Crushed Rock damages ruled too soft on appeal: Jeffrey & Curnow v Giles [2015] VSCA 70

The plaintiffs

The plaintiffs

Jeffrey and Curnow were defamed by statements made by Virginia Giles on a website in 2011. The plaintiffs were directors of a company, Casacir Pty Ltd, which operates a quarry in the south of Victoria. The defendant’s company owned the neighbouring property and the defendant planned to retire there. So when the plaintiff applied for a permit to use the land as a quarry, the defendant objected and there was a hearing at VCAT about that. The defendant lost and the quarry was allowed.

After the VCAT hearings, the defendant created a website: That website contained a number of statements which the plaintiffs claimed were defamatory of them, including statements that were said to carry the following meanings:

  • Jeffrey provided inaccurate, fictional and/or deceptive information at community meetings about the quarry;
  • Jeffrey deliberately gave false evidence under oath at VCAT; and
  • Curnow also effectively gave false evidence before VCAT.

The plaintiffs sued in defamation. In 2013, a trial was held in the Victorian Supreme Court before His Honour Justice Pagone and the plaintiffs virtually won everything. The trial judge accepted that the statements conveyed the meanings that Jeffrey and Curnow had deliberately given false evidence under oath before VCAT, and that Jeffrey would apply the orders of the Tribunal only as it pleased him to interpret them. The trial judge then found that the plaintiffs were entitled to consolation, reparation and vindication for the injury caused to their good reputations by the defendant’s defamatory conduct.

The plaintiffs’ evidence at trial were about the impact of the defamatory words within the quarry and road stabilization industries, and the grapevine effect of those words.

But the trial judge held that a lot of the evidence did not distinguish between the impact on the plaintiffs of the defamatory words and the impact caused by other conduct of the defendant, including other non-defamatory statements on the website. Thus the conclusion was that the defamatory words were only one of the causes of the injury to the plaintiffs. Ultimately, the trial judge awarded $12,000 damages to Jeffrey and $8,000 to Curnow. The plaintiffs appealed, claiming that the amounts were manifestly inadequate.

The Victoria Court of Appeal agreed. The damages were too low. It was concluded that the trial judge’s awards were unreasonable or plainly unjust.

While there was no real evidence that people who had visited the website had actually seen the defamatory words, the Court of Appeal still concluded that the awards were “derisory” and so low as to be manifestly inadequate. The Judges referred to other defamation cases concerning statements made on the internet that attracted damages of $225,000 and $200,000, and stated at [36]:

 “The view has been expressed that the `choice of the Internet as the medium for the publication of defamatory material may be an important factor in determining the extent of compensatory damages, not only because of `its interactive nature, its potential for being taken at face value, and its absolute and immediate worldwide ubiquity and accessibility., but also because of the possibility of retrieval by anyone who is computer literate:

 In the past, a defamatory article in a newspaper might have been quickly forgotten and accessible only to an intrepid researcher prepared to spend hours in a dusty archive or pouring over microfiche film. Today, the same article stored in an online archive may be able to be retrieved in a matter of seconds by anyone with a computer or other Internet-enabled device, an internet connection and a passing familiarity with the formulation of search engine inquiries.”

 The Court of Appeal also held that the trial judge erred because he implicitly proceeded on the basis that damages could only be awarded if the harm “has been solely caused by the defamatory statements”. That was a mistake. The statements need only be a cause, not the sole cause. Once that is established, then the plaintiffs were entitled to general damages that bore an appropriate and rational relationship to the harm that was sustained.

In all, the Court of Appeal held that while the plaintiffs were not entitled to aggravated damages, Jeffrey was entitled to $75,000 damages and Curnow was entitled to $65,000: a significant improvement for them.

So the Victorian Court of Appeal has latched on to the importance of internet publications. No longer will the internet be treated as less important or less harmful than publications in newspapers or on television.  The Court is moving with the times. Unfortunately for Australian law, when it comes to the internet, we are still miles behind Europe and America .…



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CSI Lismore: German backpacker’s efforts to prevent publication of book all in vain: Moran v Schwartz Publishing Pty Ltd [2014] WASC 334

In early 2005, the plaintiff, a German National with a working visa in Australia, was travelling along the east coast of Australia in a campervan with his German girlfriend of 6 and a half years, Simone Strobel. By the time they got to Lismore, they had been joined by the plaintiff’s sister, Katrin and another friend from their village in Germany called Jens.

The plaintiff

The plaintiff

In February 2005, while the party of 4 camped at the caravan park in Lismore, Simone disappeared and her body was found 6 days later, 90 metres from the camp site under a pile leaves. How she died remains a mystery.

In 2007, a coronial inquest took place in relation to her death and one of the observers was Virginia Peters, who was to write a book about the case. The Coroner made the finding that Simone died on 12 February 2005, and that it was more likely than not, that she died from suffocation or asphyxia, which was caused by the action of a person unknown.

In 2014, Ms Peters (the second defendant) wrote a book, “Have you Seen Simone?”, and it was set to be published by the first defendant, both in physical hard copy and in electronic format. The plaintiff urgently ran off to the West Australian Supreme Court and sought an interlocutory injunction, seeking to prevent the publication of the book. He argued that the book carried an imputation that he was guilty of murdering Simone.

The defendants argued that the book carried an imputation that there were reasonable grounds to suspect that the plaintiff was guilty of the murder, and they were going to argue that such an imputation was true. Kenneth Martin J accepted that there did exist facts which comprised reasonable grounds to suspect the plaintiff. Those included:

  • As at February 2005, while the plaintiff and Simone had been in a relationship for six and a half years, their diaries revealed that their relationship had deteriorated and in the days before the death, they were arguing;
  • There had been some verbally aggressive behavior from the plaintiff towards Simone on the evening she was last seen alive;
  • On the evening before Simone disappeared, the party of four had been observed to have drunk excessive amounts of alcohol and it was also suggested they had marijuana;
  • There was evidence of an argument involving Simone and the plaintiff at the caravan park before she walked off that evening;
  • The remaining party of 3 were the last people to see Simone alive before she disappeared; and
  • Simone’s body was found 6 days later, only 90 metres from the camping site and covered by palm branches.

While His Honour found that none of this was conclusive in establishing the plaintiff’s guilt, there was enough to create reasonable grounds for a suspicion of guilt.

The judge considered the authorities on injunctions in relation to potentially defamatory publications and concluded that the position in Australia was more flexible than that in England, where if a defendant stated that it was going to plead truth, it is virtually impossible to get such an injunction.

The question in this case was where the balance of convenience lay. A critical factor for Kenneth Martin J was that since 2005, there had been a large volume of material that had appeared on the internet canvassing the death of Simone and suggesting involvement by the plaintiff. The defendants produced 90 pages of this in evidence.

Also, in 2011, Channel Seven broadcast a show “Sunday Night” where it unequivocally asserted that the plaintiff killed Simone. That show remained accessible on the internet at the time of the hearing.

His Honour also acknowledged the public interest in freedom of speech, the fact that the plaintiff did not live in or have assets in WA (and so that effected the value of any undertaking as to damages that he could give) and what His Honour concluded were the respectable defences raised by the defendants. In the end: no injunction granted, the plaintiff’s proper remedy is in damages.

Whether there is a trial or not in 2015, remains to be seen. If not, a version of the case will probably appear on one of the 47 murder mystery shows in the USA. Surely, they will run out of ideas soon…

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Facebook and Twitter damages music to teacher’s ears: Mickle v Farley [2013] NSWDC 295

Orange is a large rural town in Western New South Wales and its High School became a site for a landmark defamation verdict. Yes, this case happened a while ago, but in our new age of social media, an interesting case and a cautionary tale.

The plaintiff

The plaintiff

The defendant, a 20 year old former student at Orange High School apparently held a grudge against the plaintiff, Mrs Mickle, a 58 year old music teacher, who was promoted to head of the music department when the defendant’s father, who held that position, became ill. The defendant did his Higher School Certificate at that school in 2011 and had never been taught by the plaintiff.

The plaintiff had given many years of devotion to students and teaching music generally. Her reputation for that went beyond the school and the Principal of Orange High School was aware of that reputation when the plaintiff was hired. So adored was Mrs Mickle that the students at the school wanted to re-name the school’s music centre after her.

In any event, the defendant believed that the plaintiff had something to do with his father leaving the school, even though there was no evidence to substantiate that belief. Nevertheless, acting on that belief, the defendant posted a number of defamatory comments about the plaintiff on Twitter and Facebook. The posts must have been seriously defamatory because they were not repeated in the judgment, a sign that the judge did not want to repeat the defamations, presumably out of deference to the plaintiff.

The effect on Mrs Mickle was devastating. She was particularly hurt by suggestions that she may have been responsible for the ill health of the defendant’s father, which suggestions had no substance at all.  Mrs Mickle was so devastated that she had to stop work and at the time of the trial, where the defendant did not appear, she had only returned to work on a limited basis.

Justice Elkaim heard evidence from the plaintiff and three others, then awarded compensatory damages to the plaintiff of $85,000 plus aggravated damages of $20,000. The aggravation was caused because the defendant originally filed a defence that asserted truth and had given an insincere apology.

The judgment rocked the social media world. It was the first substantial verdict in Australia from these social media publications, and a warning to students, teachers and Tweeters everywhere. The judge ended with this snippet for plaintiffs:

when defamatory publications are made on social media it is common knowledge that they spread. They are spread easily by the simple manipulation of mobile phones and computers. Their evil lies in the grapevine effect that stems from the use of this type of communication.”

No doubt that this will be quoted in defamation claims across the land in future. Particularly when plaintiffs face the problem of not knowing precisely how many people read the internet publications they complain of. Alas for Generation Y and their addiction to social media: perhaps Tweeting about teachers is not such a good idea….


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Defendants’ go all-in: Plaintiff calls their bluff and wins the $340,000 pot: Polias v Ryall & Ors [2014] NSWSC 1692

The plaintiff and four defendants were poker players used to playing high stakes games: hands worth thousands of dollars. In the middle of 2012, the plaintiff and the first defendant went to Las Vegas for a tournament and shared a room. Evidently for them, what happens in Vegas did not stay in Vegas.

The plaintiff

The plaintiff

Rumours circulated afterwards that the plaintiff was a thief and that he stole $2,000 of another player’s money. He was so concerned that he put up an explanation of his version of the events on Facebook. That explanation drew comments on the Facebook page and the defamation claim arose substantially from those comments, being allegations that still asserted that the plaintiff was a thief, arising from that event in Las Vegas, and from another event at The Star Casino, in Sydney.

What happened in Vegas was a matter of dispute, and became the core of this defamation trial. While rooming together, the security safe for the plaintiff and the first defendant was not working and they agreed that the plaintiff could hide his cash in a soft toy that had been bought by the first defendant. That soft toy, whatever it was, held a lot of money.

After around the first week, the first defendant ran out of money, and so the plaintiff lent him some money for gambling and living expenses. At the time, Mr Tommy Yi was also in Vegas at the tournament. He borrowed $2,000 from the plaintiff for his own gambling. A few days later, Yi gave $2,000 to the first defendant, to give it back to the plaintiff. The first defendant returned to the room and put the cash on the dressing table.

The next morning, the $2,000 was not on the dressing table. The parties did not remember what had happened to that money (the plaintiff accepted that maybe he moved the money into the soft toy) and a count was then taken of the money in the soft toy and there was an extra $2,000 in it. The allegation of theft related to that $2,000.

The first defendant believed that, since the plaintiff said he did not recollect whether he saw the $2,000, that this was an attempt by him to obtain the $2,000 again, knowing he had already received it. Seriously? A trial over that?

Anyhow, the trial related to 8 publications: 3 were oral statements made by the various defendants and 5 were Facebook comments. Essentially, each of the defendants claimed that the plaintiff is a thief, that he tried to steal money and that he bends the facts to deny that he is a thief. The only defences relied on by the defendants was truth.

The second event occurred at The Star Casino in Sydney. The case against nsw.scthe plaintiff there was that he short-changed a player who had just won a big pot against him, by getting change from the dealer at the time and in the confusion, only handing over half of what he owed.

The problems for the defendants were these:

  • The mistake was pointed out and the plaintiff immediately paid over the right amount;
  • the winner of the pot did not complain; and
  • in poker, apparently this happens all of the time.

The judge accepted that this was a mistake by the plaintiff and the allegation that the plaintiff tried to steal this money was comprehensively rejected.

In assessing the witnesses’ credibility, the defendants did not do well. Statements such as “deliberately prevaricating, dissembling and lying… his answers were inaccurate or untruthful” [34] are undoubtedly formidable skills at a poker table, but in a defamation trial… not so much.

The defences of truth were not made out and the plaintiff won big.

Even though the evidence was that the number of people who read the Facebook comments were confined, they caused great hurt and distress to the plaintiff. He had to see a psychologist, he became depressed and upset. He was defamed within the poker playing community and the judge also relied on the grapevine effect when calculating the damages.

The conduct of the defendants, including their attitude at trial, their failure to apologise and the fact that the Facebook posts remained online, also entitled the plaintiff to aggravated damages. While the judge did not apportion what of the damages were for aggravation, in total, the plaintiff won:

  • $125,000 against the first defendant for two Facebook posts;
  • $130,000 against the second defendant for three Facebook posts and an oral statement;
  • $50,000 against the third defendant for an oral statement to a small number of people; and
  • $35,000 against the fourth defendant for an oral statement to a small number of people.

Also, the plaintiff was granted an injunction preventing the defendants from continuing to publish the imputations complained of.

So as for the plaintiff and his sorte into litigation, quite simply, now would be the best time to cash out…

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Google’s dream comes true: plaintiff fails because trial would cost too much to run: Bleyer v Google Inc [2014] NSWSC 897

Roland Bleyer alleged that Google Inc published seven items about him, three in the form of search results and others in relation to articles that those search results hyperlinked to. For instance, the first matter that Bleyer sued on said this:

 “The State of California v Roland Frank Bleyer: Felony Complaint for…


Felony Complaint for Arrest Warrant in The State of California v Roland Frank Bleyer, aka Roland Husner, at Beverly Hills Municipal Court, Los Angeles…

The Defendant (again)

The Defendant (again)

Bleyer pleaded that three people read the search results, two of which occurred before Google was notified of his claim that those search results were defamatory of him. He then pleaded the usual: “Further particulars will be provided after discovery and interrogatories.”

Google brought on an application to dismiss the proceedings or have them permanently stayed. It argued that:

  1. There was an obvious and substantial disproportion between the cost of the exercise and the conceivable vindication for the plaintiff, and accordingly, the Court should apply the proportionality principle applied in the UK;
  2. Google was not a publisher of the search results or alternatively had the defence of innocent dissemination; and
  3. A judgment in Mr Bleyer’s favour would be unenforceable in the USA.

Most of the argument at the application was on whether an English Court of Appeal decision, Jameel, where a defamation claim was stayed as an abuse of process, was applicable in the NSW Supreme Court. This was based largely on the fact that the plaintiff had pleaded that only three people had read the publications complained of.

The plaintiff argued that he might find that further people had read it, once discovery and interrogatories were completed.  This was crucial, but this was rejected by Her Honour Justice Macallum.

Her Honour found that proportionality was an important aspect of justice and that the claim should be limited to what was pleaded by the plaintiff and not any speculation about who else might have read the results. Harsh. However, Her Honour did state that that it was open for a plaintiff to plead additional facts, matters and circumstances from which it could be inferred that there was broader publication, such as the popularity of the website, the public profile of the plaintiff and any other fact pointing to the conclusion that the web page would have been downloaded by a broader range of people.

As for the proportionality principle, Her Honour broke new ground in terms of Australian defamation law. She concluded that considerations of proportionality  between the value or utility of the remedy sought and the resources required to prosecute its determination may in some instances warrant the conclusion that such a remedy should not be allowed to be pursued [39], [56].

Her Honour considered the NSW Civil Procedure Act and concluded that there would be cases where the disproportion is so vast as to warrant the stay or dismissal of proceedings [57], [62]. Although such cases would be rare, this was such a case. The factors Her Honour relied on were: the fact that 2 out of 3 publications were before Google was notified of their existence, and so Google had a complete defence to those (the defence of innocent dissemination), the fact that the case would involve complicated issues of law and fact and also that, if the plaintiff won, the judgment would not be enforceable in the USA.

In terms of whether Google was a publisher of the search results, Her Honour preferred English authority which held that it was not, at least prior to notification, as opposed to the rulings of His Honour Justice Beach in Trkulja in November 2012 [77]. Another win for Google. However, the UK Court of Appeal had concluded that the situation was different for circumstances where Google had been notified of the publication. Another argument for another day.

Overall, a harsh decision. How is a plaintiff supposed to know how many people read the search engine results? If the plaintiff were to attend a job interview, and searches were conducted of his name, no doubt that these search results would appear. So the decision makes things difficult for plaintiffs.

Clearly, this was a massive win for Google. No doubt that since Trkulja, when it was ordered to pay damages of $200,000 (and did pay it), Google Inc has changed its approach to litigation in Australia. Now it argues that , being an American entity, it need not pay any judgment. How this position sits with Google’s founders’ intentions of being a good corporate citizen is another matter…




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Mildura Water Corporation Appeal hosed down: Lower Murray Urban and Rural Water Corporation v Di Masi & Ors [2014] VSCA 104

The appellants

Two of the winning plaintiffs

In 2012, a jury in the Supreme Court of Victoria sat in Mildura, a small orange-picking town on the border of NSW, for 22 days (there were a further four days of legal argument) and heard a defamation case. At the end of it all, left with a list of pages of questions to answer, the jury found for the four plaintiffs, three of whom were awarded $70,000 and the other $85,000.

The defendant, who had turned down an offer of compromise where the plaintiffs said that they would accept $20,000 (in hindsight: not a good call), appealed.

What happened was this:

  • In August 2008, the Minister for Water at the time, made a decision to appoint the appellant to take over the operations of the First Mildura Irrigation Trust (FMIT);
  • The plaintiffs were on the board of the FMIT at the time
  • In September 2008, the Minister wrote a letter and addressed it to all of the former customers of the FMIT about this decision. The jury found that the letter carried the following defamatory imputations:
  1. That the plaintiffs broke the law by investing $2.2 million of Victorian Government money without Treasury approval;
  2. That the plaintiffs acted irresponsibly and outside the law by investing money loaned from the Victorian Government in the United States Sub-Prime Mortgage market;
  3. That the plaintiffs approved secret, last minute adjustments to senior management contracts in the event of the First Mildura Irrigation Trust being taken over.
  • In September 2008, the managing director of the appellant uploaded the letter onto the appellant’s website.
  • The plaintiffs argued that the letter was defamatory of them and sued the appellant.

At trial, the appellant ran several defences, including that the letter written by the Minister was “issued” by the government and was therefore a public document, within the meaning of section 28 of the Defamation Act. The trial judge rejected this argument and this was one of the main aspects of the appeal.

The Court of Appeal upheld the trial judge’s findings in virtually all respects. It agreed that the letter was not “issued”, because it was only sent to former customers of FMIT, it was not of a genuinely official nature and it was not published to the public. Therefore, that s.28 defence failed: [70].

The appellant also argued that the trial judge was wrong when he rejected the section 30 Defamation Act defence, namely that the recipients had an interest in the subject matter and the appellant had a duty to publish. That was rejected because it was held that the appellant’s conduct was not reasonable, which is required by section 30(3) of the Act.

To answer that question, it was held that the Court could look at the subjective intent or purpose of the publisher [87]. The appellant had acted unreasonably because at the time of uploading the letter, the appellant had information that showed that, contrary to the letter, the board had not invested the money borrowed from the government in the United States, and the appellant did nothing to put the plaintiffs’ side of the story.

The appellant also complained about the amount of damages, since the trial judge had relied on the “grapevine effect” in a rural community. This too was rejected.

So the trial judge was validated in virtually all respects and the appeal was dismissed. Since then, defamation judges in Victoria have always been cautious about the barristers’ trial length estimates. Fortunately for Mildura, the case was not remitted back to determine a question or two, and presuming no leave was sought to appeal to the High Court, the case has now come to an end.

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420,000 reasons why Gallery Owner is no Racist: Cripps v Vakras [2014] VSC 279

In June 2009, two surrealist artists, Demetrios Vakras and Anne Raymond hired out gallery space at Guildford Lane Gallery for a 2-week exhibition. The operator of the gallery was Redleg Museum Services Pty Ltd and the owner was Raymond Cripps, a Vietnam veteran who returned in 1969 and had worked his way into the arts transportation business with his brother.  His brother worked for the National Gallery of Victoria. In 2008, Cripps and his brother opened the Gallery, having spent around $1 million fitting it out.

This painting was not done by the defendants.

This painting was not done by the defendants.

The exhibition opened, but it is fair to say that the parties were not happy. In a nutshell, and doing my best not to oversimplify what was obviously a complicated, multi-dimensional war of a trial, each thought that the other was a racist. On the one hand, Cripps thought that the artists’ works could be construed as racist, blaming Palestinian people for the situation in Israel. The artists were affronted by this and claimed that their works criticized four religions. The parties argued about the situation in Israel. Highly volatile issues were involved: anti-semitism, whether Islam was to blame, the Koran… This really became the source of the entire dispute in this case.  Within the context of this fundamental, intractable dispute, came a defamation trial before His Honour Justice Kyrou and then a lengthy judgment.

Back to the exhibition, after it ran its course, the artists sued Cripps for breach of contract in a VCAT proceeding, seeking payment of around $13,000.  They also used their two websites to upload material that attacked Cripps. For instance, on 21 August 2009, Vakras uploaded an article onto his website entitled “Exhibition in 2009 Human Transhumanist: the fiasco of Guildford Lane Gallery of Melbourne the extended version”. The article ran for 7 pages, if printed out, and included text, photos and images. Among it, were the following words:

 “… There are several words which I can describe Cripps: poisonous, vile, repellent, malignant, racist, liar, bellicose, bully, stupid … Cripps is a self-confessed racist … He is a manifestation of the new left who have adopted sentiments Hitler expressed in Mein Kampf, but who believe that, though theirs and Hitler’s sentiments are the same, their racisim is a ‘justifiable’ one.

Cripps and his company then sued the artists in defamation and the trial was heard over 2 weeks in March 2014.

Many defences were argued, and in June, Justice Kyrou delivered a tour de force, epic 789 paragraph judgment. His Honour found that Vakras’ website carried the following imputations where the defences failed [667]:

  1. the plaintiff is a disgraceful individual who is to be avoided assiduously;
  2. the plaintiff engaged in conduct which inhibited the Artists’ capacity to promote the Exhibition, causing it to fail, but the plaintiff still made a profit from the Exhibition:
  3. the plaintiff is a racist who holds views that are similar to those of Adolf Hitler;
  4. the plaintiff is a bellicose bully;
  5. the plaintiff’s pattern of intimidating behavior has left other artists reticent to describe publicly their own negative experiences with him;
  6. the plaintiff has sexually harassed volunteers and staff at the Gallery and unless he is stopped, he will continue to do so.

Anne Raymond also published her own website. His Honour found that this second website carried the following imputations where the defences failed [745]:

  1. as the operator of the Guildford Lane Gallery, the plaintiff has repeatedly engaged in behavior that destroys the exhibitions of the artists who exhibit their works there;
  2. as the operator of the Guildford Lane Gallery, the plaintiff has repeatedly engaged in behavior that sullies the reputations of the artists he represents;
  3. the plaintiff, a professional Gallerist, ceases to support and actively sabotages the exhibitions of artists who exhibit their works at the Gallery once he can no longer make any further profit from them;
  4. the plaintiff, in his arts transportation business, is universally despised;
  5. the plaintiff, by reason of his ignorance of art, is not a fit and proper person to be a gallerist.

The main reason there was no defence was because His Honour rejected the

Victorian Supreme Court

Victorian Supreme Court

evidence of the defendants. Putting to one side the allegations about Cripps’ conduct/capabilities as a gallerist, His Honour made a number of factual findings on the racism issue arising from two meetings that took place on 18 June 2009 and 24 June 2009. His Honour found that:

  • Cripps did not say that he disliked Jews;
  • Cripps did say that he opposed Israeli policy in the Palestinian areas, but this was not anti-semitism;

As a result, the artists’ websites that likened Cripps to Hitler were not based on truth. Once that finding was made, this was a serious defamation. It is fair to say that for the defendants, the judgment did not read well. Their evidence was comprehensively rejected by the judge and after that, it was never going to end well for them.

His Honour also relied on the grapevine effect and launched into a number of substantial awards of damages, namely:

  • As against Vakras: $250,000, plus a further $100,000 for aggravated damages;
  • As against Raymond: $50,000, plus a further $20,000 for aggravated damages.

This is the highest total of damages in Victoria since the cap was introduced. Whether the artists can pay or not, well that might be another thing… although it might help that on the contract claim, the artists were awarded $3.15…

In any event, it appears that appeal papers have been lodged. But what was the moral of the story? If anything, it appears to be this: if you are going to write that someone has similar views to Hitler, you might want written evidence of that before doing so, just a thought….

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2014: That Was the Season That Was

Unsaved Preview DocumentFirst of all, a big mea culpa from myself. Yes, it is true that my efforts to maintain a proper updating of this website across 2014 have ranged from abysmal to downright pathetic, but 2015 is a new year, full of promise, hope and wide-ranging resolutions.

One of which is to get back to writing up reasonably prompt casenotes when interesting cases are handed down. This will mean putting to one side the many time commitments consumed by the demands of my own practice, child-rearing, swimming, fixing the broken door, avoiding organic watermelon and re-watching the DVD of Hawthorn’s 2014 premiership glory.

Anyway, the resolution starts with a summary of the most prominent and important cases of 2014. While in the UK, the new Defamation Act 2013 commenced, in Australia, there were a number of large verdicts arising from publications on the internet, as well as a number of significant interlocutory judgments which involved injunctions, strike out applications and claims for loss of business.

The following cases were noteable in 2014:

  1. Cripps v Vakras [2014] VSC 279: a successful claim by a gallery owner against two artists arising from publications on two webpages that asserted that, among other things, the plaintiff held views similar to Hitler. Justice Kyrou awarded him $420,000 in all.
  2. Lower Murray Urban and Rural Water Corporation v Di Masi & Ors [2014] VSCA 104: an appeal to the Victorian Court of Appeal against judgments made by Justice Kaye in the plaintiff’s favour in a 2013 trial that ran for 22 days in Mildura;
  3. Bleyer v Google Inc [2014] NSWSC 897: an application by Google Inc to permanently stay a case, partly on the grounds that the costs that would be involved in running the case would be disproportionate to the remedy sought by the plaintiff.
  4. Polias v Ryall & Ors [2014] NSWSC 1692: a poker player that won $340,000 in damages for publications made by a number of other poker playing defendants on Facebook and in oral statements.
  5. Moran v Schwartz Publishing Pty Ltd & Anor [2014] WASC 334: an urgent claim brought by a person seeking to prevent the publication of a book relating to an unsolved murder from 2005.
  6. North Coast Children’s Home Inc & Ors v Martin [2014] NSWDC 125: successful claims made a foster care home, its manager and CEO against a former foster carer for publications on Facebook and in email.
  7. Setka v Abbott & Ors [2014] VSCA 287: an appeal by a plaintiff to the Victorian Court of Appeal in respect of how the defendants had pleaded a fancy type of truth defence.
  8. Dabrowski v Greeuw [2014] WADC 175:  a claim for damages by a man against his estranged former wife for publications on Facebook.

So for the first part of my 2015 resolution, these will be done. Then all I have to do is watch less T20 cricket …

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Google: “I Tort I Misused Private Information”: Vidal-Hall & Ors v Google Inc [2014[ EWHC 13 (QB)

As everyone knows, Google knows everything. Google collates and compiles information on virtually every search ever done on every computer, and uses this information to create money from selling advertising space on user’s screens. Google analyses that information to deduce from it what the interests of the users of that computer might be and then flashes those ads before our very eyes. A brilliant business model that yields to it more gross domestic product than all of Africa combined. It is a contract with all of us that Gen Y seems very comfortable with, but Gens X, W, V and any other unnamed preceding Gen for people born before 1912 …. well, not so much.

The Defendant (again)

The Defendant (again)

Is Google allowed to use this information in this way? In England, a small group of Claimants are putting it to the test. They have sued Google and allege that Google has misused their private information and acted in breach of confidence.

The three Claimants variously work as an editor, an IT security company person and an IT services company person. They, like pretty much every other person born after 1912, use the Google search engine, Google maps and Gmail.

On 12 June 2013, a Master granted permission to the Claimants to serve Google Inc with these proceedings in the USA. In this case, Google appealed to a Judge of the High Court. To establish that they could serve the proceedings outside England, the Claimants basically had to show, among other matters, that the claims arose from a tort where damage was sustained in the jurisdiction.

They also had a show a raft of other things like, for instance, that they had a good arguable case, with real, as opposed to fanciful prospects of success.

The claims were that Google Inc wrongfully collected information from their computers and then used that information to generate advertisements that were displayed on screens. They alleged that there were circumstances where the targeted advertisements might reveal information about their personalities, desires and ambitions, which might be sensitive or relate to protected characteristics. None of them claimed financial or special damage. Just that they suffered acute distress and anxiety. Nor did they claim that they were shunned or discriminated against as a result of anyone seeing anything on their screens.

Justice Tugendhaft considered how the Google brower worked, how Safari worked and then a whole range of different types of Cookies. His Honour also noted that the affidavit material referred to 170 other claimants who used Safari, but they were not claimants in this case. Why they were mentioned by the Claimants? Well maybe it sounded good.

His Honour also noted how, in the USA, Google had agreed to pay a civil penalty of $22.5 million to the United States Federal Trade Commission and also $17 million to settle US state consumer-based actions brought by the United States attorneys general representing 37 States and the District of Colombia.

Going back to the interesting question for the common law: is the claim for misuse of private information a claim in tort? …. A. Yes.

His Honour referred back to Naomi Campbell’s case, which was a claim for breach of confidence because some paparazzi took photos (that were published) of the supermodel leaving Alcoholics’ Anonymous. The conclusion from that case included this statement: “the essence of the tort is better encapsulated now as misuse of private information.”

That was all His Honour needed. After analysis of other cases, conflicting, convoluted and otherwise, His Honour ultimately accepted that the tort of misuse of private information was a tort. Hurrah!

Addressing further questions, His Honour concluded that the damage alleged, being for distress and anxiety, was sufficient to create a claim for damage within the jurisdiction, and the claim was sufficiently serious for it to be brought. However, for all of the class action lawyers around the world who are salivating like Pavlov’s dogs, His Honour put a slight dampener on it:

  • at [107]: “And for the avoidance of misunderstanding, I have not decided that any other user of the Safari browser in the Relevant Period would have a sufficiently strong case on damage.”
  • at [118]: “… what is specific about the complaints in this case is that the information was, or may have been, apparent from the screens was, on particular occasions, private information. The particular types of information specified in each of the Confidential Schedules is information for which each Claimant has a sufficiently strong case that that information was private.

Google also tried on the argument that England was an inappropriate forum and that the Claimants should sue in the USA. Pretty hard pressed to argue this when its own business is so omnipresent that it includes close-up maps of the Moon. Anyhow, Google did not suggest which State the Claimants should sue in, and His Honour rejected that argument quickly. England was the appropriate forum.

So the matter will head to trial in the UK. Google have stated that they have ceased using the Claimants’ information in the matter complained of, but somehow, this one looks like it will go all the way. As for the position in Australia, one cannot help but think that a similar-style writ will soon be finding its way to Silicon Valley…


Posted in Damages, Privacy | Tagged , | Leave a comment

Setka further set back by the Prime Minister in Court of Appeal: Setka v Abbott & Anor [2013] VSCA 345


The appellant

The appellant

John Setka is the Divisional Branch Assistant Secretary of the Victorian Branch of the Construction, Forestry, Mining and Energy Union (CFMEU). On 10 February 2012, the now Prime Minister (then Leader of the Opposition), attended a conference of the Masters Builders Association of Victoria (MBA) and said the following:

Question: “How do you propose the MBA actually move forward with, some sort of campaign to support the Australian Building and Construction Commission (ABCC)?”

Abbott: “…Because so many of you have got to go onto sites every day and you’ve got to deal with the John Setkos of this world every day and the last thing you need is home visits from some of the gentlemen associated with some of the industrial organisations that you have to deal with every day and those home visits we know take place. Now the MBA is one step removed from that and it’s very very important that the MBA takes a forthright and uncompromising position and I’m pleased to say that in all my dealings with the Victorian MBA, particularly with your Executive Director Brian Welch, that is exactly what we’ve had. I can remember when I first proposed the establishment of the Cole Royal Commission, senior building industry managers who knew just how bad things were, who knew just how much intimidation their workforce were exposed to, who knew how many tens and hundreds of millions of cost overruns their projects were liable to because of unlawful behaviour and thuggery were against it. They were against the establishment of the Cole Royal Commission. They said this was a problem that could not be fixed. Well it was fixed, if not entirely, then in large measure and it was getting better all the time. It was getting better all the time and in some ways it was getting better because the companies themselves were being told ‘You’ve got to lift your game’ as well the union officials being told ‘You’ve got to lift your game’. If the manager says ‘Look I just can’t do this anymore because I will go to jail if I do it’ well then it’s that much harder for the union official to get away with demands bordering, or indeed that are in fact, extortion, so I think the MBA has a very important role and I’m confident that Brian Welch knows exactly what it is. Welch by name but not Welch by nature.”

Setka’s statement of claim alleged that the words carried the following imputations:

(a) the plaintiff engages in unlawful behaviour by visiting the homes of people working in the construction industry for the purpose of intimidating them;

(b) the plaintiff visits the home of people working in the construction industry for the purpose of making demands that amount to extortion;

(c) the plaintiff is a thug in that he visits the homes of people working in the construction industry for the purpose of intimidating them;

(d) the plaintiff is a self-confessed thug, who has admitted visiting the homes of people working in the construction industry for the purpose of engaging in the conduct referred to in (a) and (b) above.

The defendants pleaded Polly Peck defences and alleged that the words meant that the plaintiff was a person who had engaged in:

  • intimidation;
  • unlawful behaviour;
  • thuggery; and
  • extortion.

Which the defendants alleged were true. The defendants provided particulars that referred to a rally that was

The First Respondent, on his way to court

The First Respondent, on his way to court

alleged to have occurred on about 20 July 2010 outside the offices of the ABCC; a further blockade that it was alleged that the plaintiff participated in on 12 December 2008 and a second blockade on 18, 20 and 22 February 2009.

The plaintiff sought to strike out the Polly Peck defences, and the application was heard by Justice Beach on 31 October 2012. The plaintiff argued that the Polly Peck imputations were incapable of arising and that the imputations were not permissible variants on the plaintiff’s pleaded meanings. He also sought to strike out some particulars of truth as being unable to support the relevant plea of truth.

The plaintiff argued that the words were not capable of bearing the broader meanings submitted by the defendants, but Justice Beach found that they were arguable and were matters for the jury at trial. The meanings were capable of arising and not substantially different from the plaintiff’s meanings.

The plaintiff’s application was dismissed by Justice Beach on 12 November 2012.

Not set back by this, Setka filed a Notice of Appeal and took the matter to the Court of Appeal. A brave step, but the result was not good. The main problem faced by the legal representatives for Setka was that, on the appeal, they sought to argue 4 grounds which had not been argued before Justice Beach. They wanted to argue that the Polly Peck defence was not available in law and that the defence was bad in form because it was “entirely vague and general”.

The Court of Appeal were not impressed. They did not even answer the new grounds that were argued by the plaintiff and their decision was based virtually entirely on the proposition that the plaintiff should not be allowed to run the new grounds. That was it. The Court concluded that the plaintiff could bring the application before a single judge, and could even argued the points at trial, but not in the Court of Appeal when the points had not been run below. Harsh.

And so, after a year of waiting for the appeal to get on, Setka is back where he was more one year ago: the defences stand and he still does not know if his new grounds of appeal are any good or not. Whether he brings another application to run those new grounds remains to be seen. Maybe the Court of Appeal will like them better second time around.

As for Tony Abbott, he is Prime Minister: life could not be better.


Posted in contextual truth, defences, Strike out application, Truth | Tagged , | Leave a comment