Parke v Zivkovic
[2021] VCC 41
•9 February 2021
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Defamation List
Case No. CI-20-01843
| JAMES CHRISTOPHER ANDREW PARKE | Plaintiff |
| v | |
| GRADIMIR ZIVKOVIC | First Defendant |
| and | |
| AUTOMOTIVE SAFETY ENGINEERING (ACN 066 476 051) | Second Defendant |
| and | |
| IMPACT ABSORBING SYSTEMS PTY LTD (ACN 613 768 700) | Third Defendant |
---
JUDGE: | HER HONOUR JUDGE TRAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 December 2020 | |
DATE OF JUDGMENT: | 9 February 2021 | |
CASE MAY BE CITED AS: | Parke v Zivkovic & Ors | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 41 | |
REASONS FOR JUDGMENT
---
Subject: DEFAMATION
Catchwords: Defamation – Assessment of damages – Final injunctive relief – Settlement agreement – Whether accord executory, accord and satisfaction or accord and conditional satisfaction – Consequences of delay in bringing application
Legislation Cited: Defamation Act 2005 (Vic); Civil Procedure Act 2010; Penalty Interests Rates Act 1983 (Vic)
Cases Cited:Victorian Economic Development v Clovervale Pty Ltd [1992] 1 VR 596; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; Ali v Nationwide News Pty Ltd [2008] NSWCA 183; Triggell v Pheeney (1951) 82 CLR 497; Bauer Media Pty Ltd v Wilson (2018) 56 VR 674; Wilson v Bauer Media Pty Ltd [2017] VSC 521; Hockey v Fairfax Media Publications Pty Ltd (No 2) (2015) 237 FCA 127; Lubura v Nezirevic (2013) 42 VR 43; Osborn & Bernotti t/as GO4 Productions v McDermott t/as RA McDermott & Co & Karmine Pty Ltd [1998] 3 VR 1; Scaffidi v Perpetual Trustees Victoria Ltd [2011] WASCA 159
Judgment: Damages assessed and permanent injunction granted
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Collins QC AM with Ms M Marcus | Parke Lawyers Pty Ltd |
| For the Defendants | Mr H Kirimof (direct access) |
HER HONOUR:
1 It was the last Saturday before Christmas. Lawyer Jim Parke had closed his offices for the Christmas/New Year break and was heading down to Phillip Island the next day for a beach holiday with friends. A notification came through to Mr Parke’s mobile phone that his business, Parke Lawyers, had received a new Google review. Late that evening, Mr Parke opened up the Google review facility for Parke Lawyers to read the review. He was horrified by what he saw. It was a one-star review left by the first defendant, Gradimir Zivkovic (“the first review”), which said:
“I am Automotive Engineer and Inventor of Energy Absorbing Bollards and Jim Parke drafted a Licence Agreement for his client Roadside Services and Solutions. What a one sided and dishonest legal document, which gave Jim Parke promotion to RSS Partner and left me with millions of Dollars loss.”[1].
[1]Court Book (“CB”) 5.
2 As has been admitted by Mr Zivkovic, the allegations made about Mr Parke in this review were untrue. Mr Parke simply did not draft any such licence agreement.
3 Over the ensuing days, Mr Parke became aware of three more Google reviews posted by Mr Zivkovic which contained untrue and defamatory statements about Mr Parke. One was a further review for Parke Lawyers (“the second review”). It effectively followed on from the second review, stating:
“Anybody interested in my Licence Agreement to see how unfair is? please send me your email and will forward it to you. Grad Zivkovic
I am late to pay superannuation for my employees due to the RSS – Jim Parke refuse to pay $200,000. Royalty payments for selling my bollards. Tries to break me . Lovely Lawyer . When Jim pays me the money he owes me , I will pay the supper for all my employees and buy a bottle of wine for Jimmy boy”[2]
[2]CB 6.
4 The third review was posted to the Google review facility of the second defendant, Automotive Safety Engineering Pty Ltd (“ASE Pty Ltd”). It stated, relevantly:
“Jim Parke form Parke Lawyers is another long and painful story. Typical greedy lawyer who assisted Roadside Services and Solutions to steal our Energy Absorbing Bollards technology and without paing royalties. This is a payback for reported him to Victorian Legal Services ! I did not expect anything better from this old and greedy layer.
In spite of Jim's negative review he is still selling my bollards EABs and not paying a cent of royalties. What a hypocrite – educations from his Law Degree”[3]
(sic)
[3]CB 8.
5 The fourth review was purportedly posted as a review of the third defendant, Impact Absorbing Systems Pty Ltd (“IAS Pty Ltd”). It stated, relevantly:
“What a noncence written by a bad Lawyer. Jim Parke so concerned about the safety of our Energy Absorbing Bollards– but still refuse to stop selling them even after the Licence was suspended in July this year. Typical lawyer – does not like the merchaendise but likes the money.
Jim Parke is also a brilliant lawyer who prepared for RSS the most dishonest Licence Agreement in order to steal from us intellectual Property and transfer it to his Partner Jared Watkins from famous Roadside Srlervised and Solutions.
But there is one good thing about Jim Parke , he does not smoke !
The failed test is a story up by Mike Higgins who dicided to lift the bolltad 200mm to look taller without asking .
Not all tests pass , whick obviously Mr big shot Lawyer Jim Parke does not know!
Plenty of TL2 pass tests on our web site including the one for Transport Minister.
Please Mr Jim Parke stop selling unsafe bollards!
In real life over 15 years our EAB have be impacted by out of control vehicles over 20 times acording our evidemce and never failed to stop the out of control car. All of them were installed by the previous Licences and not Roadside Services and Solutions.
Roadside Services and Solutions refuse to provide Installation Certificates which suppose to confirm grade of concrete used, hole deepth reo cage use, etc.
I just pray to God that the EABs installed by RSS would stop the out of controll cars too. If not you will hear it in this space.
I did not beg Roadside Servisces and Solutions to sell my EAB I was happily selling them myself through Impact Absorbing Systems Pay Ltd, and negotiating with Artcraft to be my Prefer[r]ed Distributor when Craig Woods and Jared Watkins begged me to change my mind and sign with Roaside Services and Solutions. The biggest mistake I have made for a long time. And even bigger mistake accepting Jim Parke to prepare Licence Agreement that at present cost me over 1M$.
If you like a copy of my famous Licence Agreement, please send me your email address and I will happily forward you a copy of my big mistake provisional Licence Agreem[e]nt rushed so RSS can get a bank loan.”[4]
(sic)
[4]CB 9–10.
6 Mr Parke formed the view that the defendants were engaged in a campaign against him. He felt extremely angry, upset and anxious. He spent his days at Phillip Island anxiously checking his phone and monitoring the internet for further reviews or other publications.
7 Ultimately, he commenced these proceedings by Writ and Statement of Claim filed 27 April 2020, seeking damages and injunctive relief for defamation.
8 On 26 June 2020, judgment in default of appearance was entered against the defendants for damages to be assessed. This default judgment is final as to the question of liability.[5] The defendants are deemed to have admitted the facts pleaded in the Statement of Claim in relation to liability for publication, including the making of the publications, the imputations to be drawn from those publications, and their defamatory nature.
[5]Victorian Economic Development Corporation v Clovervale Pty Ltd and Others [1992] 1 VR 596 at 598
9 Mr Parke now seeks the assessment of his damages. He claims general compensatory damages, including aggravated damages, for the defendants’ defamations. In these reasons, I assess these damages (“the trial assessment”).
10 In addition, I consider two further applications:
(a)Mr Parke’s application[6] for final injunctive relief (“the injunction application”); and
(b)the defendants’ application, made by Summons filed 7 December 2020 for the proceeding to be “dismissed” with associated costs orders (“the defendants’ summons application”).[7]
[6]The application was made in Mr Parke’s written submissions filed 7 December 2020 and orally at the trial assessment. The defendant made no procedural objection to the application for an injunction being brought in this manner – Transcript (“T”) 61, Lines (“L”) 10–19.
[7]The Summons also sought a vacation of the trial assessment, however in an email from my associates sent on 8 December 2020, I indicated that my preliminary view was that the trial assessment should proceed and the summons application be further addressed in written closing submissions. This course was not opposed by either party.
11 I will describe the relevant factual context (which is largely not in dispute) below, before considering the trial assessment, the injunction application and the defendants’ summons application.
Factual context
Mr Parke’s reputation
12 Mr Parke is a highly qualified and experienced lawyer, accountant, company director and councillor, with an impeccable reputation and a long history of leadership and community service.
13 Mr Parke’s reputation is intertwined with the reputation of the eponymously named Parke Lawyers. Parke Lawyers is an incorporated practice with offices in the Melbourne CBD, Kew and Ringwood. Mr Parke is its managing director. Parke Lawyers has thirteen employees and offers a broad range of legal services. It receives approximately 20 to 25 per cent of its new clients through its general email address and invests heavily in promoting its online presence. During 2019, Mr Parke spent more than $50,000 on Parke Lawyers’ website, search engine optimisation, social media and online presence. Parke Lawyers also invests tens of thousands of dollars sponsoring community events such as the Camberwell Art Show, Carols by Candlelight and the Maroondah Festival.
14 Mr Parke is the managing director of Pty Ltd, which operates an online conveyancing service under the name Conveyancing.com. Mr Parke is also the director of a number of other companies, including Roadside Services and Solutions Pty Ltd (“RSS Pty Ltd”), which is a civil works, engineering and manufacturing business.
15 Mr Parke has served as a councillor with Boroondara City Council since 2012. He was elected Mayor of Boroondara for two terms, in 2015-2016 and 2016-2017. He was first elected as councillor in 2012 with 30.02 per cent of the first preference votes. He was re-elected unopposed in 2016. He was most recently re-elected in the Boroondara City Council elections held on 24 October 2020, with 40.73 per cent of the primary vote.
16 Mr Parke has performed in numerous other community services roles over the years, including as a community member of the Adult Parole Board of Victoria, as chairman of Crime Stoppers Australia, as president of the Victims of Crime Association and as president of Crime Stoppers International.
17 Mr Parke is, among other things, an accredited commercial law specialist; a Fellow of the Australian Institute of Company Directors; a Fellow of the Institute of Chartered Secretaries and Administrators; a 2014 Fellow of the Governance Institute of Australia; a Fellow of CPA Australia; a Fellow of the Institute of Public Accountants and of the Institute of Financial Accountants; and a Fellow of the Institute of Managers and Leaders Australia and New Zealand.
18 With good reason, Mr Parke takes immense pride in his achievements and contributions to the community. He cares deeply about his reputation. He is acutely aware of the importance of that reputation to his business interests, including at Parke Lawyers, to his ongoing role as Councillor at Boroondara City Council and to his desire to secure roles as a company director in the future when he moves into semi-retirement.
Roadside Services and Solutions Pty Ltd
19 In early 2017, Parke Lawyers prepared a draft licence agreement for RSS Pty Ltd. Mr Parke did not have any involvement in the preparation of this licence agreement. At that time, Mr Parke was not a director of RSS Pty Ltd.
20 The licence agreement referred to by Mr Zivkovic in the four reviews was a licence dated 8 August 2017. The defendants admit that Mr Parke did not draft this agreement. Mr Parke gave evidence that neither he nor his firm were involved in the drafting of this agreement and that in his view it was an amateurish, inconsistent and confusing document. Mr Parke said that had he been aware of it at the time, he would have advised RSS Pty Ltd not to sign it.
21 On 6 September 2017, Mr Parke was asked by the managing director of RSS Pty Ltd whether he was interested in becoming a director and shareholder of RSS Pty Ltd.
22 On 30 April 2018, Mr Parke became a director of RSS Pty Ltd.
Events after publication
23 I will set out the events after publication in some detail, as these events are relevant to each of the matters decided in these reasons.
24 After reading the first review, Mr Parke spoke to his friend and business associate, Ms Giovanna Yolanda Torrisi. Ms Torrisi is a public relations and corporate affairs consultant. She is a shareholder in the ultimate holding company of Parke Lawyers, Conveyancing.com and also in RSS Pty Ltd. She has undertaken public relations work for Mr Parke for a number of years, both directly for Mr Parke and also in relation to his various businesses. She is an administrator for Google reviews for Parke Lawyers, so also receives automatic notifications whenever a Google review is posted on the Parke Lawyers Google review facility.
25 Ms Torrisi observed that Mr Parke was incredibly angry about the first (and, subsequently, second) reviews. She was taken aback by his uncharacteristic use of expletives and fierce reaction. She did not think it was a good idea for Mr Parke to speak directly to Mr Zivkovic. She offered to speak to Mr Zivkovic, to try to get him to take down the reviews.
26 Ms Torrisi spoke to Mr Zivkovic by telephone on 24 December 2019 for about forty minutes. Ms Torrisi observed that Mr Zivkovic’s demeanour in the call was “like a man possessed”. Mr Zivkovic told her that his business had been stolen from him, that he would arrange to go after Mr Parke and that he knew “hit men”. Ms Torrisi told Mr Zivkovic that he had no justification for what he had written about Mr Parke and that he needed to remove what he had written. Mr Zivkvoic said that he would go home and think about their conversation and about removing the reviews, but he was not sure that he knew how to remove the reviews. Ms Torrisi said she would call him again to talk him through how to remove the reviews.
27 Ms Torrisi tried to call Mr Zivkovic again on a number of occasions over the next few days, but Mr Zivkovic never answered her calls.
28 By 9 January 2020, the first review had been removed. However, the remaining three reviews remained on the Google review facility. At some point, Mr Zivkovic also posted a further review,[8] on the Google review facility for IAS Pty Ltd (“the further IAS review”). That review, among other things, stated that Mr Zivkovic had “received 47 requests for now his famous Licence Agreement and 6 more orders from my ‘unsafe’ bollards. Thank you Jim.”[9]
[8]Exhibit JP-7 to the First Affidavit of James Christopher Andrew Parke, affirmed 15 July 2020.
[9]CB 99.
29 On 15 January 2020, Parke Lawyers sent a concerns notice to the defendants on behalf of Mr Parke. The concerns notice set out the text of each of the four reviews and the imputations which were said to arise from those reviews. It also included a detailed explanation as to why the contents of each review was false. The concerns notice invited Mr Zivkovic to make an offer of amends and informed the defendants that Mr Parke intended to commence proceedings against the defendants should the matter not be resolved by an acceptable offer to make amends within twenty-eight days.
30 On 6 February 2020, Mr Zivkovic replied to the concerns notice. In a four-page letter, he made a number of further allegations about Mr Parke and also RSS Pty Ltd. He stated:
“I am prepared to remove our negative post od [sic] Google if the following conditions are met:
A) Accept Licence Agreement termination from 19th July 2019.
B) Stop immediately manufacturing and selling IAS range of products.
C) Pay royalties from July 2019 until now.
D) Allow independent Audit of your all (sic) RSS Sales Figures, as documented in your Licence Agreement prepared by your Lawyer from Parke Lawyers ( in past RSS was instructed to fabricate different reasons for not providing requested documents). Since the beginning of the Licence Agreement 07th of August 2017 IAS was never provided with Complete sales figures with Customer name, location where the EAB are fitted original sales price, etc.”[10]
[10]CB 92.
31 On 12 February 2020, Parke Lawyers wrote again to the defendants. The letter emphasised that “the concerns notice is solely in respect of the publication of material defamatory of Mr Jim Parke” and described Mr Zivkovic’s grievances with Parke Lawyers and RSS as “presently irrelevant”. It went on to state “The proposal for the removal of the post(s) set out as [A] to [D]…[of your letter] cannot amount to an offer to make amends as it requires actions by a third party (RSS) as preconditions to you ceasing to defame Mr Parke.” The letter stated that Mr Zivkovic’s proposal was rejected. It urged Mr Zivkovic to obtain independent legal advice and confirmed that the timeframe for a valid offer to make amends expired on 17 February 2020.
32 No further response was received from the defendants. The second, third and fourth reviews remained available on the Google review facilities for Parke Lawyers, IAS Pty Ltd and ASE Pty Ltd.
33 On 27 April 2020, Mr Parke filed the Writ and Statement of Claim.
34 On 26 June 2020, default judgment for damages to be assessed was entered against the defendants and the trial assessment of damages was listed for 30 July 2020.
35 On 16 July 2020, Mr Parke filed four affidavits in relation to the trial assessment of damages.
36 On 29 July 2020, the day before the listed trial assessment, notices of appearance were filed by the law firm Furman+Furman on behalf of each of the defendants.
37 At 7.28pm that day, Parke Lawyers emailed an offer of compromise to Furman+Furman, which was expressed to be open for acceptance until 10.00am the next day. I will set out the terms of the offer of compromise in more detail later in these reasons, when considering the defendants’ summons application. For now, it is sufficient to note that under the terms of the offer:
(a)the defendants would be required to pay $80,000 to the plaintiff by 29 August 2020;
(b)Mr Zivkovic would be required to “immediately”:
(i) delete each of the four reviews;
(ii) delete an additional review published via the Google review facility for RSS Pty Ltd, which is not the subject of this proceeding and which did not specifically refer to Mr Parke (“the RSS review”);
(iii) publish apologies via the Google review facilities for IAS Pty Ltd, ASE Pty Ltd and RSS Pty Ltd in the following words, to remain visible until 30 January 2021:
“On or about 21 December 2019, I published incorrect allegations about Mr Jim Parke through ‘Google review’. I acknowledge that the statements I made about Mr Parke were untrue. I apologise to Mr Parke for the hurt, embarrassment and distress caused by my comments. Yours sincerely, Gradimir Zivkovic.”[11]
(iv)delete a notice which had been posted on the IAS website concerning RSS Pty Ltd, which commenced “Important Notice” and alleged RSS Pty Ltd had committed “unacceptable practices” (“the Important Notice”). Like the RSS review, the “Important Notice” is not the subject of this proceeding and did not specifically refer to Mr Parke; and
(v) post an apology on the IAS website in the following words, to remain visible until 30 January 2021:
“Important Notice: On or about 21 December 2019, I published incorrect allegations about Mr Jim Parke through 'Google review'. I acknowledge that the statements I made about Mr Parke were untrue. I apologise to Mr Parke for the hurt, embarrassment and distress caused by my comments. Yours sincerely, Gradimir Zivkovic.”[12]
[11]CB 173.
[12]CB 174.
38 At 9.56 am on 30 July 2020, Furman+Furman emailed Parke Lawyers stating:
“… We are instructed to accept [the offer of compromise] on behalf of our clients. Please forward the consequent consent orders for signing at your earliest convenience.”[13]
[13]CB 176.
39 At 4.40 pm on 30 July 2020, Parke Lawyers emailed Furman+Furman, stating:
“Terms of settlement and the minutes of proposed consent orders are still with counsel. I did expect to get them to you today however, at this stage, that may not be possible.
As you know, our agreement required the removal of the publications ‘immediately’. Could you please let me know when your client has attended to their removal and the reposting of the apologies.”[14]
[14]CB 178.
40 At 4.52pm on 30 July 2020, Furman+Furman replied to Parke Lawyers “I am instructed that the publications have been removed”.[15]
[15]CB 180.
41 At 5.08pm on 30 July 2020, Parke Lawyers emailed Furman+Furman noting that it appeared that the Google reviews on the IAS Pty Ltd and Parke Lawyers Google review facility, and the “Important Notice” on the IAS Pty Ltd website, were still present.
42 On the morning of 31 July 2020, Robert Wilson from Parke Lawyers spoke to Ilyas Furman from Furman+Furman by telephone. Mr Furman said that his client was not very good with computers and requested information about the publications.
43 At 10.57am that same morning, Parke Lawyers emailed Furman+Furman with links and copies of the Google reviews on the Parke Lawyers and IAS Pty Ltd Google review facility and the Important Notice on the IAS Pty Ltd website.
44 At 9.47am on 3 August 2020, Furman+Furman sent an email to Parke Lawyers stating:
“I confirm that our client has over the weekend taken all steps in our client's power to comply with the agreed settlement terms by either removing the publications where removal was possible, or by notifying the relevant platform administrator of our client's demand that the relevant publication be removed as soon as possible.”[16]
[16]CB 190.
45 At 10.18am on 3 August 2020, Parke Lawyers sent an email to Furman+Furman with specific instructions on how to delete the Google reviews. At 11.28am, Furman+Furman responded with an email stating that their client was unable to remove the publication and was liaising with Google to remove it as soon as possible.
46 At 9.28am on 6 August 2020, Parke Lawyers sent an email to Furman+Furman proposing to adjourn the trial assessment to after 29 August 2020. Furman+Furman then replied at 9.35am stating:
“Could you please clarify your client's reasons now seeking a further adjournment of the assessment of damages hearing given that the parties have reached a full and final settlement and agreed to file consent orders finalising the proceeding?”[17]
[17]Email thread annexed (without objection) to Further Supplementary Submissions of the Plaintiff dated 15 December 2020.
47 At 10.33 am on 6 August 2020, Parke Lawyers responded:
“As you know, to date your clients have removed the public reviews from Impact Absorbing Systems, Automotive Safety Engineering and Parke Lawyers Google review facilities. It is evident that your client has access to his Google accounts although he has not posted a single apology as agreed. We are instructed that there has been amendments to the website of IAS since the agreement was reached yet the “Important notice” banner has not been removed and the apology has not been posted as agreed. In those circumstances, our client is concerned with the fulfilment of your clients obligations under the agreement and seeks to adjourn the matter presently listed for 20 August 2020.
Please let us know forthwith why your client has failed to perform his obligations under the agreement.”[18]
[18]Ibid.
48 At 11.06am on 6 August 2020, Furman+Furman sent an email to Parke Lawyers stating:
“As you know, our client has had technical difficulties in implementing the settlement terms but has otherwise done everything in his power to remove the defamatory statements and publish apologies. He has spent considerable time and effort to comply with the terms and continues to do so.
I will seek instructions in respect of the adjournment and revert to you.”[19]
[19]Ibid.
49 The settlement sum was due by 29 August 2020, it was not paid and has still not been paid.
50 On 31 August 2020, Parke Lawyers emailed Furman+Furman stating that the settlement sum had not been paid.
51 On 1 September 2020, Furman+Furman replied that they were not in a position to respond to the email as they no longer held instructions.
52 Parke Lawyers then sent an email directly to Mr Zivkovic. The email set out the text of the offer of compromise sent on 29 July 2020 and the acceptance of that offer which had been emailed by Furman+Furman on behalf of the defendants on 30 July 2020. It confirmed that the defendants had not paid the $80,000 settlement sum; had not posted the agreed apologies; and had not removed the review on the RSS Pty Ltd page. It concluded:
“In our respectful view, the breaches mentioned above constitute a repudiation of the Agreement by you, which our client accepts. In those circumstances, we have been instructed to have the matter re-listed for the hearing and determination of damages.”[20]
[20]CB 204.
53 On 2 September 2020, Mr Zivkovic replied, stating:
“My new Legal Representative will contact you in next a few days to take the matter through Victorian County Court”.[21]
[21]CB 168.
54 On 9 September 2020, LGM Advisors filed a notice of change of practitioner on behalf of the defendants.
55 On 29 September 2020, Mr Parke filed an affidavit in support of the relisting of the trial assessment.
56 On 1 October 2020, LGM Advisors wrote to Parke Lawyers.[22] The letter was marked “without prejudice save as to costs”. It stated, among other things:
“There have been a number of without prejudice offers made as between the parties. However, no formal settlement has been reached. …
In response, Mr Ilya Furman communicated that this offer was accepted by our client’s. However, as you are undoubtedly aware, the proceedings remain on foot.
We are instructed that Mr Furman did not have instructions to accept this offer and, in essence, has caused this matter to be prolonged further than necessary. …”
(Emphasis added.)
[22]Exhibit RBM-5 to the affidavit of Roland Bernhard Muller, sworn 7 December 2020. Although the letter was marked “without prejudice save as to costs”, the quoted extract from the letter was included in a letter dated 4 December 2020 from Parke Lawyers to the defendants, which was exhibited to the second affidavit of Mr Zivkovic, sworn 7 December 2020. The extract was also included in both the defendants’ submissions and Mr Parke’s submissions in relation to the defendants’ summons application. I have not had regard to the remainder of the letter.
57 On 5 October 2020, the trial assessment was relisted for hearing on 8 December 2020 by consent.
58 Mr Parke filed a further affidavit on 12 October 2020. That affidavit, among other things, addressed Mr Parke’s sense of frustration at the delays in resolving this matter, which he said arose from the defendants' acceptance and then failure to comply with the agreement to resolve the proceedings.
59 The defendants filed an affidavit of Mr Zivkovic on 26 October 2020. In the affidavit, Mr Zivkovic admitted that the reviews mistakenly referred to Mr Parke’s involvement in the licence agreement and that the publication of the reviews was not justified. Mr Zivkovic stated that the reviews were posted:[23]
“following a lapse in judgement, of which I am deeply remorseful for. I am embarrassed that this lapse in judgment led me to upload the Publications and cause the Plaintiff the hurt and embarrassment he has suffered.”
[23]CB 212.
60 Mr Zivkovic went on to state that “On or about 20 August 2020 I took steps to remove the Publications. To the best of my knowledge, the Publications are now removed due to my actions and are not available to be viewed by the public.”[24]
[24]Senior Counsel for Mr Parke relied upon this statement as evidence that the reviews remained available until 20 August 2020. I am unable to reconcile this with the email from Parke Lawyers dated 6 August 2020 accepting that the reviews had been removed. I find that the reviews were removed from the Google review facility sometime between 3 and 6 August 2020.
61 Finally, he stated that an unreserved apology had been sent to Mr Parke and that he had instructed his website designer to upload an apology to the IAS website.
62 The plaintiff filed written submissions in relation to the trial assessment on 9 November 2020.
63 On 16 November 2020, the defendants filed their written submissions in relation to the trial assessment. Those submissions state (among other things):
“The Defendants also do not seek to excuse themselves from their conduct in this Proceeding and accept that an award for aggravated damages is warranted in the circumstances. Importantly, the Defendants do not seek to justify their conduct in relation to the circumstances surrounding the 30 July 2020 settlement and the matters set out in the Second Parke Affidavit. In saying this, Mr Zivkovic does point to a number of matters which have assisted the parties’ ability to bring this matter to conclusion quicker than if it was contested on all fronts.
Notwithstanding that judgement was entered by Mr Parke in default of the Defendants’ appearance, it is a mitigating factor that Mr Zivkovic has, nevertheless, not sought to:
(a) apply to set aside the default order; and
(b) defend the proceedings (other than on the assessment of the appropriate quantum of damages).
In other words, Mr Zivkovic accepts that the Defendants’ conduct has been wrongful.”
(Emphasis added.)
64 The defendants also filed a further affidavit sworn by a solicitor at LGM Advisors in relation to searches of the Victorian Electoral Commission’s website for election results for the Boroondara City Council; and its submissions on the trial assessment.
65 On 25 November 2020, Mr Parke filed the Court Book.
66 On 1 December 2020 at 5.03pm, the LGM Advisors filed an application for leave to cease to act for the defendants.
67 Given the late making of the application to cease to act, the proceeding was listed for a directions hearing for the purposes of determining the application and considering the future management of the proceeding. At that directions hearing, I granted LGM Advisors leave to cease and confirmed the trial assessment.
68 On 4 December 2020, Mr Zivkovic emailed the Court and Parke Lawyers with a draft of the Summons that would ultimately become the defendants’ summons application. At 3.32pm, he sent a further email stating:
“The defendants wish to argue that:
·the settlement agreement was not rescinded ab initio (indeed there is presently no suggestion that it was);
·the settlement agreement itself provided for ‘entry of judgment’ for the settlement sum in the event of default;
·accordingly, the plaintiff is barred, by the settlement agreement of 29 July 2020, from seeking a trial assessment in this proceeding.”
69 On 7 December 2020, Mr Zivkovic filed a further affidavit. That affidavit states, among other things:
(a) on 30 July 2020 “I instructed my solicitor, Mr Ilya Furman, to accept the offer.”;
(b) “To the best of my recollection, after the settlement agreement. I tried to access the Google Review facility for Parke Lawyers but I could not access it. I believe the facility was disabled entirely”;[25]
(c)“Soon after the settlement agreement, Mr Furman asked me to remove my reviews and post the apology. I was unable to do so because it was disabled”;[26]
(d) on 6 December 2020, he had removed the RSS review and posted the required apology on the RSS google review facility;
(e) on 7 December 2020 “I posted the apology required by paragraph 4 of the settlement agreement. I also posted the apology to the Google Review facilities for Impact Absorbing Systems and Automotive Safety Engineering”;[27]
(f) “I intend to pay the $80,000 required by the settlement agreement. I am trying to organise finance to do so.”[28]
[25]Second affidavit of Gradimir Zivkovic, dated 7 December 2020 at paragraph [13].
[26](Supra) at paragraph [14].
[27](Supra) at paragraph [16].
[28](Supra) at paragraph [30].
70 Mr Zivkovic also filed submissions in support of the defendants’ summons on 7 December 2020, which had been prepared by Mr Kirimof of Counsel (who had by then accepted a direct access brief to act on the defendants’ behalf). Those submissions assert that Mr Parke had “correctly maintained” that the parties had entered into a settlement agreement. They assume that Mr Zivkovic had repudiated the agreement because “[n]othing turns on whether the breach … constituted a repudiation”.[29] They contend that the settlement agreement was an “accord and satisfaction” which had the effect of releasing Mr Zivkovic from Mr Parke’s cause of action in defamation and “right to proceed with the trial assessment”, and substituting it with an obligation to pay $80,000. The submissions went on to seek the costs of the defendants since 30 July 2020 on the following basis:
“The plaintiff has sought damages for a cause of action that, since 9.56am on 30 July 2020, he has not had. At least since that time, his position has been analogous to a litigant who brings proceedings despite having no cause of action. What aggravates the situation in this case is that the plaintiff’s lack of any basis to advance his claim in defamation was obvious, and he ought to have known, or ought to have been advised, as much. It was obvious because his own Calderbank letter specified the consequences of default (the entering of default judgment). The plaintiff proceeded to advance his defamation claim in, at the least, negligent disregard of the effect of the settlement agreement. Indeed, the plaintiff has done so despite maintaining at all times that the settlement agreement was entered.
Apart from proceeding in disregard of known facts, the plaintiff has proceeded in disregard of known law. That the election to accept a repudiation does not rescind an agreement ab initio, but rather terminates an agreement, has been the law in Australia since 1933. The plaintiff position, as set out in Parkes Lawyers’ letter of 4 December 2020, that the agreement was set aside, permitting the plaintiff to proceed with his defamation claim, was untenable and bound to fail.
That the plaintiff caused costs to be incurred in taking steps towards a trial assessment were all the more unjustified when one considers that he was amply represented during this proceeding.”[30]
(Emphasis added.)
[29]Defendant’s Submissions in Support of Summons Dated 7 December 2020, paragraph [7] at page 2.
[30](Supra) at paragraphs [29]-[31].
71 I heard the trial assessment on 8 December 2020. The following affidavits were relied upon:
(a)Affidavit of James Parke sworn 14 July 2020;
(b)Second Affidavit of James Parke sworn 12 October 2020;
(c)Affidavit of Giovana Yolanda Torrisi sworn 14 July 2020;
(d)Affidavit of Felicity Sinfield sworn 14 July 2020;
(e)Affidavit of Dr Brett Mason sworn 14 July 2020;
(f)Affidavit of Robert Wilson sworn 28 September 2020;
(g)Affidavit of Gradimir Zivkovic sworn 26 October 2020;
(h)Affidavit of Libby Lower sworn 16 November 2020;
(i)Second Affidavit of Gradimir Zivkovic sworn 7 December 2020; and
(j) Affidavit of Roland Műller sworn 7 December 2020.
72 Only Mr Parke was cross-examined.
73 Mr Parke filed further written submissions in relation to the trial assessment and the defendants’ summons application on 15 December 2020. The defendants filed further written submissions in relation to the trial assessment and the defendants’ summons application on 16 December 2020.
74 Finally, at my invitation, further submissions were filed by the parties on 1 February 2021 in relation to the defendants’ summons application.
The trial assessment of damages
Relevant Principles
75 The principles applicable to the trial assessment are not in dispute. Damages for non-economic loss in defamation proceedings serve three overlapping and inextricable purposes.[31] First, damages must provide reparation for the harm done to Mr Parke’s personal and business reputation. The damages must compensate Mr Parke for –
“not only the insult publicly inflicted on the plaintiff but also … any diminution in the regard in which the plaintiff is held by others, any isolation produced … and any conduct adverse to the plaintiff engaged in by others because of the publication of the defamatory matter.”[32]
[31]Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at paragraphs [60]-[61] per Mason CJ and Deane, Dawson and Gaudron JJ.
[32](Supra) at paragraph [71] per Brennan J.
76 Secondly, damages must provide consolation for the personal distress and hurt caused to Mr Parke. Effectively, they operate as “‘a solatium’”[33] for Mr Parke’s internal response to the defamation – the personal hurt, anger, worry and distress he has experienced. This element of compensatory damages provides specific acknowledgment that the –
“harm caused to the plaintiff by the publication of the defamation 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.”[34]
[33](Supra) at paragraph [71] per Brennan J.
[34]Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at paragraph [72].
77 Thirdly, damages serve to “vindicate” Mr Parke’s reputation. They must be the “minimum necessary”[35] to convince a bystander of the baselessness of the defamatory charge.[36]
[35]Carson v John Fairfax & Sons Ltd (supra) at paragraph [61].
[36]Broome v Cassell & Co Ltd [1972] AC, at 1027, 1071 per Lord Hailsham; cited in Carson v John Fairfax & Sons Ltd (supra) at paragraph [70].
78 The damages awarded may be increased by an award of aggravated damages if the Court is satisfied that the defendants’ conduct, in the publication of the four reviews, or in the conduct of this proceeding, was improper, unjustifiable or lacking in bona fides, and that such conduct increased the injury of the defamatory reviews to Mr Parke.[37]
[37]Triggell v Pheeney (1951) 82 CLR 497 at 514.
79 Damages for defamation are compensatory rather than punitive, even when there is a component of aggravated damages.[38] Ultimately, the amount of damages awarded must bear an appropriate and rational relationship to the harm sustained by Mr Parke.[39]
[38]Bauer Media Pty Ltd v Wilson [No 2] (2018) 56 VR 674, at paragraph [225].
[39]Defamation Act 2005 (Vic), s34.
The defamatory imputations
80 The defendants are deemed to have admitted the defamatory meanings of each of the reviews that are pleaded in the Statement of Claim.
81 The first review, in its natural and ordinary meaning, meant and was understood to mean that:
(a)Mr Parke, a lawyer, acted unethically by drafting a licence agreement between a client and Mr Zivkovic that was a one-sided agreement and dishonest, and caused Mr Zivkovic to suffer millions of dollars loss; and
(b) Mr Parke, a lawyer, acted unethically by drafting a licence agreement between a client and Mr Zivkovic that conferred benefits on Mr Parke personally.
82 The second review, in its natural and ordinary meaning, meant and was understood to mean, that Mr Parke, a lawyer, wrongfully refused to pay $200,000 he owed to Mr Zivkovic for the purpose of trying to break him, and thereby prevented Mr Zivkovic from paying superannuation owed by Mr Zivkovic to his employees.
83 The third review, in its natural and ordinary meaning, meant and was understood to mean that:
(a)Mr Parke, a lawyer, was complicit in the theft of technology belonging to ASE Pty Ltd and Mr Zivkovic;
(b)Mr Parke, a lawyer, assisted a client to steal technology belonging to ASE Pty Ltd and Mr Zivkovic as payback for ASE Pty Ltd and Mr Zivkovic having reported Mr Parke to the Victorian Legal Services Commissioner;
(c)Mr Parke is a hypocrite, in that he made a negative review of ASE Pty Ltd and Mr Zivkovic while continuing to sell their bollards, without paying a cent of the royalties that are owing to them in respect of those sales.
84 The fourth review, in its natural and ordinary meaning, meant and was understood to mean, that:
(a)Mr Parke, a lawyer, has since July 2019 wrongly continued to sell IAS Pty Ltd and Zivkovic’s bollards, despite the suspension of a licence to do so; and
(b)Mr Parke is a greedy hypocrite who profits from the sale of merchandise he does not like and that is unsafe;
(c)Mr Parke, a lawyer, unethically prepared an agreement between his client and IAS Pty Ltd/Zivkovic for the purpose of stealing from IAS Pty Ltd and Zivkovic their intellectual property and transferring it to his partner; and
(d)Mr Parke, a lawyer, prepared an agreement between his client and IAS Pty Ltd/Zivkovic that was drafted in such an unethical way that it has caused Zivkovic to incur losses of over $1 million.
Harm to Mr Parke’s reputation
85 Mr Parke submitted that as a practising solicitor and councillor, Mr Parke’s work depended on his reputation for honesty and integrity. It was submitted that the defamatory imputations, particularly insofar as they charged Mr Parke with unethical or dishonest conduct, or theft, struck at the heart of Mr Parke’s professional reputation for integrity and honesty.
86 The defendants submitted that there was no claim for special damages, no evidence of any harm to Mr Parke’s reputation, and no evidence that any of Mr Parke’s clients, colleagues, acquaintances or associates (other than Ms Torrisi) had read any of the reviews. There was also no evidence from “Google analytics” of the number of times that the publications had been accessed or any analysis showing that Parke Lawyers had suffered a reduction in new instructions. In oral submissions, counsel for the defendants also submitted that it was plain that the reviews were not written by a client, but by someone “on the other side” of a dispute, and that they would be taken less seriously because they were in the nature of a rant and replete with typographical errors.
87 I am conscious that I am not, here, concerned with economic loss or with harm to the reputation of Parke Lawyers. The defamatory imputations the subject of this proceeding attacked Mr Parke’s personal and professional reputation directly. I accept that the imputations, which included unethical behaviour, greed, theft and dishonesty would be of a most serious nature for anyone, and were particularly so for Mr Parke, as a lawyer, elected councillor and community leader.
88 While the reviews contained typographical errors, they were detailed and specific and, in the case of the fourth review, lengthy. The offer to provide a copy of the Licence Agreement in the second and fourth review served to boost the credibility of the review, as did Mr Zivkovic’s description of himself in the first review as an “Automotive Engineer and Inventor” and his false assertion in the third review that Mr Parke was engaged in “payback” for a report to the “Victorian Legal Services”. The reviews were not so obviously lacking in credibility that a reasonable reader would dismiss them as unbelievable.
89 The first review was published on or about 21 December 2019 and removed by 9 January 2020. The second, third and fourth reviews were not removed until sometime between 4 and 6 August 2020. This means that they were available online for a period of at least seven months. All were published online via the Google review facility and thereby made available to the general public.
90 One or more of the reviews were available to be viewed by any person who happened to conduct a Google search of Parke Lawyers, ASE Pty Ltd or IAS Pty Ltd. Counsel for the defendants accepted that in the current era, one of the standard things a potential customer would do when looking to retain a service provider would be to use the Google search engine and look at Google reviews. While it should not be overstated, the grapevine effect is also relevant – a link or copy of one or more of the reviews could be forwarded more broadly with a few key-strokes. There is no way of knowing whether one or more of the reviews were distributed more widely.
91 The potential audience for the reviews included:
(a) current and potential clients of Parke Lawyers;
(b) the thirteen staff of Parke Lawyers;
(c) the approximately one hundred staff of RSS Pty Ltd;
(d) the twelve hundred staff of the Boroondara City Council; and
(e) the Boroondara City Council constituents.
92 Counsel for the defendants accepted that the further IAS review provided evidence that at least forty-seven people viewed either the second or the fourth review; and were interested enough in its content to request a copy of the Licence Agreement.[40] In my view, it is reasonable to assume that if forty-seven people read either the second or fourth reviews and were interested enough to request a copy of the licence, the total number of people who viewed one or more of the four reviews is very much greater than forty-seven.
[40]T 48, L 2-22.
93 Although, as is common in defamation cases, there is no specific evidence of harm to Mr Parke’s reputation, I accept that Mr Parke is likely to have suffered harm to his reputation as a result of the publication of the reviews.
Personal impact on Mr Parke
94 Of particular significance in the present case is the anger, hurt, anxiety and embarrassment caused to Mr Parke by the reviews. Mr Parke’s outrage at the assault on his reputation was very clear from the evidence of both Mr Parke and Ms Torrisi. It was apparent that his reputation as a person of integrity and honesty was of critical importance to him. He suffered a great deal of anxiety and stress as to who might have read the reviews amongst his current clients, future clients, business associates, constituents and the employees of Boroondara City Council, Parke Lawyers and RSS Pty Ltd. His concern was amplified by not knowing who had read the reviews and what they might be saying or thinking about him.
95 Mr Parke gave evidence that he was so concerned about the effect of the reviews that he sent personally signed and addressed letters via Australia Post to each of the approximately 12,000 electors in the Bellevue Ward of the Boroondara City Council. Mr Parke has plans to eventually move into semi-retirement and obtain directorships. He worries about the impact the reviews may have had on his ability to obtain these roles in the future.
96 Mr Parke’s anger, anxiety and distress was perhaps at its most acute during his holiday in Phillip Island, but continued for the next seven months while the second, third and fourth reviews remained online. To a lesser extent, it continues to this day.
Aggravating and mitigating factors
97 Mr Parke relied upon the following matters in support of his claim for aggravated damages:
(a)the defendants have engaged in a campaign of defamation, posting four separate reviews;
(b)in the second and fourth publications, readers were invited to contact the defendants for a copy of the Licence Agreement. The intent of this was clearly to perpetuate the defamatory comments made concerning Mr Parke and his involvement in the drafting of the Licence Agreement;
(c)the third publications suggest retaliatory action by Mr Parke for an alleged complaint to the Victorian Legal Services Commissioner, when no such complaint was made;
(d)the reviews contained blatantly false information. Mr Parke never drafted the licence agreement in question;
(e)despite the concerns notice and the subsequent letter from Parke Lawyers dated 6 February 2020:
(i) rather than offer to make amends, the defendants sought to impose untenable conditions for the removal of the second, third and fourth reviews;
(ii)the defendants did not remove the second, third and fourth publications or apologise to Mr Parke;
(iii)Mr Zivkovic only belatedly admitted that he had no basis for what he wrote in his affidavit of 26 October 2020;
(f)the defendants agreed to settle the proceeding on the morning of the hearing of the assessment of damages. The defendants subsequently breached the settlement agreement;
(g)Mr Zivkvoic posted a series of apologies on 6 and 7 December 2020 which he had agreed to post on 30 July 2020. He claimed to have posted apologies on the IAS and ASE Google review facilities, although at the time of the trial assessment they had not yet appeared. He did not post the agreed apology on the IAS website. These apologies were too little, too late, and only served to make Mr Parke feel more frustrated; and
(h)the filing of the defendants’ summons application and the supporting submissions further aggravated the damage to Mr Parke.
98 The defendants accepted[41] that an award of aggravated damages was warranted in the circumstances, particularly in relation to the circumstances surrounding the settlement on 30 July 2020, however submitted that their conduct in the proceeding had not amounted to a complete absence of bona fides such as to require a substantial award of aggravated damages. The defendants also submitted that there were a number of mitigating circumstances:
[41]Defendants’ Outline of Submissions filed 16 November 2020 at paragraph [22].
(a)the reviews were posted following a lapse of judgement for which Mr Zivkovic was deeply remorseful;
(b)Mr Zivkovic was born and raised in a different culture and his approach to conflict may be different to what is generally accepted in Australia;
(c)Mr Zivkovic is not well versed in the law and did not appreciate the legal effect of the reviews;
(d)Mr Zivkovic mistakenly believed that Mr Parke had been involved in the drafting of the Licence Agreement;
(e)on 26 October 2020, Mr Zivkovic had apologised on behalf of all the defendants in an open letter, which Mr Parke was free to disseminate as he saw fit; and
(f)on about 7 December 2020, Mr Zivkovic also apologised through the Google review facility of Parke Lawyers, ASE Pty Ltd and IAS Pty Ltd.
99 In my view, it is far more apt to describe Mr Zivkovic’s conduct in posting the four reviews as a “campaign of defamation” than a “lapse of judgement”.
100 Mr Zivkovic posted four separate reviews, using at least two different profiles. His invitation to readers of the second and fourth reviews to request a copy of the licence agreement is suggestive of a desire to further perpetuate the defamations. This is confirmed in the further IAS review, and the pleased tone with which he writes that he has received forty-seven requests for the licence agreement.
101 Mr Zivkovic did not take up the opportunity to remove the reviews when Ms Torrisi spoke to him and instead referred to knowing “hit men”. By 9 January 2020, the first review had been removed. However, the second, third and fourth reviews remained online notwithstanding:
(a) the detailed concerns notice, which clearly explained the falsity and defamatory nature of the reviews;
(b)the letter of 6 February 2020 from Parke Lawyers, which also clearly explained the falsity and defamatory nature of the reviews and urged him to seek legal advice;
(c) the service of the Writ and Statement of Claim on Mr Zivkovic; and
(d)the entry of default judgment against him.
102 Further, in his lengthy and detailed response to the concerns notice, Mr Zivkovic attempted to use the reviews as leverage to obtain a commercial settlement favourable to him in his dispute with RSS Pty Ltd.
103 It was not until 30 July 2020, on the morning of the original listed date for the trial assessment, that Mr Zivkovic agreed to remove the second, third and fourth reviews. It was several days (and many emails between lawyers) after that before they were removed.
104 The four reviews contained significant untruths. I am not satisfied that these untruths can be dismissed as a “mistake”. No evidence has been provided by Mr Zivkovic explaining the basis for his mistaken view that Mr Parke had drafted the licence agreement in question. Mr Zivkovic does not provide any explanation for other false elements of his review, such as the assertion that Mr Parke was engaged in “payback” for a complaint to the “Victorian Legal Services”. Even if he were initially mistaken, the concerns notice and letter of 6 February 2020 explained in detail why the allegations made in the reviews were untrue. Notwithstanding this, Mr Zivkovic did not remove the second, third and fourth reviews until August 2020 and did not apologise until 26 October 2020.
105 I do not accept that the fact that Mr Zivkovic was born and raised in a different culture and lacked detailed understanding of the law, provides any significant mitigation for defamatory conduct of the kind alleged here.
106 In all of the above circumstances, I am satisfied that in the publication of the reviews, Mr Zivkovic (and to the extent of their involvement, ASE Pty Ltd and IAS Pty Ltd) have engaged in a campaign of defamation which was improper, unjustifiable or not bona fide, and which increased the hurt, anger and anxiety suffered by Mr Parke.
107 Mr Parke’s hurt, anger and anxiety was also significantly increased by the defendants entry into, and then failure to comply with, the settlement agreement. No explanation has been proffered for the defendants for their failure to comply with the settlement agreement. Mr Parke spoke of feeling deflated, duped, betrayed and angry. The defendants’ wrongful conduct placed Mr Parke on a rollercoaster of emotions, from relief that the proceeding had resolved to frustration and anger that it had in fact only been delayed, and anxiety as to what the defendants might do next. This is plainly an aggravating factor and is accepted as such by the defendants.[42]
[42]Defendants’ Outline of Submissions filed 16 November 2020 at paragraph [22].
108 Both parties relied upon the apologies of 6 and 7 December 2020. I am not satisfied that these apologies had either a significant aggravating or a significant mitigating effect. On the one hand, Mr Parke had already received an open apology on 26 October 2020. On the other, the apologies were not the full complement which would have been required by the settlement agreement and were posted many months after the settlement agreement, on the eve of the trial assessment.
109 Finally, Mr Parke relied upon the defendants’ summons application, and the submissions filed in support of that application, as an aggravating factor. For the reasons provided below, I have concluded that the defendants’ summons application should be dismissed. However, it does not follow that the application was improper to make. The application essentially turned on a question of construction which was reasonably open[43]. As frustrating as it may have been for Mr Parke for such an application to have been made at such a late stage, I am not satisfied that the making of that application amounted to conduct which was improper, unjustifiable or not bona fides.
[43]Bauer Media Pty Ltd v Wilson [No 2] (2018) 56 VR 674, at paragraph [103]-[104].
110 However, the submissions in support of the defendants’ summons application, filed on 7 December 2020, specifically alleged that:[44]
“the plaintiff’s lack of any basis to advance his claim in defamation was obvious, and he ought to have known, or ought to have been advised as much…the plaintiff proceeded to advance his defamation claim in, at the least, negligent disregard of the effect of the settlement agreement…Apart from proceeding in disregard of known facts, the plaintiff has proceeded in disregard of law.”
(“the accusation of negligence”)
[44]Defendant’s Outline of Submissions filed 16 November 2020 at paragraphs [29]- [30].
111 As the extract relied upon by the defendants in paragraph 19 of those same submissions demonstrated, depending on the Court’s views as to the construction of the settlement agreement, the settlement agreement might have been viewed as an accord executory, accord and satisfaction or accord and conditional satisfaction. The defendants’ summons application could only succeed if the Court was satisfied that the agreement was an accord and satisfaction.
112 Parke Lawyers expressly raised the argument that the settlement agreement was an accord and conditional satisfaction in a letter emailed to Mr Zivkovic on 4 December 2020. The defendants were also reminded in that letter that the defendants’ then lawyers had contended in a letter dated 1 October 2020 that there was no binding settlement agreement between the parties. I note that the trial assessment had also been re-listed by consent.
113 In this context, for the defendants to make the accusation of negligence went beyond what was necessary or proper in the circumstances.
114 For Mr Parke, a lawyer seeking to vindicate his professional reputation after a serious defamation, to be accused of acting negligently and in disregard of known fact and law increased the anger, frustration and hurt that Mr Parke suffered by reason of the defendants’ defamations.[45]
[45]T30, L8-28.
115 This is another aggravating factor in the assessment of damages.
Assessment – Mr Zivkovic
116 Mr Zivkovic is liable for the whole of the harm caused to Mr Parke by the four reviews. Having regard to all of the above matters, I assess the damages payable by Mr Zivkovic (including aggravated damages) at $160,000.
117 Counsel submitted that I should apportion this total sum between the four reviews. Section 39 of the Defamation Act 2005 (Vic) permits me to assess damages in a single sum where there is more than one cause of action. In my view, as much of Mr Zivkovic’s aggravating conduct crossed all four reviews, it is more appropriate to assess a single sum against Mr Zivkovic for his defamatory conduct. I will consider the damages to be awarded against ASE Pty Ltd and IAS Pty Ltd separately.[46]
[46]See XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448; Wrongs Act 1958 (Vic), s24AA.
Assessment – ASE Pty Ltd
118 ASE Pty Ltd is only sued with respect to the third review. Mr Parke submitted that I should attribute 30 per cent of the total damages to this review, which would be $48,000. For the following reasons, I am of the view that a more appropriate sum for the damages to be paid by ASE Pty Ltd is $30,000. This sum includes aggravated damages.
119 The damage suffered by Mr Parke for ASE Pty Ltd’s defamation must be assessed in the context of the other three reviews.[47] Although the third review contained very serious imputations against Mr Parke, including of theft of technology, the most damaging reviews for Mr Parke’s reputation were likely to be the first two reviews which were posted on the Parke Lawyers Google review facility. Higher aggravated damages should also be awarded against Mr Zivkovic, who published all four reviews and instituted and perpetuated a defamatory campaign against Mr Parke.
[47]Defamation Act 2005 (Vic), s38(d).
120 For the avoidance of doubt, it is intended that satisfaction by ASE Pty Ltd of the judgment against it will reduce the liability of Mr Zivkovic by an equivalent amount.[48]
[48]Compare Nine Network Australia v Wagner [2020] QCA 221 where it was necessary to separately assess aggravated damages against the sixth defendant as his liability for aggravated damages was not concurrent with that of the other defendants.
Assessment – IAS Pty Ltd
121 IAS Pty Ltd is only sued with respect to the fourth review.
122 The fourth review is somewhat more serious than the third review in that it is more lengthy; contains an imputation that Mr Parke profits from the sale of merchandise that is unsafe (in addition to imputations that Mr Parke acted unethically and for the purpose of stealing intellectual property); and includes an invitation to request a copy of the Licence Agreement. Accordingly, I assess the damages payable by IAS Pty Ltd at $35,000 (inclusive of aggravated damages).
123 For the avoidance of doubt, it is intended that satisfaction by IAS Pty Ltd of the judgment against it will reduce the liability of Mr Zivkovic by an equivalent amount.
Interest
124 I will award simple interest on damages from the date of issue of the proceedings to judgment at the rate of 3 per cent per annum.[49]
[49]See Wilson v Bauer Media Pty Ltd [2017] VSC 521 at paragraphs [394]-[395] per John Dixon J.
The injunction application
125 Mr Parke sought injunctions in the following form:
(a) as against Mr Zivkovic:
A permanent injunction restraining Mr Zivkovic from publishing or causing to be published or continuing to be published any of the four reviews, any of the imputations referred to in paragraphs 8, 12, 16 and 20 of the Statement of Claim, or any other imputations to the same purport or effect as those imputations.
(b) as against ASE Pty Ltd:
A permanent injunction restraining the second defendant from publishing or causing to be published or continuing to be published the third review, any of the imputations referred to in paragraph 16 of the Statement of Claim, or any other imputations to the same purport or effect as those imputations.
(c) as against IAS Pty Ltd:
A permanent injunction restraining the third defendant from publishing or causing to be published or continuing to be published the fourth review, any of the imputations referred to in paragraph 20 above, or any other imputations to the same purport or effect as those imputations.
126 Mr Parke accepted that permanent injunctions were not granted as a matter of course in actions for defamation,[50] however submitted that in this case a permanent injunction was warranted.
[50]Hockey v Fairfax Media Publications Pty Ltd (No. 2) (2015) 237 FCA 127 at paragraph [15] per White J.
127 I have found that the reviews were posted as part of a defamatory campaign against Mr Parke. I have found a number of aggravating factors, including the failure to take down the reviews or apologise in response to the concerns notice, or the letter of 6 February 2020. In addition, the conduct of this proceeding by the defendants has been erratic and unreliable. This conduct has included:
(a) the defendants’ then lawyers, Furman+Furman, communicating the defendants’ acceptance of the offer of compromise on 30 August 2020. The defendants then:
(i) taking several days to remove the second, third and fourth reviews;
(ii) taking many months to post some (but not all) of the agreed apologies;
(iii) not paying the settlement sum when due or (as at the date of the trial assessment) at all;
(b) the defendants’ then lawyers, LGM Advisors, sending a letter on 1 October 2020 stating that they were instructed that the offer of compromise had been accepted by Furman+Furman without instructions. Mr Zivkovic subsequently swearing in an affidavit of 7 December 2020 that he had instructed Furman+Furman to accept the offer of compromise; and
(c)Mr Zivkovic swearing in an affidavit of 26 October 2020 that he had instructed his website designer to upload an apology to the IAS Pty Ltd website, no such apology having been posted by 7 December 2020.
128 I am satisfied that there is a real risk that the defendants’ defamatory conduct will be repeated in the absence of an injunction. In the circumstances, I agree that permanent injunctive relief is appropriate.
The defendants’ summons application
Nature of application
129 The defendants’ summons application was made by Summons filed 7 December 2020, the day before the hearing of the trial assessment. The Summons sought an order that the proceeding be dismissed.
130 The defendants submitted that:
(a) Mr Parke had released the defendants from any cause of action in defamation or right to a trial assessment on 30 July 2020, when the settlement agreement was made;
(b) even if the defendants had repudiated the settlement agreement by not paying the $80,000, this did not have the effect of rescinding the settlement agreement ab initio; and
(c) accordingly, Mr Parke could only sue for the $80,000 settlement sum. He could not sue for the cause of action in the Statement of Claim.
131 An initial procedural difficulty arises with the form of the defendants’ application, which seeks an order that the proceeding “be dismissed”. Judgment has been entered against the defendants for damages to be assessed. That judgment is final as to the entitlement of Mr Parke to damages for the cause of action in the Statement of Claim.[51] In seeking a trial assessment, Mr Parke is exercising a right given to him under the default judgment. In that context, I formed the preliminary view that the defendants required an order that this default judgment be set aside, rather than simply an order that the proceeding be “dismissed”.
[51]Victorian Economic Development v Clovervale Pty Ltd and Others (supra) at paragraphs [598] and [605].
132 On 22 January 2020, my associate emailed the parties inviting further submissions on this issue. Further written submissions were filed by Mr Parke and the defendants on 1 February 2021. Mr Parke agreed that the defendants’ application should be treated as an application to set aside the default judgment. The defendants submitted that it was not necessary to set aside the default judgment but that, if the proceeding could not simply be dismissed, the Court ought permanently stay the proceeding.
133 In my view, an order “dismissing” the proceeding in its entirety is not apt when the Court has already entered default judgment for damages to be assessed. For the defendants to achieve their desired end, either the default judgment must be set aside; the proceeding must be permanently stayed; or the judgment must be permanently stayed.
134 If the defendants’ application were treated as an application to set aside the default judgment, it would be determined in accordance with the principles set out by Warren CJ in Lubura v Nezirevic,[52] to the effect that the Court should assess:
[52](2013) 42 VR 43 at paragraph [3].
(a)whether there is a defence on the merits;
(b) the reasons for the default;
(c)whether the application to set aside the judgement was made promptly after the judgment came to the knowledge of the first defendant; and
(d)whether, if the judgment is set aside, a suitable award of costs and the giving of security would be adequate to cover the prejudice to the plaintiff in having the judgment set aside.
135 Of these considerations, the primary consideration is whether there is a defence on the merits.[53]
[53]Lubura v Nezirevic (supra) at paragraph [4], and authorities cited therein.
136 If the defendant’s summons application were treated as an application to permanently stay the proceeding; or to stay the judgment for damages once assessed, merits would also be the primary consideration. However, the Court must, in exercising all its powers, seek to give effect to the overarching purpose under the Civil Procedure Act 2010 (Vic) to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.[54] Given the late raising of this application, factors such as delay and prejudice are also relevant.
[54]Civil Procedure Act 2010 (Vic), s8.
137 As the question of merits is the primary consideration, regardless of the characterisation of the application, I will turn first to consider this issue.
Merits of the defence
138 It was accepted by Mr Parke that termination for repudiatory breach does not have the effect of rescinding a contract ab initio, instead only releasing the terminating party from future performance of the contract. The critical issue between the parties was whether, as a matter of construction, the settlement agreement had the effect of immediately discharging the defendants from their obligation to pay damages for defamation to Mr Parke or whether any such discharge only took effect upon payment of the $80,000 settlement sum.
139 In Osborn & Bernotti t/as GO4 Productions v McDermott t/as RA McDermott & Co & Karmine Pty Ltd (Osborn v McDermott),[55] Phillips JA described three possible categories of compromise agreement. First, there is the accord executory, which is not a binding contract at all but rather provides that if the settlement sum is paid, then the cause of action will be released. Secondly, there is the accord and satisfaction, in which the plaintiff accepts an enforceable promise (usually to pay a settlement sum) in satisfaction of the plaintiff’s claim. Thirdly, there is the accord and conditional satisfaction, where an existing and enforceable agreement is created, but the plaintiff’s claim is not discharged unless and until the defendant’s obligations under the settlement agreement are performed. As Phillips JA explained:[56]
“Where there is a mere accord executory, no suit can be maintained upon the compromise unless and until there has been performance, and then suit is ordinarily unnecessary. Upon default in performance, the plaintiff's existing cause of action continues unaffected. With accord and satisfaction, either party may sue upon the compromise, but only on the compromise and for nothing else: the original cause of action has gone. Where there is accord and conditional satisfaction, the plaintiff is bound to await performance and accept it if tendered, but if there be no performance, then the plaintiff may proceed according to general principles called into play when any agreement is repudiated: the plaintiff may either treat the agreement (the accord) as at an end and proceed on his original cause of action; or he may, at his option, sue on the compromise agreement, in place of the original cause of action … .”
[55][1998] 3 VR 1 at paragraph [10].
[56]Osborn & Bernotti t/as GO4 Productions v McDermott t/as RA McDermott & Co & Karmine Pty Ltd (supra) at paragraphs [10]-[11].
140 The question of whether the settlement agreement is an accord executory; accord and satisfaction; or accord and conditional satisfaction, is a question of construction of the relevant terms of the settlement agreement.[57] Those terms are set out in the offer attached to the email of 29 July 2020 from Parke Lawyers as follows:
[57]See Osborn & Bernotti t/as GO4 Productions v McDermott t/as RA McDermott & Co & Karmine Pty Ltd (supra) at paragraphs [12]-[15]; Scaffidi v Perpetual Trustees Victoria Ltd [2011] WASCA 159 at paragraphs [36]-[47].
“We have instructions to put the following offer to your clients to resolve this matter.
1. Payment to the plaintiff by the defendants of $80,000 in full and final settlement of this matter.
2. Payment to be made by electronic funds transfer into an account nominated by the plaintiff. The payment is to be made by 29 August 2020 (and an agreement to the entry of judgment for that amount in the event of default).
3. Mr Zivkovic, immediately delete each of the publications the subject of the County Court proceedings that remain visible on the Internet, namely the Second Publication (as defined in the Statement of Claim) published via the ‘Google review’ facility to the Google record for Parke Lawyers Ringwood, the Third Publication (as defined in the Statement of Claim) published via the ‘Google review’ facility to the Google record for ASE, and the Fourth Publication (as defined in the Statement of Claim) published via the ‘Google review’ facility to the Google record for IAS. (Collectively, these publications are referred to as the ‘Defamatory Publications’).
4. Mr Zivkovic, agree to publish immediately the following apology, which is to remain visible until 30 January 2021, via the ‘Google review’ facility to the Google record for ASE, and via the ‘Google review’ facility to the Google record for IAS:
‘On or about 21 December 2019, I published incorrect a/legations about Mr Jim Parke through 'Google review'. I acknowledge that the statements I made about Mr Parke were untrue. I apologise to Mr Parke for the hurt, embarrassment and distress caused by my comments. Yours sincerely, Gradimir Zivkovic.’
5. In addition to the removal of the Defamatory Publications listed above:
a) Mr Zivkovic, immediately remove the review published via the ‘Google review’ facility to the Google record for Roadside Services & Solutions Pty Ltd located at 88 Stanbel Road, Salisbury Plain SA 5109 (‘RSS SA page review’) and replace it with the following apology, in the form of a new five star ‘Google review' on the RSS SA page, which is to remain visible until 30 January 2021:
‘On or about 21 December 2019, I published incorrect a/legations about Mr Jim Parke through 'Google review'. I acknowledge that the statements I made about Mr Parke were untrue. I apologise to Mr Parke for the hurt, embarrassment and distress caused by my comments. Yours sincerely, Gradimir Zivkovic.’
b) Impact Absorbing Systems immediately remove the ‘Important Notice’ from its website that states (the RSS Important Notice):
‘Important Notice: On 19th of July 2019 a Licence Agreement between Impact Absorbing Systems Pty Ltd (Energy Absorbing Bollard – intellectual property and Patent holder) and Roadside Services and Solutions as a distributor has been terminated due to the long history of unacceptable practices by Roadside Services and Solutions that have not been corrected in due course.’
and replace it with the following apology, in the same position with the same prominence which is to remain visible until 30 January 2021:
‘Important Notice: On or about 21 December 2019, I published incorrect allegations about Mr Jim Parke through “Google review”. I acknowledge that the statements I made about Mr Parke were untrue. I apologise to Mr Parke for the hurt, embarrassment and distress caused by my comments. Yours sincerely, Gradimir Zivkovic.’
6. Mr Zivkovic, undertake personally and on behalf of each of ASE and IAS to desist permanently from republishing and further disseminating each of the Defamatory Publications, the RSS SA Page review and the RSS Important Notice, and any document or statement contained within them, save as expressly permitted by law.
This offer remains open for acceptance until 10:00AM on 30 July 2020.”[58]
[58]CB 173-174.
141 For the reasons which follow, I have concluded that on the proper construction of these terms, the settlement agreement is best described as an accord and conditional satisfaction. In other words, the defendants’ were not to be discharged from their obligation to pay damages for defamation to Mr Parke unless and until they paid the sum of $80,000 to Mr Parke.
142 Clause 1 provides that “Payment” of the settlement sum is to be “in full and final settlement of this matter”. It does not provide that the agreement to pay is to be in full and final settlement of the matter. Although it may be accepted that this language is not as clear as words such as “Upon payment” or “In consideration of payment”,[59] it is sufficiently clear when clause 1 is read in the context of the remainder of the terms of the settlement agreement. In particular, the settlement agreement imposes a number of obligations on the defendants, in addition to the obligation to pay the settlement sum. These obligations are effectively set out in reverse chronological order – undertakings are provided (clause 6); publications are removed and apologies given (clauses 3-5) and finally payment of the settlement sum is made (clauses 1-2). It is specifically the payment of the settlement sum in clause 1 which is expressed to fully and finally settle the matter, rather than entry into the settlement agreement as a whole. This indicates that full and final settlement (in the sense of the discharge of Mr Parke’s claim against the defendants) is only intended to occur upon payment of the settlement sum.
[59]See for example paragraph 20(c) of the Defendant’s Submissions in Support of Summons Dated 7 December 2020; Scaffidi v Perpetual Trustees Victoria Ltd (supra) at paragraph [10].
143 The fact that clause 2 of the settlement agreement provides for a date for payment and for the consequences of default (agreement to entry of judgment) is not inconsistent with the discharge of Mr Parke’s claim for damages being conditional upon payment. Where there is an accord and conditional satisfaction, the plaintiff may elect to either sue on the settlement agreement or treat the agreement as at an end and proceed on the original cause of action. Indeed, this is the very nub of the accord and conditional satisfaction as described by Phillips JA in Osborn v McDermott.[60] An accord and conditional satisfaction is a binding contract, but it is a contract where one of the obligations (here, to discharge the defendants from liability) is conditional upon performance of another obligation (here, to pay the $80,000 settlement sum).
[60](Supra) at paragraphs [10]-[11]; see also Scaffidi v Perpetual Trustees Victoria Ltd (supra) at paragraph [47].
144 The defendants have not performed the condition (payment of the $80,000 settlement sum) necessary to obtain a discharge of Mr Parke’s claim for damages in defamation under the settlement agreement. As the settlement agreement has been terminated for repudiatory breach,[61] it is too late for them now to do so.
[61]The defendants “assume” that the settlement has been terminated for repudiatory breach in their submissions. For completeness, I accept that it has been so terminated.
145 The defendants have not raised a meritorious defence to the plaintiff’s claim for damages for defamation. Accordingly, the defendants’ summons application should be dismissed.
Impact of delay on defendants’ summons application
146 Even I were wrong in my conclusion that the settlement agreement was an accord and conditional satisfaction, I would nevertheless not have set aside the default judgment on the basis of the material filed in support of the application. Nor would I have been prepared to grant a stay of the proceeding, or a stay of the judgment.
147 The defendants’ summons application was made on the eve of the trial assessment. In determining whether or not to entertain such an application, I am required to seek to further the overarching purpose under the Civil Procedure Act 2010 (Vic), to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.[62]
[62]Civil Procedure Act 2010 (Vic), s8.
148 Mr Parke submitted that the defendants had waived any entitlement to rely upon the arguments they now sought to raise and were “estopped” from doing so. In my view, the defendants’ conduct in this proceeding may be better viewed as a waiver of the kind described by Dawson J in Commonwealth v Verwayen[63] as waiver in the “loose sense” – the defendants’ conduct raises the question of “whether a party, having failed to insist upon his right at an appropriate time, should later be allowed to do so”.
[63]Commonwealth v Verwayen (1990) 170 CLR 394 at 457.
149 As I have already noted, the defendants’ conduct of this proceeding has been erratic and unreliable. It has included:
(a)Mr Zivkovic instructing Furman+Furman to accept the offer of compromise;[64]
(b)the defendants’ then lawyers, Furman+Furman, communicating that acceptance to Mr Parke;
(c)the defendants failing to comply with the settlement agreement;
(d)the defendants’ then lawyers, LGM Advisors, on 1 October 2020, sending a letter to the plaintiffs stating the defendants’ position as being that “no formal settlement has been reached”, “the proceedings remain on foot” and that they were “instructed that Mr Furman did not have instructions to accept this offer and … has caused this matter to be prolonged further than necessary”;
(e)the defendants’ consenting to the relisting of the trial assessment on 5 October 2020;
(f)the defendants relying in their submissions of 16 November 2020, on the fact that they had not sought to set aside the default judgment;
(g)the defendants raising for the first time on 4 December 2020, the contention that Mr Parke had released his cause of action in defamation against them; and
(h) the defendants making the defendants’ summons application seeking to “dismiss” the proceeding on 7 November 2020, the day before the trial assessment.
[64]Second affidavit of Mr Zivkovic, sworn 7 December 2020, at paragraph [7].
150 By this conduct, the defendants have caused significant costs to be incurred by Mr Parke, particularly in relation to the trial assessment. If I were to grant the orders sought by the defendant now, those costs would be wasted.
151 It is also possible that the delay in finalising this proceeding has increased the risk that Mr Parke will not be able to successfully enforce any judgment for the settlement sum which he now obtains against the defendants. I note in this context that Mr Zivkovic went on oath on 7 December 2020 to say that he is “trying” to organise finance to pay the $80,000 settlement sum.[65]
[65]Second affidavit of Mr Zivkovic, sworn 7 December 2020, at paragraph [30].
152 In all of the circumstances of this proceeding, even if I had been satisfied that the defendants had a meritorious defence arising from the settlement agreement, I would not have set aside the default judgment or granted a stay of the proceedings or stay of the judgment without, at a minimum, evidence that:
(a)the defendants formally consented to judgment being entered against them for $80,000 plus interest at the rate fixed under s2 of the Penalty Interests Rates Act 1983 (Vic) from 30 August 2020 until the date of judgment; and
(b)the defendants had the capacity to pay Mr Parke’s costs of the trial assessment incurred since 5 October 2020, on an indemnity basis.
153 No such evidence has been filed in support of the present application. I am not satisfied that the prejudice suffered by Mr Parke by reason of the delay in bringing the application is capable of being cured. The defendants’ summons application should be dismissed.
Costs and final orders
154 I will hear from the parties in relation to costs and the form of the final orders to be made.
- - -
Certificate
I certify that these 43 pages are a true copy of the reasons for decision of her Honour Judge Tran, delivered on 9 February 2021.
Dated: 9 February 2021
Jane Le
Associate to her Honour Judge Tran
3
15
0