Thexton (t/as Thexton Lawyers) (ABN 63 592 181 313) v Nolch

[2019] VCC 975

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

DEFAMATION LIST

Case No. CI-19-00479

GLENN ASHLEY THEXTON (Trading as THEXTON LAWYERS) (ABN 63 592 181 313)	Plaintiff
v
ANDREW NOLCH	Defendant

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JUDGE:	HIS HONOUR JUDGE O'NEILL
WHERE HELD:	Melbourne
DATE OF HEARING:	28 June 2019
DATE OF JUDGMENT:	1 July 2019
CASE MAY BE CITED AS:	Thexton (t/as Thexton Lawyers) (ABN 63 592 181 313) v Nolch
MEDIUM NEUTRAL CITATION:	[2019] VCC 975

REASONS FOR JUDGMENT
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Subject:  DEFAMATION

Catchwords:             Plaintiff, a legal practitioner, appeared on behalf of defendant in Magistrates’ Court criminal proceedings – defendant posted review on plaintiff’s website suggesting plaintiff was a liar and could not be trusted – defendant failed to file appearance or defence – interlocutory judgment entered – assessment of damages – injunctive relief

Legislation Cited:     Defamation Act 2005 (Vic)

Cases Cited:Dingle v Associated Newspapers [1961] 2 QB 162; Herald and Weekly Times Limited v McGregor (1928) 41 CLR 254

Judgment:                Judgment for the plaintiff.  Damages assessed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	The plaintiff appeared in person	Thexton Lawyers
For the Defendant	No appearance	-

HIS HONOUR:

1       The plaintiff is a criminal lawyer who practices in Melbourne under the name “Thexton Lawyers”.  In June 2018, he was retained by the defendant, who had been charged with several counts of criminal damage. 

2       The offending apparently related to an obscene symbol painted by Nolch in an area of Princess Park, where a memorial gathering was to be held, following the rape and murder of Eurydice Dixon.

3       The plaintiff appeared on behalf of the defendant on a number of occasions in August and September 2018 in the Melbourne Magistrates’ Court.  On 10 September 2018, agreement was reached that Mr Nolch would plead guilty to one charge of criminal damage.  He was convicted and ordered to serve an eighteen-month Community Correction Order with community service.  He was required to make restitution of the cost of repair to the area.

4       Mr Thexton maintains an internet website which sets out details of his firm and the criminal work it undertakes. Through Google, a client who utilises Mr Thexton’s services may go to the website, and post a short review expressing that person’s satisfaction or otherwise with the legal services provided.  There is a ‘star rating’, up to 5 stars.

5       Subsequent to the hearing, on 30 January 2019, the defendant posted a review on the services provided by Mr Thexton.  The review read as follows:

“Waste of time, dont go to him. Glenn Thexton is a smooth talking salesman, he cannot be trusted. Trust is very important when getting legal advice, how do you know when Thexton is lying?

When he opens his mouth. I would have got a better result if I represented myself.”

6       The review was under the name “Andy Nolch’s Channel”.  It has remained on the website to the present time.

7       According to an affidavit of the plaintiff sworn 14 June 2019, on 31 January 2019, he sent an email to the defendant[1] demanding the review be removed, and threatened defamation proceedings.  The correspondence also noted that the defendant had appealed the Magistrates’ Court sentence.  I was advised that a judge of this Court confirmed the sentence on appeal.

[1]Exhibit “A” to the affidavit of Glen Thexton sworn 14 June 2019

8       By email of 31 January 2019, Mr Nolch replied:

“Dear Glenn,

I will not remove the review.  You know what you did.  My appeal does not have much to do with you, you don’t need to worry, if you and the prosecution treat me nice, then I will treat you nice, so its up to you.  But I will warn you like I warned the prosecution, if you give me a hard time during the appeal than I will fight back figuratively.  I don’t want my appeal in March to last long, Im happy for it to be quick and simple, but Im willing to deliver quite a long defence and go into complicated areas if you guys don’t play nice.  Just thought Id let you know.

Thanks, Andy.”

(sic)

9       The Writ in this proceeding was issued on 7 February 2019.  Mr Thexton pleads the post contained imputations which were defamatory as:

(a)      it suggested the plaintiff could not be trusted; and

(b)      the plaintiff was a liar.

10      Mr Thexton further pleaded that his reputation, both within the legal community and with clients, or potential clients who might use a Google search for a lawyer, had been damaged.  The Writ sought an apology, damages, costs and “that the Defendant remove the Review”.

11      Mr Nolch did not file an appearance, nor a defence, and interlocutory judgment was entered on 10 May 2019.  By Order made 10 May 2019, Judicial Registrar Gurry fixed 28 June 2019 for assessment of damages.

12      The defendant did not appear at the hearing.  A number of affidavits were filed on behalf of the plaintiff from Stephen Smith, solicitor; Slowko Tomyn, solicitor and Sean Hardy, barrister, all attesting to the plaintiff’s good character and professional capabilities.

13      Mr Thexton provided written submissions which sought, in part, to extend the matters of fact referred to in the affidavits.

14      According to Mr Thexton’s affidavit, he claims extensive criminal experience across a number of States and in the Magistrates’, County and Supreme Courts of Victoria.  He says he has an “excellent online reputation” and that he had “been building my legal firm’s Google+ reputation over three years.  I rely on Google+ reviews to attract new clients”.

15      He claims that as a result of the posts he has suffered embarrassment, as colleagues and clients have made comment about the content of the review.  He said he is concerned that potential clients will see the review and choose another lawyer.

16      At the hearing, there was no evidence before the Court:

(a)from any client who, having read the review, sought another lawyer;

(b)from any colleague or client who had spoken to the plaintiff after having read the review;

(c)as to the number of times his website, or the review itself, was read or “hit”;

(d)as to the fact that his practice had suffered any downturn as a result of the review;

(e)from any person who, having read the review, considered the plaintiff’s reputation had been affected;

(f)as to any steps taken by the plaintiff through Google, or some other entity, to have the review taken down or challenged in some way.

17      When these deficiencies in the evidence were pointed out to Mr Thexton, he said that it was open to the Court to infer, or accept as a matter of judicial knowledge that, given his website carried reviews, that there would be many persons who would read the review and be dissuaded from seeking his services.  I do not accept such an inference can be drawn, or that the matters referred to can be said to be within judicial knowledge.  

18      In relation to the steps that he had taken to attempt to have the review withdrawn or challenged, Mr Thexton said that he had attempted to do this on several occasions, but without success. 

19      Mr Thexton did not seek an adjournment of the proceeding in order to provide further evidence as to these matters.

20      There is no issue the defendant is the author of the review.  He has chosen not to defend the proceeding.  I accept the review was placed on the plaintiff’s website and available to be seen by the public, in particular, those persons who used the internet to retain a lawyer in respect of criminal proceedings.

21      I am satisfied that to an “ordinary reasonable reader” the review carries the imputations that Mr Thexton is not to be trusted and a liar.  As such, I accept the review has the capacity to adversely affect Mr Thexton’s reputation, and is defamatory.

22      The difficulty for the plaintiff’s case, in assessing that damage to reputation, is there is simply no evidence as to the extent to which the review was read by clients or potential clients, or as to their view of Mr Thexton’s reputation as a result.

23      I accept that such evidence is not easy to obtain.  It would be difficult to contact someone who might browse the website, read the review, among other reviews, and decide not to utilise Mr Thexton’s services.  On the other hand, there was no evidence about any steps taken by Mr Thexton to provide the Court with any information as to the number of hits or viewing of his website.  The Court is left in the unsatisfactory position of attempting to assess, without any real evidence, what impact such a review might have on persons looking at this website. 

24      I do not accept that there would be any significant effect upon his reputation within the legal community, as those persons are unlikely to look at reviews on his website.

25      The degree of harm which may be done to a person’s reputation is directly proportional to the number of persons who become aware of it.[2]  Thus, proof of the extent of publication, such as circulation figures, records of persons who visited or viewed the website, or a proven downturn in the receipts of a business following publication, is usually of importance.[3]   If for example the extent of the readership of the review is very small, and there are subsequent reviews which are quite uncritical, it may be that none of the people who Googled the plaintiff’s website read the review, or, if they did, it had had no impact upon them.

[2]Dingle v Associated Newspapers [1961] 2 QB 162 at 190, 192

[3]Herald and Weekly Times Limited v McGregor (1928) 41 CLR 254 at 263

26      I accept that the imputations to ordinary clients or potential clients are defamatory.  I accept, on balance, that such a review caused some effect upon the reputation of Mr Thexton in the eyes of those persons; however, given the paucity of evidence on the point, I can only assess the effect upon his reputation as very modest. 

27      Doing the best I can, I assess damages in the sum of $5,000.

28      Mr Thexton seeks an injunction directing the defendant be restrained from any further publication on the plaintiff’s website; however, there is no evidence, aside from the first publication, that further publication will or is likely to occur.  No such injunction should be granted.

29      Mr Thexton next seeks an injunction directing the defendant to take all necessary steps to withdraw the review.  Again, there is little evidence as to what steps need to be taken in order for the review to be drawn.  There is no evidence as to how it could be withdrawn, or even whether the defendant could do so; however, given he was responsible for the posting of the review, it is reasonable to infer that he could take steps to remove the review or alter it.  In those circumstances, an injunction to that effect will be granted.

30      As to costs, Mr Thexton did not seek the usual order that costs be assessed according to scale and determined by the Costs Court in default of agreement.  He sought the total sum of $6,646.30, made up as follows:

Disbursements:

Filing fee upon Writ  $708.10

Trial setting-down fee  $541.90

Costs:

Costs upon default judgment            $2,646.30

Counsel’s fees  $2,750.00

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$6,646.30

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31      I was not provided with any documentation to verify counsel’s fees.  Counsel did not appear at the hearing.  It is arguable, as Mr Thexton acted for himself, he is not entitled to professional costs as would otherwise be chargeable had he had a solicitor acting on his behalf.

32      Given the award of damages, it is arguable costs should be assessed on the Magistrates’ Court scale; however, in my experience, practically every defamation proceeding is brought either in this Court, or the Supreme Court.  It was not unreasonable for the proceeding to be brought in this Court. 

33      Doing the best I can, I shall order costs and disbursements in the amount of $4,500.00.

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