Berge v Thanarattanabodee[2018] QDC 121

DISTRICT COURT OF QUEENSLAND

Introduction

2. [2]
   This is an appeal against a decision of the Magistrates Court delivered on 8 December 2017 dismissing the plaintiff’s claim for defamation said to have arisen from three posts on Facebook.

Principles on Appeal

3. [3]
   In accordance with s 45 of the Magistrates Court Act 1921, any party who is dissatisfied with a judgment or order of the Magistrates Court may appeal to the District Court. 

4. [4]
   Regarding appeals to the District Court under s 45, Bowskill QC DCJ (as her Honour then was) in Hemelaar & Anor v Walsh & Ors [2017] QDC 151 stated as follows:

“[6]  I gratefully adopt the analysis of Devereaux SC DCJ in Lehmann v Warren  [2017] QDC 69 at [3] – [11], in turn referring to the decision of McGill SC DCJ in JJ Richards & Sons Pty Ltd v Precast Concrete Pty Ltd  [2010] QDC 272, that an appeal under s 45 is an appeal by way of rehearing.

[7]  As such, the appeal involves a “rehearing” in the technical sense of a review of the record of proceedings below, rather than a completely fresh hearing.^[1]  This Court is required to conduct a real review of the trial, and the Magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view.^[2]  Nevertheless, in order to succeed on such an appeal, the appellants must establish some legal, factual or discretionary error.^[3]

[8]  Because of the nature of many of the grounds of appeal … it is appropriate to make further reference to the observations of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [23] and [25], as follows:

“23  ... On the one hand, the appellate court is obliged to ‘give the judgment which in its opinion ought to have been given in the first instance’.  On the other, it must, of necessity, observe the ‘natural limitations’ that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of a case which an appellate court, reading the transcript, cannot always fully share...

25. Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons.  Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect’.  In Warren v Coombes, the majority of this Court reiterated the rule that:

‘[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.’

As this Court there said, that approach was ‘not only sound in law, but beneficial in... operation’.”

[9]  Under s 47 of the Magistrates Courts Act 1921, on the hearing of an appeal, this court may, relevantly, do any of the following:

1. (a)
   draw inferences of fact from facts found by the Magistrates Court, or from admitted facts or facts not disputed;

2. (b)
   order a new trial on such terms as it thinks just;

3. (c)
   order judgment to be entered for any party;

4. (d)
   make any other order, on such terms as it thinks proper, to ensure the determination on the merits of the real questions in controversy between the parties; or

6. (f)
   make such order with respect to the costs of the appeal.”

Notice of Appeal

5. [5]
   The notice of appeal raised 15 grounds of appeal concerning the learned Magistrate’s decision; though grounds 13 and 15 of the notice of appeal were not pursued. The grounds may be summarised as follows:

1. (a)
   The learned Magistrate erred in finding that the plaintiff was dishonest, and in doing so incorrectly considered, or placed undue weight or reliance, and contrary to the defendant’s pleaded case (Ground 1);

2. (b)
   The learned Magistrate erred in reversing the onus of proof in relation to dishonesty and failed to give due weight and consideration to the plaintiff’s legal arguments about dishonesty (Ground 2);

3. (c)
   Having accepted that the defendant’s reason for publishing the Facebook posts were to warn family and friends not to join in fundraising with the plaintiff, and considering the defendant admitted that the references in her Facebook posts were references to the plaintiff, the learned Magistrate erred in finding that the reference to “Kuhn Petch” did not specifically identify the plaintiff (Ground 3);

4. (d)
   The learned Magistrate failed entirely to consider all of the imputations which were accepted on the defendant’s pleaded case (Ground 4);

5. (e)
   The learned Magistrate erred in finding that the third publication was merely abusive, nasty and unnecessary, but not defamatory (Ground 5);

6. (f)
   The learned Magistrate erred in not finding that the publications were published out of malevolence and/or spite (Ground 6);

7. (g)
   The learned Magistrate erred in finding that the English translations of the publications were not accurate as those publications were admitted on the pleadings and incorrectly stated that the third publication was to a certain effect (Grounds 7 and 8);

8. (h)
   The learned Magistrate made findings of fact without supporting evidence, was mistaken as to the law, and failed to afford procedural fairness (Grounds 9 and 10);

1. (i)
   Having found that the plaintiff’s evidence proved genuine pain and distress, the learned Magistrate erred in finding that she suffered no damage (Grounds 11 and 12); and,

10. (j)
    The learned Magistrate unduly interfered in the conduct of the trial (Ground 14).

6. [6]
   Before addressing the grounds of appeal, I propose to set out some background matters.

Background Matters

7. [7]
   The appellant, as plaintiff, commenced proceedings in the Magistrates Court at Holland Park claiming $150,000 for defamation. The effect of her pleadings were as follows:

1. (a)
   The plaintiff has been actively involved within the Australian/Thai community raising money for charitable purposes from about late 2011.

2. (b)
   The company Thai Cultural Events Management of Qld Pty Ltd (‘the company’), to which the plaintiff was a director, organised a concert at the MET on 29 September 2015 to raise funds for Thai temples.

3. (c)
   On 22 April 2016, the defendant posted a comment on her Facebook page which translated from the Thai language as follows:

“Let’s say, ‘No I didn’t organising this concert with Khun Petch, Petch the only one who cheated. I have their account of this concert.  I used to be dumb to help this team getting sponsors, that’s why I know about this, Khun Rong!’”

(‘the first defamation’).

4. (d)
   On 22 April 2016, the defendant posted a further comment on Facebook which translated from the Thai language as follows:

“Khun Petch, Khun Rong are formed Spider Web Network Team by profile as government officials trapping stupid people who want to go to bed with them and joining their team.  These team are deceived on social media by taken concert money.”

(‘the second defamation’).

5. (e)
   The ordinary and natural meaning of the first defamation is that the plaintiff cheats and is dishonest.

6. (f)
   The ordinary and natural meaning of the second defamation is that the plaintiff cheats, is dishonest and is deceitful. 

7. (g)
   On 20 July 2016 the defendant posted a further comment on her Facebook page which translated from the Thai language as follows:

“I notice the solicitor advised his client names Khun Petch that only name is provided in English.  The real name was requested by myself many times same answered was provided.  Are you for real?  If that’s your real name then I know what to do with it!  Hurry up!  If you for real put your real first name and last name.  You brave enough to put my name even though such a long same but you managed cow.

Your bitchiness when time comes karma will catch up with you.  You true colour will be exposes you convulsing left to right round and round and can’t find direction.  Nothing you can do chasing you own tails tried to use people around you without a self reflection of bad things you had done. 

Stench has followed everywhere you goes people feels their has to wash the stain of themself.  You keep telling people about the missed understanding instead you had no brain, shown your stupidity thinking everything it’s okay.”

(‘the third defamation’).

8. (h)
   The ordinary and natural meaning of the third defamation is that the plaintiff uses people, has engaged in bad conduct, is unintelligent, and is an unpleasant person.

9. (i)
   The references in the first defamation, second defamation and third defamation to “Khun Petch” were references to the plaintiff and would be understood as such by anyone reading the post.

10. (j)
    The first defamation, second defamation and third defamation are defamatory of the plaintiff.

11. (k)
    The first defamation, second defamation and third defamation were all published out of malevolence or spite towards the plaintiff.

12. (l)
    The publications of the first defamation, second defamation and third defamation has injured the plaintiff’s character and reputation.

8. [8]
   In her pleadings, the defendant admitted the following matters:

1. (a)
   The defendant published the first defamation, second defamation and third defamation.

2. (b)
   The reference to “Khun Petch” in the first defamation, second defamation and third defamation was in fact a reference to the plaintiff.

3. (c)
   The ordinary meaning of the first defamation is that the plaintiff cheats.

4. (d)
   The ordinary meaning of the second defamation is that the plaintiff is deceitful.

5. (e)
   The ordinary meaning of the third defamation is that the plaintiff uses people, has engaged in bad conduct, is unintelligent and is an unpleasant person.

9. [9]
   The defendant pleaded that:

1. (a)
   Although the first defamation, second defamation and third defamation referred to the plaintiff, the reference to “Khun Petch” would not be understood as such by anyone reading her post because “Petch” is a common Thai name and that only a specific class of persons would understand that Khun Petch was a reference to the plaintiff.

2. (b)
   The first defamation, second defamation and third defamation were not published out of malevolence or spite towards the plaintiff, but was instead posted for the purpose of cautioning others.

3. (c)
   The first defamation, second defamation and third defamation were not defamatory because it was true and/or substantially true in that:

1. (i)
   The plaintiff, in managing Thai Cultural Events Management, engaged in deceitful conduct, particularly with respect to the donations received and how they were applied to the charities.

2. (ii)
   The plaintiff inappropriately used funds that were received for the purpose of being a donation on expenses that were unnecessary.

4. (d)
   The Facebook posts were an expression of opinion of the defendant rather than a statement of fact – that opinion being based on the material the defendant had as to how the plaintiff operated Thai Cultural Events Management.

5. (e)
   The plaintiff has not suffered any harm by reason of the first defamation, second defamation and third defamation.

The Learned Magistrate’s Findings

10. [10]
    The trial ran for two days in the Magistrates Court. The defendant was self-represented but appeared with a friend.

11. [11]
    On 8 December 2017, the learned Magistrate dismissed the plaintiff’s claim.^[4] 

12. [12]
    Her Honour described the case as:

“A sad case as it would appear that both the plaintiff and the defendant are vibrant members of the Thai community in Brisbane.  It has been obvious during the proceedings that they both want to work for the benefit of their community.  They both have friends and supporters.  They both have the opportunity to contribute to fundraising and other community activities.  The case is also sad because the evidence proves that the plaintiff feels genuine pain and distress from the actions of the defendant.  It is clear that the plaintiff considers the defendant a bully and the defendant holds a similar opinion about the plaintiff.”^[5]

13. [13]
    In summary, the learned Magistrate decided that:

1. (a)
   Regarding the first defamation and second defamation:

1. (i)
   the plaintiff’s presentation of the company accounts of the event were, on balance probabilities, dishonest; and,

2. (ii)
   the publications were not published out of malevolence or spite.

2. (b)
   Regarding the third defamation:

1. (i)
   the plaintiff was not identifiable in the publication; and,

2. (ii)
   it contained no negative imputations.

14. [14]
    The appellant submits the basis of the learned Magistrate’s judgment was never agitated on the pleadings, it was never argued at the trial below and the plaintiff was never given an opportunity to meet the argument.

15. [15]
    Having considered the pleadings and the transcript of the evidence led below, this submission has merit.

16. [16]
    For example, regarding the learned Magistrate’s findings concerning the first defamation and second defamation, whilst the defendant pleaded that the publications were not published out of malevolence or spite, I am unable to ascertain (neither within the pleadings nor the evidence led below) why it was necessary for the learned Magistrate to find that the plaintiff’s presentation of the company accounts of the charity event was, on the balance of probabilities, dishonest.^[6]Such a finding was not required to be made but it nevertheless seemed to have played a central part in the learned Magistrate’s decision to find that the first defamation and second defamation were not published out of malevolence or spite.  There is a broad allegation raised by the defendant in her pleadings that the plaintiff, in managing the company, engaged in deceitful conduct, particularly with the respect to the donations received in how they were applied to the charity; but that seems to be the extent of it.^[7] 

17. [17]
    Additionally, the defendant called the company’s accountant as her own witness. However, the defendant was unable to establish any error with the accounting methods used or the accounts prepared, that were ultimately filed with the Australian Securities and Investments Commission. The accountant’s evidence was that the bookkeeping was proper.^[8]In these circumstances, I am unable to ascertain how the learned Magistrate could safely conclude that there was an issue with the company’s lodged accounts yet seemed to have played such an integral part in the learned Magistrate’s decision to find that the first defamation and second defamation were not published out of malevolence or spite. 

18. [18]
    Regarding the learned Magistrate’s findings about the third defamation, the appellant submits principally that absent some intrinsic influence, it must follow that the third defamation identified the plaintiff given the learned Magistrate found the first defamation and second defamation identified the plaintiff. I accept the force of this submission. Indeed the defendant in her pleaded case expressly admitted that the third defamation identified the plaintiff. Therefore it follows the learned Magistrate erred in finding that the third defamation was not referable to the plaintiff.

19. [19]
    All in all, it seems to me that the appellant was denied natural justice because what was ultimately decided by the learned Magistrate was not raised in the defendant’s pleaded case and the evidence agitated at first instance. As Kirby J stated in Allesch v Maunz (2003) 203 CLR 172 at 184:

“It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made.  The principle lies deep in the common law.  It has long been expressed as one of the maxims which the common law observes as "an indispensable requirement of justice"^[9].  It is a rule of natural justice or "procedural fairness"^[10].  It will usually be imputed into statutes creating courts and adjudicative tribunals^[11].  Indeed, it long preceded the common and statute law.  Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden^[12].” 

20. [20]
    A failure to afford a party procedural fairness constitutes an error of law.^[13]I consider this has occurred in the present instance sufficient to disturb the findings and order made by the learned Magistrate.  As such I will allow the appeal.  I intend only to briefly traverse the arguments raised at the appeal.   

Grounds 1 and 2

21. [21]
    I consider grounds 1 and 2 can be conveniently dealt with together as they concern the learned Magistrate’s finding with respect to the plaintiff’s presentation of the company accounts of the concert event. As noted earlier, the learned Magistrate found that the plaintiff’s presentation of the company accounts were, on the balance of probabilities, dishonest.

22. [22]
    The appellant’s main complaint about this issue is that in order for the defendant to rely upon a defence of substantial truth, it was necessary for the defendant to have established that the plaintiff was in fact dishonest. The onus of proof lied with the defendant.

23. [23]
    However it seems as though the learned Magistrate in effect reserved the onus and found:

“The plaintiff failed to satisfy me that the records of the company about ticket sales and raffle sales were honest and reasonable”.^[14]   

24. [24]
    Her Honour continued:

“The evidence led by the plaintiff herself establishes that the defendant is entitled to the defence of substantial truth for the first and second publication.  The plaintiff was required to keep and record accurate information about the receipts obtained by the company.  She has failed to do so.  She cannot prove how many tickets were purchased and what moneys were paid for them.  She has done nothing to gather information about what the actual level of income should have been.

…

The evidence does not establish that the plaintiff stole from the company.  Her actions in failing to ensure that all moneys obtained from the public were gathered in and accounted for the benefit of the temples is a clear breach of her duties.  Her presentation of the company accounts of the event is accurate are on the balance probabilities dishonest”.^[15]

25. [25]
    The respondent relied upon a number of findings by the learned Magistrate concerning the plaintiff’s handling/management and financial success (or otherwise) of the concert in support of her claims that the posts on Facebook were substantially true, justified and/or her honest opinion.^[16]The respondent highlighted references in the plaintiff’s evidence at trial to support the proposition that the plaintiff’s recording of the ticket sales were not accurate.^[17]

26. [26]
    Be that as it may, the statutory defence of substantial truth mirrors the common law defence of justification. As such for the defendant to have succeeded on the defence at trial, she was required to prove that the statements made in the first defamation and second defamation were true in substance and effect. In other words, for the learned Magistrate to have found that in relation to the first defamation and second defamation the defendant was entitled to the defence of substantial truth, her Honour was required to be satisfied that the first defamation and second defamation were “true in the substance or not materially different from the truth”.^[18]I am unable to glean from the reasons whether this occurred. 

27. [27]
    Regarding the first defamation and second defamation, and whether the defence of substantial truth applied, it was necessary for the learned Magistrate to consider the imputations said to have arisen from the publications and be satisfied that the plaintiff was in fact a cheat, dishonest and deceitful.^[19]However, her Honour’s findings only concerned the accuracy of the company records.  

28. [28]
    Yet the case against the plaintiff, which the plaintiff was required to meet, was that she engaged in deceitful conduct in managing the company particularly with respect to the donations received and how they were applied to the charity.^[20]It did not extend to assertions about, as her Honour found, the accuracy of the company accounts.  Yet the learned Magistrate made a finding that the plaintiff failed to demonstrate that the records of the company about ticket sales and raffle sales were honest or reasonable.^[21]Her Honour seemed to have approached it on the basis that the plaintiff beared the onus of proof.  Additionally the learned Magistrate found that the plaintiff breached her “duties”, in the absence of the defendant’s pleaded case and the case run below.  The plaintiff was not given any notice that the learned Magistrate was contemplating such a finding. 

29. [29]
    In my view, these features demonstrate a denial of natural justice and deprived the plaintiff of an adequate opportunity to respond. Accordingly, I uphold grounds 1 and 2 of the appeal.

Ground 3

30. [30]
    The third ground concerns the learned Magistrate’s finding regarding the third defamation as not identifying the plaintiff.^[22]However the learned Magistrate accepted the reference to “Khun Petch” in respect to the first defamation and second defamation as sufficiently identifying the plaintiff. 

31. [31]
    The appellant submitted that if the reference to “Khun Petch” in the first defamation and second defamation identified the plaintiff, then, in the absence of some intrinsic influence, it must follow that so too does the same reference in the third defamation. It is inconceivable that any other result could follow.

32. [32]
    It must be noted that the defendant in her pleadings admitted that the references to “Khun Petch” in each of the publications (including the third defamation) were in fact references to the plaintiff.^[23]

33. [33]
    It is unclear therefore how the learned Magistrate safely determined that the third defamation did not readily identify the plaintiff.

34. [34]
    In any event, as a matter of law, it is not necessary for the person being defamed to be expressly named, they only need to be identifiable.^[24]The test is whether a sensible person, with general knowledge of the relevant circumstances, would identify the plaintiff as the person being defamed.^[25]The standard can also be met where, despite being unnamed, the plaintiff is a member of a small, determinable group.^[26]

35. [35]
    The other difficulty with respect to the learned Magistrate’s finding that the third defamation did not identify the plaintiff is that the learned Magistrate accepted the defendant’s claim that the reason for publishing each of those publications was to warn or caution family and friends about the plaintiff. However, if one accepts that the reason for the publication was to warn or caution others about a particular person, and in this case, the plaintiff, then it must follow that the person is in fact identifiable in those publications.

36. [36]
    Accordingly I consider it was not open to the learned Magistrate to find that the reference to “Khun Petch” in the third defamation did not identify the plaintiff. I uphold ground 3 of the appeal.

Ground 4

37. [37]
    Ground 4 concerns a failure by the learned Magistrate to consider all of the imputations which were accepted on the defendant’s pleaded case.

38. [38]
    The plaintiff asserted that each of the publications carried distinct imputations regarding the plaintiff. To some extent the defendant admitted that the publications carried with it some of the asserted imputations.

39. [39]
    Regarding the first defamation, the plaintiff asserted the publication carried imputations that the plaintiff cheats and is dishonest.^[27]The defendant admitted the first defamation carried the imputation that the plaintiff cheats.  She did not admit the imputation of dishonesty.^[28] 

40. [40]
    Regarding the second defamation, it was pleaded the publication carried with it the imputations that the defendant cheats, is dishonest and is deceitful.^[29]The defendant admitted that the second defamation carried the imputation that the plaintiff was deceitful.^[30] 

41. [41]
    The defendant admitted the third publication carried with it imputations that the plaintiff:

1. (a)
   uses people;

2. (b)
   has engaged in bad conduct;

3. (c)
   is unintelligent; and,

4. (d)
   is an unpleasant person.^[31]

42. [42]
    The learned Magistrate found:

“It is necessary for the plaintiff to prove that the publications have made negative imputations about the plaintiff.  I accept that the first publication made an imputation that the plaintiff cheated in regards to the concert.  I accept that the second publication made an imputation about the plaintiff that she deceived people on social media about the concert money.  I do not accept the third publication made any negative imputation about the plaintiff as they were mere abuse.  I do not accept that the words make a negative imputation about the plaintiff so as to constitute defamation”.^[32]

43. [43]
    The appellant contends that the learned Magistrate was required to address each of the imputations and determine whether they were all true particularly given, as was found by the learned Magistrate, that the defence of substantial truth applied to the imputations. 

44. [44]
    I consider that it was necessary for the learned Magistrate to determine whether or not the publications carried the imputations as asserted by the plaintiff and not otherwise admitted by the defendant because absent a finding from the learned Magistrate that each of the imputations were true, the defence of substantial truth could never have succeeded.

45. [45]
    Accordingly, I uphold this ground of appeal.

Ground 5

46. [46]
    The learned Magistrate found that the third publication “made any negative imputation about the plaintiff as they were mere abuse”.^[33]Such a finding though goes against the admissions made by the defendant in her own defence regarding the imputations upon the plaintiff as being someone who:

1. (a)
   uses people;

2. (b)
   has engaged in bad conduct;

3. (c)
   is unintelligent; and,

4. (d)
   is an unpleasant person.^[34]

47. [47]
    The appellant complains that the first time there was any mention of the third publication is being “mere abuse” was revealed in the learned Magistrate’s reasons meaning that the court effectively raised a matter and made findings in circumstances where it was never pleaded or raised by the defendant.

48. [48]
    Based on the pleadings and the evidence below, I accept this submission and uphold this ground of appeal.

Ground 6

49. [49]
    The appellant contends that the learned Magistrate erred in not finding that the publications were published out of malevolence or spite. Because the appellant has been successful on her earlier grounds of appeal, and given this ground involves, to an extent, findings of credit, I am reluctant to consider this ground based upon the order I intend to make about this appeal.

Grounds 7 and 8

50. [50]
    The appellant contends that the learned Magistrate erred in finding that the English translations of the publication were not accurate.

51. [51]
    Her Honour determined:

“I do not accept that any of the various translations of the three posts were 100% accurate in converting the Thai text into the English language.”^[35]

52. [52]
    The publications were admitted by the parties on the pleadings. Consequently it was unnecessary for the plaintiff to lead evidence about the translation of the publications because those matters were never facts in issue. The learned Magistrate even went through the admissions with the defendant at the trial to which the same position was maintained.^[36] 

53. [53]
    Accordingly, I accept the appellant’s contention that it is in breach of natural justice for the learned Magistrate to reject the translations without notice to the plaintiff.

Grounds 9 and 10

54. [54]
    The appellant contends the learned Magistrate, having made findings of fact without supporting evidence, made a mistake of law and failed to accord procedural fairness.

55. [55]
    The appellant highlights the following paragraph in her Honour’s reasons:

“Members of Facebook can also make comments on public pages, business pages, community pages and forum pages.  In this case comments were posted on the private Facebook page of the defendant.  They then circulated out in a haphazard and unpredictable way.  She did not go out of her way to send the comments to people who were not her friends.”^[37]

56. [56]
    The appellant identifies a mistake of law with respect to the above reasons. It was submitted that defamatory matter need only be communicated to a third party, and that publication of defamatory material occurs when and where the content or the publication is seen and comprehended by another party,^[38]and intention is not necessary.^[39]Even a defence of innocent dissemination will be defeated if the defendant allows the defamatory matter to remain published after it becomes aware of it.^[40]Every act of re-publication will give rise to a separate cause of action in defamation. 

57. [57]
    The appellant also complains about the following reasons:

“Facebook is reported to include a lot of sharing of cat videos, dubious political statements, dubious self-help comments, rants and complaints about government and government policy, and jokes.  It is reported that there are also lots of posts that are in bad taste, hurtful, rude or just plain stupid.  It is also reported that some people publish provocative and critical comments that are designed to shame and embarrass others.”^[41]

58. [58]
    The appellant complains firstly that there was no evidence at all about these facts and consequently the learned Magistrate made findings of fact without supporting evidence. Secondly, the appellant complains that the learned Magistrate has illustrated a failure to afford procedural fairness to the plaintiff because no warning or notice was given that her Honour was going to make such findings. Thirdly, the above paragraph when read with the remainder of the Reasons^[42], makes it clear that the learned Magistrate has made a finding that publishing material on Facebook is less serious than other mediums.  If her Honour was of the view that the publication was not heavily circulated, that would perhaps be something that might accord with a lower award of damages.  However, it is not open to conclude that publishing defamatory matters on Facebook is not defamation because it is commonplace there.

59. [59]
    The appellant also highlights the following said to be an offending paragraph:

“Any post that is offensive can be complained about to the administrators of Facebook.  If a post is found to contain inappropriate content, it can be taken down by the administrators of Facebook.  In this case it is clear that the plaintiff did not take action to have the comments removed by the administrators of Facebook.”^[43]

60. [60]
    The appellant highlights two problems with this. First, the learned Magistrate has made a finding of fact without supporting evidence about whether the plaintiff had complained to the administrators of Facebook. There was no evidence about this at trial and for the learned Magistrate to now include it in the Reasons without notice is another breach of procedural fairness. Second, whether or not a Facebook publication can be removed by its administrators is irrelevant to any finding in relation to defamation.

61. [61]
    It is common ground that subsequent to the publications, the plaintiff’s solicitor sent to the defendant what was commonly known as a “cease and desist letter” pursuant to the Defamation Act 2005.  It is also common ground that the defendant refused to remove the publications after receiving the letter.

62. [62]
    It was for the defendant to remove the publications which were published by her own hand. A refusal to remove them from a public Facebook page are matters which ought to have been considered by the learned Magistrate in favour of the plaintiff in relation to assessing damages.

63. [63]
    I accept the veracity of the appellant’s complainants regarding the decision of the learned Magistrate.

Grounds 11 and 12

64. [64]
    The appellant contends that, having found that the plaintiff’s evidence proved genuine pain and distress, the learned Magistrate erred in finding that she suffered no damage because the learned Magistrate found:

“The plaintiff must also prove damage to reputation.  The evidence of the plaintiff is unconvincing about the damage to her reputation being caused solely by the publication of the comments.“^[44]

65. [65]
    The authorities demonstrate that the award of damages in defamation does not require monetary loss. Damages are payable for the harm suffered to a person’s reputation. In Uren v John Fairfax & Sons (1934) 117 CLR 118, the High Court said:

“… properly speaking, a man defamed does not get compensation for his damaged reputation.  He gets damages because he was injured in his reputation, that is simply because he was publicly defamed.  For this reason, compensation by damages operates in two ways – as a vindication of the plaintiff to the public and as a consolation to him for a wrong done.  Compensation is here a solatium rather than a monetary recompense for harm measurable in money…  That defamation may produce indignity and humiliation and that these can attract monetary compensation is no new doctrine.

…

The theory is that in such a case the damages are still only compensatory because the more insulting or reprehensible the defendant’s conduct, the greater the indignity that the plaintiff suffers and the more he should receive for the outrage to his feelings.  That defamation may produce indignity and humiliation and that these can attract monetary compensation is no new doctrine.“^[45]

66. [66]
    Proof of actual damage to reputation is not required. The law presumes damage in all cases upon proof of defamatory publication.^[46]

67. [67]
    Where the defendant has no defence, the plaintiff must be awarded damages, even if only nominal.^[47] 

68. [68]
    The appellant contends that, in circumstances where her Honour made a finding of fact that “the evidence proves that the defendant feels genuine pain and distress from the actions of the defendant”, on that basis the plaintiff was entitled to at least some form of damages. I agree.

69. [69]
    Furthermore, the appellant contends the learned Magistrate erred further in that the Reasons did not address any of the items set out in the plaintiff’s submissions about the damage suffered by the plaintiff. This gives rise to a failure of the learned Magistrate to give reasons for the decision and also for a failure to give proper weight to the evidence set out therein.

70. [70]
    I uphold these complaints about the learned Magistrate’s decision.

Ground 14

71. [71]
    The appellant contents the learned Magistrate unduly interfered in the conduct of the trial.

72. [72]
    My conclusion about the other grounds of appeal makes it unnecessary to consider the appellant’s criticism.

Disposal of the Appeal

73. [73]
    The appeal must be allowed. The question then becomes how this Court should deal with the matter.

74. [74]
    It seems to me that various errors have affected the learned Magistrate’s conclusions on relevant factual issues. It may be the case that upon a proper analysis of those factual arguments, the outcome would be no different but as that does not plainly appear to me, I consider the case should be returned to the Magistrates Court.

75. [75]
    Counsel for the appellant invited this Court to resolve the substantive issues to enable a finding in favour of the appellant with an award of damages up to $150,000. The difficulty with this is that, to a significant part, the defendant relies upon a number of defences which, in some respects, calls into question matters concerning credit, which I am loath to make, even when attempting to consider the transcript and the evidence led below. It also involves an assessment of the harm suffered to the plaintiff which inevitably relates to matters of credit.

76. [76]
    In considering the challenge to the primary judge's findings of fact, this Court is obliged "to conduct a real review of the trial and … of [the] judge's reasons".^[48]The task of appellate courts is that of "weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect".^[49]In this process, the appellate court must have "respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not".^[50]

77. [77]
    I consider this very much a case where the learned Magistrate’s conclusions were shaped by her impressions of the truthfulness and reliability of the witnesses. The learned Magistrate made certain findings about credit.  For example, her Honour found the defendant to be a witness who responded with candour and, although mistaken about some details, to be a truthful and sincere person.   I have attempted to reconcile the transcript of the evidence led below in order to properly entertain the appellant’s submission that this Court should enter judgment against the respondent.  However I am unable to do so. 

78. [78]
    I consider the learned Magistrate’s failure to consider and make findings about certain aspects of the evidence, deprived her Honour of those important tools for judging the credibility and reliability of the contentious oral evidence. I consider that I would fall into error were I to attempt to draw inferences of fact from facts found by the learned Magistrate or from admitted facts or facts not disputed.

79. [79]
    In the circumstances the only appropriate course is to allow the appeal and order a new trial.

Costs

80. [80]
    I have determined that a number of errors of law have been made by the learned Magistrate.

81. [81]
    Section 15(2) of the Appeal Costs Fund Act 1973 provides that where an appeal against the decision of a court to the District Court on a question of law succeeds, the District Court may, upon application made on that behalf, grant to any respondent to the appeal an indemnity certificate in respect of the appeal. 

82. [82]
    I consider the circumstances of this case such that it would be just and reasonable to compensate the successful appellant for her costs, but it would be inequitable for either party to bear the financial burden of the proper recourse to this Court. The learned Magistrate proceeded in error, in my view, without any fault of the self-represented respondent. As such a certificate should be granted in respect of the costs ordered on this appeal. The effect of an indemnity certificate is set out in section 16 of the Appeal Costs Fund Act 1973.  In the circumstances I consider it an appropriate case to order that the respondent pay the appellant’s costs of this appeal, and that an indemnity certificate issue in her favour.

Orders

83. [83]
    Accordingly, I will order:

1. (a)
   the appeal be allowed;

2. (b)
   the judgment and order of the Magistrates Court made on 8 December 2017 be set aside;

3. (c)
   the proceeding be remitted to the Magistrates Court at Holland Park for rehearing and determination according to law before a different Magistrate;

4. (d)
   unless either party applies for, or the party’s otherwise agree to, a different costs order within 14 days of this judgment;

1. (i)
   the respondent will pay the appellant’s costs of the appeal to be assessed on the standard basis;

2. (ii)
   an indemnity certificate pursuant to sections 15(2) and 16(1)(a) of the Appeal Costs Fund Act 1973 is granted to the respondent in respect of the costs of the appeal.