Plaintiff Dispute Defamatory Material Published by Defendant
Srecko and David Lorbek v Peter King [2022] VSC 218 (5 May 2022)
The parties are in dispute over defamatory material relating to the plaintiffs conveyance of his car dealing business. The defendant imputes that each plaintiff was fraudulent in that he knowingly sold a vehicle with a fraudulent RWC. The Court, in resolving this dispute, relied upon the Defamation Act 2005.
Facts:
The defendant published defamatory material regarding the plaintiffs on 4 April 2017, 12 September 2017, 19 October 2017 and 20 October 2017 by causing the material to be communicated to and comprehended by someone other than the plaintiffs with resulting damage to the plaintiffs’ reputation.
The first publication published on 4 April 2017 conveyed the imputations that the first plaintiff:
- is and was a dishonest car dealer; and
- is untrustworthy as a car dealer;
The other four publications conveyed the imputations that the second plaintiff:
- is and was a liar;
- is and was a dishonest car salesman; and
- is an untrustworthy car salesman.
The defendant has established a defence of statutory qualified privilege under section 30 of the Defamation Act 2005.
The plaintiffs, ‘SL’ and ‘DL’ are brothers. SL has built a very substantial business selling luxury second-hand motor vehicles.
The business trades as Lorbek Luxury Cars (‘LLC’).
On 13 July 2016 the defendant, PK, purchased a 2011 Porsche Panamera from LLC for $159,726.
The vehicle had 50,267 kilometres recorded on its odometer.
LLC purchased the vehicle from a wholesaler, Sullivan Automotive Pty Ltd, on 30 June 2016 for $117,000.
Prior to its acquisition by Sullivan Automotive Pty Ltd, the vehicle had been owned by Porsche Centre Brighton (‘PCB’).
Sullivan Automotive Pty Ltd purchased the vehicle from PCB on 30 June 2016 and sold it to LLC on the same day.
Soon after the contract for the purchase of the vehicle was signed on 13 July 2016 the Porsche was sent by LLC to Europei Motori Pty Ltd (‘Europei’) for the purpose of obtaining a roadworthy certificate (‘RWC’).
In Victoria the ownership of a motor vehicle cannot be transferred without the provision of a RWC in respect of the vehicle. On 18 July 2016 Europei issued a RWC in respect of the vehicle.
Following an investigation of Europei instigated by PK, in February 2017 Europei’s licence as a RWC provider was suspended by VicRoads for four weeks. Europei’s licence was suspended because, inter alia, they had issued a RWC for a Porsche when it was unroadworthy by reason of having an undersized front wheel rotor.
When the vehicle was sold to PK on 13 July 2016 by LLC the vehicle was unroadworthy because the rotors on the front brakes were less than the prescribed width. There is a significant factual dispute between the parties as to whether, prior to completing the sale, DL and PK discussed the condition of the vehicle’s tyres, brakes and suspension.
PK, who represented himself for a substantial part of the trial, put to DL during the course of cross-examination that he had specifically asked DL about the condition of the tyres, brakes and the suspension. For his part, DL denies that there was any such discussion.
Issues:
I. Whether or not the defendant’s conduct in publishing defamatory matter was reasonable in the circumstances.
II. Whether or not the plaintiffs’ pleaded defamatory imputations did not further harm the reputation of the plaintiffs because of the substantial truth of contextual imputations.
Applicable law:
Defamation Act 2005 s 4 - defines 'substantially true' as ‘true in substance or not materially different from the truth’.
Defamation Act 2005 s 25 - provides that it is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.
Dow Jones & Co Inc v Gutnik (2002) 210 CLR 575, 606–7 [44] - provides that in order to prove publication, a plaintiff must establish that the defendant has caused defamatory material to be communicated to and comprehended by somebody other than the plaintiff, with resulting damage to the plaintiff’s reputation.
Stoltenberg v Bolton [2020] NSWCA 45; (2020) 380 ALR 145 - provides that there is no equivalent presumption that material posted on the internet will have been downloaded and viewed by someone.
MacDonald v Australian Broadcasting Corporation [2014] NSWSC 206 - provides that absent direct evidence, publication may also be established through a ‘platform of facts’ from which an inference that the material has been downloaded and comprehended by at least one person can be ‘properly’ or ‘reasonably’ drawn.
Wilson v Matthys [2018] WASC 281 - provides that each particular electronic publication situation needs to be carefully evaluated in order to reach a conclusion about electronic or internet publications of this character being read by someone, other than the plaintiffs.
Sydney Cosmetic Specialist Clinic Pty Ltd v Hu [2020] NSWDC 786 - provides that while the Court may make presumptions from a ‘like’ or retweet, the mere fact that a website has readers, or a chat group has members, will not, without more, amount to evidence of downloading.
Cronau v Nelson (No 2) [2018] NSWSC 1905 - where it is plain from the pleading that the plaintiff does not know of any person who downloaded the material complained of within that period.
Cheng v Lok [2020] SASC 14 - stated that Google My Business provides data on the number of people who have read a page.
Dean v Puleio [2021] VCC 848 - where Clayton J made a finding that a defamatory Google review had been viewed at least 1,300 times.
Sands v Channel Seven Adelaide Pty Ltd [2009] SASC 215 - whereas the review was only posted for 24 hours there is not a proper basis for inferring that a third party, other than the plaintiffs would have read the review.
Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 - provides that the plaintiffs bear the onus of proving that the published statements were made ‘of and concerning’ the plaintiffs.
David Syme & Co v Canavan [1918] HCA 50; (1918) 25 CLR 234 - provides that the test for whether a plaintiff is identified by words that do not specifically name a plaintiff is as follows: "Are they such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that the plaintiff was the person referred to?"
Trkulja v Google LLC [2018] HCA 25; (2018) 263 CLR 149 - provides that the test for whether a published matter is capable of being defamatory is what ordinary reasonable people would understand by the matter complained of.
Setka v Abbott [2014] VSCA 287; (2014) 44 VR 352 - relied upon in holding that the issues for determination in the present proceeding are framed by the plaintiffs’ pleading of the alleged imputations and the defendant’s pleading of his justification defence.
Defteros v Google LLC [2021] VSCA 167 (‘Defteros’) - provides that the courts have placed a wider construction on the words ‘an interest’, in s 30 of the Act, than was previously accorded to the concept of ‘interest’ for the purposes of the common law qualified privilege.
Analysis:
PK was seriously considering the purchase of a vehicle costing more than $150,000 which was five years old and which had been driven for in excess of 50,000 kilometres. It is common ground that the vehicle is capable of travelling at speeds exceeding 300 kilometres per hour. PK’s account of the discussion with DL whereby he specifically asked about the condition of the brakes and suspension is entirely plausible. There would have been no point in PK acquiring the original tyres if they were unroadworthy.
The mutual disregard of the plaintiffs and PK for each other was palpable. The plaintiffs are genuinely aggrieved by what they consider to be a malicious campaign waged against them by PK via social media platforms. For his part, PK is genuinely aggrieved because he believes LLC sold him an unroadworthy and dangerous vehicle. DL was very emotional at times when giving his evidence. DL and PK had a tendency to exaggerate matters which they perceived to be of assistance to their case and to play down matters which they perceived to be potentially disadvantageous.
PK has not established that the contextual imputations are substantially true. The first imputation is that there are reasonable grounds for the Motor Vehicle Licencing Authority and/or the police to investigate the conduct and operations of the company operated by the plaintiffs. First, LLC is not ‘operated’ by DL. SL is the owner and sole director of LLC. DL is an employee of the company.
Second, PK has failed to establish that there are reasonable grounds for the police to investigate the conduct and operations of LLC arising out of the sale of the Porsche. His failure to do so arises from his failure to establish that either SL or DL knew that the vehicle was unroadworthy at the time it was sold to him. PK has failed to establish that the second contextual imputation is substantially true. There is no evidence that DL has ever threatened any customer of LLC with defamation and there is no basis for concluding that the plaintiffs ‘treated disgruntled customers terribly, by refusing to resolve their issues and instead threatening them for defamation’.
PK has established that prior to publishing the Google reviews and the Law Answers post he exercised reasonable care by making proper enquiries. He made direct enquiries of Jason Pasco and obtained documentary evidence which established that the vehicle was unroadworthy when he purchased it. He instigated the VicRoads investigation of Europei which resulted in the suspension of Europei’s RWC provider license for four weeks. He obtained the 22 June 2016 pre-purchase inspection report and the 4 July 2016 job card from PCB which established that the vehicle was unroadworthy because the front rotors were undersized.
Conclusion:
The defendant had a genuine and reasonably held belief that the plaintiffs knew that the vehicle he purchased on 13 July 2016 was unroadworthy. The defendant’s conduct in publishing the four publications was reasonable in the circumstances. The plaintiffs have failed to establish that when publishing the defamatory matters the defendant was actuated by malice. As the Court has upheld the defence of statutory qualified privilege, the plaintiffs’ claim is dismissed.
