Zuchowski v Howe; Howe v Cavendish Properties and Zuchowski
[2022] VCC 1604
•30 September 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Defamation List
BETWEEN:
Case No. CI-20-00493
| SAM ZUCHOWSKI | Plaintiff |
| v | |
| CAMERON HOWE | Defendant |
AND BETWEEN:
Case No. CI-20-02216
| CAMERON HOWE | Plaintiff |
| v | |
| CAVENDISH PROPERTIES PTY LTD (ACN 063 802 586) | First Defendant |
| AMBER ZUCHOWSKI | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12, 17, 18, 19, 30, 21 and 24 May 2021 | |
DATE OF JUDGMENT: | 30 September 2022 | |
CASE MAY BE CITED AS: | Zuchowski v Howe; Howe v Cavendish Properties and Zuchowski | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1604 | |
REASONS FOR JUDGMENT
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Subject:DEFAMATION
Catchwords: Defendant in the first proceeding ran a Facebook Forum on which third parties could comment – comments by third parties alleged to be defamatory to the Plaintiff – whether the Defendant published the comments – whether the comments were of and concerning the Plaintiff – whether the alleged defamatory imputations were conveyed – whether defence under s 32 of the Defamation Act 2005 is established – whether the immunity contained in clause 91 of Schedule 5 of the Broadcasting Services Act 1992 (Cth) is applicable – the extent of the damage sustained
Defendants in the second proceeding made comments about the Plaintiff at a public meeting – whether the comments were of and concerning the Plaintiff – whether defamatory imputations were conveyed - whether the defendants have proven the truth of any of the imputations conveyed - whether the defence of qualified privilege at common law is established - whether the defence of qualified privilege under s 30 of the Defamation Act is established - whether the publications constituted a fair report and whether the defence under s 29 of the Act is established – the extent of the damage sustained
Legislation Cited: Defamation Act 2005 (Vic); Broadcasting Services Act 1992 (Cth)
Cases Cited:Voller v Nationwide News Pty Ltd [2019] NSWSC 766; Fairfax Media Publications Pty Ltd and Ors v Voller [2020] NSWCA 102; Fairfax Media Publications Pty Ltd and Ors v Voller [2021] HCA 27; Pell v The Queen [2019] VSCA 186; Trkulja v Google LLC (2018) 263 CLR 149; Webb v Bloch [1928] HCA 50; Mirror Newspapers v World Hosts (1979) 141 CLR 632; Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185; David Syme & Co v Canavan (1918) 25 CLR 234; Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845; E Hulton & Co v Jones [1910] AC 20; Cassidy v Daily Mirror Newspapers [1929] 2 KB 331; Lee v Wilson & Mackinnon (1934) 51 CLR 276; Google Inc v Duffy (2017) 129 SASR 304; Oriental Press Group Ltd v Fevaworks Solutions Ltd (2013) 16 HKCFAR 366; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; Valentine v Eid (1992) 27 NSWLR 615; Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574; Roadshow Films Pty Ltd v iiNet Ltd (No 2) (2012) 248 CLR 42; Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187; Universal Music Australia Pty Ltd v Cooper [2005] FCA 972; Wilson v Bauer Media Pty Ltd & Anor [2017] VSC 521; Sutcliffe v Pressdram Ltd [1991] 1 QB 153; Belbin & Ors v Lower Murray Urban and Rural Water Corporation [2012] VSC 535; Adam v Ward [1917] AC 309; Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; Horrocks v Lowe [1975] AC 135; Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350; Guise v Kouvelis (1947) 74 CLR 102; Watt v Longsdon [1930] 1 KB 130; Robertson v McBride [1931] 4 DLR 132; Wraydeh v Fairfax Media Publications Pty Ltd [2021] NSWCA 153
Judgment: CI-20-00493 – Judgment awarded in favour of the Plaintiff in the sum of $205,000
CI-20-02216 – Judgment awarded in favour of the Plaintiff in the sum of $15,000
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff in the first proceeding and the Defendants in the second proceeding | Mr J. Castelan | SLK Lawyers |
| For the Defendant in the first proceeding and the Plaintiff in the second proceeding | Mr T. Sowden | William Mulholland & Co Lawyers |
HIS HONOUR:
Introduction
1This trial involves two related proceedings involving the tort of defamation. In all, there are four parties to the proceedings. They are Sam Zuchowski, who sues Cameron Howe (the Zuchowski proceeding). Cameron Howe who sues Cavendish Properties Pty Ltd (Cavendish) and Amber Zuchowski (the Howe proceeding).
2In short, the genesis of these proceedings was the proposed erection of three apartment buildings, a desire to change the ratio of car-parking spaces for apartments in those buildings, and the proposed relocation of car-parking spaces for a hotel; these events occurring in the suburb of Patterson Lakes.
3The Zuchowski proceeding involves comments made by third parties on a Facebook Forum conducted by Mr Howe. The Howe proceeding involves comments made by Amber Zuchowski at a public meeting.
4In the Zuchowski proceeding, Mr Zuchowski’s counsel has conveniently set out the principal issues in his written submissions:
(a) whether Mr Howe published the matters complained of;
(b) whether the matters complained of were “of and concerning” Mr Zuchowski;
(c) whether the matters complained of conveyed the imputations pleaded by Mr Zuchowski;
(d) whether the defence under s 32 of the Defamation Act 2005 is established;
(e) whether a defence is established relying on the immunity contained in clause 91 of Schedule 5 of the Broadcasting Services Act 1992 (Cth);
(f) if the above matters are resolved in favour of Mr Zuchowski, the extent of damages to be awarded.
5In the Howe proceeding, the principal issues are:
(i) whether the matters complained of were “of and concerning” Mr Howe;
(ii) whether the matters complained of conveyed the imputations pleaded by Mr Howe;
(iii) whether those imputations were defamatory of Mr Howe;
(iv) whether the defendants have proven the truth of any of the imputations conveyed;
(v) whether the defence of qualified privilege at common law is established;
(vi) whether the defence of qualified privilege under s 30 of the Defamation Act is established;
(vii) whether the publications constituted a fair report and whether the defence under s 29 of the Act is established; and
(viii) if the above matters are resolved in favour of Mr Howe, the extent of damages.
6Apart from ancillary relief, Mr Zuchowski sought damages against Mr Howe, a permanent restraint upon Mr Howe of republishing defamatory imputations of him, and the dismissal of the Howe proceeding. Mr Howe sought the dismissal of the relief sought by Mr Zuchowski and damages in his proceeding.
7The trial occupied seven sitting days. At the end of the evidence, rather than making oral submissions, counsel sought to reduce their closing addresses to writing. In due course, both counsel provided detailed written submissions, especially those of Mr Zuchowski’s counsel.
8Counsel for Mr Zuchowski and Mr Howe relied upon aspects of the judgment of Rothman J in Voller v Nationwide News Pty Ltd[1] and the judgment of Basten JA in Fairfax Media Publications Pty Ltd and Ors v Voller[2]. After I had received counsel’s closing addresses, the High Court delivered its judgment in Fairfax Media Publications Pty Ltd and Ors v Voller[3]. At my invitation, both counsel provided written submissions regarding its effect on these proceedings. In separate judgments, the majority affirmed a state of fact which sees Mr Howe as a “publisher”. Counsel used the occasion to argue other issues, which I will deal with later.
[1][2019] NSWSC 766.
[2][2020] NSWCA 102.
[3][2021] HCA 27.
Circumstances
Patterson Lakes
9Patterson Lakes is a suburb of metropolitan Melbourne. By the standards of Melbourne, it is a small suburb, having a population of about 7,000. It is near another suburb, Carrum Downs. It contains a marina known as the Patterson Lakes Marina (‘the marina’). A large aerial photograph of the marina was admitted into evidence[4]. About 1,000 people live in the marina area in properties around a body of water known as the “marina basin”. They store their boats in the marina, whether by storing them in a very large building called the “dry stack shed” or mooring them outside their homes. Most of the residential part of the marina is not open to the public, with access obtained through electronically-secured gates.
[4]Exhibit B.
10The inhabitants of the marina are well known to each other. As one witness said, “Living in the marina was like living in a village”[5], while another said “Everyone knew everyone else”[6].
[5]Transcript at p 377.
[6]Transcript at p 515.
Cavendish
11When Cavendish bought the marina precinct in 1994 or 1995 the only structure was a building called the “dry stack shed”. Other than that, it consisted of vacant land, lacking any services (eg water and sewerage). Cavendish developed the marina precinct. Mr Zuchowski described the development as “lumpy” – “it may not do something for a couple of years and then it may have an intensive development going forward for a year or two”[7]. Since the acquisition of the marina precinct, it:
(a) excavated the marina precinct to create a basin and then filled it with water to create the marina basin;
(b) developed and sold between 150 and 200 lots and provided services to those lots including water, electricity, sewerage, telephone and roads, and sub-divided about 100 lots of land. Given the desire to sell these apartments and building lots, Mr Zuchowski works actively with estate agents to do so;
(c) has made a numerous planning applications to the local council, the City of Kingston (the Council), regarding the marina.
[7]Transcript at p 244.
12Cavendish has its office in the marina precinct. It is situated between the dry stack building and the Cove Hotel. Cavendish owns the dry stack building. It is six storeys high and houses about 200 boats. Few residents of the marina rent space in this building, for the marina is a gated area with residences along the edge of the basin, and those residents, under licence, moor their boats in the basin. Apart from those few residents, the rest are people who reside within a 20‑mile radius of the marina. These licences are issued annually by a secretary employed by Cavendish. If there is an issue with a licence, it is usually handled by Mr Zuchowski.
13Marina Operations Pty Ltd (‘Marina Operations’) is a wholly-owned subsidiary of Cavendish. It administers the marina, including the collecting of rents from boat owners and ensuring boating operations are carried out safely. When the Environment Protection Authority issued a clean-up notice relating to contaminated soil in the marina precinct, it was addressed to Marina Operations.
14Through a delegation from the Council, Cavendish is the responsible authority for approving the design of every townhouse erected within the marina area. If the owner of a piece of land wishes to build a townhouse, then the proposed design is submitted to Cavendish. In effect, it is submitted to Mr Zuchowski and it is his decision whether the proposal is approved. If approved, a building permit is issued. Over the years, there have been between 100 to 150 such approvals.
15There are at least seven body-corporate entities within the marina. Mr Zuchowski deals with each. He speaks to their members about maintenance, sewerage, moorings, lighting and road maintenance. Cavendish is responsible for access through the gates.
16On 8 March 2018, the Council approved Cavendish’s plans to develop three apartment buildings in the marina area: a building known as MQ1 with about 70 apartments and 210 car-parking spaces; another, MQ2, with about 130 apartments and 390 car parks; and MQ3 (‘the Cove apartments’), with between 30 to 40 apartments and 90 to 120 car parks. The Council granted a permit, which lasts indefinitely.
17The endorsed plan abided by the Comprehensive Development Zone Plan 1999 which required three car-parking spaces for each apartment irrespective of the number of bedrooms in the apartment. A one-bedroom apartment required three car-parking spaces as did a three-bedroom apartment. In July 2018, Cavendish applied to the Council to reduce the ratio of car-parking spaces for the purposes of the development. Since these applications were refused, Cavendish is not building anything at present.
18There is a hotel in the marina area called the “Cove Hotel”. It is the main hotel there. It was developed by Cavendish for another person and is now owned by it. Apart from the residents of the marina, the Cove Hotel is open to the public generally. Since 1996, it has been entitled to 152 car-parking spaces, under permit and lease[8]. Cavendish, through Mr Zuchowski, was acutely conscious of the need to provide 152 spaces. Mr Zuchowski understood the permit gave Cavendish[9]:
“…a discretion in the planning, as I understand it, for us to locate the car parking in a number of car parks.”
[8]Exhibit J.
[9]Transcript at p 306.
19And[10]:
“We had the right to take it away”.
[10]At p 308.
20One of the proposed buildings would take up some existing car-parking spaces allocated to the Cove Hotel. Cavendish has a permit to erect such a building but construction has not started on any of these buildings.
21To erect one of three proposed buildings, Cavendish wanted to shift some of the hotel’s car-parking spaces around the hotel’s perimeter to another area known as the “riverbank car park”. This car park contains 122 spaces, of which 62 would have been allocated to the hotel. If carried out, this proposal would mean the number of spaces around the perimeter of the hotel would be reduced to 90.
22The riverbank car park is about 100 metres from the hotel. To access it, a person needed to pass through a gate. The estate around the marina is secure and this gate is one of several security points. To pass through the gate, one needed a FOB. However, the gate could be left open permanently. The tenant of the Cove Hotel was then, and is now, the Melbourne Racing Club. It did not support this proposal, preferring to keep their patrons “as close as possible to the hotel”[11].
[11]Transcript at p 309.
23To outsiders, unfortunately, this proposal became intwined with the reduction proposal and became the subject of posts and comments in the Zuchowski proceeding. It also saw the Melbourne Racing Club become an objector at the VCAT review of the Council’s decision to reject the reduction application. On the second day of the hearing, the Club withdrew its objection after reaching an agreement with Cavendish over the positioning of its car-parking spaces[12]. To Mr Zuchowski, the Club’s involvement in the review was a device to assist it in negotiating a better lease.
[12]The agreement allowed 125 spaces around the hotel’s perimeter and 27 located in the riverside car park.
Sam Zuchowski
24Sam Zuchowski is the managing director of Cavendish. For the past 20 years, he has managed CavendishHe is also the managing director of Marina Operations. The latter uses the business name, Patterson Lakes Marina. It is a wholly-owned subsidiary of Cavendish, which is, in turn, owned by Ashton Lodge Pty Ltd, a trustee company.
25Cavendish has another director, Mr Zuchowski’s son, Adam, who is a solicitor, and his firm performs legal work for Cavendish. Mr Zuchowski’s daughter, Amber, acts as a consultant to Cavendish. She is the company secretary for Marina Operations.
26Mr Zuchowski works in the second storey of a small two-storey building which is centrally placed within the marina area. There is a sign opposite the building saying “Patterson Lakes Marina” but none announcing Cavendish. The front door of the office simply says “Office”[13]. According to Mr Zuchowski, it is a lovely-looking building and is quite prominent. He works in that building from Monday to Friday and usually will spend a few hours there on Saturday and Sunday.
[13]Exhibit 5, which is three photographs.
27It is fair to say he was the person to whom others came when there was an issue with the marina:
(a) First, every person who wanted to build a house in the marina in the past 20 years dealt with Mr Zuchowski, for he had the power to approve or not approve a proposed design. Over that period, he approved between 100 to 150 designs.
(b) Second, when it came to the issue of mooring maintenance fees for those persons living in the marina precinct, it was largely to Mr Zuchowski that residents came.
(c) Third, generally, issues regarding the marina were dealt with by him.
(d) Fourth, he assisted estate agents in selling the lots in the precinct.
(e) Fifth, within the precinct, there are at least seven body corporates. Mr Zuchowski dealt with the issues raised by these body corporates.
28Overall, Mr Zuchowski was very well known in the marina precinct. In particular, he was known as the owner of the marina and landlord of the Cove Hotel. Undeniably, Mr Zuchowski was the public face of Cavendish. Some people thought his surname was Cavendish.
29Apart from him, Suzanne Gadsby works in the building as the marina administrator. She is employed by Marina Operations. She has worked alongside Mr Zuchowski for about 10 years. She manages boat storage, residents’ moorings and the dry stack shed. The only other person who works with them is an accountant who visits each Monday.
30Whenever Cavendish has meetings they occur in that building. There are monthly management meetings during the construction of buildings. There were meetings with builders and architects. Mr Zuchowski would always attend these meetings. Sometimes, his daughter did as well.
31Over the course of a year, Mr Zuchowski has dealt with many people in the course of business. The range of his dealings is large. It includes dealing with architects, planners, engineers, estate agents, council employees and body-corporate entities. The position with the body-corporate entities is complex and involves regular contact.
Cameron Howe
32Cameron Howe is a young man. He lives in Patterson Lakes, a few kilometres from the marina area. Since his teenage years, Mr Howe has been much involved in local affairs. For years, he has advocated for projects benefiting the local community.
33The idea of creating the Facebook page called the Carrum and Patterson Lakes Forum (‘the Forum’) emerged while Mr Howe was in secondary school. This was in 2010 and he was 16. As he put it, he created the Facebook page to celebrate the place where he lives around the Patterson River; to assist others, being something he really enjoys; and to promote community activities[14]. He calls the Forum a not-for-profit community page. In fact, it generates no income at all. He is the administrator of the Forum and is well-known to be so.
[14]Transcript at p 519
34Mr Howe is proud of his achievements for the local community through projects and advocacy. At the time of these publications, he variously estimated the number of users of the Forum at 6,000, 6,700 or 7,000 users. He did not want to increase the number of users because some lived well away from the area (eg Brisbane).
35The Forum has a timeline of all posts, of which Mr Howe posted about 99% of them. Beneath these posts, readers may place comments. There are two kinds of access to what is posted on the Forum: by those accessing the Forum directly; and those viewing its content through a newsfeed.
36Mr Howe set out the terms of use of the Forum:
“Welcome to the official Facebook page for the Carrum and Patterson Lakes Forum.
Please note that Users of this page are subject to Facebook’s posting guidelines and Terms of Use.
We reserve the right to remove spam and content or posts that are off-topic, abusive, discriminatory, defamatory, offensive, infringing, false or harassing. Any content uploaded by anyone other than Carrum and Patterson Lakes Forum is the responsibility of the submitter, and does not imply endorsement by the forum. From here on after the words ‘we’ or ‘us’ refer to the Carrum and Patterson Lakes Forum.
In addition to this:
▪ We reserve the right to block Facebook accounts for any reason, without notice to you.
▪ All trademarks and service marks are the property of their respective owners.
▪ Links to third-party content do not imply endorsement.
▪ We shall not be liable for any damages or injury resulting from your access to, or from your reliance on any content provided on the forum.
▪ Complaints can be directed to us via a direct message.”
37Mr Howe conducted a second website, which he called his “creative portfolio”[15]. The home page has six headings. From the narrative under some of those headings, Mr Howe gave the impression of expertise in certain areas. Under the heading “Consulting”, Mr Howe wrote:
“Everyone wants to make an impact, but only a true creative will deliver innovative solutions. Cameron is that person with diverse experience working with government, wholesalers, brands and media tailoring strategies to visions. His strong reputation for building social media communities, blends with savvy content marketing and print media principles.”
[15]Exhibit AA.
38Among other things, the quoted passages suggests he is knowledgeable about the internet, with which he agrees. In cross-examination, he was repeatedly taxed with being a social media expert, which he repeatedly denied.
39Mr Howe built the website himself. For someone of his age, “a millennial”, he considers it an easy task. He has not received any work through it. Despite its commercial flavour, Mr Howe maintained he used the website for his self-esteem alone. This is not the impression one has from the reading the entry under the heading “Bio”[16]. It starts with highlighting his artistic endeavours but moves to his community activities, starting with the Forum. After pointing to his academic qualification, it ends with:
“… in addition to consulting on sales and marketing. Cameron has diverse experience working with government, wholesalers, brands, real estate and media tailoring strategies to visions.”
[16]Exhibit 17.
40Mr Howe rendered the website private shortly after Ms Paech, an expert witness in Social Media called by Mr Zuchowski, gave her evidence. This meant it could not be accessed by the public. His reason[17]:
“I took the website down so it wasn’t going to be brought into the proceeding … Because it’s not relevant ... when it’s my personal creative portfolio”.
[17]Transcript at pp 604-605.
41What flows from this website is Mr Howe wanted it to generate paid work for him. Even though, as his evidence of his experience reveals, there was a good deal of puffery involved, or “hamming it up”, as he put it, there was a core of familiarity with the internet and social media. The puffery aspect reveals a certain looseness with the truth.
Vanessa Paech
42It is convenient to discuss Mr Howe’s control of the Forum as its administrator. This is where the evidence of Vanessa Paech becomes important.
43Ms Paech describes herself as a social media lecturer and specialist. She lectures at the University of Sydney. Based on her occupational experience, she is undoubtedly an expert in social media including Facebook. The Forum is a Facebook business page.
44As the administrator, Mr Howe could block material uploaded by a third party before it appeared on the Forum through tools available to him in 2019. These tools included pre-moderation, block word and profanity. The most significant is the pre-moderation tool. There are two versions of this tool. The first version allows an administrator to read the comments of third parties and prevent their appearance on a Facebook Page, allowing content to be reviewed before publication. The functions of the tool are triggered by the appearance of a word or phrase. The second version of the tool stops all comments from being published until they are reviewed by the administrator. This variation was available in 2018 or 2019. Depending on the level of activity on a Facebook Page, it could be a great deal of work for the administrator.
45There is a “block word” tool. It enables the administrator to upload a series of popular block-word lists available on the internet. These lists can include the profane or anything else the administrator considers a risk. By blocking the word or words, an administrator can choose what will happen to the post, whether it is allowed with the words removed or held for pre-moderation and review rather than going live. When the word appeared the administrator would be automatically notified in a manner he or she chooses. Since the filter is literal in what it blocks, block-word lists usually include misspellings. In the context of the Forum, Ms Paech would have flagged the words “$”, “developers”, “councils”, “sus”, “pockets”, “Gefilte fish”, “rape”, “greedy developer”, “corruption”, “choke” and “filthy animals”. However, since 2010, there are standardised lists of words which capture the vast majority of what most people would consider offensive. These lists are available through a simple Google search. Typically, there are many thousands of words on those lists.
46From the perspective of an administrator, his or her ability to review comments is not limited to the defamatory. For example, it can extend to comments involving hate speech, harassment, rudeness, or even the tone of the comment. The significance of a comment may depend on the context. If in doubt about whether a comment is defamatory, the standard industry approach is to delete it or engage with the person who made the comment to ascertain what he or she meant. If the number of comments is 50 to 100 a day, then the task of reviewing is not overwhelming. An administrator could check once a day at 5pm, spending about 10 minutes. Looking at the length of the comments the subject of this proceeding, reviewing them and others would be simple and not taxing. The vast majority of the comments are very short. Some are not even the length of a sentence. The longest contain only a few sentences.
47Most administrators possess what Ms Paech called “moderation permissions”. This allows an administrator to edit a post, delete the post entirely, or hide it. The last hides it from the view of everyone except the person who posted it or his or her Facebook network. An administrator can suspend or ban a user. Mr Howe used his ability to ban a person from posting on the Forum by preventing Ms Gadsby from doing so. He did this to prevent her commenting because he believed she was “part of the family that had been involved with the project”.
48When a person creates a Facebook Page, he or she is presented with these functions. Not all of the moderation tools were present in 2010 when the Forum was created. The block filters were added in 2011.
49Without blocks, the administrator is notified of any posts. However, an administrator can choose not to receive any notifications. Provided the administrator has moderation permission, he or she can edit the post, delete it entirely, hide a comment, suspend or ban a user.
50There are standardised lists that capture most words.[18] They are available on Google search. The most effective means is to switch all posts to pre-moderation which would save creating endless lists of words.
[18]Transcript at p 421.
51As the administrator, Mr Howe knew he could delete the comments of others. Mr Howe was able to access the settings to the Forum. He was unaware of his ability to create key word filters. He knew of the existence of the profanity filter. In about July 2020, he became aware of a general word block filter. He discovered its existence while examining the settings of the Forum because of a forthcoming Council election – “people can be nasty”[19]. But he knew he could delete individual comments. He had done so with comments on the web pages of Liberal candidates for a State election. He did not believe he could block all comments as it was not available as a feature in 2019.
[19]Transcript at p 528.
52When a comment is made, it is notified to the page. To see these comments, as the administrator, Mr Howe would need to check the page regularly, which is something he did not do. However, the Forum can be accessed through various devices including Mr Howe’s mobile phone which he carries most of the time. But he does not receive automatic notifications from Facebook. From time to time, Mr Howe would comment on his own posts. His comments would appear under the heading “Carrum and Patterson Lakes Forum”.
53Mr and Mrs Doran made comments on the Forum, which form part of the Zuchowski proceeding. Mr Zuchowski’s solicitors sent a concerns notice to them. Mr Doran contacted Mr Howe. By the time Mr Howe looked at the Forum, Mr and Mrs Doran had deleted their comments. When he received Mr Zuchowski’s concerns notice, within hours, Mr Howe effectively closed the Forum to the public and removed the comments. This occurred on 12 December. Three days later, he reopened the Forum to the public.
54Mr Howe possesses a second website which he created. To him, creating a website is not hard; anyone of his age, or younger, could do so. It contains his creative portfolio – artwork, photographs, videos, writings for the Mornington Peninsula Magazine and other publications. He closed the website to the public shortly after Ms Paech gave her evidence. Despite the content of the website, he denied any expertise in social media and digital community management. He has received no work through this website. To him, the website existed for his self-esteem as he is recovering from the effects of a post-traumatic stress disorder (‘the disorder’). Nevertheless, his brief description of his previous work could mislead in that his experience in some areas was limited. His creation of the website and its content implies Mr Howe is knowledgeable about the internet.
55In 2020, Mr Howe was elected to the Council. His family were against him running because he suffered from the disorder. To the allegation that his posts were part of his electioneering for the election, he maintained elections are not won on Facebook but are won through “paper” (eg, leaflets). He and his supporters did six or seven runs with leaflets. They also erected signs. They also did flyers or pamphlets on particular issues (eg, toxic water at Lake Carramar).
56Mr Howe never intended to use the furore over Cavendish’s proposals to enhance his chances of election. He made no mention of the proposed development or the Cove Hotel in his campaign. From his perspective, he did not need to gain a profile as he already had one after 10 years of community work.
Credit
57Mr Zuchowski challenged Mr Howe’s credit as a witness. He pointed to the way Mr Howe gave his evidence, describing it as argumentative, evasive, non-responsive, arrogant and confrontational. He stressed how Mr Howe had repeatedly raised he was suffering from the disorder.
58He relied upon Mr Howe deliberately closing his website “CamHowe” a few days before its content became an issue, as evidence of deceit. The issue was the extent of Mr Howe’s expertise in social media and digital marketing. Mr Zuchowski’s counsel described the content of this website as a “glossy website”, purporting to present Mr Howe as a professional person who could provide social media and marketing services to a large range of entities.
59He relied upon a strange answer given by Mr Howe in cross-examination about never speaking to Mr Zuchowski about the Cove Hotel’s car parking.
60He pointed to Mr Howe’s evidence he associated Cavendish with Adam Zuchowski even though Mr Zuchowski was obviously representing Cavendish at the February 2019 consultative meeting.
61He submitted Mr Howe’s claim he was unaware of the comments is suspect. He made his own comments to the comments of others under the name of “Carrum and Patterson Lakes Forum”. He made:
(a) three comments during the course of the third publication;
(b) at least six comments during the fifth publication;
(c) seven comments during the course of the sixth publication; and
(d) seven comments during the seventh publication.
62He submitted the juxtaposition of Mr Howe’s comments and other comments establishes he knew of a number of comments about the time they were posted. They are comments of Ms Flanagan, Mr Borrett, Mr Crombie, Mr Price, Ms Kemp, Ms Doran, Ms Victoria, Ms Hutchinson, Mr Mulcahy, Mr Cliff and Ms Daniells.
63Conventionally, the credit of a witness is broken down into two issues: whether the witness is truthful; and, if truthful, whether his or her evidence is reliable. A truthful witness is not necessarily a reliable or accurate witness. In this case, the attack upon Mr Howe’s credit focussed on his truthfulness.
64In Pell v The Queen, Weinberg JA said this of an assessment of the creditability and reliability of a witness[20]:
“The factors that any trier of fact, whether judge or jury, will ordinarily take into account when deciding whether the evidence of a particular witness is credible and reliable include: the inherent consistency of the witness’ account; the consistency of that account with those of other witnesses; the consistency of that account with undisputed facts; the ‘credit’ of the witness (based upon matters which include, for example, demeanour); any relevant infirmities of the witness; and, importantly, the inherent probability or improbability of the evidence in question.”
[20][2019] VSCA 186 at [897].
65Mr Howe was cross-examined by a polite, but determined cross-examiner. Understandably, Mr Howe showed an unfamiliarity with court processes.
66There is one aspect of the evidence which is vitally important for Mr Howe: his asserted lack of awareness of the comments, the subject of the ten publications. Not unnaturally, a theme of his cross-examination concerned his awareness. After a lengthy examination on the point, Mr Howe was asked and answered[21]:
Q:“It’s inconceivable that you weren’t also paying very careful attention to the contents of your own Facebook page?---
A:I’ll repeat what I’ve been saying. I was sick. You’ve been referred to comments in this document around the suicide attempts, light coma, um, admitted into hospital, emergency. I’ve seen my psychologist for support and gone to the gym. I’m writing for magazines, I’m painting, I’m taking photos. Obviously there’s a life outside of Facebook like with most people. The answer here is no, it’s a clear no, it’s an obvious no.”
[21]Transcript at pp 708-709.
67This aspect engages the important consideration of the inherent probability or improbability of the evidence in question. This level of involvement, the number of comments, and Mr Howe’s circumstances at the time, cause me to reject the truth of his above answer and his other evidence on this point.
68Importantly, putting aside the issue of credit, the strength of the evidence enables me to make a positive finding he was well aware of the comments, the subject of this proceeding, at or near to the time of their posting on the Forum.
69During this trial in May 2021, Mr Howe took his accounts offline (including the Forum) because his father asked him to do so due to their effect on him emotionally, on the symptoms of his disorder and causing insomnia.
70During the giving of his evidence, I accept Mr Howe suffered from a post-traumatic stress disorder, which was then the subject of treatment. Over many years, courts and tribunals have strived to assess the evidence of witnesses knowing they are suffering from recognised psychological disorders. In a broad sense, this is what Weinberg JA meant when he referred to the infirmities of witnesses. In the absence of expert evidence on the point, courts and tribunals have had recourse to their own judicial and occupational experience. I have had recourse to my experience.
71The well-known symptoms of the disorder may affect the way Mr Howe gave his evidence but they should not cause him to be untruthful. The predominant effect of the disorder is anxiety, which should not have that effect. It may affect the reliability of his evidence but not its truthfulness.
72The other criticisms of Mr Howe are of little moment. With the disorder, one would expect Mr Howe to be argumentative, evasive, non-responsive, arrogant and confrontational. Repeatedly raising he was suffering from a post-traumatic stress disorder is understandable because it points to his awareness of the impact of its symptoms upon him as a witness.
Amber Zuchowski
73Amber Zuchowski is the daughter of Sam Zuchowski. For about ten years, Cavendish has employed her as its development manager. Her primary functions are conducting financial feasibility and marketing plans, liaising with estate agents and meeting with interior designers.[22] Although being a development manager is her principal source of income, there are others. During the course of this proceeding, she has taken maternity leave.
[22]Transcript at p 810
Adam Zuchowski
74Mr Zuchowski’s son, Adam, is the solicitor for Cavendish. He is a partner in a firm of solicitors. He is a director of Cavendish and Marina Operations. He rarely visits the marina, once or twice a year. He only deals with the residents of the marina if there is a legal issue and then infrequently.
75Adam Zuchowski created his own collection of posts and comments from the Facebook page (exhibit L). He copied a highlighted text and pasted it into a Word document. He did not know how to create a print screen (screenshot).
76To him, the developer referred to in the posts and comments was his father. He believed the second publication referred to his father as the landlord; the third to himself and his father; the fourth, fifth, sixth, seventh, ninth and tenth, to his father.
Publications
Publisher
77Mr Howe admitted he was a publisher of the publications, including the third party comments. However, he said he was a secondary publisher. The distinction between primary and secondary publishers will emerge later in the context of the defence of innocent dissemination.
78As was submitted by Mr Zuchowski’s counsel, the facts of this case are on all-fours with the facts in Voller’s case in that Mr Howe intentionally took a platform provided by another entity, Facebook, created and administered a public Facebook page, the Forum, and posted content on that page. The creation by Mr Howe of the Forum and the posting of content on that page, encouraged and facilitated publication of comments from third parties. Howe is thereby a publisher of the third-party comments.
79In his further amended statement of claim, Mr Zuchowski sues Mr Howe in relation to ten publications. They are set out in the Amended Statement of Claim. They include comments uploaded by persons onto the Forum beneath posts published by Mr Howe. For all of those publications, Mr Howe admits uploading the posts and the comments, except the seventh, which were published by those persons in the form pleaded by Mr Zuchowski. He also admits the comments were of and concerning Cavendish. Each publication is dealt with separately in the pleading and it is convenient to adopt that approach.
First publication
80As pleaded, from about 10 February 2019 until about 15 December 2019, Mr Howe published a post on the Forum. The post is too long to reproduce in full[23]. Entitled “Cove car parking reduction for high rise towers”, the opening paragraph reads:
“We submitted a 35 page letter this week in response to the car parking reduction under permit KP-2018/459, to construct two 10-storey towers and a 3-storey building in The Cove precinct. Further planning documents from the City of Kingston were repeatedly requested and not supplied, leaving our committee to respond to the application with the information available at this time.”
[23]See Schedule A for its content.
81There follows twelve dot points, each containing a commentary and many asserting either a non-compliance or breach of various planning instruments. The post ends with this paragraph:
“To reiterate this car parking reduction must not proceed under any circumstances and would result in an unmitigated disaster for current and future residents. A car parking reduction is a permanent decision, forever cementing the suburb’s prolific congestion and parking issues. We are seeking for the immediate termination of the process and refusal of application KP-2018/459.”
82Beneath this post, there appears a single comment:
“Billy Zeitoune: $$$talks.”
83The “35 page letter” was exhibited[24]. It is dated 6 February 2019 and addressed to Ian Nice and the councillors. The first eight pages is a letter. The remaining pages appear as an appendix. The appendix has several parts. First, under the heading “Polls” are the results of four polls conducted on the Forum and bearing the dates 27 August and 2 September 2018 and 14 and 22 January 2019. For the first poll, the question reads:
“Should the planning scheme be changed to restrict high-rise developments within the Cove precinct and surrounds.”
[24]Exhibit AC.
84It shows two photographs and records 86% of respondents answered “yes” and 14%, “no”. The other polls followed the same arrangement.
85Next, the document contains a petition. Then, under the heading “car parking issues”, it sets out times, dates, images and commentaries concerning various streets and places in 84 sections. To give the flavour of the entries, the first occurs in Pier One Drive on 6 December 2018 at 2.48pm. There is an image with the comment “Illegal parking, due to insufficient parking availability“.
Second publication
86As pleaded, from about 15 May 2019 until about 15 December 2019, this comment appeared:
“Mike Hildred: I would think the serious money was ‘invested’ long ago ... can’t trust councils or developers from what I have unfortunately seen.”
Third publication
87As pleaded, on about 21 May 2019, Mr Howe created a post, which remained on the Forum until about 15 December 2019. Again, the post is too long to reproduce here[25]. The post complains of difficulty in obtaining documents from the Council necessary for a response to Cavendish’s application. It then turns its attention to Adam Zuchowski and his alleged involvement in a “land banking scam”. Having made several comments about Adam Zuchowski’s involvement, the post continues:
“This begs the question: can you trust the Zuchowski’s to deliver on their word?”
[25]See Schedule B
88Below this post on the timeline, this comment appeared:
“Carol Flanagan: After reading about the lack of transparency, delayed in the release of relevant documents, questions raised over the developers integrity how could the council approved such a radical change the clearly stipulated car parking requirement.”
Fourth publication
89As pleaded, from about 7 August 2019 until about 15 December 2019, Mr Howe posted another post on the Forum[26]. The post, dated 7 August 2019, reads:
“UPDATE: A deceleration lane allowing traffic to safely enter Pier One Drive from McLeod Rd will be constructed within 9-months. Background: This permit condition was placed on the Pier One Apartment Complex’s construction in 2015 by the City of Kingston, and was requested to be enforced within feedback by the new proposed developments of the site.”
[26]Schedule C.
90Below this post appeared this statement:
“Blane Pritchard: Someone’s getting sus Brown paper bags from certain parties.”
Fifth publication
91As pleaded, from about 6 September 2019 until about 15 December 2019, these comments appeared on the Forum. Unlike some comments they were not entered beneath any particular post:
“Lloyd Borrett: And if the developer has the connections to work around the rules like this one would to think they might be prepared to cut other corners.
Zachariah Crombie: Who’s pushing this one and paying who under the table.
Rik Price: This utterly stinks. Over-development 100%. Either the system is broken or someone is on the take.”
Sixth publication
92As pleaded, from about 23 September 2019 until about 15 December 2019, Mr Howe posted another piece[27]. Again, the post is too lengthy to reproduce. Starting with word “Scandal” in capital letters, it mentions an Environment Protection Authority investigation of hydrocarbon contamination and the service of notices. It then raises the issue of permitted heights and the non-production of documents by the Council. It is critical of the Council and ends:
“Kingston APPROVED these buildings and a public apology, alongside a review of stakeholder relations is warranted.”
[27]See Schedule D.
93To this post is a single comment:
“Andrea Kemp: So whose pockets are being lined at Kingston. This is beyond ridiculous and a full investigation needs to be undertaken at KCC!”
Seventh publication
94As pleaded, from about 27 September 2019 until about 15 December 2019, Mr Howe posted. Again, it is too large to reproduce[28]. The post covers a number of issues:
(a) an assertion the requirements for The Cove precinct have not been upheld;
(b) a demand for an investigation into “governance issues” at the Council. This is followed by 23 specific complaints.
[28]See Schedule E.
95Beneath the post were these comments:
“Andrew Doran: His contribution? That’s rich. His contribution is to rape the face of Patterson Lakes for money, then back to Toorak for gefilte fish…
Andrew Doran: Fidel Ami Cato he came in when the original developer went belly up, picked up the asset for relative peanuts and has been getting fat off it ever since. He is not our saviour, he is a self aggrandising cynical thief.
Andrew Doran: Fidel Ami Cato actually there is a lot we can and are doing about it ... Sam’s still not there yet. The probity of the ‘approval’ he has got is under investigation. He hasn’t won at VCAT. He’s lost all support at Council including any special friends in Planning. And he has to sell a percentage to get finance ... not easy in today’s market. He can’t even sell the rest of his Pier One holding and that’s been four years now…
Michelle Doran: I am totally disgusted with Kingston Council. A full review of the planning approval should be undertaken, nobody in their right mind would approve such a grotesque over development of this site. This developer is corrupt and council is not much better.
Sarah Victoria: A cowboy developer doing as they please because no one stopped them.
Leanne Hutchinson: This developer seems to do as they wish without concern for rules or anyone else. Seems they might have people in their pockets on the council. Needs to be stopped.
Shaun Mulcahy: Under the table deals again. Disgraceful.
Reece Cliff: Looks dodgy as.
Vivienne Daniells: How much money does a person need? Why not retire and enjoy his ill-gotten gains.”
Eighth publication
96As pleaded, from about 1 October 2019 until about 15 December 2019, Mr Howe posted again[29]. It bears the date 1 October 2019 and comprises 3 paragraphs. The first paragraph celebrates the Council’s change of position over the development. The second seeks the upholding of the Endeavour Cove Comprehensive Development Zone. The third compares unfavourably Cavendish’s intentions with the earlier efforts of Capital Resorts Group. Beneath the post was this comment:
“Christine Sullivan: It is a disgrace that one greedy developer can destroy the look and feel of a suburb.”
[29]See Schedule F.
Ninth publication
97As pleaded, from about 17 October 2019 until about 15 December 2019, Mr Howe posted again. It reads:
“!! BIG NEWS: the City of Kingston’s new CEO has agreed to an investigation into the Cove’s governance issues, and has acknowledged ‘a number of errors’ were made. This is a positive step towards greater transparency and accountability.
Thanks,
Cameron Howe (founder).”
98Beneath his post, there was this comment:
“Ken Taylor: You could probably find similar ‘errors’ in planning law relating to the marina workshop when it was relocated into a residential area in Inner Harbour Drive. I regard it as corruption.”
Tenth publication
99As pleaded, from about 6 December 2019 and about 15 December 2019, Mr Howe posted again[30]. The post commences: “!! STOP SCROLLING – PUB SAVED – COVE DEVELOPMENT UPDATE”. The post speaks of an agreement between the Melbourne Racing Club and Cavendish and the future hearing in VCAT of an application to replace the hard stack with a tower.
[30]See Schedule H.
100Beneath the post, there was a comment:
“Paul Kika: Hope the developers choke on the next meal, filthy animals”.
101These ten publications contain twenty imputations. Sixteen of the imputations allege Mr Zuchowski engaged in criminal conduct, such as bribing representatives of the Council or corruptly dealing with the Council to obtain a better planning outcome for Cavendish. The rest concern his character, such as being a greedy or contemptible person.
102Mr Howe concedes he is the publisher of the ten publications. However, he says he is a secondary, not primary, publisher. This distinction is relevant to his defence under s 32 of the Defamation Act 2005 (Vic).
103As to the meaning of publication, in Webb v Bloch[31], Isaacs J said:
‘The meaning of "publication" is well ·described in Folkard on Slander and Libel, 5th ed. (1891), at p. 439, in these words: "The term published is the proper and technical term to be used in the case of libel, without reference to the precise degree in which the defendant has been instrumental to such publication; since, if he has intentionally lent his assistance to its existence for the purpose of being published, his instrumentality is evidence to show a publication by him.”’
[31][1928] HCA 50 at [363]
104His Honour continued:[32]
‘In Parkes v. Prescott (1) Giffard Q.C. quotes from the second edition of Starkie: “All who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication ...”’
[32]At [364]
105Howe made numerous admissions in his amended defence. Those admissions were as follows:
(a) uploading the relevant posts onto the Forum;
(b) the individual third parties uploaded their comments beneath the posts or they appeared in any event on the Forum; and
(c) the comments were of and concerning Cavendish and not of and concerning Mr Zuchowski.
106In all, the content of the Publications are admitted, apart from the Seventh Publication that was admitted “subject to the production of all comments posted under the Fifth Post”.
Accuracy of the exhibit containing the comments
107Mr Howe repeatedly criticised the way the comments were evidenced. He said they were not screenshots but were a compilation into a Word document. In this, he is correct.
108It was Ms Gadsby who brought the Forum to Mr Zuchowski’s attention. She did not take screenshots. She made copies of the posts and comments and pasted them into Word documents. She then printed copies of those documents for Mr Zuchowski. However, she could not recall seeing publications 5, 8 and 9. Adam Zuchowski cut and pasted material from the fifth post into a Word document. In October 2019, he copied that document. Although comments appearing on the Forum have times and dates, the comments in exhibit M do not.
109The resultant document was criticised for the following reasons:
(a) the same comment appears at p 441 and p 468 of the Court Book. The former is part of exhibit T, the latter exhibit S. Exhibit T relates to the sixth publication while exhibit S does not. In both instances, this comment is attributed to the Forum: “Yes! An investigation into the governance issues is imperative”;
(b) the Forum comment, “Kingston approved the buildings last year. A request for a car parking reduction for them will be heard by VCAT”, is reproduced in exhibit T and in exhibit S and is accompanied by largely the same discussion;
(c) the comment of Georgina Oxley, “Simply not true”, appears at exhibit S, as does a longer comment: “Simply not true. Council has not approved this development. In fact we are actively trying to stop this development. Check out an item on last nights agenda. I think it was 14.6”. The comment appears again in exhibit T. Nevertheless, at least the duplication appears to be responding to different posts;
(d) in exhibit T, the Forum comments: “It is a fact that the buildings were approved by Kingston last year. Kingston’s lawyer has confirmed they do not comply with the planning scheme. Other facets weren’t being discussed and further comment isn’t required.” Georgina Oxley said: “Also Cameron – if you want to let me know what information you still haven’t been provided – I can let staff know.” This comment appears in exhibit T;
(e) the seventh publication in exhibit M attributes a comment to Sarah Victoria: “A cowboy developer doing as they please because no one stopped them”. In exhibit W, the sentence is again attributed to Sarah Victoria but as part of a three-sentence paragraph. It is not attributed to Michelle Doran, who was in fact the writer;
(f) as to the fifth publication in exhibit M, Zachariah Crombie comments: “Who’s pushing this one and paying who under the table”. In exhibit Q, it appears although it is difficult to attribute this comment to a particular post. Certainly, Mr Zuchowski does not.
110No doubt based on his experience, Adam Zuchowski said it was difficult to paste from Facebook into a Word document.
111Although the accuracy of what Ms Gadsby and Adam Zuchowski did was unchallenged in cross-examination and was uncontradicted by the evidence of any other witness, some of the comments are duplicated and it is doubtful whether some of the comments relate to a particular post and not some other post.
112I doubt, as a matter of law, whether the relationship between the post and comments in the seventh publication is evidenced in any way by the Dorans’ comments being the subject of a concerns notice and that notice forming the basis of a settlement between Mr Zuchowski and the Dorans. It is not an admission by Mr Howe or anyone on his behalf. It does not create any impediment for him to raise this issue.
113Again, I do not consider an ability to apply to “strike in” part of a publication assists. As a matter of pleading, as Mr Zuchowski’s counsel points out, Mr Howe admits the comments were uploaded beneath a relevant post or elsewhere in the Forum. He admits they were made.
114Mr Zuchowski’s claim is based on the comments, not the posts. The posts are meant to give the comments context. But the posts are not essential to an understanding of the relevant comments. Even though there may be uncertainty as to whether a comment relates to a particular post, I am satisfied the comments in exhibit M accurately reproduced what appeared on the Forum.
20 February 2019
115On 20 February 2019, the Council held a public meeting to discuss Cavendish’s application to reduce the number of car-parking spaces in relation to the proposed apartments. The meeting was attended by between 100 and 150 persons, most of whom were objectors to the application. Mr Zuchowski represented Cavendish. He was introduced to the meeting as representing Cavendish, the developer. He sat at a table at the front of the meeting room, facing the audience. With him were the Council’s Chief Planning Officer, Ian Nice, and Cavendish’s consultant traffic engineer, Martin O’Shea. Mr Howe was present.
116Mr Nice made an opening statement and then there were questions. Both Mr Nice and Mr Zuchowski were questioned. The meeting lasted about 90 minutes. Mr Zuchowski was asked more than a hundred questions. Mr Howe asked Mr Zuchowski questions sufficiently aggressive for Mr Nice to threaten to have him removed.
117The other director of Cavendish, Adam Zuchowski, also attended the meeting. He did not sit at the table with his father but sat in the last row of the seating for the audience at the rear of the hall. He was not introduced to the meeting. He did not speak at the meeting or ask or answer any questions.
118Mr Howe disagreed as to the length of the meeting, placing it at about an hour. He also disagreed over the number of questions asked, placing them at about twelve. It was at this meeting that Mr Howe saw Mr Zuchowski for the first time.
119Whether the meeting lasted 60 minutes or longer is unimportant. Since no speeches were made, and with a large number of people present, one would expect many more than twelve questions. Nevertheless, for those present, Mr Zuchowski was the public face of Cavendish.
120On the night of 21 May 2019, Mr Howe posted on the Forum comments about Adam Zuchowski and land banking as well as encouraging people to attend a meeting the next day.
22 May 2019
121On 22 May 2019, there was another well-attended meeting. This time it was held in the Council’s chambers. Its purpose was to approve or not to approve Cavendish’s application for a reduction in the required car-parking spaces for the proposed apartments. The application was not approved.
122Mr Zuchowski attended on behalf of Cavendish. His daughter, Amber, also attended. Mr Zuchowski did not speak at the meeting. Mr Doran spoke on behalf of the objectors. Amber Zuchowski spoke on behalf of Cavendish, having introduced herself as its development manager. Before the meeting she developed some “talking points”. Among those points was the expression “Facebook warrior”. She spoke to those points at the meeting. A small part of what she said is the subject of Mr Howe’s action against her and Cavendish:
“I realise that now this has become an incredibly politically sensitive topic due to the lies, the blatant misinformation from a Facebook warrior that has online been delivering fake news and misinformation with murky motives.”
123After Ms Zuchowski uttered those words, some persons in the audience were heard to say “shame”.
124She sought to explain the reason for Cavendish’s application to reduce the number of car-parking spaces per apartment for the proposed apartment developments. She tried to convey “that it would be wholly appropriate for Kingston Council to follow their own planning protocols, which is 52.06 for new developments”[33]. According to Ms Zuchowski, 52.06 sets out the car-parking code scheme for all new buildings and residential developments in Victoria.
[33]Transcript at p 811. See also T 842.
125As to the post asserting the reduction of car-parking spaces for the hotel, the post is wrong. There was no attempt to reduce the number from 152 spaces. The post is untrue because it conflates the car-parking reduction with the hotel.
126To her, the expression “Facebook warrior” was not confined to Mr Howe[34]. She explained her reason for using the expression “murky motives” when referring to Mr Howe[35]:
“... on Cameron Howe’s private Facebook page he had said that he’d been – tried to stand for council in 2016 and hadn’t gotten elected, so it was pretty clear to me that he was trying to build a public platform to raise his profile in the community for a subsequent tilt at the Kingston Council.”
[34]Transcript at p 835.
[35]Transcript at 813.
127The meeting was recorded audio-visually. It was also streamed live. The recording remains on the Council’s website and can be accessed by the public.
128Ms Zuchowski viewed the Forum frequently, perhaps daily. Having viewed the ten publications and the relevant comments, she believes they are referring to Mr Zuchowski and none is a proper reflection of his character.
VCAT hearing
129Despite a recommendation from the Council’s traffic engineers, the Council rejected Cavendish’s application to reduce the ratio of car-parking spaces. Cavendish sought a review of the decision at the Victorian Civil and Administrative Tribunal (VCAT). It was unsuccessful. However, the tribunal’s member or members noted Cavendish could reapply if it produced evidence that the extent of the car parking was not required. Cavendish has not as yet reapplied, and the construction of the three apartment buildings has not commenced.
130VCAT rejected the application in October 2019, having heard it on 21st and 22nd. There had been a tribunal event, called a “practice day”, on 4 September, at which Mr Zuchowski spoke very briefly with Mr Howe. He did not mention the comments. At the hearing in October, he again spoke very briefly to Mr Howe and, again, the comments were not raised. This was so even though on the next day a concerns notice was sent to Andrew and Michelle Doran.
Dorans’ concerns notice
131On 23 October 2019, Mr Zuchowski’s solicitors sent a letter to Andrew and Michelle Doran, asking them to treat it as a “Concerns Notice”. It quoted three comments appearing on 23 and 27 September 2019. It asserted the comments were defamatory and sought an apology, an undertaking, costs and damages. This notice did not lead to a resolution of the dispute. Mr Zuchowski issued a proceeding in this Court. The dispute was then settled. The settlement was the subject of a deed, dated 23 January 2020. Among other things, it provided for an apology and the payment of damages of $45,000 to Mr Zuchowski. Andrew and Michelle Doran also published an apology on the Forum as a visitor’s post. It remained there until Mr Howe received a writ and closed the visitors’ post.
Howe’s concerns notice
132Mr Zuchowski’s solicitors did not write to Mr Howe until after the dispute with Andrew and Michelle Doran had been settled in principle. On 12 December 2019, they wrote to Mr Howe. He received the notice the same day. It sets out the comments between February and December 2019. It too required an apology, an undertaking, costs and an amount of $150,000 instead of damages.
133Within a “couple of hours” of receiving the notice, Mr Howe altered the settings of the Forum and took it “private”. By that, he ensured the Forum could not be viewed by anyone else. He then looked at the comments set out in the notice and removed them from the Forum. Three days later, he reopened the Forum to the public. However, there was no resolution of the dispute and a proceeding was issued.
134In May 2021, Mr Howe closed the Forum to the public.
Defamatory
135Before considering whether the publications contain the imputations which Mr Zuchowski asserts, I should first explain the meaning of “defamatory”. In his written submission, Mr Zuchowski’s counsel sets out the various tests developed to determine whether an imputation is defamatory:
(a) whether the publication has a tendency to lower a person’s estimation in the eyes of right-thinking members of society generally; or
(b) was calculated to injure the reputation of the plaintiff by exposing him or her to hatred, contempt or ridicule; or
(c) has the capacity and tends to put the plaintiff in the position of being shunned and avoided; or
(d) was capable of subjecting the entirely blameless plaintiff to a more than trivial degree of ridicule.
136From an Australian perspective, the words of Mason and Jacobs JJ in Mirror Newspapers v World Hosts should suffice[36]:
“The plaintiff had to prove at common law that the defendant published to a third party a statement about the plaintiff of a kind likely to lead the recipient as an ordinary person to think the less of him.”
[36](1979) 141 CLR 632 at 638.
Did the publications convey the imputations pleaded?
137For this issue, Mr Zuchowski relies on the principles stated by Wigney J in Chau Chak Wing v Fairfax Media Publications Pty Ltd[37]. Principally, they are:
(a) whether the defamatory meanings or imputations are conveyed is a question of fact where Mr Zuchowski bears the burden of proof;
(b) the test is whether those meanings would be conveyed to the ordinary reasonable person: a person of fair, average intelligence, experience and education; fair minded; and not perverse, morbid, suspicious of mind or avid for scandal;
(c) apart from where the meaning is obvious, often it is a question of what implications or inferences the ordinary reasonable person would draw;
(d) the intention of the publisher is irrelevant.
[37][2019] FCA 185 at [14] to [27].
First publication
138The first post related entirely to Cavendish’s application to reduce the car-parking requirements. It stated a meeting with objectors was scheduled for 20 February 2019 at the Patterson Lakes Community Centre. Beneath this post was the comment:
“Billy Zeitoune: $$$ talks.”
139The first publication comprises the first post and Mr Zeitoune’s comment. He submits the ordinary reasonable reader would have understood this publication to convey the following imputations:
(a) Mr Zuchowski was using money to taint the planning process relating to Cavendish’s application; and
(b) he was acting in a corrupt manner in relation to that application.
140I consider the first publication conveys those imputations.
Second publication
141The second publication includes a post and a comment. The post reads:
“!! ALERT: approval of the car parking reduction enabling the high-rises to proceed will breach The Cove Hotel’s car parking permit. How does this make you feel?”
142The comment reads:
“Mike Hildred: I would think the serious money was ‘invested’ long ago… cant trust councils or developers from what I have unfortunately seen.”
143Mr Zuchowski submitted since this publication appeared on the Forum, which at the time contained discussion of Cavendish’s application to reduce car-parking, an ordinary reasonable person would have understood the comment conveyed these imputations:
(a) Mr Zuchowski corruptly paid representatives of the Council so that Cavendish would receive favourable treatment from those representatives; and
(b) he cannot be trusted to act honestly when dealing with Council representatives.
144Mr Zuchowski submitted placing inverted commas around the word “invested” would convey the meaning there was something illegal about the investment. The rest of the comment makes it clear the investment came from the “developers” and was made to councils, each of whom cannot be trusted.
145I consider the publication conveys those imputations.
Third publication
146The third publication appeared on about 21 May 2019. The post which is part of this publication named Cavendish and wrote about Adam Zuchowski, one of its directors. Half way through the post, the writer states:
“This begs the question can you trust the Zuchowski’s to deliver on their word? The Pier One Apartment Complex has NOT been completed to its permit conditions…”
147The post requests the reader to attend to meeting the following night.
148Beneath the third post is the comment:
“Carol Flanagan: After reading about the lack of transparency, delayed in the release of relevant documents, questions raised over the developers integrity how could the council approved such a radical change the clearly stipulated car parking requirement”.
149Mr Zuchowski submits since the post speaks of the Zuchowskis, the ordinary reasonable person would understand the comment as conveying the imputation Mr Zuchowski lacks integrity as a developer.
150The comment about trusting the Zuchowskis relates to his son’s time at Slater and Gordon and a Senate inquiry into the land banking of a Mr Kaye. To Mr Zuchowski, the comment was an attempt to smear his son. Another comment relates to a deceleration lane. Whether such a lane would be constructed was in the hands of VicRoads and, ultimately, none was required. Despite that, it was a requirement in the planning permit. To rectify the mistake, the Council is preparing an amendment to the permit to remove the requirement.
151I agree the comment conveys that imputation.
Fourth publication
152The fourth publication comprises a post relating to the necessity of installing a deceleration lane so traffic could safely enter Pier One Drive from McLeod Road. This related to Cavendish’s development at Pier One Drive. It was followed by a comment:
“Blane Pritchard: Someone’s getting sus Brown paper bags from certain parties”.
153Mr Zuchowski submitted the ordinary reasonable person would understand the expression “sus Brown paper bags” refers to a hidden cash payment made for an illegal purpose. The reader would understand the comment conveyed these imputations:
(a) Mr Zuchowski bribed a council representative; and
(b) he acted in a corrupt manner in his dealings with the Council.
154I agree both imputations are conveyed by the comment.
Fifth publication
155The fifth publication involved a post concerning Cavendish’s permits to construct in the marina precinct and its appeal at VCAT over the refusal to grant its application to reduce the car-parking requirement.
156To the post, these comments were made:
“Lloyd Borrett: And if the developer has the connections to work around the rules like this one would think they might be prepared to cut other corners.
Zachariah Crombie: Who’s pushing this one and paying who under the table…
Rik Price: This utterly stinks. Over-development 100%. Either the system is broken or someone is on the take.”
157Mr Zuchowski submitted those comments convey these imputations:
(a) Mr Zuchowski was prepared to break the law;
(b) he had bribed representatives at the Council;
(c) he had acted in a corrupt manner when dealing with the Council.
158I agree those imputations are conveyed by the comments.
Sixth publication
159The sixth publication includes a post which spoke of a scandal relating to land owned by Cavendish. Beneath the post appeared this comment:
“Andrea Kemp: So whose pockets are being lined at Kingston. This is beyond ridiculous and a full investigation needs to be undertaken at KCC!”
160Mr Zuchowski submits the comment conveyed the imputations Mr Zuchowski bribed a Council representative and acted in a corrupt manner in his dealings with the Council.
161Again, I agree the imputations are conveyed.
Seventh publication
162The post to the seventh publication referred to the developments of Cavendish. Beneath the post were these comments:
“Andrew Doran: His contribution? That’s rich. His contribution is to rape the face of Patterson Lakes for money, then back to Toorak for gefilte fish………’
Andrew Doran: Fidel Ami Cato he came in when the original developer went belly up, picked up the asset for relative peanuts and has been getting fat off it ever since. He is not our saviour, he is a self aggrandising cynical thief’
Andrew Doran: Fidel Ami Cato actually there is a lot we can and are doing about it……Sam’s still not there yet. The probity of the “approval” he has got is under investigation. He hasn’t won at VCAT. He’s lost all support at Council including any special friends in Planning. And he has to sell a percentage to get finance… not easy in today’s market. He can’t even sell the rest of his Pier One holding and that’s been four years now….’
Michelle Doran: I am totally disgusted with Kingston Council. A full review of the planning approval should be undertaken, no body in their right mind would approve such a grotesque over development of this site. This developer is corrupt and council is not much better
Sarah Victoria: A cowboy developer doing as they please because no one stopped them
Leanne Hutchinson: This developer seems to do as they wish without concern for rules or anyone else. Seems they might have people in their pockets on the council. Needs to be stopped.
Shaun Mulcahy: Under the table deals again. Disgraceful
Reece Cliff: looks dodgy as
Vivienne Daniells: How much money does a person need? Why not retire and enjoy his ill gotten gains.”
163These comments are more explicit than others. The language is outlandish. Mr Doran even names Mr Zuchowski in one of his comments. Mr Zuchowski submits they raise various imputations: he has no regard for the area and uses it to make himself rich; he is a thief; he has bribed Council representatives; and he is corrupt.
164I agree those imputations are conveyed.
Eighth publication
165With the eighth publication, the post refers to the proceedings at VCAT. There is a comment:
“Christine Sullivan: It is a disgrace that one greedy developer can destroy the look and feel of a suburb.”
166Mr Zuchowski submits this comment conveyed the imputation that he has a callous disregard for the Patterson Lakes community and uses the marina district just to make himself rich.
167I agree.
Ninth publication
168The post in the ninth publication referred to an investigation into the relocation of the marina workshop by Cavendish and the Cove’s governance issues. Beneath the post was this comment:
“Ken Taylor: You could probably find similar “errors” in planning law relating to the marina workshop when it was relocated into a residential area in Inner Harbour Drive. I regard it as corruption”
169I agree with Mr Zuchowski’s submission that this comment conveyed the imputation he had engaged in corrupt dealings with the Council.
Tenth publication
170The post in the tenth publication claims the Cove Hotel was saved and refers to the Melbourne Racing Club’s deal with Cavendish for a 30-year lease. A comment appeared beneath:
“Paul Kika: Hope the developers choke on the next meal, filthy animals.”
171I agree this comment would be understood to mean Mr Zuchowski is a contemptible person.
Of and concerning Mr Zuchowski
172A defamatory statement is not actionable unless published “of and concerning the plaintiff”. Apart from the seventh publication, Mr Zuchowski is not named in any of them. This is not necessarily a barrier to him suing successfully[38]:
“The test of whether words that do not specifically name the plaintiff refer to him or not is this: Are they such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he was the person referred to? That does not assume that those persons who read the words know all the circumstances or all the relevant facts. But although the plaintiff is not named in words, he may, nevertheless, be described so as to be recognised; and whether that description takes the form of a word picture of an individual or the form of a reference to a class of persons of which he is or is believed to be a member, or any other form, if in the circumstances the description is such that a person hearing or reading the alleged libel would reasonably believe that the plaintiff was referred to, that is a sufficient reference to him.”
[38]David Syme & Co v Canavan (1918) 25 CLR 234 at 238 per Isaacs J.
173As to the ordinary reader, he or she must be fair-minded and not avid for scandal, must not be unduly suspicious, and must have rational grounds for his belief that the words refer to the plaintiff.
174A court does not exclude the evidence of a witness who thought the article related to the plaintiff but disbelieved the article.
175It is for the court to determine the number of readers with special knowledge.
176The writer cannot give evidence of what he or she intended by his or her writing.
177Mr Howe relied on the test in Triguboff v Fairfax Media Publications Pty Ltd[39], which he summarised as follows:
(a) the publication must refer to the individual plaintiff by name or description or as part of an identified group; and
(b) the plaintiff must adduce extrinsic evidence that he or she was recognised as a member of such a group to the exclusion of all other possible classes or groups.
[39][2018] FCA 845.
178I do not consider (b) is a correct statement of the test stated by Bromwich J. It must be remembered the defamatory statements were made about a corporation, not Mr Triguboff directly. The test emerges in [74] to [82], culminating at [82], where his Honour said:
“A reference to a company is not automatically a reference to the natural person or persons running it, or the person or persons who own it. An article about a company alone, and without more, is not an article about its owner, however notorious the fact of that ownership. More is required. The legal entities are separate unless there is something in the publication to bridge that vital and fundamental legal gap. There was no such bridge present in this case.”
179The leading authority on this aspect of identity is E Hulton & Co v Jones[40]. Artemus Jones was a barrister. He had once been on the staff of a newspaper, the Sunday Chronicle. The newspaper published an article about a person called “Artemus Jones”. It was defamatory. Friends of Artemus Jones read the article and believed it referred to him. Although the author of the article and the newspaper did not know of Mr Jones’ existence, a jury awarded damages. The newspaper’s appeals in the Court of Appeal and the House of Lords failed.
[40][1910] AC 20.
180The contents of the article do not appear in the report of the proceeding but they do in the Court of Appeal[41]. The only point of similarity between the plaintiff and the person named in the article was the name “Artemus Jones”. Although the article said so, the plaintiff was not married, was not a churchwarden and did not live in Peckham.
[41][1909] All ER 29 at 31.
181Lord Loreburn LC said[42]:
“Libel is a tortious act. What does the tort consist in? It consists in using language which others knowing the circumstances would reasonably think to be defamatory of the person complaining of and injured by it. A person charged with libel cannot defend himself by shewing that he intended in his own breast not to defame, or that he intended not to defame the plaintiff, if in fact he did both.”
[42]At p 23.
182From this case, these propositions emerge:
(a) it is irrelevant whether the publisher intended to refer to the plaintiff or not. The test in libel is objective: it depends on what the reader understood – not what the writer intended[43];
(b) it is also irrelevant whether the publisher knew of the person’s existence;
(c) it is irrelevant that the publisher did not know or could not have known the facts which cause readers with special knowledge to link the statement to the plaintiff;
(d) extrinsic evidence is admissible to connect the plaintiff with the person related to in the article.
(e) no consideration for the potential impact on customer car parking for The Cove Hotel, including access matters.
371The Club briefed Mr Howe about their position and gave him a copy of the letter.
372Ms Zuchowski believed this letter was an attempt to pressure her father and Cavendish over a protracted outgoings dispute in VCAT. In effect, she doubted the Club’s bona fides.
373It must be remembered the Club was opposing the application to reduce the number of car-parking spaces for the proposed apartment development. If granted, its concern was about the effect of the reduction on the number of car-parking spaces available to its customers. The proposed apartments would not be far from the hotel.
374The position of Cavendish is the permit allowed the relocation of car-parking spaces so long as the hotel retained 152 spaces. Cavendish owns the hotel. The Melbourne Racing Club had leased it for the past six or seven years. Cavendish regarded the Club as a first-class tenant. Accordingly, it submitted it was false to assert approval of Cavendish’s application breached the hotel’s car-parking permit.
375On 22 March 1996, the Council had issued a planning permit to Cavendish (KP960143) concerning Precinct 10, Endeavour Cove, McLeod Road, Patterson Lakes[101]. Clause 5 provides:
“A total of 152 car spaces must be provided for the Hotel use as shown on the endorsed plans. All car spaces must be provided prior to the date of the Certificate of Occupancy for the Hotel.”
[101]Exhibit J.
376At the end of the exhibited permit there is a note that the permit was amended on 31 May 2001 to correct errors in condition 5. Since the amendment was not produced, I assume the errors were immaterial to this dispute. Certainly, no plans were tendered showing where the car-parking spaces were. Mr Zuchowski’s evidence was the permit (and presumably plans) did not show where the spaces were located. To Mr Zuchowski, the placing of the spaces was a matter of negotiation between Cavendish and the Club so that 62 spaces could potentially be located in the riverbank car park.
377To assert approval of the application would breach the hotel’s permit was incorrect. This was so because of the evidence of Mr Zuchowski. To him, the lack of specification in the permit as to where the 152 spaces were situated enabled the view that Cavendish’s obligations were satisfied if it simply provided 152 spaces. Nothing in the evidence suggested he was wrong in that view.
378Mr Howe knew that was Mr Zuchowski’s view. He had said as much in the public meeting in February 2019. Mr Howe did not have any plan relating to the permit saying otherwise. Objectively, he could not deny what Mr Zuchowski asserted. During cross-examination, Mr Howe agreed that Cavendish breaching its lease with the Club would be commercially unwise for Cavendish.
379The imputation pleaded in sub-paragraph (a) is that Mr Howe is a liar. To Ms Zuchowski, if a person does not tell the truth, he or she is a liar. However, that is not the normal meaning of the word “liar” or the word “lies”.
380The Macquarie Dictionary defines “liar” as “one who lies or tells lies”[102]. It defines “lie” in several ways. Relevant to this proceeding, it defines it as: “a false statement made with intent to deceive ; an intentional untruth; a false impression”. Although Mr Howe’s statements were false or untrue in the light of Mr Zuchowski’s evidence, he did not intend to deceive when he made them. He did not realise they were false. One must remember the additional points made by the Club in its letter to Mr Nice. They bore upon the commerciality of the Hotel’s undertaking, especially the last:
“no consideration for the potential impact on customer car parking for The Cove Hotel, including access matters.”
[102]Second edition.
381I have made a positive finding as to Mr Howe’s state of mind. In terms of the defence, I am not satisfied he made the post (15 May 2019) without any belief in its truth.
382The imputation in sub-paragraph (b) is a variation of (a). In its natural and ordinary meaning, the manufacturing of fake news involves an intention to deceive. Again, there is the lack of that intention.
383As to sub-paragraph (c), in a strict sense, Mr Howe did mislead his readers as to the nature of the development.
384As to sub-paragraph (d), there is no evidence of Mr Howe’s murky motives. It was suggested, and denied, that it bolstered his ambition to be elected to the Council. It may have had that effect but there is no basis for me to be satisfied that he had murky or nefarious motives in pursuing this issue.
385Insofar as the imputations contained in sub-paragraphs (a), (b) and (d) are concerned, the defence of justification fails. It succeeds in relation to sub-paragraph (c).
Section 25 of the Act
386The test under s 25 of the Act is the same as the test under common law. Plainly, I would reach the same conclusions.
Qualified privilege
387The defendants rely on qualified privilege, both at common law and under the Act. The privileged occasion is said to be:
“the application by Cavendish Properties to the City of Kingston for the reduction of car parking requirements under KP‑2018/459 at 64 Pier One Drive, Patterson Lakes”[103].
[103]Defence at [10(a)].
388The defendants refer to the words of Lord Atkinson in Adam v Ward[104]:
“... that a privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it.”
[104][1917] AC 309 at 334.
389To be privileged, the occasion must possess a special quality. As McHugh J said in Bashford v Information Australia (Newsletters) Pty Ltd[105]:
“... whether the particular duty and interest are so necessary for the proper functioning of society that the occasion should be privileged ... A defendant who claims that the occasion was privileged must show that ‘both the givers and the receivers of the defamatory information had a special and reciprocal interest in its subject matter’ such that public policy requires that the defendant be immune from liability for the publication.”
[105](2004) 218 CLR 366 at [58].
390These passages reflect the general reluctance of the common law to create privileges or immunities from liability. The occasion must be of such a nature for the welfare of the state to override the interest of an individual to protect his or her reputation. That special reason of public policy is that identified by Lord Atkinson and reiterated in Horrocks v Lowe[106]:
“... the existence of some public or private duty, whether legal or moral, on the part of the maker of the defamatory statement which justifies his communicating it or of some interest of his own which he is entitled to protect by doing so. If he uses the occasion for some other reason he loses the protection of the privilege.”
[106][1975] AC 135 at 149.
391The defendants submit there are three aspects to the defence and each should be treated separately:
(a) identification of the privileged occasion;
(b) relevance of the defamatory statements to the privileged occasion;
(c) whether the plaintiff can establish malice.
392As to (c), the issue of malice does not arise. The essential issue is whether the occasion of Ms Zuchowski making her submission was privileged.
393First, Mr Howe submits it was not a privileged occassion because the publication was made to the world at large and lacked reciprocity of interest. In Visscher v Maritime Union of Australia (No 6), Beech-Jones J said[107]:
“Both articles were freely available on the internet. There is no basis for concluding that the articles were only downloaded and viewed by a limited class of persons with an interest in maritime safety or maritime affairs. Even though the act of publication of both articles was a ‘bilateral’ act ..., there was no reason to conclude that it is anything other than a publication to the general public.”
[107][2014] NSWSC 350.
394Using the internet, the proceeding was streamed live. It was recorded and the recording was placed on the Council’s website. In fact, I saw and heard a recording of Ms Zuchowski’s presentation. As in Adam v Ward, the fact of wider distribution of the defamatory statement may not deprive the communication of its privilege. In that case, the letter of the Secretary of the Army Council was not only given to Major Adam but published in the British and Colonial press.
395The letter attracted the privilege because there was a keen interest within the British empire about the state of the British army. The letter must be viewed in its historical context.
396Although there is no evidence of anyone viewing the streaming of the meeting or viewing it online, the observation of Beech-Jones J is pertinent. There is no basis to conclude that no one viewed the streaming of the meeting or viewed the meeting on the Council’s website. There is reason to conclude otherwise because of the interest generated. Not everyone who wants to attend a public meeting can do so physically. The existence of such electronic services are intended to be used and, in all likelihood, were so used. I do accept the communication was made to a wider audience than those present at the meeting.
397Second, Mr Howe submits it was not part of a social, legal or moral duty for Ms Zuchowski to accuse Mr Howe of lying or manufacturing fake news. Mr Howe submitted it was akin to the circumstances in Guise v Kouvelis[108].
[108](1947) 74 CLR 102.
398In that case, Guise was a regular visitor to a Greek club in Sydney. He was playing cards with two persons, one a member, the other a non-member of the club. Kouvelis was a member of the club and on its committee. He watched the game and said of Guise, “You are a crook”. He said it loudly and there were between 50 and 60 people in the room. Guise sued for slander. A majority of the Court held the words were not spoken on a privileged occasion, reversing the contrary view of the Full Court of the NSW Supreme Court. Latham CJ and Starke J and Dixon J delivered separate judgments. Dixon J dissented. McTiernan J and Williams J agreed with the Chief Justice.
399After referring to Adam v Ward and Watt v Longsdon[109] as governing the law of that case, Starke J said[110]:
“An occasion is privileged where the person who makes the communication has an interest or a duty legal, social or moral to make it to the person to whom it is made and the person to whom it is so made has a corresponding interest or duty to receive it. ‘As to legal duty,’ said Scrutton LJ, ‘the judge should have no difficulty; the judge should know the law; but as to moral or social duties of imperfect obligation, the task is far more troublesome. The judge has no evidence as to the view the community takes of moral or social duties. All the help the Court of Appeal can give him is contained in the judgment of Lindley LJ in Stuart v Bell: ‘The question of moral or social duty being for the judge, each judge must decide it as best he can for himself. I take moral or social duty to mean a duty recognized by English people of ordinary intelligence and moral principle, but at the same time not a duty enforceable by legal proceedings, whether civil or criminal’.”
[109][1930] 1 KB 130.
[110]At pp 113-114.
400As to social or moral duties, Latham CJ said[111]:
“The persons to whom the statement was made, whether members or visitors, must, I think (in the absence of evidence to the contrary), be taken to have included individuals who might never have anything to do with the plaintiff, except, in the case of members, in having a common membership of the club. I can see no justification for holding that the interests of the defendant or of the members of the club or any social or other duty fairly warranted the public statement which was actually made. The basis of the privilege in question is social welfare and I am not prepared to hold that it is conducive to social welfare to lay down a rule that a member of a club who is doubtful of the honesty, or is satisfied of the dishonesty, of another person who is in the club on a particular occasion is privileged in expressing his opinion to members of the club in general. To hold the contrary would amount to granting a wide licence to officious and interfering mischief-makers.”
[111]At p 112.
401Starke J said “no reasonable right-minded man” would have said the words “You are a crook” in a loud voice to 50 or 60 persons who had no interest in the game or the persons playing it.
402The defendants submitted a meeting to discuss planning proposals may attract privilege. In a footnote, they refer to Gatley on Libel and Slander at [14.38]. In the 12th edition, that paragraph does speak of the privilege but only as it relates to those elected or appointed to serve on public bodies.
403In the same footnote, the defendants referred to the judgment of the Canadian Supreme Court in Robertson v McBride[112]. In that case, the respondent spoke at a meeting of an association of ratepayers of a ward of Toronto. The appellants were publishers of a newspaper. The meeting was discussing proposals to extend a road called “University Ave”. These proposals had been discussed at public meetings of the Municipal Council, at public meetings of citizens and in the newspapers. The respondent was alleged to have said: “Because a front street does not pass the front door of a certain newspaper they are trying to undermine the good government of Toronto and the Dominion”.
[112][1931] 4 DLR 132.
404The Court affirmed the trial judge’s ruling that the words were spoken on a privileged occasion. Duffy J said[113]:
“The projects which were the subject of discussion and consideration would involve, if carried out, the expenditure of large sums of money, the burden of which would ultimately fall upon the citizens of Toronto, and the respondent was quite within the scope of his duty in bringing before the ratepayers every argument which he reasonably and honestly believed to have a bearing upon the subject.”
[113]At p 133.
405The passage pointed to the motive of the newspaper in taking the position it did. The suggested motive was inconsistent with the good government of Toronto and Canada. In the present case the attack goes much further, in that deliberate dishonesty is involved.
406The impugned words came at the end of Ms Zuchowski’s submission. Beforehand, and within the limited time allowed to her to address the meeting, she had argued from distinct facts. However, those final words did not involve a statement of distinct fact but an attack upon Mr Howe. There was no legal duty for Ms Zuchowski to say the words in question. It was not submitted there was. Ms Zuchowski was not protecting an interest of hers. She spoke to protect an interest of Cavendish.
407The defendants rely upon Wraydeh v Fairfax Media Publications Pty Ltd[114] in relation to the defence at common law.
[114] [2021] NSWCA 153
408I cannot see any social or moral duty to call Mr Howe a liar and the maker of fake news. Taking the test set out by Starke J, there was no social or moral duty to speak as she did. It was an attack on Mr Howe’s character which departed from the structured, factual arguments of Ms Zuchowski’s submissions. It may have been due to the short time given to Ms Zuchowski to speak on an important issue and her desire to persuade the decision-makers. Although the occasion was privileged, her concluding remarks were not relevant or germane to the occasion. Ms Zuchowski gave a presentation about a planning application. Her task was to argue Cavendish’s case for an application. She did that for most of the occasion. There was nothing special about the occasion which placed a social or moral duty upon Ms Zuchowski to say what she said. I do not consider her concluding remarks are protected by the privilege.
Statute
Section 30 of the Act
409Section 30 of the Act creates the defence of qualified privilege. Relevantly, it provides:
“(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
Ithe 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 the following factors to the extent the court considers them applicable in the circumstances—
(a)the seriousness of any defamatory imputation carried by the matter published;
(b)the extent to which the matter published distinguishes between suspicions, allegations and proven facts;
Ithe nature of the business environment in which the defendant operates;
(d)whether it was appropriate in the circumstances for the matter to be published expeditiously;
Iany other steps taken to verify the information in the matter published.
(3A) Subsection (3) does not—
(a)require each factor referred to in the subsection to be taken into account; or
(b)limit the matters that the court may take into account.
(3B) It is not necessary to prove that the matter published concerned an issue of public interest to establish the defence of qualified privilege under subsection (1).
(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.
(6) Without affecting the application of section 22 to other defences, the jury (and not the judicial officer) in a defamation proceeding tried by jury is to determine whether a defence under this section is established.”
410As to the requirements of sub-s (1), those set out in paragraphs (a) and (b) are established by the defendants. The issue is whether the requirement of paragraph (c) is proven. In assessing this paragraph, I may take into account the factors set out in sub-s (3), where they are relevant.
411The defendants submit Ms Zuchowski’s conduct was reasonable in that she was responding to what she believed was the falsity of the assertion in the post of 15 May 2019 that approval of the application would breach the hotel’s car-parking permit and the hotel’s viability was under threat. Her presentation followed that of Andrew Doran which included, in her opinion, a false statement about the number of car-parking spaces available if the application was granted and a dire warning concerning the intersection of McLeod Road and Pier One Drive.
412It is worth setting out the warning as it set the tone for Ms Zuchowski’s presentation:
“Don’t fall for the con job, uphold it and I have one more quick point. On Saturday, May 11th, the intersection of McLeod Rd and Pier One Drive saw its first fatality. It will not be the last, every councillor who votes in favour of this proposal, will bear some responsibility for the future deaths that occur here. Please let good sense prevail, just say no. Thank you.”
413It was an appalling way to end his presentation. That almost all of Ms Zuchowski’s presentation was measured is remarkable. In most presentations of this kind, the final words are meant to resonate with the audience.
414In the context of this public meeting, calling Mr Howe a liar and maker of fake news carries reasonably serious defamatory imputations. The impugned matters were statements of opinion based on alleged facts. It did not distinguish between suspicion, allegation or proven facts. The application was a serious matter for Cavendish and for Ms Zuchowski as its employee. Its failure impeded Cavendish’s ambition for significant development. Ms Zuchowski made the impugned statements as a summary of the factual matters which preceded it. Ms Zuchowski believed what her father had told her. There was no reason for her to believe otherwise. However, it was unreasonable for her to describe Mr Howe in those terms in that setting. I would adopt the language of Starke J that no right-minded person would have said those words in those circumstances.
415In the circumstances, the impugned statements of Ms Zuchowski were unreasonable. I am not satisfied the defence under s 30 has been established.
Section 29 of the Act
416In their defence, the defendants plead s 29 of the Act. In their closing submissions, they see no need to rely upon it. I agree. Section 29 has no application to this proceeding.
Extent of publication
417The meeting was well-attended. As I said, there was no evidence from which I could conclude Ms Zuchowski’s presentation was heard by a wider audience. Mr Howe was very upset at being called a liar and maker of false news. The grapevine effect applies equally in this case. By this stage, there was enormous local interest in the application and the proposed developments. But much of the interest lay in the marina area. These defamatory remarks spread further than the confines of the meeting room but the audience remained relatively small.
418Judging from the cries of “shame”, some in the audience gave them no credence. Similarly, Sullivan, Crombie, Nielsen and Ronke knew them to be wrong. However, others may not.
419Bearing in mind, my finding in paragraph 385, in my opinion, I should award Mr Howe $15,000 for the defamatory statements against Cavendish. Since one imputation does not apply to Ms Zuchowski, the damages awarded against her should be $10,000.
Conclusion
420I will award Mr Howe damages of $15,000 against Cavendish, of which Ms Zuchowski is jointly liable as to $10,000.
421I will hear the parties on the questions of interest and costs for both proceedings.
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