Online reviews

Businesses and ordinary people need to be increasingly aware of the affect internet publications can have on online reputations.

Google product reviews and a plethora of independent review sites such as Zomato, yelp, TripAdvisor and Product Review have made it increasingly easy to damage somebody’s personal or business reputation online.

Smartphones have made it easier to instantly post an online review, often, without thinking of the consequences.

In general, the Defamation Act 2005 (WA) (see section 9 for more details) prevents corporations with more than 10 employees (full-time equivalent) from commencing proceedings for defamation.

However, it is still possible to defame:

• an employee or the owner of the business with more than 10 employees who may wish to commence proceedings personally; or

• corporations with fewer than 10 employees.

There may also be other legal avenues for corporations to pursue, such as the law relating to misleading and deceptive conduct.

In June 2017, the Supreme Court of NSW ordered 2 defendants to pay $480,000 in damages to the plaintiff for publications on a website, on Facebook, on Pinterest and a YouTube video which were each defamatory and alleged that the plaintiff was, amongst other things, criminally negligent and unethical.  In that case, the Plaintiff was a surgeon who had performed an operation on the second defendant (Al Muderis v Duncan (No 3) [2017] NSWSC 726).

Defences

However, there can be successful defences.

There can be a defence if the statement was a fair comment or honest opinion, for example.

Under the common law the defence of ‘fair comment’ is available if the defamatory statement is based on a factual matter which is substantially true.

The Defamation Act 2005 s 31 takes the common law defence a step further. 

The defence of honest opinion broadens the requirement that the factual basis be ‘substantially true’ to a requirement that it be based on ‘proper material’. 

The defence is available if (Defamation Act 2005 s 31(1)):

• The matter was an expression of opinion rather than a statement of fact,

• The opinion was related to a matter of public interest, and

• The opinion is based on proper material.

For the defence to be successful, it must be shown that the defamatory material is expressed as an opinion, and not as fact. As Lord Denning stated in Slim v Telegraph Ltd [1968] 2 QB 157 at 170:

“If he was an honest man expressing his genuine opinion on a subject of public interest then no matter that his words conveyed derogatory imputations: no matter that his opinion was wrong or exaggerated or prejudiced; and no matter that it was badly expressed so that other people read all sorts of innuendoes into it; nevertheless, he has a good defence of fair comment. His honesty is the cardinal test. He must honestly express his real view. So long as he does this, he has nothing to fear, even though other people may read more into it.”

The defence will be defeated however, if it is shown that the defendant did not honestly hold the opinion.

Example

In McEloney v Massey [2015] WADC 126,[3] the Court considered whether Facebook posts by the defendant in the “Poms in Perth” Facebook page were defamatory.

The Facebook posts related to an accountant whose services the defendant had sought.

The Facebook posts alleged that the accountant was unprofessional and rude and ripped off and overcharged his clients. The defendant raised the defences of justification and honest opinion.

The Court found that the expectations of the reasonable reader varied depending on the forum in which the material was published. The Court considered that the use of the words “clown” and “shark” in the Facebook posts indicated that it was an expression of an opinion.

The Court considered that because the accountant provided services to the public, the way he conducted himself in providing the services was a matter of public interest.

The matter was based on the personal experiences of the defendant and was based on proper material.

Higher penalties for breaches of workers’ occupational health and safety laws

The WA State Government has plans to increase the penalties for breaches of workers’ occupational health and safety laws. See the last few paragraphs in this article in The West Australian newspaper from 28 August 2017.

How we keep our rates low

13+ years experience as a lawyer has taught me how to get the fundamentals right.

Although legal disputes are complex, fundamentally what lawyers do is write documents, plus some speaking (either public-speaking in Court or private-speaking in mediations / meetings).

Getting the fundamentals right requires clarity of thought about the tasks-at-hand.  

These are:

1. First, being able to write well.

2. Second, calling upon skills and knowledge to make that writing quality-writing and persuasive.

3. Third – after these are achieved – doing it fast.

Being fast means cost-savings to clients, because less time is spent.

Slow lawyers, sitting at their desks typing slowly, is a fact-of-life in our modern legal system. (Clients would be shocked to know how much slow-typing feeds into massive legal bills.)

Dictation, instead of typing, is what makes for fast lawyers.

My methods are:

1. Don't type - dictate.

2. Don't incur the costs of typists to type the dictation.

3. Automate.

4. Get physically away from the computer-screen, so you can quickly scan/look at the primary documents whilst dictating.

We use Dragon NaturallySpeaking to produce our written work.

This is done by using dictaphones to create an audio-file, that is processed by Dragon automatically.

It is then checked for accuracy by a secretary before being printed-out for us to do any additional drafting.

These fundamentals have helped us keep our hourly rates low compared to most other lawyers.

Note:

Many other lawyers around the world are also doing this - but the take-up is slow. 

Worksafe prosecutions

Only 11 or 12 Worksafe prosecutions are commenced each year. This is despite Worksafe conducting 8,000+ investigations each year.

The detailed information is publicly available from these websites:

1. https://www.commerce.wa.gov.au/sites/default/files/atoms/files/doc_ar_2015-2016.pdf

2. http://prosecutions.commerce.wa.gov.au/)

Over the last few years I have acted for employers who have been prosecuted. This includes in a workplace fatality case.

Having a lawyer who is experienced is important because:

• this is a complex area of the law,

• the penalties can be large.

The small number of prosecutions means only a relatively few lawyers have done this work before.

Also, if you are subject to a Worksafe investigation, you can engage me at the investigation stage to assist you when responding to, and dealing with, Worksafe's investigators.

Court-ordered sale of jointly owned land

When can it arise?

Where parties jointly own land, whether as join tenants or as tenants in common, one or more co-owners can apply to the Court for an order that the land be sold or partitioned (Property Law Act 1969 ss 126, 127).  As tenants  in common own distinct shares of the property, which may be unequal, the purpose of s 126, is to protect the interests of co-owners where disputes arise relating to how to deal with the land (Nullagine Investments Pty Ltd v Western Australian Club Inc (1992) 177 CLR 635 at 650 per Brennan J).  

What orders can the Court make?

The Court can order either the sale or partition of the land. Sale is an alternative to partition and can only be ordered if a party specifically requests it (De Campo Holdings Pty Ltd v Cianciullo [1977] WAR 56 per Jones J). If a co-owner applies for partition, then there is no need to show the Court that a partition is better than a sale unless another co-owner requests a sale (De Campo Holdings Pty Ltd v Cianciullo [1977] WAR 56 per Jones J). 

The Court must order a sale of the land instead of partition if requested by a party or parties who hold at least a half share of the property, unless there is a good reason to the contrary (Property Law Act 1969 s 126(1)). Therefore, the Court requires a ‘good reason’ in order to exercise its discretion to order a partition instead of sale in those circumstances (Nullagine Investments Pty Ltd v Western Australian Club Inc (1992) 177 CLR 635 at 666 per Toohey J). 
However, there is no requirement that the party or parties seeking sale or partition hold a half interest in the land. The Property Law Act 1969 s 126(2) provides that the Court may, on the request of any party interested, direct a sale where:
-    by reason of the nature of the land; 
-    the number of parties interested; or
-    any other circumstance
the sale of land would be for the benefit of the parties interested. 

What if I agree to purchase their share?

The Court may also, on request from any party interested, direct the land be sold unless some of the other parties given an undertaking to purchase the share of the party requesting a sale. Once such an undertaking is given the Court may direct a valuation of the portion of the land in question (Property Law Act 1969 s 126(3)). However, It is not open to a co-owner to attempt to defeat a Court ordered sale under s 126 by undertaking to purchase the share of the co-owner applying for the sale (Martin-Smith v Woodhead [1990] WAR 62). 

Can you contract out of s 126?

The High Court decision of Hall v Busst [1960] HCA 84 is authority for the proposition that public policy favours the free alienability of private property, and thus, in some cases a contractual provision may be invalid if it operates as such a restraint. 

For example, in in Elton v Cavill (No 2) (1994) 34 NSWLR 289, Young J found that a clause which required an owner to gain all of the other owners consent to the sale of his share, and such consent might be refused with no reason given, was an invalid restraint on alienation. 
However, you may be able to contract out of s 126 if it is for a valid collateral purpose, which has an overriding public policy objective. Or, alternatively, if the contract does not entirely restrain alienation.  

In Nullagine Investments Pty Ltd v Western Australian Club Inc (1992) 177 CLR 635, two tenants in common held equal shares in a property. The agreement between them contained a provision which prohibited each from disposing of their interest in the land without first offering it to the other for a price of 50% of the land value. The High Court held that the provision did not prevent one from making an application under s 126 as the provision referred to one party only disposing of their interest, and not to a situation under s 126 where the entire freehold was disposed of. However, the Court did not expressly decide whether an agreement which expressly contracted out of or prevented the application of s 126 would be invalid (at 661).

Freedom of information

Why?

Freedom of Information (‘FOI’) laws exist to promote transparency and political accountability, which in turn, prevents corruption and reduces bad decision making. FOI laws exist across Australia. The purpose of the Freedom of Information Act 1992 (WA) (“FOI Act”)  is to enable the public to participate in governing the State as well as making the government more accountable to the public. 

What sorts of things?

FOI laws provide access to all sorts of documents held by government agencies, no matter what reason they are requested for, or why the agency might think they are being requested for (FOI Act s 10). 

They require government agencies to publish information about their activities and to disclose which internal rules and processes govern their decision making. 

FOI laws also allow individuals to gain access to personal information which is about them, and in some cases, to request amendment of those records. 

There some exceptions to the availability of government documents.

Exempt matters are set out in Schedule 1 of the FOI Act and include things like Cabinet or Executive Council deliberations, personal information about an individual, or trade secrets. 
These include materials placed in collections by private persons, documents which are otherwise available for purchase, and documents created by national security or law enforcement bodies (FOI Act ss 6, 7). 

The FOI laws do not generally require private organisations to release documents or information, unless the organisation is performing a public function. 

How do I go about it?

The first step is to apply to the government agency which has the documents you wish to obtain (FOI Act s 11). However, there are various reasons that your request for documents might be refused. 

An application to access documents must be in writing, identify the documents requested, give an address to send notices/ documents to, give any other information if required by regulations, and be lodged at the agencies’ office with any fee payable (FOI Act s 12).

Therefore, if your application is deficient, it may be refused. 

What if they refuse?

An agency can refuse to deal with your application if it considers the application would divert a substantial and unreasonable proportion of the agency’s resources away from its other operations (FOI Act s 20). The agency can also refuse if the documents is an ‘exempt document’ or it does not belong to the agency. 

Likewise, an agency will not give access to a document that contains personal information about a third party unless the agency has taken steps to ascertain the views of the third party (FOI Act s 32). 

Again, the agency will not give access to documents concerning trade secrets, or information of a commercial value, or information concerning the business, professional, commercial, or financial affairs of a person, without their consent (FOI Act s 33). 

The FOI Act contains mechanisms for internal and external reviews. Internal reviews refer to reviews within the agency itself. In Western Australia, external review is conducted by the Information Commissioner. 

If a complaint is made against a decision of an agency to either give access or not to give access, then a complaint may be made to the Information Commissioner (FOI Act s 65). 
If still not satisfied, then an appeal on a point of law arising out of the Information Commissioner’s decision may be made to the Supreme Court of Western Australia. Alternatively, an appeal for judicial review for a denial of natural justice may lie.  

However, it can be difficult to successful appeal a decision. In Apache Northwest Pty Ltd v Dept of Mines & Petroleum (No 2) [2011] WASC 283 the company appealed from a decision of the Information Commissioner to allow access to documents relating to oil and gas activities on Varanus Island.  The appeal was based on grounds ranging from misconstruing the FOI Act, to making findings not supported by the evidence, to failing to observe natural justice. Ultimately, of the 51 pages of submissions, and 8 different grounds of appeal, none were successful.

Advanced Health Directives

What are they?

An Advance Health Directive is a device created by the Guardianship and Administration Act 1990 (WA).  

In other jurisdictions they can be known as ‘Advance Care Directives’.

An Advance Health Directive is a written document which explains how you wish to be treated in the future should you be incapable of making informed decisions. They are the first port-of-call when a patient lacks capacity to consent to medical treatment. You can set out what treatments you consent to, or refuse to consent to, and how you would like to be treated. 

How do you make an Advance Health Directive?

An Advance Health Directive must be in the form prescribed by the Guardianship and Administration Regulations 2005. You must be of full legal capacity to make an Advance Health Directive and the legislation specifically encourages persons to seek legal advice (Guardianship and Administration Act 1990 (WA) ss 110P and 110Q(1)). 

It is important to have legal advice when making an Advance Health Directive as any treatment decision in the document is invalid, if (Guardianship and Administration Act 1990 (WA) s 110R):
-    the decision was not made voluntarily; 
-    the person was coerced into making the decision; or
-    the person didn’t understand the nature of the decision or the consequences when they made the Advance Health Directive. 

A legal practitioner can help by ensuring you are fully informed, and understand the nature and consequences of the decision, as well as making sure you make the decision voluntarily and are not coerced. 

Challenging an Advance Health Directive

Advance Health Directives are at the top of the hierarchy when it comes to deciding treatment. For example, if a person who is incapable of making treatment decisions has a valid Advance Health Directive, and has a guardian appointed, the Advance Health Directive will prevail. Therefore, it is frequently the case that Advance Health Directives come under challenge. 

In Hunter v New England Area Health Service [2009] NSWSC 761  the plaintiff sought declarations that it was justified in complying with the unconscious defendant’s wishes to refuse life-sustaining treatment, relying on a valid advanced care directive. 
It was held that:
-    If there is a genuine and reasonable doubt as to the validity of an advance care directive, a hospital or medical practitioner should apply promptly to the court for determination of the validity and operation of the advance care directive. 
-    The emergency principle justifies the hospital or medical practitioner to continue treatment until the decision of the court. 
-    An apparently valid consent by a capable adult may be ineffective if it does not represent the independent exercise of the person's volition; if the person's will has been overborne; or the decision is the result of undue influence or some other vitiating circumstance. 

What if there is already a public guardian?

In FI v Public Guardian [2008] NSWADT 263  the tribunal had to consider where the public guardian could approve an Advance Care Plan which permitted life-sustaining treatment to be withdrawn. It was held that the public guardian cannot make an Advance Care Plan for a represented person. However, a guardian can make decisions that involve withdrawing life-sustaining treatment so long as the decisions are made in the best interests of the represented person. 
 

Defamation in the workplace

If you have been defamed at work you may be entitled to compensation for defamation.

Generally, statements made at work are no different to any other statement.

If somebody defames you at work, whether by saying something to other colleagues or co-workers, or to clients or to your boss, either in person or in a defamatory email or otherwise, you may have a case in defamation and be able to seek damages. 

Defamation at work is generally only protected where a valid defence under the Defamation Act 2005 (WA) is available.  

The most common defence in workplace defamation situations is the defence of qualified privilege. 

Qualified Privilege

A defamatory statement, however, if made to a superior, or to a HR person as part of a formal complaints or investigation process, then it may be protected. 

This is because qualified privilege attaches to statements where the recipient has an interest in having the information, and the statement is made while providing that information, if the person acted reasonably in the circumstances (Defamation Act 2005 (WA) s 30(1)).

So a statement made concerning a persons’ performance for instance, if made to a superior and appropriately in order for the superior to be able to assess that person’s performance or investigate further is likely to be protected. 

In Boland v Dillon (2011) 243 CLR 298  the High Court of Australia decided that in some cases there are duties to advise the company of accusations against a company employee or to discuss activities by an employee or client which might be detrimental to the company or affect the efficiency of the company’s business. In these circumstances, the defence of qualified privilege might be available. 

However, if the person acted maliciously and intended to injure your reputation then they will not be protected by the defence (Defamation Act 2005 (WA) s 30(4)). 

Examples

There have been many cases where a person has been defamed in the workplace by a co-worker and has recovered damages. 

In Bristow v Adams [2012] NSWCA 166  the Court found that a letter sent to the HR manager of the company contained defamatory meanings about a supervisor, and awarded $10,000 damages. 

In Tassone v Kirkham [2014] SADC 134  an email was sent by one prison officer using another prison officer’s email which read “Hello people, just a note to say that I am a homosexual and I am looking for like-minded people to share time with”. The plaintiff went on sick leave, suffered stress and anxiety and was unable to continue in his position. He was awarded $75,000 for non-economic loss.

Publication & Republication

Who was the defamation published to?

To give rise to a cause of action in defamation the defamatory imputation must have been published to a third party.

The Defamation Act 2005 (WA) does not define ‘publication’.

Under the common law, publication takes place when defamatory material is communicated to some person other than the plaintiff (Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327).  

The third party may consist of a single person (Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364 at 367).  

For instance in Ritson v Burns [2014] NSWSC 272 the proceedings were brought in respect of a single comment made by the defendant to a third person.  The statement in question was made over the phone to a process server and were along the lines of “X is a criminal, I’m not going to give you my address”. This was enough to warrant an award of $7,500 damages. The plaintiff was also awarded costs, and interest on the damages.

It has even been held that communication by a third party of defamatory material about one spouse, to the other, can constitute sufficient publication (Theaker v Richardson [1962] 1 All ER 229).  

How was the defamation published?

If the defamatory imputation was published online, it will be deemed to have been published if the plaintiff can prove information has been conveyed (Dow Jones & Co Inc v Gutnick [2002] HCA 56).  

In Dow Jones & Co Inc v Gutnik the plaintiff showed that the information was conveyed once downloaded from the website it was uploaded to. In Gregg v O’Gara [2008] All ER (D) 111 the fact that one witness testified that he had accessed the material by typing the words ‘Yorkshire Ripper’ into a search engine was sufficient to show the material had been published.  If the person is not named, they may need to provide a witness who believed the published material was about them.

Even if the publication was unintentional, if it occurred because of the publishers’ negligence then this may still constitute publication (Coulthard v South Australia (1995) 63 SASR 531 at 539).  

Anything from spoken words, to printed or audio files, to internet pages, televised material, drawings or photos may constitute communication for the purposes of publication (Defamation Act 2005 s 4). However, the circumstances of the publication, including the mode, and the scope of the publication are relevant when assessing the award of damages.

Therefore, it is essential to obtain legal advice if you are concerned about a publication that has been made about you, or about a publication you are responsible for. 

Has ‘Republication’ occurred? 

In addition, the republication of somebody else’s defamatory statement constitutes a new and actionable defamatory publication, and the person who republishes is as liable as the original publisher (Lewis v Daily Telegraph Ltd [1964] AC 234 at 283, 284).  

It is no defence that the re-publisher is merely repeating a statement.

In certain circumstances the person who made the original publication can also be held to task for any republication of it. This is known as the ‘Rule in Speight v Gosnay’ whereby the original publisher is liable if the republication adheres to the sense and substance of the original publication and the repetition is the natural and probable consequence of the original publication (Speight v Gosnay (1891) 60 LJQB 231; Sims v Wran [1984] 1 NSWLR 317 at 320 per Hunt J).

How do Courts decide your defamation damages?

Uniform defamation legislation exists across the states. In Western Australia, the relevant act is the Defamation Act 2005 (WA).

Where a person’s reputation is injured by the publication of defamatory material the matter is actionable without proof of damage (Defamation Act s 7).  

However, the cause of action is generally not available to corporations (Defamation Act s 9).

Under the uniform defamation laws the offence is actionable once a communication of a defamatory imputation about a person is made to a person other than the plaintiff. This is usually described as publication. A publication is defamatory if it tends, in the minds of ordinary, reasonable people, to injure the victims’ reputation by disparaging him/her, causing others to avoid or shun him, or subjecting him to hatred, ridicule or contempt (John Fairfax & Sons Ltd v Punch (1980) 31 ALR 624 per Brennan J; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 71). 

Therefore, while the plaintiff does not have to prove any special damage to their reputation, they do carry the onus of having to prove that a defamatory imputation was published and provide particulars of the publication (Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 at 192-4 per Hunt J).

What are the potential damages?

Once the plaintiff shows that they have been defamed, then unless a defence is shown, they must be awarded damages, even if only nominal (Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 258 per Mahoney JA).

The legislation provides that the state of mind of the defendant is not relevant to damages except insofar as it affects the harm sustained by the plaintiff (Defamation Act s 36).

Damages for non-economic loss, except in circumstances of aggravation, are capped at $381,000 (Defamation Act s 35; Defamation (Damages for Non-economic Loss) Order 2016).

There must be an appropriate and rational relationship between the harm sustained and the damages awarded (Defamation Act s 34). Exemplary or punitive damages cannot be awarded for defamation (Defamation Act s 37). However, compensatory damages may be affected by circumstances of aggravation.

Factors which may mitigate damages are (Defamation Act s 38):

1. The defendant has apologised

2. The defendant has published a correction;

3. The plaintiff has already recovered damages re another publication having the same meaning or effect;

4. The plaintiff has already brought proceedings re another publication having the same meaning or effect;

5. Plaintiff has agreed to receive compensation re another publication having the same meaning or effect.

Damages are not assessed by reference to depreciation in the value of a plaintiff’s reputation, but by what is required to compensate for injury to reputation, as a remedy for injured feelings and to vindicate the plaintiff for having been publicly defamed (Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60, 61, 70). Under the uniform defamation laws. The assessment of damages is determined by the judge not jury (Defamation Act s 22).

Compensatory damages are classified as damages for:

1. Injury to reputation, note that evidence of previous bad reputation may mitigate damages however will not prevent a plaintiff from recovering completely (see Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 Cf. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 806, 807);

2. Social damage for being shunned and avoided;

3. Injury to feelings, including grief and distress, anxiety, loss of self-esteem and outrage;

4. Injury to health; and

5. Special damage.

Some recent cases

In Dods v McDonald (No 2) [2016] VSC 201 the plaintiff was a police officer involved in the shooting death of a 15 year old boy. In a coronial inquest the coroner exonerated the plaintiff of personal responsibility and found that he had not contributed to the death, and had responded within the limitations of his training. The defamatory publications were made by the defendant via a website and were published from April 2012 until July 2012 when they were removed by request. They contained imputations that the plaintiff was a ‘monster’ who had ‘executed’ the teenager and committed the crime of manslaughter. Even though the scope of the publication was not large, there was no apology, and the grave nature of the defamations was reflected in the damages awarded (at [69] – [74]). The judge awarded damages of $150,000.

In Jeffrey v Giles [2015] VSCA 70 the appellants operated a quarry adjacent to the respondents’ land. The respondent created a website which contained defamatory imputations that the appellants had provided inaccurate information and given false testimony at hearing in relation to approval of the quarry. The judge at first instance found that the appellants were entitled to damages personally, distinct from the corporate entity which ran the quarry, due to the nature of the imputations. The judge awarded $12,00 and $8,000 to each of the appellants. On appeal, the Court of Appeal found that the damages were so low as to be inappropriate, and ordered damages of $75,000 and $65,000 to each appellant.

In Gacic v John Fairfax Publications Pty Ltd [2015] NSWCA 99 and online and in-print review of the appellant’s restaurant was found to be defamatory by implying it sold unpalatable food, provided bad service, and that the owner was incompetent. The three appellants were originally each awarded $160,000 plus interest. There was an appeal that the damages awarded were manifestly inadequate and a cross-appeal that the damages should be reduced for mitigation. Ultimately the Court of Appeal held that damages should be increased to $180,000 plus interest, however by virtue of the cross appeal, they should be then reduced to $175,000 plus interest to take into account the mitigation factors.

As the range of damages awarded vary widely on a case by case basis depending on the factual circumstances it is wise to obtain legal advice at the outset.