Freedom of information

Why?

Freedom of Information (‘FOI’) laws exist to promote transparency and political accountability, which in turn, prevents corruption and reduces bad decision making. FOI laws exist across Australia. The purpose of the Freedom of Information Act 1992 (WA) (“FOI Act”)  is to enable the public to participate in governing the State as well as making the government more accountable to the public. 

What sorts of things?

FOI laws provide access to all sorts of documents held by government agencies, no matter what reason they are requested for, or why the agency might think they are being requested for (FOI Act s 10). 

They require government agencies to publish information about their activities and to disclose which internal rules and processes govern their decision making. 

FOI laws also allow individuals to gain access to personal information which is about them, and in some cases, to request amendment of those records. 

There some exceptions to the availability of government documents.

Exempt matters are set out in Schedule 1 of the FOI Act and include things like Cabinet or Executive Council deliberations, personal information about an individual, or trade secrets. 
These include materials placed in collections by private persons, documents which are otherwise available for purchase, and documents created by national security or law enforcement bodies (FOI Act ss 6, 7). 

The FOI laws do not generally require private organisations to release documents or information, unless the organisation is performing a public function. 

How do I go about it?

The first step is to apply to the government agency which has the documents you wish to obtain (FOI Act s 11). However, there are various reasons that your request for documents might be refused. 

An application to access documents must be in writing, identify the documents requested, give an address to send notices/ documents to, give any other information if required by regulations, and be lodged at the agencies’ office with any fee payable (FOI Act s 12).

Therefore, if your application is deficient, it may be refused. 

What if they refuse?

An agency can refuse to deal with your application if it considers the application would divert a substantial and unreasonable proportion of the agency’s resources away from its other operations (FOI Act s 20). The agency can also refuse if the documents is an ‘exempt document’ or it does not belong to the agency. 

Likewise, an agency will not give access to a document that contains personal information about a third party unless the agency has taken steps to ascertain the views of the third party (FOI Act s 32). 

Again, the agency will not give access to documents concerning trade secrets, or information of a commercial value, or information concerning the business, professional, commercial, or financial affairs of a person, without their consent (FOI Act s 33). 

The FOI Act contains mechanisms for internal and external reviews. Internal reviews refer to reviews within the agency itself. In Western Australia, external review is conducted by the Information Commissioner. 

If a complaint is made against a decision of an agency to either give access or not to give access, then a complaint may be made to the Information Commissioner (FOI Act s 65). 
If still not satisfied, then an appeal on a point of law arising out of the Information Commissioner’s decision may be made to the Supreme Court of Western Australia. Alternatively, an appeal for judicial review for a denial of natural justice may lie.  

However, it can be difficult to successful appeal a decision. In Apache Northwest Pty Ltd v Dept of Mines & Petroleum (No 2) [2011] WASC 283 the company appealed from a decision of the Information Commissioner to allow access to documents relating to oil and gas activities on Varanus Island.  The appeal was based on grounds ranging from misconstruing the FOI Act, to making findings not supported by the evidence, to failing to observe natural justice. Ultimately, of the 51 pages of submissions, and 8 different grounds of appeal, none were successful.

Advanced Health Directives

What are they?

An Advance Health Directive is a device created by the Guardianship and Administration Act 1990 (WA).  

In other jurisdictions they can be known as ‘Advance Care Directives’.

An Advance Health Directive is a written document which explains how you wish to be treated in the future should you be incapable of making informed decisions. They are the first port-of-call when a patient lacks capacity to consent to medical treatment. You can set out what treatments you consent to, or refuse to consent to, and how you would like to be treated. 

How do you make an Advance Health Directive?

An Advance Health Directive must be in the form prescribed by the Guardianship and Administration Regulations 2005. You must be of full legal capacity to make an Advance Health Directive and the legislation specifically encourages persons to seek legal advice (Guardianship and Administration Act 1990 (WA) ss 110P and 110Q(1)). 

It is important to have legal advice when making an Advance Health Directive as any treatment decision in the document is invalid, if (Guardianship and Administration Act 1990 (WA) s 110R):
-    the decision was not made voluntarily; 
-    the person was coerced into making the decision; or
-    the person didn’t understand the nature of the decision or the consequences when they made the Advance Health Directive. 

A legal practitioner can help by ensuring you are fully informed, and understand the nature and consequences of the decision, as well as making sure you make the decision voluntarily and are not coerced. 

Challenging an Advance Health Directive

Advance Health Directives are at the top of the hierarchy when it comes to deciding treatment. For example, if a person who is incapable of making treatment decisions has a valid Advance Health Directive, and has a guardian appointed, the Advance Health Directive will prevail. Therefore, it is frequently the case that Advance Health Directives come under challenge. 

In Hunter v New England Area Health Service [2009] NSWSC 761  the plaintiff sought declarations that it was justified in complying with the unconscious defendant’s wishes to refuse life-sustaining treatment, relying on a valid advanced care directive. 
It was held that:
-    If there is a genuine and reasonable doubt as to the validity of an advance care directive, a hospital or medical practitioner should apply promptly to the court for determination of the validity and operation of the advance care directive. 
-    The emergency principle justifies the hospital or medical practitioner to continue treatment until the decision of the court. 
-    An apparently valid consent by a capable adult may be ineffective if it does not represent the independent exercise of the person's volition; if the person's will has been overborne; or the decision is the result of undue influence or some other vitiating circumstance. 

What if there is already a public guardian?

In FI v Public Guardian [2008] NSWADT 263  the tribunal had to consider where the public guardian could approve an Advance Care Plan which permitted life-sustaining treatment to be withdrawn. It was held that the public guardian cannot make an Advance Care Plan for a represented person. However, a guardian can make decisions that involve withdrawing life-sustaining treatment so long as the decisions are made in the best interests of the represented person. 
 

Defamation in the workplace

If you have been defamed at work you may be entitled to compensation for defamation.

Generally, statements made at work are no different to any other statement.

If somebody defames you at work, whether by saying something to other colleagues or co-workers, or to clients or to your boss, either in person or in a defamatory email or otherwise, you may have a case in defamation and be able to seek damages. 

Defamation at work is generally only protected where a valid defence under the Defamation Act 2005 (WA) is available.  

The most common defence in workplace defamation situations is the defence of qualified privilege. 

Qualified Privilege

A defamatory statement, however, if made to a superior, or to a HR person as part of a formal complaints or investigation process, then it may be protected. 

This is because qualified privilege attaches to statements where the recipient has an interest in having the information, and the statement is made while providing that information, if the person acted reasonably in the circumstances (Defamation Act 2005 (WA) s 30(1)).

So a statement made concerning a persons’ performance for instance, if made to a superior and appropriately in order for the superior to be able to assess that person’s performance or investigate further is likely to be protected. 

In Boland v Dillon (2011) 243 CLR 298  the High Court of Australia decided that in some cases there are duties to advise the company of accusations against a company employee or to discuss activities by an employee or client which might be detrimental to the company or affect the efficiency of the company’s business. In these circumstances, the defence of qualified privilege might be available. 

However, if the person acted maliciously and intended to injure your reputation then they will not be protected by the defence (Defamation Act 2005 (WA) s 30(4)). 

Examples

There have been many cases where a person has been defamed in the workplace by a co-worker and has recovered damages. 

In Bristow v Adams [2012] NSWCA 166  the Court found that a letter sent to the HR manager of the company contained defamatory meanings about a supervisor, and awarded $10,000 damages. 

In Tassone v Kirkham [2014] SADC 134  an email was sent by one prison officer using another prison officer’s email which read “Hello people, just a note to say that I am a homosexual and I am looking for like-minded people to share time with”. The plaintiff went on sick leave, suffered stress and anxiety and was unable to continue in his position. He was awarded $75,000 for non-economic loss.

Publication & Republication

Who was the defamation published to?

To give rise to a cause of action in defamation the defamatory imputation must have been published to a third party.

The Defamation Act 2005 (WA) does not define ‘publication’.

Under the common law, publication takes place when defamatory material is communicated to some person other than the plaintiff (Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327).  

The third party may consist of a single person (Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364 at 367).  

For instance in Ritson v Burns [2014] NSWSC 272 the proceedings were brought in respect of a single comment made by the defendant to a third person.  The statement in question was made over the phone to a process server and were along the lines of “X is a criminal, I’m not going to give you my address”. This was enough to warrant an award of $7,500 damages. The plaintiff was also awarded costs, and interest on the damages.

It has even been held that communication by a third party of defamatory material about one spouse, to the other, can constitute sufficient publication (Theaker v Richardson [1962] 1 All ER 229).  

How was the defamation published?

If the defamatory imputation was published online, it will be deemed to have been published if the plaintiff can prove information has been conveyed (Dow Jones & Co Inc v Gutnick [2002] HCA 56).  

In Dow Jones & Co Inc v Gutnik the plaintiff showed that the information was conveyed once downloaded from the website it was uploaded to. In Gregg v O’Gara [2008] All ER (D) 111 the fact that one witness testified that he had accessed the material by typing the words ‘Yorkshire Ripper’ into a search engine was sufficient to show the material had been published.  If the person is not named, they may need to provide a witness who believed the published material was about them.

Even if the publication was unintentional, if it occurred because of the publishers’ negligence then this may still constitute publication (Coulthard v South Australia (1995) 63 SASR 531 at 539).  

Anything from spoken words, to printed or audio files, to internet pages, televised material, drawings or photos may constitute communication for the purposes of publication (Defamation Act 2005 s 4). However, the circumstances of the publication, including the mode, and the scope of the publication are relevant when assessing the award of damages.

Therefore, it is essential to obtain legal advice if you are concerned about a publication that has been made about you, or about a publication you are responsible for. 

Has ‘Republication’ occurred? 

In addition, the republication of somebody else’s defamatory statement constitutes a new and actionable defamatory publication, and the person who republishes is as liable as the original publisher (Lewis v Daily Telegraph Ltd [1964] AC 234 at 283, 284).  

It is no defence that the re-publisher is merely repeating a statement.

In certain circumstances the person who made the original publication can also be held to task for any republication of it. This is known as the ‘Rule in Speight v Gosnay’ whereby the original publisher is liable if the republication adheres to the sense and substance of the original publication and the repetition is the natural and probable consequence of the original publication (Speight v Gosnay (1891) 60 LJQB 231; Sims v Wran [1984] 1 NSWLR 317 at 320 per Hunt J).

How do Courts decide your defamation damages?

Uniform defamation legislation exists across the states. In Western Australia, the relevant act is the Defamation Act 2005 (WA).

Where a person’s reputation is injured by the publication of defamatory material the matter is actionable without proof of damage (Defamation Act s 7).  

However, the cause of action is generally not available to corporations (Defamation Act s 9).

Under the uniform defamation laws the offence is actionable once a communication of a defamatory imputation about a person is made to a person other than the plaintiff. This is usually described as publication. A publication is defamatory if it tends, in the minds of ordinary, reasonable people, to injure the victims’ reputation by disparaging him/her, causing others to avoid or shun him, or subjecting him to hatred, ridicule or contempt (John Fairfax & Sons Ltd v Punch (1980) 31 ALR 624 per Brennan J; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 71). 

Therefore, while the plaintiff does not have to prove any special damage to their reputation, they do carry the onus of having to prove that a defamatory imputation was published and provide particulars of the publication (Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 at 192-4 per Hunt J).

What are the potential damages?

Once the plaintiff shows that they have been defamed, then unless a defence is shown, they must be awarded damages, even if only nominal (Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 258 per Mahoney JA).

The legislation provides that the state of mind of the defendant is not relevant to damages except insofar as it affects the harm sustained by the plaintiff (Defamation Act s 36).

Damages for non-economic loss, except in circumstances of aggravation, are capped at $381,000 (Defamation Act s 35; Defamation (Damages for Non-economic Loss) Order 2016).

There must be an appropriate and rational relationship between the harm sustained and the damages awarded (Defamation Act s 34). Exemplary or punitive damages cannot be awarded for defamation (Defamation Act s 37). However, compensatory damages may be affected by circumstances of aggravation.

Factors which may mitigate damages are (Defamation Act s 38):

1. The defendant has apologised

2. The defendant has published a correction;

3. The plaintiff has already recovered damages re another publication having the same meaning or effect;

4. The plaintiff has already brought proceedings re another publication having the same meaning or effect;

5. Plaintiff has agreed to receive compensation re another publication having the same meaning or effect.

Damages are not assessed by reference to depreciation in the value of a plaintiff’s reputation, but by what is required to compensate for injury to reputation, as a remedy for injured feelings and to vindicate the plaintiff for having been publicly defamed (Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60, 61, 70). Under the uniform defamation laws. The assessment of damages is determined by the judge not jury (Defamation Act s 22).

Compensatory damages are classified as damages for:

1. Injury to reputation, note that evidence of previous bad reputation may mitigate damages however will not prevent a plaintiff from recovering completely (see Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 Cf. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 806, 807);

2. Social damage for being shunned and avoided;

3. Injury to feelings, including grief and distress, anxiety, loss of self-esteem and outrage;

4. Injury to health; and

5. Special damage.

Some recent cases

In Dods v McDonald (No 2) [2016] VSC 201 the plaintiff was a police officer involved in the shooting death of a 15 year old boy. In a coronial inquest the coroner exonerated the plaintiff of personal responsibility and found that he had not contributed to the death, and had responded within the limitations of his training. The defamatory publications were made by the defendant via a website and were published from April 2012 until July 2012 when they were removed by request. They contained imputations that the plaintiff was a ‘monster’ who had ‘executed’ the teenager and committed the crime of manslaughter. Even though the scope of the publication was not large, there was no apology, and the grave nature of the defamations was reflected in the damages awarded (at [69] – [74]). The judge awarded damages of $150,000.

In Jeffrey v Giles [2015] VSCA 70 the appellants operated a quarry adjacent to the respondents’ land. The respondent created a website which contained defamatory imputations that the appellants had provided inaccurate information and given false testimony at hearing in relation to approval of the quarry. The judge at first instance found that the appellants were entitled to damages personally, distinct from the corporate entity which ran the quarry, due to the nature of the imputations. The judge awarded $12,00 and $8,000 to each of the appellants. On appeal, the Court of Appeal found that the damages were so low as to be inappropriate, and ordered damages of $75,000 and $65,000 to each appellant.

In Gacic v John Fairfax Publications Pty Ltd [2015] NSWCA 99 and online and in-print review of the appellant’s restaurant was found to be defamatory by implying it sold unpalatable food, provided bad service, and that the owner was incompetent. The three appellants were originally each awarded $160,000 plus interest. There was an appeal that the damages awarded were manifestly inadequate and a cross-appeal that the damages should be reduced for mitigation. Ultimately the Court of Appeal held that damages should be increased to $180,000 plus interest, however by virtue of the cross appeal, they should be then reduced to $175,000 plus interest to take into account the mitigation factors.

As the range of damages awarded vary widely on a case by case basis depending on the factual circumstances it is wise to obtain legal advice at the outset.

Facing a town planning prosecution?

What legislation creates the offence?

Town planning prosecutions are governed by the Planning and Development Act 2005 (WA). Part 13 of the Act deals with enforcement and legal proceedings.

The formal enforcement proceedings provided for under the Act include the:

• relevant authority giving formal directions (Planning and Development Act s 214) and commencing prosecution;

• proceedings for an offence pursuant to section 218 of the Act; and

• the giving of infringement notices under section 228 of the Act.

Under the Act, if a development, or any part of the development, is undertaken in contravention of a planning scheme, an interim development order, or in contravention of planning control area requirements, the responsible authority may give a written direction to the owner undertaking the development to stop, remove, pull down, take up, or alter the development, or to restore the land as nearly as practicable to its prior condition (Planning and Development Act s 214).

If a person does not comply with such a direction, then the responsible authority may itself remove or pull down the development, restore the land, or execute the work as required (Planning and Development Act s 215).

Furthermore, if a person contravenes either a provision of the Act, or a development order or planning scheme, or the responsible authority grants an application for approval of development subject to conditions, and the development is commenced contrary to those conditions, then the responsible authority may apply to the Supreme Court for an injunction (Planning and Development Act s 216).

Section 218 of the Act provides that a person who contravenes the provisions of a planning scheme or commences or carries out development in contravention of a scheme, or a condition imposed under the act commits an offence. A local government has discretion to decide whether to commence legal proceedings for in prosecution of an offence.

Other offence provisions are:

1. A person who commences or carries out works for enabling subdivision of land other than as approved under the act commits an offence (S 219);

2. A person who commences or carries out development in a planning control area without prior approval or in a manner which does not conform with the approval commits an offence (s 220);

3. A person who contravenes an interim development order commits an offence (s 221); and

4. A person who commences or carries out development or allows development to be commenced or carried out in a heritage place without prior approval or in a manner not in conformity with the approval commits an offence (s 222).

What are the potential penalties?

Unless otherwise provided, a person who commits an offence under the Act is liable to a fine of $200,000 and, a further fine of $25,000 for each day during which the offence continues (s 223).

However, under the Sentencing Act 1995 (WA) s 40(5) a body corporate may be liable to a fine of 5 times the maximum that could be imposed on a natural person. Therefore, a company may be liable to a fine of $1,000,000.

As an alternative to commencing prosecution for an offence, an offender may be given an infringement notice under section 228 of the Act, and ordered to pay a modified penalty. These are generally given when the breach is minor and can be remedied. Alternatively, they may be given where the local government authority deems that either for lack of evidence, or public interest reasons, or because of the potential expense that could be incurred, or some other reason, the offence is not worth prosecuting.

An infringement notice must be given within 6 months of the alleged offence being committed (s 228(2)). If the modified penalty is paid within 28 days, then the payment may prevent further legal proceedings being brought in certain circumstances (s 232). However, such a payment is not considered an admission for any civil or criminal proceedings (s 232(3)). 

Some recent cases

In Uxcel Pty Ltd v City of Bayswater [2013] WASC 5 the appellant real estate agency displayed a sign on a vacant block, advertising that the property had been successfully sold, without formal approval from the respondent, and in contravention of a planning scheme. The appellant erected the sign without approval, and was then informed by the respondent that planning approval was required and requested to remove the sign, however did not do so.

In the Magistrates Court the appellant pleaded guilty and was ordered to pay a fine of $50,000 in addition to $1476.45 costs. They appealed on two grounds, firstly, that the Magistrates’ reasons were inadequate, and second, that the sentence imposed was manifestly excessive (Uxcel Pty Ltd v City of Bayswater [2013] WASC 5, at [8]).

In relation to the first ground, the Judge found that the Magistrates’ reasons did not address the key issue which was the seriousness of the offence, and although the fine was only 5% of the maximum penalty, it was a substantial sum, and the reasons were inadequate (Uxcel Pty Ltd v City of Bayswater [2013] WASC 5, at [27] – [29]).

In relation to the second ground, the Judge referred to the principles set out by Hall J in Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASC 431. The Judge found that the scale of the work undertaken is relevant to the sentence imposed, and distinguished between contraventions involving ‘easily reversible illegal use of the land’ and ‘construction and alteration of buildings’ (Uxcel Pty Ltd v City of Bayswater [2013] WASC 5, at [33] – [34]). Therefore, the sentence was excessive.

In City of Swan v Bayblue Holdings Pty Ltd [2015] WASCA 227 the respondent & a third party had applied for retrospective approval of alterations and development carried out by a previous owner of the land. They also asked for approval of alterations built by the third party after the respondent became the owner. The approvals were not given, and the appellant City of Swan served a direction ordering the appellant to remove the alterations. The respondent did not comply with the direction. However, they continued to seek retrospective approval of the structures. Such approvals were eventually granted however the City of Swan brought proceedings for failure to comply with the directions.

The respondent and third party were initially unrepresented, and the Magistrate fined them each $388,000 plus costs of $1,207. On appeal the Judge allowed the appeal and substituted a penalty of $32,700. The City of Swan appealed this order.

The Court of Appeal found that the charge against the respondent was bad for duplicity as it alleged two offences, one in respect of the previous alterations, and one in respect of the newer developments, whereas a charge under the Planning and Development Act must only allege one offence pursuant to schedule 1 clause 2(4) of the Criminal Procedure Act 2004 (WA) (City of Swan v Bayblue Holdings Pty Ltd [2015] WASCA 227, at [85]).

In relation to sentencing, the Court of Appeal compared other cases concerning an appeal against penalties under the Planning and Development Act (City of Swan v Bayblue Holdings Pty Ltd [2015] WASCA 227 at [99] – [105]).

In G T Homes Pty Ltd v Shire of York [2010] WASC 312 a fine of $25,00 was upheld for failing to remove waste from rural land. 

In Corica v Throssell [2012] WASC 393 the appellant was fined $25,000 plus $500 per day for dumping landfill on residential land without approval.[5]

In Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASCA 39 the appellant was fined $75,000 plus $250 per day for continuing work on a development after directed to stop when building approvals expired.

The Court of Appeal found that a fine of $17,500 was appropriate with a daily penalty of $100, making the total penalty $27,200.

These cases demonstrate the importance of obtaining legal advice, as the ultimate penalty in each was a fraction of the penalty imposed at first instance.

Are you a victim of 'revenge porn'?

In Wilson v Ferguson [2015] WASC 15 the Supreme Court of Western Australia dealt with a "revenge porn" case.

What happened?

The plaintiff and defendant were each employed at a Fortescue Metals Group mine site as fly-in-fly-out workers. They met in 2011, moved in together in 2012, and were together until August 2013 when the relationship broke down.

During their relationship, the plaintiff and defendant exchanged sexually explicit photos of each other. The defendant also obtained, from the plaintiff’s phone, 2 sexually explicit videos of her, which he undertook not to show to anybody else.

The relationship deteriorated as the plaintiff suspected the defendant was cheating on her.

In August 2013, she texted him saying she wanted nothing to do with him.

In response, at 5.20 PM on 5 August 2013 the defendant posted via his Facebook page, 16 explicit photos and 2 videos of the Plaintiff either naked or semi-naked and engaged in sexual activities. They were accompanied by the caption ‘Happy to help all ya boys at home… Enjoy!’

The photos and videos were available to his 300 ‘Facebook friends’, many of whom worked on the same mine site. The photos and videos were taken down by the defendant at 7.00 PM that night, in response to requests from the plaintiff via text messages.

Because of the images being published, the plaintiff could not sleep, undertook counselling, and was unable to work and took leave without pay until 30 October 2013, losing wages of $13,404.

The defendant’s employment at the mine site was terminated on 14 August 2013.

Summary of the law the Judge relied on

The Defendant did not take an active part in the proceedings other than filing a defence, and was not present at the trial.

The Judge inferred that the defendant wanted to cause the plaintiff extreme embarrassment and distress, and was aware the images were private and he did not have the plaintiffs’ consent to show them to any other person (at [33]).

The Judge adopted the principle described by the Court in Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39, 50, in relation to proceedings for a breach of confidence. That is that a court will restrain the publication of confidential information improperly or surreptitiously obtained or of information imparted in confidence which ought not to be divulged (at [43]).

The essential elements of an equitable action for breach of confidence are that the information was of a confidential nature, that it was obtained in circumstances importing an obligation of confidence, and that there was unauthorised use of the information (at [46] citing West Australian Newspapers Ltd v Bond [2009] WASCA 127).

The Judge referred to Gleeson CJ’s comments in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63, [34] – [35], that a private image may constitute confidential information, and that “the requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private” (at [53]).

For the reasons below, the Judge found that the defendant had breached his equitable obligation owed to the plaintiff to maintain the confidentiality of the images (at [55]).

Firstly, the intimate images of the plaintiff had the necessary quality of confidence about them, which was clear from their explicit nature, and the discussions between the plaintiff and defendant in which the plaintiff emphasised their deeply personal nature ([56]).

Second, the circumstances in which the defendant obtained the images imposed an obligation of conscience to maintain the confidentiality of the images ([57]). The nature of the photographs and the circumstances in which they were obtained made it obvious to a reasonable person standing in the defendant’s shoes that the images were for his eyes only and not to be disclosed to anyone else. Such disclosure would cause extreme embarrassment and distress to the plaintiff, which in fact was the whole reason for his publishing the images ([58]).

Third, the defendant clearly misused the images by making them available for viewing and downloading to hundreds of Facebook friends, many of whom worked with both the defendant and the plaintiff. This was extremely distressing to the plaintiff as shown by her needing to take time of work and undertake counselling ([59]).

Why did the Judge award $48,404?

The Judge granted a permanent injunction to prevent the defendant from publishing photos or videos of the plaintiff engaging in sexual activities or in which the plaintiff is naked or partially naked. In addition, the Judge awarded equitable compensation for the breach of confidence.

The Judge referred to the case of Smith Kline & French Laboratories (Aust) Ltd v Department of Community Services and Health (1990) 22 FCR 73 as authority for the Court’s inherent jurisdiction to grant relief through monetary compensation for the breach of an equitable obligation, whether of trust or confidence (at [69]).

However, the question was whether equitable compensation could be awarded to compensate the plaintiff for non-economic loss (embarrassment and distress). Until recently, equitable compensation was only awarded to compensate for economic loss ([72]).

The Judge relied on Giller v Procopets [2008] VSCA 236 in which the Victorian Court of Appeal held that monetary compensation for emotional distress caused by the release of confidential personal information is available in the exercise of the Court’s inherent equitable jurisdiction ([73] – [78]).

The Judge found that technological advances have increased the ease and speed with which communications and images can be disseminated, therefore in many cases there will be no opportunity for injunctive relief ([80]).

Therefore, the approach taken in Giller, is an appropriate incremental adaptation of the established equitable principle, to accommodate the nature of electronic communications in contemporary Australia ([82]).

The Judge held that compensation should take account of the fact that the publication was intended to cause harm to the plaintiff, however the plaintiff had not sustained a psychiatric injury, therefore the amount should not be disproportionate to amounts commonly awarded for pain and suffering in tortious personal injury cases ([85]).

He awarded $35,000 in addition to economic loss of $13,404.

What about legal costs?

The plaintiff sought indemnity costs. However, the Judge applied the principles set out by the Court of Appeal in Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S), [10], that the discretion to award indemnity costs may be exercised where the unsuccessful party has engaged in unreasonable or improper conduct, such as persisting in a case which is hopeless (at [88]).

The Judge considered that the defendants’ failure to admit the plaintiff’s claim was not so unreasonable as to justify awarding indemnity costs, the plaintiff was simply put to proof of her case ([89]).

Therefore, the Judge ordered the defendant pay the plaintiff’s costs of the action.

Facebook defamation

Have you been defamed on Facebook?

Being defamed on Facebook is horrible.

You should consider issuing a concerns notice and commencing a Court case, in order to protect your reputation.

A previous decision

In 2014 the District Court of Western Australia handed down a decision, finding in favour of a plaintiff in a Facebook defamation case.

In Dabrowski -v- Greeuw [2014] WADC 175 the facts were that:

1. The parties were a separated husband and wife.

2. In December 2012 the defendant (the wife) posted on her public Facebook page an entry saying 'separated from Miro Dabrowski after 18 years of suffering domestic violence and abuse. Now fighting the system to keep my children safe'. 

3. The Judge found she had admitted that she posted the Facebook post. 

4. It was removed 4 months later, in February 2013.

At [183] the Judge stated:

To say that a person has for 18 years subjected their partner to domestic violence and abuse and that their children need to be kept safe from that person, tends to diminish the esteem in which that person is held by the community and/or diminish his standing in some respect and would lead an ordinary reasonable person to think lesser of that person and is defamatory.

The Judge decided that:

[248] Pursuant to s 7 of the Defamation Act, Mr Dabrowski is not required to prove special damages. Section 34 of the Act requires that any damage awarded have an appropriate and rational relationship to the harm actually suffered. The damages must be realistic.

[249] I have found that Mr Dabrowski was defamed. Mr Dabrowski has not claimed any consequential financial loss. Damages are appropriate.

The Judge award the plaintiff (the husband) $12,500, as well as interest on that money and also his legal costs.

The takeaways from the case

1. We should not feel powerless or in a weak bargaining position when someone defames us on Facebook, because it is realistic to go to Court over it.

2. You should hire lawyers like me, who are conscious of the realities of legal costs (and) who will manage the case so that decisions are made along the way that maximise the recovery of legal costs from the other side.

Overview of what a 'concerns notice' is in defamation law in Western Australia

Uniform defamation legislation is in place across Australia to promote speedy and non-litigious methods of resolving defamation disputes (Defamation Act 2005 (WA) s 3(d)).

   The first step in a defamation proceeding is for the victim of defamation to issue what is known as a concerns notice.

   The issuing of a concerns notice provides an avenue for the parties to resolve the matter without resorting to formal legal proceedings.

   A concerns notice is the document which outlines exactly what defamatory statements are alleged to have been made, when the statements were made, who they were published to, what defamatory imputations can be drawn from the publication, and what amends are requested.

   The purpose of a concerns notice is to set in motion the offer to make amends set out in Part 3 of the Defamation Act 2005 (WA).

For a notice to be a concerns notice:

1. It must be in writing (Defamation Act s 14(2)(a)); and

2. It must inform the publisher of the defamatory imputations that the aggrieved person considers are or may be carried about the aggrieved person by the matter in question (Defamation Act s 14(2)(b)).

    When a person receives a concerns notice they may request particulars of the defamatory imputations if they either haven’t been provided or haven’t been provided adequately (Defamation Act s 14(4) & (5)).

    Alternatively, a statement of claim will operate as a concerns notice for the purposes of the Defamation Act if it complies with the requirements of s 14(2) (Zoef v Nationwide News Pty Ltd [2016] NSWCA 283, [92]).

   Once a person has been issued with a concerns notice then the publisher has 28 days to make an offer to make amends (Defamation Act s 14(1)(a)).

   It is implicit in the construction of s 14(1) of the Defamation Act that a person has a reasonable period of time to respond to the content of a concerns notice (Douglas v McLernon (No 4) [2016] WASC 320, [262]).

   In some cases, it may be that after the expiry of a reasonable period of time to respond, the person in receipt of the concerns notice can be taken to have been aware of the existence of the alleged publications, and the concerns notice could even function as evidence to that effect (Douglas v McLernon (No 4) [2016] WASC 320, [262]).

   If the person could put a stop to ongoing publication (by another person), then an inference may be drawn in certain circumstances that the person then either acquiesced or participated in the publication from that point on. 

Being self-aware when making decisions in a legal case

Decisions are hard to make. 

They are extra hard in the context of a legal dispute, because the decisions usually involve a lot of uncertainty and trying to predict the behaviour and the decision-making of other people (such as an opponent or a Judge/Magistrate).

I was impressed with the analysis about decision-making in an article I read on The West Australian online edition the other day.

It struck me how we can, and should, be more deliberate and self-aware with our decision-making.

This is the link to the article:

https://thewest.com.au/lifestyle/health-wellbeing/are-you-suffering-from-decision-fatigue-ng-b88331446z

I especially liked this quote:

“There are numerous psychological functions working together in making decisions: Will, mood, thought process, perception, orientation, concentration, memory, insight and judgment.”