Taylor v Hewitt

[2017] WASC 234

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   TAYLOR -v- HEWITT [2017] WASC 234

CORAM:   LE MIERE J

HEARD:   7 & 8 AUGUST 2017

DELIVERED          :   18 AUGUST 2017

FILE NO/S:   CIV 1447 of 2015

BETWEEN:   BRIAN DAVENPORT TAYLOR

Plaintiff

AND

SHEENA LINDA HEWITT
Defendant

Catchwords:

Defamation - Whether words were published - Whether plaintiff identified as the subject of the alleged defamation - Whether words are defamatory - Where plaintiff has not adduced satisfactory evidence - Turns on own facts

Legislation:

Nil

Result:

Plaintiff's claim dismissed

Category:    B

Representation:

Counsel:

Plaintiff:     In person

Defendant:     In person

Solicitors:

Plaintiff:     In person

Defendant:     In person

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

Sims v Jooste [No 2] [2016] WASCA 83

LE MIERE J: 

Summary

1. The plaintiff and the defendant each represented themselves at the trial of this action in which the plaintiff claims he was defamed by words posted by the defendant on the plaintiff's company's Facebook page.  The law of defamation involves substantive and procedural rules that make defamation one of the most complicated civil actions.  Many lawyers are ill‑equipped to conduct a defamation trial.  The plaintiff and the defendant each lacked the knowledge or skills to adequately conduct this trial.

2. The plaintiff's action must be dismissed.  That is not the outcome of the application of the law to all of the relevant facts.  It is because the plaintiff has failed to adduce evidence in admissible form of facts essential to establish his alleged cause of action.  I do not mean that if all of the relevant facts had been established the plaintiff would have succeeded.  I simply do not know, because the evidence adduced at the trial did not address crucial claims made by the plaintiff in his statement of claim.

The dispute between the plaintiff and the defendant

1. At times the testimony and cross‑questioning of the parties suggested that their dispute was about the services provided by the plaintiff or his company to the defendant in relation to the sale of her house.  I will briefly explain.

2. A company called Need A Loan (WA) Pty Ltd as Trustee for the Brian Taylor Family Trust operates a business under the name of Go Private.  It appears that the plaintiff, Mr Taylor, is the principal of the business, although he adduced no evidence of the incorporation of Need A Loan (WA) Pty Ltd, of the ownership of the business name Go Private or that he is a, or the, director or shareholder of the company.  The business provides services to people who want to sell a house.  The services consist principally in providing advertising exposure on websites, for sale signs, advertising brochures and draft forms of offer and acceptance.  The defendant, Ms Hewitt, made a contract with Go Private by which she agreed to pay for services to be provided by Go Private.  Ms Hewitt paid $700 to Go Private.  Mr Taylor took some photographs of Ms Hewitt's house, delivered some for sale signs, produced some sales brochures and put some advertisements offering her house for sale on some websites.

3. Disagreements arose between Mr Taylor and Ms Hewitt.  There were disagreements about what photographs Mr Taylor took, what photographs were put on the advertising brochures and the adequacy of the website exposure of Ms Hewitt's house for sale.  I will not elaborate upon those differences except for one matter relating to the sales brochures.  The brochures consisted of a single A4 page.  On one side are photographs of the house, a description of the house, the asking price and phone numbers on which Ms Hewitt could be contacted.  On the other side, topped and tailed by the Go Private logo and contact details, are seven paragraphs below a heading 'Information for Buyers'.  The penultimate paragraph includes the sentence:

   To help determine your borrowing capacity contact Brian Taylor, fully licensed finance broker with Australian Credit Licence 382006, at the address below.

   Ms Hewitt objected to Mr Taylor using her sales pamphlet to advertise his finance business.  Mr Taylor says that when Ms Hewitt objected to the inclusion of that information he produced further brochures without that information.  It is unnecessary to resolve the differences between the parties concerning the advertising brochures.  In the end, Mr Taylor collected his for sale signs from Ms Hewitt and ceased providing any services to her.

The Facebook post

1. On 23 February 2015 Ms Hewitt opened her Facebook page on her laptop.  She says a message from Brian Taylor flashed up on the page.  The message said click here.  Ms Hewitt clicked.  She was taken to Brian Taylor's private Facebook page.  The only thing displayed on the page was a message from Mr Taylor.  It was talking about the business dealings between Mr Taylor and Ms Hewitt.  It finished with the words:  'We don't need people like her'.  Ms Hewitt says she typed and sent an email.  She says she typed words and 'it said "send" and she hit "send"'.  The words typed and 'sent' by Ms Hewitt are:

   Did my own pics & did my own Ad, something he didnot have to do, he just had to Post them, GoPrivate only put them on his own site, there was no 27 sites??  There was no back‑up or News Paper Ads???  He just Advertised his own Ad saying 'You need a loan come & see him … If I had of known he was a Loan‑Shark .. Once bitten!!

   (The Post)

2. In her defence Ms Hewitt says that the Post went to Mr Taylor's private mail inbox.  In her evidence she explained that when she hit 'send' it automatically went onto Mr Taylor's private Facebook page.  Ms Taylor says that it was a private Facebook page because there was no timeline, nobody could leave a message on there, there was nowhere to leave a message.

3. On 23 February at 1.11 pm Mr Taylor received an email from Facebook stating:

   Sheena Hewitt commented on her post

   Sheena Hewitt

   February 23 at 1.10 pm

   Did my own pics & did my own Ad, something he didnot have to do, he just had to Post them, GoPrivate only put them on his own site, there was no 27 sites??  There was no back‑up or News Paper Ads???  He just Advertised his own Ad saying 'You need a loan come & see him … If I had of known he was a Loan‑Shark .. Once bitten!!

   Mr Taylor says that he read the email on 23 February and then checked the Go Private Facebook page.  He saw the Post posted there.

4. The only documentary evidence of the Post is the 23 February email from Facebook to Mr Taylor.  Neither party produced a screenshot or printout of the Go Private Facebook page with the Post posted or of an email from Ms Hewitt received in Mr Taylor's private email box.

5. I find that Ms Hewitt posted the Post to the Go Private Facebook page for three reasons.  First, the 23 February email from Facebook to Mr Taylor says that Ms Hewitt 'commented on her post'.  That is consistent with a post to a Facebook page not an email.  Secondly, Mr Taylor says that he saw the Post on the Go Private Facebook page.  Thirdly, Ms Hewitt says that on the following day, 24 February, she opened the Go Private Facebook page and saw the Post posted there.

Publication

1. There is no actionable tort of defamation unless the words complained of are published (that is, communicated) to at least one person other than the plaintiff.  Publication of material on the internet or the World Wide Web occurs for the purpose of defamation law when the material is downloaded and comprehended by internet users.  When information is uploaded to an internet site, such as a Facebook page, it is published, in the non‑legal sense of that word.  However, publication in the legal sense only occurs if and when somebody uses a browser or other device to access the site and thereby sees and comprehends the information which has been uploaded:  Sims v Jooste [No 2] [2016] WASCA 83 [10] (Martin CJ). There is no presumption that material posted on the internet or the World Wide Web will have been downloaded by someone. The plaintiff must prove that an identifiable person or persons downloaded the material or prove a sufficient 'platform of facts' from which it may reasonably be inferred that one or more persons has downloaded the material: Sims [18] (Martin CJ).

2. In his statement of claim Mr Taylor pleads:

   9.The Go Private Facebook page was maintained by the Plaintiff for the purpose of promoting Go Private's business activities and to allow communication with current, former and prospective customers.

   10.Posts on the Go Private Facebook page were visible to members of the page and to any person who searched for or visited the page.

   11.The Post was downloaded to the computers used by other persons and seen by at least two members of the Go Private Facebook page, namely:

   •Wayne Bendikas of 71 Eastern Road, Geraldton; and

   •Frederick Charles Smith of 46 Royce Place, White Peak.

   12.The extent to which the Post was downloaded to the computers used by other members of the Go Private Facebook page or other persons is not known to the plaintiff.

3. In his opening submissions the plaintiff said that the Post was downloaded to the computers used by other persons and seen by at least one member of Go Private Facebook page, namely Mr Smith, and that the extent to which the post was downloaded to the computers used by other members of the Go Private Facebook page and other persons is not known to the plaintiff.  Mr Taylor made no reference to Mr Bendikas in his opening submissions.  Mr Taylor said that Mr Smith was to be a witness but he was in hospital.  The plaintiff asked that Mr Smith's evidence be taken by mobile telephone.  I refused that leave because it was not appropriate to take evidence of an important witness by mobile telephone, no notice had been given of the application and no arrangements had been made for the witness to take an oath or affirmation.  The plaintiff then said that he considered there was sufficient evidence without Mr Smith.  I informed the plaintiff that when he had completed giving his evidence he should decide whether he wished to close his case or seek an adjournment for the purpose of calling Mr Smith to give evidence at a later time.  At the conclusion of Mr Taylor's evidence I asked the plaintiff whether he wished to apply for an adjournment for Mr Smith to give evidence.  The plaintiff decided not to do so.

4. Mr Taylor gave evidence.  He called no other witness.  In his evidence Mr Taylor said that after he saw the Post posted on the Go Private Facebook page he spoke to Mr Smith.  He said at the time Mr Smith was thinking about buying the company.  Mr Taylor telephoned Mr Smith because he was concerned that the Post might affect Mr Smith's decision‑making.  Mr Taylor said that Mr Smith told him he had already seen the post.  I informed Mr Taylor that that was hearsay and that Mr Smith should come to court if he wanted Mr Smith to give evidence.

5. The outcome of all this is that there is no admissible evidence that Mr Smith, Mr Bendikas or anyone other than the plaintiff downloaded the Post on the Go Private Facebook page as pleaded by the plaintiff.  For that reason the plaintiff's case must be dismissed.

Other elements of action for defamation

1. Although it is strictly unnecessary to do so, I will briefly set out my findings in relation to the other issues in the case.  To succeed in an action of defamation the plaintiff must not only prove that the defendant published the words to a third person but also that they are defamatory and he is the person defamed, that is the words might be understood by reasonable people to refer to the plaintiff.  If the plaintiff establishes those matters then he will succeed unless the defendant establishes a defence which justifies or excuses her conduct.  In this case, the defendant has pleaded that the words complained of bore meanings other than those alleged by the plaintiff and those meanings were true.  I will now deal with each of those issues.

Identification of plaintiff

1. The plaintiff must prove a publication of and concerning him.  In other words, the plaintiff must prove that he was the subject of the defamation.  Where the plaintiff is named in the defamation no difficulty will usually arise.  However, where the defamation does not expressly refer to the plaintiff extrinsic evidence must be given to connect the defamation with the plaintiff.

2. In his statement of claim the plaintiff pleaded:

   14.By the use of the words 'he' and 'his' in the Post, the Defendant refers to a male person involved in the business 'GoPrivate'.

   15.The said Wayne Bendikas and Frederick Charles Smith recognised that the person being referred to in the Post was the Plaintiff.

   16.Any other person who has dealt with 'Go Private' would have dealt with the Plaintiff, and recognised the natural person referred to in the Post as the Plaintiff.

   In his opening submissions the plaintiff said that Mr Smith recognised the plaintiff as the person being referred to in the post and any other person who has dealt with Go Private would have dealt with the plaintiff and recognised the natural person referred to in the Post as the plaintiff.  However, the plaintiff did not adduce evidence from Mr Smith or from any other person who has dealt with Go Private.

3. Ms Hewitt gave evidence to the effect that she intended to refer to the plaintiff.  However, the test is not whether the defendant intended to refer to the plaintiff but whether the words might be understood by reasonable people who read them to refer to the plaintiff.  The plaintiff has not discharged the onus on him of proving that he would have been identified by persons who read the Post as the person being referred to.

Words are defamatory

1. I will consider whether the Post gives rise to the defamatory meanings pleaded by the plaintiff, or any permissible variant of those meanings, on the assumption that the Post refers to the plaintiff.

2. The plaintiff pleads that the Post gives rise to the following imputations.

   (a)That the plaintiff was or is engaged in supplying loans at usurious rates of interest;

   (b)That the plaintiff was or is engaged in criminal activity, namely extortion;

   (c)That the plaintiff is not a fit and proper person to hold an Australian Credit Licence;

   (d)That the plaintiff was or is engaged in the exploitation of financially vulnerable people.

   (e)That the plaintiff had breached his contractual obligations, or caused Go Private to breach its contractual obligations, as to the provision of advertising services;

   (f)That the plaintiff had acted only for his own benefit;

   (g)That the plaintiff was or is untrustworthy.

   (h)That the plaintiff was or is or unscrupulous.

3. The plaintiff will succeed if the words complained convey any of the meanings pleaded by the plaintiff or any meaning which is comprehended in, or is less serious than, or which is simply a variant of the meaning pleaded.

4. I find that in the context of the Post the words 'loan shark' refers to unethical and exploitive practices in the provision or arranging of loans.  That is a variant of imputations (a) and (d).  The words 'loan shark' may, depending on their context, convey the meaning that the person referred to was engaged in criminal activity.  However, the Post does not suggest that the writer was subject to any violence or illegitimate means to enforce payment of a loan.  Indeed, the Post does not say that the writer sought or obtained a loan.  The Post conveys the imputation that the plaintiff engages in exploitive or unethical actions in providing or arranging loans.  The Post does not give rise to imputation (b).  The Post says nothing about a credit licence or the need to hold a credit licence.  It does not give rise to imputation (c).

5. The essence of the Post is that the plaintiff provided no worthwhile service to the writer and took advantage of the writer by using her pictures and advertisement to advertise his own loan making or arranging activities.  The Post does not say that the plaintiff was under any contractual obligation to provide any advertising services other than those which he provided.  Nor would a reasonable reader understand the Post to be saying that.  The Post complains of the failure of the plaintiff to do anything more than put the writer's pictures and advertisement on his own website and to use them for his own advertising purposes.  A reasonable reader would assume that there was some agreement, arrangement or understanding between the writer and the plaintiff to publish or advertise the writer's pictures and advertisement but a reasonable reader would not assume a contractual obligation to do anything more than the plaintiff did.  The Post does not convey imputation (e).  The imputation that the plaintiff had acted only for his own benefit is conveyed by the Post.  The essence of the Post is that the plaintiff provided no worthwhile service to the writer and took advantage of the writer by using her pictures and advertisement to advertise his own loan making or arranging activities.  That conveys imputation (f).  The references to 'loan shark' and to providing no worthwhile service to the writer and advertising his own ad would convey to a reasonable reader that the plaintiff was unscrupulous and untrustworthy.  The Post conveys imputations (g) and (h).

Defence of truth

1. The defendant pleads a Polly Peck defence, that is, the defendant pleads a variant of the plaintiff's meaning and that in that meaning the words published are true.  The meanings pleaded by the defendant are:

   (a)the plaintiff failed to provide to the defendant the services he had agreed to provide;

   (b)the plaintiff is a finance broker who lends or arranges to lend money to purchasers of property; and

   (c)the plaintiff used the advertisement he prepared for the defendant's property to advertise his finance broker business.

2. Meaning (b) is not defamatory.  I am not satisfied that the Post gives rise to meaning (a).  I find that meaning (c) is not defamatory of the plaintiff.  It is therefore unnecessary to consider whether any of those meanings is true.

Damages

1. The plaintiff has not made out his cause of action and hence is not entitled to any damages.  However, I will make some brief observations about the plaintiff's claim for damages had he succeeded in establishing his cause of action.

2. The plaintiff need not prove actual damage, the law presumes that some damage will flow in the ordinary course of things from the invasion of his right to reputation.  The purpose of general damages is to compensate the plaintiff for the effects of the defamation.  General damages served three functions:  to act as a consolation to the plaintiff for the distress he suffers from the defamation, to repair the harm to his reputation including, where relevant, his business reputation; and as a vindication of his reputation.  Damages are 'at large' in the sense that they cannot be assessed by reference to any mechanical, arithmetical or objective formula.  The judge may take into consideration a wide range of matters including the subjective impact that the defamation has had on the plaintiff, the nature of the defamation, its gravity and the mode and extent of its publication, the absence or refusal of any retraction or apology and the conduct of the defendant from the time when the defamation was published down to the verdict.

3. Even if the plaintiff had established that the Post had been published to Mr Bendikas and Mr Smith I would have awarded only very modest damages in the absence of any evidence that the publication of the Post caused any distress, hurt or humiliation to the plaintiff or any evidence that the publication had any actual effect on his reputation.

4. The plaintiff claimed in his statement of claim that he suffered actual loss:

   20.In or about late 2014, the said Frederick Charles Smith entered into discussions with the Plaintiff regarding the possible sale of the 'Go Private' business from the Plaintiff to Smith.

   21.As a result of the publication, Smith became concerned about the reputation of 'Go Private'.

   22.As a result, Smith declined to make an offer to purchase 'Go Private' from the Plaintiff.

   There is no evidence that Mr Smith became concerned about the reputation of Go Private as a result of the publication of the Post.  There is no evidence that Mr Smith declined to make an offer to purchase Go Private as a result of the publication of the Post.

1. Mr Taylor two extracts from Need a Loan's Quick Books online accounting records which he submitted proved that he suffered a loss of income as a result of the publication of the Post.  The first extract shows income received by Go Private between 24 February 2014 and 23 February 2015.  The second showed income received by Go Private between 23 February 2015 and 22 February 2016.  There are numerous difficulties with that evidence.  The most obvious is that proof of a decline in income from 12 months before the Post was posted to 12 months after the Post was posted does not prove that the decrease in income was caused by the Post.  It is a logical fallacy often referred to as the post hoc fallacy, that an event (decrease in income) that followed another (publication of the Post) was necessarily a consequence of the first event.  Secondly, the decrease in total Go Private income was negligible:  from $71,695 to $71,299.  Mr Taylor submitted that what was significant is that in the former period there were 50 invoices issued for 'initial payment non‑refundable' and 45 in the second period.  That is nothing more than assertion.

Conclusion

1. The plaintiff's claim will be dismissed.