McEloney v Massey
[2015] WADC 126
•26 OCTOBER 2015
McELONEY -v- MASSEY [2015] WADC 126
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 126 | |
| Case No: | CIV:3141/2014 | 20-21 AUGUST & 29 SEPTEMBER 2015 | |
| Coram: | SCHOOMBEE DCJ | 26/10/15 | |
| PERTH | |||
| 49 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff's claim dismissed | ||
| PDF Version |
| Parties: | BARRY McELONEY STEPHANIE MASSEY |
Catchwords: | Defamation Posts on Facebook page of Poms in Perth reviewing and criticising services of accountant Defamatory statements Defence of justification Defence of honest opinion Aggravated damages Quantum |
Legislation: | Defamation Act 2005 (WA) s 25, s 31, s 34, s 36 |
Case References: | Ali v Nationwide News Pty Ltd [2008] NSWCA 183 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 Astaire v Campling [1966] 1 WLR 34 Belbin v Lower Murray Urban and Rural Water Corporation [2012] VSC 535 Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 Broadway Approvals Ltd v Odhams Press Ltd (No 2) [1965] 1 WLR 805 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 Cassell & Co Ltd v Broome [1972] AC 1027 Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 Clark v Ainsworth (1996) 40 NSWLR 463 Cole v The Operative Plasterers Federation of Australia (NSW Branch) and Hudson (1927) 28 SR (NSW) 62 Convery v Irish News Ltd [2008] NICA 14 Costello v Random (1999) 137 ACTR 1 Crampton v Nugawela (1996) 41 NSWLR 176 Farquhar v Bottom [1980] 2 NSWLR 380 Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 Goldsbrough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524 Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410 John Fairfax Publications Pty Ltd v O'Shane (2005) Aust Tort Reports 81-789 John Fairfax Publications Pty Ltd v O'Shane (No 2) [2005] NSWCA 291 John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 Kemsley v Foot [1951] 2 KB 34 Lewis v Daily Telegraph Ltd [1964] AC 234 London Artists Ltd v Littler [1969] 2 QB 374 Lower Murray Urban and Rural Water Corporation v Di Masi [2014] VSCA 104 Maisel v Financial Times Ltd [1915] 3 KB 336 Marshall v Smith [2013] WASC 451 McMahon v John Fairfax Publications Pty Ltd (No 7) [2013] NSWSC 933 Merivale v Carson (1887) 20 QBD 275 Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 Mirror Newspapers v Jools (1985) 5 FCR 507 Nationwide News Pty Ltd v Warton [2002] NSWCA 377 New South Wales v IJ Index Plc (2007) 17 VR 80 Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 Piscioneri v Brisciani [2015] ACTSC 106 Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 Raul Amon International Pty Ltd v Telstra Corporation Ltd [1998] 4 VR 798 Rigby v Mirror Newspapers Ltd [1964] NSWR 868 Singleton v John Fairfax & Sons Ltd (Unreported, NSWSC, 15901 of 1979, 20 February 1980) The Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 Triggell v Pheeney (1951) 82 CLR 497 Turner (otherwise Robertson) v Metro Goldwyn Mayer Pictures Ltd [1950] 1 All ER 449 Woolcott v Seeger [2010] WASC 19 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
STEPHANIE MASSEY
Defendant
Catchwords:
Defamation - Posts on Facebook page of Poms in Perth reviewing and criticising services of accountant - Defamatory statements - Defence of justification - Defence of honest opinion - Aggravated damages - Quantum
Legislation:
Defamation Act 2005 (WA) s 25, s 31, s 34, s 36
Result:
Plaintiff's claim dismissed
Representation:
Counsel:
Plaintiff : Mr B Goldsmith
Defendant : In person
Solicitors:
Plaintiff : Goldsmith Lawyers
Defendant : Not applicable
Case(s) referred to in judgment(s):
Ali v Nationwide News Pty Ltd [2008] NSWCA 183
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225
Astaire v Campling [1966] 1 WLR 34
Belbin v Lower Murray Urban and Rural Water Corporation [2012] VSC 535
Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183
Broadway Approvals Ltd v Odhams Press Ltd (No 2) [1965] 1 WLR 805
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
Cassell & Co Ltd v Broome [1972] AC 1027
Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519
Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245
Clark v Ainsworth (1996) 40 NSWLR 463
Cole v The Operative Plasterers Federation of Australia (NSW Branch) and Hudson (1927) 28 SR (NSW) 62
Convery v Irish News Ltd [2008] NICA 14
Costello v Random (1999) 137 ACTR 1
Crampton v Nugawela (1996) 41 NSWLR 176
Farquhar v Bottom [1980] 2 NSWLR 380
Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186
Goldsbrough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524
Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410
John Fairfax Publications Pty Ltd v O'Shane (2005) Aust Tort Reports 81-789
John Fairfax Publications Pty Ltd v O'Shane (No 2) [2005] NSWCA 291
John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77
Kemsley v Foot [1951] 2 KB 34
Lewis v Daily Telegraph Ltd [1964] AC 234
London Artists Ltd v Littler [1969] 2 QB 374
Lower Murray Urban and Rural Water Corporation v Di Masi [2014] VSCA 104
Maisel v Financial Times Ltd [1915] 3 KB 336
Marshall v Smith [2013] WASC 451
McMahon v John Fairfax Publications Pty Ltd (No 7) [2013] NSWSC 933
Merivale v Carson (1887) 20 QBD 275
Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632
Mirror Newspapers v Jools (1985) 5 FCR 507
Nationwide News Pty Ltd v Warton [2002] NSWCA 377
New South Wales v IJ Index Plc (2007) 17 VR 80
Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388
Piscioneri v Brisciani [2015] ACTSC 106
Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460
Raul Amon International Pty Ltd v Telstra Corporation Ltd [1998] 4 VR 798
Rigby v Mirror Newspapers Ltd [1964] NSWR 868
Singleton v John Fairfax & Sons Ltd (Unreported, NSWSC, 15901 of 1979, 20 February 1980)
The Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1
Triggell v Pheeney (1951) 82 CLR 497
Turner (otherwise Robertson) v Metro Goldwyn Mayer Pictures Ltd [1950] 1 All ER 449
Woolcott v Seeger [2010] WASC 19
1 SCHOOMBEE DCJ: The plaintiff, Mr McEloney, has made a claim for defamation against the defendant, Ms Massey, based on certain statements made by Ms Massey on a Facebook page called Poms in Perth-Australia (WA). The home page of Poms in Perth states that 'Poms in Perth is a place to seek and offer support to those who have made the great trip from the UK to Australia'. The home page also indicates that as at September 2014 there were 9,595 members of Poms in Perth.
2 On 29 August 2014 at approximately 10.00 am Ms Massey posted the following comment on the Poms in Perth Facebook page:
Whatever you do, DO NOT use Barry McIlevoy Accountants in Joondalup for your tax return. The man is unprofessional, rude and obnoxious. These people are supposed to provide a service and his is anything but. (the first post)
3 Fourteen people 'liked' this comment. In order to like a comment, a person has to open the Facebook page, download the comment and respond to it by choosing a 'like' response. One person responded with a comment offering the name of a good tax accountant.
4 Ms Massey replied to that comment thanking the person for the advice and added:
That clown wanted $550 for a 10 minute chat in the foyer of his office, antagonised my boyfriend and hung up on me, interrupting me several times prior. DEFO not worth $550 in my eyes. (the second post)
5 A further person responded to this, telling Ms Massey that she should be careful what she posted as she could be liable for slander. Ms Massey replied that there was nothing that she had said on the Facebook page that she had not told the accountant.
6 Another seven persons made comments offering advice regarding other tax accountants and discussing the price they had paid for the preparation of tax returns. One person suggested that Ms Massey could download 'e-tax' and do it herself for free. Ms Massey responded as follows:
He's done ABN & TFN. Can you do e-tax then? (the third post)
7 Another discussion then ensued in which seven further people partook. Other tax accountants were suggested and discussed in positive terms. One of the persons who responded referred to her own negative and costly experience with another firm of accountants, naming them as STP.
8 Ms Massey then posted the following comment:
I'm off up there now to try and get the paperwork back. He's still wanting the $550 just for the preparation. Surely that's not right? (the fourth post)
9 The person who had initially responded to Ms Massey's first post asked whether it was a standard tax return or for a business. Ms Massey replied:
It was both Paul. My boyfriend is a chef and done contracting and salary work. (the fifth post)
10 Ms Massey also posted the following comment:
Just had the cops rock up cos he refused to give me back the paperwork!! DON'T USE JBS! They're sharks. (the sixth post)
11 Another person, Mr John Mason, responded:
I don't want to get involved in this because i don't know all the circumstances? I am sorry to hear you got treated that way. For what it's worth; I have used JBS for 9 years now and i have always found Barry to be most professional and very thorough in my dealings with him.
12 Ms Massey replied to this comment as follows:
That's the frustration. We were recommended to him by a very close friend and have been treated in the most disappointing way. He was unprofessional, argumentative, rude and tried to withhold documentation until I paid $550 for a 10 minute chat. It's absolutely ridiculous. I definitely won't be dealing with him again and would deter anyone from using their services as a result. (the seventh post)
13 All in all 18 people posted comments to what Ms Massey had said. In the afternoon of that same day Mr John Mason downloaded all the comments on the Facebook page following upon the first post by Ms Massey and provided them to Mr McEloney by email. A copy of this string of posts was tendered by Mr McEloney and is attached to this judgment as Annexure A. Annexure A shows how long ago each post was made. If the first post was made at around 10.00 am, as recalled by Ms Massey, then the last comment on Annexure A was made at about 4.00 pm.
14 Ms Massey also copied the string of comments following upon her first post by making screen shots on her mobile phone. She did so at 11.12 pm and therefore captured some further posts by her and comments by other people which were not included in the download provided by Mr Mason to Mr McEloney. She tendered a copy of the screen shots, which is attached to this judgement as Annexure B.
15 After Ms Massey's seventh post a further commentator asked whether she got the paperwork back. Ms Massey replied as follows:
I got the paperwork but had to pay $275 for it. He backed down when the cops arrived, I should have pushed for the $140. Hindsight is a wonderful thing. (the eighth post)
16 A previous commentator then asks: 'Omg the police came??' To which Ms Massey replied:
Yep. I wasn't leaving without my paperwork. I offered him the $140 but he refused and then called the cops cos I wouldn't leave. Wanting $550 for something he shouldn't have done in the first place is unbelievable. He should have asked is (sic) the fee was ok before proceeding. (the ninth post)
17 Annexure B also shows how many hours had passed after each comment was made. The eighth and ninth posts were made four hours prior to the screen shots being taken, which indicates that they were made at around 7.00 pm.
18 Mr McEloney pleaded that the statements made by Ms Massey in the post, taken in their natural and ordinary meaning, carried the following imputations and that each was defamatory of him:
1. Mr McEloney, being a chartered accountant, was unprofessional;
2. he was rude to his clients;
3. he conducted his practice in such a way that he should not be engaged;
4. he did not provide a good service to his clients;
5. he overcharged for his services;
6. he displayed poor interpersonal skills to his clients;
7. he ripped off his clients;
8. he committed a crime (arising from the comment that the 'cops rocked up');
9. he was under investigation by the police for allegedly having committed a crime (arising from the same comment);
10. he breached his professional obligation to return papers to Ms Massey when he ought to properly have done so;
11. he was to be avoided in his professional capacity;
12. he blackmailed Ms Massey.
19 Mr McEloney alleged that the publication of these matters brought him into hatred, ridicule and contempt and that he suffered loss and damage to his reputation and injury to his feelings.
20 He also claimed aggravated damages on the basis that Ms Massey had failed to apologise and that she made the statements on the Facebook page for an improper purpose, namely to punish and humiliate him, because he was not willing to include in the tax return for Ms Massey's partner, Mr Giddings, certain motor vehicle expenses, dining out expenses and superannuation deductions.
21 Ms Massey admitted that she published these statements and that they related to Mr McEloney. However, she pleaded that they were published on a private page to which only members of Poms in Perth had access. Ms Massey admitted the pleaded imputations arising from the statements except the imputations listed in subparagraphs 6, 7, 8, 9 and 12 above. However, Ms Massey claimed that the imputations she had admitted to were true or substantially true.
22 In the alternative Ms Massey pleaded that all her statements were an expression of her honest opinion made in the public interest, namely the conduct of Mr McEloney as an accountant when dealing with his clients, and the opinion was based on proper material in that the allegations were true or substantially true. Ms Massey also stated that the purpose of the Facebook page Poms in Perth was, amongst other things, for members to share details of their dealings with various service providers.
23 The issues to be decided in respect of which Mr McEloney carries the burden of proof are which imputations arise from the published statements (insofar as they are not admitted), whether they were defamatory, whether Mr McEloney has been exposed to hatred, ridicule or contempt or has suffered damage to his reputation, to what extent his feelings have been injured and what amount of damages he should be entitled to.
24 The issues in respect of which Ms Massey carries the burden of proof are whether each defamatory imputation proven was true or substantially true, or whether each statement was an expression of opinion which related to a matter of public interest and was based on material that was true or substantially true.
Dealings between the parties prior to and at the time of the Facebook posts
25 Ms Massey and her partner, Mr Giddings, decided to try a new tax accountant on the recommendation of a friend. They turned to Mr McEloney who conducted his business under the name of Joondalup Business Services. Mr Giddings gave evidence that he contacted Mr McEloney by telephone on Thursday, 21 August 2014 and asked whether Mr McEloney could prepare his personal tax return and also his tax return as a sole trader, being a chef. Mr McEloney agreed and told him to come to his office at any time between 10.00 and 12.00 am the next Monday and to bring his paperwork. Mr Giddings denied that Mr McEloney had said anything about his tax return being more complex than normal.
26 Mr McEloney gave evidence that when Mr Giddings told him during the telephone conversation that he was a chef and also needed a tax return for his business which had an ABN number he advised Mr Giddings that this would be a bit more complex than a normal return, but he would be happy to help him. Mr McEloney said he told Mr Giddings to make an appointment. Mr Giddings replied that it was not necessary to make an appointment but he would drop off the paperwork. Mr McEloney gave evidence that he specifically told Mr Giddings to call before he came into the office because he did a lot of work, such as audit work, outside the office. Mr McEloney stated that in spite of this request, Mr Giddings and Ms Massey arrived at his office the following Monday, 25 August 2014, unannounced.
27 There is no dispute that Mr McEloney met Mr Giddings and Ms Massey in his reception area and briefly spoke to them. Mr Giddings handed Mr McEloney a file with his paperwork and Mr McEloney told him that he would give him a call if he required any further information. Mr Giddings was handed the standard engagement letter and asked to sign it. Both Mr Giddings and Ms Massey read the engagement letter and Mr Giddings signed it.
28 The engagement letter advised that the standard fee for a basic tax return was $140 including GST. The letter also stated: 'Your fee may exceed this price depending on the complexity of the tax return'. A further clause added: 'Where the cost exceeds our standard costs of $140 per tax return, a cost estimate will only be supplied if and when requested in writing prior to the commencement of the work'. It is not in dispute that Mr Giddings did not request a cost estimate.
29 The letter of engagement spelled out that the fees would be payable on completion of the tax return and that payment for services would be demanded irrespective of whether the client decided to go ahead and lodge the tax return. The letter provided that in the event of non-payment, Mr McEloney reserved himself the right to take a lien over any and all documents in his possession until the debt was settled.
30 No further discussions took place between the parties on that day. Mr McEloney gave evidence that he told Mr Giddings that he was busy, because he had a deadline for an audit for an international company and was unable to sit down with him to discuss the tax return. Mr Giddings agreed in cross-examination that Mr McEloney had told him that he was busy with an audit for an international company that day. It was not put to Ms Massey in cross-examination that Mr McEloney had advised them that he was unable to sit down with them or why.
31 Ms Massey gave evidence that Mr McEloney asked Mr Giddings in the reception area what his employment was, what type of tax return he had to file, whether he had done a BAS statement and then handed him the engagement letter. Ms Massey said she thought it 'bizarre' that Mr McEloney did not sit down with Mr Giddings to go through the paperwork in detail and to ask questions regarding matters such as business expenses and explain what would be deductible and what not. She said the discussion in the reception area took approximately 10 minutes. Mr McEloney told them that he would give Mr Giddings a call and she expected that Mr McEloney would ask Mr Giddings to come in again to discuss any matters which he queried.
32 Instead, Mr Giddings received the completed tax return together with a covering letter and an invoice in the amount of $550 on the Wednesday of that week. Ms Massey said she was surprised that Mr Giddings' tax payable had been assessed in the amount of $8,000, which she thought was high in comparison to what he had earned that year and she was further surprised at the fee of $550. She and Mr Giddings agreed that Mr Giddings would give Mr McEloney a call to find out what deductions had been included or excluded and why the amount of tax payable was so high.
33 Mr McEloney gave evidence that he contacted Mr Giddings by telephone on Thursday, 28 August, to discuss some errors he had detected in the GST calculations. After having left a message, Mr Giddings called him back and expressed his surprise at the amount of tax he had to pay. Mr McEloney said he explained to Mr Giddings that he was unable to claim the eating out expenses as business expenses. Mr Giddings then told him that he was busy and would call back.
34 Mr Giddings told the court that he had called Mr McEloney because he was unhappy with the fee of $550 charged. He asked Mr McEloney whether the fee was also payable if he did not lodge the tax return. Mr McEloney told him that it was. Mr McEloney was angry. Mr Giddings said he then ended the call.
35 Mr Giddings denied in cross-examination that he had also expressed a concern to Mr McEloney about the amount of tax he had to pay. He further denied that Mr McEloney had told him that he had found errors in the GST calculations done by Mr Giddings.
36 Ms Massey gave evidence that Mr Giddings was annoyed after this telephone conversation with Mr McEloney. Mr Giddings told her that Mr McEloney was not prepared to go through the paperwork with him, unless he paid the sum of $550. Mr Giddings did not specifically say in his evidence that Mr McEloney had not been prepared to go through the paperwork with him. He only said that Mr McEloney wanted him to pay the $550 regardless of whether the prepared text return was to be lodged or not.
37 Ms Massey gave evidence that she called Mr McEloney at about 8.30 am on Friday, 29 August 2014. She told Mr McEloney that Mr Giddings was annoyed about the way he had been spoken to by Mr McEloney the previous day, but she had called to calm things down. Ms Massey said this call lasted only approximately 50 seconds and Mr McEloney hung up on her. Mr Massey's evidence that Mr McEloney put the phone down on her was not challenged in cross-examination.
38 Ms Massey gave evidence that she was in tears and very upset after this telephone conversation. She could not believe that she had been spoken to in that manner by a professional person and that he had put the phone down on her. She said Mr McEloney constantly interrupted her and did not allow her to finish her sentence. Although she had made it clear to him that she was only trying to diffuse the situation, Mr McEloney told her that he would not speak to her and that she would have to get her boyfriend to call him.
39 Mr McEloney's version of this telephone call was that Ms Massey told him that she was shocked at how much tax Mr Giddings had to pay in comparison to prior tax years. Mr McEloney said he explained to Ms Massey that he had claimed as much as was legally deductible and that there was $4,000 in personal expenses on the schedule prepared by Mr Giddings which was not deductible. Mr McEloney said Ms Massey became angry after he had explained this to her and told him that she was not happy with his poor service and the fact that he was not prepared to claim the expenses. She advised Mr McEloney that they would not pay for his services, as he had done nothing at that stage for them, and they would not come back to lodge the tax return. They would take their work elsewhere. Mr McEloney said that the phone call then ended. Mr McEloney stated that Ms Massey had raised her voice at him and he was upset and disappointed that Mr Giddings did not want to pay for the work which he had done.
40 Mr McEloney tendered the service provider records of Ms Massey's telephone which indicated that the call by Ms Massey to his offices at 8.35 am that day had lasted for 2 minutes and 48 seconds and not 50 seconds. Mr McEloney also said that he had explained 'to them', although he did not say on what occasion, that the taxable income might have been higher because Mr Giddings had not paid instalments towards his ABN income, whereas in the prior year his employer had deducted tax on his behalf on a regular basis.
41 There is no dispute between the parties that after the telephone call between Mr McEloney and Ms Massey she sent an email (exhibit 17) at 10.29 am on behalf of Mr Giddings on his instructions to Mr McEloney. Ms Massey explained that she did so because she had a Smart Phone available to send the email. This email stated:
Dear Barry,
Thank you for the work you have done so far in preparing my tax return.
In this case I'd prefer to have my paperwork returned and complete my tax independently.
I am surprised at the way things have happened for a number of reasons. My previous experience of tax accountants have been a lengthy discussion, going through the paperwork I provided, some explanation as to what I can and cannot claim and a rough idea of service prior to paying any money at all. You said you'd call me to discuss things, you didn't. I think it's a little unfair for you to expect me to pay $550 – a fee that INCLUDES lodgement, when you haven't explained anything to me at all. I've previously experienced a full consultation. I wasn't aware the brief chat that we had in the foyer of your office, was a consultation.
I was recommended to you by a friend I have known for years and am disappointed to have been spoken to the way you did on Thursday, for you to hang up on my girlfriend when she was only trying to help and then to be told you'll go through the paperwork AFTER the fee has been paid. I've spoken to a few tax accountants in the past years and have never been spoken to in this way.
As a result, I'm more than happy to pay the $140 that it said on the form you quickly made me sign and for my paperwork to be returned without further discussion.
Regards,
Adam
42 Ms Massey gave evidence that after speaking to Mr McEloney earlier that morning she was of the view that he was not prepared to negotiate, but she was prepared to offer something for his work and did not want to cause an argument.
43 In reply to the email from Ms Massey, Mr McEloney sent the following email (exhibit 14) to Mr Giddings at 10.50 that morning:
Hi Adam
Please see attached engagement letter you signed.
When you came in to see me, I said I would call you should I require any further info to complete the tax returns. Your affairs are basic and there are no complex tax matters to consider.
I am a busy accountant and don't have time to waste with these type of disputes because a taxpayer does not want to pay his tax. I have no other clients acting in this way.
Per the engagement letter, I will hold your paperwork until our fees involved in preparing your tax return are paid in full.
We are happy to lodge the return on your behalf.
Should the fee of $550 not be paid by close of business on Wednesday 3 September 2014 I will be forwarding a summons for the collection of the debt and you will be liable for court costs. I will also report your tax matters to the ATO to investigate further.
You approached us, agreed to our terms and we have done our part.
Regards
Barry McEloney
JOONDALUP BUSINESS SERVICES PTY LTD
Chartered Accountants
44 Ms Massey gave evidence that Mr Giddings forwarded the email to her. She thought the email was 'incredibly antagonistic' and had threatened Mr Giddings not only with being liable for court costs if the $550 had to be collected by summons, but also with reporting him to the Australian Taxation Office (ATO) for some wrong doing. She regarded it as very unprofessional of a tax accountant to threaten legal action immediately without a 'hint of a discussion' as to how these matters could be resolved. She also thought the comment that they had approached him was antagonistic, as this was clearly in the nature of a relationship between an accountant and his client.
45 Mr McEloney sent a further email to Mr Giddings at 11.29 that morning. This email stated the following:
Hi Adam,
Don't waste your time my time and your money. I want to help you lodge your 2014 tax return and get it sorted.
Give me a call on Monday make a time to come in and go through the return.
Payment can then be made before I lodge it for you. You got to get it done so its best to get me to do it as it will be your cheapest option.
Cheers
Barry McEloney
JOONDALUP BUSINESS SERVICES PTY LTD
Chartered Accountants
46 Ms Massey gave evidence that upon receipt of this email she suggested to Mr Giddings that Mr McEloney appeared to have changed his mind and was prepared to negotiate and that he should see Mr McEloney the next Monday. However, Mr Giddings told her that he did not consider it the cheapest option to continue with Mr McEloney's services and that he preferred to have his paperwork returned. Ms Massey then agreed to go to Mr McEloney's offices to ask for the paperwork to be returned and to mediate the situation as best as possible. Mr Giddings was at work that Friday.
47 Ms Massey gave evidence that Mr McEloney was expecting her when she arrived at his offices at approximately 2.10 in the afternoon as Mr Giddings had given him a call beforehand. She said that as soon as she arrived, Mr McEloney said '$550'. Ms Massey replied that she was not prepared to pay the $550, but offered to pay $140. She gave evidence that Mr McEloney then picked up the paperwork which was no longer in the plastic pockets in a file as they had provided it, and disappeared around a concrete support. He came back after a while and said: 'You are paying the $550. I am not giving you the paperwork without the $550'. Ms Massey said Mr McEloney kept disappearing with the paperwork and then coming back telling her to pay the $550 and raising his voice. She said she tried to explain to him that they felt they had not received the service they had been used to from dealing with previous accountants and that they wanted to take their business elsewhere. She said Mr McEloney continuously interrupted her and in between answered a telephone call. He told her to leave the premises or else he would call the police. She sat down on a sofa in the reception area and talked to Mr Giddings on the phone.
48 At a later stage Mr McEloney told her that he would now ring the police seeing that he had asked her three times to leave the premises. Mr McEloney telephoned the police and told them that there was someone on the premises who refused to leave. Ms Massey gave evidence that Mr Giddings persuaded her on the phone to offer Mr McEloney $250. She said she made that offer to Mr McEloney, but he replied: 'No, no, the police are on their way, the police are coming'. Ms Massey told the court that she remained calm but only raised her voice at Mr McEloney when he said 'Your boyfriend just doesn't want to pay his tax'. She said she was upset at that comment because there was no basis for making it. Ms Massey gave evidence that she considered Mr McEloney to be an incredibly rude and obnoxious person, but she did not want to leave without the paperwork. The police then arrived and Mr McEloney's attitude changed instantly. He said he would accept $275 and she agreed to pay that on instructions by Mr Giddings.
49 Ms Massey gave evidence that there were two police officers, one of whom spoke to Mr McEloney and one spoke to her. She explained that this was simply a dispute about the amount of money that should be exchanged in release for the paperwork and that this had now been sorted out. She could overhear Mr McEloney apologising profusely to the police officer. She received her paperwork, paid $275 and left.
50 Mr McEloney's version of this meeting is not materially different, except for saying that Ms Massey was very aggressive and shouted at him that she wanted her paperwork back. She said to him that they would not pay for his poor service and also because he had not lodged the tax return as yet. Mr McEloney said he was disappointed and hurt that Ms Massey would say these things when he had prepared a tax return. Mr McEloney told the court that he asked why Mr Giddings had not come in to discuss his own affairs and Ms Massey replied, 'If Adam was here, he would knock your block off'. It was not put to Ms Massey in cross-examination that she had used these words. Mr McEloney said he was concerned that Ms Massey's shouting would upset his tenant next door and this is why he called the police.
51 Mr Giddings gave evidence that Ms Massey sounded calm when she spoke to him on the phone from Mr McEloney's office.
Findings of fact regarding dealings between the parties giving rise to the posts
52 Counsel for Mr McEloney submitted that the court should find that Ms Massey was not a credible witness and should reject her evidence insofar as it was inconsistent with that of Mr McEloney. Counsel for Mr McEloney relied on a number of matters set out in para 42 of his written submissions, dated 29 September 2015. I have considered all of these matters, but cannot agree with them. They raise quite trivial matters, do not correctly reflect the transcript of the evidence or rely on statements by Ms Massey that could be interpreted in different ways.
53 Counsel for Mr McEloney said that it was misleading to the recipient when Ms Massey sent emails in the name of Mr Giddings. I do not agree. As long as these e-mails were sent on the instructions of Mr Giddings, which Ms Massey testified to, there is no reason why she should not have written them. As she pointed out, she is a teacher and he is a chef. Ms Massey also explained that on one occasion she had access to a smartphone whereas Mr Giddings did not have access to an e-mail account at work.
54 Counsel for Mr McEloney submitted that Ms Massey had initially denied that she had discussed the tax return prepared by Mr McEloney with Mr Giddings but later conceded that she had. However the relevant passage of the transcript at T229 indicates that she essentially denied that she had discussed the tax return with Mr Giddings in detail. She said she had never done one herself and was unable to discuss it in detail. However she agreed that she had flicked through it and discussed with Mr Giddings the amount of tax he had to pay.
55 Counsel for Mr McEloney also submitted that Ms Massey had clearly been untruthful when she had stated in her posts that Mr McEloney had wanted $550 for a 10 minute chat. Counsel argued that in cross-examination Ms Massey had persevered in her position that Mr McEloney had charged $550 for a 10 minute chat. However, if the relevant passage at T240 is considered, it is clear that Ms Massey acknowledged that the $550 was charged for the preparation of the tax return and the 10 minute chat.
56 Counsel for Mr McEloney further submitted that Ms Massey had asked questions on a website called LawAnswers about her having been sued for defamation. He said she had done so under the name of Clara J, but had falsely denied in cross-examination that she had used a pseudonym. I am not persuaded that there was no Clara J who assisted Ms Massey in asking questions even though she did not know the address of Clara or where she worked. Ms Massey gave evidence that she had met Clara shortly before being sued for defamation and that she was a friend of a friend. Clara had assisted her in formulating the questions and they had sat together in front of the keyboard. Clara J is referred to on this website as a 'well-known member'. I am unable to find that Ms Massey invented Clara J. There was nothing in these questions that Ms Massey did not want to own up to.
57 Counsel for Mr McEloney stated that Ms Massey had fabricated matters whenever it suited her. In one of the posts made by Clara J on the LawAnswers website Ms Massey said the accountant had been 'incredibly rude' to her, suggesting that she 'take her pretty little eyes down the sheet'. Counsel put to Ms Massey that she had never made that allegation again, neither in her complaint to the Institute of Chartered Accountants, nor to the Department of Consumer Affairs, nor in court. Counsel suggested that if Mr McEloney had indeed said something like that with sexist overtones, she would have continued complaining about it. Ms Massey replied that that she did not consider the statement sexist, but simply rude and obnoxious and she did not see the need of relying on this statement to support her allegations that Mr McEloney had been rude and obnoxious. I am unable to make a finding on the basis of the fact that Ms Massey did not repeat this statement that she is not a credible witness.
58 The last example of counsel's submissions in this regard worth mentioning is his allegation that Ms Massey indicated in one of her posts on the LawAnswers website that she would be prepared to lie about having been served with the defamation writ. Ms Massey posted on the website that she had just been served with a document headed 'Writ of Summons', but did not understand what it meant and was concerned because the person who provided it to her would not give his name or detail, and because the document was served with in the 28 days she had been given to make amends under the Defamation Act 2005 (WA). She then said the following:
My alarm bells are ringing because the man was random, refused to give me his name and the documents aren't signed. It's basically his word against mine that I took them from him.
59 In the context of Ms Massey's other comments at the time, I am not persuaded that the comment indicates that she was deliberating whether or not to maintain that she had not been served with the writ. That suggested inference is countenanced by her words 'my alarm bells are ringing'. Ms Massey may also have been trying to express her concern that she would not be able to prove who served the documents on her and why. She explained in her evidence in court that she was initially suspicious that the writ served on her was something done by Mr McEloney simply to harass her, because she thought that the person who served the writ had a South African accent like Mr McEloney.
60 Relying on my own observations, the evidence given by all the witnesses and the documents tendered, I do not agree that Ms Massey was not a credible witness. There was nothing in her evidence which led me to conclude that she was not telling the truth, was exaggerating matters in a material respect or was aggressive towards Mr McEloney. On the contrary, her email communications with Mr McEloney, which she wrote on Mr Giddings behalf, are restrained and polite. The email sent on the Friday morning at 10.29 am commences with the words: 'Thank you for the work you have done so far in preparing my tax return'. Ms Massey also stated that it was a 'little unfair' to have to pay $550 when the tax return had not yet been lodged and the basis on which it had been prepared had not been explained.
61 In contrast, Mr McEloney replied at 10.50 am with an email which can rightly be described as rude and unprofessional. He essentially said he did not have time to waste to explain the work that he had done, that he had prepared the tax return in a certain manner and that Mr Giddings did not wish to have an explanation in any event as he intended to deliberately underpay his tax. Mr McEloney essentially accused Mr Giddings of a criminal offence. He then advised Mr Giddings that should he not pay the $550 within five days, he would not only issue a summons for the collection of the debt and hold him liable for the court costs, he would also report Mr Giddings' tax matters to the Australian Taxation Office to investigate further.
62 When it comes to making findings of credibility, it is obviously important whether the court is of the view that a party has given an honest account of what occurred and taken the court in his or her confidence. Counsel for Mr McEloney complained that Ms Massey had not stated in her evidence in chief that Mr McEloney had not given an explanation as to why he was not able to sit down with them on the Monday morning. Counsel submitted that this reflected badly on Ms Massey's credibility, particularly because Mr McEloney and his partner, Ms Bell, had both given evidence about the apology. However, counsel put to Ms Massey in cross-examination that Mr McEloney had advised her that he was busy and she denied that she had been told that. It cannot be held against her that she did not say of her own accord that Mr McEloney did not say something.
63 On the other hand, there is a real concern about Mr McEloney not disclosing the full extent of his own communications with Mr Giddings during his evidence in chief, particularly where Ms Massey was unrepresented. I accept that generally a party does not have to give evidence which reflects negatively upon himself and can leave it to the opposing party to present that evidence. However, Mr McEloney gave evidence about the dealings that he and Ms Massey had prior to and on the Friday when the allegedly defamatory posts were made. He gave a totally sanitised version of events during which he made absolutely no reference to the email exchanges between him and Ms Massey, on behalf of Mr Giddings. That has not served to enhance Mr McEloney's credibility.
64 Further, the tone and content of the email sent by Mr McEloney at 10.50 that morning supports Ms Massey's version of her dealings with him, for example, that he constantly interrupted her when she tried to speak to him on the phone, was not prepared to discuss matters with her and hung up on her. The tone of Mr McEloney's email indicates that he is a person who can be abrasive, rude, intolerant, jump to conclusions and throw down the gauntlet at someone.
65 Ms Massey said in evidence that she was a teacher of religious studies and that she objected to counsel for Mr McEloney putting to her that she was lying in court. I do not attach any weight to this statement, because obviously people from all ranks and layers of society might adjust their evidence to suit their case. However, on the basis of Ms Massey's general demeanour in the witness box, the manner in which she conducted her case as an unrepresented litigant, for example indicating that she did not require Mr McEloney's psychiatrist, Dr Chester, to be called (as she did not want to inconvenience her) and the emails exchanged with Mr McEloney, I have no reason to question her version that she was not aggressive or shouting during her meetings with Mr McEloney, nor to question her credibility. None of the matters raised by counsel for Mr McEloney have persuaded me that Ms Massey lied during her evidence or out-of-court.
66 On the other hand, there are some aspects of Mr McEloney's evidence that do not make sense. He said in evidence that he told Mr Giddings during the very first telephone conference that his tax return was a bit more complex than a normal return. However, in his e-mail sent to Mr Giddings at 10:50 am on the Friday morning he said: 'Your affairs are basic and there are no complex tax matters to consider'. One would also have expected that if Mr McEloney had told Mr Giddings during the first telephone conference that his tax matters were more complex than normal, Mr Giddings would have reacted to the paragraph in the letter of engagement which stated that the standard fee of $140 might be exceeded if a tax return was more complex and that it was up to the client to request a cost estimate.
67 Further, Mr McEloney gave evidence that he asked Mr Giddings during the first telephone conference to make an appointment, but Mr Giddings said that it was not necessary and he would just drop off the paperwork. Mr McEloney stated that he specifically told Mr Giddings to call before he came into the office because he did a lot of work, such as audit work, outside the office. That last statement does not make sense. If Mr Giddings was just coming to drop off the paperwork, it did not really matter whether Mr McEloney would be in the office or not. His partner, Ms Bell, gave evidence that she worked part-time, on Mondays, Tuesdays and Wednesdays and she was present at the office on the Monday when Mr Giddings and Ms Massey came in. It also does not make sense that Ms Massey would have been so up in arms about the '10 minute chat', if Mr Giddings had not expected an interview with Mr McEloney in the first place.
68 Where Mr McEloney's evidence is inconsistent with Ms Massey's, I prefer hers.
69 There is also no reason to reject the evidence given by Mr Giddings. He was prepared to make concessions, such as that Mr McEloney had told him that he was busy with an audit for an international company when he came in on the Monday to discuss the tax return.
70 Mr Giddings' evidence was that he had asked to make an appointment with Mr McEloney, but that Mr McEloney had told him that it was not necessary and to come in on the next Monday. Mr Giddings said that there was no reason for him not to have made an appointment if he had been asked to do so.
71 There is one inconsistency between the evidence of Ms Massey and Mr Giddings. Ms Massey said in evidence that after receipt of the prepared tax return, she was surprised at the amount of tax assessed. She and Mr Giddings agreed that he would give Mr McEloney a call to find out what deductions had been included and why the amount of tax was so high. Mr Giddings, on the other hand, denied that he had questioned the amount of tax payable with Mr McEloney when he rang him on the Thursday and said he only questioned the fee charged.
72 On the one hand, this inconsistency shows that Ms Massey and Mr Giddings did not put their heads together to present the same version of events. On the other hand, there is a concern that Mr Giddings did not give the full version of what he discussed with Mr McEloney regarding the amount of tax payable and the allowable deductions. Mr Giddings evidence was very brief and he does not appear to be a man of many words. When Mr McEloney's counsel cross-examined Mr Giddings to the effect that he had tried to minimise his tax inappropriately by claiming excessive super deductions, Mr Giddings was at pains to communicate that he had always paid his tax and that any such allegation was totally baseless. This concern could possibly have led to Mr Giddings denying that he had questioned Mr McEloney about the amount of tax payable.
73 But even if I accept that Mr Giddings did express his surprise to Mr McEloney at the amount of tax he had to pay, as Mr McEloney testified to, this does not change my view that Ms Massey's evidence was essentially credible regarding the manner in which Mr McEloney had conducted himself vis-à-vis her on the telephone the next morning.
74 Ms Massey said nothing in her evidence about challenging Mr McEloney during that telephone call about the amount of tax payable or the lack of deductions allowed. Mr McEloney's version of the telephone call, namely that Ms Massey had told him in an angry voice that the tax payable was too high and that they would not pay for his services as he had done nothing for them at that stage, was not put to Ms Massey in cross-examination.
75 It is also of note that in the e-mail that Ms Massey sent on behalf of Mr Giddings at 10.29 that morning she said nothing about Mr McEloney not having allowed deductions or that the amount of tax was surprisingly high. The complaint outlined was that Mr McEloney had not spent any time going through the paperwork with them and expected them to pay $550 without providing any explanation to them prior to the payment of the full fee. That email supports Ms Massey's version of events.
Imputations arising from the statements made by Ms Massey on Facebook
76 The first issue of law and fact is what imputations arose from the statements made by Ms Massey on the Facebook page of Poms in Perth.
77 It is well established law that in deciding on the meaning or imputation of a particular statement the court has to ask what fair-minded, ordinary, reasonable persons in the general community would understand the published words to mean. The ordinary reasonable reader is a person of fair, average intelligence who approaches the interpretation of the publication in a fair and objective manner. The person is neither perverse, suspicious of mind nor avid for scandal. The ordinary reasonable reader does not live in an ivory tower. He or she can, and does, read between the lines, in the light of his general knowledge and experience of worldly affairs. An ordinary reasonable reader is a lay person and not a lawyer and his or her capacity for implication is greater than that of a lawyer: Lewis v Daily Telegraph Ltd [1964] AC 234, 258; John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 [23] – [26]; Farquhar v Bottom [1980] 2 NSWLR 380, [21] – [22].
78 The ordinary reasonable reader takes into account the forum in which the statements were published. The mode or manner of publication is a material fact in determining what imputation is conveyed. For example, a reader of a book would read it with more care than he or she would peruse a newspaper: John Fairfax v Rivkin [26]; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, 165; Farquhar v Bottom [24].
79 The reasonable reader considers the publication as a whole and considers the context as well as the words alleged to carry a certain imputation or be defamatory: Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632, 638; Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 [17]. If there is a defamatory meaning in part of the publication, but in another part this is removed or clarified, the contradictory assertions must be read together with the defamatory ones. This does not mean that the reasonable reader gives equal weight to every part of the publication and he or she may take into account emphasis applied by the publisher such as conspicuous headlines or captions: John Fairfax Publications Pty Ltd v Rivkin [26] – [27]; Mirror Newspapers Ltdv World Hosts Pty Ltd (646). A reasonable reader attempts to strike a balance between the most extreme meaning that the words could have and the most innocent meaning: Lewis v Daily Telegraph Ltd (259 - 260); John Fairfax Publications Pty Ltd v Rivkin [26].
80 In this case Ms Massey's statements were made as part of a string of posts. In Piscioneri v Brisciani [2015] ACTSC 106 [63] Burns J held that defamatory statements made as part of a thread of posts on a particular topic on a website should not be read in isolation but together with other posts made on that topic. Burns J rejected the argument that a reader may only have read the defamatory posts and not the posts which exonerated and supported the person defamed. His Honour drew the comparison with a newspaper article which must be considered as a whole when determining whether it carries a defamatory meaning, even though a reader could stop reading it after the first paragraph or two. With regard to a television or radio program, it is also accepted that the ordinary reasonable listener would have heard or viewed the whole of the program and the plaintiff cannot rely on a particular part of it only: Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410 [9].
81 In Piscioneri v Brisciani the defendant was not one of the people who had made the posts, but the owner and operator of the website on which the posts were published. Burns J therefore held that all the comments posted with regard to that particular topic had to be considered, particularly in light of the fact that they all appeared on the forum within a short period of time and the entire thread was not excessive in length.
82 In this case Ms Massey has been sued for her own defamatory statements made. I accept that comments made by other people cannot be relied upon to balance or mitigate what she posted. But all her comments have to be considered as one thread of posts. Each cannot be read in isolation. All her posts were made over a period of some 9 hours and the entire discussion is not very long.
83 It is for the court (or the jury) to decide what meaning or imputation an ordinary reasonable reader would have attached to the statements. The court is not limited by the meaning which either the plaintiff or the defendant seeks to place upon the words: Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 [55], [58]; The Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 [314].
84 Ms Massey admitted in her defence that her statements gave rise to the imputations that Mr McEloney was unprofessional, that he was rude to his clients, that he did not provide a good service to his clients, that he overcharged for his services and that he had breached his professional obligation to return papers to her when he ought to properly have done so. Ms Massey also admitted the imputations that Mr McEloney conducted his practice in a way which meant that he should not be engaged and that he was to be avoided in his professional capacity. The latter two imputations are in my view conclusions which arise from the other alleged imputations and should be treated as such. A statement may be taken to be an expression of opinion if it appears to be a deduction, inference, conclusion, criticism, judgment, remark or observation come to by the writer from facts stated or referred to by him: New South Wales v IJ Index Plc (2007) 17 VR 80 [47].
85 Although the imputations pleaded by Mr McEloney are phrased in general terms, for example 'was rude to his clients' or 'does not display good interpersonal skill to his clients', an ordinary reasonable reader would have realised that Ms Massey was talking about her particular experience with Mr McEloney. Ms Massey's solicitors (when she was still represented) did not seek to strike out Mr McEloney's pleading that her statements about her particular experience with Mr McEloney indicated that he was a person who was generally rude to his clients and generally overcharged etc, and in fact admitted some of them. However, the question whether statements about a particular incident of misconduct are capable of supporting an imputation that the plaintiff generally conducted himself in that manner depends on the specific wording of the statements and the circumstances under which they were made: Nationwide News Pty Ltd v Warton [2002] NSWCA 377 [56] – [61]; Strasberg v Westfield Ltd [2002] NSWSC 689 [3] – [4]; Singleton v John Fairfax & Sons Ltd (Unreported, NSWSC, 15901 of 1979, 20 February 1980) 6 (Hunt J).
86 In this case any ordinary reasonable reader would have realised that Ms Massey was talking about her own personal experience with Mr McEloney as a service provider.
87 Ms Massey admitted in her defence that the imputations were made about Mr McEloney, 'who was a chartered accountant'. Annexure 'A' does not contain any reference to Mr McEloney being a chartered accountant. It only refers to him being an accountant. The imputations relied upon must arise from the published material itself or from matters within the knowledge of a reasonable reader: Astaire v Campling [1966] 1 WLR 34, 41; The Herald & Weekly Times v Popovic [326]. Accordingly, the imputations can only be about Mr McEloney in his professional capacity as an accountant; not a chartered accountant. However, in my view it does not make any difference to the outcome of this case whether the defamatory statements were made about Mr McEloney being a chartered accountant or being an accountant.
88 The next question is whether an ordinary reasonable person in the general community would have understood the statements made by Ms Massey to convey the remaining imputations which she did not admit. An ordinary reasonable reader would have understood from the posts that Mr McEloney displayed poor interpersonal skills to his clients. This is clearly implied in the second post where Ms Massey said that Mr McEloney antagonised her boyfriend, hung up on her and interrupted her several times prior to that. It is also implied by the statements made during the first and seventh posts, that Mr McEloney was rude, obnoxious and argumentative. Imputation 6 is made out.
89 The ordinary reasonable reader would, however, not have understood from the statements made by Ms Massey that Mr McEloney had 'ripped off' his clients. The Oxford English Dictionary relevantly defines the expression 'rip off' as 'an act of stealing, a theft; (hence) a fraud, a swindle; (more generally) any instance of … financial exploitation'. To 'rip off' somebody therefore implies that the perpetrator fraudulently, or at least, intentionally, charged someone more than the exchanged goods or services were worth. An ordinary reasonable reader would have implied from the statements made in Annexure A that Mr McEloney was expensive or charged more than the average accountant charged, but not that he fraudulently or intentionally tried to take money to which he was not entitled.
90 Counsel for Mr McEloney submitted that the statement 'that clown wanted $550 for a 10 minute chat', made during the second post and materially repeated during the seventh post, implied that he was ripping off his clients. However, firstly, it is apparent from the remainder of the statements made by Ms Massey that she was acknowledging that Mr McEloney wanted $550 for a 10 minute chat in the foyer as well as for the preparation of a tax return involving a standard personal tax return and a return for a business with an ABN number. This flows from what she said in the third and fifth posts. A reasonable ordinary reader would have realised that Ms Massey was disputing the value of the service she had received from Mr McEloney particularly in light of the fact that the consultation had only lasted for 10 minutes. Her reply to Mr Paul Steele that the preparation involved a standard tax return and one for a business, as her boyfriend was a chef and had done contracting and salary work, indicated that Mr McEloney was expensive, but not that he had deliberately over-charged. Counsel for Mr McEloney also referred to the statement in the sixth post that 'they're sharks'. However, this was made in the context of Mr McEloney refusing to give back the paperwork and not in the context of him overcharging. Imputation 7 is not made out.
91 Counsel for Mr McEloney relied on the statement in the sixth post 'just had the cops rock up cos he refused to give me back the paperwork' as carrying an imputation that Mr McEloney had committed a crime. That statement is ambiguous. An ordinary reasonable reader may have understood that the police arrived because there was a loud argument between Ms Massey and the accountant. Alternatively, a reasonable reader may have inferred that Ms Massey had to call the police to assist her in getting Mr McEloney to return her paperwork. However, even if an ordinary reasonable reader would have made the latter inference that did not necessarily mean that Mr McEloney had committed a crime or was under investigation for having committed a crime. Ms Massey may have called the police because Mr McEloney was argumentative and rude and refused to engage with her to discuss the return of the paperwork.
92 In any event Mr Massey explained in the ninth post that it was Mr McEloney who had called the police because she would not leave without her paperwork and he would not accept the $140. Imputations 8 and 9 are not made out.
93 An ordinary reasonable reader would also not have understood Ms Massey to say or imply that Mr McEloney had blackmailed her. Counsel for Mr McEloney submitted that this imputation arose from Ms Massey stating in the seventh post that Mr McEloney tried to withhold documentation until she had paid $550 for a 10 minute chat. An ordinary reasonable reader would have considered whether there was blackmail on the basis of how that term is used by laypeople in ordinary English. The Oxford English Dictionary defines the word 'blackmail' as 'to extort money from by threatening to reveal a damaging or incriminatory secret; (also) to use threats or moral pressure against'. Ms Massey did not say that Mr McEloney had threatened to do something to her if she did not pay the $550. She simply said that Mr McEloney refused to hand over the paperwork until she had paid, what he, by implication, thought was a fair amount for his services. Imputation 12 is not made out.
Whether each imputation admitted or proven is defamatory
94 A statement is defamatory if it lowers the plaintiff's reputation in the eyes of an ordinary reasonable person. The question is whether the statement was likely to lead an ordinary reasonable person to think the less of a plaintiff: Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 [5].
95 A person's reputation means the esteem in which he is held whether in respect of his personal character or his professional qualities, competence or dealings: Radio 2UE Sydney Pty Ltd v Chesterton [2], [36] and [46]. An earlier test asked whether the words were likely to injure the reputation of a plaintiff by exposing him to hatred, contempt or ridicule, but this test has come to be considered as too narrow: Radio 2UE Sydney Pty Ltd v Chesterton [4].
96 The same qualities which apply to the ordinary reasonable reader when the imputations arising from the statements are considered, also have application to the decision whether the statements were defamatory: John Fairfax Publications Pty Ltd v Rivkin [23], [27].
97 I accept that each of the imputations that were admitted or that I have found to have been proven was defamatory of Mr McEloney in that it would have lowered his reputation as an accountant in the eyes of an ordinary reasonable reader. These imputations would not have caused any reasonable reader to feel hatred, ridicule or contempt towards Mr McEloney, but each of the imputations was likely to disparage the reputation of Mr McEloney in his professional capacity.
Whether the defence of justification has been made out
98 Section 25 of the Defamation Act provides that 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 Act does not deal with the initial questions regarding how imputations are assessed and when they are defamatory. Section 6(1) of the Act states that it relates to the tort of defamation at general law, which is defined as including the common law. Section 6(2) also provides that this Act does not affect the operation of the general law except to the extent that the Act provides otherwise. The initial questions are therefore still governed by the common law.
99 Section 5 of the Act defines the words 'substantially true' as meaning 'true in substance or not materially different from the truth'. Accordingly, I need to decide whether the imputations that have been proven by the plaintiff were true in substance or not materially different from the truth.
100 I accept Ms Massey's evidence about her dealings with Mr McEloney, including those parts where Mr McEloney provided a different version. As I said earlier, Ms Massey's version of events is supported by the wording of her email to Mr McEloney at 10.29 on the Friday morning and his reply at 10.50am.
101 In fact, the content of the email by Mr McEloney in itself shows that he displayed poor interpersonal skills to his clients and was rude and unprofessional. The email accused Mr Giddings of purposefully avoiding his tax commitments, which is certainly rude and unprofessional. There was no basis for making that allegation. Mr Eloney gave evidence that he had checked the amount of tax paid by Mr Giddings in the previous two tax years and it was similar to what he had assessed. Mr Giddings stated that he had eventually prepared and filed his own tax return for that year, that he had calculated a lower amount of taxable income than what Mr McEloney had assessed and that the ATO had accepted his tax return. It therefore seems that Mr Giddings duly paid his tax in previous years and in 2014. Mr McEloney provided no grounds to justify the allegation that Mr Giddings wanted to purposefully avoid paying his due tax.
102 Mr McEloney also threatened in the email to report Mr Giddings' 'tax matters' to the ATO 'to investigate further'. This implied that Mr Giddings had at the time or in the past provided incorrect information to the ATO or had intentionally withheld information. Further, Mr McEloney clearly tied his demand for payment of the $550 to the threat of reporting Mr Giddings to the ATO. It is clearly unprofessional for an accountant to extract payment of his fees in such a manner. The email also displayed poor interpersonal skills and indicated that Mr McEloney did not provide a good service to his clients, at least not on this occasion.
103 Counsel for Mr McEloney pointed out that the e-mail sent by Mr McEloney at 10.50 am was after Ms Massey had already made the first two posts on the Poms in Perth Facebook site. But the point is that the e-mail is not only in itself rude and unprofessional, it also makes it more likely that Ms Massey's evidence about Mr McEloney constantly interrupting her, refusing to speak to her and putting the phone down on her during the telephone call earlier that morning had been true. Mr McEloney's conduct during that telephone call was also rude and unprofessional and displayed poor interpersonal skills to his clients.
104 The e-mail by Mr McEloney is also relevant in that it constitutes evidence of Mr McEloney being rude and unprofessional and displaying poor interpersonal skills with his clients within a short time after the first two posts were made. Evidence of facts which occurred within a reasonable time after the publication of the defamatory statements and which go to show the existence of an alleged tendency pleaded in justification is admissible for that purpose: Maisel v Financial Times Ltd [1915] 3 KB 336, 339 – 340; Raul Amon International Pty Ltd v Telstra Corporation Ltd [1998] 4 VR 798, 810.
105 Accordingly, the imputations that Mr McEloney was rude and unprofessional, displayed poor interpersonal skills to his clients and did not provide a good service were, at least substantially, true.
106 The imputation that Mr McEloney overcharged for his services is not shown to be true in substance. Ms Massey did not present any expert evidence that a fee of $550 for taking very brief instructions and preparing a personal tax return and a business tax return was excessive or more than what would be regarded as a reasonable fee in the accounting industry. She referred to the many comments on the Poms in Perth Facebook page that other people had paid between $120 and $300 for their tax returns. However, firstly this is hearsay evidence, and secondly, this may only have been for a personal tax return.
107 Mr McEloney gave evidence that he had asked three other accountants whether his fees were reasonable for what he had done and was told that they were. This is again hearsay evidence. The evidence of the other accountants also qualifies as expert evidence and no notification of such evidence was given to Ms Massey.
108 Ms Massey carries the burden of proving that the imputation of overcharging was true in substance and there is no basis for me to make such a finding. Mr McEloney tendered a WIP ledger which set out his charges for various items of work performed by him for Mr Giddings. Without expert evidence I am unable to assess whether these charges were reasonable or unreasonable.
109 The imputation that Mr McEloney breached his professional obligation to return papers to Ms Massey when he ought to properly have done so is also not true in substance. This is because Mr McEloney specifically reserved himself the right in the letter of engagement to retain documents until any outstanding debt was settled.
110 The imputations that Mr McEloney conducted his practice in such a way that he should not be engaged, and was to be avoided in his professional capacity are clearly conclusions and expressions of opinion and not statements of fact and are better dealt with under the defence of honest opinion.
Whether the statements expressed an honest opinion
111 Ms Massey pleaded in her defence that if any of the statements made by her were not justified as being true, they were the expression of an honest opinion. Section 31 of the Act provides that it is a defence to the publication of defamatory matter if the defendant proves that the matter was an expression of opinion (rather than a statement of fact), that the opinion related to a matter of public interest and that it was based on proper material. 'Proper material' is defined as material that is substantially true.
112 I have already found that the defence of justification applies to the imputations that Mr McEloney displayed poor interpersonal skills to his clients, was rude to them and was unprofessional. It is therefore not strictly speaking necessary to ask whether the statements which gave rise to these imputations were the expression of an honest opinion. However, should I be wrong in my findings that there was justification for these imputations, I am of the view that the statements that gave rise to the imputations were in any event the expression of an honest opinion.
113 The rationale for the defence of honest opinion has been stated to be a recognition of every citizen's right to express an opinion on matters of public interest and to attempt to convert others to those views: Kemsley v Foot [1951] 2 KB 34, 46. In deciding whether a statement was the expression of opinion rather than a statement of fact, the test is whether an ordinary reasonable reader would have regarded the statement, in the circumstances in which it was made and in its context, as the expression of an opinion: Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 [36]; Goldsbrough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524, 531; John Fairfax Publications Pty Ltd v O'Shane (2005) Aust Torts Reports 81-789, [27].
114 The ordinary reasonable reader would therefore have taken into account that the statements by Ms Massey were made by a user of a Facebook page which clearly served the purpose of allowing members to provide advice, suggestions, recommendations and warnings with regard to goods and services available in Perth. The printout of the home page of Poms in Perth, dated 15 September 2014, indicates as much. It states, amongst other matters, the following:
• POMS in Perth is a place to seek and offer support to those who have made the great trip from the UK to Australia.
• Please offer your opinion with respect and forethought and be considerate of other people's situations.
• Whinging POMS – this is what we are known as. It's a common comment in the group, often added to anyone who might have something negative to say about Australian drivers, roads, shopping, nightlife (or lack of) visas, school fees, rents, house prices, taxes and the list is endless. We all love to have a moan every now and then. If the post annoys you simply scroll past if you have nothing constructive to say.
• If someone asks for recommendations for a product or service please feel free to advise them in the comments of their post.
115 Ms Massey gave evidence that prior to her making the posts she had seen other posts on the Poms in Perth website of people who had similar negative experiences with their accountants or other professional people. Ms Massey tendered two pages of downloads of posts which she said had appeared in May 2015 on the Poms in Perth Facebook page. These posts contained comments by a member of Poms in Perth about the bad service he had received from a rental agency that was named. Other members made further negative comments about that particular rental agency.
116 Counsel for Mr McEloney submitted that these posts were irrelevant, because they appeared on the Poms in Perth Facebook page in May 2015, whereas Ms Massey had posted her statements in August 2014. He submitted that it was in any event irrelevant what other members had to say about other service providers in Perth. I agree with the latter observation, but the posts tendered by Ms Massey serve to confirm her allegation that she had seen other negative reviews of accountants or service providers on that Facebook site.117 The expectation and understanding of a reasonable reader with regard to the forum on which and the circumstances under which a statement is made are important. The ordinary and reasonable reader of a restaurant review would not regard the statement that a dish was 'inedible' as meaning that it was unfit for human consumption, but would realise that this conveyed the writer's opinion that the dish was unpalatable: Convery v Irish News Ltd [2008] NICA 14 [34].
118 An ordinary and reasonable reader on the Poms in Perth Facebook page would also not have had any difficulty in working out that this was a site where people were offering their opinions about the good and bad aspects of goods, facilities and services to be found in Perth. Of course, this does not mean that a member of a Facebook page has carte blanche to defame service providers or other persons or that all statements made necessarily qualify as opinions. However, any ordinary reasonable reader taking a meaning or imputation from the words used on this Facebook page would have realised that this was a forum for members to provide advice and assistance to other migrants who had newly arrived from the United Kingdom and that posts on this site were likely to involve a large measure of personal opinion and accounts of personal experiences, views and suggestions. The reasonable reader would have been aware that he or she was not reading the front page of 'The Guardian'.
119 Ms Massey employed colourful language using words such as 'clown' and 'shark' which were perhaps over the top and exaggerated, but an ordinary reasonable reader of the Facebook page Poms in Perth would have understood that she was expressing her opinion about her specific dealings with Mr McEloney. The usual manner of communicating on a Facebook page is also relevant. The court can take judicial notice that people who exchange comments on a Facebook page or similar blog on the internet often write in half sentences, with abbreviations, keep their comments brief and use colloquial language. It is a different manner of communicating than writing a letter or a report in a newspaper.
120 The use of words such as 'in my view' or in my opinion' are not decisive in determining whether a statement is the expression of an opinion, but their use indicates that the statement is more likely to have been the expression of an opinion rather than the provision of a statement of fact: Turner (otherwise Robertson) v Metro Goldwyn Mayer Pictures Ltd [1950] 1 All ER 449, 474. Ms Massey said in her second post that the service she had received was 'DEFO not worth $550 in my eyes' and 'I definitely won't be dealing with him again and would deter anyone from using their services as a result' (underlining added). These two statements indicate that she was expressing her opinion of the services provided by Mr McEloney.
121 It would have been obvious to a reasonable reader of the Poms in Perth Facebook page that Ms Massey was expressing her opinion about a particular service that she had received when she said that Mr McEloney was rude and unprofessional and displayed poor interpersonal skills.
122 In order to rely on the defence of honest opinion, Ms Massey also needs to prove that the statements she made were in the public interest. The concept 'public interest' has not been defined in the Act, but it was also a requirement for the defence of fair comment in common law, and case law relevant to the defence of fair comment would be applicable. In London Artists Ltd v Littler [1969] 2 QB 374, 391, Lord Denning MR held that a topic was a matter of public interest whenever it affected people at large, so that they might be legitimately interested in, or concerned at, what was going on, or what might happen to them or to others. That interpretation of public interest was adopted and applied to the Defamation Act 1889 (Qld) in Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183, 220 – 221. The majority in that case also held that where a person's conduct invited public criticism or discussion it could be commented on in the public interest.
123 In Broadway Approvals Ltd v Odhams PressLtd (No 2) [1965] 1 WLR 805, a newspaper had published an article criticising a way a stamp dealer had enticed children to buy stamps by sending them by mail order. The defendant raised the defence of fair comment on a matter of public interest. It appears to have been accepted that the trading practices of the stamp dealer was a matter of public interest. In Joseph v Spiller [2011] 1 AC 852 [28] it was accepted that the question whether a group of musical performers had abided by their contract was a matter of public interest.
124 Accordingly, I accept that the manner in which an accountant who provides a regular service to the public (namely, the completion of tax returns), conducts this service is a matter of public interest. This was the very type of service which was of interest to readers of the Poms in Perth Facebook site and the public generally.
125 The third requirement for the defence of honest opinion is that the opinion must be based on proper material, meaning material that is substantially true. There is no requirement that the opinion be balanced in relation to the material on which it is based. Even where the comment made was wrong, grossly exaggerated or based on prejudice or obstinacy, it may qualify as an honest opinion on the basis of the material relied upon. Merivale v Carson (1887) 20 QBD 275, 280 – 281. In relation to the defence of fair comment in common law the test was whether an honest person, however prejudiced he or she might be, or however exaggerated or obstinate his or her views, could have written the criticism based on the relevant material: Turner v Metro Goldwyn Mayer Pictures Ltd (461); Convery v Irish News Ltd [65].
126 Pursuant to s 31(4) a plaintiff may negate a defence of honest opinion, if he proves that the opinion was not honestly held by the defendant. Mr McEloney did not plead in his reply that the opinion was not honestly held by Ms Massey.
127 The requirement that the opinion (or comment) be based on proper material was held in common law to mean that the writer of the statement had to set out in the publication the facts on which the opinion (or comment) was based so that the reader could see whether the opinion was such as could be fairly formed upon the facts (even if it was grossly exaggerated): Goldsbrough v John Fairfax & Sons Ltd (531 – 532); Channel Seven Adelaide Pty Ltd v Manock [35]. If the facts upon which the comment based were not contained in the publication, they had to be notorious or readily ascertainable to the reader: Channel Seven Adelaide v Manock [47].
128 Section 31 of the Act does not provide that the facts on which the opinion is based must be set out in the publication. It may be that it is no longer a requirement under s 31 that the facts on which the opinion is based are set out in the publication, as long as it is clear that the statement made is an opinion. This question was raised on a strike out application by his Honour Justice Le Miere in Marshall v Smith [2013] WASC 451 [36], but not answered because of the nature of the application. Counsel for Mr McEloney conceded that it was not a requirement under the Act that the facts on which the opinion is based must be set out in the publication.
129 Whatever the correct position in law may be under s 31 of the Act, Ms Massey did set out the facts on the basis of which she arrived at her opinion that Mr McEloney was unprofessional and rude and displayed poor interpersonal skills. In the second post she advised that Mr McEloney had antagonised her boyfriend, interrupted her several times and then hung up on her and in the seventh post she referred to him as argumentative. She also indicated in the fourth and sixth posts that Mr McEloney had refused to give back the paperwork. Even though Mr McEloney had a legal right not to return the paperwork by reason of what he had specified in the letter of engagement, her posts certainly indicated that he did not explain to her that he had such a right and failed to negotiate with her in a reasoned manner.
130 A reasonable reader would have understood that there was some dispute between Ms Massey and the accountant where he refused to return the paperwork, had been argumentative, antagonising and cut her short and that she was of the opinion that he was therefore rude to his clients and unprofessional.
131 Accordingly, I find the defence of honest opinion made out in respect of the comments that Mr McEloney was rude and unprofessional and the implied comment that he displayed poor interpersonal skills to his clients.
132 I have previously found that there was no justification for the imputation that Mr McEloney had overcharged for his services and that he breached his professional obligation when he refused to return the paperwork to Ms Massey. The question remains whether the statements made by Ms Massey in this regard were an expression of an honest opinion.
133 Ms Massey stated in the second and seventh post that Mr McEloney wanted $550 for a 10 minute chat. Counsel for Mr McEloney submitted that this was a statement of fact and was not true. However, if these statements are read in the context of the remainder of Ms Massey's posts, it is apparent that she had also told the readers of these posts that Mr McEloney had prepared a tax return and that this had involved a personal tax return as well as a tax return for a business with an ABN. Read in context, her complaint is that Mr McEloney had a 10 minute chat with her in the foyer of his office, then prepared a tax return and wanted $550 for his services prior to the lodgement of the tax return. This follows from what she said in the second, third, fourth, fifth and seventh post.
134 Ms Massey does not have to prove that this was a fair or reasonable opinion, but only that an ordinary reasonable reader would have understood that in her opinion Mr McEloney was not entitled to charge $550 for the service that he had provided. Her main complaint about the service was clearly that Mr McEloney had only discussed the tax return with her and Mr Giddings during a 10 minute 'chat' in the foyer of his office. However, Ms Massey made it clear in the third and fourth posts that a tax return had also been prepared by Mr McEloney and the statement that he wanted $550 'for a 10 minute chat in the foyer of his office' cannot be read in isolation. The fact that Ms Massey was expressing an opinion is also illustrated by her saying in the second post that the services were not worth $550 'in my eyes'.
135 Accordingly, an ordinary reasonable reader would have understood that Ms Massey's implied allegation that Mr McEloney had overcharged for the services rendered, was an opinion based on her dealings with him and was substantiated by the facts that she had provided in the posts. These facts, namely that Mr McEloney had a 10 minute chat with her and Mr Giddings, had provided a personal and business tax return and had wanted $550 for his services prior to the lodgement of the tax return, were substantially true.
136 As regards the imputation that Mr McEloney breached his professional obligation when he refused to return the papers to Ms Massey, the fourth post stated that she was trying to get the paperwork back, but he still wanted $550 'just for the preparation'. Although the seventh post indicated that Mr McEloney did not want to hand over the documentation until she had paid $550 'for a 10 minute chat', an ordinary reasonable reader, with general knowledge and experience of worldly affairs, would have realised that there were two sides to a dispute where an accountant insisted on payment for having prepared a tax return and the other party did not want to pay the fee because she believed that it was not warranted by the service provided. A reasonable reader with experience of worldly affairs is also likely to have realised that Mr McEloney may have been entitled to withhold certain paperwork until he was paid. The eighth and ninth posts make it clear that the parties finally agreed on an amount of $275 and that Mr McEloney then returned the paperwork. A reasonable reader would have understood that Ms Massey was expressing an opinion that she should be entitled to have her paperwork returned without having to pay $550, while the accountant had a different view. The facts on which Ms Massey was basing this opinion were set out in the various posts.
137 This leaves the two imputations relied upon by Mr McEloney and admitted to by Ms Massey which contain conclusions, namely that Mr McEloney conducted his practice in such a way that he should not be engaged and that he was to be avoided in his professional capacity. Even though these two imputations have the appearance of statements of fact, an ordinary reasonable reader would have realised that they were conclusions from the other statements made.
138 Even a most explicit allegation of fact may be treated as a comment (or expression of opinion) if it would be understood by the reader or hearer not as an independent imputation, but as an inference from other facts stated: Channel Seven Adelaide Pty Ltd v Manock [35]; Cole v The Operative Plasterers Federation of Australia (NSW Branch) and Hudson (1927) 28 SR (NSW) 62, 67.
139 The imputations that Mr McEloney conducted his practice in such a way that he should not be engaged and that he was to be avoided in his professional capacity were clearly opinions that Ms Massey had arrived at based on the statements made about Mr McEloney being unprofessional and rude, having poor interpersonal skills, not providing a good service and wanting $550 after having conducted only a 10 minute chat with Ms Massey before preparing a tax return.
140 Accordingly, I find that the defence of honest opinion is made out in respect of all the statements made and conclusions offered by Ms Massey on the Facebook page of Poms in Perth.
Damages
141 As I have found that Ms Massey has established either the defence of justification or the defence of honest opinion with regard to each of the statements made by her, Mr McEloney is not entitled to any damages. However, in case I may be wrong with regard to the findings concerning Ms Massey's defences, I will deal with the question of damages.
142 Mr McEloney claimed general damages in the amount of $100,000, $674.90 for special damages and $20,000 as aggravated damages. The claim for aggravated damages was made on the basis that Ms Massey failed to apologise and also that Mr McEloney knew that she had made the defamatory statements for an improper purpose. The purpose was specified as her wanting to punish and humiliate Mr McEloney, because he had not been willing to include in the tax return the motor vehicle and dining out expenses and superannuation deductions that Mr Giddings had relied upon in the paperwork provided to Mr McEloney.
143 The purpose of damages awarded for defamation is to console the plaintiff for the hurt and distress suffered by him as a result of the publication, to compensate him for harm caused to his reputation and to provide vindication of his reputation: Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, 60, 60. The law places a high value upon the reputation of a professional, particularly upon the reputation of those whose work and life depend on their honesty, integrity and judgment: Crampton v Nugawela (1996) 41 NSWLR 176 195. The harm caused to the plaintiff often lies more in his own feelings, what he thinks other people are thinking of him, than in any actual change made manifest in their attitude towards him: Cassell & Co Ltdv Broome [1972] AC 1027, 1125.
144 There is no market value for reputation and the damages awarded are often said to be 'at large'. The assessment depends upon nothing more than the good sense and sound instincts of the jurors (or the court) as to what is a fair and reasonable award, having regard to all the circumstances of the case: Carson v John Fairfax & Sons Ltd (115); John Fairfax Publications Pty Ltd v O'Shane (No 2) [2005] NSWCA 291 [3].
145 Section 34 of the Act provides that in determining the amount of damages to be awarded, the court must ensure that there is an 'appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded'.
146 In assessing the amount of damages a court should take into account the extent of circulation, the gravity of the imputations, the apparent authority of the publication, its content and the circumstances of aggravation: Costello v Random (1999) 137 ACTR 1 [285]; John Fairfax Publications Pty Ltd v O'Shane (No 2) [58]. The 'grapevine effect' is also a relevant consideration. This means that the law recognises that the dissemination of the defamatory material is rarely confined to those to whom the matter is immediately published. In an ordinary society members of the community talk to each other about matters of public interest and concern. In that way the 'poison' of a libel may spread well beyond the confines of the person to whom it was immediately published: Belbin v Lower Murray Urban and Rural Water Corporation [2012] VSC 535 [217] (approved on appeal in Lower Murray Urban and Rural Water Corporation v Di Masi [2014] VSCA 104 [109] – [112]). However, the 'grapevine effect' is not a doctrine of law which operates independently of evidence. It depends on the nature of the statement and the circumstances in which it was published whether there is likely to have been a 'grapevine effect' and exactly what this may have constituted: Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 [89].
147 In this case 18 people made comments upon Ms Massey's posts. Perhaps more people read the posts, but did not make a comment. It is also possible that some of the people who read the posts discussed Ms Massey's statements with other people, but this is unlikely to have been widespread. Unless the reader knew Mr McEloney and the persons with whom the reader discussed the posts also knew him, there was no particular reason for spreading the statements about an accountant in Joondalup or his business 'JBS'. The content of the posts, namely that an accountant was rude, argumentative and unprofessional and overcharged for a particular service is not particularly newsworthy or so interesting that the readers of these posts would have been likely to tell others about it.
148 Mr McEloney sent an email to Mr Giddings at 4.14 pm that Friday telling him to advise his girlfriend that he would be seeking legal advice regarding her defamatory comments. Ms Massey gave evidence that when Mr Giddings came home that Friday night he asked her to remove the posts. She took a screen shot of all the posts and then deleted them at 11.20 pm that evening. She said by deleting her first post all other posts and comments were caused to be deleted. On the basis that the first post was made at about 10.00 am and the last around 4.00 pm, the defamatory statements were only on the Poms in Perth Facebook site for between about 7 and 13 hours.
149 Where there was only limited publication, the court may award limited or even nominal damages: Woolcott v Seeger [2010] WASC 19 [37].
150 The forum on which the publication was made is also relevant to the award of damages, even if Ms Massey was not entitled to rely on the defence of justification or honest opinion (for example, if she had not set out sufficiently the material on which she based her opinion). It would have been apparent to the ordinary reasonable reader that the defamatory statements were made by a person who was basing them on her personal experience of Mr McEloney's services and fees charged. It is a fact of modern life that social media has led to all service providers, be they hotels, restaurants, insurance companies, professionals or other suppliers of services, being exposed to people reviewing, and often complaining about, the services received. This is not necessarily a bad thing. It does bring with it, of course, the risk that reviewers post defamatory comments which have no basis in truth and are also not opinions based on material which is substantially true. That should not be encouraged.
151 However, the ordinary reasonable reader of this type of review site understands that the review involves one person stating their opinion about a particular service he or she received and that that person may wish to vent their anger, frustration or irritation about their experience. The review may therefore be a bit one-sided or exaggerated. The ordinary reasonable reader who uses this type of review site would also be aware that one person may regard a particular service provider as being outstanding, whereas another person may have had a negative experience and would describe the service as poor. In other words, the ordinary reasonable reader would read reviews about services on a Facebook or other website with appropriate caution and a bit of scepticism. The ordinary reasonable reader would also realise that what one person might regard as 'overcharging' might be a reasonable fee to another to whom a meticulous service or a reliable service provider was important.
152 Mr McEloney called three witnesses to support his allegation that his reputation had been damaged. Mr John Mason, who had downloaded and forwarded the posts to Mr McEloney, said he did not agree with what Ms Massey had said about Mr McEloney. He gave evidence that he had used Mr McEloney as the auditor for his real estate agency since 2004. He had known Mr McEloney to always be very professional, polite and a pleasure to deal with.
153 Mr Mason said he recognised when reading the posts that there were always two sides to every story, but it did cross his mind that he might have been wrong in previously assessing Mr McEloney as an amiable person. He also became concerned whether he had been overcharged in the past. He made enquiries and found out that Mr McEloney's fees were similar to what other professionals were charging. Mr Mason indicated that he was still using Mr McEloney as his auditor.
154 Ms Audrey De Beer gave evidence that she was self-employed as an accountant conducting her business through a company called Success Tax Professionals (STP). She had referred clients who required a company auditor to Mr McEloney since 2010. She became aware of the posts about Mr McEloney, because someone had brought it to her attention that her company, STP, had also been referred to in a negative manner by another person who had posted a comment to Ms Massey's posts. She read the posts made by Ms Massey and realised that they referred to Mr McEloney.
155 Ms De Beer gave evidence that she was confused after reading the posts. She had never experienced any problems after referring people to Mr McEloney, but said that it was human nature to start doubting yourself. She said she asked Mr McEloney about the posts a week or two later, but he did not say much apart from indicating that he was upset and angry. Ms De Beer stated that she was still referring clients to Mr McEloney.
156 Mr Peter Duguid gave evidence that he had used Mr McEloney as the auditor for his real estate agency since 2006. He said he was in the habit of accessing the Poms in Perth website several times a day. He saw the posts made by Ms Massey and was surprised and a little shocked at what they contained. He had always found Mr McEloney to be ethical, forthright and very professional. Mr Duguid said the statements made by Ms Massey made him question Mr McEloney's character 'a little bit', wondering whether he was mistaken. Nevertheless, the comments had not deterred him from continuing to use Mr McEloney as the auditor for his business.
157 The evidence led from these three witnesses was intended to show that the posts had damaged Mr McEloney's reputation. However, the evidence in fact confirms the reaction one would have expected from the ordinary reasonable reader of these posts on the Poms in Perth Facebook page. The ordinary reasonable reader would have realised that this was a dispute between two people about the level of services received and fees charged and that there are two sides to each story. If the reader knew Mr McEloney, the posts may have caused him or her to question their own views about Mr McEloney, but may not necessarily have changed their views. None of the three witnesses were deterred from continuing to use Mr McEloney.
158 It may be that there were people who read the posts who knew of Mr McEloney or his business, but did not have their own dealings with him to rely on in deciding what value they wished to place on the criticisms made by Ms Massey on these posts. There may have been some people who knew of Mr McEloney or his business and thought less of him after reading the posts or may have made a mental note not to use him as their accountant. However, the number of such persons is likely to have been very small.
159 Ms Massey did not place in dispute that her statements related to Mr McEloney, but the posts are not very explicit in identifying Mr McEloney or his business. The first post refers to him as 'Barry McIlevoy accountants in Joondalup'. The sixth post refers to 'JBS'. Unless the ordinary reader knew Mr McEloney or his business or had some contact with either, he or she is not necessarily likely to have realised or remembered that these posts referred to Mr McEloney or Joondalup Business Services. The wrong description of Mr McEloney's name and the abbreviated reference to the business name is also likely to have lessened the 'grapevine effect'.
160 Mr McEloney gave evidence that he was shocked, disappointed and hurt when he saw what Ms Massey had written about him. He said that he had always tried to run his business in a manner which kept his clients happy and he did not believe that what Ms Massey had said was a true reflection of the way he handled his clients' affairs and how he dealt with clients. Mr McEloney stated that he was very concerned about how many people had read the posts and whether the content of them had spread. When he realised that there were some 9,000 members of the Poms in Perth Facebook site, he spent many hours scrolling through the list of members and identified that he had 12 or 14 clients who were members of this site. He realised that Bronwyn Brown, who had made a recommendation of another accountant in one of the comments to Ms Massey's post was the wife of an accountant he knew. He was therefore concerned who had read the posts and with whom they had been discussed. Mr McEloney said approximately half of his clients were from the United Kingdom and he was concerned about the grapevine effect.
161 Mr McEloney gave evidence that he became anxious about whether people whom he met in the street had read the posts or had heard about them and was concerned how they felt about him as a person. He said he became distressed and saw his general practitioner, Dr Lee, in October 2014. Dr Lee provided counselling on a few occasions and referred him in May 2015 to a psychiatrist, Dr Chester.
162 Mr McEloney tendered four invoices provided to Medicare indicating that he had consulted Dr Lee on 16 October 2014 and 14 May 2015 with regard to his mental health and had seen Dr Lee twice in between for a standard consultation on 30 October 2014 and 20 February 2015.
163 Mr McEloney gave evidence that all four consultations related to the stress and anxiety that he had experienced as a result of the posts. However Dr Lee was not called to confirm this nor was any report by him tendered to state that Mr McEloney had seen him only with regard to stress and anxiety and that these problems arose from him having been confronted with the defamatory statements on the Poms in Perth website.
164 Mr McEloney tendered a letter from Dr Chester to Dr Lee, dated 22 May 2015, in which she said that Mr McEloney had developed a generalised anxiety disorder and depressive symptoms 'in the context of a vexatious client and the subsequent legal and professional issues that arose'. She advised that in her view the anxiety was not likely to resolve spontaneously even if a conclusion was reached 'in August' (meaning after the trial of this matter). Dr Chester informed Dr Lee that she had referred Mr McEloney for anxiety management to a clinical psychologist and had advised him to increase his medication.
165 Mr McEloney tendered a further report by Dr Chester, dated 19 August 2015 (the day before the trial), in which she confirmed that it was her understanding that Mr McEloney's symptoms commenced from the time of him becoming aware of the on-line publication of defamatory comments about him. She advised that Mr McEloney had told her that he did not have symptoms of anxiety and depression prior to the defamatory comments having been posted on line. She stated that Mr McEloney had developed insomnia, nail biting, headaches, low mood, clouding of his cognition and memory and a loss of motivation and energy. He had withdrawn from previously pleasurable pursuits such as marathon running and was unable to relax. Dr Chester changed her earlier diagnosis of a generalised anxiety disorder with 'depressive symptoms' to a major depressive disorder and generalised anxiety disorder. She stated that in her opinion the stress from the defamatory comments had precipitated the development of these conditions.
166 Ms Massey did not object to the tender of the reports by Dr Chester, indicating that she did not wish to inconvenience Dr Chester in having to give evidence. She questioned, however, why Mr McEloney was only referred to a psychiatrist in May 2015, if his anxiety and depression had arisen in August 2014 when she made the posts on the Poms in Perth Facebook page.
167 Ms Jane Bell, Mr McEloney's partner, gave evidence that she was not aware of any reasons for Mr McEloney's depression other than the defamatory posts.
168 It seems that damages for personal injury, be it physical or mental harm, are also recoverable as part of a claim for defamation: Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 [1315]; Rigby v Mirror Newspapers Ltd [1964] NSWR 868, 870, 872, Mirror Newspapers v Jools (1985) 5 FCR 507, 510.
169 In common law the usual test for causation in tort is applied to a claim for defamation. Accordingly, as long as the defamatory comments made a material or substantial contribution to the harm suffered by the plaintiff, including a mental health condition, the defendant is liable for the harm the plaintiff experienced: Rigby v Mirror Newspapers Ltd (870); Amalgamated Television Services Pty Ltd v Marsden [1448] – [1449].
170 The Civil Liability Act 2002 (WA) 2002 which restricts damages for purely psychiatric injury to what was foreseeable by the defendant in respect of a plaintiff of normal fortitude, seems not to be applicable to claims for damages arising from defamation. Section 5R provides that Part 1B, dealing with mental harm, applies to any claim for personal injury damages even if the damages are sought to be recovered in an action for breach of contract or 'any other action'.
171 However, the section which restricts a claim for damages for mental harm, s 5S(1), states that a defendant does not 'owe a duty of care' to a plaintiff to take care not to cause the other person mental harm, unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care was not taken.
172 The reference to a 'duty of care' and the taking of 'reasonable care' appears to mean that s 5S does not apply to damages awarded for a psychiatric illness which flows from the hurt suffered by a plaintiff as the result of defamatory statements or from the damage done to his reputation. Counsel for Mr McEloney submitted that the Civil Liability Act 2002 (WA) 2002 did not apply to a claim for defamation for that reason.
173 Counsel submitted that it was well established in defamation law that a defendant had to take the plaintiff as he or she found him. This proposition was accepted in Ali v Nationwide News Pty Ltd [2008] NSWCA 183 [77].
174 Nevertheless, pursuant to s 34 of the Act the court must ensure that there is an 'appropriate and rational relationship between the harm sustained and the amount of damages awarded'. It has also often been said that the whole process of assessing damages for defamation is essentially a matter of impression and not addition: Cassell & Co Ltd v Broome (1072).
175 In order to allow Mr McEloney a substantial award of damages for his anxiety and depression, the court would have had to be provided with more substantial evidence than Mr McEloney's assertion that his anxiety and depression arose from the posting of the defamatory comments and the report by Dr Chester which was largely based on Mr McEloney's assertions in that regard. At the very least one would have expected Dr Chester and also Dr Lee, who was the first to diagnose these conditions, to give evidence of the likely cause of them based on their practice notes. The fact that Ms Massey was given the option of cross-examining Dr Chester and declined it and did not object to the late tender of the expert reports, does not mean that I should accept everything said in the reports on face value.
176 If I had to assess the amount of damages, I would not have discounted Mr McEloney's diagnosis of anxiety and depression, but would have had some concern as to how much of it has an 'appropriate and rational relationship' to the defamatory statements. The evidence has not quite explained why Mr McEloney was so affected by the defamatory statements as to have developed anxiety and a major depressive disorder. I accept that some people may be more emotionally affected by negative events than others. However, one would generally expect the recipient of such criticism to have been angry and upset for some time, but to then have realised that these were comments by one person, made to a limited audience, in circumstances where it was apparent that there was a dispute between two parties which was likely to have had two sides to the story. It would have been obvious to anyone reading these posts that this was one particular client who was dissatisfied with one particular service.
177 Further, Mr McEloney knew that the posts had not remained on the Poms in Perth site for long. Mr Giddings sent an email to Mr McEloney on 1 September 2014 advising him that Ms Massey had removed the post. As discussed earlier, it is unlikely that many more than 18 people read the posts and the grapevine is likely to have been very limited.
178 It should also be noted that Mr McEloney brought Ms Massey's anger and reaction onto himself to a large extent by his abrasive and abrupt conduct and the inflammatory email sent on the Friday morning. A plaintiff's provocative conduct may be taken into account when the amount of damages for defamation is assessed: Cassell & Co Ltd v Broome (1071).
179 Counsel for Mr McEloney submitted that the cases referred to in pars 63 – 69 of his written submissions were comparable for purposes of assessing damages. I do not agree that they are comparable. Each case needs to be decided on its own facts. To a large extent the only comparable aspect of those cases with the present case is that they also concerned defamatory statements about professionals.
180 Taking into account all the circumstances relevant to the publication of Ms Massey's defamatory statements, the forum, the likely number of people who would have read the posts or heard of them from readers, the nature of the criticism, the extent to which it is likely to have affected Mr McEloney's reputation as an accountant and the hurt, anxiety and depression experienced by Mr McEloney as a result, I would have awarded him $10,000, if all the defences in respect of all the statements and imputations had failed.
181 If I had been of the view that Ms Massey had justified the comments that Mr McEloney had been rude and unprofessional and had displayed poor interpersonal skills to his clients, but had found that the defence of honest opinion with regard to the comment that Mr McEloney over-charged for his services had not been made out, I would only have awarded Mr McEloney $5,000. The comments that Mr McEloney was rude and unprofessional were in my view more likely to damage his reputation than the comment that he overcharged for his services. As I said earlier, whether a service provider 'overcharges' is often a question depending on what the particular client is prepared to pay for a particular level of services.
Aggravated damages
182 Mr McEloney also claimed aggravated damages. Where the conduct of the defendant towards the plaintiff at the time of publication or afterwards was improper, unjustifiable or lacking in bona fides and this aggravated the injury to the plaintiff, increased damages may be awarded: Triggell v Pheeney(1951) 82 CLR 497, 514.
183 Section 36 of the Act provides the following:
36. State of mind of defendant generally not relevant to awarding damages
In awarding damages for defamation, the court is to disregard the malice or other state of mind of the defendant at the time of the publication of the defamatory matter to which the proceedings relate or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff.
185 However, it has been recognised that aggravated damages may be granted for a failure to apologise, provided such failure involved conduct that lacked bona fides or was otherwise improper or unjustifiable: Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225, 243; McMahon v John Fairfax Publications Pty Ltd (No 7) [2013] NSWSC 933 [142]. In Clark v Ainsworth (1996) 40 NSWLR 463, 468, 473 it was held that a mere failure to apologise, without improper or unjustifiable conduct, could increase the amount of compensatory damages (in contrast to aggravated damages), if the failure to apologise had enlarged the hurt suffered by the plaintiff.
186 Mr McEloney sent an email to Mr Giddings on 1 September 2014 advising that he had taken legal advice and requesting that Ms Massey make the particular apology set out in the email. The wording of the requested apology was as follows:
I Steph Massey apologise to Mr Barry McEloney and his company Joondalup Business Services Pty Ltd (JBS) for the malicious untrue comments made by me last Friday. I apologise for calling him a shark and a clown and I retract my malicious comments made. The truth is my partner and I came in to see him without an appointment on Monday 25 August, 2014. My partner signed and [sic] engagement letter requesting Joondalup Business Services to complete his personal tax return. The fee they charged my partner was for the preparation [of] his personal tax return which included employment and contract ABN income. The tax agents fee of $550 was not unreasonable based on the time taken to summarise his income and expenses for the 4 quarters and taking GST into account.
My partner called up JBS and advised that I was coming in to pay their fee and collect the paperwork. It was untrue that I called the police as it was JBS who called the police after asking me to leave their premises on 3 occasions.
I am sorry for the malicious comments made and any damage it may have caused.
187 Ms Massey gave evidence that she did not want to publish the apology on the Poms of Perth Facebook page, because she was of the view that it was not correct. She disagreed that her comments had been malicious and untrue. She said on the face of it, it was true that she and Mr Giddings had arrived without an appointment, but the real truth was that they had not been required to make an appointment. Mr McEloney had not asked them to do so. Ms Massey gave evidence that she also disagreed with the statement in the apology that $550 was not an unreasonable fee. She further objected to the statement in the apology that it was untrue that she had called the police. Her position was that she never said in her posts that she had called the police.
188 Ms Massey gave evidence that she also did not apologise, because she did not believe that having made her comments on a private Facebook page and having deleted them the same day had caused any damage to Mr McEloney, other than to his ego.
189 Mr McEloney tendered a concerns notice which had been posted to Ms Massey on 11 September 2014 and complied with s 14(2) of the Act. The notice allowed Ms Massey 28 days in which to make amends. Ms Massey gave evidence that she obtained legal advice with regard to the concerns notice. However, the writ of summons was served on her on the evening of 24 or 25 September, prior to the expiry of the 28 days relating to the concerns notice. Ms Massey said her lawyers then advised her that it was too late to apologise.
190 Ms Massey gave evidence that she had subsequently offered on a number of occasions to publish an apology on the Poms in Perth Facebook site, but Mr McEloney had attached a number of specific conditions to such an apology, particularly the payment of damages and legal costs, which she was unable to comply with.
191 The court was provided with a series of emails exchanged between the parties shortly prior to the start of the trial in which Ms Massey offered to post an apology on the Poms in Perth Facebook page but stated it would have to be a correct one, not the initial one which was incorrect. She also offered to pay Mr McEloney $1,000, which she said was the only money she had saved. She stated that she was saddened to hear of Mr McEloney's depression and anxiety, adding that the situation seemed to have gotten out of hand and that she regretted not having discussed the particulars of an apology earlier with Mr McEloney.
192 In response, Mr McEloney's counsel informed Ms Massey that any apology to be published on the Poms in Perth Facebook page would have to be in the terms drafted by Mr McEloney. Further, unless she paid a specified sum by way of damages and all of Mr McEloney's costs, the trial would proceed. Ms Massey was also advised that if Mr McEloney was successful at trial, he would most certainly commence bankruptcy proceedings against her.
193 There is no indication that Ms Massey failed to apologise because she wanted to punish and humiliate Mr McEloney or for any other improper purpose. She initially failed to apologise, because she did not agree with the terms of the apology and did not believe it was necessary and later, closer to the trial, because she was not prepared to accept the financial demands tied to the apology by Mr McEloney. In the email exchange shortly prior to the trial, Ms Massey wrote the following to Mr McEloney's counsel:
It was never my intention to ruin Mr McEloney's reputation, nor is it still. I was so shocked at his behaviour and did not want anyone else to experience the same situation as me.
194 I do not accept that Ms Massey's failure to apologise arose from any improper purpose or lacked bona fides. I am also not satisfied that the failure to apologise materially increased the hurt felt by Mr McEloney. He gave evidence that he was disappointed that Ms Massey did not post an apology on the Poms in Perth Facebook page, but was also upset because she made complaints to the Department of Consumer Affairs and the Institute of Chartered Accountants and discussed his reaction on the LawAnswers website. There was no reason why Ms Massey was not entitled to take these steps.
195 It is further doubtful that an apology on the Poms in Perth Facebook page would have been helpful. Mr McEloney only asked Ms Massey to publish an apology two days after she had already removed the posts. Publishing an apology at that stage would only have drawn attention to the matter and may have raised the interest of readers of the Facebook page with regard to what had been said in the first place.
196 I am also not persuaded that Ms Massey posted the statements on the Facebook site with the purpose of humiliating and punishing Mr McEloney, because he did not allow the deductions for business expenses that Mr Giddings had put forward. The impetus for the posts was more likely that Ms Massey was angry and upset about the service she had received, as viewed from her perspective, and she expressed her anger and frustration in strong and feisty language.
197 Ms Massey also made a complaint to the Department of Consumer Protection about Mr McEloney's conduct on 10 October 2014, reporting on their dealings with each other in detail and describing Mr McEloney's attitude as rude, obnoxious, threatening, unprofessional and condescending. She was advised that the Department of Consumer Protection could not take the matter any further, but was referred to the Institute of Chartered Accountants. Ms Massey subsequently made a complaint to the Institute of Chartered Accountants. It is unlikely that Ms Massey would have complained to the Institute of Chartered Accountants, if she knew at heart that the real dispute was about Mr McEloney's reluctance to allow for certain deductions.
198 It is unfortunate that the parties did not engage in a sensible exchange of information regarding how each was feeling about the treatment received from the other, but instead took an entrenched position where legal costs soon became an additional barrier to a settlement. Ms Massey gave evidence that she felt hounded by Mr McEloney and his lawyers.
199 I therefore do not accept that Ms Massey posted the comments to 'get back at Mr McEloney', as his counsel put it. She was simply up in arms about the manner in which she and Mr Giddings had been treated and she had good justification for that based on the email in which Mr McEloney essentially accused her partner of tax fraud and threatened to refer Mr Giddings' affairs to the ATO.
200 Accordingly, even if Mr McEloney had been successful in his claim for damages, I would not have allowed any aggravated damages.
Costs
201 The usual order for costs should be made, namely that Mr McEloney pay Ms Massey's costs (of her previous solicitors) to be taxed, if not agreed.
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