Establishing Publication of Online Material in Defamation Cases

Introduction

The decision of Poland v Fairfax Digital Australia & New Zealand Pty Ltd [2023] WASC 383 provides useful guidance on the principles applicable to establishing publication in defamation cases involving online content.

Facts

In Poland v Fairfax, the plaintiff Mr Poland sued the defendant Fairfax over comments posted by third parties on the defendant's Facebook page under links to two articles about the plaintiff.

The comments were posted in February 2019 but Mr Poland only commenced proceedings in September 2021. Due to the 1 year limitation period, Mr Poland was confined to suing for publication of the comments between 10 September 2020 and 10 September 2021.

The defendant applied to strike out the publication pleas on the basis that the facts pleaded could not establish publication in that period.

Tottle J dismissed the strike out application but raised the possibility of determining publication as a preliminary issue.

What is 'publication' in defamation?

The High Court has held that for online material, publication occurs at the place where the material is downloaded onto a person's computer in comprehensible form:

"In the case of material on the world wide web it is not available in comprehensible form until downloaded onto the computer of a person who has used a web browser to pull the material from the web server. It is where that person downloads the material that the damage to reputation may be done. Ordinarily then that will be the place where the tort of defamation is committed." (Dow Jones & Co Inc v Gutnick [2002] HCA 56 at [44] per Gleeson CJ, McHugh, Gummow and Hayne JJ)

Therefore, it is not sufficient merely to show that material was posted online and was available to be viewed.

There must be actual downloading and comprehension of the material.

No inference from mere availability online

An inference of publication will not be drawn solely from the fact that material was posted online and could have been viewed:

"Because of the vast number of internet sites, and the vast number of web pages accessible through those internet sites, in the absence of evidence it cannot be inferred that one or more persons has undertaken the steps required to identify and access any particular web page available through the internet merely from the fact that material has been posted on an internet site." (Sims v Jooste [No 2] [2016] WASCA 83 at [18] per Martin CJ).

Platform of facts can support inference

However, publication may be established by pleading and proving a platform of facts from which an inference of downloading and comprehension can properly be drawn:

"Although publication will not be inferred from the mere fact that material complained of has been posted on a website, an inference that the material has been downloaded by someone might be drawn from a combination of facts such as the number of 'hits' on the relevant website and the period of time over which the material was posted on the internet." (Lorbek v King [2022] VSC 218 at [46] per McDonald J)

"This has been recognised in the cases to which I will now refer. In England, it has been consistently held that a plaintiff claiming to have been defamed in material posted on the internet cannot rely upon an inference of publication analogous to that customarily drawn in cases involving publication via the mass media of print or broadcast in order to establish that there has been substantial publication within the jurisdiction. Rather, the plaintiff must plead and prove that the material of which complaint is made has been accessed and downloaded. The English cases recognise however that publication, in the legal sense, may be established by pleading and proving a platform of facts from which an inference of download can properly be drawn." (Sims v Jooste [No 2] [2016] WASCA 83 at [18] per Martin CJ).

Examples of platform of facts

In Stoltenberg v Bolton [2020] NSWCA 45, the platform of facts comprised:

• Evidence of number of views/hits on website and Facebook page where material posted

• Period of time material remained available

• Facebook posts by defendant about wide readership

• Witnesses speaking of reading material

This is as per:

"The 'platform of facts' from which his Honour drew an inference that the five matters complained of were downloaded by somebody have been referred to above at [33]. Taken together, the admissions by Mr Stoltenberg as to the number of 'hits' on the Narri Leaks site - 9,800 in the first week and 21,000 in the first 10 days, that the estimated number of readers in the period June 2015 to January 2016 depending on the story varied between 5,000 and up to 35,000, that Narri Leaks was being watched all over the State, that $400 was spent 'boosting' posts all over the State for all of the second week of publication in June 2015, that on 2 July 2015 719 'locals' out of a 'total reach' of 2,414 hit the 'Like' button; the inferences drawn from the Facebook records as to 'reach' of the posts; and the evidence of Mrs Bolton and Mr Webb of readership of the Narri Leaks website by persons outside the Narribri Shire, amply support his Honour's findings that the matters complained of were published by Mr Stoltenberg." (Stoltenberg v Bolton at [113] per Gleeson JA)

In Lorbek v King [2022] VSC 218 at [46], McDonald J gave the example of screenshots demonstrating 'likes' or responses to material as potentially supporting an inference of publication.

Policy behind requiring evidence of actual downloading

The requirement to prove downloading, as opposed to mere availability online, reflects the policy behind the law of defamation - that damage to reputation occurs at the place where material is read in comprehensible form:

“In defamation, the same considerations that require rejection of locating the tort by reference only to the publisher’s conduct, lead to the conclusion that, ordinarily, defamation is to be located at the place where the damage to reputation occurs. Ordinarily that will be where the material which is alleged to be defamatory is available in comprehensible form assuming, of course, that the person defamed has in that place a reputation which is thereby damaged." (Dow Jones & Co Inc v Gutnick [2002] HCA 56 at [44] per Gleeson CJ, McHugh, Gummow and Hayne JJ)

Need to plead where publication occurred

A plaintiff must plead sufficient facts to establish not only that publication occurred, but also where it occurred. This is because choice of law rules require the substantive law to be applied based on where publication took place:

"At the moment it is clear that the plaintiff is simply unable to indicate who, if anyone, downloaded those publications and if they have there is then no specificity as to which jurisdiction they have been downloaded in. That level of detail is vital both in terms of determining the elements of the cause of action, but also in fairness to the defendant by way of indicating what, if any, defences might be available depending upon the jurisdiction in which it can ultimately be proved such publication took place." (Newman v Whittington [2022] NSWSC 249 at [19] per Sackar J)

Application to Poland v Fairfax

In Poland v Fairfax, Tottle J considered that while the plaintiff's pleading may have been sufficient to avoid strike out, pleading publication in 'Australia' was too wide and should be confined to Western Australia.

Some doubts were expressed about the strength of the plaintiff's plea:

"In my view there is force in the defendant's contentions, however, the issue of publication is a factual one. The defendant's contentions about the way in which elements of its online presence work together and the manner in which members of the public engage with its Facebook page rely, to a certain extent at least, on assertion." (Poland v Fairfax at [25] per Tottle J)

However, Tottle J was reluctant to strike out the pleading entirely as being reasonably arguable.

Conclusion

The case law establishes that to prove publication of online material, a plaintiff must show the material was downloaded and comprehended by a third party. Mere availability online is not enough. However, a platform of facts may allow the court to infer downloading and comprehension occurred. Care must be taken to confine the place of publication appropriately. The facts in each case will determine whether an inference of publication is available.

Discretion to Set Aside Irregular Default Judgments

Setting Aside Irregular Default Judgments

This blog examines the principles applicable to setting aside a default judgment where the entry of default judgment was irregular.

It discusses the relevant legislative provisions and procedural rules, and cites the recent decision in Cicirello v Carter [2023] WADC 130 (Cicirello) as an illustrative example.

The Facts

The facts in Cicirello, as outlined at [4]-[30], were that the plaintiffs commenced an action against the defendant builder seeking damages for overcharging under a 'costs plus' building contract.

The defendant sought to enter an appearance after the time for doing so had expired under the rules, by emailing it to the court. However, this went to the court's 'junk mail' and was not entered on the court file.

Default judgment was later entered against the defendant. Some months later, after the plaintiffs had taken steps to enforce the judgment, it came to light that the defendant had attempted to enter an appearance.

The court then brought the matter on of its own motion to consider whether the default judgment had been irregularly entered and if so, whether it should be set aside.

Irregularity in Entry of Default Judgment

Pursuant to Order 2 rule 1 of the Rules of the Supreme Court 1971 (WA), any failure to comply with court rules is an irregularity: Cicirello at [32]. Relevantly, under Order 13 rule 1(2), default judgment may only be entered if the defendant 'does not enter an appearance within the time limited for appearing'.

In Cicirello, the defendant had in fact sent an appearance to the court by email before default judgment was entered, so the entry of default judgment was irregular: see [35]-[44]. The rules enable a defendant to enter an appearance after the specified time, unless judgment has already been entered: Order 12 rule 5, cited at [41] of Cicirello.

Setting Aside Irregular Judgment

An irregular judgment is not a nullity, but may be varied or set aside pursuant to Order 2 rule 1, which gives the court a broad discretion to make appropriate orders: Cicirello at [45]. The defendant or plaintiff may apply to set aside an irregular judgment within a reasonable time of discovering the irregularity, under Order 2 rule 2: Cicirello at 46.

Additionally, for default judgments specifically, Order 13 rule 12 requires the judgment to notify the defendant's right to apply to set it aside, while Order 13 rule 14 empowers the court to set aside or vary a default judgment at its discretion: Cicirello at [47].

In Cicirello, although the defendant had not made a formal application to set aside as contemplated by Order 2 rule 2, the court considered it had inherent powers to deal with the irregularity on its own motion, to regulate its processes and prevent abuse: see [53].

Exercise of Discretion

The discretion to set aside an irregular default judgment is expressed in the broadest terms and not limited by any qualifiers: see Cicirello at [55] citing Hall v Hall [2007] WASC 198 at [63].

However, while irregular judgments will usually be set aside, not every irregularity will justify this: Cicirello at [55] citing ACN 076 676 438 Pty Ltd (in liq) v A-Comms Teledata Pty Ltd [2000] WASC 214 at [17]-[19].

The discretion must be exercised to 'do justice between the parties, having regard to the particular circumstances': Cicirello at [55] citing Hall v Hall at [63]. Relevant factors include the length of any delay in applying to set aside the judgment, and the defendant's explanation: Cicirello at [56] citing Wildflower Electrical Refrigeration Service (WA) v Refrigid Pty Ltd [2014] WASC 382 at [11].

In Cicirello, the court refused to set aside the irregular default judgment. The defendant had not explained his failure to engage with the court's orders affording him opportunities to apply to set aside the default judgment and advance his position: see [57]-[59]. He also failed to identify any substantive defence he wished to run if the judgment was set aside: [59(d)].

Meanwhile, the plaintiffs had taken steps in reliance on the judgment, following procedures under the Civil Judgments Enforcement Act 2004 (WA) to enforce it: [59(f)].

In line with Starrs v Retravision (WA) Ltd [2012] WASCA 67 and Scott v Baring [2019] WASC 278, the court determined it was not in interests of justice to set aside the judgment given the defendant's disengagement, nor to further delay resolving the matter: Cicirello at [59]-[61]. As stated in Scott at [51], a defendant 'must bear the consequences' of failing to participate in the proceedings: Cicirello at [62].

Conclusion

In summary, while irregular default judgments will ordinarily be set aside, the court retains a discretion to refuse this if the interests of justice do not require it. Defendants who fail to engage with opportunities to advance their position may not have irregular judgments set aside to their benefit, especially if the plaintiff has acted in reliance on the judgment. When exercising its discretion, the court will look at the particular circumstances holistically. Relevant considerations include delay in applying, the defendant's explanation, whether the plaintiff has taken steps in reliance which may cause prejudice if the judgment is set aside, and any indication of the defendant's substantive case.

Appointing Research Decision-Makers for Represented Persons

Introduction

A research decision-maker may be appointed by the State Administrative Tribunal (Tribunal) under the Guardianship and Administration Act 1990 (WA) (GA Act) to make decisions about a represented person's participation in medical research. This appointment power was introduced by the Guardianship and Administration Amendment (Medical Research) Act 2020 (WA), which inserted Part 9E into the GA Act to regulate decision-making about medical research participation.

The Tribunal has jurisdiction to appoint a research decision-maker where it is satisfied that the represented person lacks capacity to make their own decisions about participation in medical research and that there is a need to appoint a substitute decision-maker to make such decisions in the represented person's best interests (see DAH [2023] WASAT 102 at [13], [43], [138]-[139]).

This blog examines the statutory framework governing the appointment of research decision-makers and the principles derived from the leading Tribunal decision on research decision-maker appointments, DAH [2023] WASAT 102.

Statutory Framework

Part 9E of the GA Act establishes a regime for substitute decision-making regarding medical research participation. Key aspects of the legislative scheme are:

• The Tribunal may appoint a research decision-maker with the function of making 'research decisions' on behalf of a represented person who lacks capacity to make their own decisions about participation in medical research (see GA Act ss 43, 45(2)(i), 46(2)(i); DAH at [28]-[35]).

• A 'research decision' means a decision to consent or refuse consent to a person's participation in 'medical research' (see GA Act s 3).

• 'Medical research' is defined broadly, with limited exceptions, as research conducted with or about individuals in the field of medicine or health (see GA Act s 3AA; DAH at [38]-[41]).

• Certain criteria must be satisfied before a research decision-maker can consent to a represented person's participation in medical research (see GA Act ss 110ZR, 110ZU, 110ZW; DAH at [42]-[57]). These include:

• The research must be approved by a Human Research Ethics Committee (GA Act s 110ZR(1)(a));

• The represented person must be unable to make reasonable judgments about research participation (GA Act s 110ZR(1)(b));

• The research decision-maker must obtain a medical opinion that the represented person is unlikely to regain capacity within the research timeframe (GA Act s 110ZR(1)(c));

• An independent medical practitioner must determine that participation will be in the represented person's best interests or not adverse to their interests (GA Act ss 110ZR(2)(b), 110ZU); and

• The research decision-maker must be satisfied about the nature and risks of the research (GA Act s 110ZR(2)(c)).

Principles from DAH

The leading Tribunal decision on the appointment of research decision-makers is DAH [2023] WASAT 102. Some key principles derived from DAH regarding the appointment of research decision-makers are:

Jurisdiction

• The Tribunal has jurisdiction to appoint a research decision-maker where the represented person proposes to participate in medical research concerning a condition from which they do not suffer. While some provisions in Part 9E assume the research concerns a condition affecting the represented person, those provisions can be applied even if that is not the case (DAH at [58]-[75]).

• The definitions of 'research decision' and 'medical research' in the GA Act are broad and not limited to particular types of medical research. The absence of words limiting research to the represented person's own medical conditions indicates Parliament did not intend to impose such a limit (DAH at [63]-[65]).

• Construing Part 9E to apply even where the represented person does not have the relevant medical condition facilitates the protective purpose of guardianship laws (DAH at [75]).

Capacity

• The represented person must be unable to make reasonable judgments in their own best interests regarding participation in medical research in order for the Tribunal to appoint a research decision-maker (DAH at [125]-[127]).

• Informed consent requires the ability to understand complex information, ask appropriate questions, weigh alternatives and appreciate risks and benefits (DAH at [126]). Intellectual disability, comprehension and communication deficits may impede capacity for informed consent (DAH at [128]-[137]).

• The presumption of capacity in GA Act s 4 can be displaced by evidence of intellectual disability affecting functions like language, memory and concentration that are critical for research participation decisions (DAH at [128]-[137]).

Need

• The appointment of a research decision-maker must be needed to make decisions in the represented person's best interests about research participation. Need may arise where the represented person actively wishes to participate in research, has an intellectual disability, and is financially vulnerable such that participation may exploit that vulnerability (DAH at [140]-[144]).

• Appointment of a research decision-maker has a protective purpose by legally preventing participation where the represented person lacks capacity, even if they express willingness to participate (DAH at [143]).

Who may be appointed

• Consistent with guardianship laws, the Public Advocate may only be appointed as research decision-maker if there is no one else suitable and willing (DAH at [145]-[147]).

Best interests

• The independent medical practitioner advising on best interests is limited to considering medical interests, not financial interests (DAH at [78]-[84]).

• The research decision-maker should also give limited or no weight to financial benefits when deciding if participation is in the represented person's best interests (DAH at [80]-[84]).

Facts of the case

The applicant in this case was the support coordinator for DAH, a represented person under the Guardianship and Administration Act 1990 (WA) (GA Act). DAH, who was 23 years old at the time, had been subject to guardianship orders since she was 18 appointing the Public Advocate as her limited guardian to make decisions about the services she accesses.

The application concerned DAH's proposal to participate in medical research in return for payment. DAH had applied to take part in a trial conducted by a medical research company. The trial would involve 11 days of confinement in a clinic with medical testing and examinations. DAH was interested in participating to earn the payment offered, which was a substantial sum.

However, it emerged that DAH did not suffer from the medical condition that was the subject of the research. The applicant was concerned that DAH lacked capacity to make a decision in her own best interests regarding involvement in the trial. The applicant sought review of DAH's guardianship orders, requesting the Tribunal appoint the Public Advocate as DAH's research decision-maker with the function of making decisions about her participation in medical research.

The application required the Tribunal to consider whether DAH had capacity to decide on research participation herself and, if not, whether there was a need to appoint a substitute research decision-maker to make such decisions for DAH. The Tribunal had to interpret the scope of the provisions in Part 9E of the GA Act, which govern the appointment of research decision-makers, given DAH's situation.

Conclusion

The appointment of research decision-makers for represented persons who lack capacity is now an important aspect of guardianship law in Western Australia. DAH [2023] WASAT 102 provides authoritative guidance on the interpretation of Part 9E of the GA Act and how the Tribunal should approach the appointment of research decision-makers. Key considerations include whether the represented person has capacity for informed consent, whether there is a need for substitute decision-making, who is the appropriate decision-maker, and what factors determine the represented person's best medical interests.

Protecting the Estate's Interests: The Need for Independent Legal Advice for Executors

Introduction

In Hall v Hall [2023] WASC 342, Christopher Hall brought proceedings against his brother Michael Hall in Michael's capacity as executor of their mother Alwyn's estate, and in Michael's personal capacity.

An issue arose as to whether the firm acting for Michael in both capacities, Taylor Smart, owed potentially conflicting duties to him in those different capacities.

Facts

Michael was appointed executor of Alwyn's estate, which was valued at over $9 million ([31]).

Christopher sought various orders requiring Michael as executor to take action against Michael personally relating to loans, property improvements and unpaid rent ([35]-[37]).

Michael opposed the orders sought ([39]).

Taylor Smart (lawyers) acted for Michael as executor and personally, filing affidavits and submissions without distinguishing his capacities ([65]).

The court noted Taylor Smart had prepared Alwyn's will and power of attorney ([65]), and there was no evidence Michael as executor had independent advice about potential claims against Michael personally ([68]-[69]).

Analysis

In Hall v Hall, Howard J considered Taylor Smart's representation of Michael in his personal and executor capacities gave rise to a potential conflict of duties ([66]).

His Honour stated it was "imprudent, at the least" for Taylor Smart to act for Michael in these potentially conflicting capacities without distinguishing between them ([70]).

The court has a supervisory role over its officers to ensure the administration of justice, which includes ensuring solicitors avoid acting where there are conflicting duties.

Michael as executor was entitled to be advised independently about potential claims against Michael personally ([68]-[69]).

Michael ought to consider his positions and obligations as executor and personally, and obtain independent advice, given the potential conflict ([74]).

The court refrained from making any order at that time, but considered it sufficient to raise the obvious matter ([75]).

To Name or Not to Name? An Analysis of Confidentiality Exceptions for Identifying Parties in Guardianship Proceedings

Introduction

The decision in Australian Broadcasting Corporation v Public Trustee [2022] WASC 85 concerned an application by the ABC under cl 12(8)(d) of sch 1 of the Guardianship and Administration Act 1990 (WA) (the Act) for a direction permitting it to publish reports about guardianship proceedings which identified the parties involved.

The facts concerned an application brought by one of AC's children resulting in orders appointing the daughter as AC's guardian and the Public Trustee as administrator of AC's financial affairs. AC died 15 months later.

The ABC sought to include AC's case in a Four Corners report on the Public Trustee system and public guardian nationally. The children of AC consented to being identified.

The key issue was the construction of cl 12(8)(d) and whether the court had a general discretion or whether exceptional circumstances had to be shown.

Facts

The facts are set out at [6]-[12].

In summary, the ABC was investigating the Public Trustee and public guardian systems nationally and sought to include AC's case as one of four case studies in a Four Corners report ([6]-[9]).

Orders were made in June 2015 appointing AC's daughter as guardian and the Public Trustee as administrator.

AC died 15 months later in September 2016 ([10]). AC's children consented to the application and being identified ([11]-[12]).

Law

The general position under the Act is confidentiality of proceedings, evidenced by ss 112-113 and sch 1 ([15]-[16]). The exceptions are set out in sch 1 cl 12(8), including cl 12(8)(d) which permits publication pursuant to a direction of the Tribunal or court ([16]).

The requirement for confidentiality is consistent with the protection afforded to vulnerable members of the community ([26]). However, statutes affecting open justice should be construed to minimise intrusion on that principle where possible: Hogan v Hinch [2011] HCA 4 at [27] ([28]).

In construing cl 12(8)(d), the ordinary meaning of "notice" and "report" should be adopted in the absence of any contrary intention ([29]-[30]). The clause confers a general discretion on the court, subject only to limits implied from the Act's scope and purpose: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at [15] ([33]).

Guidance can be obtained from Family Court decisions on the identically worded Family Law Act provision: AH v SS (2005) 194 FLR 111 at [10]-[11] ([31]-[32]). However, there are no express constraints on the discretion and the court should not impose any not implied from the Act's scope and purpose ([37]).

All logically relevant factors should be considered including privacy, freedom of communication and the represented person's position ([37]).

Analysis

French CJ's statement in Hogan v Hinch supports a broad construction of cl 12(8)(d) to minimise intrusion on open justice ([28]).

The ordinary meaning of "notice" and "report" encompasses the proposed Four Corners program ([29]-[30]).

The clause confers an unconstrained discretion subject only to limits implied from the Act's scope and purpose ([33]).

While guidance can be obtained from Family Court decisions ([31]-[32]), no constraints on the discretion should be imposed other than those implied from the Act ([37]).

Logically relevant factors include privacy, freedom of communication and the represented person's position ([37]).

Here, AC was deceased and the children consented ([39]).

There was public interest in the Public Trustee's operations and the Act's operation ([40]).

The rights of AC and others would not be unduly infringed by the direction. In all the circumstances, the discretion should be exercised to permit identification ([41]).

One Star Review: Damages for Defamatory Google and Facebook Reviews

Introduction

In Lyell Steven Allen t/as AVL Electrical Services v Godley [2023] WADC 54, the District Court of Western Australia considered the assessment of damages in a defamation claim brought by an electrician against six defendants, including Nathan James Simpson, for one-star business reviews posted on Google and Facebook. The court found the reviews conveyed imputations that the plaintiff provided poor quality services and awarded $35,000 general and aggravated damages against Simpson.

Facts

The plaintiff operated an electrical services business and marketed it on Google and Facebook. Prior to December 2018, he had a five-star rating on both platforms (at [40]-[46]). In November 2018, a dispute arose between the plaintiff and his neighbour, the first defendant, regarding a Christmas lights display. On 14 December 2018, the first defendant changed his positive Google review of the plaintiff’s business to a one-star review without explanation (at [50]-[56]). That day, the second defendant, who was the first defendant’s sister, also posted an unexplained one-star Google review of the plaintiff’s business (at [57]). Over the following days, the third, fifth and sixth defendants, who were connected to the first defendant, posted similar one-star Google reviews (at [58]-[59]).

On 19 December 2018, the fourth defendant, Simpson, posted a one-star Google review and a one-star Facebook review stating the plaintiff was a “grinch” he would not recommend (at [59]). The plaintiff had never provided services to Simpson or the other defendants except the first defendant (at [59]). Following the reviews, the plaintiff’s Google rating dropped to 4.4 out of 5 stars (at [62]). The plaintiff claimed the reviews conveyed imputations including that he provided poor quality services that should be avoided (at [69]).

Law

To establish defamation, the plaintiff must prove the defendant published defamatory matter to a third party which identified the plaintiff and lowered his reputation (Armstrong v McIntosh [2020] WASC 31 at [224]). Once established, damage to reputation is presumed (Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 247, 250). Damages serve to compensate hurt feelings, repair harm to reputation and vindicate the plaintiff (Armstrong at [225]). Aggravated damages may be awarded where the defendant’s conduct increased injury to the plaintiff (Armstrong at [236]).

Analysis

Justice Gillan found Simpson’s non-appearance meant he admitted publishing the reviews and they carried the imputations pleaded (at [25]). Her Honour was prepared to infer from the circumstantial evidence that third parties searched for electricians online, saw the reviews and the plaintiff’s Google hits increased after they were posted (at [79]-[80]). This established publication to third parties. The imputations concerning poor quality services seriously damaged the plaintiff’s professional reputation and lowered his standing, making them defamatory (Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [36]; Armstrong at [224]).

Justice Gillan accepted the reviews caused the plaintiff serious hurt and distress (at [88]). She awarded $35,000 general and aggravated damages, taking into account the plaintiff had settled with other defendants but Simpson’s refusal to apologise or remove the “grinch” review justified additional damages (at [96]). Her Honour also granted an injunction requiring Simpson to remove the reviews (at [97]). The defendant’s failure to make a settlement offer or respond to proceedings meant indemnity costs were appropriate (at [101]).

Conclusion

The decision illustrates that publishing false negative online business reviews can have serious ramifications in defamation. Where reviews damage a plaintiff’s professional reputation and cause distress, substantial damages may follow. Refusing reasonable settlement offers or a retraction may lead to aggravated damages and indemnity costs. Plaintiffs should act promptly to request removal of unjust reviews.

Assessing Capacity: Independence of Decision-Making Under the GA Act

Introduction

This blog examines the issue of whether capacity under the Guardianship and Administration Act 1990 (WA) (GA Act) is assessed by reference to a represented person's ability to make decisions independently of others.

The analysis is based on the Western Australian State Administrative Tribunal decision in DL [2023] WASAT 66, which involved an application to review a decision to appoint a limited guardian for Mr L, a 59-year old man with an intellectual disability.

In submissions, it was argued on behalf of Mr L that he did not require a guardian as he had capacity to make simple everyday decisions, particularly with assistance from others.

Facts

In DL [2023] WASAT 66, the Tribunal reviewed a decision to appoint the Public Advocate as Mr L's limited guardian with authority over treatment decisions and service decisions.

Mr L opposed the appointment of a guardian, arguing he was capable of making simple everyday decisions with assistance and did not require a guardian [34].

Medical evidence indicated Mr L had capacity to make simple decisions but not complex ones independently [13], [15]-[16].

The Tribunal found Mr L did not have capacity to make complex personal decisions independently and appointed Mr W as his limited guardian for service decisions [17], [29]-[30].

Law

Section 43(1)(b) of the GA Act provides that a guardian can be appointed for a person who is "unable to make reasonable judgments in respect of matters relating to his person".

Under section 4(3), an adult is presumed to have capacity to make decisions about personal matters until the contrary is proved.

Analysis

The Tribunal held that in assessing capacity under section 43(1)(b), it must consider a person's ability to make decisions independently of others [17]. While Mr L could make simple everyday decisions with support, he lacked capacity to make more complex decisions without assistance [16]-[17]. As Davis J said in RE QD [2019] WASAT 112 at [43], capacity under the GA Act is assessed by reference to an ability to make decisions independently.

The Tribunal cited medical evidence indicating Mr L could follow medical advice and make simple decisions, but could not understand complex illnesses or make complicated medical choices without oversight [12]-[15]. This aligned with evidence that Mr L would struggle with complex NDIS decisions [24]. The Tribunal accepted he could make simple choices with support, but the GA Act required consideration of his independent ability to make more complex personal decisions [17].

Although Mr L opposed the appointment of a guardian, the Tribunal held the presumption of capacity in section 4(3) was displaced by the evidence demonstrating he could not independently make reasonable judgments on complex matters relating to his person, meeting the test in section 43(1)(b) [16]-[17]. As Bell J said in RE GD [2018] WASAT 33 at [29], while views of the represented person must be considered, the Tribunal is not bound to accept those views if the evidence indicates otherwise.

Conclusion

The Tribunal in DL confirmed that in assessing capacity under section 43(1)(b) of the GA Act, the relevant consideration is whether the represented person can make reasonable judgments independently in relation to personal matters, not their ability to make decisions with assistance. The Tribunal will consider the represented person's views but does not have to accept those views if satisfied the test in section 43(1)(b) is met based on the evidence.

Awards of Costs in Guardianship Proceedings: Exceptions to the General Rule

Introduction

In CK [2023] WASAT 84, the State Administrative Tribunal considered whether to make a costs order in a guardianship and administration matter.

CK, an elderly man with dementia, was the subject of applications by his children P and V relating to the validity of enduring powers and the appointment of an administrator and guardian.

P sought an order that V or CK pay some or all of his legal costs.

The Tribunal held that the circumstances were not sufficiently exceptional to justify a departure from the starting position that parties bear their own costs.

Legal principles

The Tribunal's primary concern in guardianship and administration proceedings is the best interests of the person concerned (CK [2023] WASAT 84 at [15], citing Guardianship and Administration Act 1990 (WA) s 4(2)).

Under s 16(4) of the Guardianship and Administration Act 1990 (WA), the Tribunal has discretion to order costs be paid to a party by the represented person if satisfied the party acted in the represented person's best interests.

However, such awards are uncommon, generally only when the applicant's actions benefit the represented person (CK [2023] WASAT 84 at [16]-[17], citing Y and CO [2020] WASAT 166 at [32] and Re WA and IA Ex parte AA and JA [2011] WASAT 33 at [59]-[60]).

The starting point is that parties bear their own costs (CK [2023] WASAT 84 at [18]-[19], citing RK [2020] WASAT 53 (S) at [22] and State Administrative Tribunal Act 2004 (WA) s 87(1)).

Under s 87(3) of the State Administrative Tribunal Act 2004 (WA), the Tribunal may order a party to compensate another party's expenses resulting from the proceeding, although not to punish (CK [2023] WASAT 84 at [20], citing Blaskiewicz and The Owners of 7 Henderson Street Fremantle (Strata Scheme 74918) [2021] WASAT 56 at [61]).

The Tribunal has discretion to award costs in any proceeding, to be exercised based on the circumstances and whether it is fair and reasonable (CK [2023] WASAT 84 at [21], citing GD [2022] WASAT 33 at [59]).

Relevant considerations include whether a party unnecessarily prolonged the hearing, acted unreasonably, or caused increased costs through unreasonable conduct (CK [2023] WASAT 84 at [21], citing GD [2022] WASAT 33 at [59]).

Analysis

In CK's case, the Tribunal held the circumstances were not sufficiently exceptional to justify departing from the starting point that parties bear their own costs.

P argued legal representation was required due to the complexity and his fraught relationship with V. He was not precluded from applying without legal advice as he was an admitted but non-practicing lawyer.

The conflict and allegations were not unusually complex for guardianship proceedings (CK [2023] WASAT 84 at [27]-[33]).

Prior cases awarding costs involved greater incapacity uncertainty, property transactions by the represented person, or applicants unreasonably pursuing applications (CK [2023] WASAT 84 at [31]-[32], citing Re IO; Ex parte VK [2008] WASAT 8 and LC and JS [2007] WASAT 127).

Regarding V paying P's costs, the Tribunal held V's irrelevant evidence about P did not warrant compensation. P incurred further expense obtaining translations unnecessarily after investigations commenced (CK [2023] WASAT 84 at [37]-[40]). The flaws in V's submissions did not cause delay or obstruction (CK [2023] WASAT 84 at [41]-[42]).

Prior cases awarding costs involved more sustained unreasonableness or inappropriate conduct (CK [2023] WASAT 84 at [43]-[45], citing Re WA and IA Ex parte AA and JA [2011] WASAT 33, PJC and RJC [2008] WASAT 224 and WD [2022] WASAT 12 (S)).

Conclusion

The circumstances did not justify departing from the starting position that parties bear their own costs. Awards of costs in guardianship and administration proceedings remain exceptional.

Assessing Capacity: Weighing the Evidence in Guardianship and Administration Proceedings

A key issue in guardianship and administration proceedings is assessing whether the person has capacity to make reasonable judgments about personal, medical and financial matters. The State Administrative Tribunal must be satisfied the person lacks capacity in the relevant domain before making guardianship or administration orders (Guardianship and Administration Act 1990 (WA), ss 43, 64).

The Tribunal's primary consideration is the best interests of the person (s 4(2)). Every person is presumed capable until proven otherwise (s 4(3)). Orders should not be made if less restrictive alternatives are available (s 4(4)). The person's views and wishes must be ascertained and considered (s 4(7)).

In the decision of NB [2023] WASAT 88, the State Administrative Tribunal considered an application to appoint an administrator for NB due to concerns about her vulnerability to financial scams.

NB and her husband LB had inherited around $700,000. However, over a short period NB spent or committed to spend all but $75,000 - $80,000 of her share through involvement in an online romance scam. Despite strong evidence she was being defrauded, NB persisted in sending money for a car she believed was gifted by a famous musician she was in contact with online.

NB relied on financial help from family for living expenses while providing money to scammers. Medical evidence indicated NB had mild cognitive impairment affecting financial judgement.

The Tribunal weighed all evidence in concluding NB lacked capacity for financial matters and required an administrator to protect her estate.

A finding of incapacity must be based on evidence, not assumptions. As stated in XYZ (Guardianship) [2007] VCAT 1196 at [69], cognitive tests like the Mini Mental State Examination can place too much weight on language, education and cultural factors. Direct observation of functioning may be more insightful (XYZ at [66]).

The definition of 'mental disability' is inclusive, not exhaustive, and does not require a medical diagnosis (FY [2019] WASAT 118 at [32]). The cause may be unclear but the disability evident. The key issue is whether the person can make reasonable judgments in the relevant domain.

Medical evidence will often be important. In NB [2023] WASAT 88, greater weight was placed on evidence of a consultant physician over a GP. MRI and PET scans showed mild cerebral abnormalities but no neurodegenerative dementia. However, the doctor considered the represented person still had some vulnerability to financial scams and uncertainty judging complex finances (NB at [25]-[27]).

Non-medical evidence provided further proof of incapacity. The represented person's persistent vulnerability to scams, inability to critically evaluate fraud warnings, dismissiveness of family advice, anger at their interventions, and continuing belief she was in contact with a famous musician she admired showed lack of insight and judgement (NB at [29]-[40]).

Assessing capacity requires analysing and weighing all evidence. Medical evidence alone may not indicate incapacity, especially if the person functions highly in other respects. But corroborating non-medical evidence of impaired functioning in daily life can prove incapacity.

Tribunals must evaluate the person's ability to make reasonable judgements in the relevant domain - personal/lifestyle, medical, financial and legal affairs. Financial capacity requires balancing income against necessary living expenses and financial goals, devising a budget, assessing contracts and expenditure, meeting debts, and resolving problems (FY at [53]).

In NB, despite intelligence and past financial responsibility, the represented person lacked reasonable financial judgement. She relied on family for living expenses while sending money to scammers, wanted to spend most of a sizeable inheritance on a luxury car, and would likely deplete remaining funds rapidly without prudent management (NB at [42]-[46]). This demonstrated inability to budget, prioritise essentials, understand contracts and expenditure implications, and meet debts.

Keeping Clients Informed: The Obligation to Revise Cost Estimates

In Luscombe v Australasian Solicitors Pty Ltd trading as HHG Legal Group [2023] WASCA 141, a client retained lawyers for a family law matter.

The lawyers' costs agreement estimated $35,000-$95,000 if proceedings became prolonged.

A short while afterwards, the lawyers requested $50,000 from the client's daughter's estate for costs. The client argued the lawyers failed to provide a revised estimate as required when there was a substantial change to the previous disclosure.

The client argued the lawyers failed to comply with their obligation to provide a revised estimate when there was a substantial change to the previous costs disclosure. She submitted that when new issues emerged, including the request for $50,000 from her daughter's estate in July 2019, no revised estimates were provided as required under section 267 of the Legal Profession Act 2008 (WA).

The lawyers submitted in response that the client did not properly articulate what the 'substantial change' was to the previous disclosure. They argued that because the original disclosure estimated a range of $35,000 to $95,000, the request for $50,000 from the estate did not amount to a substantial change requiring further disclosure under section 267. The $50,000 fell within the range originally estimated.

Key legal principles from Luscombe on revising cost estimates:

• There was an implicit finding by the first instance Judge that by the date the $50,000 was requested, there had been a substantial change requiring a revised estimate under s267 Legal Profession Act 2008 (WA) (Mullins JA at [80]).

• The lawyers' request for payment for trust money from an external party did not constitute proper written disclosure of the substantial change as required by s267 (Mullins JA at [81]).

• Litigation lawyers should be capable of providing estimates of costs in difficult litigation along with variables affecting estimates (Vaughan JA at [7]).

• Uncertainties in predicting required work can be reflected by appropriate qualifications of estimates (Vaughan JA at [7]).

• What is required are estimates, not guaranteed predictions (Vaughan JA at [7]).

• Lawyers should explain variables potentially affecting estimates and qualify estimates for uncertainties (Vaughan JA at [7]).

• Estimates can be qualified where precise estimates are difficult due to imponderables (Vaughan JA at [7]).

• Focus should be practical estimates based on experience, not guaranteed predictions (Vaughan JA at [7]).