum awarded from 19 December 2018 at the rate of 6% per annum pursuant to s 32 of the Supreme Court Act 1935 (WA) until judgment. On my calculation that sum amounts to $9,314.25.

Costs

Section 40 of the Act set out the matters the court may have regard to in awarding costs.
(1)In awarding costs in defamation proceedings, the court may have regard to -
(a)the way in which the parties to the proceedings conducted their cases (including any misuse of a party's superior financial position to hinder the early resolution of the proceedings); and
(b)any other matters that the court considers relevant.
(2)Without limiting subsection (1), a court must (unless the interests of justice require otherwise) -
(a)if defamation proceedings are successfully brought by a plaintiff and costs in the proceedings are to be awarded to the plaintiff - order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the defendant unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff; or
(b)if defamation proceedings are unsuccessfully brought by a plaintiff and costs in the proceedings are to be awarded to the defendant - order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the plaintiff unreasonably failed to accept a settlement offer made by the defendant.
(3)In this section -
settlement offer means any offer to settle the proceedings made before the proceedings are determined, and includes an offer to make amends (whether made before or after the proceedings are commenced), that was a reasonable offer at the time it was made.
Mr Allen submits costs, including legal costs for the period he was represented in these proceedings, and disbursements for the entire period should be awarded on an indemnity basis. Mr Simpson did not respond to the 'concerns notice', file an appearance and did not make a settlement offer. He did not take any part in the proceedings.
I am satisfied that his failure to do any of those things was unreasonable as he was aware of the proceedings. Mr Simpson is ordered to pay Mr Allen's costs of and incidental to the proceedings against the fourth defendant, on an indemnity basis, to be assessed if not agreed.

ANNEXURE A

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MB
Associate to her Honour Judge Gillan
26 MAY 2023