Setia v Radio Haanji
[2025] VCC 44
•4 February 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
DEFAMATION LIST
Case No. CI-23-06402
| GAURAV SETIA | Plaintiff |
| v | |
| HAANJI PTY LTD t/a RADIO HAANJI | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 September 2024 | |
DATE OF JUDGMENT: | 4 February 2025 | |
CASE MAY BE CITED AS: | Setia v Radio Haanji | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 44 | |
REASONS FOR JUDGMENT
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Subject:DEFAMATION
Catchwords: Defamation – incorrect news report of criminal conviction where plaintiff faced charges – charges subsequently dropped – widespread media reports of charges – publication within a specific community – extent of publication – serious harm – disentanglement of harm caused by impugned publication and harm caused by other media articles –financial loss claimed – lack of evidence to support claimed business loss – aggravated damages – refusal to correct or retract article
Legislation Cited: Defamation Act2005 (Vic); Wage Theft Act 2020 (Vic)
Cases Cited:Barron v Vines [2016] EWHC 1226 (QB); Cables v Winchester [2018] VSC 392; Colagrande v Kim [2022] FCA 409; Deeming V Pesutto (No 3) [2024] FCA 1430; Dods v McDonald (No 2) [2016] VSC 201; Economou v de Freitas [2016] EWHC 1853 (QB); [2017] EMLR 4; Foss v Harbottle (1843) 2 Hare 461; Goody v Odhams Press Ltd [1967] 1 QB 333; Greenwich v Latham [2024] FCA 1050; Howe v Zuchowski [2024] VSCA 56; Mannoun v Ristevski [2024] NSWDC 564; Peros v Nationwide News Pty Ltd & Ors (No 3) QSC 192; Prouten v Buxton (No 2) [2024] NSWDC 445; Riley v Sivier [2022] EWHC 2891 (KB); [2023] EMLR 6; Raider v Haines [2022] NSWCA 198; Sivananthan v Vasikaran [2023] EMLR 7; Scott v Bodley (No 2) [2022] NSWDC 651; Selkirk v Wyatt [2024] FCAFC 48; FCR 541; Wilson v Bauer Media & Anor [2017] VSC 521
Judgment: Judgment for the plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Elias | BTT Lawyers |
| For the Defendant | Ms L Collaris | Meehan Legal |
HER HONOUR:
1The plaintiff, Mr Gaurav Setia, sues the defendant, Haanji Pty Ltd (“Radio Haanji”) in defamation.
2Radio Haanji is a broadcasting and media production company which describes itself as “Australia’s top Punjabi Channel & Hindi Radio Station, broadcasting 24/7 in Sydney and Melbourne”.[1]
[1] Court Book (“CB”) 116
3On 29 November 2022 Radio Haanji posted on its public Facebook page that Mr Setia had been found guilty of wage theft in the Magistrates Court and the Wage Inspectorate had announced a jail term of 10 years and a 10 Lakh ($1,000,000) dollar fine (“the publication”). The post was written in Punjabi.
4In fact, Mr Setia had been charged under the Wage Theft Act 2020 (Vic) with dishonestly withholding about $7000 in employee entitlements from four employees of his restaurant business, the Macedon Lounge, between July and November 2021. The maximum penalty for the charge of wage theft was a 10-year jail sentence and a $1,000,000 fine. All charges against Mr Setia were withdrawn without determination and the legislation under which he was charged was subsequently repealed. Mr Setia was never convicted of any crime, served no jail time and was not fined. He was never the subject of any finding by a court or disciplinary body and no penalty was imposed on him or his company.
5Mr Setia says the publication imputed that he had been convicted of the crime of wage theft, sentenced to jail for 10 years because of that crime and fined $1,000,000. Radio Haanji admitted publication, the imputations conveyed and that those imputations defamed Mr Setia.
6Radio Haanji relied on no positive defences.
7The only issues for determination are:
(a) Whether the publication caused or is likely to cause Mr Setia serious harm within the meaning of s10A of the Defamation Act2005 (Vic); and if so
(b) The quantum of damages that should be awarded to Mr Setia, including any award for aggravated damages.
Background
8Mr Setia was born in Punjab, India in 1987 and came to Australia in 2008. He moved to Sunbury in 2015 and lives there with his wife and two young daughters.
9For the past fifteen years he has worked in hospitality and has managed and owned several cafes in the Macedon area. He says he is fairly well known in the community through his work in hospitality, his sponsorship of various local clubs and organisations and his involvement at the Indian Temple.
10In about May 2020 Mr Setia’s company, Rehmat and Mehar Pty Ltd, purchased the Macedon Lounge. Mr Setia was the sole shareholder and director of this business.
11Mr Setia said the business was successful, turning over around $30,000 each week. He said he took a salary of $2,000 to $2,500 per week from the business.[2]
[2] Transcript (“T”) 152 Line (“L”) 21-23.
12Prior to the publication Mr Setia says he intended to sell the Macedon Lounge, and to purchase a business closer to Melbourne.[3]
[3] T115 L2.
13He signed an exclusive sale authority with a broker named Valentines on 13 September 2022 to sell the business on his behalf. Mr Setia valued the business at $350,000.[4]
[4] T116 L25-26.
14On 24 November Mr Setia and his company were charged under the Wage Theft Act 2020. Unfortunately for Mr Setia he had the dubious distinction of being the first person charged under the new wage theft legislation.
15Presumably because of the novelty of the charges, numerous articles about the charges were published on multiple platforms. These news articles accurately reported the charges against Mr Setia and his company.
The publication
16Below is the NAATI-certified English translation of the publication.
Imprisonment and fine for giving
The Wage Inspectorate Victoria has announced a jail term of 10 years and 10 Lakh dollar fine to an Indian businessman Gaurav Setia based in regional Victoria. Gaurav Setia was found guilty by Magistrates Court in relation to paying less wages (wage theft) to his employees. Gaurav underpaid 4 of his employees by $7000 dollars working in his restaurant Macedon Lounge over a period of last 5 months. It is worth mentioning that Victorian state government in June 2021 made wage theft a crime, under this law businesses underpaying their employees or committing wage theft will be punished by 10 years in jail and $1 million fine if underpayments were determined to be intentional. Thus, Gaurav Setia has become the first alleged accused in Victoria to be charged under the new amended law. #wagetheft #fairwork #workingconditions #employment #radioHaanji
See translation
17Mr Setia says that although the post was written in Punjabi, the “see translation” function at the bottom of the post meant it could be translated into English. He says it was inherently likely that persons who saw the publication and recognised the picture of him that accompanied the post, or recognised the name “Macedon Lounge” would use the translate function, even if they could not read Punjabi. Megha Dal gave evidence that she viewed the publication using the translate function because, although she speaks Hindi and Punjabi, she cannot read Punjabi.[5]
[5] T183 L11-13.
Serious Harm
Mr Setia’s submissions
18Mr Setia says he suffered serious harm to his reputation as a result of the publication because people within his local community, and the broader Indian community in Australia and overseas, believed he had been convicted of criminal offences, fined and sentenced to jail.
19Mr Setia says I can be satisfied that the publication was widely seen. It was published on a Facebook page that had more than 360,000 followers. Even if only a fraction of those followers saw the publication, it would still amount to many hundreds or thousands of people. The publication was shared on a number of platforms, and though there may be a crossover of members across the various platforms, the fact that it was widely shared increases the likelihood that it was seen by a substantial number of people.
20Mr Setia says I should conclude that there was a significant grapevine effect.
21Mr Setia says because the publication was on social media it is likely that it spread beyond those people who saw the various pages for themselves. It was discussed in at least one WhatsApp group and in various social circles.
22The publication received many comments in both Punjabi and English and the tenor of those comments indicate that the readers accepted the publication as true, and the conduct as worthy of opprobrium.
23The publisher was a media organisation which was relied on by many in the community for news, particularly about matters relevant to Indian Australians. This made it more likely that the imputations would be believed.
24Mr Setia says the serious harm to his reputation manifested in two main ways. He was shunned within his community, and the value of his business decreased, resulting in a sale for below market value.
25Mr Setia says there is direct evidence of the serious harm to his reputation including:
(a) He was removed as a member from a WhatsApp group containing 26 members. A screenshot of the publication was shared within the group and Mr Setia was then immediately removed;
(b) People stopped engaging with him when he dropped his children off at kindergarten;
(c) He noticed people whispering when he attended the Temple, and people who usually greeted him and sat with him avoided him. As a result he stopped attending Temple as frequently;[6]
(d) Invitations to events he would usually have attended ceased, including from some family members;[7]
(e) Indian staff at Mr Setia’s wife, Aarti Dhir’s workplace spoke about the publication and changed their demeanour and attitude to her as a result;[8]
(f) Members of the “Kiddy Party Group”, a group of ten to twelve Indian mothers in the Sunbury area, told Aarti Dhir that they had been shocked by Mr Setia’s criminal conviction. Ms Dhir stopped attending the parties for at least two months;[9]
(g) A friend, Megha Dal, told Ms Dhir that “girls from the kiddy party are also asking is Aarti’s husband in jail, is he criminally convicted. And she explained that she was shocked”;[10]
(h) Ms Dhir was told by a teacher at the kindergarten that other Indian parents at the kindergarten were talking about Mr Setia’s criminal conviction;[11]
(i) Some parents at the kindergarten began ignoring Ms Dhir.[12]
[6] T110 L17.
[7] T112 L1-3.
[8] T177 L5-6, L9-16.
[9] T194 L31 – T195 L1.
[10] T195 L5-8.
[11] T196 L16-21.
[12] T197 L14-16.
26Mr Setia says as a result of the serious harm to his reputation he was unable to sell the Macedon Lounge for the price it would otherwise have attracted. He said prior to the publication he had received inquiries from potential purchasers interested in buying the Macedon Lounge for a price of $250,000, $280,000 and $290,000.[13] In October and November he was negotiating with Vedant Tyagi to sell the business for around $350,000.[14]
[13] T115 L25-26.
[14] T116 L25-26.
27On 30 January 2023, Mr Setia sold the Macedon Lounge to Mr Tyagi for $140,000. Mr Setia said as a result of the Radio Hanji post and other media articles there had been an increase in cancelled reservations and a reduction in tourists coming to the restaurant.[15] Because of this reduction, Mr Tyagi was not prepared to pay more for the restaurant.
[15] T117 L26-28.
28Mr Setia said that at the time he sold the restaurant, his mental health was poor and he was unable to attend or run the restaurant. He felt he had little choice but to sell for whatever price he was able to obtain.
29He has suffered financially as a result of the publication, both because he sold the Macedon Lounge for lower than market value, and because he has had a significant reduction in take-home pay.
30He said he took home between $2,000 - $2,500 per week when he was running the Macedon Lounge. He is now working as a disability care worker and earns between $1,000 - $1,200 per week.
Radio Haanji’s submissions
31Radio Haanji says it is for Mr Setia to isolate the harm caused by the publication from harm caused by other media reports in mainstream media about the charges against him. He has failed to do so. Instead he has identified the publication as the cause of all his harm and loss.
32On 29 November 2022 the news of the charges against Macedon Lounge and Mr Setia were widely published by mainstream media organisations, including the ABC, The Age, The Australian, and the Herald Sun. These publications reported that Mr Setia and his company had been charged with 94 criminal offences of dishonestly underpaying young workers and that the company faced a $1 million fine and Mr Setia faced 10 years in jail.
33The Radio Haanji post was liked by only 920 people, with 272 comments and 165 shares. It was written in Punjabi. This necessarily limits the extent to which the publication was likely to have harmed Mr Setia’s reputation within the broader Australian community.
34Further, Radio Haanji is primarily a radio station, broadcasting “the best in music, news, podcasts and entertainment”. I can infer that listeners to Radio Haanji and readers of the Radio Haanji website would be seeking entertainment as well as news, and would not consider Radio Haanji to be a news organisation.
35It is unlikely that Mr Setia sustained any harm to his reputation from the publication outside the Indian community. The fact that the Macedon Lounge was not an Indian Restaurant and did not have a mainly Indian clientele, suggests that any drop off in business after the charges were laid was a result of other media attention, particularly on English language platforms, rather than the publication.
36If I accept that tourist visits to the restaurant declined, the court should infer that the decline was more likely a consequence of other media attention, not the publication.
37Comments on the publication on the Radio Haanji website reflect general concern about wage theft across various industries including hospitality, construction and transport, and reflect general support for legislative efforts to address the issue of wage theft. They are similar to the sorts of comments made on the articles and posts on other media platforms which correctly reported on the charges.
38A post shared on the Gisborne Community Group Facebook Page on 29 November 2022 which shared the ABC News article about the charges attracted a comment about the legislation, the standard of proof required and noted “theft is also intentional dishonesty. Someone doesn’t get charged for making a mistake”.[16]
[16] Exhibit D17.
39Radio Haanji says this shows that members of the community had formed views that were damaging to Mr Setia’s reputation, based on the content of true reports about the charges.
40Mr Setia’s evidence that he received “many calls” about the Radio Haanji post ought not be accepted, because he did not answer most of those calls. There is no evidence upon which I can be satisfied that the callers had read the publication.
41I ought not accept evidence that Indians living in Australia do not read or are not aware of publications in the Australian mainstream media. Such evidence flies in the face of common sense and general experience.
42To the extent that any negative view was taken by members of the Indian community in Australia, including members of Mr Setia’s WhatsApp groups and local community groups, such negative views were likely to be short-lived.
43Mr Setia received comments that were supportive, for example one from “Adam” who said “Dust yourself off, push through mate” and recommended a lawyer and one from Harman who said “Be strong. God will help you. You will get bail soon. You didn’t murder anyone”.
44Radio Haanji says the recommendation of a lawyer suggests that Adam was aware that Mr Setia had been charged, rather than convicted. When the charges were withdrawn, Adam encouraged Mr Setia to sue “the lot of them, Even that Indian newspaper”. I can infer that Adam and others were aware that the charges had been dropped, and any suggestion that Mr Setia had been convicted and sentenced to jail must necessarily have been corrected. To the extent that any harm had been done to his reputation by the publication, that harm had been ameliorated by the subsequent dropping of those charges.
45Radio Haanji also says that Mr Setia did not take any step to have the publication removed until 1 or 2 June 2023, despite being aware of the post on 29 November 2022. Mr Setia’s lawyer contacted Radio Haanji in June 2023 but did not receive a response. Despite this, Mr Setia did not send a concerns notice until 28 August 2023 and did not issue proceedings until 23 November 2023. Radio Haanji says I can infer that having the publication removed was not an urgent concern of Mr Setia’s because it was not causing significant damage to his reputation.
46Radio Haanji says a psychologist’s report relied on by Mr Setia to support his damages claim supports an inference that the stress and anxiety Mr Setia experienced was a consequence of the charges laid against him, the reporting about those charges, and the publication. The court can infer that all these factors were, in combination, responsible for Mr Setia’s mental health and incapacity to run the business.
47The sale of the business was prompted largely by Mr Setia’s incapacity to run the business due to stress and anxiety. Any loss arising from the sale of the business cannot be attributed to serious harm to reputation caused by the publication.
48In any event, there is insufficient evidence to conclude that there was any loss arising from the sale of the business.
Findings
49Since the amendment to the Defamation Act2005 which introduced the threshold requirement for a plaintiff to establish serious harm, courts have been developing a body of case law. The principles often expounded as those by which a claim for serious harm is to be tested come from the case of Raider v Haines [2022] NSWCA 198:
(a) Serious harm sits on the spectrum above “substantial”, but below “grave”. Importantly, there can be harm which, though substantial, does not reach the level of serious harm.
(b) The tendency of the words themselves to cause harm is a factor to be considered.
(c) Even where words amount to a grave allegation against a plaintiff, more than a “mere tendency” of the words is required to establish the element. Special emphasis is placed on the circumstances and extent of publication.
(d) Serious harm should not be conflated with hurt to feelings, however distraught the plaintiff may be as a result of the publications.
(e) There may be serious harm without permanent harm.
(f) The extent of publication, including the grapevine effect, is a factor to be considered in assessing serious harm, as is the likelihood that the publication will come to the notice of other people.
50Raider v Haines required application of the United Kingdom legislation.
51The only appellate decision to date dealing with the serious harm element of the Australian legislation is Selkirk v Wyatt.[17] There are also a handful of higher court authorities that have dealt with the issue of serious harm.
[17] [2024] FCAFC 48; FCR 541.
52In Selkirk v Wyatt the appellant had admitted that she had engaged in acts of deception but said this was very different to dishonesty. However she said her admission to having engaged in acts of deception did not establish a prior bad reputation, such that the publication could not have caused serious harm. Further she submitted that the requirement to establish serious harm did not displace the presumption of good character. In that case the court accepted that prior bad reputation was part of the serious harm test and, to the extent that good character was presumed at common law, such a presumption did not survive the enactment of s10A.[18]
[18] Ibid at paragraph [94].
53In order to show the extent of harm necessary to establish “serious harm”, a plaintiff would ordinarily be expected to adduce evidence of their previous good reputation. The general bad character of a plaintiff is relevant to whether there is serious harm.[19] The publisher bears the onus of establishing general bad character.[20]
[19] Ibid at paragraph [96].
[20] Ibid at paragraph [97].
54However in Peros v Nationwide News Pty Ltd (No 3) (“Peros”) [21] Applegarth J held that a plaintiff is not required to prove he or she had a good reputation prior to jumping the s10A hurdle, and to hold otherwise would mean that the remedies and vindication offered by the tort of defamation were not available to those with a tarnished reputation. He noted that whether or not the presumption of damage has been “abrogated or merely burdened” by the introduction of the serious harm is “probably of doctrinal importance only” as in any event, the presumption of damage at common law is only that there has been harm to reputation, not serious harm.
[21] [2024] QSC 192 at 68.
55A person with a tarnished reputation may still suffer serious harm to that reputation, but the harm caused by the impugned publication may need to be greater in order to meet the s10A threshold, than for a person of unblemished reputation.
56As noted by Judge Gibson in her recent decision of Mannoun v Ristevski (“Mannoun”)[22] the claims most likely to give rise to a contest about the serious harm element of the tort are those dealt with in inferior courts. Those decisions are not binding on, and are consequently often disregarded, by superior courts.
[22] [2024] NSWDC 564.
57In Mannoun, the claimant sued over a Facebook comment that was said to convey imputations that he was a criminal in that he fraudulently altered the financial records of a business to cause it to be purchased by a charity at an overvalue. The claimant was the Mayor of the Liverpool City Council and the post was published by a former Councillor on a Facebook page called “Liverpool Council Shenanigans”. Her Honour found the page was for followers with a negative opinion about the Liverpool Council. The page had about 250 followers and the post remained on the page from November 2022 until shortly before trial in 2024. The post attracted 14 comments and one “share” as at 14 August 2024. The publication was a reply to another post which meant it did not have the same visibility as a primary post but instead appeared in the comments section.
58Her Honour found the imputations were published to a handful of followers and readers of the Facebook page. Those few who could be identified clearly already had a low opinion of the plaintiff. The case for serious harm was built almost entirely on the inference that one or more persons who knew the plaintiff from a sector where he had a good reputation, read or heard about the publication and that caused serious harm to his reputation. It was not reasonable to draw an inference that the post was “likely read by hundreds of people” including people who were not followers of the Facebook page. The seriousness of the imputations themselves was not enough to establish serious harm. The evidence of the two witnesses called did not establish that their opinion of the plaintiff had changed in any way. Evidence of other people having knowledge of the publication was “scant in the extreme”. The plaintiff failed to establish that the publication had caused serious harm to his reputation.
59In Deeming v Pesutto(No 3)[23] Deeming had attended and spoken at a rally which a group of people identified as Nazis or Neo-Nazis also attended. O’Callaghan J found imputations, including that Deeming supports white supremacists and Neo-Nazis, holds abhorrent white supremacist and Neo-Nazi views, is a Neo-Nazi and is unfit to sit in Victorian parliament or be a member of the Liberal party as a result, were conveyed by a number of publications by Pesutto. The imputations caused serious harm to Deeming’s reputation. His Honour found that serious harm may be shown by general inferences of fact, drawn from a combination of evidence about the meaning of the words, the situation of the claimant, the circumstances of the publication and the inherent probabilities. Third party communications and comments posted online by those who heard the relevant publication can be evidence of reputational harm, to the extent they can be said to be a natural and probable consequence of the publication.[24]
[23] [2024] FCA 1430.
[24]Ibid at paragraph [531].
60O’Callaghan J found the imputations were very serious and were inherently likely, using mass media, to communicate a message to the general public in Victoria and to cause serious harm to Deeming’s reputation. Prior to the publications there had already been some tweets on Twitter accusing Deeming of being a “disgrace” and there had also been mainstream media coverage of the rally. However, that coverage did not allege Deeming was associated with or supported the Nazis or that her conduct warranted expulsion. His Honour found that much of the hate-filled social media and other communications directed at Deeming followed, and resulted from, the publications.[25]
[25] [2024] FCA 1430 at paragraph [550].
61His Honour rejected the submission that Deeming already had a reputation as someone who represents hateful views or whose views on social and political issues were notorious, controversial and regarded as hateful by some. He found that expressing views which were controversial or polarising is not the same has having a “bad reputation”.[26]
[26] Ibid at paragraph [568].
62In Greenwich v Latham[27] O’Callaghan J considered whether imputations that conveyed meanings that Greenwich engages in disgusting sexual activities and is not a fit and proper person to be a member of NSW parliament as a result caused serious harm.
[27] [2024] FCA 1050.
63In that case it was submitted that the inherent tendency of the allegations was not serious in direct contrast to allegations such as fraud, illegality, cruelty, betrayal or other allegations which might, in their inherent nature, be regarded as “serious”.
64His Honour said that, while that submission might be accurate, it simply recognised that there are different degrees of seriousness. His Honour considered that, although a person might not be inclined to like Greenwich because they had staunch views against homosexuality or his politics, a “fresh” allegation that he engaged in disgusting sexual activities would have made readers of the primary tweet think worse of him.[28] The evidence of the “hate filled venom” that was “un-leashed” upon Greenwich in response to the publication, together with the extent of publication including the “percolation” of the imputations, and the inherent tendency of the words, made it “very easy to infer from the circumstances” that the serious harm threshold was crossed.[29]
[28] Ibid at paragraph [189].
[29] Ibid at paragraph [196].
65In Peros the court considered the question of serious harm in the context of a podcast. In that case Peros had been charged with the murder of Shandee Blackburn and found not guilty by a jury. A subsequent coronial investigation included evidence that was not before the jury. The Coroner found that “Miss Blackburn died due to injuries sustained in an incident involving violence with Mr John Peros who used a bladed instrument”. The Coroner’s finding was widely reported. The defendants published an investigative podcast into the death of Ms Blackburn examining the evidence presented at criminal trial and before the coronial inquest.
66Peros sued in relation to episode 13 of the podcast which included an interview with Ms Blackburn’s sister. He said the episode conveyed imputations that he murdered Ms Blackburn.
67The defendants contended that Peros’ reputation had been effectively destroyed by the widespread reporting of the Coroner’s finding, and that listeners to episode 13 would have already formed an adverse view of Peros from having listened to the first 12 episodes of the podcast series. In those circumstances, the defendants argued that the imputation did not cause and was not likely to cause serious harm to the reputation of the plaintiff.
68His Honour considered the following circumstances that may be relevant to the serious harm element:
(a) The gravity of the defamation;
(b) The extent of publication;
(c) By whom the matter was published;
(d) The identity of the recipients; and
(e) The state of the claimant’s reputation prior to the publication
69He noted that serious harm is not presumed and requires proof of actual harm to reputation by direct evidence of harm to reputation, or by inference, or both.
70Direct evidence might include evidence from recipients of the publication or persons who have heard others speak about the publication and its effect on their estimation. This might include readers’ comments on social media posts, abuse, criticism and being avoided because of the publication. The response of others must be caused by the publication and not by other publications.
71Inferences might be drawn where the defamatory allegation carries a seriously grave imputation, and there is extensive publication through mainstream media. A claimant may be able to rely on the grapevine effect.
72His Honour looked at the extent of publication by assessing the number of downloads of the 13th podcast episode. There was evidence on other social media, including the website Reddit, that people had listened to the podcast and expressed the view that Peros was a murderer. His Honour found that the listeners had most likely listened to at least some earlier episodes and it was unlikely that they had jumped onto the podcast at episode 13. There was significant publication of the Coroner’s findings in multiple mainstream media articles including the Courier Mail, The Australian and ABC News. There was likely significant overlap between consumers of the news stories and listeners to the podcast but his Honour could not find that most podcast listeners were readers of newspapers or otherwise were aware of the Coroner’s findings. It was reasonable to conclude that a substantial number of listeners had little prior knowledge about the case or Peros.
73His Honour considered the standing and authority of the first and second defendant, a mainstream news organisation and a Walkley award-winning journalist respectively, meant the publication had greater potential to seriously harm Peros’ reputation compared to a less credible or authoritative source.
74The form of the publication in a podcast means a listener may give it less attention than an article that is read in a newspaper, but it is not an ephemeral medium and can be listened to more than once.
75The recipients were likely people who had listened to earlier episodes of the podcast, and most listeners to episode 13 would be acquainted with Peros from earlier episodes and would have had an adverse view of him because of those episodes and the Coroner’s finding.
76Listeners to the first 12 episodes would likely conclude that the Coroner’s findings were right and Peros had violently attacked Ms Blackburn with a bladed instrument. By the end of episode 12 listeners would have regarded another person as a suspect but would have reached the view that, despite his acquittal, Peros was Ms Blackburn’s killer.
77In general, episode 13 repeated topics that had been explored in earlier episodes. The question of how Peros was acquitted but found by a Coroner to have killed Ms Blackburn was answered long before episode 13. His Honour was not satisfied that any additional harm caused to Peros’ reputation by episode 13 amounted to “serious harm”. He noted that this conclusion was “confronting” but that the causation issue depended on all the circumstances. If a claimant was a notorious murderer at the time an allegation of murder was made, there was no inference of serious harm. Repetition of an allegation that has earlier been made may not cause serious harm if it simply repeats what has already been said.
78To prove serious harm by inference, or almost exclusively by inference, the inference must be more compelling than competing inferences that are reasonably open on the evidence.[30]
[30] Peros v Nationwide News Pty Ltd & Ors (No 3) [2024] QSC 192 at paragraph [416].
79His Honour found that Peros had not established episode 13 had caused or was likely to cause serious harm to his reputation.
80In Scott v Bodley (No 2)[31] the plaintiff failed to establish serious harm caused by a google review alleging that he was an incompetent, dishonest and unprofessional painter. Scott alleged that as a result of the review he had seen a significant drop in the number of enquiries he received for painting work and had consequently suffered a loss of profit, loss of opportunity and loss of jobs. Her Honour found that the evidence relied on in support of the allegations of loss was inadequate and inconsistent. The limited information provided could not form the basis of an inference that the plaintiff suffered any loss of business, let alone serious harm as a result of negative reviews that were online for only 14 days. An inference that a matter has been downloaded is not open on the mere fact that the material has been posted on the internet. Mere assertions will not suffice. Further, the assertion that a particular tradesman was not competent was not a “serious” imputation but an expression of an opinion. Readers of Google reviews would know that they must be read with a degree of caution and that these reviews are largely an expression of personal opinion. Serious harm was not made out.
[31] [2022] NSWDC 651.
81An analysis of the cases that have dealt with serious harm, whether in superior or inferior courts, demonstrate that the question of serious harm will invariably turn on the facts and circumstances of the individual case. The tendency of the words may be inherently very serious but not have caused serious harm in the particular circumstances of a case.
82I turn now to the circumstances of Mr Setia’s claim.
Tendency of the words themselves
83The words themselves impute that Mr Setia was found guilty of an offence that warranted a 10-year jail term, and necessarily impute that he had engaged in conduct that led to such a sentence. An allegation of criminal conduct has long been considered to be the sort of allegation that would go to the very heart of a person’s reputation.[32] An allegation of conviction could reasonably be considered to be more damaging than an allegation of conduct.
[32] Goody v Odhams Press Ltd [1967] 1 QB 333.
84The publication says that Mr Setia was “found guilty”, although it later says he is the first “alleged accused” to be “charged”. No submission was made, and nor do I find, that the subsequent identification of the charges being mere allegations provides an antidote to the imputation that he was found guilty.
85I accept the words have an inherent tendency to harm Mr Setia’s reputation. As much was accepted by the defendant, which conceded that the imputations conveyed were defamatory.
86There must necessarily be a difference in the degree of harm likely to be caused to reputation between an incorrect report that someone:
(a) is suspected of committing criminal offences;
(b) has committed criminal offences;
(c) has been charged with criminal offences; and
(d) has been convicted of criminal offences.
87Whether the harm caused by an allegation that a person was convicted of a crime, as opposed to charged with a crime, amounts to serious harm will depend on other factors. However the fact that Mr Setia had been charged and those charges had been reported, does not preclude him from establishing that he has sustained serious harm from the publication.
88I am satisfied that the words themselves have a tendency to cause serious harm to reputation.
Extent of publication
89At the time of publication, the Radio Haanji Facebook page had approximately 363,000 followers. The publication had 920 likes, 272 comments and was shared 165 times.[33] The post remained on the Facebook page until January 2024.
[33] CB 17.
90The publication was shared to various other Facebook groups:
(a) “Punjabis in Aus” which has 9,600 members;
(b) “Mini Punjab” which has 896 members;
(c) “Indians in Canberra” which has 32,400 members;
(d) “Punjabis in Perth” which has 25,800 members;
(e) “Aussie Indians” which has 8,800 members;
(f) “Australian Sikh Community” which has 5,700 members;
(g) “Je Jana Pardes” which has 2,500 members;
(h) “Global Studies” which has 16,900 members.
91The publication received many comments in both English and Punjabi which include:[34]
(a) “Shameful – Embarrassment”;
(b) “He deserve for this; RIP for next 10 years”;
(c) “Butter chicken in prison; who gets the fine money?”;
(d) “Rest for 10 years; Deserved; must be deported; Good verdict”;
(e) “how much did he save by underpaying”;
(f) “these bloodsuckers are everywhere – shame on them”;
(g) “proud feeling for Gaurav that he is champion culprit”;
(h) “I have not worked with my people in 14 years; the reason is Punjabi Indian people like Setia”.
[34] CB 65 – 95, 561.
92It is not possible to know precisely how many people read the publication either on Radio Haanji or on another site to which it was shared. It is not possible to know what proportion of those people who saw the publications on Radio Haanji were also followers of one or more of the other sites, nor to know how many of those who read the publication believed it and thought less of Mr Setia as a result.
93However I accept that the post was seen and read by a substantial number, likely to be thousands, of people. This is because:
(a) There were 272 comments on the Radio Haanji publication;
(b) There were 920 likes and the post was shared 165 times;
(c) most people who read a post will not like, share or comment on the post, therefore the number of people who read the post is likely to be significantly higher than those who liked, shared or commented;
(d) I accept Mr Setia’s evidence that people within his local community had read the publication; and
(e) I accept the evidence of Rakinder Kaur and Megha Dal that they had read the publication on the Radio Haanji website and that each of them had been directed to the publication by other people within the community who had read the publication.
94Although the publication was written in Punjabi I accept that people who could not read Punjabi could use the “see translation” button to translate it into English. It is likely that people who bothered to translate the publication in order to read it would be those with a higher degree of interest in the publication than the general reader. This might be because they knew or recognised Mr Setia or the Macedon Lounge, or they were based in Victoria or in the Macedon area, or because they had an interest in the wage theft laws.
95This is not a case where there is little or no evidence that anyone read the publication, or where there is evidence of only a handful of people having read the publication.
96There was no evidence that people outside the Indian community, whether in Australia or elsewhere, would have accessed the publication and it is inherently unlikely that people who are not from an Indian background would have used the “see translation” function on the publication.
97Accordingly I accept the submission that the publication was unlikely to have been read within the broader Australian community, and therefore any damage it caused to Mr Setia’s reputation is likely to be confined to the Indian community, largely within Australia.
98I accept there was likely a grapevine effect broadly within the Indian community in Australia, and particularly within the Indian community in and around Sunbury and Macedon, where Mr Setia lived and worked, and in the temples where he worshipped.
Proof of the cause of the harm
99It is a fundamental principle of tort law that a defendant can be liable only for the harm for which it is responsible. Where a plaintiff’s reputation has been damaged other than because of the impugned publication, the plaintiff must prove that the harm caused by the impugned publication amounts to serious harm.
100There was significant reporting about the charges laid against Mr Setia and his business:
(a) On 29 November 2022 “The Australian” published an article titled “Victorian restaurant charged with wage theft, faces criminal prosecution”. That article identified Rehmat and Mehar Pty Ltd operating as the Macedon Lounge, and set out that the business was the first to be charged under criminal wage theft laws. The article quoted the Victoria Wage Inspectorate as saying that it would be alleged that the business “dishonestly” withheld wages and entitlements from staff. That article also said that those convicted faced 10 years imprisonment and $1 million in fines. Mr Setia was not named in the article.
(b) Also on 29 November 2022, the Victorian Government Website published an article titled “Restaurant and officer to face criminal charges under Victorian wage theft laws in an Australian first”. The article said “The charges against Rehmat & Mehar Pty Ltd (trading as The Macedon Lounge) and its officer are the first criminal wage theft charges laid under the Victorian Wage Theft Act 2020, and the first in any Australian jurisdiction.” Mr Setia was not named in the article.
(c) On 29 November 2022 The Age newspaper published an article titled “Victorian restaurant first to be criminally charged over wage theft. This article said that 94 charges had been laid against Macedon Lounge and owner Gaurav Setia for allegedly failing to pay more than $7,000 in wages over 5 months. This story was accompanied by a photograph of the Macedon Lounge and an inset photograph of Mr Setia.
(d) ABC News published a story on 29 November 2022 titled “Macedon Lounge becomes first restaurant in Victoria to be charged under new wage theft laws”. This story ran a picture of the Macedon Lounge and Mr Setia. Mr Setia was identified in the caption under the photograph as “Restaurant owner Gary Setia”.
(e) On 29 November 2022 The Australian Associated Press published a story titled “Restaurant faces $1M fine for allegedly short-changing young staff in Australia-first wage theft case”. That article identified the Macedon Lounge and its “officer” but did not identify Mr Setia by name.
(f) The Canberra Times published an article on 29 November 2022 titled “Restaurant in Aust-First wage theft case” which reported that the Macedon Lounge faced the Broadmeadows Magistrates’ court and that charges had been laid against the Macedon Lounge and its “officer” but did not otherwise identify Mr Setia.
(g) The website of radio station Gold FM published an article titled “Local Business facing $1 Million in fines” which named the Macedon Lounge and Gaurav Setia, and noted he faced 10 years in jail and more than $1 million in fines if found guilty.
(h) The Herald Sun published an article on 29 November 2022 titled “Victorian restaurant charged with wage theft, faces criminal prosecution” in which the Macedon Lounge was identified, as was Rehmat and Mehar Pty Ltd, and there were two photographs of the Macedon Lounge. Mr Setia was not named, nor was his photograph published.
(i) The website Hospitality Directory published an article titled “Restaurant owner first to be charged under new wage theft laws”. Mr Setia was named several times in the article and was identified as the owner of the Macedon Lounge in Macedon.
(j) The website NRI Affairs, which describes itself as “a platform for overseas Indians and South Asians to stay connected with their culture and to provide a window into their lives” ran an article titled “Gaurav Setia, first to face criminal charges for wage theft in Victoria” on 29 November 2022. This article identified Mr Setia as the owner of the Macedon Lounge and was accompanied by a photograph of the Macedon Lounge.
(k) The website Pedestrian TV published an article titled “Vic Man could face 10 yrs prison for alleged wage theft, while George Calombaris gets a TV show”. The article identified Mr Setia and the Macedon Lounge by name and noted that Mr Setia faces 10 years in jail if found guilty.
(l) Sky News published an article on 29 November 2022 titled “Victorian Restaurant charged with wage theft, faces criminal prosecution”. The article identified Rehmat and Mehar Pty Ltd and the Macedon Lounge and featured two photographs of the Macedon Lounge. Mr Setia was not mentioned.
(m) On 30 November 2022 the website Public Accountant published an article titled “Victorian restaurant charged for wage theft in landmark case”. That article identified Rehmat and Mehar Pty Ltd and its “officer” but did not name the Macedon Louge or Mr Setia.
(collectively “the other articles”)
101Assessing the harm done to Mr Setia’s reputation by the publication requires me to grapple with the harm, if any, done to his reputation by the other articles which correctly reported that charges were laid, and to determine whether any additional harm amounts to “serious” harm.
102As Jagot J observed in Colagrande v Kim[35] “the fundamental principle of our law is that a person is innocent unless and until proven guilty, a necessary corollary of which is that a person whose conviction has been set aside and a nolle prosequi entered thereafter is to be treated as innocent. Accordingly, it would be wrong for another aspect of our law, that of defamation, to treat the person’s reputation as sullied and therefore less amenable to damage and unworthy of vindication to the same extent as might otherwise have been the case.”[36]
[35] [2022] FCA 409.
[36] Ibid at paragraph [47].
103Jagot J further observed that it is equally open to infer that as many people will adhere strongly to the notion that a person is innocent unless and until proven guilty as will adhere to the notion that there “is no smoke without fire”.[37]
[37] Ibid.
104Accordingly, while I accept the general proposition that being charged with criminal offences is likely to cause some harm to a person’s reputation, I do not conclude that being charged with these offences necessarily caused “serious” harm to Mr Setia’s reputation. A portion of the public may have concluded that Mr Setia was guilty of the crimes he was charged with. A portion may have kept an open mind. The focus of the other articles tended to be less on Mr Setia, and more on the fact that the legislation was new, and what maximum penalties could be imposed.
105In any event, regardless of the other articles, Mr Setia had been charged with offences and his reputation must therefore be assessed as that of a person charged with those offences.
106A reasonable reader of the other articles, or a person who otherwise was aware that Mr Setia had been charged with offences, would be unlikely to conclude that the charges Mr Setia faced would attract the maximum penalty, given the relatively modest amount of the allegedly unpaid wages and entitlements. Members of the public understand that criminal conduct attracts a range of fines and sentences and would understand that the most severe fines and sentences are reserved for the most serious crimes.
107Similarly, the nature of the charges Mr Setia faced is also relevant to the degree of harm suffered.
108While I accept the submission that an allegation of any kind of criminal activity would tend to cause harm to a person’s reputation, allegations about certain types of crimes, for example serious violent or sex offences, are likely to cause more harm that allegations of, for example, minor property damage.
109I am satisfied the reasonable reader would understand from the other articles that Mr Setia had been charged with dishonestly withholding $7,000 in wages and entitlements. The reasonable reader would understand, from common experience, that although the charges could attract a maximum jail sentence of 10 years and a maximum fine of $1,000,000, it was extremely unlikely that, even if found guilty, Mr Setia would have been sentenced to 10 years or fined $1,000,000.
110I am satisfied that the reasonable reader is aware, at least in a general way, of the length of sentences imposed on particular crimes in criminal prosecutions. The reasonable reader would understand that a 10-year jail sentence in Victoria would be a long jail sentence, of the kind that would only attach to very serious criminal offences.
111Because the Radio Haanji publication asserted that Mr Setia had been “found guilty” and that the Wage Inspectorate “had announced” a jail term of 10 years and a $1,000,000 fine for Mr Setia, a reasonable reader of that publication would be likely to understand that Mr Setia had committed a very serious criminal offence that warranted a very severe state sanction.
112In Sivananthan v Vasikaran [2023] EMLR 7 Collins Rice J noted[38]:
Particularly where a general readership rather than identified publishees are involved, the test may also be satisfied by general inferences of fact, drawn from a combination of evidence about the meaning of the words, the situation of the claimant, the circumstances of publication and the inherent probabilities. Relevant factors may then include: the scale of publication of the statement complained of; whether the statement has come to the attention of at least one identifiable person who knew the claimant; whether it was likely to have come to the attention of others who either knew him or would come to know him in the future; and the gravity of the allegations themselves. Aspects of the inferential evidential process have been explored in more detail in other leading cases. The well-established ‘grapevine’ or ‘percolation’ tendencies (Slipper -v- BBC [1991] 1 QB 283; Cairns -v- Modi [2013] 1 WLR 1015) of defamatory publications, particularly online and through social media, may in an appropriate case be factored into inference about scale of publication. Allowance may then be made for the inherent difficulties of identifying otherwise unknown publishees who thought less well of a claimant, since they are unlikely to identify themselves and share that with him. And the likely identity, as well as the numbers, of at least some of a class of publishees may be relevant to the assessment of harm, for example where some individuals may be particularly positioned to lose confidence in a claimant or take adverse action as a result. But these are highly fact-specific matters; the inferences which may properly be drawn in any individual case depend entirely on the circumstances of that case.[39]
[38] At paragraph [43].
[39] Ibid at paragraph [44].
113I am satisfied that Mr Setia has established that the publication caused different and additional harm to his reputation, compared to the harm caused by the fact that charges were laid and by the other articles.
Other evidence relied on to establish serious harm
114Mr Setia also relies on the following matters to establish serious harm to his reputation:
Direct evidence of damage to his reputation
115Mr Setia was removed from a WhatsApp group with 26 members immediately after a screenshot of the publication was shared on the group chat. I accept that his removal was a probable consequence of the sharing of the publication and the assumption by members of the group that Mr Setia was found guilty of the charged offences.
116I accept his evidence and the evidence of his wife that they were shunned for several months within the local community, at the school gates and at the temple. I accept that, to the extent that the shunning occurred within the Indian Australian community, it was more likely a consequence of the publication than the other articles. To the extent that Mr Setia and his wife were shunned by non-Indian members of the community, I find that that was not a consequence of the publication. The overwhelming evidence is that the shunning was primarily by members of the Indian Australian community.
Downturn in business at the Macedon Lounge.
117Mr Setia says the restaurant suffered a downturn in business following the publication. He said Christmas functions were cancelled and tourists stopped coming to the restaurant but “we were still surviving at that time”.[40] To the extent that this was caused by a decrease in tourists and non-Indian clientele, I do not attribute any downturn in business to the publication. It is more likely that Christmas and tourist cancellations were caused by people wishing to avoid a restaurant associated with the charges as alleged in the other articles, given that the Macedon Lounge was not an Indian restaurant and did not cater to a predominantly Indian clientele.
[40] T117 L28-29.
Losses arising from the sale of Macedon Lounge
118Mr Setia said that after the publication he “lost all my passion and interest” and was not going to the restaurant anymore. He felt that if people saw him they would think he was a criminal and so he stopped going to the restaurant. As a result he decided to sell the restaurant for less than he had previously been asking for.
119He said he sold the restaurant for $140,000 to Vedant Tyagi, even though prior to the publication he and Mr Tyagi had been negotiating a figure of $300,000 for the sale.[41] Mr Setia said the business was turning over $30,000 a week. Counsel submitted I can infer that, had a purchaser sought to look at the books, Mr Setia would have been able to establish that the business was taking $30,000 a week.
[41] Exhibit P15.
120If that is correct, it begs the question as to why the documentary evidence to support that proposition was not put before the Court.
121Counsel submitted that the bank statements of the business did not paint a complete picture of the business, because the business was also taking in cash. The only evidence of cash sales was Mr Setia’s evidence that sometimes people paid him with cash. There was no evidence that expenses of the business were paid in cash. I am not satisfied that the business was doing $30,000 a week in sales.
122Mr Setia accepted that the other articles had an impact on the value of the business. He also accepted that the fact that he was facing criminal charges caused him stress and a degree of embarrassment. A combination of the publication, the other articles and the fact that he was facing criminal charges would have likely contributed to his depression and the difficulty he felt going to work.
123The evidence of any downturn in business was difficult to assess. Mr Setia gave evidence that he was depressed and could not attend work. It was difficult to determine on the evidence what hours the Macedon Lounge was operating during the period immediately after the publications.
124Other than Mr Setia’s evidence, there was no documentary evidence provided to demonstrate the Macedon Lounge’s takings in the period after the publication, nor any documentary evidence of comparative performance in the preceding months or years. The burden of establishing his business loss rests on Mr Setia.
125Mr Setia also said that he would typically take $2,000 to $2,500 a week from the business in wages. He said “I was getting a good chunk of profit out of Macedon Lounge, plus sometimes I paid myself as well. So it was a good amount of money because we were doing a good amount of sales per week and all of my expenses – most of my expenses was covered through Macedon Lounge because my wife was not working much at that time, so we were supported by the restaurant”.[42] He is now employed by H1 Healthcare and takes home around $1,000 on average a week, depending on his shifts.
[42] T119 L23-24.
126He says this loss of wages and profits is a further element that establishes he has sustained serious harm.
127There was a dearth of evidence about his claimed economic loss.
128There were no profit and loss statements and no tax returns for the business in evidence. There was no documentary evidence to support Mr Setia’s claim that he typically took around $2,000 - $2,500 in wages and profit a week from the business.[43] He said that a component of the wages he took was in cash, but he would still have been required to file a tax return which was not in evidence.
[43] T120 L4-5.
129If, as Mr Setia says, the business was sufficiently profitable to enable him to take a “good chunk” of profits each week, I would expect there would be documentation to establish what those profits were so I could compare the turnover of the business before and after the publication. The absence of that documentation leads me to conclude that either the documents are in existence and do not assist Mr Setia’s case, or that there is no such supporting documentation, which causes me to doubt the reliability of Mr Setia’s evidence.
130There was no evidence to support the valuation of the business at $350,000, for example from a commercial business appraiser. There was no evidence that the value of the business had reduced to $140,000. Mr Tyagi did not give evidence.
131Mr Setia says that he received “inquiries” from potential purchasers of the Macedon Lounge at a price of between $250,000 and $290,000.[44] An inquiry is not the same as an offer, and I am not able to conclude that Mr Setia has lost an opportunity to sell the Macedon Lounge for a higher price based on his evidence of those inquiries.
[44] T115 25-26.
132Nor am I able to accept that any devaluation of the business arose from the publication as opposed to the other articles. To the extent that any devaluation of the business was caused by a drop off in clientele, the evidence supports a finding that this drop in business was caused primarily by the other articles.
133Mr Setia submitted that, because of his mental state, he could no longer run the business and was keen to sell the business as quickly as possible. Much was made by the defendant of the opaque documentation surrounding the sale and the fact that Mr Setia remains the guarantor on the lease for Macedon Lounge. It was submitted that the sale of the business was not an arm’s length transaction.[45]
[45] T230-231.
134Whatever the details of the sale of the business and whether or not Mr Setia remains involved in the business, Mr Setia has not made out his claim for financial loss arising from the publication. If indeed he sold the business for less than it was worth because he wanted to be rid of it due to his mental state, he has not sufficiently disentangled the cause of his mental state to allow me to conclude that the primary cause of his mental state was the publication, rather than a combination of the publication and the other articles.
135I am unable to conclude that, in the absence of the other articles and the apparent downturn in business caused by the other articles, he would have experienced the same mental state that caused him to sell the business. I am not persuaded that Mr Setia has established a financial loss as a component of the harm he sustained.
Has Mr Setia established that the publication caused serious harm to his reputation?
136Despite my findings in relation to the financial losses Mr Setia claims, I am persuaded that Mr Setia has suffered serious harm to his reputation because:
(a) The inherent tendency of the words is serious. It conveys that not only has Mr Setia been convicted of a criminal offence, but that he has been sentenced to a jail term and given a fine that would apply to crimes at the more serious end of the spectrum;
(b) The publication was on a very popular platform within the Punjabi and wider Indian community within Australia. It was on a site that purported to be a leader within that community in, amongst other things, providing news relevant to the Punjabi community;
(c) The extent of the publication was fairly wide and likely to have been to many thousands of people within the Indian community, particularly in Australia, as established by the number of likes, shares and comments;
(d) There is actual evidence of people within his own community having read the publication. This was proved by it being posted on a WhatsApp group of which he was a member, and the fact that he and his wife were asked questions about whether the article was true. Megha Dal and Ankit Dhir had also read the publication;
(e) There is evidence that people thought less of Mr Setia because of the publication:
(i)The post attracted comments, which expressed negative views about Mr Setia;
(ii)Mr Setia was removed from the WhatsApp group;
(iii)Mr Setia and his wife were shunned within their community, including not being invited to family functions, people moving away from them at the temple and whispering about them at the school gate and this lasted for at least several months.
137The defendant admitted that, if Mr Setia made out the serious harm element, the imputations were conveyed and were defamatory. No defences were relied upon. Accordingly I turn to consider the assessment of damages.
Damages
138The purposes of an award of damages are to provide consolation for hurt to feelings, compensation for damage to reputation, and vindication of the plaintiff’s reputation.[46]
[46] Wilson v Bauer Media & Anor [2017] VSC 521 [59]-[60].
139The damages awarded ought to reflect ‘the high value which the law places upon reputation and, in particular, upon the reputation of those whose work and life depends upon their honesty, integrity and judgment’.[47]
[47] Ibid at paragraph [59].
140The extent of publication, including the likely grapevine effect and the seriousness of the defamatory sting are pertinent considerations.
141Injury to feelings may constitute a significant part of the harm sustained by a plaintiff, and for which a plaintiff is to be compensated by damages. Injured feelings include the hurt, anxiety, loss of self-esteem, sense of indignity and the sense of outrage felt by the plaintiff.
142Aggravated damages are a form of compensatory damages and, where appropriate, form part of the general damages awarded to a successful plaintiff for non-economic loss, designed to reflect aggravation caused to a plaintiff’s hurt or injury by reason of some conduct of the defendant.
Mr Setia's submissions
143Mr Setia says this is a case where it is particularly important to “nail the lie” and while he was not as swift as he could have been in bringing this proceeding, that ought not count against him. He had other things going on, including having to contend with the charges and his own mental health, and in the circumstances did not unreasonably delay.
144I ought not assume the delay demonstrates that the publication was not causing harm to his reputation.
145Although the other articles had an effect on him, that effect was confined to his professional life. The publication hurt his social life and his family and he felt he could not go out as a result.[48]
[48] T136 L22-24.
146The charges and the Wage Inspectorate investigation over a lengthy period caused him quite significant stress. However, that was of a vastly different and lesser character to the stress he felt as a result of the publication.[49]
[49] T235-236.
147The response that Mr Setia received from friends who had read the other articles was quite supportive. For example “Adam from Autobarn” said “Just be strong. Dust yourself off, push through, you will get there”.[50] Mr Setia’s friend Kamal wrote “Be strong, Everything will be fine. Look after yourself and family. Be positive.”
[50] Exhibit P10.
148Mr Setia relies on a report from Emma McIntosh, psychologist, dated 10 April 2024. Ms McIntosh noted that Mr Setia was referred on 17 February 2023 for treatment for anxiety and depression “from recent business loss”. She noted that he had low mood, decreased self-esteem and anxiety in the context of a recent business loss that was exacerbated by significant media attention. She noted he had described experiencing fear of leaving the house and fear of judgment from others. She noted he had complained of financial difficulties. He met the criteria for an adjustment disorder with mixed anxiety and depressed mood. After six months of treatment his depression had improved from extremely severe to severe and his anxiety had improved from extremely severe to moderate. At the cessation of her sessions in October 2023 she considered Mr Setia was better able to engage with his family, however still had feelings of depression, felt isolated from his community and was finding it difficult to re-engage with his passion for hospitality.
149Mr Setia says when he contacted Radio Haanji to have the publication taken down, he was met with a denial that the imputations were conveyed and a refusal to take it down. It was not taken down until after proceedings were issued. Mr Setia says this conduct aggravated his harm. The defendant has never issued any correction or apology, has taken no steps to minimise the harm and adduced no evidence to explain this conduct. The Court should infer that there is no evidence to explain the conduct.
Radio Haanji’s submissions
150Radio Haanji says Mr Setia’s delay in corresponding with its lawyers until June 2023 demonstrates that the publication was not “an urgent concern” of the plaintiff.
151The psychological report relied on by Mr Setia identifies that his stress and anxiety was caused by a combination of all factors, including the charges, the other articles and the publication.[51] As much was accepted by Mr Setia in cross-examination.[52]
[51] CB 559.
[52] T140 L26-30.
152While the publication may have caused some harm within the Indian community it is impossible to identify that harm and disentangle it from harm caused by the other articles. Radio Haanji is only liable for that harm it caused, and the onus is on Mr Setia to identify that harm.
153Ms Dhir admitted that one person from her work had asked her about the article in The Age. This demonstrates that the other articles also had an impact on Mr Setia’s reputation.
154Any harm caused to the business is not a harm that Mr Setia can be compensated for, it is for the company itself to bring those proceedings.[53]
[53] Foss v Harbottle (1843) 2 Hare 461.
155Any award of damages should be negligible.
Findings on damages
156I have found that the publication did cause serious harm to Mr Setia’s reputation within the Indian community and especially the Indian community in Victoria. This is the community in which he lives and primarily socialises. However it is not the only community in which he is involved. He gave evidence that he had involvement with the local cricket and football club through sponsorship, within the hospitality sector in and around Macedon, and now within the health care sector through his current work. Although there is a possibility that some harm was done to his reputation in these sectors by the publication, or by the grapevine effect of the publication, any damage done to his professional reputation and his reputation in the non-Indian Australian community was more likely caused by the other articles and the charges themselves, rather than by the publication.
157On 23 March 2023 the Australian Financial review published an article titled “’Inexplicable’ Victoria wage theft laws face High Court challenge”. On 1 December 2023 the Australian Financial Review published an article titled “Landmark wage theft case collapses” (collectively “the subsequent articles”).
158Those articles reported that Macedon Lounge and Mr Setia were pursuing a High Court challenge to the constitutional validity of the laws and that the Victorian Wage Inspectorate had withdrawn 94 criminal charges against the Macedon Lounge and Gaurav Setia for allegedly underpaying staff.
159The subsequent articles may have had some minor role in ameliorating the damage to Mr Setia’s reputation caused by the publication, to the extent that those reading the articles who had also read the publication would be aware that Mr Setia had not been convicted, fined or sentenced to jail.
160However there is no evidence upon which I can rely to draw an inference that a substantial number of readers of the publication would also have read the subsequent articles. Any ameliorating effect would likely be modest, particularly as the subsequent articles came months after the publication.
161As is often said, each case turns on its own facts and circumstances and awards of damages in one case are not readily comparable in another.
162Nevertheless, recent awards of damages can be somewhat instructive, even though the particular circumstances of Mr Setia’s case make a direct comparison impossible.
163The plaintiff identified, amongst others, the following cases as broadly comparable.
Cables v Winchester [2018] VSC 392
164The plaintiff, who ran several McDonald’s restaurants, was awarded $200,000 in damages including aggravated damages for defamatory publications on Facebook. The impact on the plaintiff had been profound, involving an investigation of her by McDonalds’ head office and associated psychological distress.
165There is a superficial similarity between this case and the plaintiff’s case in that both were running restaurants, and the publication occurred online and attracted a “pile on” of negative comments. In Cables however, there was no other factor that caused the plaintiff’s stress and anxiety, and it was the publication that prompted the investigation and the business losses. The allegations were also, on their face, more damaging reputationally in that they alleged abuse and physical assault as well as underpayments.
Dods v McDonald (No 2) [2016] VSC 201
166A police officer plaintiff was awarded $150,000 for a publication that conveyed he had committed manslaughter, due to his involvement in an incident that led to the death of a 15-year-old boy.
167Both Mr Dods and Mr Setia had been involved in incidents that could have damaged their reputations – Mr Setia the alleged underpayment of staff, Mr Dods the death of a child. The defamatory publications conveyed more serious imputations in relation to those incidents, for Mr Setia that he had been convicted and jailed for ten years, for Mr Dods that he had committed manslaughter.
168However the damage done by allegations of manslaughter is likely to be more severe than allegations of conviction for wage theft.
Parke v Zikovic [2021] VCC 41
169A plaintiff lawyer was awarded $160,000 in damages for defamatory reviews that conveyed imputations that he was unethical, complicit in theft, profited from sales of unsafe merchandise and refused to pay money owed. The Court accepted that the plaintiff suffered a great deal of stress and anxiety worrying about who had seen the reviews.
170I accept that Mr Setia has suffered a great deal of stress and anxiety, but there has also been significant improvement in that stress and anxiety. At least some portion of his stress and anxiety arose from the stress of facing and dealing with criminal charges, and the litigation surrounding those charges which necessitated him instructing lawyers in relation to a High Court challenge. At least some of his depression and anxiety arose from the loss of his business, a loss which I do not assign to the publication.
171I note also the following decisions:
Howe v Zuchowski [2024] VSCA 56
172The Court of Appeal reduced an award of damages to Mr Zuchowski, from $205,000 to $70,000. The publications occurred on a Facebook page and conveyed imputations that Mr Zuchowski, a property developer, used money to taint an application proceeding, acted in a corrupt manner, could not be trusted and lacked integrity. The Court of Appeal found that it could be reasonably inferred on the evidence that several people read the publications and thought less well of the plaintiff as a result, but it was not possible to go further than that in terms of the extent of publication. Given the forum on which the publications were posted the effect of the defamatory imputations was relatively small.
173In contrast to the circumstances of Mr Zuchowski, there is no basis for contending that people reading the publication would already have a particular view about Mr Setia. Nevertheless the true state of his reputation was that of a person who had been charged with the offences.
Prouten v Buxton (No 2) [2024] NSWDC 445 (“Prouten”)
174The defendant succeeded in a defence of truth and honest opinion. However the judge considered the appropriate award of damages, had the justification defence failed. In that case the imputations conveyed were that the plaintiff was a vigilante who had deliberately assaulted a cyclist because she did not like cyclists and was a serious threat to the local community because of her conduct in striking passing cyclists with a stick. Her Honour found that the plaintiff enjoyed a good reputation in the local community prior to publication and had been deeply distressed by the publication. Her Honour also noted that the responses to internet publications can be completely out of proportion, and in that case the comments included threats of physical and sexual violence. The plaintiff had been the subject of thousands of posts and comments. However her Honour also noted that the plaintiff’s hurt to feelings had to be seen in the context of criminal proceedings commenced by police which took almost two years to finalise and in which the plaintiff was ultimately acquitted. The issue remained local and there were strong views on both sides. The likelihood was that the issue would have faded away “in the usual way of social media”. Her Honour assessed appropriate compensatory damages at $15,000 and did not consider an award of aggravated damages would have been appropriate.
175As in Prouten, Mr Setia faced criminal charges which ultimately did not result in conviction. In Prouten, the allegations were made in the context of a local community debate with expression of views for and against a particular issue. The publication about Mr Setia was on a website which published news and was likely to be accepted as factually accurate.
176In assessing the damage done in Mr Setia’s case I have considered:
(a) the content and form of the publication which was on a news site, presented as fact;
(b) the extent of the publication which I have found to be to thousands of people;
(c) the evidence of reputational damage to Mr Setia within his own community which I have found was serious; and
(d) the emotional and psychological impact of the publication on him, reduced by the impact of the other articles and the charges.
177Having regard to all these matters, I consider an award of damages in the amount of $80,000 appropriate compensatory damages.
Aggravated damages
178The plaintiff seeks an award of aggravated damages, relying on the defendant’s failure to remove the article when requested to do so, and failure to publish an apology, correction or retraction.
179The defendant did not remove the article and provided no evidence as to why the article was not removed. Given the nature of a news website, it is likely that the damage done by the publication occurred within the days immediately surrounding its publication. The fact that the publication remained online was unlikely to have substantially increased the harm to Mr Setia’s reputation.
180Removal in June 2023, some six months after publication, may have ameliorated Mr Setia’s hurt feelings but would have been unlikely to cause any other significant reduction in the serious harm to reputation he suffered, as it is unlikely that many people would have noticed the removal of the article.
181A correction or retraction of the article, however, could have gone some way to ameliorating that harm. Printing a correction or retraction is more likely to come to the attention of readers, than simply removing an article. The correction or retraction can also be used by the aggrieved person to demonstrate the falsity of the allegation.
182Given that the publication was plainly wrong, it is inexplicable why Radio Haanji, which promotes itself as being a news platform (among other things) did not behave in the manner expected of news organisations and print a correction or retraction. There was evidence that, at least within Australia, Radio Haanji is the primary source of news about issues relevant to the Punjabi community. Even if this somewhat overstates matters, a specialist website targeting a particular community has a special obligation to correct mistakes when they are made to ensure the integrity of journalistic standards in this country.
183The failure to print a retraction or correction aggravated the harm Mr Setia experienced, not least because of his emotional response to the article and the frustration at having to pursue vindication of his reputation through the legal system.
184An award of aggravated damages is appropriate in the amount of $15,000.
Orders:
1. Judgment is entered for the plaintiff in the amount of $95,000.
2. Costs reserved
3. The proceeding is listed for a costs hearing and argument in relation to any interest, on a date to be fixed
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