Smith v Jones

Facts

1. In or about early August 2018, the clients instructed the plaintiff that the defendant had commenced proceedings in the New South Wales Civil and Administrative Tribunal (NCAT) on 31 July 2018 and had sent numerous abusive emails to them since that time.
2. At 6.30pm on 2 August 2018 the plaintiff sent a letter to the defendant by email stating that his emails were unprofessional, unintelligible and, in the circumstances, amounted to unlawful conduct, and seeking that all future correspondence was sent to him
3. The defendant sent an email to the plaintiff at 6.33pm stating: Hey wanker No place for you in NCAT under 30k so you are wasting their money as a six minute unit charger NOH is 20/08/2018 Now fuck off
4. The plaintiff was surprised by the email and telephoned the defendant. The plaintiff deposed that the defendant immediately began swearing and shouting at him and making threats such as "I'm going to break every bone in your body. You haven't dealt with someone like me before" and "I'm coming to get you and your dumb cunt cheating client". The plaintiff terminated the call.
5. At 2.54pm on 3 August 2018 the defendant sent an offensive, abusive and threatening email to the plaintiff and the clients.
6. On 3 August 2018 the plaintiff applied for an apprehended personal violence order (APVO) against the defendant on behalf of the clients. The plaintiff served the application for the APVO by email at 4.08pm on 3 August 2018.
7. At 5.13pm on 3 August 2018 the defendant sent an email to the plaintiff stating: FUCK OFF MARK! No where you live. Home address we have unfinished business. DH.
8. In the period 4 August 2018 to 7 August 2018 the defendant continued to send abusive, offensive and threatening emails to the plaintiff and the clients.
9. On 22 August 2018 the plaintiff met the defendant for the first time at Sutherland Local Court at the time appointed for an appearance relating to the APVO. As the plaintiff and defendant were exiting the court room through the door, the defendant poked the plaintiff in the chin with his forefinger. The plaintiff said to the defendant "don't touch me". The defendant turned and left the court house quickly.
10. At 8.07pm on 22 August 2018 the defendant sent the plaintiff an email attaching a photograph of a naked man containing the words "looking fwd to the NCAT meeting tomorrow when you bring your personality and brains along as Pictured".
11. On 23 August 2018 the plaintiff and defendant appeared at a directions hearing in NCAT. The defendant said words to the Tribunal Member including "you are fucking joking. This is fucking ridiculous". The defendant then turned to the plaintiff and said "we are going to fucking take this outside". After a sheriff's officer intervened, the defendant left. The Tribunal Member dismissed the defendant's application because NCAT did not have jurisdiction to deal with the claim.
12. At 7.51am on 2 September 2018 the defendant sent an email to the plaintiff stating "hey Mark you have some more info on your Google Review. All the best".
13. At 5.38pm on 2 September 2018 the defendant sent an email to the plaintiff's clients stating: Your names are listed on Yelp and Google and home address in Jannali for persons being non payers and persons not to deal with in fact total thieves and deceptive cunts. The initial listing has to do with Mark Smith the money grabber however I fully intend to give you your own web address and search profile with add words so when anyone googles anyone with your names it come flying up on the www. I will then write a totally scathing report on both no holds barred. APVO does not apply to the internet sadly. Enjoy.
14. At the relevant time, the plaintiff engaged a service provider to place advertisements on Google. These advertisements provided the opportunity for people to write a review that could be seen by people searching the internet for the plaintiff's firm or for a solicitor or firm in the local area.
15. A search of the plaintiff's firm name would also bring up reviews on other websites such as Yelp.
16. The posts were read by Mr Bailey, a solicitor employed by the plaintiff. Mr Bailey deposed that during his employment with the firm that he had a usual practice of checking the firm's website a few times per week and that he often left the firm's homepage displayed on one of his two computer screens. Mr Bailey first discovered the posts during the course of a Google search of the firm's name. He described them as "obvious and clearly displayed on the list of websites on Google that referred to [the firm]", that "[t]he posts were very salient and appeared whenever the listing of [the firm name] appeared on the internet" and that "[t]he posts appeared very prominently as a result of any internet search for lawyers in Sutherland and Wollongong".
17. Mr Bailey deposed that he knew the plaintiff well and did not believe any of the posts, but was concerned that readers who did not know the plaintiff might have doubts and reservations about engaging him as a solicitor. Mr Bailey deposed that he believed that the posts had damaged the plaintiff's reputation in the area in which he practised.
18. The plaintiff viewed the posts as soon as he became aware of them. He found their content very upsetting. He considered them to be derogatory and bringing into question his professionalism and integrity. He deposed that the posts were preposterous and not remotely based on fact.
19. In or about early September 2018 the plaintiff was contacted by a number of clients relating to the posts and expressing concern in relation to them.
20. A client, Ms Greco, told the plaintiff that the reviews made him look very bad. She said "I used to have my own hairdressing salon and I know those comments can have a very significant impact". Ms Greco deposed that she found the Google Review "shocking". She could not believe that the plaintiff would act in the way that the reviewer suggested. Ms Greco also read the Yelp Review. She contacted the plaintiff and alerted him about the two negative reviews. She told him that she was very concerned that he was portrayed in a very bad light. During the course of her time as his client, Ms Greco found the plaintiff to be ethical, very professional and an excellent lawyer.
21. Another client, Mr Hughes said to the plaintiff, "you have got someone who has put a really terrible comment on Google and Yelp. The comments are very similar … you need to do something because it's really damaging your reputation. As you know, we have used you for many years and we run a very big business in this area and we have only heard good things prior to this".
22. The plaintiff checked Google for the posts every few days after he first saw them on 2 September 2018. On or about 27 March 2019 he noticed that the posts were removed, but they re-appeared on 28 March 2019. On or about 22 May 2019 the posts were removed and the plaintiff has not seen them since that time.
23. The plaintiff produced weekly records from his advertising service provider as to the traffic on his firm's website, by reference to the number of clicks recorded by Google on the firm's website. In the period 13 August 2018 to 30 September 2018 the weekly reports showed a total of 952 clicks on the firm's website.
24. A quarterly report of the advertising service provider for the period 1 December 2018 to 28 February 2019 showed a total of 8,910 clicks on the firm's website.
25. The plaintiff deposed that in the 30 days between February and March 2019 he was informed by the advertising service provider that 2,491 people clicked on the firm's website and that in the 30 days between April and May 2019 that 2,290 people clicked on the firm's website.
26. In the period 13 August 2018 to May 2019, at times for which there was available evidence, there were a total of 14,643 clicks on the firm's website.
27. The plaintiff deposed that he was well respected in the local area and well known by other law firms. The plaintiff deposed that he found it extremely embarrassing and hurtful that such posts had been made about him and he believed that the posts had damaged his reputation in the area in which he practises. The plaintiff deposed that he was concerned that the posts would remain available on the internet unless the defendant was ordered to remove them and that the defendant may re-post them at some time in the future.

Did the defendant publish the Yelp Review and/or the Google Review?

1. The Yelp Review, was published via the Yelp Review platform on or about 17 August 2018. The document bears a date reference of "17/08/2018" on the second page. The post is attributed to the author "Richard J". The post refers to the plaintiff's clients by name and provides their home address. It also quotes an event number given to the defendant following his complaint to police about the plaintiff's conduct. The fact that a police report number was allocated to this complaint was referred to by the defendant in his email to the plaintiff sent at 8.25am on 6 August 2018. It refers to the NCAT proceedings and the APVO proceedings. The defendant has not denied that he was the author of the post. Further, his statement of intention to continue defaming the plaintiff is consistent with the conclusion that he is the author and publisher of the post.
2. The Google Review defined in the Statement of Claim as the second matter complained of, was published on the Google Review platform appearing in the search results for the plaintiff's firm. The Review states that the author of it is "Richard Jones". The Google Review also refers to the same facts outlined in the Yelp Review. The defendant has not denied that he is the author or publisher of the post.
3. The evidence establishes that both matters complained of were read by Ms Greco, Mr Hughes and Mr Bailey. Accordingly, I am satisfied on the balance of probabilities that the matters complained of were published: Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 at [26] and [44].
4. During the period when the posts were available on the internet, the plaintiff's firm's website was viewed on more than 14,500 occasions. When a Google search brought up the firm's website because a person had searched for the firm or a solicitor or firm in the local area, the firm's advertisement that contained the Google Review was prominently displayed on the right hand side of the screen next to the list of search results. It can be reasonably inferred that at least some of the persons who visited the firm's website as a result of a Google search read the Google Review which appeared prominently and adjacent to the search results, particularly in or about August and September 2018, when the Google Review had been recently posted: Stoltenberg v Bolton [2020] NSWCA 45 at [98]-[102].
5. Similar statistical information was not available to a user in respect of the Yelp Review. I accept as a matter of common knowledge that the Yelp platform is a review site for businesses ordinarily examined by persons intending to choose a service provider in a particular industry: section 144 Evidence Act 1995. I infer that some of the people conducting Google searches that identified the firm's website, in the period that the First and Second Matter Complained Of were available to be accessed on the internet, would have read the Yelp Review.

Did the Matters Complained of Convey the Imputations Contended for by the Plaintiff?

1. In determining whether imputations conveyed are defamatory of a plaintiff, the Court considers whether the publication had a tendency to lead ordinary reasonable people to think less of the plaintiff: Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 at [5]. Ordinary reasonable people for this purpose are of ordinary intelligence, experience and education, not avid for scandal and fair-minded: Radio 2UE at [6]. They are expected to bring to the matter in question their general knowledge and experience of worldly affairs. They have been referred to as "right thinking members of society": Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1 at 7; Sim v Stretch [1936] 2 All ER 1237 at 1240.
2. The test for whether a published matter is capable of being defamatory is what ordinary reasonable people would understand by the matter complained of. In making that assessment, it is necessary to bear in mind that ordinary men and women have different temperaments, outlooks, degrees of education and life experience. Some are unusually suspicious and some are unusually naïve. Some are also unusually well-educated and sophisticated while others are deprived of the benefits of those advantages. The exercise is attempting to envisage a mean or mid-point of temperaments and abilities and on that basis to decide the most damaging meaning that ordinary reasonable people at the mid-point could put on the impugned words or images considering the publication as a whole. The exercise is one in generosity not parsimony. The question is not what the allegedly defamatory words or images and facts say or depict, but what a jury could reasonably think they convey to the ordinary reasonable person; and is often a matter of first impression. The ordinary reasonable person is not a lawyer who examines the impugned publication overzealously but someone who views the publication casually and is prone to a degree of loose thinking. He or she may be taken to read between the lines in the light of his or her general knowledge and experience of worldly affairs, but such a person also draws implications much more freely than a lawyer, especially derogatory implications and takes into account emphasis given by conspicuous headlines or captions. Where words have been used which are imprecise, ambiguous or loose, a very wide latitude will be ascribed to the ordinary person to draw imputations adverse to the subject: Trkulja v Google LLC (2018) 263 CLR 149 at [31]-[32]; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 573-574 [134] per Kirby J
3. The identity of the person making the impugned statement bears on the determination of whether a defamatory meaning is conveyed. For example, a statement made of a politician by a rival politician may be treated differently to a statement made by a member of the media. Right thinking ordinary members of the community are capable of discounting what one politician might say about the other: Hanson-Young v Leyonhjelm (No 4) [2019] FCA 1981 at [55]. In the present case, the ordinary reasonable reader would take into account that the defendant was opposed to the plaintiff and the clients in the dispute.
4. The plaintiff pleaded that the Yelp Review conveyed eight defamatory imputations. I am satisfied that the First Matter Complained Of conveys that the plaintiff is worthy of ridicule, unethical, places financial gain ahead of ethics and that he financially exploits his own clients. I am also satisfied that the First Matter Complained Of conveys that the plaintiff threatened the defendant with assault to achieve success on behalf of his clients and that he acted unprofessionally by commencing frivolous and vexatious proceedings. I am not satisfied that the First Matter Complained Of conveys that the plaintiff is incompetent as a lawyer or that he knowingly misleads his clients as to their prospect of success.
5. The plaintiff pleaded that the Second Matter Complained Of conveyed five defamatory imputations. I am satisfied that the Second Matter Complained Of conveyed that the plaintiff threatened to assault the defendant to achieve his clients' ends, that he financially exploits his clients, is incompetent and unprofessional. I am also satisfied that the Second Matter Complained Of conveys that the plaintiff is a standover man.
6. Each of the pleaded and established imputations is serious and strikes at the character, professionalism, honesty and competency of the plaintiff as a solicitor in practice. Those imputations convey the meaning that as a solicitor, the plaintiff conducted himself unethically and resorted to criminal conduct to achieve the ends of his clients. Those imputations strike at the core of being a fit and proper person to be entitled to practice as a solicitor.

What Damages Should be Awarded to the Plaintiff?

1. Damage to the plaintiff's reputation is presumed upon proof of publication: Bristow v Adams [2012] NSWCA 166 at [20]-[28]. The three purposes of an award of damages are: 1. Consolation for hurt to feelings; 2. Recompense for damage to reputation (including business reputation); 3. Vindication of the plaintiff's reputation.
2. Each matter complained of in an action for defamation constitutes a single cause of action even where each matter contains multiple actionable imputations: s 8 Defamation Act 2005. A court may assess damages for all causes of action in a single award of damages: s 39 Defamation Act 2005.
3. Section 34 of the Defamation Act 2005 provides that there must be an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded. Section 35 of the Defamation Act provides that there is maximum damages amount, which in this case is $407,500.
4. The Court may take into account evidence that the making of the defamatory imputation had an especially adverse impact on a plaintiff's reputation in the eyes of some group or class in the community: Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 507.
5. The award of damages should be "sufficient to convince a bystander of the baselessness of the charge": Broome v Cassell & Co Ltd [1972] AC 1027 at 1071.
6. The Court may award damages for distress and anguish, inherit in which is a vindication of the plaintiff's reputation: Fairfax Media Publications Pty Ltd v Pedavoli (2015) 91 NSWLR 485 at [20].
7. Damage to reputation still occurs even where persons do not believe allegations made against a plaintiff, or were sympathetic towards the plaintiff: Morgan v Odhams Press Ltd [1971] 1 WLR 1239.
8. The "grapevine effect" is a concept aimed at explaining the basis upon which general damages may be awarded in defamation, conveying the notion that it is difficult to track and fully ascertain the extent of the actual damage involved in defamation beyond those to whom the material was immediately published and allowing the Court a means by which to conclude that a given result was "natural and probable": Palmer Bruyn & Parker v Parsons (2001) 208 CLR 388 and Cripps v Vakras [2014] VSC 279 at [565]. The effectiveness of the concept depends on factors including the nature of the defamatory material and the circumstances of publication: Palmer Bruyn at [89]. The concept is particularly apt in cases involving social and online media: Pedavoli at [20].
9. Aggravated damages are awarded where the defendant's conduct towards the plaintiff was improper, unjustifiable or lacking in bona fides: Triggell v Pheeney (1951) 82 CLR 497 and Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 130.
10. The defamation of the plaintiff was serious in that it struck at the heart of his character and the conduct of his profession as a solicitor. I am satisfied that the matters complained of were published to the world at large and probably read by at least a few thousand people.
11. The publications were targeted because in the case of the Google Review it became attached to the plaintiff's firm's website and in the case of the Yelp Review was intended by the defendant to be seen by people looking to engage a solicitor, such as the plaintiff, within the local area where he practiced. It is likely that the publications were read by people searching the internet to engage a solicitor in the Sutherland and/or Wollongong area and that some of those people chose not to engage the plaintiff as a result of the First and Second Matters Complained Of.
12. The plaintiff was upset and embarrassed by the publications.
13. The plaintiff is also entitled to aggravated damages.
14. The Google Review and the Yelp Review were published by the defendant when he knew the contents of them were untrue. They were part of a pattern of conduct by the defendant, seeking to harass the plaintiff because he was acting as a solicitor for the clients. The First and Second Matters Complained Of are properly characterised as continuing abuse of the plaintiff by the defendant published to put pressure on the plaintiff in the course of his representation of the clients.
15. The appropriate award of damages is $80,000.
16. The plaintiff is also entitled to interest at the rate of 3% for the period of 651 days from the date of publication (17 August 2018) to the date of judgment: Hanson-Young at [8]. The award for interest is $4,281 (to the nearest dollar).

Is the Plaintiff Entitled to Injunctive Relief?

1. The Court has the power to award final injunctive relief in defamation proceedings where there is a real risk that the defendant will repeat the imputations found by the Court to be defamatory of the plaintiff and indefensible: Bolton v Stoltenberg [2018] NSWSC 1518 at [264]-[265].
2. The imputations I have found are defamatory of the plaintiff and indefensible. The defendant has apparently taken the posts down. However, the defendant has expressed, in these proceedings and otherwise, an attitude towards the plaintiff that suggests that he will continue to pursue him. As recently as 3 April 2020, the defendant has represented in email correspondence that he does not care about the outcome of the proceedings and that he will continue to defame the plaintiff "again and again".
3. I am persuaded that there is a sufficient risk that unless restrained, the defendant will repeat the defamatory claims he has made against the plaintiff, to warrant the ground to injunctive relief as sought by the plaintiff.

Orders

1. The orders I make are as follows: 1. Verdict and judgment for the plaintiff in the sum of $84,281. 2. I order that the defendant is permanently restrained from publishing any defamatory imputation of and concerning the plaintiff found by the Court to be conveyed in the First Matter Complained Of and the Second Matter Complained Of as those terms are defined in the Amended Statement of Claim. 3. I order that the defendant is to permanently remove the First Matter Complained Of and the Second Matter Complained Of as those terms are defined in the Amended Statement of Claim from all websites on which either of them appears. 4. The defendant is to pay the plaintiff's costs on the ordinary basis as agreed or assessed.

ANNEXURE A Richard J. Kurraba Point New South Wales friends 1 review 17/8/2018 What a Joke Mark Smith is. Just read the review on Google about him and his money hungry unethical approach to his morals and codes of conduct. This man will take your money and still leave you in debt. Wanker, Pond life and fly trap are just descriptions allowable here but his present clients who owe us money for goods and services provided will still have to pay us despite that fact he phoned and threatened us and the police were called and we have the reference number from Burwood Police NSW E68822975. He thought and obviously told his clients he would sort me out and get them out of their debt and now he has created another debt for them lining his fat pockets with their money which should be ours and will be. They are in NCAT so he took a Frivolous and Vexatious APVO out and has tried everything but his poor clients are screwed and he will look like the twat that he is. So Mark you threatened to sort me out at my home but failed to turn up so lets arrange that meeting I am happy to travel to Sutherland to meet you in the local park of your choosing. You made the threat so back it up. This is all just a reuse to save his clients [REDACTED] from a debt owed for goods and services supplied. If you are any sort of business involved with these two disgraceful geriatrics that are cunning and deceitful don't be. The will use this idiot to block your path to debt collection. Even if they get their APVO the debt st8l is live after that period expires. 1 person voted for this review Useful Funny Cool ANNEXURE B Richard Jones 2 reviews a day ago Mark Smith phoned us up after promising his clients he would get them out of a debt covered by Australian Consumer Law for a Building Report He made threats that were reported to Burwood Police who attended our home case number E68822975. He has promised his clients everything but they will only find out he will be charging them to wipe his arse and then have to still pay us so he has a hissy fit and makes threatening phone calls. He is unprofessional and a simplistic solicitor from the suburbs who would put his hand up for anything that comes his way like a fly trap or a toilet but the only problem is he is not a specialist in any particular subject and is a dollar chaser. Mark Smith and his crappy little law firm in the Hobbit Town of Sutherland Shire should work for legal aid because thats all the knowledge they have. Him and his clients are in for a big a shock. Stay away from this man and his business if you require serious representation for anything because you will get an invoice for being on the losing side regardless. 75% of the states lawyers are pond life and this bottom feeder is in that top at pole position. On you Mark, now what another threatening phone call. 4 reviews plus this one what about all the other poor reviewers that couldn't be bothered and 4 after how long in business. Don't be fooled by tire 3.3 stars he isn't worth a minus 1. Mark you threatened to come to my home and scared my wife so i am hoping that we can arrange that meeting but i will come to you please call me to sort out a time and date where i will take you apart. Hey Mark where is that other report you have that you are using to add weight to your claim for an APVO to avoid your clients debt, [REDACTED]. To anyone engaging in works with these two people do not they are cunning thieves and will rip you off and call Mark the standover man which he is not to avoid the debt. Mark Smith goes to work everyday corrals his horse, puts his gun belt on the table and then hangs his stetson known as a ten gallon hat on his two pint head. The horse is called Tonto. Like DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 June 2020