Howe v Zuchowski [2024] VSCA 56

[3] Proposed ground 3 was abandoned during the hearing.

Court of Appeal (Vic)|2024-04-04|Before: Mr JA, Ms P, Beach JA, Lyons JA

For the reasons given above, orders will be made:

(a) in the appeal in the Zuchowski proceeding resulting in the assessment of damages of $205,000 being reduced to $70,000; and

(b) in the appeal in the Howe proceeding, setting aside the judgment in favour of Mr Howe and giving judgment in favour of Cavendish and Ms Zuchowski.

[1] Zuchowski v Howe [2022] VCC 1604, [340] ('Reasons').

[3] Proposed ground 3 was abandoned during the hearing.

[6] For completeness, we should note that, while the judge correctly described the second publication as consisting of a comment at Reasons [86], at Reasons [141]-[145] his Honour described the second publication as comprising both the post on which the comment was made and the comment. That said, no issue was taken by Mr Howe, before us, in relation to the later erroneous description.

[7] For completeness, we should note that the various dates on which publications commenced being made were the subject of admissions in Mr Howe's defence and were not the subject of any dispute at trial.

[9] Ibid [354], [379], [411], [414].

[14] Referred to in the transcript of her evidence as Susanne Gatsby.

[30] [1929] 2 KB 331 ('Cassidy').

[32] [2018] FCA 845 ('Triguboff').

[33] Reasons, [182] (footnote omitted).

[34] Referred to in the transcript of his evidence as Ian Bush.

[35] Referred to in the transcript of his evidence as Matthew Deleeuw.

[42] [2019] NSWSC 766 ('Voller (first instance)').

[46] [2020] NSWCA 102 ('Voller (CA)').

[59] See generally Hulton [1909] UKLawRpAC 57; [1910] AC 20; Canavan [1918] HCA 50; (1918) 25 CLR 234, 238 (Isaacs J); Morgan v Odhams Press Ltd [1971] 1 WLR 1239, 1252 (Lord Morris).

[60] Reasons, [150]-[151], [153]-[154], [160]-[161], [163]-[164], [166]-[167], [169] and [171].

[65] (2021) 273 CLR 346 ('Voller (HC)').

[67] Voller (first instance) [2019] NSWSC 766.

[68] Voller (CA) [2020] NSWCA 102.

[70] Voller (first instance) [2019] NSWSC 766, [106].

[74] Ibid [227]-[231] (citations omitted).

[75] Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ, Edelman and Steward JJ dissenting.

[76] Voller (HC) (2021) 273 CLR 346, 376 [98].

[79] Ibid [102]-[105] (citations omitted).

[80] Emmens v Pottle (1885) 16 QBD 354; Vizetelly v Mudie's Select Library Ltd [1900] UKLawRpKQB 79; [1900] 2 QB 170; Thompson v Australian Capital Television Pty Ltd [1996] HCA 38; (1996) 186 CLR 574; Voller (HC) (2021) 273 CLR 346; Google LLC v Defteros [2022] HCA 27; (2022) 96 ALJR 766, 802 [156] (Gordon J); Defamation Act, s 32(1).

[84] Reasons, [66]-[68], [293]-[302].

[85] Voller (CA) [2020] NSWCA 102, [69].

[89] Ibid [12]-[15] (footnotes in original).

[90] Ibid [21] (footnotes omitted, emphasis added).

[94] See Fox v Percy (2003) 214 CLR 118; Lee v Lee [2019] HCA 28; (2019) 266 CLR 129, 148-9 [55].

[95] Voller (CA) [2020] NSWCA 102, [30] (Basten JA).

[97] See Boensch v Pascoe [2019] HCA 49; (2019) 268 CLR 593, 600-602 [7]-[9] (Kiefel CJ, Gageler and Keane JJ), 629-630 [101] (Bell, Nettle, Gordon and Edelman JJ).

[105] Cited with approval by Lord Hailsham of St Marylebone LC in Cassell & Co Ltd v Broome [1972] UKHL 3; [1972] AC 1027, 1071.

[107] Each is sourced from either the Kingston City Council Planning File or the Kingston Planning Scheme.

[111] This included a post of 23 September 2019, which formed part of the sixth publication.

[112] This post, of 10 February 2019, formed part of the first publication.

[115] This describes the way in which Facebook users can leave a 'like' (ie a thumbs-up) or an emoji (for example, a smiley face) on a particular comment or post.

[119] Reasons, [335]. See also [53] above.

[121] [2016] WASCA 83, [2]. Cited with approval in Stoltenberg v Bolton; Loder v Bolton [2020] NSWCA 45, [56] (Gleeson JA).

[122] Ibid [10], [17]-[19] (emphasis added) (citations omitted).

[124] [2019] UKSC 17; [2020] AC 593, 605-6 [41]-[45] ('Stocker') (emphasis added). Cited with approval in Hoser v Pelley (No 3) [2023] VSCA 257 (McLeish, Walker JJA and Elliot AJA).

[126] Reasons, [238], [308]-[312], and [314].

[129] (2001) 208 CLR 388, 416 [88]-[89] ('Palmer') (emphasis added).

[140] The version of s 30 set out by the judge at Reasons [409] is in fact the version of the section as amended by s 32(1) of the Justice Legislation Amendment (Supporting Victims and Other Matters) Act 2020. That version only applies to publications made on or after 1 July 2021. It does not apply to the words published by Ms Zuchowski and Cavendish at the meeting on 22 May 2019.

[147] Latham CJ, Starke, McTiernan and Williams JJ, Dixon J dissenting.

[151] Guise [1947] HCA 13; (1947) 74 CLR 102, 113-114 (citations omitted).

[152] Adam v Ward [1917] AC 309; Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366 ('Bashford'); Cush v Dillon [2011] HCA 30; (2011) 243 CLR 298 ('Cush'); Papaconstuntinos v Holmes à Court [2012] HCA 53; (2012) 249 CLR 534 ('Papaconstuntinos').

[153] Adam v Ward [1917] AC 309, 339.

[154] Cush [2011] HCA 30; (2011) 243 CLR 298, 308-309, [19]-[22] (French CJ, Crennan and Kiefel JJ). See also Bashford (2004) 218 CLR 366, 372-373 [9]-[10] (Gleeson CJ, Hayne and Heydon JJ), 390 [65] (Mc Hugh J); Papaconstuntinos [2012] HCA 53; (2012) 249 CLR 534, 541, [8] (French CJ, Crennan, Kiefel and Bell JJ).

[159] See the authorities referred to in n 152, n 154 and n 157 above.

[161] See in particular Teubner v Humble [1963] HCA 11; (1963) 108 CLR 491, 503 (Windeyer J); Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156, 161-162 (Gibbs CJ, Mason, Wilson and Dawson JJ); and Bus v Sydney County Council (1989) 167 CLR 78, 89 (Mason CJ, Deane, Dawson and Toohey JJ). See also Knight v Maclean [2002] NSWCA 314, [61] (Heydon JA, with whom Meagher JA and Young CJ in Eq agreed); Nenna (a pseudonym) v The Queen [2021] VSCA 183, [91] (Beach, McLeish and T Forrest JJA).

[162] See generally, Lorbek v King [2023] VSCA 111, [41]-[50] (Beach, Walker and Osborn JJA).

Amendment (Digital Agenda) Act 2000

Interpretation Act 1901

Legislation Amendment (Supporting Victims and Other Matters) Act 2020

The fact that this was a Facebook post is critical. The advent of the 21st century has brought with it a new class of reader: the social media user. The judge tasked with deciding how a Facebook post or a tweet on Twitter would be interpreted by a social media user must keep in mind the way in which such postings and tweets are made and read.

In Monroe v Hopkins [2017] EWHC 433; [2017] 4 WLR 68, Warby J at para 35 said this about tweets posted on Twitter:

The most significant lessons to be drawn from the authorities as applied to a case of this kind seem to be the rather obvious ones, that this is a conversational medium; so it would be wrong to engage in elaborate analysis of a 140 character tweet; that an impressionistic approach is much more fitting and appropriate to the medium; but that this impressionistic approach must take account of the whole tweet and the context in which the ordinary reasonable reader would read that tweet. That context includes (a) matters of ordinary general knowledge; and (b) matters that were put before that reader via Twitter.

I agree with that, particularly the observation that it is wrong to engage in elaborate analysis of a tweet; it is likewise unwise to parse a Facebook posting for its theoretically or logically deducible meaning. The imperative is to ascertain how a typical (ie an ordinary reasonable) reader would interpret the message. That search should reflect the circumstance that this is a casual medium; it is in the nature of conversation rather than carefully chosen expression; and that it is pre-eminently one in which the reader reads and passes on.

That essential message was repeated in Monir v Wood [2018] EWHC 3525 (QB) where at para 90, Nicklin J said, 'Twitter is a fast moving medium. People will tend to scroll through messages relatively quickly.' Facebook is similar. People scroll through it quickly. They do not pause and reflect. They do not ponder on what meaning the statement might possibly bear. Their reaction to the post is impressionistic and fleeting. Some observations made by Nicklin J are telling. Again, at para 90 he said:

It is very important when assessing the meaning of a Tweet not to be over-analytical. ... Largely, the meaning that an ordinary reasonable reader will receive from a Tweet is likely to be more impressionistic than, say, from a newspaper article which, simply in terms of the amount of time that it takes to read, allows for at least some element of reflection and consideration. The essential message that is being conveyed by a Tweet is likely to be absorbed quickly by the reader.

And Nicklin J made an equally important point at para 92 where he said (about arguments made by the defendant as to meaning), '... these points only emerge as a result of close analysis, or someone pointing them out. An ordinary reasonable reader will not have someone by his/her side making points like this'.[124]

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