Saxena v Singh and Ors
[2024] VCC 2
•24 January 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| DEFAMATION LIST |
Case No. CI-21-04879
| AMREESH SAXENA | Plaintiff |
| v | |
| MANJOT SINGH | First Defendant |
| and | |
| AASHU MAHNA | Second Defendant |
| and | |
| RAHUL MAHNA | Third Defendant |
---
JUDGE: | HER HONOUR JUDGE MYERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7, 8, 9, 10, 11, 14 and 29 August 2023 | |
DATE OF JUDGMENT: | 24 January 2024 | |
CASE MAY BE CITED AS: | Saxena v Singh and Ors | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2 | |
REASONS FOR JUDGMENT
---
Subject:DEFAMATION
Catchwords: Defamation – publication – imputations – justification – triviality – fair comment – honest opinion – statutory qualified privilege – qualified privilege – damages – aggravated damages
Legislation Cited: Defamation Act 2005 (Vic), s25, s30, s31, s32, s33, s34, s36; Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020 (Vic), s32, s34, s35
Cases Cited:Agustin-Bunch v Smith (No 3) [2023] VSC 277; Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; Sims v Jooste (No 2) [2016] WASCA 83; Fairfax Media Publications Pty Ltd v Voller (2021) 273 CLR 346 ; Byrne v Deane [1937] 1 KB 818; Stoltenberg v Bolton; Loder v Bolton (2020) 380 ALR 145; Bishop v New South Wales [2000] NSWSC 1042; O’Brien v Australian Broadcasting Corporation (2017) 97 NSWLR 1; Fairfax Digital Australia & New Zealand Pty Ltd v Kazal (2018) 97 NSWLR 547; Barrow v Bolt [2015] VSCA 107; Roberts v Bass (2002) 212 CLR 1; Bashford v Information Australia (Newsletters) Pty Limited (2004) 218 CLR 366; Aktas v Westpac Banking Corporation Limited (2010) 241 CLR 79; Visscher v Maritime Union of Australia (No 6) (2014) 98 NSWLR 764; Lorbek v King [2023] VSCA 111; Briginshaw v Briginshaw (1938) 60 CLR 336; The Herald & Weekly Times Pty Ltd v Buckley (2009) 21 VR 661; Chetwynd v Armidale Dumaresq Council [2010] NSWSC 690; Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; Belbin v Lower Murray Urban and Rural Water Corporation [2012] VSC 535
Judgment: Judgment for the plaintiff.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T J Sowden | Contact Lawyers Pty Ltd |
| For the Defendants | Mr J G Levine | Matrix Legal |
HER HONOUR:
Introduction
1This is a defamation proceeding brought by the plaintiff, Dr Amreesh Saxena, who is a general practitioner (“GP”).
2Between 22 and 24 June 2021, two reviews (“the reviews”) were posted on the plaintiff’s Google My Business page, under the names Manjot Singh and Aashu Mahna.
3One of the reviews was uploaded by Manjot Singh, the first defendant (“the Singh review”).
4The plaintiff alleges that the other review was uploaded by Aashu Mahna, the second defendant, and Rahul Mahna, the third defendant (“the Mahna review”).
5The plaintiff alleges that the reviews were published and were defamatory of him.
6The plaintiff claims damages, including aggravated damages, from each of the defendants.
7The first and second defendants are husband and wife.
8The third defendant is the second defendant’s brother.
9The first defendant admitted posting the Singh review.
10The second defendant denied posting, permitting, consenting to, or authorising the posting of the Mahna review.
11The third defendant admitted posting the Mahna review.
12The defendants had common legal representation in the proceeding. They denied that the pleaded imputations were carried by the reviews and/or that the imputations were defamatory of the plaintiff. They each relied upon common law defences of fair comment and qualified privilege, and statutory defences pursuant to the Defamation Act 2005 (Vic) (“the Act”) of justification, triviality, honest opinion, and statutory qualified privilege.
Summary of findings
13In summary, I find that:
(a) each of the pleaded imputations are carried;
(b) the first defendant published the Singh review;
(c) the second and third defendants published the Mahna review;
(d) the reviews are defamatory of the plaintiff;
(e) none of the defences are made out;
(f) the first defendant is to pay the plaintiff damages, including aggravated damages, in the sum of $30,000;
(g) the second and third defendants are to pay the plaintiff damages, including aggravated damages, in the sum of $40,000.
14My reasons are as follows.
The reviews
15The Singh review, authored and uploaded by the first defendant, said as follows:
“Saxena kept giving me [P]anadol which supressed my pain and made my case worse. I would prefer [to] go to another GP who can listen to my problem.”
16The Mahna review, authored by the third defendant and allegedly published by the second and third defendants, said as follows:
“Not helpful doctor at all, made my case worse by kept giving me [P]anadol to suppress my pain and now I end up in hospital because of him. He doesn[’]t have human feelings to talk to patients or someone who is in need of help.”
17Each review was accompanied by a one-star rating.[1]
[1]Transcript (“T”) 214 and Court Book (“CB”) 163
18The third defendant said he posted the Mahna review on about 22 June 2021.[2]
[2]T403
19The first defendant said he posted the Singh review on about 23 June 2021.[3] He said the Mahna review was already posted at that time.[4]
[3]T340
[4]T341
20I find the reviews were taken down on 6 August 2021.[5]
[5] T295
Background
21The following matters of background are not, I believe, controversial. As far as any part is contested, these represent my findings save where indicated.
22The plaintiff was brought up and educated in India. He obtained his medical degree there in 1985. He migrated to Australia in 1989.
23The plaintiff became a GP in 1995. He has been practising from the Life Care Medical Centre (“the clinic”) since 2004.
24The plaintiff’s wife, Mrs Rajini Saxena, is an enrolled nurse. She is employed at the clinic as both a nurse and practice manager.
25The first defendant is a bus driver. He consulted the plaintiff on one occasion only, on 10 August 2020.
26The second defendant is a technical analyst. She was never the plaintiff’s patient.
27The third defendant currently works as a security guard. He consulted the plaintiff several times between October 2019 and 21 June 2021 for various medical conditions.
28The reviews were prompted by the third defendant’s reaction to what occurred in a consultation he had with the plaintiff on 21 June 2021. He was aggrieved because of his perception of the way the plaintiff spoke to him on 21 June 2021, and because the plaintiff refused to refer him for a further CT scan.
Overview of the evidence
29The following witnesses gave evidence at the trial and were cross-examined:
(a) In the plaintiff’s case – the plaintiff; his wife; two patients, Dr Suresh Gupta and Mr Nabil Basily; a former patient, Ms Pratima Pradbu, and two medical specialists, Dr Ruchi Singh and Dr Nilesh Mehta;
(b) In the defendants’ case – each of the defendants; the third defendant’s wife, Mrs Mehak Kundra, and Mr Neeraj Kumar. The thirteen-year-old daughter of the first and second defendants was called to give evidence, but the defendants reconsidered that decision and did not seek to adduce any substantive evidence from her. She was not cross-examined.
The factual background
The First Defendant’s consultation with the Plaintiff
30On 10 August 2020, during the height of the COVID-19 pandemic, the first defendant attended the clinic, together with his ten-year-old daughter.
31The first defendant was a new patient on that day.
32The plaintiff and the first defendant each gave viva voce evidence about the consultation, and the plaintiff’s clinical record of the consultation was tendered.
33The first defendant said the consultation took less than 10 minutes. He said he told the plaintiff about his and his daughter’s symptoms of redness/rash on their fingers and toes, and also told the plaintiff that he was taking Addos tablets. He said the plaintiff advised him to continue taking the Addos medication and keep his house warm.
34The first defendant said, and I accept, that he did not consult any other doctor about that condition subsequently.
35The first defendant described his experience consulting the plaintiff as “bitter”.[6] He did not say why.
[6]T340
36The plaintiff said that given the ongoing COVID-19 pandemic, he maintained physical distance from the first defendant and his daughter except when performing an examination. He said he approached the first defendant and his daughter and conducted an examination.[7]
[7]T59
37The plaintiff’s clinical note dated 10 August 2020 of the attendance upon the first defendant recorded the following:
“redness in hands and sometimes feet. Np pain
related to cold weather
seen another doctor-- given addos-- not helping at allkExamination:
redness fingers
Diagnosis:
Raynaud’s phenomenon
Reason for visit:
Raynaud’s phenomenon
adv warm gloves, heater at bad times
to turn on house heating.”[8]
(sic)
[8]CB 373
38There was an issue as to whether the plaintiff examined the hands and feet of the first defendant and his daughter during this consultation.
39Initially in his viva voce evidence, the first defendant said that the plaintiff did not examine his or his daughter’s feet.[9]
[9]T338
40He then said the plaintiff did not conduct any examination and did not approach closer than 5 metres.[10]
[10]T338
41I find that the plaintiff examined the hands of both the first defendant and his daughter and diagnosed Raynaud’s phenomenon. I do so because the fact that an examination occurred is recorded in the plaintiff’s contemporaneous note. Further, for reasons explained later, I generally prefer the evidence of the plaintiff where it conflicts with that of the defendants and their witnesses.
42The first defendant and the plaintiff agreed that the first defendant did not consult the plaintiff again after 10 August 2020.
43The first defendant did not raise any complaint or issue with the plaintiff regarding the consultation on 10 August 2020 until he uploaded the Singh review in June 2021.
The Third Defendant’s consultations with the Plaintiff
44The third defendant first consulted the plaintiff on 31 October 2019. Thereafter, he attended on a further twenty-three occasions for various ailments, with the final attendance taking place on 21 June 2021.
45His evidence was that after November 2020, he did not consider the plaintiff to be his regular GP, but attended the clinic periodically as it was easy to get a same-day appointment.
46Of relevance to this proceeding are the third defendant’s attendances upon the plaintiff from 28 April 2021, as these were the attendances relied upon by the second and third defendants by way of their defence of justification.
47The plaintiff’s clinical notes of his attendances upon the third defendant were tendered.
48The plaintiff and third defendant gave viva voce evidence regarding the various attendances.
49In addition, Mrs Kundra gave evidence about the third defendant’s attendance on 21 June 2021 as she was present.
50The plaintiff’s clinical records relevantly recorded the following:
(a) On 28 April 2021, the third defendant reported myalgias “all over” since yesterday. The clinical note also recorded “did gym exercises on Sunday”. The clinical record noted findings on examination, including “mild tenderness limb muscles”. The plaintiff diagnosed muscle strain and provided the third defendant with a medical certificate;[11]
(b) On 7 May 2021, the third defendant reported having a sore throat. He was advised to have a COVID-19 test;[12]
(c) On 17 May 2021, the third defendant had a phone consultation with the plaintiff. He reported two days of neck and upper back pain. He said he was unable to go to work. The plaintiff advised the third defendant he was most probably suffering from musculoskeletal pain, that he should rest and take Nurofen and attend for review in person the following day. The plaintiff also provided the third defendant with a medical certificate;[13]
(d) The third defendant attended the clinic the following day, 18 May 2021. The clinical note relevantly recorded:[14]
[11]CB 330
[12]CB 331
[13]CB 332
[14]CB 333
“necck pain still persisting
Examination:
Tenderness muscles neck both sides
muscle strain
rest/nurofen/prn p. forte
Reason for visit:
Muscle strain
… .”
(sic)
51Between 19 May 2021 and 20 June 2021 inclusive, the third defendant did not have a medical consultation with the plaintiff.[15]
Medical treatment the Third Defendant received other than from the Plaintiff in May and up to 20 June 2021
[15]The third defendant attended the plaintiff’s clinic at 5.27pm on 31 May 2021 to have some documents signed. He did not consult the plaintiff regarding any medical issues on this occasion.
52The third defendant consulted GPs other than the plaintiff regarding his neck pain on 19, 24, 25, 28, 29, 31 May 2021 and 1, 10 and 18 June 2021.
53The third defendant had a CT scan of his cervical spine on 24 May 2021. He had an MRI scan of his cervical spine on 28 May 2021.
54The third defendant attended the Emergency Department of the Austin Hospital complaining of neck pain on 31 May 2021 and 15 June 2021.
55The third defendant also had physiotherapy treatment for his neck condition during June 2021.
The Third Defendant’s consultation with the Plaintiff on 21 June 2021
56The third defendant’s final attendance upon the plaintiff was on 21 June 2021. He attended the clinic, together with his wife, Mrs Kundra. The clinical record relevantly records:[16]
“came with wife-- says neck pain persisting x 5 weeks--went to another doctor-- CT neck on 25/5/21 -- followed by MRI scan cervical spine-- disc pathology with nerve compression r c5/c6 nerve root
[16]CB 335
Has an appoint[ment] with neurosurgeon in 2 weeks. On Endone
says pain in r arm but no paraynsis or nerve weakness
requesting another CT scan of neck??
adv not indicated as me already had MRI 3 weeks ago
to go to ED BHH if pain worse
adv rest/continue analgesia/PHYSIO
Reason for visit:
Neck pain
Actions:
Document imported.”
(sic)
57The plaintiff’s evidence was that he explained to the third defendant that further imaging of his cervical spine was not necessary given the recent imaging which had already been undertaken. He advised the third defendant that it would be a drain on government resources. He told the third defendant that he could pay for a private scan himself if he wanted to proceed.
58The third defendant’s evidence was that he told the plaintiff that his pain had increased substantially because of physiotherapy treatment. He said that he told the plaintiff that his pain was so bad that he had been unable to lie down or sleep for three days. The third defendant alleged that not only did the plaintiff not conduct a neurological assessment or physical examination of him, but that the plaintiff used an “unacceptable and unpleasant tone” to say that he had not needed the first scan, and that he had wasted government funding.[17] He said the only advice the plaintiff gave him was to continue with physiotherapy.[18]
[17]T414-415
[18]T417
59I prefer the plaintiff’s account of what occurred at the various consultations he had with the third defendant, including that of 21 June 2021.
60The plaintiff’s account accorded with his contemporaneous clinical records, the outcome of a review by the Australian Health Practitioner Regulation Agency (“AHPRA”) and the records of the Austin Hospital of 22 June 2021. Further, for reasons set out later, I generally prefer the evidence of the plaintiff where it conflicts with the defendants’ evidence.
61The plaintiff’s treatment of the third defendant was reviewed by the AHPRA. On 7 February 2022, the third defendant complained to the AHPRA about the plaintiff’s treatment of him, including many similar allegations to those the subject of this proceeding.[19]
[19]CB 393
62On 26 July 2022, the AHPRA advised the plaintiff that no further action would be taken regarding the third defendant’s complaints. The AHPRA advised:[20]
“On thorough review of the material and information, we are satisfied that Dr Saxena has met the requirements of the Code by providing adequate and appropriate clinical care to the notifier to the standard reasonably expected of a medical practitioner.”
[emphasis in original]
[20]CB 412
63The contention that the plaintiff provided suitable and appropriate advice to the third defendant at the consultation on 21 June 2021 is also supported by the nature of the treatment received by the third defendant when he attended the Austin Hospital on 22 June 2021.[21]
[21]CB 288
64The Austin Hospital discharge summary reveals that the plaintiff was at the Austin Hospital on 22 June 2021 for about two hours from 3.00pm. He was discharged home with the recommendation that he continue to take paracetamol (that he reported he had not been taking), to see his GP to review medication, and return if he had any concerns or his symptoms worsened.[22] No imaging was undertaken of the third defendant’s cervical spine at the hospital.
[22] CB 289
65I find that the third defendant was upset and angry at the way he perceived he was treated by the plaintiff, and because the plaintiff refused to order a bulk billed scan of his cervical spine on 21 June 2021. He therefore decided to upload the Mahna review in retaliation.
The Defendants’ living arrangements
66An issue in the case was whether the second defendant had any, and if so what, involvement in publishing the Mahna review.
67The plaintiff’s case was that the second defendant told him on 6 August 2021 that she had been involved in posting the Mahna review.
68The second defendant’s case was that she knew nothing of the Mahna review until 5 August 2021 when she received a concerns notice from the plaintiff.
69The defendants led evidence of their respective living arrangements as at June 2021 in order to explain how it was that the third defendant uploaded the Mahna review using the second defendant’s Google account without her knowledge.
70At all relevant times, the first and second defendants lived, together with their young daughter, primarily at the home they owned in Templestowe.
71In May 2020, the first, second and third defendants signed a lease for a three-bedroom property in Blackburn.
72The second defendant initially said in her viva voce evidence that a reason for doing so was to have a home close to her daughter’s school. However, it became apparent during the hearing, that the first and second defendant wanted to rent a property within the school enrolment zone for a particular high school.
73Each of the defendants gave evidence to the effect that in June 2021, when the reviews were posted, the third defendant, his wife Mrs Kundra, and their friend Neeraj Kumar, lived full time at the Blackburn house. The first and second defendants and their daughter stayed there sometimes during the week, sharing one of the bedrooms.
74The evidence was clear that the second defendant spent more time at the Blackburn property than the first defendant.[23] My impression from the evidence was that the first defendant was not at the Blackburn property without the second defendant being there too.
[23] T402 and T488
75I am further fortified in that view by the fact that the defendants instructed their solicitors in August 2021 that the second defendant “lived” at the Blackburn property between 21 and 24 June 2021.[24]
[24]CB 176
76The second and third defendants said that when the second defendant was at the Blackburn property, she would often charge her mobile phone in the third defendant’s bedroom, because she and her brother had the same model mobile phone.[25] They both said that they knew each other’s mobile phone passwords.[26]
[25]T296
[26]T299
The Defendants’ evidence regarding the posting of the reviews
77The third defendant’s evidence was that he was upset by the manner in which the plaintiff spoke to him on 21 June 2021.[27] The third defendant denied that he was angry.
[27] T447
78His evidence was that he discussed the plaintiff’s treatment of him with the first defendant. He said this conversation occurred in his bedroom at the Blackburn property during the evening of 21 June 2021. Both the first and third defendants said they discussed the fact that the first defendant was also unhappy with the treatment he had received from the plaintiff in August 2020.
79Both the first and third defendant denied discussing the posting of any sort of review of the plaintiff during that conversation on 21 June 2021.
80The third defendant said that during the evening of the following day, 22 June 2021, after he arrived home from the Austin Hospital, he was alone in his bedroom at the Blackburn property. The second defendant’s phone was there charging, and he said he used it to post the Mahna review without the second defendant’s knowledge.
81A day or two after the discussion between the first and third defendants about their dissatisfaction with the plaintiff, the first defendant said he was driving his bus near to the clinic in Doncaster. On the evidence this was on or about 23 June 2021. Seeing the clinic prompted the first defendant to decide that on his next break he would go onto the plaintiff’s Google My Business page and post a review of his experience with the plaintiff, ten months earlier, in August 2020.
82On his next break, the first defendant said he went to the plaintiff’s Google My Business page. He saw the Mahna review. He said he believed that the Mahna review had been posted by the third defendant because he knew that his wife had never consulted the plaintiff. The first defendant said that he proceeded to post the Singh review.
83During cross-examination, the first defendant was asked about the striking similarity in phraseology between the Mahna review and the Singh review. His explanation was that he used phrases from the Mahna review to compose his own review because he was in a hurry to post the review as he was on a short work break.[28] I find this account to be unbelievable.
[28]T357-359
84The first defendant said that it was simply coincidental that he decided to post a review of the plaintiff that day, when the third defendant had also recently done so.[29] I reject that account.
[29]T365
85I find that the three defendants discussed writing reviews shortly after the third defendant’s consultation with the plaintiff on 21 June 2021. I do so for a number of reasons. First, because this is what the second defendant told the plaintiff on 6 August 2021. Second, because of the striking similarity in the language used in the reviews. Third, the defendants were spending considerable time together at the Blackburn property at that time. Fourth, the fact that they discussed posting reviews is more consistent with the content of the letter from their solicitors dated 17 August 2021. Fifth, the timing and circumstances of the posting of the reviews supports such a finding.
The Plaintiff’s response to the reviews
86Mrs Saxena saw the reviews on the plaintiff’s Google My Business page and Nicelocal on 26 June 2021. She said, and I accept, she did not tell her husband about the reviews as she did not want to upset him.[30]
[30] T236-237
87The plaintiff discovered the reviews in mid July 2021[31] and shortly thereafter, the plaintiff uploaded a response to the Singh review as follows:[32]
“I have seen you only ONCE approx. 1 year back. You came for a second opinion. My opinion was the same as your previous doctor. You did not have any pain and therefore [P]anadol was not prescribed. Your review is inappropriate, misleading and defamatory. Please remove it.”
[31]T80-81
[32]T90-91 and CB 163
88At about the same time, the plaintiff uploaded a response to the Mahna review as follows:[33]
“You are not a patient of this Clinic as we do not have your medical records. I have been working at this clinic for 18 years and I have never seen you. Your Google review is inappropriate, misleading, false and defamatory and therefore legal action will be taken.”
[33]T92 and CB 163
89The same day that the plaintiff posted the above response to the Mahna review, a reply was posted under the name Aashu Mahna.[34] The reply consisted of a repeat of the original Mahna review, with the following sentence added:[35]
“I have been to this doctor many times regardless what they say now.”
[34]T92 and CB 176
[35]T92 and CB 163
90The third defendant said that he posted the reply, once again using the second defendant’s mobile phone.
Interactions between the Plaintiff and First and Second Defendants following the posting of the reviews
91After discovering the reviews, the plaintiff consulted solicitors.
92On 23 July 2021, a concerns notice was sent by registered post to the first and second defendant’s Templestowe address.[36]
[36]CB 377
93The concerns notice sought the immediate removal of the reviews, undertakings, an apology and retraction, payment of $40,000 compensation and the payment of costs.
94On 30 July 2021, the plaintiff emailed Google to try and have the reviews removed.[37]
[37]CB 382
95The second defendant said that she first received the concerns notice by post on 5 August 2021. She said this was the first time that she had any knowledge of the reviews.
96She said that she immediately telephoned her husband. Her husband told her that he had posted the Singh review and he believed the third defendant posted the Mahna review.
97The second defendant said that she then telephoned her brother. He admitted posting the Mahna review and reply.
Meeting on Friday, 6 August 2021
98On 6 August 2021, the second defendant met with the plaintiff at the clinic.
99This meeting took on particular importance in the case because the plaintiff alleged that during the meeting the second defendant admitted being involved in posting the Mahna review. As stated earlier, during the trial the second defendant said she had no knowledge of the Mahna review until 5 August 2021 when she received the concerns notice.
100The second defendant said that she was distressed by the concerns notice and the prospect of being involved in litigation where a claim was being made for $40,000 plus costs. She decided to attend the clinic and try and settle matters with the plaintiff directly.
101Before attending the clinic on 6 August 2021, the second defendant went to the Blackburn property and asked the third defendant to come with her. The third defendant refused to go. He told the second defendant that he did not believe there was anything wrong with the Mahna review which set out his “experience”.
102Instead, Mrs Kundra accompanied the second defendant to the clinic and Mr Kumar drove them.
103There was an issue between the parties as to whether Mr Kumar was present during the discussion between the plaintiff and the second defendant at the clinic on 6 August 2021.
104There was also an issue as to whether Mrs Saxena was able to overhear what was said between the plaintiff and second defendant at the clinic.
105The plaintiff and his wife did not recall Mr Kumar being present. The second defendant and Mrs Kundra said they did not see Mrs Saxena.
106The plaintiff’s evidence was that during their discussion the second defendant said:
“… - they were all sitting at the dining table … [with a laptop] computer and all the people decided to write the reviews.
…
She mentioned the brother that he was involved in writing as well, she mentioned.”[38]
[38]T98
107During cross-examination, the plaintiff reiterated that account:
“She told me that around the dining table all the three were sitting. She said about the laptop computer which was used to raise these comments. And that’s what she told us. … .”[39]
[39]T131
108Mrs Saxena said she relevantly overheard the second defendant say as follows:
“… she said that it was her brother who was upset, was the patient, Rahul Mahna. And he was refused the scan, that’s why he got very upset. And they all were sitting on the dining table. He – Rahul Mahna, Mehak Kundra, Aashu Mahna and Manjot Singh – they were all sitting at the dinner table, and it was a discussion, and then they did it on the computer. Mehak Kundra said - because I recognise her voice - she said that the scan was refused and he got very upset. That’s why they all decided to do it. They did it.”[40]
[40]T238
109During cross-examination, Mrs Saxena said that on 6 August 2021, the second defendant said that “… they all did it on the computer”.[41]
[41]T251
110The second defendant denied telling the plaintiff that she discussed writing reviews with the first and third defendant, or that the reviews were written at that time. Her evidence was that she told the plaintiff she had not known anything about the reviews prior to receiving the concerns notice, and the one in her name was posted by her brother.
111Mrs Kundra and Mr Kumar said that on 6 August 2021, the second defendant told the plaintiff her brother posted the review, but that she was sorry.
112I make the following findings about this meeting.
113I accept the evidence of the second defendant, Mrs Kundra, and Mr Kumar, that they went into the plaintiff’s clinic together on 6 August 2021 to speak to the plaintiff. Mr Kumar played no part in the discussion.
114I also accept that Mrs Saxena was present but was positioned so that she could not be seen by the second defendant, Mrs Kundra or Mr Kumar.
115I further accept that Mrs Saxena was able to hear what was said by the plaintiff, the second defendant and Mrs Kundra. I do so because I found Mrs Saxena to be a generally straightforward witness. Further, given that she worked in the clinic with the plaintiff, it was inherently likely that she would be present. Additionally, it accords with ordinary human behaviour that Mrs Saxena would want to listen to what was being said regarding the allegedly defamatory reviews of her husband.
116I do not accept the evidence of the second defendant regarding what was said by her to the plaintiff on this day about her involvement in the reviews for a number of reasons.
117First, for reasons explained later, I generally prefer the evidence of the plaintiff and his wife where it conflicts with the evidence of the defendants and their witnesses.
118Second, the second defendant was a recipient of the concerns notice because she was the apparent author of the Mahna review. It stands to reason that she would have discussed the nature of her involvement in the posting of the review with the plaintiff.
119Third, there was no evidence that the plaintiff was aware at that time of the partially shared living arrangements of the defendants. Therefore, the scenario that the defendants were all together discussing writing reviews round the dining table was an unlikely one to invent.
120I find that on 6 August 2021, the second defendant told the plaintiff about the discussion she had had with her brother and husband on or shortly after 21 June 2021. Further, that in that discussion they decided to post reviews of the plaintiff. I find that she said this because that was what happened.
121I find that sometime later on 6 August 2021, the reviews were removed by the first and second defendants.
Telephone conversation on Saturday, 7 August 2021
122As the plaintiff and second defendant had not resolved matters at the 6 August 2021 meeting, the second defendant telephoned the plaintiff at the clinic on 7 August 2021 to discuss the concerns notice again.
123I find that Mrs Saxena could hear the plaintiff’s side of the discussion, and some of what the second defendant said.
124The plaintiff and second defendant gave similar evidence as to the content of this conversation.
125The second defendant was upset and crying. The plaintiff said he would reduce the amount for which he would settle his claims regarding the reviews to $15,000 for his costs.[42] The second defendant told him she could not afford to pay so much.
[42] T145
Meeting on Monday, 9 August 2021
126On and prior to 9 August 2021, the first and second defendants took several steps in preparation for a further attendance at the clinic to try and resolve matters.
127The first defendant drafted a statutory declaration which stated as follows:
“We are giving a cheque of the amount of $2000 to Dr Amreesh Saxena of Lifecare Medical Centre, 797 Doncaster Rd, Doncaster VIC 3108. We will pay $3000 in form of bank transfer to Dr Amreesh Saxena’s bank account by 20th August 2021 to settle the matter of the concerns notice sent in the name of Dr A Saxena by Sanicki Lawyers.”
128The statutory declaration was witnessed at Doncaster Police Station on Sunday, 8 August 2021.
129The first and second defendant obtained a bank cheque dated 9 August 2021 payable to the plaintiff in the sum of $2,000.
130They each signed an apology and retraction, and undertakings document (which had been sent to them with the concerns notice). The documents relevantly stated:[43]
[43]CB 171 and Exhibit 19
“APOLOGY AND RETRACTION
…
We, Manjot Singh, and Aashu Manhu (sic), published a number of Google Reviews in June 2021 which were defamatory of Dr Amreesh Saxena.
The statements contained in those Google Reviews were false and we retract them unconditionally. We sincerely apologise to Dr Amreesh Saxena for publishing the Google Reviews and for the hurt and injury suffered by Dr Amreesh Saxena as a consequence of those Google Reviews published by us.
…
UNDERTAKINGS
…
We, Manjot Singh, and Aashu Mahna (sic), hereby undertake, jointly and severally, that WE WILL NOT:
1. communicate or publish any further comments which may be defamatory or disparaging of Dr Amreeah (sic) Saxena … .”
[emphasis in original]
131The first and second defendants attended the clinic on 9 August 2021. Their intention was to try and bargain the plaintiff down from $15,000 and try and settle the matters raised by the concerns notice by the provision of the signed undertakings and apology and retraction, together with the payment of $5,000 (the $2,000 bank cheque and $3,000 bank transfer).
132The parties were agreed that the plaintiff did not meet with the first and second defendants. I accept the plaintiff’s evidence that he did not want to talk to them anymore.
133Instead, Mrs Saxena spoke to the first and second defendants.
134For reasons set out below, I accept that the plaintiff was in a room adjacent to the area where the conversation took place and was able to hear most of what was said.
135Each of the participants gave broadly similar accounts of the substance of the conversation. That is, that the first and second defendants offered the cheque for $2,000 and attempted to give some documents to Mrs Saxena. Mrs Saxena refused to accept the cheque or documents. She told the first and second defendants to contact the plaintiff’s lawyer.
136The first and second defendants allege that Mrs Saxena threatened to report the first defendant to VicRoads, such that he would lose his job. Further, that the plaintiff would pursue the defendants in the Supreme Court.
137I prefer the evidence of Mrs Saxena as to what was said. First, because I generally prefer Mrs Saxena’s evidence where it conflicts with that of the defendants for reasons set out later. Second, it is more likely in context that Mrs Saxena said something to the effect of “how would you like it if we defamed you on the internet?”.
138There was no dispute that on 9 August 2021, Mrs Saxena said to the first and second defendants that “you guys sat on the dining table and did the reviews together”. I find that she said this because I accept her evidence that this is what she heard the second defendant tell the plaintiff on 6 August 2021.[44]
[44]T258
Email from the First and Second Defendants to the Plaintiff’s solicitors
139Later, on Monday, 9 August 2021, the first and second defendants sent an email to the plaintiff’s solicitors:
“Hello Jonathan,
[W]e are writing in regards to the concern[s] notice received on behalf of your client Dr Amreesh Saxena on 5th Aug.
As discussed with Dr Amreesh Saxena on 7th August, 2021 at 11.21AM, he agreed to settle this matter for $15000.00 including Legal fee and cost. Please find attached apology letters on behalf of me and Manjot Singh. Kindly send me the settlement letter and bank account details so I can transfer $15000 funds today to settle this matter.
Thank you
Aashu Mahna & Manjot Singh.”[45]
[45]CB 279
140The signed apology was sent as an attachment to the email.
141The plaintiff’s solicitors subsequently provided bank account details but the $15,000 was not paid.
Letter dated 17 August 2021 from the Defendants’ solicitors
142On 17 August 2021, the defendants’ then solicitors, Vernon da Gama & Associates, wrote a detailed six-page letter to the plaintiff’s solicitors.[46]
[46]CB 172
143In the letter, the solicitors asserted that the second defendant had maintained contemporaneous notes of the conversation with the plaintiff on 6 August 2021. No such notes were tendered in the proceeding. In evidence, the second defendant denied having made contemporaneous notes.
144Further, the solicitors said that the second defendant had no knowledge of the reviews posted by her husband and brother until receipt of the concerns notice.
145As to the circumstances in which the apology was signed on 9 August 2021 by the first and second defendants, the solicitors said as follows:[47]
“On hearing what Ms Rajani had to say to them, they were petrified and panicked. On reaching their home, without having the benefit of legal advice, in a moment of haste and panic, they signed the apology letters, and Aashu emailed to your firm two signed apology letters, one signed by Aashu and the other by Manjot. … .”
[47]CB 174
146I do not accept that the first and second defendants signed the apology letters after meeting with Mrs Saxena on 9 August 2021, and because of what had been said by her. It is contrary to the viva voce evidence of the first and second defendants, which was that they attended the clinic with the statutory declaration and the signed apology and retraction.
147The defendants’ solicitors withdrew the apology from the second defendant.
148Before considering the plaintiff’s pleaded case and the various defences relied upon, I will set out my impression and findings in relation to each of the witnesses.
The evidence
The Plaintiff’s witnesses
Dr Amreesh Saxena, the Plaintiff
149The defendants submitted that the plaintiff’s evidence was not credible, conflicted with the evidence of the plaintiff’s other witnesses, and that his evidence was exaggerated.
150The defendants submitted that the plaintiff gave exaggerated or contradictory evidence about the following matters:
(a) the amount of detail in a voicemail he left for Ms Pradbu when he hoped to engage her to act for him in relation to this matter;
(b) what Dr Gupta said to the plaintiff about his skills when they discussed the reviews;
(c) he contradicted his own evidence regarding the third defendant suffering muscle pain all over his body;
(d) whether the door to the room he was in was open or closed on 9 August 2021 (which was relevant to whether he could hear what was said by others outside the room);
(e) denying that his wife said to the first and second defendant on 9 August 2021 that the defendants had sat at the dining table and discussed the reviews; and
(f) he exaggerated when he said that his Google review average had fallen to 3.3 stars in July 2021.
151I find any variations between the evidence of the plaintiff and Mrs Pradbu and Dr Gupta in relation to issues (a) or (b) above to be immaterial. It is to be expected that the recollections of honest and reliable witnesses will vary to some degree.
152As to (c), I understood the plaintiff’s evidence-in-chief to be to the effect that the third defendant complained of muscle pains in various parts of his body on different occasions, and also complained of muscle pain all over his body on 17 May 2021. In my view, the plaintiff clarified his evidence in cross-examination. I do not find there to have been a contradiction.
153As to (d), the plaintiff said the door between him and the participants in the conversation on 9 August 2021 was slightly open, such that he could hear what was said. Mrs Saxena’s evidence was that the conversation took place in front of his door. The transcript referred to in submissions by the defendants related to the main door to the surgery. I do not find that the plaintiff’s evidence was contradictory on this issue.
154As to (e), the plaintiff did not recall if that was said by his wife. He did not deny it.
155As to (f), I find that the Google My Business insight report referred to the star rating as at the date that the report was generated (that is, in August 2021). It did not reveal the star rating in mid July 2021.
156Contrary to the submissions of the defendants, I found the plaintiff to be a generally straightforward and reliable witness. His account of his interactions with the first and third defendants was corroborated by his contemporaneous clinical notes.
157The plaintiff was willing to make corrections where appropriate and indicated where he was not sure of a matter or could not remember some detail.
158Overall, I prefer the plaintiff’s evidence where it conflicts with the defendants’ witnesses.
Mrs Rajini Saxena
159Mrs Saxena is the plaintiff’s wife.
160The defendants submitted that Mrs Saxena’s evidence should not be accepted. The basis of that submission was that Mrs Saxena only overheard part of a telephone conversation on 7 August 2021.[48]
[48]Defendants’ written submissions dated 23 August 2023, paragraph [4]
161I found Mrs Saxena to be straightforward about what she could and could not hear of the telephone conversation between the plaintiff and second defendant on 7 August 2021.
162Further, I find that a lack of specific memory as to what was said in one encounter with the second defendant rather than another is understandable given the passage of time. In my view, Mrs Saxena’s acknowledgement of that difficulty is evidence of her reliability.
163I found Mrs Saxena to be an impressive witness. She gave direct answers which were consistent with other evidence which I accept. She was measured and made appropriate concessions. Her evidence made sense in the context of the events in question. Overall, I prefer her evidence where it conflicts with the defendants and their witnesses.
Dr Suresh Gupta
164Dr Gupta is retired. He and his wife have been patients of the plaintiff for approximately nineteen years.
165Dr Gupta said that in the community the plaintiff has a good reputation as a doctor.
166On or about 28 June 2021, Dr Gupta read the reviews on the plaintiff’s Google My Business page.
167Dr Gupta told his wife what he had seen and suggested to her that perhaps they should stop consulting the plaintiff given the reviews.
168Dr Gupta’s wife told him that they had not had a problem with the plaintiff, so there was no reason for them to change GP.[49]
[49] T223
169Dr Gupta has continued to consult the plaintiff and considers him to be a good GP.
170Dr Gupta’s evidence as to the plaintiff’s reputation was not challenged.
171Dr Gupta struck me as a forthright witness who had a clear recollection of relevant events. I accept his evidence.
Mr Nabil Basily
172Mr Basily is a structural and civil engineer.
173Mr Basily had been a patient of the plaintiff’s since approximately 2004. His wife and two children are also the plaintiff’s patients.
174Mr Basily believed the plaintiff to be a reputable and sincere GP with a very thorough approach and an ability to explain things clearly.
175Mr Basily was not aware of anything negative about the plaintiff coming up in the previous three years.
176The defendants did not challenge Mr Basily’s evidence regarding the plaintiff’s reputation. I accept it.
Ms Pratima Pradbu
177Ms Pradbu is a solicitor and a principal of a law firm.
178Ms Pradbu has been the plaintiff’s patient since about 2008. She also had some contact with the plaintiff socially.
179Ms Pradbu considered the plaintiff to be a very good doctor. He was not her regular GP. She travelled some distance to see him and would generally only consult him for more prolonged medical issues.
180On or about 27 June 2021, Ms Pradbu read the reviews on the plaintiff’s Google My Business page and on Nicelocal.[50] She read the reviews as she had just recommended the plaintiff to one of her clients. That client had Googled the plaintiff’s name and read the reviews. Ms Pradbu was embarrassed that she had recommended the plaintiff to the client in circumstances where there were negative reviews about him on his Google My Business page.
[50]T265-6
181The defendants submitted that Ms Pradbu’s evidence that her client read the reviews ought not to be considered by the Court as it was admitted only for a non hearsay purpose.[51] No objection was taken to the evidence when it was given, and the ruling referenced in the defendants’ written submissions related to evidence given by Mrs Saxena being notified about the reviews by a patient at a shopping centre. The ruling referred to had nothing to do with Ms Pradbu’s evidence.
[51]Defendants’ written submissions dated 23 August 2023, paragraph [5]
182Ms Pradbu had not consulted the plaintiff since reading the reviews. She acknowledged that she had not had a prolonged medical issue that required his assistance.
183I found Ms Pradbu to be a candid and straightforward witness. I accept her evidence.
Dr Ruchi Singh
184Dr Singh is a urogynaecologist. The plaintiff had referred several patients to Dr Singh since approximately 2015.
185Dr Singh and the plaintiff are both members of an overseas medical graduate’s association and had some social contact.
186Dr Singh said that the plaintiff is a well-regarded GP and their mutual patients spoke very highly of him.
187Dr Singh was not aware of anything negatively affecting the plaintiff’s reputation in June or July 2021.
188The defendants did not challenge Dr Singh’s evidence regarding the plaintiff’s reputation.
189I accept Dr Singh’s evidence.
Dr Nilesh Mehta
190Dr Mehta is a cardiologist. The plaintiff had referred several patients to Dr Mehta since approximately 2015.
191Dr Mehta also met the plaintiff socially on a number of occasions.
192Dr Mehta said that their mutual patients held the plaintiff in high regard.
193Dr Mehta was not aware of anything impacting on the plaintiff’s reputation in the previous three years.
194The defendants did not challenge Dr Mehta’s evidence regarding the plaintiff’s reputation.
195I accept Dr Mehta’s evidence.
The Defendants’ witnesses
196Mr Levine submitted that the evidence of the defendants and their witnesses was clear, credible and consistent, and ought to be accepted.
Mr Manjot Singh, the First Defendant
197I found the first defendant to be an unimpressive witness.
198His viva voce evidence that it was a simple coincidence that he had the idea of posting a review about his experience with the plaintiff ten months after consulting him, with the only prompt being the conversation with the third defendant on 21 and/or 22 June 2021, was not credible.
199Further, the first defendant’s evidence that he chose to post the review in a rush, whilst on a break from his bus driving duties, was unbelievable.
200Further, I note that a different account was proffered in the letter from the defendants’ then solicitors dated 17 August 2021 to the plaintiff’s solicitors:[52]
“On 22 June 2021, when Manjot had gone to Rahul[’]s place to visit Aashu and Rahul, Rahul was discussing with Manjot, the treatment that he received from your client. Rahul mentioned to Manjot that he wished to set up a google review post for his experience of your client’s treatment upon him. It was then that Manjot too, decided to set up a google review post of his interaction with your client.”
[emphasis added]
[52]CB 176
201The first defendant said the above account was incorrect and that there were communication difficulties with the defendants’ then solicitor, Vernon da Gama, because instructions were taken primarily over Zoom.[53] I do not accept that evidence. I find it is more likely that the detailed six-page solicitor’s letter reflected the instructions given by the defendants in August 2021.
[53]T367
202The first defendant said that when he was about to post the Singh review, he saw the post under his wife’s name on 23 June 2021, and knew it had not been posted by her as his wife had never been the plaintiff’s patient.
203When asked whether he told her about it, he gave the following evidence: [54]
“I did not because I didn’t think it was a big deal because on the review, we don’t all the time share every time she puts a review or something else. It’s not something serious, I thought, because it was just our own experience we just wanted to share.”
[54]T341
204Whilst I can readily accept that the first and second defendants would not tell each other each time they posted a review, this was a different situation. The first defendant knew the review regarding his wife’s treatment by the plaintiff was false and believed it had been posted by her brother. I find that he would have, and indeed did, discuss it with her shortly after seeing it.
205The first defendant gave no viva voce evidence about being notified by email of the plaintiff replying to his review.
206I found the first defendant evasive and inconsistent about the timing of signing the undertaking, apology, and retraction documents. At one point in his viva voce evidence, he admitted they were signed prior to attending the clinic on 9 August 2021.[55] Elsewhere, he suggested they might have been signed afterwards and by reason of being “threatened” by Mrs Saxena.[56]
[55]T389
[56]T389, T391 and CB 174
207I do not accept the first defendant’s evidence that Mrs Saxena threatened to report him to VicRoads, and he thought, as a consequence, that he would lose his job.
208In my view, the first defendant reconstructed those details to explain why he and the second defendant sent an email to the plaintiff’s then solicitors on 9 August 2021 agreeing to resolve issues with the plaintiff for a payment of $15,000.
Mrs Aashu Mahna, the Second Defendant
209I also found the second defendant to be an unsatisfactory witness.
210Mr Levine submitted that the second defendant had no motive to lie. Given that her evidence was implicating her brother, it was submitted that it was more likely to be true.
211The second defendant presented as an intelligent woman.
212I find that she took charge of dealing with the concerns notice and the plaintiff in August 2021.
213I found the second defendant’s memory to be inconsistent. At times, she had little difficulty recalling details of events at the relevant time. However, when asked about a matter which she did not perceive assisted her case, the second defendant would say that she had been distressed at the time or could not remember because of the passage of time. By way of example, I found the second defendant’s evidence regarding the following matters to be unsatisfactory:
(a) During cross-examination, the second defendant was asked whether she had endeavoured to find out where she was when the Mahna review was posted. She said she “did not go into detail exactly which day or where was I”.[57] I find that this does not accord with normal human experience. Once the second defendant became aware of the Mahna review, it is much more likely that she would have asked her brother about how and when it occurred;
(b) I found the second defendant’s answers to questions during cross-examination about a notification email from Google regarding the plaintiff’s response to the Mahna review to be evasive. When asked if she received a notification on or about 16 July 2021, the second defendant referred to not checking her Gmail, and not seeing the notification. The second defendant eventually acknowledged that the notification was emailed to her Gmail account, but she did not see it until 6 August 2021. When asked whether she checked her Gmail between mid July and 6 August 2021, the second defendant’s response was “I did not check each and every email, no. Absolutely;”[58]
(c) The second defendant was evasive about reading and signing the undertakings, apology and retraction on 9 August 2021. She said they were not her words as the documents had been sent to her by the plaintiff’s solicitors with the concerns notice. When it was put to her that she understood she was acknowledging that she published the reviews, the second defendant said she was distressed and mentally unwell when she signed the undertakings, apology and retraction and on 9 August 2021, and that she “just did everything in a rush and hurry to resolve the matter”.[59] When pressed, the second defendant admitted that:
“I did read it and I knew that I was admitting here that yes, it came under my name, but this is how the letter came.”[60]
[57]T296
[58]T298
[59]T304-305
[60]T304
(d) The second defendant’s evidence as to the reason why she did not pay the $15,000 settlement she and the first defendant agreed to pay on 9 August 2021 was nonsensical. The second defendant said the reason the money was not paid was that when the third defendant found out about the concerns notice, he insisted the Mahna review contained his “honest experience”, and he wanted to speak to a lawyer. However, the second defendant had already given evidence that her brother had told her he thought there was nothing wrong with the Mahna review when she spoke to him on 5 and 6 August 2021;
(e) The second defendant was evasive as to whether she read a draft of the letter from Vernon da Gama dated 17 August 2021 prior to it being sent. She said, “it might have come to me but I don’t recall reading exactly word-to-word”.[61] When differences between the account in the letter from Vernon da Gama were put to her, the second defendant explained that the majority of the consultations with those solicitors happened on Zoom and there was a communication problem;[62]
(f) The second defendant was evasive regarding whether she maintained contemporaneous notes of her interactions with the plaintiff on 6, 7 and 9 August 2021. The letter from Vernon da Gama referred specifically to such notes allegedly kept by her.[63] When asked about this, the second defendant said she did not have a notebook and pen with her when she spoke with the plaintiff, and that she “did not keep any book to actually write any of the notes, no”;[64]
(g) The second defendant was evasive when asked whether she knew that the third defendant had sought a further scan of his neck from the plaintiff on 21 June 2021. She said, “I did not know that when he went to doctors what exactly treatment he was getting on each and every occasion or what scan he was getting on each and every occasion”.[65] When pressed, the second defendant said she did not know.[66] I do not accept her evidence on that matter. The second defendant had, and has, a very close relationship with her brother. At the relevant time she was attending various medical appointments with him,[67] and she was living part of the time at the Blackburn property with him. I cannot accept that the second defendant was unaware the third defendant sought and was refused a further scan of his cervical spine on 21 June 2021.
[61]T308
[62]T314-315
[63]CB 173
[64]T311-313
[65]T320
[66]T320
[67]T316
214The second defendant’s evidence regarding the reason for living at the Blackburn property was less than candid. She initially explained that the reason for having dual residences was due to COVID, and for her daughter to be closer to her school and friends.[68] She said that they left the Blackburn house when her daughter “started enrolling in the high school” in August or September 2022.[69]
[68]T287-288
[69]T286
215It became clear from the evidence of the defendants’ other witnesses that a significant reason behind the first and second defendants being party to the lease of the Blackburn property was to have a home in the catchment area of a particular high school for their daughter for enrolment purposes.[70]
[70]T402; T455; T488
Mr Rahul Mahna, the Third Defendant
216I also found the third defendant to be an unimpressive witness. During his evidence he repeatedly avoided answering the questions he was asked and took every opportunity to advance his case.
217At the relevant times, the third defendant had a mobile phone and his own Google account. He did not satisfactorily explain why he used his sister’s phone to post the Mahna review, save for suggesting it happened to be nearby and more convenient.[71] An explanation emerged when the third defendant was being asked about conversations with his sister during August 2021, as follows:[72]
“On the same day when she called me and asked – she asked me why I have used her phone, I just told her that it wasn’t charging so I just used it, like, randomly, just – no particular intention that I am going to use her device to upload a review as disguised.”
[71]T441
[72]T410
218The third defendant said at one point in his evidence that he did not realise the Mahna review was not under his name.[73] That evidence is not credible.
[73]T448
219The third defendant claimed to have a clear recollection of some small details from mid-2021, but a much poorer recollection of matters that he perceived did not suit his case. For example he said he posted the Mahna review when by himself, in his bedroom, in the evening.[74] He said he could remember reading only the first line of the reply from the plaintiff on or about 16 July 2021.[75] He could not recall seeing the Singh review on or about the same day,[76] despite that fact it was the other recent review and authored by his brother-in-law. Also, the third defendant said that he could not remember whether he asked the doctors at the Austin Hospital on 21 June 2021 to undertake a CT scan.[77] Given this was, I find, the only reason the third defendant consulted the plaintiff on 21 June 2021, it is not credible that the third defendant could not remember whether or not he sought a scan at the Austin Hospital on 22 June 2021.
[74]T407
[75]T451
[76]T447
[77]T481
220I find the third defendant’s purported recall of specific conversations, and whether or not the second defendant’s mobile phone was on charge in his bedroom or not at particular times on particular days, appeared to be convenient evidence that was inherently improbable.
221The third defendant said that he went onto the plaintiff’s Google My Business page in mid-July 2021, and out of curiosity, looked at the review he had posted and noticed the plaintiff had responded to the Mahna review. The third defendant subsequently added a further line to the review by way of response. The third defendant said that the reason he went onto the Google page was because his housemate asked him to confirm the clinic opening hours. That account of checking the opening hours was, in my view, improbable.
222Given his own views about the plaintiff, I find it unlikely the third defendant would have assisted anyone else to see the plaintiff. The improbability is further evidenced by the fact that the third defendant’s response to the plaintiff’s reply was made the same day.[78] I do not accept it as mere coincidence that the third defendant happened to look at the review page the same day the plaintiff responded to the review.
[78]CB 176
223I also found the following evidence from the third defendant about his response to the plaintiff’s reply to the Mahna review to be unsatisfactory:[79]
Q:“He then goes on to say I have been working at this clinic for 18 years and I have never seen you. Did you have any reason to doubt that?---
A:No.
Q:All right. So having read that, you then post these words under your sister’s name. ‘I have been to this doctor many times regardless of what they say now.’
A:Yep.
Q:Yes. Do you understand that was under your sister’s name in response to what – what is clearly in response to what he has written? You would agree with that?---
A:Well, at that time I didn’t realise it. That’s why I said I have been, which is – I am referring [to] myself.”
[79]T446
224The third defendant well knew that the Mahna review bore his sister’s name. Indeed, his evidence was that he could not post a response to the plaintiff’s reply when he first saw it and needed to get hold of his sister’s mobile phone again to do so using her Google account.
225The third defendant’s evidence is also at odds with the contemporaneous documents, particularly the plaintiff’s clinical notes, the hospital records, and the letter from the defendants’ then solicitors dated 17 August 2021.
226For instance, it was put to the plaintiff during cross-examination, that on 21 June 2021, the third defendant advised the plaintiff he was on Panadol.[80] The plaintiff denied this and referred to his contemporaneous clinical note which recorded that on 21 June 2021, the third defendant advised the plaintiff that he was taking Endone.[81]
[80]T165
[81]CB 335
227I further note that the Austin Hospital discharge summary in respect of the third defendant’s attendance the following day noted:
“On Naproxen and also pregabalin (GP increased to 50mg nocte) last week. Not taking paracetamol since last week.”[82]
[82]CB 289
228I prefer the account in the contemporaneous records of the plaintiff and the Austin Hospital discharge summary that the plaintiff was not taking Panadol as at 21 or 22 June 2021. I find that he did not advise the plaintiff on 21 June 2021 that he was taking Panadol.
229The third defendant said that in his conversation with the first defendant on 21 June 2021, he did not discuss posting reviews of the plaintiff,[83] whereas in the letter from Vernon da Gama dated 17 August 2021, it is unequivocally asserted that the third defendant told the first defendant he intended to post a review. The third defendant sought to explain the discrepancy, as he said there were some communication difficulties with the solicitors. I do not accept that, for the reasons already outlined.
[83]T404 and T440
230The third defendant contradicted himself in his viva voce evidence. For instance, he initially accepted that the only purpose for seeing the plaintiff on 21 June 2021 was to obtain a referral for a CT scan.[84] Later in his evidence, he was unwilling to accept that this was the only purpose for his visit.[85]
[84]T431
[85]T476
231As stated above, I find the third defendant’s evidence contained a series of reconstructions to support the defendants’ case.
232For the above reasons, I do not accept the third defendant’s evidence, save where it contains an admission against interest or where it is corroborated by objective evidence.
Mrs Mehak Kundra
233Mrs Kundra is the third defendant’s wife. Her evidence was relatively brief and limited to particular issues. I have some reservations as to her overall reliability.
234She was present at the consultation between the plaintiff and the third defendant on 21 June 2021. She was also present at the meeting between the second defendant and the plaintiff at the clinic on 6 August 2021.
235Mrs Kundra did not suggest that the plaintiff used any inappropriate tone when declining to order a CT scan for the third defendant on 21 June 2021.
236I accept her evidence that Mr Kumar drove her and the second defendant to the clinic on 6 August 2021.
237Mrs Kundra had limited recall of what was said between the plaintiff and second defendant on that occasion, although she remembered the second defendant saying that it was the third defendant who wrote the review.[86]
[86]T485
238I do not accept Mrs Kundra’s evidence that on 5 August 2021, she was in the bedroom of the Blackburn property with her husband, when the second defendant called to ask who had used her phone to post the Mahna review.
239Mrs Kundra said she recalled the conversation happening on speaker mode, and that the second defendant did not stay at the Blackburn property that night. This recall of the conversation was at odds with Mrs Kundra’s otherwise poor memory of events in June and August 2021.
240For instance, she said she was not aware at that time that the plaintiff had served a concerns notice, seeking compensation. I find that if Mrs Kundra had been a participant in a conversation with the second and third defendants on 5 August 2021, she would have been well aware of the concerns notice and the plaintiff’s claim for $40,000 by way of compensation.
241I also do not accept Mrs Kundra’s evidence that after attending the clinic on 6 August 2021, that she did not speak to anyone about the issues raised by the reviews and the plaintiff’s claims after that.[87] I do not accept that evidence because it is inherently improbable in circumstances where the reviews and the plaintiff’s claims about them were important issues to the first and second defendant, with whom the third defendant and Mrs Kundra were not only very close, but also intermittently living at the Blackburn property. Given what occurred on 6, 7 and 9 August 2021, the more likely scenario is that the defendants and Mrs Kundra were talking of little else but the reviews and the concerns notice.
[87]T494
242I accept that at some point the second defendant telephoned the third defendant and Mrs Kundra to ask about the Mahna review. I find this more likely occurred on or about 23 June 2021 when the first defendant told the second defendant about the Mahna review. At this point in time, the first and second defendants had not received the concerns notice.
Mr Neeraj Kumar
243Mr Kumar lived in the Blackburn property at the time the reviews were posted. He is a friend of the third defendant and works as a cyber security analyst.
244Mr Kumar’s evidence was very brief, and he had limited recall of relevant events. I accept it, such as it was.
245Mr Kumar said that he drove the second defendant and Mrs Kundra to the clinic on 6 August 2021. He said he went into the clinic and could recall some of what was said between the second defendant and the plaintiff.
246Mr Kumar said that sometime in July 2021 he asked the third defendant whether the plaintiff saw patients at lunchtime. He could not recall whether the third defendant responded.
247No other witnesses gave viva voce evidence. Both parties tendered a number of documents.
248I will now consider the plaintiff’s pleaded case and the defendants’ defences.
Imputations
249I respectfully adopt the principles summarised by John Dixon J in Agustin-Bunch v Smith (No 3)[88] to determine whether a publication conveyed a defamatory imputation:
[88][2023] VSC 277 at paragraphs [11]-[12]
“11. The principles that may be drawn from the cases to determine whether a publication in fact conveyed a defamatory imputation are:
(a) The plaintiff bears the onus of proving, on a balance of probabilities, and as a question of fact, that the alleged defamatory meanings were conveyed by the publication.
(b) The determination of whether a publication conveys an imputation is an objective fact that must admit a binary answer. The question is not what the allegedly defamatory words or images in fact say or depict but what a tribunal of fact could reasonably think they convey to the ordinary reasonable person.
(c) A meaning is conveyed if it would have been conveyed to an ordinary reasonable person, namely a hypothetical reader/listener/viewer who possesses certain characteristics. I will mostly use the term hypothetical viewer in these reasons. Bearing in mind that ordinary men and women have different temperaments and outlooks, degrees of education and life experience, the test seeks to strike a balance between the most extreme meaning that the words could have and the most innocent meaning, which is not a search for a ‘centre point’. The search is for the single meaning that is the ‘natural and ordinary’ meaning of the words published, which is generally the dominant meaning of the words from the publication read as a whole. There is no uniform applicable rule but the exercise is one in generosity not parsimony.
(d) The ordinary and natural meaning may be obvious from the direct or literal meaning of the words used, but more often than not, the question turns on what implications or inferences a hypothetical viewer would draw from the publication. What the ordinary reasonable person would read into or infer from the words is often a matter of impression.
(e) The hypothetical viewer is not a lawyer who examines the publication overzealously, but rather views the publication casually, often fixing on a first impression and is prone to a degree of loose thinking. The person is of fair, average intelligence, experience, and education. They are fair-minded and neither perverse, morbid nor suspicious of mind, nor avid for scandal. They do not live in an ivory tower and they read between the lines in light of general knowledge and experience of worldly affairs. They draw implications more freely than a lawyer would, especially derogatory implications.
(f) The mode or manner of publication can be a relevant matter in determining what was conveyed to the ordinary reasonable reader. The reader of a book, for example, is more likely to read with more care than an article in a newspaper – particularly if the article is sensational. The ordinary reasonable reader of such an article is prone to engage in loose thinking; all the more so where the words are imprecise, ambiguous, loose, fanciful, or unusual.
(g) Each alleged defamatory imputation has to be considered in the context of the entire matter complained of, particularly where the publication reports a defamatory statement by a third party. It does not follow, however, that each part of the publication must be given equal significance. A headline, for example, may give a reader a predisposition about what follows and may therefore assume particular importance.
(h) The meaning of the publication may be influenced by the overall tone or tenor of the publication; it may be tinged with insinuation or suggestion, or implicitly invite the reader to adopt a suspicious approach. Humour, irony, parody, or manipulation of the message by non-verbal influences in the publication may be relevant.
(i) The tribunal of fact must ultimately determine whether the alleged defamatory meaning was in fact the single natural and ordinary meaning of the words complained of.
(j) The intention of the publisher is irrelevant.
(k) The manner in which the publication was actually understood is also irrelevant in determining, objectively, what meaning was conveyed to the hypothetical viewer.
(l) The broad impression conveyed by the material as a whole is relevant, not the meaning of each word.
(m) The ordinary reasonable viewer of ‘transient’ publications like live television, but also video and internet platforms, may have no opportunity to reconsider the whole publication at leisure, to check back and change first impressions, or may not as a matter of viewing habits do so. They are assumed to have seen the whole program though they may not have devoted the same degree of concentration to it that could be given to a written article.
(n) The context in which a video/television program appears, its tone, visual and non-verbal presentation (techniques like ominous music, lighting, subliminal messaging, background written material or images and myriad production techniques that may be used by both professional and amateur video makers) is relevant to determining the meaning conveyed; the focus is on the overall impression created in the mind of the reasonable viewer.
(o) The court must determine the single, natural, and ordinary meaning of the words that the reasonable viewer of an online video would glean, without rewinding, pausing, or poring over the words – without over-elaborate analysis or adopting too literal approach to the text.
(p) The court is not bound by the precise form of imputations pleaded by the plaintiff; the plaintiff may rely on meanings comprehended in the pleadings or a variant thereof.
Hore-Lacy imputations
12.While a defendant may deny that the plaintiff’s pleaded imputations are carried by the publication, a plaintiff sues on publication of defamatory matter, not on imputations. The plaintiff may succeed on imputations conveyed by the publication that are not pleaded provide they are permissible variants of pleaded imputations, imputations that are not substantially different from and not more injurious than the pleaded meanings.”
250The reviews appeared on the plaintiff’s Google My Business page.
251The plaintiff tendered a copy of the reviews from his Google My Business account. He did not tender a document showing what the public would have seen of the reviews on the first page of his Google My Business entry between June and August 2021.
252Because of this, the defendants submitted that the evidence did not enable the reviews to be viewed in context, and they ought not to be disadvantaged by this.[89]
[89]Defendants’ written submissions dated 23 August 2023, paragraphs [13]-[14]
253Whilst the reviews must be considered in context, in my view, that could be done for the following reasons:
(a) The reviews were posted on the plaintiff’s professional Google My Business page;
(b) Each of the reviews was a standalone communication;
(c) It was plain from the reviews that they purported to be from actual patients of the plaintiff regarding their treatment;
(d) The plaintiff’s evidence, which I accept, was that there were approximately seven to nine reviews on his Google My Business Page at the relevant time;[90]
(e) The plaintiff’s evidence, which I accept, was that the other reviews were positive (apart from one “minor one”);[91]
(f) At the times relevant to this proceeding, the reviews were the two most recent reviews posted on the plaintiff’s Google My Business page.
[90]T81 and T116
[91]T79
254There was no issue that each of the reviews was about the plaintiff.
Imputations One, Two and Three
255The plaintiff alleged the Singh review, in its natural and ordinary meaning, would have conveyed to the ordinary, reasonable reader the following imputations:
(i) the plaintiff, in the course of treating the first defendant’s medical problem, treated the first defendant improperly by repeatedly giving Panadol to the first defendant, which caused the first defendant’s medical problem to become worse (“Imputation One”);
(ii) the plaintiff, in the course of treating the first defendant’s medical problem, failed to properly listen to the first defendant (“Imputation Two”);
(iii) the plaintiff, a doctor, is incompetent (“Imputation Three”).
256The first defendant denied that the review could convey the pleaded imputations. Specifically, that it did not carry the imputation that the plaintiff made the first defendant’s condition worse, or that the plaintiff was incompetent.
257Further, it was submitted that:
“… The reasonable reader would not read that a layperson was expressing a medical opinion on a review and thus would not find that there was any imputation in respect of the Plaintiff treating the First Defendant improperly or that the Plaintiff caused the First Defendant’s medical condition worse.”[92]
(sic)
[92]Defendants’ written submissions dated 23 August 2023, paragraph [16]
258I understood this submission to mean that a reasonable reader would understand that this was a lay, not medical, opinion.
259The first defendant submitted that the reasonable reader of the Singh review would not take the suggestion that Panadol made the first defendant’s condition worse seriously but would understand that it was the underlying condition that became progressively worse.
260The Singh review was posted on the plaintiff’s Google My Business page in a section available specifically for rating and reviewing him in his capacity as a GP. I infer that those persons looking on the plaintiff’s Google My Business page included at least patients, prospective patients, and professional colleagues. Those persons reading the reviews would expect to be informed about other people’s experiences with the plaintiff, and his ability and competence as a GP.
261I reject the first defendant’s contention that a reasonable reader would not believe that it was being said that Panadol made the first defendant’s condition worse. There is nothing in the Singh review or its context to suggest that it ought not to be taken seriously.
377The defendants placed reliance upon Lorbek v King[127] in support of their submissions that there was the requisite reciprocity. That authority does not assist the defendants. There is a distinction between common law qualified privilege and statutory qualified privilege. Lorbek v King was concerned with the latter, not the former.
[127][2023] VSCA 111 at paragraph [55]
378Having determined that the reviews were published to the public, it is for the defendants to demonstrate reciprocity of duty and interest with that audience.
379There was no restriction on the persons who could access the plaintiff’s Google My Business page. It may be readily inferred that patients and prospective patients would be amongst the likely users. Professional colleagues and other acquaintances were also likely to access the page.
380There was no evidence that the webpage had any particular readership. The situation is readily distinguishable from internet material available only to readers who share a common characteristic, such as membership of an association or interest group.
381I find that publication was to the public at large on the plaintiff’s Google My Business page. The defendants have not established reciprocity with the public at large.
382The defence of common law qualified privilege is not established.
Statutory qualified privilege (Section 30)
383Prior to the legislative changes which came into effect on 1 July 2021,[128] s30 of the Act provided as follows:
[128]Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020 (Vic), s32
“30 Defence of qualified privilege for provision of certain information
(1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that—
(a) the recipient has an interest or apparent interest in having information on some subject; and
(b)the matter is published to the recipient in the course of giving to the recipient information on that subject; and
(c) the conduct of the defendant in publishing that matter is reasonable in the circumstances.
(2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest.
(3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account—
(a) the extent to which the matter published is of public interest; and
(b) the extent to which the matter published relates to the performance of the public functions or activities of the person; and
(c) the seriousness of any defamatory imputation carried by the matter published; and
(d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts; and
(e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously; and
(f) the nature of the business environment in which the defendant operates; and
(g) the sources of the information in the matter published and the integrity of those sources; and
(h) whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person; and
(i) any other steps taken to verify the information in the matter published; and
(j) any other circumstances that the court considers relevant.
(4) For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.
(5) However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward.”
Did the recipient(s) of the two reviews have an interest or apparent interest in having information in respect of the Plaintiff?
384The plaintiff conceded that this element was made out.
Were the two reviews published to the recipient(s) in the course of giving the recipient(s) information on that subject?
385The plaintiff conceded that this element was made out.
Was the conduct of the Defendants in publishing the reviews reasonable in the circumstances?
386Section 30(3) of the Act sets out a non-exhaustive list of matters the Court may consider in assessing reasonableness. The plaintiff submitted that matters of relevance here were:
· the imputations are serious imputations against a doctor;
· the first defendant had not consulted the plaintiff for more than ten months;
· the matters did not contain the substance of the plaintiff’s side of the story and no attempt was made by any of the defendants to obtain it;
· no steps were taken by the defendants to verify the information in the publications.
387The defendants submitted that their conduct was reasonable in the circumstances. The plaintiff’s Google My Business page invited reviews and personal experiences to be shared. It was said the onus was on the plaintiff to contact those persons posting reviews, as that was what was stated on the website.
388It was submitted that the reviews would only be viewed by a small number of people and would be unlikely to impact the plaintiff’s reputation.[129] The basis for those submissions was not articulated. I do not accept them, for the reasons already outlined.
[129]Defendants’ written submissions dated 23 August 2023, paragraph [40]
389Dealing firstly with the Singh review: I find that these were serious imputations, there was no public interest in the matters being published expeditiously, the matters published did not contain the plaintiff’s side of the story and the first defendant did not take any steps to verify the information in the publication. Further, the first defendant knew the imputations were not true.
390In the circumstances, publishing the Singh review was not reasonable.
391As to the Mahna review: I find that these were serious imputations, and for the reasons outlined above, both the second and third defendant knew the imputations were not true.
392Further, the matters published did not contain the plaintiff’s side of the story and neither the second nor third defendant took any steps to verify the information in the publication.
393In the circumstances, publishing the Mahna review was not reasonable.
Was the publication of the Singh review and/or the Mahna review actuated by malice?
394If, contrary to my findings, the reviews were published on an occasion of common law qualified privilege or statutory qualified privilege, I will consider the issue of malice.
395The common law and statutory defences of qualified privilege are defeated if the plaintiff proves the publication of the defamatory matter was actuated by malice.
396A finding of malice is subject to the Briginshaw[130] principles.
[130]Briginshaw v Briginshaw (1938) 60 CLR 336 (“Briginshaw”)
397The plaintiff must establish that the ulterior motive was the dominant motive.[131]
[131]Szanto v Melville [2011] VSC 574 at paragraph [96]
398The purpose or motive of a person who publishes defamatory material can be inferred from what they did, said, or knew.
399In Roberts v Bass,[132] the Court said the following regarding the meaning of improper motive:
“An occasion of qualified privilege must not be used for a purpose or motive foreign to the duty or interest that protects the making of the statement. A purpose or motive that is foreign to the occasion and actuates the making of the statement is called express malice. The term ‘expires malice’ is used in contrast to presumed or implied malice that at common law arises on proof of a false and defamatory statement. Proof of expires malice destroys qualified privilege. Accordingly, for the purpose of that privilege, expires malice (‘malice’) is any improper motive or purpose that induces the defendant to use the occasion of qualified privilege to defame the plaintiff. …
Improper motive in making the defamatory publication must not be confused with the defendant’s ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice, or any other motive than duty or interest for making the publication. If one of these matters is proved, it usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication. Indeed, proof that the defendant knew that a defamatory statement made on an occasion of qualified privilege was untrue is ordinarily conclusive evidence that the publication was actuated by an improper motive. But, leaving aside the special case of knowledge of falsity, mere proof of the defendant’s ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice. The evidence or the publication must also show some ground for concluding that the ill-will, lack of belief in the truth of the publication, recklessness, bias, prejudice or other motive existed on the privileged occasion and actuated the publication … even if the defendant believes that the defamatory statement is true, malice will be established by proof that the publication was actuated by a motive foreign to the privileged occasion. That is because qualified privilege is, and can only be, destroyed by the existence of an improper motive that actuates the publication.
If the defendant knew the statement was untrue when he or she made it, it is almost invariably conclusive evidence of malice. That is because a defendant who knowingly publishes false and defamatory material almost certainly has some improper motive for doing so, despite the inability of the plaintiff to identify the motive.”
[emphasis in original]
[132](Supra) at paragraphs [75]-[77]
400Knowledge of falsity might generally establish that a matter was published for an improper purpose or motive, but it does not invariably do so.
401The plaintiff submitted that in circumstances where the first defendant copied the Mahna review when writing the Singh review, with scant regard for the truth of what was written, malice should be inferred.
402The plaintiff submitted that the third defendant had an improper purpose for posting the Mahna review. That is, by way of retaliation for the plaintiff’s refusal to order a bulk billed scan of the third defendant’s cervical spine on 21 June 2021. The third defendant sought to harm the plaintiff’s practice.
403The plaintiff submitted that the allegations of incompetency in each of the reviews were made in circumstances where the first and third defendants knew them to be false or were reckless as to whether they were false. Given that there was no attempt made to verify those allegations (for instance by obtaining a professional opinion or a second opinion), an inference of malice should be drawn.
404So far as the second defendant is concerned, the plaintiff submitted that upon becoming aware of the Mahna review, the second defendant knew that it was false as she had never been the plaintiff’s patient. Malice should be inferred.
405The defendants submitted that even if the defendants had ill-will, a lack of belief in the truth of the publication, had been reckless, had failed to make enquiries, or failed to act carefully or rationally, such was not sufficient to establish malice.[133]
[133]Defendants’ written submissions dated 23 August 2023, paragraph [36]
406I find that the first defendant had no proper basis for accusing the plaintiff of repeatedly giving him Panadol, making his condition worse and being incompetent. The first defendant made those allegations knowing they were false. I infer that the first defendant’s motive for posting the review was not to carry out a duty to inform patients or potential patients of his experience of being treated by the plaintiff.
407I am satisfied that the dominant motive for the publication of the Singh review was to mirror the language of the Mahna review authored by the third defendant to give further credence to it.
408I find that malice has been proved against the first defendant in accordance with the principles in Briginshaw.
409I find the third defendant had no basis to author a review using the second defendant’s name, which review accused the plaintiff of repeatedly prescribing her Panadol, making her condition severely worse, such that she was hospitalised or was lacking in empathy. The third defendant knew those allegations were false with respect to the second defendant as the second defendant had never been the plaintiff’s patient and he knew he was referring to himself in the review.
410I further find that the third defendant had no proper basis to accuse the plaintiff of repeatedly prescribing him Panadol, making his condition severely worse, such that he was hospitalised, or was lacking in empathy.
411I find that the dominant motive for the publication was retaliation for the manner in which he perceived the plaintiff spoke to him on 21 June 2021, and for the plaintiff refusing to order a further bulk billed scan of his cervical spine.
412I find that malice has been proved against the third defendant in accordance with the principles in Briginshaw.
413So far as the second defendant is concerned, I find that she became aware of the Mahna review on or about 23 June 2021. She knew it was false. I find that her dominant motive in allowing the continued publication of the review was to help the third defendant retaliate against the plaintiff for his treatment of the third defendant and for failing to order a further bulk billed scan of his cervical spine on 21 June 2021.
414I find that malice has been proved against the second defendant in accordance with the principles in Briginshaw.
Honest opinion (Section 31)
415Prior to the legislative changes which came into effect on 1 July 2021,[134] s31 of the Act relevantly provided:
[134]Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020 (Vic), s34
“31 Defences of honest opinion
(1) It is a defence to the publication of defamatory matter if the defendant proves that—
(a) the matter was an expression of opinion of the defendant rather than a statement of fact; and
(b) the opinion related to a matter of public interest; and
(c) the opinion is based on proper material.
…
(4) A defence established under this section is defeated if, and only if, the plaintiff proves that—
(a) in the case of a defence under subsection (1)–the opinion was not honestly held by the defendant at the time the defamatory matter was published; or
…
(5) For the purposes of this section, an opinion is based on proper material if—
(a)…
(b) the material—
(i) is substantially true; or
(ii) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law); or
(iii) was published on an occasion that attracted the protection of a defence under this section or section 28 or 29.
(6) An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material.”
416To establish the defence of honest opinion, the defendants must prove that:
(a) the matter was an expression of opinion rather than a statement of fact;
(b) the opinion related to a matter of public interest; and
(c) the opinion is based on proper material.
Were the reviews an expression of opinion or a statement of fact?
417The plaintiff conceded that each of the reviews was an expression of opinion.
Did the reviews relate to a matter of public interest?
418The plaintiff conceded that this element was made out in respect of each review.
Were the opinions based on proper material?
419As with the defence of fair comment, the facts on which the opinion is based must appear in the publication or otherwise be apparent to a reader.[135]
[135]The Herald & Weekly Times Pty Ltd v Buckley (2009) 21 VR 661 at 680-681, paragraph [84]
420The defendants’ written submission in relation to this defence were as follows:[136]
“The subject reviews were made on the basis of the First Defendant and Third Defendant’s honest opinion that relates to a matter of public interest and is based on proper material that is set out in the subject reviews and was substantially true (s 31 of the Defamation Act).”
[136]Defendants’ written submissions dated 23 August 2023, paragraph [31]
421In oral argument, the defendants submitted that the defences of fair comment and honest opinion are very similar and relied upon the submissions made with regard to fair comment.
422For the reasons already given, I do not find that the opinion was based on material that was substantially true. I have already found that the opinion was not published on an occasion of qualified privilege. It was not asserted that the opinion was published on an occasion that attracted the protection of a defence under s28 or s29 of the Act.
423Therefore, I do not find that the opinions expressed were based on proper material.
Were the opinions honestly held?
424Whilst I have found that the defendants’ defences of honest opinion cannot succeed, I will consider the plaintiff’s claim that the opinions expressed by the defendants were not honestly held at the time the defamatory matter was published pursuant to s31(4)(a) of the Act.
425The plaintiff relied upon his submissions that the defendants were actuated by malice in publishing the reviews.
426The defendants submitted that the opinions they expressed in the reviews were honestly held.
427For the reasons outlined in relation to the issue of malice, I find that the opinions expressed in the reviews were not honestly held.
Fair comment
428The parties agreed that the elements of the common law defence of fair comment are:[137]
(a) That the imputations were expressions of opinion or comment;
(b) That the comment must be on a matter of public interest;
(c) The facts upon which the comment is based must be expressly stated in the publication, be clearly referred to or be notorious;
(d) The facts must be true;
(e) The opinion and facts must not be so mixed up in the publication that a recipient could not distinguish between them;
(f) The opinion must be one which an honest or fair-minded person might reasonably form on the facts;
(g) The opinion must be genuinely held.
[137]Chetwynd v Armidale Dumaresq Council [2010] NSWSC 690 at paragraph [285]; Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245
429The plaintiff conceded that elements (a) and (b) above were made out.
Were the facts upon which the comment was based, expressly stated in the reviews, or clearly referred to?
430Each of the reviews sufficiently articulated the facts upon which the opinions were based.
Were the facts true?
431For the reasons already given, I find that the stated facts in each review were not true.
432The defence of fair comment therefore fails.
Were the opinions genuinely held?
433For the reasons given above in relation to this issue as far as it relates to the defence of honest opinion, I find that the plaintiff has established, on the balance of probabilities, that the opinions expressed by the defendants were not genuinely held.
Grapevine effect
434In the Statement of Claim filed on 16 November 2020, the plaintiff pleaded reliance upon the grapevine effect at paragraph 25 as follows:
“The plaintiff relies upon the grapevine effect of the publication of the matters complained of, in support of his claim for damages.”
435The plaintiff was given leave to amend his Statement of Claim on 13 April 2022. In the amended pleading, the plea at paragraph 25 was deleted.
436The trial of the matter proceeded based on the Amended Statement of Claim dated 13 April 2022.
437Following the conclusion of the evidence in the case, the proceeding was adjourned to enable the parties to file written submissions. The parties filed those submissions on 23 August 2023.
438The parties made additional oral submissions on 29 August 2023.
439During the course of oral submissions on 29 August 2023, the plaintiff sought to further amend the Statement of Claim to reinstate the pleading of the grapevine effect in the form originally pleaded in paragraph 25. The plaintiff did not seek to rely on the grapevine effect in relation to publication, only as to damages.
440The defendants opposed that application.
441Following the hearing on 29 August 2023, each party filed short additional written submissions on that issue, which I have considered.
442The plaintiff submitted that the grapevine effect operates as a presumption; once the factual platform that enlivens the presumption is proven, the presumption is irrebuttable.[138] It was submitted that there could be no prejudice to the defendants if leave were given to amend.
[138]Plaintiff’s written submissions dated 5 September 2023
443The defendants submitted that they would be prejudiced by the proposed amendment. The case was defended on the basis that the grapevine effect was not pleaded, and the defendants have not had an opportunity to test or present evidence challenging the presumption.[139]
[139]Defendants’ written submissions dated 5 September 2023
444The plaintiff has been represented by experienced solicitors and counsel throughout this proceeding. Although I note that trial counsel was not the same counsel who drew and amended the pleadings.
445Whilst I accept Mr Sowden’s submission that paragraph 25 was deleted in error, there was no evidence before me to that effect.
446I am not willing to give leave after the conclusion of evidence, and after the filing of extensive written submissions by both parties, to amend the pleading to reinstate that plea.
447Whilst it seems highly unlikely that there could be any prejudice to the defendants by reinstatement of the plea as far as it goes to damages, I am not prepared to conclude there would be none. In the circumstances, it would be unfairly prejudicial to the defendants to allow the plaintiff to amend to plead the grapevine effect so late in the proceeding.
Damages
448Section 34 of the Act requires the Court to ensure that there is “an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded”.
449Pursuant to s35(1) of the Act, damages are capped to an indexed amount, that currently stands at $459,000.[140]
[140]Government Gazette G12, 8 June 2023
450Section 36 of the Act provides that in awarding damages for defamation, the Court is to disregard the malice or other state of mind of the defendant at the time of publication or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff.
451Damage to reputation is presumed and need not be specifically proven.
452The principal functions of an award of damages are reparation for harm done to the plaintiff’s reputation, solatium for the distress and embarrassment occasioned to the plaintiff by reason of the publication and vindication of the plaintiff’s reputation.[141]
[141]Belbin v Lower Murray Urban and Rural Water Corporation [2012] VSC 535 at paragraph [211]
453The plaintiff makes no claim for financial loss.
454The defendants pleaded that the circumstances in which the reviews were published were relied upon by way of mitigation.[142] No particulars were provided of the plea. The defendants made no closing submissions regarding mitigation.
[142]Paragraph 14(c) of the Further Amended Defence of the first defendant; paragraph 18(c) of the Further Amended Defence of the second and third defendants
455Mr Levine submitted that damages can only be awarded for damage suffered in the period 24 June 2021 to 30 June 2021.
456It was submitted that as the plaintiff read the reviews on 16 July 2021 – which was after the claimed period of publication – his distress was not compensable.
457Alternatively, it was submitted that if the plaintiff suffered loss or damage, any amount ought to be apportioned between the period prior to 30 June 2021 and after, “which is impossible to do, and thus no damages can be claimed”.[143]
[143]Defendants’ written submissions dated 23 August 2023, paragraph [44]
458I do not accept the defendants’ submissions.
459As set out above, publication is not confined to the period 24 to 30 June 2021. It is the period between on or about 24 June 2021 and 7 August 2021. However, the evidence as to the extent of publication was primarily in the period up to 30 June 2021.
460Even if publication were only considered for the period to 30 June 2021, damage flows thereafter. The defendants’ submission confuses the period of publication with the damages claim.
461When the plaintiff became aware of the publication, he was understandably distressed and embarrassed.
462The plaintiff’s reputation was and is that of a competent and professional GP who is very well regarded by his patients. The reputational witnesses he called unanimously agreed this was the case.
463The defendants submitted that because the reputational witnesses called by the plaintiff did not think any less of the plaintiff by reason of the reviews, therefore the presumption of damage to the plaintiff’s reputation had been rebutted. The proposition only needs to be stated to reveal the fallacy in that contention.
464The gravity of the imputations and the extent of publication are the most relevant factors to the harm to reputation.
465I accept the plaintiff’s evidence regarding the distress and embarrassment caused to him by the reviews. That evidence was corroborated by Mrs Saxena.
466The gravity of the sting was that the plaintiff did not listen to his patients, made their medical conditions worse and was thus an incompetent GP.
467I am satisfied that the reviews were likely read by several hundred people. Thus, the extent of publication was relatively limited.
468I do not take into account the grapevine effect when considering the extent of the publication for the reasons outlined above.
469An award of aggravated damages is appropriate where conduct is improper, unjustifiable, or lacking in bona fides. Such conduct can include the conduct of the litigation.
470Here, I have found that each of the defendants were motivated by malice. Each of the defendants pursued a defence of truth which had no prospect of success. Allegations were put to the plaintiff during cross-examination that he altered his clinical records, and many questions were asked regarding the plaintiff’s connections with proposed witnesses which were ultimately not pursued to conclusion.
471I find that the above matters are aggravating factors that warrant an award of aggravated damages.
472In my view, an appropriate award of damages in this case, including aggravated damages, is as follows:
(a) as against the first defendant, $30,000;
(b) as against the second and third defendants, $40,000.
Conclusion
473The first defendant pay the plaintiff damages in the sum of $30,000 (thirty thousand dollars).
474The second and third defendants pay the plaintiff damages in the sum of $40,000 (forty thousand dollars).
475I will hear the parties on the appropriate orders and costs.
- - -
23
0