Callan v Chawk [2023] FCA 898 | Case summary

Callan v Chawk [2023] FCA 898 | Case summary | Zoe

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C. Primary facts 17 In 2009, Mr Chawk underwent a rhinoplasty procedure in a public hospital. 18 In 2010, Mr Chawk underwent a further rhinoplasty procedure performed by Dr Peter Dixon. 19 Mr Chawk gave evidence that both of those surgeries were only for aesthetic purposes. I do not accept that evidence. No objective evidence was produced to support the contention that the surgeries were for aesthetic purposes and it is inherently improbable that Mr Chawk underwent a cosmetic procedure in a public hospital. Further, when giving evidence in chief of his relevant medical history, Mr Chawk failed to make any reference to the rhinoplasty procedure in 2009. This omission casts significant doubt on the accuracy of Mr Chawk's recollection of his medical procedures. A rhinoplasty procedure, as was evident from the evidence adduced in the proceeding, is not a minor procedure that might readily be overlooked by a person giving evidence of their medical history. 20 In June 2020, Mr Chawk saw Dr Wally Hassoun, a dentist, for a consultation in relation to a possible temporomandibular disorder which is a condition that may cause pain in the jaw joint and other muscles that control jaw movement. Dr Hassoun concluded that Mr Chawk's symptoms were more related to airway limitations with secondary bruxism. Dr Hassoun further found that Mr Chawk had a very limited anterior nasal opening which readily collapsed. He recommended that Mr Chawk wear a night guard to prevent further teeth grinding. 21 In July 2020, Mr Chawk consulted Dr Perry Burstin, an ENT surgeon. He told Mr Chawk that his nasal valve was collapsing and that his nose was deviated. He was scheduled to undergo surgery with Dr Burstin, but did not want to go through with it because he had read bad reviews about Dr Burstin online. 22 At about this time, Mr Chawk also consulted with Dr Chris Moss, another plastic surgeon. He gave evidence that he did not proceed with Dr Moss because he was too expensive, although he told Dr Glenn Watson that he was having surgery with Dr Moss. 23 Mr Chawk first made contact with Dr Callan's practice on 7 July 2020. Mr Chawk told Ms Callan that he had undergone a previous rhinoplasty procedure with Dr Dixon some years before, but that he still had difficulty breathing and a crooked nose. In cross-examination, Mr Chawk agreed that as a result of what he had been told by Dr Burstin, he knew when he consulted Dr Callan's practice that he had collapsed nasal valves on both sides which had been causing his breathing difficulties for about a year. Mr Chawk also agreed that he was suffering fatigue by the time he saw Dr Callan.

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C.1. Consultation with Dr Callan on 10 July 2020 24 On 10 July 2020, Mr Chawk had his first consultation with Dr Callan. Ms Parsons was also present during this first consultation. Dr Callan recorded the details of this consultation in a letter to Mr Noel Russell, an ENT surgeon, which he dictated immediately after the consultation. 25 During the consultation, Mr Chawk stated that he had undergone a rhinoplasty procedure about ten years ago. He explained to Dr Callan that although the operation had improved the appearance of his nose, "it has made his breathing worse and that is his main issue at the moment". Dr Callan observed that Mr Chawk had very slight nostrils which "completely collapse on the slightest inspiration", and which was "worse on the right than on the left". Dr Callan noted that although Mr Chawk's septum was deviated it did not appear to be causing much obstruction. 26 Dr Callan took a series of photographs in the course of the consultation. The narrowness of Mr Chawk's nostrils, even in a resting state, and the almost total collapse of his nostrils on forced inspiration is evident from the photographs. 27 Dr Callan advised Mr Chawk that he needed a complete open rhinoplasty procedure with lateral wall reconstruction in order to change the nostril shape. Dr Callan took a series of 3D images which he used to create a simulation of how Mr Chawk's nose might look after the rhinoplasty procedure. The images included a footnote, "Simulation only: Actual surgical results will vary". Dr Callan did not have a specific recollection of what he told Mr Chawk about the simulation images. Dr Callan explained that his general practice at that time was to explain to the patient that the simulation represented the "destination", or what he planned to do. He generally explained that he might not be able to achieve what was represented by the images and that they were only a planning tool, but that he thought they were a realistic representation of what he could achieve.

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C.2. Consultation with Mr Watson 28 Dr Callan referred Mr Chawk to Mr Noel Russell, an ENT surgeon, for the investigation of a suspected polyp in Mr Chawk's nose. Notwithstanding this referral, Mr Chawk subsequently saw a different ENT surgeon, Mr Glenn Watson. 29 Mr Chawk stated that he saw Mr Watson because Mr Russell could not schedule a consultation soon enough for Mr Chawk's liking. Mr Chawk wished to consult an ENT surgeon as soon as possible because he was "struggling daily" and "struggling to breath", and experiencing symptoms including "obstruction breathing" and "decreased quality of life wak[ing] up feeling tired - its very depressing". In his email to Mr Russell's rooms at 7.09 am on Sunday, 19 July 2020, Mr Chawk requested the earliest available appointment within the week. 30 Mr Watson prepared a report of his consultation with Mr Chawk dated 27 July 2020. The report was subsequently provided to Dr Callan. Mr Watson stated in his report that he had performed a nasoendoscopy, a procedure to examine the inside and back of the nose, and he had not observed anything which gave him any concern. Dr Callan understood this information as confirming his opinion that the septum deviation was not obstructing Mr Chawk's airway. 31 On 23 July 2020, Mr Chawk completed a form entitled "Nasal Obstruction and Septoplasty Effectiveness (NOSE) Scale". This form is a tool for evaluating a patient's nasal obstruction. It is used to determine eligibility for Medicare and private health fund rebates when undergoing a rhinoplasty procedure. On this form, Mr Chawk gave himself the maximum score for nasal congestion and stuffiness, nasal blockage or obstruction, trouble breathing through his nose, trouble sleeping and being unable to get air through his nose during exercise or exertion. 32 Mr Chawk's TouchMD profile, an online platform used by Dr Callan's practice to share information with patients, records that he viewed a rhinoplasty information sheet and RealSelf materials on 24 July 2020. The information sheet sets out risks and complications of rhinoplasty procedures, including the possibility of needing revision surgery. 33 On 30 July 2020, Mr Chawk exchanged a series of emails with Ms Callan in which he pressed her to organise a further consultation with Dr Callan at the earliest possible opportunity. In an email at 12.39 pm on 30 July 2020, he stated (as written): …can you kindly promise me if you have any theatre consultations you will keep me in mind at the top of your list. I ready explained the negative effects the restricted breathing is having on my health. Lets get this going. 34 Mr Chawk asked a number of questions about cosmetic aspects of rhinoplasty procedures. In response, Ms Callan asked Mr Chawk whether he was happy with the simulation images and explained relevantly: This is what Peter is aiming to achieve. He may not get it exactly the same but feels he can achieve something close to this. … Make no mistake, your nose will not be perfect. There may be some slight irregularities but it will be better than what you have now both aesthetically and functionally. 35 Mr Chawk replied (in part): …we trust Mr Peter Callan can deliver on simulations and my items. 36 Ms Callan also suggested in these emails that the rhinoplasty procedure be delayed so that Mr Chawk could have a fuller consultation with Dr Callan before deciding whether to proceed with the surgery. Mr Chawk declined that offer, preferring to keep the surgery date on 27 August 2020. 37 These emails were forwarded by Ms Callan to Dr Callan with the comment "TROUBLE". Dr Callan gave evidence that these emails "raised a number of red flags to us that would indicate that he had unrealistic expectations", and that he was inclined not to proceed with operating on Mr Chawk. 38 Dr Callan arranged a further consultation, in order to "read the Riot Act to him and if there's any problems, we'll cancel him".

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C.3. Consultation with Dr Callan on 24 August 2020 39 On 24 August 2020, Mr Chawk attended a videoconference consultation with Dr Callan. Ms Parsons was again in attendance. Ms Parsons took handwritten notes of the consultation. Dr Callan dictated a file note immediately afterwards that was then typed. Dr Callan explained that he went through the previous letter he had written to Mr Russell on 10 July 2020 with Mr Chawk and explained the pertinent risks associated with the procedure. 40 In his oral evidence, Dr Callan relevantly gave the following account of what he said to Mr Chawk at the consultation on 24 August 2020: And then I discussed with him the fact that he had seen Glen Watson and that that was - I was happy that the septum wasn't an issue, but then it was my - I said to him, "You really concern me and what really concerns me are the email exchanges with Christine about guarantees of results". I explained to him that we are not - we are professionals, we do our best with the materials available at the time and we self-evaluate the entire time we're doing it. So all I can promise him is that I will do the best possible surgery I can on the day… And I explained to him that I wasn't happy that these are the things he said. I explained to him that secondary surgery is definitely possible, a second operation is definitely - well, a third operation in his case was definitely possible. There may be asymmetries, there may be - it may not be straight. There will be asymmetric nostrils, I went through everything I possibly could and said to him, "These are the things that can go wrong". 41 He also gave evidence that: The pertinent things that I went through with Mr Chawk were the ones that were concerning me, and they were: needing another operation, the fact that he said to me he wanted everything fixed with one operation, he doesn't want another operation and I said that is not - I cannot possibly guarantee that. So a second operation or a third operation may be required and you have to accept that if you want to go ahead with me. I can't guarantee that that won't be the case. I also talked about asymmetries, I remember talking about asymmetries, further collapse, scar - further scar tissue, needing rib cartilage, the nose not being perfectly straight and perfectly symmetrical. … I remember him telling me that he wanted it [fixed] in one operation, that this - the next operation was the only one he wanted to have, but I do remember him at the end, I said to him - he assured me that that was okay. That he could accept all of that, and I said, "Well, in that circumstance, I'm happy to go ahead, but you must affirm to me that that is the way you feel and the way that you can accept that that is the case." 42 I accept Dr Callan's recollection of the substance of what he conveyed to Mr Chawk in the course of the consultation on 24 August 2020. It is consistent with both Ms Parsons' recollections and Dr Callan's contemporaneous records of the consultation. Further, the extent of his specific recollection of the consultation is relatively unremarkable. I accept Dr Callan's evidence that he had a state of heightened awareness during this consultation given the content of Mr Chawk's emails to Ms Callan, leading up to the consultation. 43 Ms Parsons gave evidence that, before the second consultation, "There was words… where Mr Chawk wanted to have guarantees", but that Dr Callan said he was unable to give guarantees. She testified that he "wanted to assure Mr Chawk that he's just going to do the best he can on the day. There is no guarantee". Ms Parsons was not challenged on this evidence in cross-examination. 44 Ms Parsons' note records that they "Discussed result will be better but not perfect" and "Complications + risks associated with revision rhinoplasty" and "PC will do best he can". She put multiple ticks next to the words "Complications" and "Asymmetry" under the heading "What was discussed today". In oral evidence, Ms Parsons explained that the ticks next to certain topics indicated that those topics were important and discussed a lot. The cross-examiner also did not challenge Ms Parsons on this evidence. 45 Mr Chawk's evidence was that it was he who raised a list of complications, not Dr Callan, and that in response to his queries, Dr Callan said "none of those things are going to happen" and that "you're in good hands". I do not accept this evidence. Those words were put to Dr Callan and he denied saying them. His oral evidence was consistent with the contemporaneous notes and Ms Parsons' evidence. It was not put to Ms Parsons that Dr Callan said such words in response to a list of complications raised by Mr Chawk. On balance, I am satisfied that it is implausible that any experienced and competent plastic surgeon would disclaim any possibility of known complications of a rhinoplasty procedure to a patient in such a cavalier fashion. 46 Dr Callan's evidence about the consultation is consistent with his contemporaneously dictated file note and with Ms Parsons' recollections and her handwritten note. I do not accept Mr Chawk's evidence concerning the consultation on 24 August 2020, to the extent that it is inconsistent, particularly given Ms Parsons unchallenged corroborative evidence that Dr Callan refused to give Mr Chawk any guarantees about the outcome of the rhinoplasty procedure. 47 In summary, I am satisfied that, on 24 August 2020, in the course of the consultation: (a) Mr Chawk was told that his septum was not the issue; (b) Mr Chawk was told in clear terms that Dr Callan could not provide any guarantee as to the outcome of the rhinoplasty procedure. Rather, Dr Callan responded to Mr Chawk's request for a guarantee in words to the effect that all he could say was that he would do the best possible surgery on the day; (c) Mr Chawk said that he did not want to undergo a further revision surgery. Dr Callan responded in words to the effect that he could not possibly guarantee this, that follow-up surgery "is definitely possible", and that Mr Chawk would have to accept this if he wanted to go ahead with Dr Callan; (d) Dr Callan explained the risks of the procedure including the possibility of asymmetry, the nose not being perfectly straight, further scar tissue, needing rib cartilage, and further collapse; and (e) at the end of the consultation, Mr Chawk confirmed that he understood and accepted all of this.

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C.6. Second postoperative consultation 51 On 10 September 2020, there was a second postoperative consultation. Ms Callan was again present. Dr Callan gave the following evidence about what happened at that consultation: Do you recall anything specifically about that consultation? What he said to you, and what you said to him?--- Yes, I do. I recall that. He - when he came in, he said, "Bad news." Yes?--- And I said, "What's the problem?" And he showed me that the right nostril collapsed slightly when he breathed in. And I said - well, I said, "It's early days. The nose is not stiff yet. You will just have to wait, and we will just have to wait and see, because it may well stiffen up as time goes on." It's at the moment, when you first do a rhinoplasty, it's a bit of a house of cards, and everything has got to firm up. And, at that stage, there was no scar tissue. It was just held together by a few sutures and bodily fluids which hold it together, which eventually turns into scar tissue. And did he say anything to you after you told him that?--- I recall there being a little bit of a discussion about, if it stays, what do we do. And I said we will just have to wait and see. I mean, if there's a problem - and I am talking generally in my usual practice now. That, if there's a problem, we will sort it out for you. And what do you mean by that?--- Well, that would be a second surgery, if necessary. And how long do you have to wait after a rhinoplasty to determine whether another surgery is necessary?--- If everything has gone well, there's no infection, there's no problems and the rhinoplasty goes smoothly, you would wait at least six months, but probably 12 before operating, because you want the scar - scar tissue to firm up. You also want a lot of the swelling to go down. And with a rhinoplasty, the swelling can take up to two years to go down, especially in secondary rhinoplasties. It can take at least two years to go down. Is that something that you told him?--- I told him that I - I - I can't remember telling - what I exactly told him, but I told him there was nothing to do at that time. 52 Mr Chawk stated that he still had some collapse on one side, but his normal breathing was otherwise fine. 53 Ms Callan's handwritten note and Dr Callan's typed note record that Mr Chawk's nose was still collapsing "a bit on the right side" but that he was otherwise "very much better". 54 In cross-examination, Ms Callan was not challenged on the evidence in her note recording that the collapse was on the right-hand rather than the left-hand side. 55 A further set of photographs was taken during the second postoperative consultation. It is clear from a comparison of these postoperative photographs, side by side, with the preoperative photographs taken on 10 July 2020, that in a resting state, Mr Chawk's nostrils were significantly more open on both sides. On inspiration, it can be seen that his right-hand nostril collapsed but significantly less than preoperatively. The left-hand nostril does not appear to be collapsing at all in the photograph. 56 Dr Callan booked Mr Chawk in for a further consultation in December 2020 but did not hear from Mr Chawk again. 57 Mr Chawk ultimately agreed with much of what was put to him about the consultation on 10 September 2020. He added that Dr Callan told him that everyone's nose collapses on inspiration and gave him a demonstration, and Mr Chawk saw that his nose did in fact collapse on inspiration. 58 Notwithstanding this, Mr Chawk claims that by 8 October 2020, his left nostril was collapsing, more so than the right nostril. He sought to prove that by the photographs that he attached to the Review. 59 Dr Callan submits that the Court should not place any reliance on Mr Chawk's photographs because they were not "controlled" photographs as it was not apparent from what distance they were taken. Mr Chawk's evidence actually corroborated Dr Callan's evidence in this regard, inasmuch as he noted that Dr Callan's photography room had a mark on the floor indicating where he should stand for the photographs. 60 The photographs taken by Mr Chawk appear, somehow, to have been reversed. It is improbable that the right nostril significantly improved in that month and the left nostril reverted to its preoperative state. Further, a slight deviation on the tip of Mr Chawk's nose to the left is apparent in the photographs taken on 10 September 2020, assuming it is reversed. If Mr Chawk's photographs were correct, it would imply that his nose had completely changed the direction in which it deviated, which is implausible. He accepted that his nose deviated to the left, particularly having regard to his evidence about the taping of his nose. The left nose deviation could still be observed in Mr Chawk's nose when he gave evidence.

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D.1. Legal principles 64 It is first necessary to determine whether this Court has jurisdiction to hear the proceedings. Section 9(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) confers on this Court the jurisdiction of the Supreme Courts of the Northern Territory (NT) and the Australian Capital Territory (ACT) to hear and determine defamation matters that would be within their jurisdiction: Colagrande v Telstra Corporation Limited [2020] FCA 1595 at [14] (Derrington J) citing Rana v Google Inc (2017) 254 FCR 1; [2017] FCAFC 156 at [24] (Allsop CJ, Besanko and White JJ); Crosby v Kelly (2012) 203 FCR 451; [2012] FCAFC 96 at [35] (Robertson J, Bennett and Perram JJ agreeing). 65 The tort of defamation focusses on damage to the reputation of the defamed person by publication of defamatory material which is comprehended by a third party: Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at [25]-[26] (Gleeson CJ, McHugh, Gummow and Hayne JJ). Publication of defamatory material online is established by evidence that the material was downloaded and read by a third party: Dow Jones at [26] and [44]; see also Colagrande v Telstra at [15]. 66 Publication, in the legal sense, may be established by pleading and proving a "platform of facts" which support the inference that the defamatory material was downloaded. An inference will not be drawn from the mere fact that the defamatory material was posted online: Sims v Jooste (No 2) [2016] WASCA 83 at [18] (Martin CJ, Buss JA and Mitchell J agreeing). Facts relevant to an inference that the defamatory material was downloaded include the number of "hits" on the website on which the material was posted and the period of time over which the material was posted online: Sims at [19]. 67 In Colagrande v Kim [2022] FCA 409 at [39] (Jagot J), a case about a defamatory review on a doctor rating website, her Honour inferred that the matter complained of was read by a large number of people. Her Honour drew the inference from facts including (a) the period of time that the defamatory material remained online, (b) the size and popularity of the website on which the defamatory material was published, and (c) the number of views per month of the applicant's profile on that website.

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D.3. Submissions 74 Mr Chawk submits that the evidence of publication relied upon by Dr Callan is insufficient to establish substantial publication of the Review for the following reasons. 75 First, Mr Chawk submits that substantial publication of the Review could not be established in the absence of analytical data. Such data includes how many people viewed the RealSelf website in Australia, how many looked at the sub-category "rhinoplasty", the number of people registered on the site and the extent of any geographic filtering to identify doctors near the location of the person searching. 76 Second, given Dr Callan's practice is not limited to rhinoplasty procedures, people may have reviewed his profile on the RealSelf website for other reasons. 77 Third, unlike in Colagrande v Kim, the number of page views was much less and there was no evidence of the ease with which users of the RealSelf website might have found the Review or the interaction of the RealSelf website with Google. In Colagrande v Kim, analytic data over a period from December 2020 to June 2021, showed that views of the relevant online page ranged from approximately 70,000 to 180,000 per month. 78 Fourth, there was no evidence of how the star rating system on the RealSelf website worked. In particular, there was no evidence, unlike in Lorbek v King [2022] VSC 218 at [70(iv)] (McDonald J), of whether the RealSelf website had the functionality for a quick search to see the "lowest or most scandalous ratings". 79 Fifth, given the RealSelf website is only open to people who have registered and have a log in, there can be no presumption that the Review might have spread in a "viral" fashion. 80 Finally, Mr Chawk also submits that Dr Callan has not established that the Review was published in a federal jurisdiction, that is, in either the ACT or the NT. He submits that although the statement of claim refers to a publication of Ms Hannah Tonks in the ACT, she was not called to give evidence and the Court would be slow to infer publication in the ACT or the NT, given Dr Callan's practice was limited to Geelong.

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D.4.1. Whether the Court has jurisdiction 81 In my view, it is not possible to infer that the Review was published in the ACT or the NT. 82 It has been said, in an interlocutory context, that the fact that a website is accessible throughout Australia is sufficient to establish that the Court is likely to have jurisdiction to hear a defamation claim: Colagrande v Telstra at [15] (Derrington J) citing Kabbabe v Google LLC [2020] FCA 126 at [16] (Murphy J). Similarly, in Boyd v Automatic, Inc [2019] FCA 86, Kerr J considered an application for an interlocutory injunction prior to the commencement of defamation proceedings and stated at [48]: [I]n my view, where highly controversial material has been published regarding a resident of this country and made available to be read or downloaded from a website without restriction anywhere in Australia, it would be unrealistic to conclude other than those words may have been read in, inter alia, the ACT and the Northern Territory. (Emphasis in the original.) 83 I do not consider the reasoning summarised above to be applicable in the present case. First, these proceedings are concerned with final, not interlocutory, relief. Second, each of the decisions in Colagrande v Telstra, Kabbabe and Boyd was concerned with publications on websites that were freely accessible. There was no suggestion in any of those cases that the websites could only be accessed by registered persons with log in details. Third, given the relatively limited actual views of Dr Callan's profile, I am not satisfied that it can be inferred that a person in the ACT or the NT not only viewed Dr Callan's profile but also downloaded the Review. The highest monthly view for Dr Callan's profile in the period between October 2010 and October 2022 was only 381, in April 2021. 84 Establishing federal jurisdiction, however, is not dependent on satisfying this Court that there was publication of the matter complained of in the ACT or the NT. If the Court is satisfied that a "non-colourable" assertion of federal jurisdiction has been made, the Court has jurisdiction, and once such an assertion is made it cannot subsequently be lost: Oliver v Nine Network Australia Pty Ltd [2019] FCA 583 at [17] (Lee J) citing Burgundy v Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219 (Bowen CJ, Morling and Beaumont JJ) and the following statements by Allsop CJ in "An Introduction to the Jurisdiction of the Federal Court of Australia" (2002) 23 Aust Bar Rev 29 at 45: Once a non‐colourable assertion is made, that clothes the court with federal jurisdiction, which, once gained, is never lost. Owen Dixon KC's testimony to the Royal Commission on the Constitution in 1927 put the matter in pungent practical terms: So, if a tramp about to cross the bridge at Swan Hill is arrested for vagrancy and is intelligent enough to object that he is engaged in interstate commerce and cannot be obstructed, a matter arises under the Constitution. His objection may be constitutional nonsense, but his case is at once one of Federal jurisdiction. 'Colourable' imports improper purpose: Burgundy Royale 18 FCR at 219, or a lack of bona fides: Hopper v Egg & Egg Pulp Marketing Board 61 CLR at 673. It is not judged by reference to the strength and weakness of the case alone. Improper purpose or lack of bona fides carries with it the notion of an abuse of process. (Emphasis in original.) 85 Further, there was no allegation or suggestion by Mr Chawk that the assertion as to publication in the ACT in the statement of claim lacked bona fides, was done for an improper purpose or was otherwise an abuse of process. 86 I am, therefore, satisfied that the Court has jurisdiction because Dr Callan made a "non-colourable" assertion of federal jurisdiction in the statement of claim by alleging that the Review was downloaded and comprehended by Ms Tonks in the ACT.

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E.1. Legal principles 92 The legal principles applicable to the determination of defamatory meaning are well-settled. 93 The applicant bears the onus of proving, on the balance of probabilities, that the alleged defamatory meanings or imputations were conveyed by the publication: Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 (Rush (No 7)) at [72] (Wigney J). 94 Whether the defamatory meanings were in fact conveyed is a question of fact and requires consideration of what the publication would have conveyed to an ordinary reasonable reader: Rush (No 7) at [73]-[74]; see also Schiff v Nine Network Australia Pty Ltd (No 2) [2022] FCA 1120 at [6] (Jagot J). The test uses the objective standard of reasonableness, based on how that hypothetical person would understand the alleged defamatory matter: Bazzi v Dutton (2022) 289 FCR 1; [2022] FCAFC 84 at [25] (Rares and Rangiah JJ). 95 The ordinary reasonable reader is a person of fair to average intelligence, experience and education. They are taken to be fair-minded and are neither perverse, suspicious of mind nor "avid for scandal". They do not approach a publication over zealously or seek to construe it like a lawyer. Rather, they approach it with a degree of "loose thinking". They can and do "read between the lines" in light of their general knowledge and experience of worldly affairs. They are likely to be influenced by the overall tone of the publication and draw implications, particularly derogatory imputations, more freely than a lawyer would: Rush (No 7) at [75]-[78]; Schiff at [6(2)]. 96 The ordinary reasonable reader will also consider the publication as a whole, however, a headline designed to catch the eye and give the reader a predisposition about what follows may assume more importance in assessing defamatory meaning: John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50 at [26] (McHugh J) and [187]-[188] (Callinan J). 97 Although a publication may be capable of reasonably bearing more than one meaning, the Court must determine whether the alleged defamatory meaning was in fact the single natural and ordinary meaning of the words complained of: Rush (No 7) at [83]; Schiff at [6(3)]. 98 It is, ultimately, the general impression that the publication creates in the mind of the ordinary reasonable reader that determines whether it conveys one or more of the alleged defamatory imputations: Bazzi at [47] (Rares and Rangiah JJ) citing Lewis v Daily Telegraph Ltd [1964] AC 234 at 285 (Lord Devlin). 99 In Bazzi, the Full Court of this Court also had regard to the decision of the Supreme Court of the United Kingdom in Stocker v Stocker [2020] AC 593, which was a case that involved considering the meaning of an allegedly defamatory Facebook post. At [41], Lord Kerr JSC cautioned against elaborate analysis of a post on Facebook or a tweet on Twitter because they are "casual medium[s]… in the nature of conversation rather than carefully chosen expression". The Full Court of this Court followed and applied this reasoning in Bazzi at [29] and [47] (Rares and Rangiah JJ) and [60]-[62] (Wigney J).

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E.2.1. The first and second imputations 103 It is convenient to address the first two imputations together. They are pleaded in the following terms: Peter Callan, a specialist plastic surgeon, was negligent in performing a revisional rhinoplasty procedure on his patient Zachiarah Chawk. (First Imputation) Peter Callan, a specialist plastic surgeon, negligently failed to correct his patient Zachariah Chawks's deviated septum. (Second Imputation) 104 I am satisfied that both imputations were conveyed by the Review for the following reasons. 105 First, regard must be had to the medium in which the Review was published. As submitted by Dr Callan, the Review was published on a website intended to facilitate the rating and reviewing of doctors by their patients. I readily infer that people who use a website like RealSelf do so in order to find out what other people thought about a doctor. RealSelf users would expect to read reviews that would inform them about the experience, ability and competence of the doctor in question, so that they could decide for themselves whether to undertake a medical procedure with that doctor. 106 The headline to the Review described the rhinoplasty as "Failed". The description of the rhinoplasty as "failed", rather than "unsuccessful", or "less successful than hoped", immediately orients the reader to the impression that the procedure performed by the doctor, the subject of the review, was entirely unsuccessful. 107 I am satisfied that the general impression conveyed to the ordinary reasonable reader from the text of the Review, in the context of the headline and the photographs, is that Dr Callan failed to correct Mr Chawk's nasal valve and collapsed septum. In the absence of any suggestion of dishonesty or fraud, the ordinary reasonable reader would readily conclude that the reason for Dr Callan's failure to correct Mr Chawk's nasal valve and collapsed septum was incompetence or negligence on the part of Dr Callan. No alternative explanation for the "failed" rhinoplasty procedure is proffered in the Review. 108 The opening observation in the text of the Review is that it was "mainly to help someone suffering the same symptoms make an informed decision" and the reference to the "additional challenge of finding a surgeon who feels comfortable they can achieve a better outcome". These observations reinforce the general impression that Mr Chawk was seeking to warn readers not to seek treatment from Dr Callan because he had acted negligently and incompetently in performing Mr Chawk's rhinoplasty procedure.

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G.2.1. Was the Review an expression of opinion or a statement of fact? 122 There are two matters within s 31(1)(a) of the Act which must first be addressed because they bear upon the determination of whether the Review was, in fact, an expression of opinion or a statement of fact. 123 First, s 31(1)(a) of the Act directs attention to whether the matter was an expression of opinion or a statement of fact. 124 Section 4 of the Act relevantly defines matter in the following terms: matter includes - (a) an article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical, and (b) a program, report, advertisement or other thing communicated by means of television, radio, the Internet or any other form of electronic communication, and (c) a letter, note or other writing, and (d) a picture, gesture or oral utterance, and (e) any other thing by means of which something may be communicated to a person. 125 As White J observed in Dutton v Bazzi [2021] FCA 1474 at [70] (reversed on appeal but not on this aspect), matter as defined in s 4 of the Act, suggests that the defamatory matter in s 31 of the Act is to be construed as a reference to the medium by which the defamatory imputation is conveyed rather than the defamatory imputation itself. In contrast, the common law defence of fair comment on a matter of public interest focusses on the defamatory meaning found to have been conveyed: Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60 at [83] and [85] (Gummow, Hayne and Heydon JJ). 126 The relevant question, therefore, is whether the matter would have been understood by the ordinary reasonable reader to be an expression or opinion rather than a statement of fact. This question is necessarily contextual and requires consideration of the meaning found to be conveyed in the matter but it is not constrained or dictated by their terms, so as to transform into a consideration as to how each imputation would be understood: Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15 at [131] (Lee J). 127 Second, the Act distinguishes between an expression of opinion and a statement of fact, however, an opinion is not defined in the Act. 128 An opinion has been understood to refer to "a deduction, inference, conclusion, criticism, judgment, remark, observation": John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164 at [25] (Giles JA) citing Gatley on Libel and Slander, 10th ed, 2004, at [12.6]; State of New South Wales v IG Index plc (2007) 17 VR 87; [2007] VSCA 212 at [48] (Nettle JA); Stead at [128]. 129 The distinction between facts and opinions can be elusive. As Giles JA stated in O'Shane at [27]: There can not be a clear line between comment and statement of fact. Many defamatory words have elements of fact, conclusion from facts and expression of opinion. A characterisation must nonetheless be made, and the context and circumstances of the use of the words will be important. 130 Dr Callan submits that the Review is not an expression of opinion because (a) Mr Chawk is purporting to set out facts so that readers can make "an informed decision" - that is, he is the one informing them, by giving them the "facts" about Dr Callan, (b) Mr Chawk reinforces this in the third sentence in which he states "I regret to inform…", and (c) Mr Chawk describes the alleged disappointing outcome of the rhinoplasty procedure as though it were a fact and asserts that the claims he is making are evidenced by the photographs in the Review by use of the language of "as the attached pictures show". 131 I do not agree. 132 I accept that each of the matters relied upon by Dr Callan do not suggest any expression of opinion and rather purport to be an objective recitation of factual matters. 133 In my view, however, Dr Callan has not given sufficient attention to the context in which the matter was published and most critically, the "one star" rating. The review was published on a website that allowed patients to comment on their experiences with relevantly, plastic surgeons, and to provide a "star" rating from "one star" up to "five stars". Objectively, the matter in that sense was inherently an expression of opinion. The allocation of a rating of one star at the conclusion of the Review would have readily been understood by the ordinary reasonable reader as "a deduction, inference, conclusion, criticism, judgment, remark or observation" that Mr Chawk had made from the facts stated or referred to by him in the body of the Review. The headline, "The Emotional impact of a Failed Rhinoplasty is Severe", is also an expression of opinion. The imputations that I have found to be conveyed also reinforce my view that the ordinary reasonable reader would understand the Review as an opinion based on the facts asserted. 134 Dr Callan concedes that if the Review was conveyed as an expression of Mr Chawk's opinion, it related to a matter of public interest, within the meaning of s 31(1)(b) of the Act.

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G.2.2. Were expressions of opinion based on proper material? 135 Mr Chawk pleads that the expressions of opinion were "based on proper material" because the material was based on material that is substantially true: s 31(5)(a) of the Act. 136 Under s 31(6) of the Act, an opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material. 137 Mr Chawk relies on the following as "proper material", within the meaning of s 31(5)(a) of the Act: (a) The Applicant is a surgeon; (b) The Applicant performed rhinoplasty and septoplasty revision surgery upon the First Respondent; (c) The First Respondent had waited many years for the surgery; (d) The First Respondent's septum was deviated to onside nose blockage; (e) The surgery was to treat the First Respondent's nasal septum and correct it, which did not occur, and further to treat the First Respondent's nasal valve collapse creating limited air flow and causing uncomfortable symptoms, which was only corrected on one side; (f) The First Respondent now needs to find a surgeon who can achieve a better outcome from the surgery; (g) The First Respondent had extra rib graft above his right rib; (h) The photographs of the First Respondent's face and nose (as contained in the matter complained of). 138 Mr Chawk contends that all of this material was referred to in the Review and was substantially true. In the course of his closing submissions, counsel for Mr Chawk clarified that the reference in paragraph (d) to "onside nose blockage" reflected the wording in the Review but was intended to be a reference to "one side causing nose blockage". Mr Chawk submits that he is best placed to give evidence of whether his breathing improved following the rhinoplasty performed by Dr Callan. 139 Dr Callan submits, and I accept, that the key material relied on by Mr Chawk as "proper material" is that contained in paragraphs (d) and (e). 140 Dr Callan submits that neither of these facts is substantially true. He submits that the deviation in Mr Chawk's septum was not a significant functional issue affecting his breathing and the purpose of the rhinoplasty procedure was not to correct the deviated septum but rather, to correct the nasal valves. He submits that this objective was achieved because he achieved a substantial improvement in Mr Chawk's nose, both aesthetically and functionally, and on both sides (albeit the improvement was more significant on one side). Further, Dr Callan submits that any expression of opinion to the effect that the surgery had "failed" could not reasonably be based on the remaining material if paragraphs (d) and (e) are not shown to be substantially true. 141 In my view, the material stated in paragraphs (d) and (e) cannot be shown to be substantially true. 142 I accept that Mr Chawk could be expected to give relatively reliable evidence as to the symptoms that he might have been experiencing, at least prior to the rhinoplasty. His evidence of his symptoms after the rhinoplasty, however, is difficult to reconcile with the objective evidence provided by the photographs taken by Dr Callan at the two post-operative consultations. I am satisfied that the photographs establish that it was the right nostril, not the left nostril that partially collapsed on forced inspiration. Mr Chawk was much less qualified or able to give reliable evidence of the medical conditions that might have caused those symptoms. 143 Mr Chawk's evidence is also inconsistent with the contemporaneous medical records and the oral testimony of Dr Callan, Ms Callan and Ms Parsons concerning Mr Chawk's consultations and medical procedures. It is readily apparent from the evidence that: (a) Mr Chawk was experiencing debilitating breathing difficulties at the time of his initial consultation with Dr Callan on 10 July 2020; (b) the nasoendoscopy performed on Mr Chawk by the ENT surgeon, Mr Watson, on 27 July 2020, confirmed that Mr Chawk's septum deviation was not obstructing his airways; (c) the aim of the rhinoplasty performed by Dr Callan was to address the almost total collapse of Mr Chawk's nostrils on forced inspiration and to improve the shape of his nose aesthetically; and (d) following the rhinoplasty procedure, there was an aesthetic improvement in the shape of Mr Chawk's nose, his nostrils were significantly more open on both sides in a resting state and on inspiration, the right side nostril collapsed significantly less than it did pre-operatively, and there was no indication of any collapse in the left side nostril. 144 As the material in paragraphs (d) and (e), of the materials relied on by Mr Chawk as "proper material" under s 31(5)(a) of the Act have been shown to not be substantially true, the defence of honest opinion under s 31(1) of the Act, cannot succeed.

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H.1. Section 30 of the Act 150 The defence of qualified privilege was set out in s 30 of the Act, at the relevant time, as follows: 30 Defence of qualified privilege for provision of certain information (1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that - (a) the recipient has an interest or apparent interest in having information on some subject, and (b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and (c) the conduct of the defendant in publishing that matter is reasonable in the circumstances. (2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest. (3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account - (a) the extent to which the matter published is of public interest, and (b) the extent to which the matter published relates to the performance of the public functions or activities of the person, and (c) the seriousness of any defamatory imputation carried by the matter published, and (d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and (e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously, and (f) the nature of the business environment in which the defendant operates, and (g) the sources of the information in the matter published and the integrity of those sources, and (h) whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and (i) any other steps taken to verify the information in the matter published, and (j) any other circumstances that the court considers relevant. 151 If the defence of qualified privilege under s 30(1) of the Act is established by a defendant, the onus shifts to the plaintiff to prove by way of defeasance that the publication of the defamatory matter was actuated by malice: s 30(4) of the Act. The defence will not be defeated merely because the defamatory matter was published for reward: s 30(5) of the Act.

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H.2. Did Mr Chawk act reasonably in publishing the Review? 152 Dr Callan has conceded the first two elements of the defence of qualified privilege under s 30(1)(a) and s 30(1)(b) of the Act. 153 It remains for Mr Chawk to prove that his conduct in publishing the Review was reasonable in the circumstances: s 30(1)(c) of the Act. 154 Section 30(3) of the Act sets out a list of factors that the Court may take into account in determining reasonableness. The list of factors should not be approached inflexibly as it is neither exhaustive, nor mandatory: see Rush v Nationwide News Pty Ltd [2018] FCA 357 at [139] (Wigney J); see also Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52 at [30] (Gleeson CJ and Gummow J). 155 As a general rule, a defendant's conduct in publishing a defamatory matter will be reasonable if the defendant had reasonable grounds for believing the imputations to be true, took proper steps reasonably open to them to verify the accuracy of the material and did not believe the imputation to be untrue: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25 at 574 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ). In most cases, the more serious the imputation that is conveyed, the greater the obligation on the defendant to ensure that its conduct in relation to the publication was reasonable: Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185 at [109] (Wigney J), citing Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 at 387C (Hunt A-JA, with Samuels JA agreeing). 156 Generally, the conduct of the defendant, will not be reasonable unless the defendant sought a response from the person defamed and published any response made, except when it is not practicable or unnecessary to seek a response: Lange at 574, citing Stephens v West Australian Newspapers Limited (1994) 182 CLR 211; [1994] HCA 45 at 252-253 (Brennan J); see also Herron v HarperCollins Publishers Australia Pty Ltd (2022) 292 FCR 336; [2022] FCAFC 68 at [188]-[192] (Rares J, Wigney and Lee JJ agreeing). 157 Mr Chawk submits that (a) the defence of qualified privilege gives rise to public policy issues about what a zone of protected communication is and how that zone of protected communication might be lost, (b) in assessing the reasonableness of the publication in this case, it is necessary to have regard to the relative lack of sophistication of those posting comments about matters of a deeply personal nature on the RealSelf website, and (c) the language used in the Review was "highly moderate". 158 In my view, Mr Chawk has not established that his conduct in publishing the Review was reasonable within the meaning of s 30(1)(c) of the Act. 159 First, it can be accepted that issues might arise when people are posting reviews of their personal experiences with doctors on review sites on the internet. Dr Callan readily agreed that subscribers to the RealSelf website had an interest or apparent interest in having information on the outcome of Mr Chawk's rhinoplasty procedure and the Review was published to them in the course of giving them information on that subject. So much was clear from the fact that only subscribers with log in details to the RealSelf website could access the Review and that the primary purpose of the RealSelf website was to inform prospective patients about plastic surgeons, including those performing rhinoplasties. Establishing the existence of an interest or apparent interest in receiving information on an issue, however, is not sufficient to establish that a publication was reasonable within the meaning of s 30(1)(c) of the Act. 160 Second, I am not satisfied that Mr Chawk established that he believed the imputations in the Review to be true. Most significantly, as I have found above at [47], Dr Callan did not make any promises to Mr Chawk that the rhinoplasty procedure would be successful. The post-operative consultations also revealed that Mr Chawk's breathing had been improved, as had the appearance of his nose. Mr Chawk did not seek to adduce any evidence that he was suffering in the way described in the Review. At the time the Review was posted, it can be accepted that Mr Chawk honestly believed that the rhinoplasty had not achieved the outcome that he had hoped for. The existence of such a belief does not establish that he believed in the truth of the content of the Review given (a) the absence of any promise by Dr Callan that the rhinoplasty procedure would be successful, (b) the advice given to him as to the likely need for revision surgery and (c) the nature of the specific issues to be addressed by the surgery. 161 In my view, a failure to prove belief in the truth of the content of the Review is a significant factor weighing against a finding of reasonableness. 162 Third, contrary to Mr Chawk's submissions, the language of the Review could not fairly be characterised as "highly moderate". I accept, however, that the Review is largely devoid of emotive language and attempts to convey information to readers within an objective factual framework. The Review does contain some hyperbole, such as Mr Chawk's claims that (a) he "invested much hope" in the surgery, (b) the impact of the surgery on his self-esteem and self-confidence is alleged to affect "nearly every aspect of my every day life", and (c) the Review is stated "to stand" until the deviated nasal septum and nasal valve collapse "magically fix themselves". The emotive character of these statements is somewhat diminished by the more moderate but targeted language of helping readers "make an informed decision", the "regret to inform" readers that he had been left with a "disappointing outcome" and the "additional challenge" of finding a surgeon who could help him "achieve a better outcome". 163 Fourth, Mr Chawk failed to inform readers of the Review that he had not even raised a complaint with Dr Callan before posting the Review. The Review included a reference to "the additional challenge of finding a surgeon who feels confident that they can help me to achieve a better outcome" The ordinary reasonable reader would likely assume from this statement that Dr Callan had either informed Mr Chawk that he was not confident that he could rectify Mr Chawk's problems, or he had refused to do so. . 164 Fifth, at no time after 10 September 2020 did Mr Chawk raise his concerns with Dr Callan or give him an opportunity to respond to them before posting the Review in a public forum. This was inherently unreasonable, particularly because once the Review had been published, there was no practicable way in which Dr Callan could respond substantively to the Review, because he was constrained by obligations of patient confidentiality. 165 It is no answer to the lack of any approach to Dr Callan that Mr Chawk was best placed to determine the outcome of the rhinoplasty performed by Dr Callan and the impact on his general well-being and self-confidence. The sting in the Review was not simply that the operation had not corrected the deviated septum and only partly corrected the collapsed nasal valves. Rather, it was the negligent failure, or at best, inability of Dr Callan to deliver the "promised" outcomes. That allegation necessarily called for an explanation from Dr Callan to address matters such as the significance of Mr Chawk's pre-existing difficulties prior to the rhinoplasty and the precise nature and implications of the explanations given by Dr Callan to Mr Chawk as to the likely results of the rhinoplasty. Mr Chawk held Dr Callan responsible for a surgical procedure that had not or only partly corrected existing conditions without giving Dr Callan any opportunity to explain why the apprehended result had not been achieved. This weighs strongly against a finding that the conduct of Mr Chawk in publishing the Review was reasonable.

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H.3. Defeasance of qualified privilege 166 If I am otherwise mistaken in concluding that Mr Chawk did not establish the defence of qualified privilege, I turn now to consider whether Dr Callan could defeat the defence by proving that the publication of the Review was actuated by malice under 30(4) of the Act. 167 The term malice is not defined in the Act. In Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at [75] (Gaudron, McHugh and Gummow JJ), their Honours interpreted malice to refer to an "improper motive or purpose that induces the defendant to use the occasion of qualified privilege to defame the plaintiff". At [76], their Honours expanded on the meaning of improper motive in the following terms: Improper motive in making the defamatory publication must not be confused with the defendant's ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest for making the publication. If one of these matters is proved, it usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication. Indeed, proof that the defendant knew that a defamatory statement made on an occasion of qualified privilege was untrue is ordinarily conclusive evidence that the publication was actuated by an improper motive. But, leaving aside the special case of knowledge of falsity, mere proof of the defendant's ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice… 168 Their Honours further stated at [104], that in order to prove that the publication of the matter complained of was actuated by malice, the plaintiff must prove that the relevant improper motive was the dominant motive for publication. 169 Mr Chawk submits that his conduct in publishing the Review was not actuated by malice. He submits that (a) the Review, on its face, commenced with the statement that it was "mainly to help someone suffering the same symptoms make an informed decision" and Mr Chawk was not challenged about this purpose in cross examination, (b) there was no suggestion that the photographs included in the Review were fabricated, (c) there was nothing underhand in the manner in which the Review was published, (d) there was no exaggerated falsehood, and (e) the language in the Review was deliberately moderated. 170 Dr Callan submits that the Court would be satisfied that Mr Chawk was actuated by malice in publishing the Review because he must have known what he wrote in the Review was untrue. Dr Callan relies on the same submissions that he made with respect to defeasance of the defence of honest opinion. 171 Knowledge of falsity might generally establish that a matter was published for an improper purpose or motive, but it does not invariably do so. 172 Websites providing for ratings of services provided by professionals and goods provided by suppliers are becoming increasingly ubiquitous. Inevitably, those websites will contain a proportion of negative and, at times, highly negative reviews and comments. Some are justified, some are not. The people posting reviews of services and goods supplied to them often have very different expectations and abilities to provide an objective assessment of the services or goods. It can be a very fine line between the posting of a negative review for the purpose of assisting other people in making informed choices and the posting of a negative review to harm the reputation of the person providing the service or the goods. In many cases, both motivations might be present. 173 The context in which the Review was published and the largely moderated language weigh against a finding of malice. The Review was posted on a website that provided for reviews by patients to assist people to make informed choices about the selection of plastic surgeons. The purpose of the posting of the Review was expressly stated in the first sentence to be to "mainly help someone suffering the same symptoms make an informed decision". 174 I accept that the more emotive statements in the Review, in particular, Mr Chawk's statement that the "this review is to stand" until his deviated nasal septum and nasal valve collapse "magically fix themselves", are more difficult to reconcile with a motive of only seeking to assist other people making informed decisions. 175 On balance, however, I am not satisfied that any motive of Mr Chawk to harm Dr Callan by posting the Review was the dominant motive for its publication.

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I.1. Damages for non-economic loss - legal principles 176 Damage to the reputation of the defamed person is presumed and need not be specifically proved by the defamed person: Ratcliffe v Evans [1892] 2 QB 524 at 528-530 (Bowen LJ). In practice, the presumption of at least some damage is effectively irrebuttable: Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946 at [32] (Lord Phillips of Worth Matravers MR); Bristow v Adams [2012] NSWCA 166 at [20]-[31] (Basten JA). 177 The three purposes of an award of general damages are consolation for the personal distress and hurt cause to the defamed person, recompense for damage to personal and, if relevant, business reputation, and vindication of reputation: Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; [1993] HCA 31 at 60-61 (Mason CJ, Deane, Dawson and Gaudron JJ); Rogers at [60] (Hayne J, Gleeson CJ and Gummow J agreeing). The first two purposes are often considered together because they account for the wrong done to the appellant. The third purpose, vindication, looks to the attitudes of others: Carson at 60-61; see also Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [70]-[78]. As to vindication, the sum of the damages award should be "sufficient to convince a bystander of the baselessness of the charge": Cassell & Co Ltd v Broome [1972] AC 1027 at 1071 (Lord Hailsham of St. Marylebone L.C.); Ali at [75]. 178 The reputation of the person defamed, the extent of the publication and the seriousness of the defamatory sting are relevant considerations in assessing damages: see Nationwide News Pty Limited v Rush [2020] FCAFC 115 (Nationwide News v Rush) at [387]-[393] (White, Gleeson and Wheelahan JJ); see also Bauer Media Pty Ltd & Anor v Wilson (No 2) [2018] VSCA 154; 56 VR 674 at [165] (Wilson J). 179 Allowance should also be made for the "grapevine effect" which recognises that the dissemination of defamatory material is rarely confined to those to whom it is immediately published, the tendency of the "poison" in the defamatory publications to "percolate through underground passages and contaminate hidden springs" or to be "driven underground" only later to emerge from their "lurking place": Rush (No 7) at [786] (Wigney J) and the cases cited therein; Webster v Brewer (No 3) [2020] FCA 1343 at [44] (Gleeson J). 180 The Court is required by s 34 of the Act to ensure that there is an appropriate and rational relationship between the harm sustained and the amount of damages of awarded. 181 Pursuant to s 35 of the Act, damages are capped to an indexed amount, which is currently $459,000: Gazette No 250, 9 June 2023. The cap, as it applies to publications before 1 July 2021, does not require the Court to engage in a scaling exercise. Rather, it is merely a "cut off" amount: Cripps v Vakras [2014] VSC 279 at [599]-[609] per Kyrou J; Bauer at [199]-[215]; Rush (No 7) at [671]; Nationwide News v Rush at [442]-[466]. The Review was published prior to 1 July 2021. This is pertinent because the amendments in relation to damages under the Defamation Amendment Act 2020 (NSW) came into force after that date and are, therefore, not relevant: see Sch 4, cl 7.

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I.2. Damages for non-economic loss - evidence 182 Counsel for Mr Chawk properly conceded, at the outset, that Dr Callan's reputation was that of a highly regarded and successful plastic and reconstructive surgeon. 183 The evidence of Dr Callan's character witnesses was unanimously to the same effect. 184 Dr Daniel Kennedy has known Dr Callan since 1990 and has had regular contact with him since that time through conferences and the Australian Society of Plastic Surgeons. Dr Kennedy stated that Dr Callan had an excellent reputation. He said that Dr Callan was highly respected by the council of their professional society, and that he had international colleagues who held Dr Callan in high esteem, including the author of a text called the Encyclopedia of Plastic Surgery. 185 Dr Howard Webster has known Dr Callan since 1989. He has had regular contact with him since that time, both on a personal level and professionally, including through the National Society of Plastic Surgery. He testified to Dr Callan's good reputation in the field. He noted, in particular, his contact over the last 10 to 20 years with surgeons who have trained with Dr Callan and who speak highly of him. 186 Dr George Marcells has known Dr Callan for the past 15 years, mainly through professional conferences. He said that Dr Callan has always had a reputation as an excellent surgeon and was very well regarded. He noted that Dr Callan often presented the results of his patients at professional conferences, and it was these impressive results which caused him to be regarded as having a level of expertise above that of normal surgeons. 187 Dr Richard Harvey has known Dr Callan for about 10 years and stays in contact with him regularly through conferences and events of their professional society. He said that Dr Callan was regarded as a benevolent, thoughtful, meticulous and self-reflective surgeon. He said he was regarded as someone who strived to get excellent results for his patients and to do the best by them. He said that Dr Callan is regarded as a leader in surgical training and is highly regarded by his trainees. 188 Ms Parsons has worked with Dr Callan for the past 5 years. She said that he "has always been well-regarded", "has got a very strong reputation" and was well-known for his professionalism and knowledge. 189 Damage to reputation is presumed, as noted above, and that presumption is effectively irrebuttable. There is also some direct evidence of damage to Dr Callan's reputation in the form of three comments posted on the Review by other RealSelf users. For example, in a comment posted on 17 October 2020 the writer stated "Thank you for letting us know about this incompetent surgeon!! I will spread the word!". 190 The Court heard evidence about the hurt feelings experienced by Dr Callan from a number of the witnesses, and also from Dr Callan himself. 191 Dr Callan gave the following evidence: I can still remember how I felt. It was like my heart started thumping. I get a - like, a rush of hot feeling all over. A deep feeling of - in here in my chest, just, like, a dread feeling type thing. Very uncomfortable feeling. And, like, incomprehensible feeling. 192 He said the following in relation to Mr Chawk's rating of one star out of five: Well, given that's as low as you can get, and given the type of review it was, I was - I didn't understand it. I couldn't understand how that could be or why that would happen. We had certainly done what I thought was a very good operation, and everything, to me, was travelling as expected after surgery. 193 Ms Callan was present when Dr Callan first read the Review. She explained that when Dr Callan gets stressed or overwhelmed, he goes silent. Ms Callan gave evidence that when Dr Callan read the Review, he did not say anything, but she could tell that he was rattled and disturbed. She said that Dr Callan was in a bit of shock, thinking "Where did this come from?" and "What happened?", because there was no lead up to the publication. She stated that Mr Chawk had seemed happy when they last spoke to him. 194 Dr Webster spoke to Dr Callan about the Review over a telephone call. Dr Webster said it was obvious to him that Dr Callan was "pretty bothered by it at the time", even though he described Dr Callan as a person who generally does not display a lot of emotion. He recalled Dr Callan saying words like "it's terrible" and "it's upsetting". 195 Dr Marcells also spoke to Dr Callan about the Review. Dr Callan told Dr Marcells how distressed he was about the Review, and that he could not understand why his patient had written such a poor review. He was worried that it might have a deleterious effect on his practice. He seemed distressed and hurt by it. 196 Ms Parsons said that when he read the Review, Dr Callan was "shook" and "very surprised". She had a recollection of him being "baffled" for the rest of the day. Like Ms Callan, she commented on how "he doesn't talk a lot when he has got a lot on his mind". 197 Dr Callan's own evidence about his personal distress and hurt was relatively understated, as indeed was the evidence of the other witnesses describing his distress and hurt feelings. Dr Callan submits that this is not a reason to conclude that his hurt was not significant. Dr Webster testified that Dr Callan is a person who tends not to display a lot of emotion. In Tribe v Simmons (No 2) [2021] FCA 1164 at [15], Lee J observed that one of the reasons why he found the applicant's evidence compelling was that he was stoic and did not seek to "gild the lily" or overstate his reaction. Dr Callan submits that this Court would have the same impression of his evidence, and that of the other witnesses about his reaction to the publication of the Review.

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I.3. Aggravated damages 198 An award of aggravated damages may be made where the respondents' conduct towards the applicant is found to have been improper, unjustifiable or lacking in bona fides: Triggell v Pheeney (1951) 82 CLR 497; [1951] HCA 23 at 514 (Dixon, Williams, Webb and Kitto JJ); Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 497 (Hunt J); Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 74-5 (Hunt J); Rush (No 7) at [721]-[727]; Hanson-Young v Leyonhjelm (No 4) [2019] FCA 1981 at [245]-[248] (White J). 199 If the Court is satisfied that an award of aggravated damages should be made, the statutory cap is inapplicable: Bauer at [249]; Rush (No 7) at [671]-[672]; Nationwide News v Rush at [442]-[468]. As explained above at [181], the Review was published prior to 1 July 2021 and, therefore, the amendments in relation to damages under the Act and which have the effect of reversing the decision in Bauer, do not apply to this proceeding. 200 Circumstances of aggravation can be found in a respondent's conduct from the date of publication up until the date of judgment: Cassell at 1071; Rush (No 7) at [723]. In particular, a respondent's conduct during the litigation can provide the basis for an award of aggravated damages: Harbour Radio Pty Ltd v Tingle [2001] NSWCA 194 at [8] (Meagher JA), [16]-[34] (Beazley JA), [39]-[41] (Davies AJA); Rush (No 7) at [727]. 201 Dr Callan submits that the factors in this case that justify an award of aggravated damages include Mr Chawk's conduct by (a) ignoring all of Dr Callan's pre-litigation correspondence in relation to the Review, noting the possibility that litigation might have been avoided if Mr Chawk responded to Dr Callan, (b) refusing to apologise for the Review, (c) leaving the Review online until the mediation which took place in November 2021, when it was quietly taken down, and (d) Mr Chawk's conduct persisting to advance hopeless defences, particularly the defences of contextual truth and honest opinion, in the face of a wealth of contemporaneous documentary evidence which wholly contradicts those defences. 202 In my view, the matters relied upon by Dr Callan are not sufficient to give rise to an award of aggravated damages in this case. 203 First, in my view, failures to respond to pre-litigation correspondence, leaving the Review online until the mediation and refusing to apologise, do not, in and of themselves, justify findings that the conduct of the publisher was improper, unjustifiable or lacking in bona fides. 204 Second, vigorously pursuing ultimately unsuccessful defences of truth may well provide a basis for an award of aggravated damages. The same cannot, however, be said for Mr Chawk's pursuit of subjective defences such as honest opinion. Nor, at least in the present case, does pressing a defence of contextual truth based on contextual imputations that, appeared on their face, to be no more defamatory than the pleaded imputations, provide a compelling reason to award aggravated damages.

[43]

I.4. Comparable damages awards 205 It has been said that in determining damages in defamation cases there is no useful purpose in going through individual cases in order to identify where there are similarities and where there are differences: Tribe at [48] (Lee J). Those remarks were endorsed by Jagot J in Colagrande v Kim at [66] in which her Honour observed that "each case is as fact-specific as human ingenuity permits". Nevertheless, in fixing a sum for damages, including aggravated damages in Tribe in an amount of $550,000, Lee J ultimately stated at [50] that he considered the sum was appropriate, having regard to comparable cases. 206 Dr Callan has identified the following cases involving defamation by internet or social media. Ms Chrysanthou SC who appeared for Dr Callan accepted, however, that the cases are not particularly helpful and that the amount of damages for a particular publication will ultimately turn on the circumstances of the publication and the harm suffered by each person. (a) In Colagrande v Kim, a surgeon was awarded $420,000, including aggravated damages, for a two-line review of a doctor on a doctor rating website, including a link to a news article, which alleged that the surgeon had sexually assaulted a patient. (b) In Thunder Studios Inc (California) v Kazal (No 12) [2022] FCA 110, an Australian businessman was awarded $1,350,000, including aggravated damages and interest, in respect of two ongoing internet publications on a website that conveyed imputations that he had breached fiduciary duties, that he so lacked in integrity to pay a journalist to publish invented lies and that he attempted to pervert the course of justice. (c) In Tribe, the brother of a famous basketball player was awarded $550,000, including aggravated damages, for serious allegations of sexual assault and molestation of his half-sister (a minor), and causing her mental and permanent physical injury, in three "tweets" on Twitter, where the actual extent of publication was unknown. (d) In Nettle v Cruse [2021] FCA 935, a plastic surgeon was awarded $450,000, including aggravated damages, in an undefended hearing for internet publications alleging fraud and medical malpractice. (e) In Webster, a politician who was also a doctor, her doctor husband and a charity for women were defamed in seven Facebook written and video posts alleging they were participants in a secretive criminal network involved in the sexual abuse of children. The politician was awarded $350,000, including aggravated damages, her husband was awarded $200,000, including aggravated damages, and the charity was awarded $300,000. (f) In Tavakoli v Imisides (No 4) [2019] NSWSC 717, a plastic surgeon was awarded $530,000, including aggravated damages and interest, for imputations of incompetence and cruelty in a Google review. (g) In Al Muderis v Duncan (No 3) [2017] NSWSC 726, a surgeon was awarded $381,000 in general damages and an additional $99,000 in aggravated damages for imputations of medical malpractice, cruelty and fraud on five internet publications. The actual extent of publication on the evidence was unknown.

[44]

I.5. Damages to be awarded 207 Mr Chawk submits that Dr Callan has greatly exaggerated the effect of the publication on him. He submits that the premise of Dr Callan's case, that the complaint by a single client of a bad outcome is highly hurtful to him, is not credible. Mr Chawk submits, in this regard, that (a) Dr Callan could easily have quashed the review with "informed counter-posts", and (b) Dr Callan presumably has "many hundreds of satisfied patients". Mr Chawk submits that the expense of the trial is a function of Dr Callan "trying in vain to prove malice and defeat the conceded prima facie existence of qualified privilege". 208 In my view, an award of damages in an amount of $50,000 is sufficient consolation for hurt feelings, recompense for damage to reputation and vindication. The sum provides an appropriate and rational relationship between the harm sustained and the amount of damages awarded. I have come to that view for the following reasons. 209 First, the publication of a review on a ratings website for plastic surgeons to assist prospective patients in selecting plastic surgeons to undertake highly personal, expensive and often confronting surgery, self-evidently, has the potential to cause distress and hurt to a plastic surgeon and damage their professional reputation. A negative review to the effect that a plastic surgeon failed to correct a nasal valve collapse and a deviated septum, contrary to what they had represented to the patient, constituted a material attack on the professional competence of the plastic surgeon. I do not accept that Dr Callan could have made "informed counter-posts" given doctor-patient confidentiality issues and the success that Dr Callan had otherwise achieved with patients would only intensify the hurt and distress to him of the publication of the inaccurate Review. 210 Second, the imputations that I have found to have been conveyed were serious but less serious than the Third Imputation. A negligent failure to correct a deviated septum is materially less serious than causing a debilitating nasal valve collapse. I accept that Dr Callan was hurt by the attack on his professional reputation but, ultimately, there was no suggestion that it had affected his ability to practice. Nor was there any evidence of significant enduring emotional distress or harm beyond his initial and understandable distress when he first read the Review. Further, Dr Callan has not advanced any tangible evidence of damage to his reputation. Each of the character witnesses relied upon by Dr Callan spoke highly of his character and none suggested their view of Dr Callan's professional reputation had been diminished by the publication of the Review. In my view, an award of damages necessary to vindicate the reputation of an otherwise highly regarded plastic surgeon in the wake of an ill-informed but relatively restrained review on a website from a single disappointed patient, is comparatively modest. 211 Third, the imputations alleged by Dr Callan and that I have found to have been conveyed by the Review, were limited to allegations of negligence and incompetence with respect to a single rhinoplasty procedure. The imputations were not imputations to the effect that he was an incompetent or negligent plastic surgeon. 212 Fourth, given that only registered users with a log in could access Dr Callan's profile on the RealSelf website and read the Review, the potential for wider dissemination of the defamatory matter was significantly reduced. 213 Fifth, the cases involving defamation by internet or social media identified by Dr Callan provide little assistance given the comparatively more serious imputations found to have been conveyed in those cases and the likely extent of publication. The defamatory imputations that I have found in the present case, are materially less egregious. They do not involve malpractice, fraud, cruelty, sexual abuse of children, participation in a criminal network or perversion of the course of justice. Further, although the actual extent of publication in many of the cases could not be determined the defamatory matter appeared to be accessible to all internet users, it was not restricted to registered users with log in details.

Callan v Chawk

At a glance

Court

Decision date

Before

Source

Judgment (46 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (57)

Cited By (5)