Yuanjun Holdings Pty Ltd v Min Luo

Case •

[2018] VMC 7

•

29 MARCH 2018

IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
GENERAL CIVIL DIVISION  H10948835

BETWEEN:

YUANJUN HOLDINGS PTY LTD (ACN 616 030 034)  First Plaintiff
-and-
YUANJUN LI  Second Plaintiff
-and-
SAM WANG  Third Plaintiff
-and-

MIN LUO   Defendant

MAGISTRATE:  GINNANE
WHERE HEARD:   MELBOURNE
DATES HEARD:  13 & 14 MARCH 2018
DATE OF DECISION:   29 MARCH 2018
CASE MAY BE CITD AS:                  YUANJUN HOLDINGS PTY LTD AND ORS V MIN LUO
MEDIUM NEUTRAL CITATION:      [2018] VMC007

REASONS FOR DECISION

Catchwords: Defamation - Publications on internet - Arbitration of small claim - Referred into Court as hearing pursuant to s104 of Magistrates’ Court Act 1989 - Circumstances rendering proceeding inapplicable as an arbitration - Imputations - Defamation Act 2005 - Defence of Qualified Privilege – Defence of Contextual Truth – Damages – Method of assessment

APPEARANCES   Counsel  Solicitors
For the Plaintiff  Mr Newland  DST Legal

For the Defendant  Mr Cooper (Solicitor)                Peter Cooper Lawyer  

Introduction

  1. This proceeding was commenced by the plaintiffs who at the time of lodging their Complaint represented themselves. Although the proceeding was commenced by way of a Form 5A Magistrates’ Court Complaint, the amount claimed was expressed as “Damages not exceeding $10,000” and therefore the proceeding constituted an Arbitration under s. 102 of the Magistrates’ Court Act (1989) (the MC Act). Arbitrations are not subject to the rules of evidence or the procedures generally applicable to the hearing of a proceeding that is not an arbitration.  
  1. On no reasonable basis was this proceeding appropriate to being determined by way of Arbitration. I made my views known to the parties soon after the matter was called on. Not only does the claim involve complex issues of law but the plaintiffs claim damages which, although having being pleaded by way of Amended Complaint as an amount no greater than $10,000, of necessity has involved considerations of the means by which damages to commercial reputation is assessed as well as an assessment of damages for general damages for hurt feelings sought by the individual plaintiffs.
  1. It seems from the Court record that subsequent to the commencement of the claim the plaintiffs engaged solicitors. These solicitors subsequently ceased to act for the plaintiffs. In the immediate aftermath the plaintiffs acted on their own account. The proceeding not having resolved at a compulsory Pre-hearing Conference it was listed for Arbitration. At some point in time the plaintiffs were directed by Magistrate M Smith to obtain representation by an Australian Lawyer and not having been able to do so by the scheduled hearing date, the plaintiffs requested the consent of the defendant’s solicitor to an adjournment. In response to the request, the defendant’s solicitors responded that in the event of an application being made for an adjournment costs would be sought. The plaintiffs then filed a Notice of Discontinuance.  On 8 December 2017 a made certain orders including reinstating the Complaint and listing the matter for “trial”. No directions were given for the conduct of the proceeding.
  1. When the Arbitration was called on before me on 14 March 2018 the plaintiff had engaged fresh solicitors and an Amended Complaint dated 22 February 2018 had been filed and on 9 March 2018 an Amended Notice of Defence to the Amended Complaint was filed in response.
  1. At the hearing the plaintiffs were represented by Mr Newland of counsel and the defendant was represented by Mr Cooper, solicitor. Pursuant to s 102 (4) of the MC Act, I referred the matter to court as a hearing on the basis that it was not appropriate that any party with the carriage of such a claim in defamation or with the issues pleaded by way of defence could have regarded matter suitable as a 2 hour Arbitration.
  1. In addition on listening to the nature of the allegations outlined by the plaintiffs and after inquiring about the evidence to be adduced, I raised a series of potential difficulties that I anticipated in a claim for defamation and reminded the parties of the advantages of giving further consideration to a consensual resolution by way of settlement as opposed to an adjudicative decision, but to no avail. Thus the hearing proceeded to be determined.

The Parties

  1. The first plaintiff is a company. The company operates a dental practice. The dental practice trades under the name “Smile in the City”. The dental practice consists of at least the second plaintiff Dr. Li. It seems a dentist who had worked at the practice before Dr Li took over the practice on 23 December 2016 stayed on for a time but has since gone her own way. The third plaintiff Mr Wang is the Practice Manager of the clinic and D Li’s son. He is 20 years of age but was 19 years of age when the alleged defamations occurred. The dental practice operates in Carlton, Victoria. Dr. Li has been a dentist for approximately 20 years.
  1. The plaintiffs like so many people and businesses nowadays operate in a world in which the revealed and the anonymous post praiseworthy and condemnatory comments about the quality of service they believe they have received from all manner of service providers. This case highlights this ongoing problem of social media where words are permanent and not passing.
  1. The defendant Ms Min Luo agrees that she was a patient of the dental practice and had a consultation with Dr. Li. The scope of the defendant’s consultation is not agreed by Ms Luo. Dr Li produced clinical notes made by her on the date of consultation. The notes bear the date 26 February 2017 and recorded the relevant matters:[1]

    2. [1] Ex P1

Pt presented for consultation of ortho treatment, advised pt come should be healthy and free of caries prior to orthodontic treatment, quoted $60 for examination,$40 for per xray, $300 for making ortho treatment, orthodontic treatment stated from $5000, actual cost will be informed after treatment plan has been made, pt gave consent to do exam, and two xrays first….

pt had argument with receptionist when making payment, claimed the cost to I should be covered by Medicare and she is a permanent residence. Left without paying after receptionist went to check.

  1. Dr Li said that the notes when entered by her promulgate the date of authorship and that they are a true representation of her notes on examination of the defendant. I accept her evidence.
  1. A fee was raised by the clinic for the defendant’s consultation with Dr Li and the fee remains unpaid. Payment for the service has not been pursued.  It is not claimed as part of the relief in the Complaint. Mr Wang testified that the recovery of the unpaid fee for service was secondary to the concern about the alleged defamatory publications and its adverse consequences to the business of the first plaintiff.

The offending material

  1. The written material about which the plaintiffs complain comprises two reviews that appeared on Google. At the date of hearing the second review remains accessible via Google. It is accessible to the world at large and in response to a simple search of the first plaintiff. The first review read as follows:

From my point of view, the only advantage here is the language-the staff can speak Chinese. I think it partially explains why there are so many 5-stars. In terms of the service itself, it is unprofessional and arrogant. The receptionist is owner’s teenage son, who was not capable in giving helpful information and misled me to come. I came here for a initial consultation. Before this clinic, all the other clinics were free of charge for the first consultation. But here, they had not informed me any price and after 20 mins (I did not take any treatment) they asked for an unexpected $100+. When I questioning it, the dentist immediately turned to insulting me without even trying to explain. Completely no sense of service. I’ve never seen a dentist like this. This visit was frustrating and it refreshed my general view on dentists.

  1. The second review reads as follows:

The only advantage here is the language-the staff can speak Chinese. I think it partially explains why there are so many 5-stars. In terms of the service itself, it is unprofessional and arrogant. The receptionist is owner’s teenage son, who was not capable in giving helpful information and misled me to come. I came here for a initial consultation. Before this clinic, all the other clinics were free of charge for the first consultation. Here, they had not informed me any price and after 20 mins (I did not take any treatment) they asked for an expected $100+. When I questioning it, the dentist immediately turned to insulting me without even trying to explain. Completely no sense of service. I’ve never seen a dentist like this. This visit was frustrating, and it refreshed my general view of dentists.

  1. The authorship of the two reviews is in question. They each bear an attribution to a person with the name Ethan Yang. The plaintiffs allege that the defendant is in fact Ethan Yang. The defendant does not admit the authorship of the reviews. She testified that she does not know anyone by the name of Ethan Yang.

The Oral Evidence

  1. Dr Li testified. She said that her consultation with the defendant followed the standard procedures she adopts in such instances and this includes discussing a three stepped process she described as:

§  An initial consultation

§  The preparation of a treatment plan

§  The application of the braces

  1. Dr Li said that in addition to the initial cost of the consultation the plaintiff had two sets of x- rays taken which the defendant agreed to. Dr Li said that the defendant did not agree to proceed with the treatment plan there and then but said that she wanted to discuss the proposal with her parents. Dr Li said she understood. Dr Li said the defendant then asked her, “where do I pay?” Dr Li directed the defendant to the front desk. Dr Li said she heard a raised voice and then her son came into her room and when he told of the issue with the defendant in relation to payment she returned with him to reception but by then the defendant had left.

  1. Dr Li said she saw the first publication three to four days after the consultation with the defendant. She said she was shocked and angry on reading it because the comments were “false and untrue”. Dr Li said she felt depressed when she read the review.

  1. Dr Li said she “knew it was her [the defendant]” who authored the reviews because she had treated only two new patients since January 2017 and the other patient had been charged $60.00.

    1. “WeChat” is a Chinese multi-purpose messaging and social media application. Dr Li said she sent a message on “We Chat” to Angela Wang, an intermediary of sorts and who had been a patient of the clinic prior to Dr Li taking over in an effort to contact the defendant and have the post removed. However, Dr Li said her efforts went unrewarded.
    1. Dr Li said she sent the defendant an email that attached a letter of demand that was penned by her son together with a specimen of a proposed Magistrates’ Court Complaint, also drafted by her son. The letter of demand threatened the commencement of legal proceedings in the event the defendant did not remove the review within a 3 day period. The review was taken down within 2 days. However, it reappeared in an edited form by way of the second review.
  1. Under cross-examination Dr Li was asked a number of questions by Mr Cooper that were directed at the quality and extent of the consultation she afforded the defendant and whether she gave the defendant information about costings for the provision of the dental services she was interested in and whether she told the defendant that the consolation would be charged or would be free. The clinical note made by Dr Li to which I have already referred and the taking of x-rays support Dr Li’s evidence of the defendant being charged for the initial consultation and of Dr Li having discussed costings with the defendant. I accept Dr Li’s evidence. I found no reason to not accept Dr Li’s evidence.
  1. Mr Cooper suggested to Dr Li that she had caused x-rays to be taken of the defendant without inquiring if she was or might be pregnant. Dr Li said she understood the plaintiff was not pregnant because of the information the defendant had completed in her personal particulars[2] at reception and that was accessible to her on screen in the consultation room.

    2. [2] Exhibit P1

  1. Mr Cooper’s cross-examination of Dr Li identified that she had not taken any technical steps to trace the ISP address for “Ethan Yang,” the name ascribed as the author of the reviews.  Dr Li said Google would not disclose any information to her. Neither had any court processes been utilised in seeking to obtain orders to aid the identity of person who posted the two reviews. Recourse to such measures are available but come at some cost. Of course here too is reinforced the limitations associated with plaintiffs endeavouring to access relief in cases that involve some technical complexity within the constraints associated with small claim procedures. The expression “robbing Peter to pay Paul” comes to mind.
  1. Dr Li had read to her by Mr Cooper in the course of his cross-examination of her a series of other reviews that had been posted and that were critical of the clinic[3]. Other than that they were collated and bore the type of having been “Captured” on 10 and July and 4 August 2017 and 5 March 2018 they have no specific dates of publication. Dr Li said that some of the reviews related to the operation of the dental clinic prior to 23 December 2016 and about others, Dr Li said she said she was able to “negotiate” their removal because the postings had not been made anonymously. Some of the reviews did have a similarity in the language used to the offending material published under the name of Ethan Yang.

    2. [3] Exhibit D1

  1. Mr Wang testified. He said he is studying law. He said that he was employed as the Practice Manager. He recounted his involvement with the defendant. He said that after the defendant came out from the consulting room “she came to pay the bill”. He said he told her the amount due was $140 and asked her how she wanted to settle the account. The defendant offered to pay with her Medicare card and said that she was a permanent resident and Medicare should cover it. Mr Wang said that he explained that that Medicare would not cover the dental work. The dental work the defendant was interested in was a cosmetic form of orthodontic product called “Invisiline.” Mr Wang did not say that he made any effort to see if the consultation or the x-rays would be processed through Medicare but that he understood it would not qualify. He said the defendant was unhappy. He said he then walked from reception to the consulting room to speak to his mother and to tell her what was transpiring with the defendant at reception. He said his mother told him that she had explained the costs to the defendant but Mr Wang urged her to come out and explain it again to the defendant. His mother agreed but he said that when they came to reception the defendant had gone.
  1. Mr Wang said that whenever a bad review is posted on line it has a significant and immediate deleterious effect on the business of the first plaintiff. He said that “all of a sudden the phone stopped ringing”. He said as a result of this sudden downturn he checked out the reviews for the clinic on Google and read the first review and posted by Ethan Yang. He said he then came across the Google notification email alert that had been sent to an email address utilised by the previous owner of the practice but was not an account that Mr Wang interrogated on a daily basis. Mr Wang said he saw the review on Google on about 2 or 3 March 2017 and before reading the Google email alert. The Google alert described the clinic as having received a one star rating.
  1. Mr Wang said he and his mother concluded that the author of the publications is the defendant.  They formed this opinion following some detective work and interrogation of their records of patients. Mr Wang said the review related to orthodontic treatment (it didn’t) and to having been charged more than $100 and consequently he was very certain the post had been authored by the defendant. Dr Li’s evidence was that she had only had 2 patients with orthodontic matters and that because the other patient had not been charged for x-rays the only possibility was that the author was the defendant. He said his mother initiated contact through an intermediary, Alice Wang who was active on “WeChat” and through whom it seems the defendant obtained the details of the clinic in the first place.
  1. As a result of their inquiries and their belief as to authorship by the defendant they wrote a letter of demand to her (authored by Mr Wang) and this was accompanied with a proposed Magistrates’ Court Form 5A Complaint (drafted by Mr Wang). The letter of demand among other matters included setting out the presumed defamatory imputations and stated:

“Enclosed is a draft Statement of Claim in the Form 5A format of the General Procedure Claim which will be lodged at the Magistrates Court of Victoria and served upon you unless

a)You shall immediately remove all defamatory content regarding Smile in the City in any shape or form, specifically on Google My Business review.

b)You will write a guarantee not spread defamatory and false content regarding the Plaintiff….”

  1. Within 3 days the post was removed.
  1. The defendant testified that she was contacted by Alice Wang who asked if the review had been posted by her which she denied but nonetheless she said that the review seemed very like her own experience.
  1. The defendant does not admit she removed the posting of the first review any more than she admits publishing either reviews in the first place.
  1. The defendant said all other first dental consultations she had experienced in the pasta were free. She disputed being advised by Dr Li of the information contained in Dr Li’s clinical note.
  1. The defendant admits that she left the clinic without paying any fee for service.
  1. The defendant’s solicitor Mr Cooper pointed out to Mr Wang that the email alert sent by Google at 1:54 pm on 27 February 2017 included a notification that: “this review has not been approved yet and may be removed from your page. Learn more about review policies.” Mr Cooper did not suggest to Mr Wang in cross-examination, and neither did he submit to the Court in address, that the Google email meant that the review was awaiting “publication” and that had Mr Wang acted with dispatch Google may not have permitted it to appear via its search engine in answer to the name of the clinic. No submission by way of a failure to mitigate was developed by the defendant.
  1. The date of the publication of the second review on Google is presumed, the date being logically enough discerned by a simple countback of the number of days it had remained accessible via a Google search when read by Mr Wang.
  1. Mr Newland of counsel produced a sheet combing the two reviews highlighting the matters absent in the second review from the first in order to show that the likely author was the one and the same because the matters missing from the second review included references about which the plaintiffs had made particular complaint in the letter of demand sent to the defendant.

Were the reviews written by the defendant?

  1. I am satisfied on the balance of probabilities that the two reviews were written by the defendant.  I am satisfied the defendant is Ethan Yang. The facts relied on by the plaintiffs point irresistibly to this finding. The defendant’s denial is not by comparison plausible.

Were the reviews published?

  1. This an important issue. Mr Newland submitted in the negative that it had not been pleaded by the defendant by way of the Amended Defence that there had not been a “publication” of the reviews. Be that as it may, it is a requirement that a plaintiff prove that offending material has been published in the legal sense and it is not to the point that an essential element to make good an action in defamation has not been specifically relied on by a defendant.
  1. For some time it has been acknowledged that Internet publications differ from newspaper, radio, television and other forms of established media platforms in relation to publication. There is at law no presumption that material published on the Internet has been ‘published’. See:  Jameel v Dow Jones & Co [2007] QB 946 at [15]-[18]. It is a requirement, theoretically at least, that the burden of proof on a plaintiff can be discharged by a pleading that one person downloaded the matter complained of. It has been held that the identification of a plaintiff by a person who downloaded the offending matter on a particular date is an essential element in a defamation proceeding: Lazarus v Deutsche Lufthansa AG (1985) I NSWLR 188 at 192. 
  1. In Dow Jones & Co Inc v Gutnick (2002) 201 CLR 575, 600-1 [25]-[28] the High Court said:

“Publication requires a bilateral communication- defamatory material is produced by one party and that material is digested or comprehended by a third party.

  1. The legal principles governing ‘publication’ as an essential element of proof for a cause of action for defamation, and in particular, the application of those principles to cases which concern words or other defamatory material published on the internet is important. The requirement of the existence of proof of bi-lateral communication as recognised in Gutnick has since been applied in various cases. It is understandable that stringency of proof of publication is adhered to because of course damage to reputation is the gist of the tort of defamation. As was said in Gutnick[4]:

    Harm to reputation is done when a defamatory publication is comprehended by the reader, the listener or the observer. Until then, no harm is done by it.

    1. Here the plaintiff adduced no direct testimony that the offending material has been downloaded. Dr Li said she had been approached by people who had read the review. They were not identified by name or place or whether these people were new or existing patients.  I note nonetheless that the reviews were not uploaded to the dental clinic’s website which I was told existed, but instead were uploaded to a review section facilitated by Google which operates as a search engine responsive to the input of words or phrases in a web enabled browser and provides hyperlinks to entities that maintain websites or otherwise provides other publically available information of details of the place, person or thing entered into its search engine.  A Google search provides by way of a response largely unregulated content about an almost infinite number of persons and entities and service providers worldwide. Information may be revealed as a result of a generalised or tailored search by a person anywhere in the world with access to a device connected to the internet.
    1. Publication in the legal sense occurs if and when somebody uses a browser or other web enabled device to access a site and thereby sees, and comprehends, the information which has been uploaded. Because access by a third party to the defamatory material posted on a site must be established before it can be said that the material has been published in the legal sense, the High Court has held that, in the case of publication via the Internet, the tort of defamation is committed in the place in which the computer or device which is used to retrieve the information from the server is located, rather than the place at which the server is located.

[4] Ibid [26]-[27]

  1. The concept of legal publication on the Internet and the peculiarities of the requirement for proof in such instances has been addressed in many cases. The decision of the Western Australia Court of Appeal in Sims v Jooste [No 2] [2016] WASCA 83 is such an example. In that case the Court dismissed an appeal in which the appellant’s claim for defamation had been summarily determined at first instance on the grounds that first, the publication of the allegedly defamatory material to a person other than the appellant had not been established and, second, that the respondent had in any event established that the imputations arising from the words complained of and posted on an internet site were true. The appeal proceeded to be determined on the alleged error of the trial judge on the first basis by reason that if that ground was unsuccessful, the other grounds of appeal would also fail as they traversed questions of fact and law but were very much unformed. The Court of Appeal spoke of the requirements to satisfy ‘publication’. It said at [8]-[9][5]:

The bilateral nature of ‘publication’, when that word is used to connote the essential element of a cause of action in defamation, can give rise to difficulties of expression, as the natural and ordinary non-legal meaning of the word ‘publishing’ and its cognate words includes the unilateral act of the publisher in publishing the words, irrespective of where whether those words are ever comprehended by third party. It was clear during argument that Mr Sims was at a significant disadvantage because he was construing the word ‘publication’ in its non-legal sense-that is, to connote the publisher’s act of publication irrespective of whether the words published were ever seen or comprehended by any third party.

Because of the potential ambiguity of language commonly used in this area, as the High Court has pointed out, in legal discourse it is desirable to distinguish between the publisher’s act of publication and the fact of publication to a third party. In order to succeed in a claim for defamation, the plaintiff must prove ‘publication’ in both senses-that is that the act of the defendant has caused the defamatory material to be comprehended by somebody other than the plaintiff, thereby causing damage to the plaintiff’s reputation.

[5] Citations omitted

  1. I have already made reference to Jameel in which the Court of Appeal determined that no real or substantial publication had occurred. Very shortly after Jameel,  Sedley LJ In Steinberg v Pritchard Englefield (A Firm) & Cohn [2005] EWCA Civ 288 had this to say[6]:

The publication on a web hyperlink of the alleged defamatory material could be shown to have reached nobody to whom it meant anything, apart from agents of the claimant himself. Although no such ground of appeal is advanced in the present case, the court itself will be alert to ensure that its process is not being misused.

I have therefore looked again at the factual basis of the claim upon which summary judgement was given. It was a long way from the situation found in Jameel. The copy letter from Mr Steinberg to Prichard Englefield, suggesting in no uncertain terms that the latter artificially and unprofessionally inflated their solicitor and own client costs, was accessible to anyone, including in particular a potential client, who fed the claimant’s name into a standard search engine. It was also readable by anyone who accepted the defendant’s own professional website. The inference of substantial publication was, it seems to me, irresistible[7].

[6] Longmore and Ward LJ agreeing

[7]Underlining added

  1. In Victoria in McDonald v Dods [2017] VSCA 129 the Court of Appeal upheld the ruling of the trial judge of the so-called “Google inference”. In his reasons the trial judge[8] had said that:

“consistently with principles governing proof of publication by inference generally, it is open to a plaintiff to prove publication to at least one other person via an Internet website, in the scope of any such publication, by inference from other evidence.”

[8] Bell J

  1. I am satisfied there has been publication. 

Have the plaintiff’s been identified by the publication

  1. I am satisfied on the balance of probabilities that the Dental Clinic operated by the first plaintiff, Dr Li as the dentist and provider of dental services to the defendant and Mr Wang, Office Manager, were identified by the reviews by anyone who undertook a rudimentary search of Google.  I take into account in my reasoning the statement in Trkulja v Yahoo! Inc. LLC [2012] VSC 88 in which Kaye JA said he was [36]:

“entitled to take into account, as a matter of judicial notice, that the use of the Internet, to ascertain information about particular people, is now commonplace. Indeed those searches event the everyday lexicon of the community, and the process of undertaking such a search, is commonly referred to as “to google”.

Do the reviews contain defamatory meaning?

  1. Identification of a defamatory meaning is a two stage process. First what is meant by the publication and secondly whether the imputations arising from the publication are defamatory. A publication is defamatory of a person if its contains imputations that:

(a)have a tendency to lower the plaintiff’s estimation in the eyes of right-thinking members of society generally;

(b)were calculated to injure the reputation of the plaintiff by exposing him to hatred contempt or ridicule;

(c)have a capacity and tend to put the plaintiff in the position of being shunned and avoided.

  1. The first named plaintiff is a corporation. One of the significant changes made by the uniform defamation laws introduced in Australia concerned the right of companies to sue for defamation. Previously (with the exception of New South Wales), a company (no matter how big or small) could sue for defamation and recover compensation for damage to its trading reputation or goodwill. As a general rule a corporations cannot sue in defamation, unless they can bring themselves within the definition of an "excluded corporation". Pursuant to s 9 of the Defamation Act (2005) (Vic), a corporation is an excluded corporation if relevantly it employs few than 10 persons and is not related to another corporation. The first plaintiff is an “excluded corporation”.
  1. The general test for what is defamatory and that applies to the reputation of business people and professionals is whether the published material is likely to lead an ordinary reasonable person to think less of a person. There is no separate tort of business defamation and in Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16, the High Court held that the same test for what is defamatory generally also applies to defamation in relation to a person’s trade or business, namely whether the published matter is likely to lead an ordinary reasonable person to think less of the person.
  1. Defamatory Imputations can arise from the natural and ordinary meaning of words or there can be inferences such as false or popular innuendos. The plaintiffs proceed on the basis of defamatory imputations arising from the ordinary meaning of the words. Therefore, in order for the plaintiffs to succeed they need to prove on the balance of probabilities that the words published in one or both reviews would make others think less of them, shun them or avoid them.
  1. The plaintiff pleads the following imputations from the first publication.

(i)      The only reason one would attend Smile in the City was the convenience of having a dentist who speaks Chinese, and not for dental care;

(ii)     The many positive five-star reviews of Smile in the City on Google Local Business were written by international students, and the only reason they wrote positive reviews is because the dentist spoke Chinese and not because they received appropriate dental care;

(iii)    The dental practice at Smile in the City is carried out incompetently;

(iv)    Mr Wang misleads customer;

(v)     Smile in the City charges patients even when it does not perform any treatment;

(vi)    Smile in the City conceals the cost of its treatments until it is too late for the patient to elect not to have them;

(vii)   Dr. Li insults her patients; and

(viii)    Smile in the City has the philosophy of “give me the money or get out” and only cares about money.

  1. It is established law that in deciding on the meaning or imputation of a particular statement the court has to ask what fair-minded, ordinary, reasonable persons in the general community would understand the published words to mean. The ordinary reasonable reader is a person of fair, average intelligence who approaches the interpretation of the publication in a fair and objective manner. The person is neither perverse, suspicious of mind nor avid for scandal. The ordinary reasonable reader does not live in an ivory tower. He or she can, and does, read between the lines, in the light of his general knowledge and experience of worldly affairs. An ordinary reasonable reader is a lay person and not a lawyer and his or her capacity for implication is greater than that of a lawyer: Lewis v Daily Telegraph Ltd [1964] AC 234, 258; John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 [23] – [26]; Farquhar v Bottom [1980] 2 NSWLR 380, [21] – [22].
  1. The ordinary reasonable reader takes into account the forum in which the statements were published. The mode or manner of publication is a material fact in determining what imputation is conveyed. For example, a reader of a book would read it with more care than he or she would peruse a newspaper: John Fairfax v Rivkin [26]; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, 165; Farquhar v Bottom [24].
  1. The reasonable reader considers the publication as a whole and considers the context as well as the words alleged to carry a certain imputation or be defamatory: Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632, 638; Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 [17]. A reasonable reader attempts to strike a balance between the most extreme meaning that the words could have and the most innocent meaning: Lewis v Daily Telegraph Ltd (259 - 260); John Fairfax Publications Pty Ltd v Rivkin [26].
  1. I am satisfied the reviews carry the imputation pleaded by the plaintiffs at sub-paragraphs (i). It is for the court to decide what meaning or imputation an ordinary reasonable reader would have attached to the statements. The court is not limited by the meaning which either the plaintiff or the defendant seeks to place upon the words: Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 [55], [58]; The Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 [314].
  1. I am satisfied that the words do convey either by ordinary language or imputation that the only reason for attending the clinic is that Chinese is spoken. I am satisfied that the reviews contain by their ordinary words the imputation ascribed by the plaintiffs at sub-paragraph (ii). The use of the word “only” as being causative by reason of the spoken Chinese language used by international students and not because of appropriate dental care is defamatory of the standard of dental care that is available at the clinic and provided by Dr Li. I am satisfied of the defamatory imputations pleaded and relied on by the plaintiff’s at sub-paragraphs (iii) to (viii). The ordinary meaning of the words used are defamatory. The imputation is that Mr Wang is complicit in the operation of a dental clinic the primary purpose of which is to extract money from patients without either the provision of competent dental services or the provision of any service at all and that patients are inveigled into the clinic and only hit with a charge when they have been denied the opportunity to back out. I am satisfied the statements are false. The statements also impute that if a patient has the wherewithal to raise any issue pertaining to the services they will met with insults by Dr Li.
  1. I accept that each of the imputations that were admitted or that I have found to have been proven was defamatory of Dr Li in that it would have lowered her reputation as a dentist in the eyes of an ordinary reasonable reader. However, I am not satisfied that these imputations would not have caused any reasonable reader to feel hatred, ridicule or contempt towards Dr Li but each of the imputations was likely to disparage the reputation of Dr Li in her professional capacity. I will say more about Mr Wang and the first plaintiff later.

Defences

  1. I note that defendant pleaded that if contrary to her denials of publications she has the following defences available to her under the Act[9].

Justification

[9] Mr Cooper submitted that the statutory defences operate in addition to defences available at common law. These were not articulated in the course of final address. The defences provided under the Act are, in effect, in addition to the common law defences which generally continue to be available where their continued existence is not inconsistent with the Act (s 24(1)). The principal statutory defences are justification contextual truth, absolute privilege qualified privilege and honest opinion.  There are also defences of innocent dissemination and triviality. 

  1. Has the defendant established that any or all of the imputations that were conveyed by the defamatory publications complained of were true in substance and in fact? Truth is an absolute defence to a defamatory statement both at common law and under the statute. The defence of truth requires that a defendant must prove that the defamatory imputations or meanings are true whereas the plaintiffs who claim to be defamed have no burden to prove they are false. While the defence of truth does not require the defendant to prove the truth of every detail of the matter published, the defendant would needed to have proved the truth of the sting of the meanings conveyed by the publication as opposed to just proving part of the meanings conveyed are true. She would need to have proved that the whole is substantially true. Trivial matters can of course be ignored.
  1. In regard to each defamatory imputation or meaning that I have found was conveyed by the publications has the defendant proved the truth of its sting – that is, that the whole of it (the defamatory meaning) is substantially true. The answer must be resoundingly no.
  1. It is almost axiomatic that the defence of truth must fail in this proceeding. The defence of truth of necessity admits the publications were defamatory but however that they are true. The only statement that is true is that the third plaintiff is the second plaintiff’s son and practice manager.

Statutory defence of truth

  1. The statutory defence of justification one that is to be addressed in slightly different terms from the defence of truth at common law in order to reflect the language used by Parliament however, the law is the same as for the common law defence of truth and the answer will of necessity be the same. Has the defendant established that the imputations conveyed by the matters complained of were substantially true?
  2. Section 25 of the Defamation Act provides that it is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiffs complains are substantially true. The Defamation Act does not deal with the initial questions regarding how imputations are assessed and when they are defamatory. Section 6(1) of the Defamation Act states that it relates to the tort of defamation at general law, which is defined as including the common law. Section 6(2) also provides that it does not operated as to affect the operation of the general law except to the extent that the Act provides otherwise. The initial questions are therefore still governed by the common law.
  1. Section 5 of the Defamation Act defines the words 'substantially true' as meaning 'true in substance or not materially different from the truth'. Accordingly, I need to decide whether the imputations that have been proven by the plaintiff were true in substance or not materially different from the truth.
  2. Each defamatory imputation must be examined in order for the statutory defence to be made out in respect of each imputation.  Did the defendant satisfy me that the imputation or defamatory meaning is substantially true? That is, that the whole of the imputation is substantially true. No it did not. No evidence was led by the defendant.
  1. Because I am not satisfied of the defence of justification conveyed by imputations in sub-paragraphs (iii) to (viii), it necessary to consider the defendant’s additional defences.

Qualified Privilege

  1. The defendant has relied on the statutory defence of Qualified Privilege pursuant to s 30 of the Act in the event that I concluded that the defendant published the reviews and that they were defamatory.
  1. At paragraph 8A of the Notice of Amended Defence it is pleaded thus:

Further or alternatively, if the defendant is found to have published or have been in any way involved in the Second publication, which is denied, and the Second publication is found to be defamatory of the Plaintiff, which is denied, then:

(f) the Publication was published persons who had an interest or apparent interest in having information on the subject matter of the publication (subject matter); and

(g) was published exclusively on a platform created by the plaintiff’s for the purpose of inviting review of the professional performance and in no other place; and

(h) the publisher of the publication had a reasonable belief that only those persons interested in seeking information on the professional performance of the plaintiffs would make the necessary effort to read the information; and

(i) the publication was published in the course of giving to them information on the subject; and

(j) the conduct of the defendant was reasonable in the circumstances, and accordingly, the defendant is entitled to the defence of Qualified Privilege pursuant to section 30 of the Defamation Act 2005 (Vic) the equivalent provision in the other States and Territories of Australia

PARTICULARS

(I)     The publisher published only in the Review Section of a Google listing created by the plaintiffs in the space marked “Review.”

(II)  The publisher limited comments to a very narrow set of circumstances.

(III)       The publisher took down the publication on 6 March 2017.

  1. At paragraph 8B of the Notice of Amended Defence it is pleaded thus:

Further or alternatively, if the defendant is found to have published or have been in any way involved in the Second publication, which is denied, and the Second publication is found to be defamatory of the Plaintiff, which is denied, then:

(f) the Publication was published persons who had an interest or apparent interest in having information on the subject matter of the publication (subject matter); and

(g) was published exclusively on a platform created by the plaintiff’s for the purpose of inviting review of the professional performance and in no other place; and

(h) the publisher of the Second publication had a reasonable belief that only those persons interested in seeking information on the professional performance of the plaintiffs would make the necessary effort to read the information; and

(i) the Second publication was published in the course of giving to them information on the subject; and

(j) the conduct of the defendant was reasonable in the circumstances, and accordingly, the defendant is entitled to the defence of Qualified Privilege pursuant to section 30 of the Defamation Act 2005 (Vic) the equivalent provision in the other States and Territories of Australia

PARTICULARS

(iv)The publisher published only in the Review Section of a Google listing created by the plaintiffs in the space marked “Review”

(v) The publisher limited comments to a very narrow set of circumstances.

  1. Qualified privilege arises where in certain situations statements made by a person are covered by privilege. Qualified privilege may for instance exist where there is a reciprocal duty to publish and an interest in receiving the information the subject of the publication. An example of such an occasion might be when an employee makes a statement about the conduct or performance of a fellow employee to his superior as part of a work investigation. A statement provided in such circumstances despite being defamatory will be defensible so long as not actuated by malice.
  1. I am satisfied that the defence of qualified privilege does not apply to these proceedings because there is no reciprocal duty at play in the making of the statements by way of the reviews published by the defendant.  There are as well notable occasions of qualified privilege such as the fair and accurate report of proceedings of public concern. There in nothing analogous in these proceedings that give rise to such a qualified privilege.
  1. The defendant carries the burden of proving the defence of qualified privilege on the balance of probabilities under s 30 of the Act.  Section 30 is expressed as follows:

Defence of qualified privilege for provision of certain information

(1)There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that—

(a)the recipient has an interest or apparent interest in having information on some subject; and

(b)the matter is published to the recipient in the course of giving to the recipient information on that subject; and

(c)the conduct of the defendant in publishing that matter is reasonable in the circumstances.

(2)For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest.

(3)In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account—

(a)the extent to which the matter published is of public interest; and

(b)the extent to which the matter published relates to the performance of the public functions or activities of the person; and

(c)the seriousness of any defamatory imputation carried by the matter published; and

(d)the extent to which the matter published distinguishes between suspicions, allegations and proven facts; and

(e)whether it was in the public interest in the circumstances for the matter published to be published expeditiously; and

(f)the nature of the business environment in which the defendant operates; and

(g)the sources of the information in the matter published and the integrity of those sources; and

(h)whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person; and

(i)any other steps taken to verify the information in the matter published; and

(j)any other circumstances that the court considers relevant.

(4)For the avoidance of doubt, a defence of qualified privilege under subsection (1) is defeated if the plaintiff proves that the publication of the defamatory matter was actuated by malice.

(5)       However, a defence of qualified privilege under subsection (1) is not defeated merely because the defamatory matter was published for reward

  1. I am not satisfied that the defendant discharged her burden of proof to establish the defence of qualified privilege.  There is an absence of any evidence that the reviews were published to persons who had an interest or apparent interest in having information on the subject matter of the publication. The fact of the matter is that in almost all cases someone who is conducting a search on an open search platform such as Google and whether looking for a specific business or service or generally will be exposed to the review section. I do not accept on behalf of the defendant that the two reviews were published to persons who had an interest or apparent interest in having information on the subject matter of the publication. Furthermore, the reviews were not published exclusively on a platform created by the plaintiffs themselves for the purpose of inviting review of their professional performance but rather on Google.
  1. I am also satisfied that the defendant did not have a reasonable belief that only those persons interested in seeking information on the professional performance of the plaintiffs would make the necessary effort to read the information.
  1. The defence of qualified privilege will in any event be defeated if the defendant is actuated by malice. In this case the plaintiffs submitted that in the event the defence of qualified privilege is established by the defendant then it is defeated by malice because, having taken down the first review the defendant made a second publication of material and that the second publication exhibited an intention to defeat the objections raised by the plaintiff by their letter of demand. Because the plaintiffs allege malice, the plaintiffs must prove on the balance of probabilities that the defendant published the material complained of with a foreign or ulterior motive to the privileged occasion. That is, if the plaintiffs establish that the defendant published the material complained of, not pursuant to some common interest between the defendant and the persons to whom it was published, but rather for the purpose of causing people not to deal with the plaintiff or hurting the plaintiff in some other way, then the plaintiff will have established malice.  However, malice is not established by merely showing that the defendant did not like the plaintiffs. Malice requires subjective impropriety on the part of the defendant in the publication of the matter complained of. It is not to be equated with carelessness, impulsiveness, irrationality or prejudice. Additionally, malice in the mind of the defendant is irrelevant unless it is proved to be either the sole or dominant motive for publishing the defamatory matter. While an inference of malice may be drawn from the defamatory words themselves it is prudent to be cautious to find evidence of malice in the terms of the defamatory material published on a privileged occasion because to do so would restrict considerably if not defeat the protection which the law confers on privileged communications.  It has not been necessary for me to determine the question but had it been otherwise on balance I would not have been satisfied of the existence of malice as opposed to ignorance by the defendant as to the limits to privileged publications.  I would not have been satisfied.

Contextual truth

  1. Section 26 of the Defamation Act provides a defence of contextual truth and It is expressed as follows:

It is a defence to the publication of defamatory matter if the defendant proves that:

(a)the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations ("contextual imputations") that are substantially true, and

(b)the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

  1. The defence of contextual truth enables the a Court as a trier of fact to come to a commonsense result if the matter complained of conveyed a number of defamatory meanings only one or some of which becomes or become the subject of complaint by the plaintiff in the proceedings and where the other imputations are of such significance that those about which the plaintiff wishes to complain do not further harm his or her reputation, then because of the substantial truth of the contextual imputations, the plaintiffs’ case will fail.
  1. I can deal perfunctorily with the defence of contextual truth. It depends on the substantial truth of statements contained in a series of screenshots of other reviews posted by persons some of whom have given names and others who have used a nom de plume. The substance of the defence is that the Google review publications the subject of the posts by the defendant in this proceeding can be no worse than these other reviews. I reject the contention. The defence of contextual truth has its complexities but under the Defamation Act when laid bare in this proceeding it means that the defendant claims that words used in the publication do not mean what they convey by ordinary language nor do they carry the imputations alleged but they mean some other thing which is in fact worse than the complained of publications and that that happen to be true. Thu explained and bearing in mind the lack of provenance of proof of the contents of the other reviews, the defence fails for these reasons alone.

Damages

  1. Some damage to the plaintiffs’ reputations is presumed by law. The second and third plaintiffs gave evidence of the injury to their feelings. There are some well-established principles relevant to the assessment of general damages in a proceeding such as this. 

(a)The law places a high value upon the reputation of a professional, particularly upon the reputation of those whose work and life depend on their honesty, integrity and judgment: Crampton v Nugawela (1996) 41 NSWLR 176 195.

(b)The harm caused to a plaintiff often lies more in her or his own feelings, what she or he thinks other people are thinking of her or him, than in any actual change made manifest in their attitude towards her or him: Cassell & Co Ltd v Broome [1972] AC 1027, 1125.

(c)The 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. The assessment of general damages is necessarily imprecise and, accordingly, damages are ‘at large’ in the sense that they cannot be arrived at through calculation or the application of a formula.

(d)The gravity of the libel and the social standing of the parties are relevant to assessing the quantum of damages necessary to vindicate the plaintiff. The award must be sufficient to convince a bystander of the baselessness of the charge. At common law, it was legitimate to take into account not only what the plaintiff should receive but also what the defendant ought to pay.

(e)Section 34 of the Defamation Act requires that the court in determining the amount of damages to be awarded in any defamation proceedings is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.

(f)The extent of publication and the seriousness of the defamatory sting are pertinent considerations.

(g)In determining the damage done to a plaintiff’s reputation, the court should also take into account the ‘grapevine’ effect arising from the publication of the defamatory material. This phenomenon recognises that by the ordinary function of human nature, the dissemination of defamatory material is rarely confined to those to whom the matter is immediately published. It is precisely because the ‘real’ damage cannot be ascertained and established that damages are at large. The award of damages must be sufficient to ensure that, the damage having spread along the ‘grapevine’, and being apt to emerge ‘from its lurking place at some future date’, a bystander will be convinced ‘of the baselessness of the charge’.

(h)Injury 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.

(i)Despite the common law drawing a distinction between general and special damages, the uniform national legislation drew a line between non-economic loss and economic loss in s 35 of the Defamation Act.

  1. Drawing the strands of these principles together I have applied them against a backdrop in which the ordinary reasonable reader of this type of review posted on the web site understands that the review involves one person stating their opinion about a particular service he or she received and that that person may wish to vent their anger, frustration or irritation about their experience. The review may therefore be exaggerated. The ordinary reasonable reader who uses a review on a web site would also be aware that one person may regard a particular service provider as being outstanding, whereas another person may have had a negative experience and would describe the service as poor. In other words, the ordinary reasonable reader would read reviews about services on a website with appropriate caution and a bit of scepticism. The ordinary reasonable reader would also realise that what one person might regard as 'overcharging' might be a reasonable fee to another to whom a meticulous service or a reliable service provider was important. However here I am satisfied the reviews were false in their material particulars.
  1. The forum on which the publication was made is also relevant to the award of damages, even if the defendant was not entitled to rely on the defence of justification. It would have been apparent to the ordinary reasonable reader that the defamatory statements were made by a person who was basing them on her personal experience of Dr Li’s services and fees charged together with the experience encountered in the clinic. It is a fact of modern life that social media has led to all service providers, be they hotels, restaurants, insurance companies, professionals or other suppliers of services, being exposed to people reviewing, and often complaining about, the services received. This is not necessarily a bad thing. It does bring with it, of course, the risk that reviewers post defamatory comments which have no basis in truth and are also not opinions based on material which is substantially true. That should not be encouraged. This is such an instance.
  1. I observe that the plaintiffs made no claim for aggravated damages as part of the general damages. Such an award may in a given case be 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. An award of aggravated damages may be made if a defendant has acted in a manner which demonstrates a lack of bona fides or engaged in conduct which is otherwise improper or unjustifiable. Conduct with those characteristics will be such as to increase the harm which the defamation has caused or may be supposed to have caused to a plaintiff.  A damages award is not usually broken down into components for pure compensatory damages and aggravated compensatory damages.
  1. The plaintiffs’ claim for damages and associated relief overall left a number of issues unresolved.  I inquired of the plaintiff’s counsel if it was his submission that I had the power to order the defendant to have the Google review removed. The submission was that if I made an order compelling the defendant to do so that I could presume it would be removed. That is hardly sufficient. The terms of any service of use of Google was not identified in any manner at all and I am not prepared to assume that the defendant will necessarily be able to compel the removal of the review and I am not prepared to leave the defendant at risk of failing to comply with an order of the Court if she is not capable of compliance with the order of the Court because of matters outside her power to direct. I am however persuaded to make an order that the defendant take steps to notify Google within 7 days of the publication of these reasons of the making of this Court order and directing it to remove the review at her request as the publisher of the review.
  1. Reputational damages were also sought by the first plaintiff as part of the suite of relief. Mr Wang produced two documents created by him in order to demonstrate a quantifiable loss to the first plaintiff. The documents on their face identify a decline in new customers but the numbers need to be read with some caution. In the period from 1 January 207 (that is very soon after Dr Li took over the practice) the number of new patients to make appointments rose to 129 from 95 in the preceding month. It however declined the following month to 114 and then rose to 119 and then in the month of April dropped to 81 and in June 73 and July 41 and rose to 64 in September. Mr Wang’s document also broke down the figures for patients referred by Google. He said that patients are asked how they came to be referred to the clinic. His document recorded that in the 6 month period from 1 September 2016 to 1 March 2017 the number of such patients was 79 and in the 6 month period from 1 March 2017 to 1 September 2017 was 22.
  1. Mr Wang also produced a second document that purported to represent the web traffic searches conducted of the dental clinic by persons using Google over the period of the preceding quarter, month and week and compiled by him at the date of his testimony. The document reveals over each of the three time frames captured by the document produced by Mr Wang that more people used Google to locate the plaintiff searching for a “category product or type of service” than those who searched directly for the business name itself.
  1. By use of the figures produced by Mr Wang he sought to extrapolate the estimated losses resulting from the reviews published by the defendant. The method was rudimentary and endeavoured to calculate losses against the clinic fee structure. There are problems in me proceeding on such assumptions of loss to the revenue of the clinic due to the defamatory publications. They include, first, the figures are not expert in the sense that Mr Wang’s skill in compiling the data and deriving conclusions from it was not established.  Mr Wang testified that he was the Office Manager but that does not necessarily mean he possesses the requisite information upon which to derive revenue and operating costs and forecasts or losses to the clinic. Second, it is not possible on the analysis provided by Mr Wang to determine the extent to which I can sensibly attribute a decline in new customers to the reviews given the existence of the other reviews produced by the defendant and regardless of their veracity and also of course the dissipation of the two contentious reviews – the first having been taken down shortly after its publication and the second, despite remaining accessible, is no longer returnable among the top three reviews in response to a Google search of the Clinic.  I was told by counsel for the plaintiff that as time passes the visual prominence that a review has diminishes. I was also told that initially the first three most current reviews are displayed in response to a search but in time a review falls away so that it will not be apparent to a search and instead will only be called up upon a search more broadly for all reviews conducted by whomsoever is interrogating the webpage. Therefore the impact of the publications in all probability is diminished.
  1. In my judgement taking account of all the evidence and bearing in mind that the first plaintiff has been defamed and that it is entitled to an award that recognises this fact and that I am satisfied in all probability that the reputation of the clinic for the provision of dental services has been diminished to some yet indeterminate extent and that this must be recognised by an award of damages. I think an amount of that I would regard as nominal is warranted and I fix $500.00 as fair.
  1. In regard to the claim for made by the second and third defendants the arguments are grounded in the effects the reviews are said to have had on each of them in terms of hurt and humiliation. No submission was made on behalf of the plaintiffs of the method for the assessment or award of damages for this head of loss. Mr Wang’s evidence was that he regarded the reference in the reviews to Chinese students and that the Chinese language is spoken at the clinic as racially marginalising the clinic and those who work at it.  Of course the posts were made by a Chinese person. Nonetheless, Mr Wang testified in a heartfelt manner of the effect on him of reading the reviews and how he felt diminished in terms of his self-worth because of his association with the Clinic which value was expressed by the publications as limited to no more than the ability to speak Chinese.  As the owner’s teenage son Mr Wang was the object of particular identification in the reviews and said to be someone who misled the defendant and was of no use in terms of assistance provided to her as a patient to the clinic. I have regard to the fact that the second defendant was not named but as I have already said, the all-pervasiveness of the Internet makes anonymity to some considerable degree of probability, fictional.  I think he is entitled to an amount of $ 1,000 by way of general damages by way of vindication.
  1. As to Dr Li’s claim for damages the claim for general damages other than expressing hurt and anger at what she regarded as lies that had been published, she testified little else in this respect. However, as a professional of considerable experience and being the face of the business the opprobrium visited on the dental practice by the two reviews reflected significantly and adversely on her professionalism and skill. No effort was made by the defendant to publish an accurate critique of the second plaintiff’s dental skills and of course I have also been satisfied that the allegations made by the defendant about the service she was provided by Dr Li was false. I have taken into account that the second and third plaintiffs are in a real sense vindicated by my reasons for decision and the findings and that statements published by the defendant were false and defamatory. I am satisfied that the second plaintiff is entitled to an amount of general damages by way of vindicating her reputation and that an amount of $2,000 would also represent a fair amount.
  1. The plaintiffs also sought a permanent injunction “restraining the defendant from publishing any further material regarding the plaintiffs”.  I do not intend to grant this form of relief. I am not satisfied that the plaintiffs have established a real risk that the defendant in the face of a finding she having been the publisher of defamatory works that she would do so again. Furthermore, I was not addressed by counsel for the plaintiff about the terms of such an order and on the terms expressed in the prayer for relief, an order would not only restrain defamatory material from being published by the defendant but as well the publishing of criticism that might be harsh but nonetheless legitimate as well as laudatory comment.
  1. For the reasons expressed above I make the following orders and direct as follows:

1.Within 14 days of the date of publication of these reasons the defendant Min Luo take all reasonable steps to notify Google that by reason of Court Order in  Magistrates’ Court of Victoria proceeding H10948835 she has been found to have made publication of reviews of the plaintiff dental clinic trading as Smile in the City on Google under the name Ethan Yang and that she seeks to have any review published under the name Ethan Yang concerning Smile in the City removed

2.That the defendant pay the first plaintiff general damages in the amount of $500.00

3.That the defendant pay the second plaintiff general damages in the amount of $ 2,000.00

4.That the defendant pay the third plaintiff general damages in the amount of $1,000.00

  1. By reason that the Arbitration commenced and was referred to hearing pursuant to s 102 (4) (b) of the MC Act, the Court may make such order as to the costs of the arbitration as it thinks fit.
  1. I will now hear the parties on the question of costs. The arguments seem to me to be whether costs should be limited to the costs of an arbitration or varied in some manner whether to allow scale or perhaps some adjustment to accommodate the matter consequential on my decision to refer the matter to hearing.

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