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Callan v Chawk [2023] FCA 898 (3 August 2023)

Last Updated: 3 August 2023

FEDERAL COURT OF AUSTRALIA

Callan v Chawk [2023] FCA 898

File number(s):	NSD 785 of 2021
Judgment of:	HALLEY J
Date of judgment:	3 August 2023
Catchwords:	DEFAMATION – whether respondent, a former patient of the applicant, published a defamatory review of the applicant on an internet ratings website for medical practitioners – defence of honest opinion under s 31 of the Defamation Act 2005 (NSW) (Act) – defence of qualified privilege under s 30 of the Act – where respondent did not succeed in defences under s 30 and s 31 of the Act – where Review found to convey three of the four imputations advanced by applicant DAMAGES – assessment of damages – where applicant awarded damages for non-economic loss – where applicant not entitled to aggravated damages
Legislation:	Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 9 Defamation Act 2005 (NSW) ss 4, 30, 31, 34, 35 Defamation Amendment Act 2020 (NSW) sch 4
Cases cited:	Al Muderis v Duncan (No 3) [2017] NSWSC 726 Ali v Nationwide News Pty Ltd [2008] NSWCA 183 Bauer Media Pty Ltd & Anor v Wilson (No 2) [2018] VSCA 154; 56 VR 674 Bazzi v Dutton (2022) 289 FCR 1; [2022] FCAFC 84 Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 Boyd v Automatic, Inc [2019] FCA 86 Bristow v Adams [2012] NSWCA 166 Burgundy v Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; [1993] HCA 31 Cassell & Co Ltd v Broome [1972] UKHL 3; [1972] AC 1027 Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60 Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185 Colagrande v Kim [2022] FCA 409 Colagrande v Telstra Corporation Limited [2020] FCA 1595 Cripps v Vakras [2014] VSC 279 Crosby v Kelly (2012) 203 FCR 451; [2012] FCAFC 96 Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 Dutton v Bazzi [2021] FCA 1474 Hanson-Young v Leyonhjelm (No 4) [2019] FCA 1981 Harbour Radio Pty Ltd v Tingle [2001] NSWCA 194 Herron v HarperCollins Publishers Australia Pty Ltd (2022) 292 FCR 336; [2022] FCAFC 68 Jameel (Yousef) v Dow Jones & Co Inc [2005] EWCA Civ 75; [2005] QB 946 John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164 John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50 Kabbabe v Google LLC [2020] FCA 126 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25 Lewis v Daily Telegraph Ltd [1964] AC 234 Lorbek v King [2022] VSC 218 Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 Nationwide News Pty Limited v Rush [2020] FCAFC 115 Nettle v Cruse [2021] FCA 935 Oliver v Nine Network Australia Pty Ltd [2019] FCA 583 Rana v Google Inc (2017) 254 FCR 1; [2017] FCAFC 156 Ratcliffe v Evans [1892] UKLawRpKQB 131; [1892] 2 QB 524 Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52 Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 Rush v Nationwide News Pty Ltd [2018] FCA 357 Schiff v Nine Network Australia Pty Ltd (No 2) [2022] FCA 1120 Sims v Jooste (No 2) [2016] WASCA 83 State of New South Wales v IG Index plc (2007) 17 VR 87; [2007] VSCA 212 Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15 Stephens v West Australian Newspapers Limited (1994) 182 CLR 211; [1994] HCA 45 Stocker v Stocker [2019] UKSC 17; [2020] AC 593 Tavakoli v Imisides (No 4) [2019] NSWSC 717 Thunder Studios Inc (California) v Kazal (No 12) [2022] FCA 110 Triggell v Pheeney (1951) 82 CLR 497; [1951] HCA 23 Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 Webster v Brewer (No 3) [2020] FCA 1343
	“An Introduction to the Jurisdiction of the Federal Court of Australia” (2002) 23 Aust Bar Rev 29 Gatley on Libel and Slander, 10th ed, 2004 Government Gazette of the State of New South Wales, No 250, 9 June 2023
Division:	General Division
Registry:	New South Wales
National Practice Area:	Other Federal Jurisdiction
Number of paragraphs:	214
Date of hearing:	31 October 2022 – 4 November 2022
Counsel for the Applicant:	Ms S Chrysanthou SC with Mr N Olson
Solicitor for the Applicant:	Company Giles
Counsel for the Respondent:	Mr  J Catlin
Solicitor for the Respondent:	Boadicea Legal Services Pty Ltd

ORDERS

THE COURT ORDERS THAT:

1. The respondent pay the applicant damages for non-economic loss, assessed in the amount of $50,000.
2. The respondent pay the applicant’s costs as agreed or taxed.
3. The respondent pay pre-judgment interest on the award of damages to be calculated in accordance with s 51A of the Federal Court of Australia Act 1976 (Cth) and in accordance with paragraph 2 of the Federal Court of Australia Interest on Judgments Practice Note (GPT-INT) for the period from the start of the limitation period until the date of these orders.
4. The parties have liberty to apply to vary Order 2 within 7 days of these orders.

REASONS FOR JUDGMENT

HALLEY J:

A. INTRODUCTION

1. The applicant, Dr Peter Callan, is a plastic surgeon.
2. In August 2020, Dr Callan performed a rhinoplasty procedure on the respondent, Mr Zachariah Chawk. Dr Callan seeks damages, including aggravated damages, for defamation arising from the publication by Mr Chawk, of a negative review of the rhinoplasty procedure on an internet ratings website for medical practitioners (Review). The address of the ratings website was www.realself.com (RealSelf website).
3. Dr Callan contends that the Review conveyed imputations to the effect that (a) he had performed the rhinoplasty procedure negligently, (b) he had negligently failed to correct Mr Chawk’s deviated septum, (c) he had performed the procedure so incompetently that Mr Chawk suffered a debilitating nasal valve collapse, and (d) he had ruined Mr Chawk’s self-esteem and self-confidence by “botching” a rhinoplasty procedure.
4. Mr Chawk denies that the Review conveyed the four imputations pleaded by Dr Callan and seeks to rely on the defences of honest opinion pursuant to s 31 of the Defamation Act 2005 (NSW) (Act) and qualified privilege pursuant to s 30 of the Act. Mr Chawk had also sought to rely on a defence of contextual truth but this defence was abandoned in the course of closing submissions.
5. Dr Callan had joined the former second respondent, Real Self Inc, the publisher of the RealSelf website, to the proceedings but Dr Callan reached a settlement with Real Self Inc prior to the hearing.
6. The parties prepared an agreed list of fourteen issues for determination at the hearing. I have addressed each of those issues below after considering the evidence relied upon by the parties and making findings as to the primary facts relevant to a determination of those issues.
7. For the reasons that follow, I have concluded that Dr Callan should be awarded $50,000 for damages for non-economic loss together with interest and costs.

B. EVIDENCE

8. Both Dr Callan and Mr Chawk gave oral evidence in the proceedings. Each was extensively cross-examined.

B.1. Dr Callan’s evidence

9. Dr Callan presented as a careful, responsive and objective witness. I had no reason to doubt the evidence that he gave. It was consistent with both the contemporaneous written records and the apparent logic of events. It was also largely corroborated by other witnesses who gave evidence.
10. Dr Callan also relied on oral evidence from his practice manager and wife, Ms Christine Callan and Ms Hanley Parsons, a nurse working in his practice. I was satisfied that both witnesses were honestly giving evidence to the best of their recollection and that their evidence was consistent with the apparent logic of events and the evidence given by each other and Dr Callan. Notwithstanding the extent of their connections with Dr Callan, neither witness presented as an advocate for Dr Callan. Both witnesses appeared careful to confine their evidence to matters that they could genuinely recall.
11. Finally, Dr Callan relied on character evidence from (a) Dr Kennedy, a plastic and reconstructive surgeon, (b) Dr Howard Webster, a specialist plastic surgeon, (c) Dr George Marcells, an Ear, Nose and Throat (ENT) surgeon specialising in facial plastic surgery procedures, and (d) Dr Richard Harvey, an ENT surgeon. The character evidence provided by each of Dr Kenney, Dr Webster, Dr Marcells and Dr Harvey is summarised at [184]-[187].

B.2. Mr Chawk’s evidence

12. Mr Chawk ultimately found giving oral evidence a challenging and confronting task. While his evidence in chief appeared cogent and reliable, his evidence in cross-examination was at times internally inconsistent and also inconsistent with the apparent logic of events and contemporaneous documents. His denials that (a) he was in fact experiencing the symptoms that he reported in his own emails to doctors, and (b) that he accessed the information sheet provided to him on online by Dr Callan, notwithstanding contemporaneous records demonstrating that he had reviewed it, were inexplicable.
13. Equally concerning, was Mr Chawk’s failure to disclose an earlier rhinoplasty procedure in his evidence in chief when he was asked about any previous surgery. Mr Chawk also falsely claimed in his evidence in chief that he was required to pay $8,000 before he could see Dr Callan again. That payment was in fact made to secure the surgery date for the rhinoplasty procedure.
14. Mr Chawk, throughout his evidence, sought to downplay or otherwise discount, (a) the extent and seriousness of his breathing difficulties prior to the rhinoplasty performed by Dr Callan, (b) the urgency of his requests for surgery to Dr Callan arising from those breathing difficulties, and (c) the explanations provided by Dr Callan of the limitations of rhinoplasty procedures and the potential need for further surgery.
15. In the circumstances, I have approached the evidence given by Mr Chawk with great caution. Where his evidence conflicts with Dr Callan’s evidence, I have given more weight to Dr Callan’s evidence. Further, to the extent that Dr Callan’s evidence is consistent with the apparent logic of events, supported by contemporaneous documents, or the evidence given by Ms Callan, or Ms Parsons, I have accepted it.
16. Mr Chawk did not rely on any witnesses other than himself.

C. PRIMARY FACTS

17. In 2009, Mr Chawk underwent a rhinoplasty procedure in a public hospital.
18. In 2010, Mr Chawk underwent a further rhinoplasty procedure performed by Dr Peter Dixon.
19. Mr Chawk gave evidence that both of those surgeries were only for aesthetic purposes. I do not accept that evidence. No objective evidence was produced to support the contention that the surgeries were for aesthetic purposes and it is inherently improbable that Mr Chawk underwent a cosmetic procedure in a public hospital. Further, when giving evidence in chief of his relevant medical history, Mr Chawk failed to make any reference to the rhinoplasty procedure in 2009. This omission casts significant doubt on the accuracy of Mr Chawk’s recollection of his medical procedures. A rhinoplasty procedure, as was evident from the evidence adduced in the proceeding, is not a minor procedure that might readily be overlooked by a person giving evidence of their medical history.
20. In June 2020, Mr Chawk saw Dr Wally Hassoun, a dentist, for a consultation in relation to a possible temporomandibular disorder which is a condition that may cause pain in the jaw joint and other muscles that control jaw movement. Dr Hassoun concluded that Mr Chawk’s symptoms were more related to airway limitations with secondary bruxism. Dr Hassoun further found that Mr Chawk had a very limited anterior nasal opening which readily collapsed. He recommended that Mr Chawk wear a night guard to prevent further teeth grinding.
21. In July 2020, Mr Chawk consulted Dr Perry Burstin, an ENT surgeon. He told Mr Chawk that his nasal valve was collapsing and that his nose was deviated. He was scheduled to undergo surgery with Dr Burstin, but did not want to go through with it because he had read bad reviews about Dr Burstin online.
22. At about this time, Mr Chawk also consulted with Dr Chris Moss, another plastic surgeon. He gave evidence that he did not proceed with Dr Moss because he was too expensive, although he told Dr Glenn Watson that he was having surgery with Dr Moss.
23. Mr Chawk first made contact with Dr Callan’s practice on 7 July 2020. Mr Chawk told Ms Callan that he had undergone a previous rhinoplasty procedure with Dr Dixon some years before, but that he still had difficulty breathing and a crooked nose. In cross-examination, Mr Chawk agreed that as a result of what he had been told by Dr Burstin, he knew when he consulted Dr Callan’s practice that he had collapsed nasal valves on both sides which had been causing his breathing difficulties for about a year. Mr Chawk also agreed that he was suffering fatigue by the time he saw Dr Callan.

C.1. Consultation with Dr Callan on 10 July 2020

24. On 10 July 2020, Mr Chawk had his first consultation with Dr Callan. Ms Parsons was also present during this first consultation. Dr Callan recorded the details of this consultation in a letter to Mr Noel Russell, an ENT surgeon, which he dictated immediately after the consultation.
25. During the consultation, Mr Chawk stated that he had undergone a rhinoplasty procedure about ten years ago. He explained to Dr Callan that although the operation had improved the appearance of his nose, “it has made his breathing worse and that is his main issue at the moment”. Dr Callan observed that Mr Chawk had very slight nostrils which “completely collapse on the slightest inspiration”, and which was “worse on the right than on the left”. Dr Callan noted that although Mr Chawk’s septum was deviated it did not appear to be causing much obstruction.
26. Dr Callan took a series of photographs in the course of the consultation. The narrowness of Mr Chawk’s nostrils, even in a resting state, and the almost total collapse of his nostrils on forced inspiration is evident from the photographs.
27. Dr Callan advised Mr Chawk that he needed a complete open rhinoplasty procedure with lateral wall reconstruction in order to change the nostril shape. Dr Callan took a series of 3D images which he used to create a simulation of how Mr Chawk’s nose might look after the rhinoplasty procedure. The images included a footnote, “Simulation only: Actual surgical results will vary”. Dr Callan did not have a specific recollection of what he told Mr Chawk about the simulation images. Dr Callan explained that his general practice at that time was to explain to the patient that the simulation represented the “destination”, or what he planned to do. He generally explained that he might not be able to achieve what was represented by the images and that they were only a planning tool, but that he thought they were a realistic representation of what he could achieve.

C.2. Consultation with Mr Watson

28. Dr Callan referred Mr Chawk to Mr Noel Russell, an ENT surgeon, for the investigation of a suspected polyp in Mr Chawk’s nose. Notwithstanding this referral, Mr Chawk subsequently saw a different ENT surgeon, Mr Glenn Watson.
29. Mr Chawk stated that he saw Mr Watson because Mr Russell could not schedule a consultation soon enough for Mr Chawk’s liking. Mr Chawk wished to consult an ENT surgeon as soon as possible because he was “struggling daily” and “struggling to breath”, and experiencing symptoms including “obstruction breathing” and “decreased quality of life wak[ing] up feeling tired – its very depressing”. In his email to Mr Russell’s rooms at 7.09 am on Sunday, 19 July 2020, Mr Chawk requested the earliest available appointment within the week.
30. Mr Watson prepared a report of his consultation with Mr Chawk dated 27 July 2020. The report was subsequently provided to Dr Callan. Mr Watson stated in his report that he had performed a nasoendoscopy, a procedure to examine the inside and back of the nose, and he had not observed anything which gave him any concern. Dr Callan understood this information as confirming his opinion that the septum deviation was not obstructing Mr Chawk’s airway.
31. On 23 July 2020, Mr Chawk completed a form entitled “Nasal Obstruction and Septoplasty Effectiveness (NOSE) Scale”. This form is a tool for evaluating a patient’s nasal obstruction. It is used to determine eligibility for Medicare and private health fund rebates when undergoing a rhinoplasty procedure. On this form, Mr Chawk gave himself the maximum score for nasal congestion and stuffiness, nasal blockage or obstruction, trouble breathing through his nose, trouble sleeping and being unable to get air through his nose during exercise or exertion.
32. Mr Chawk’s TouchMD profile, an online platform used by Dr Callan’s practice to share information with patients, records that he viewed a rhinoplasty information sheet and RealSelf materials on 24 July 2020. The information sheet sets out risks and complications of rhinoplasty procedures, including the possibility of needing revision surgery.
33. On 30 July 2020, Mr Chawk exchanged a series of emails with Ms Callan in which he pressed her to organise a further consultation with Dr Callan at the earliest possible opportunity. In an email at 12.39 pm on 30 July 2020, he stated (as written):

...can you kindly promise me if you have any theatre consultations you will keep me in mind at the top of your list.
I ready explained the negative effects the restricted breathing is having on my health.
Lets get this going.

34. Mr Chawk asked a number of questions about cosmetic aspects of rhinoplasty procedures. In response, Ms Callan asked Mr Chawk whether he was happy with the simulation images and explained relevantly:

This is what Peter is aiming to achieve.
He may not get it exactly the same but feels he can achieve something close to this.
...
Make no mistake, your nose will not be perfect. There may be some slight irregularities but it will be better than what you have now both aesthetically and functionally.

35. Mr Chawk replied (in part):

...we trust Mr Peter Callan can deliver on simulations and my items.

36. Ms Callan also suggested in these emails that the rhinoplasty procedure be delayed so that Mr Chawk could have a fuller consultation with Dr Callan before deciding whether to proceed with the surgery. Mr Chawk declined that offer, preferring to keep the surgery date on 27 August 2020.
37. These emails were forwarded by Ms Callan to Dr Callan with the comment “TROUBLE”. Dr Callan gave evidence that these emails “raised a number of red flags to us that would indicate that he had unrealistic expectations”, and that he was inclined not to proceed with operating on Mr Chawk.
38. Dr Callan arranged a further consultation, in order to “read the Riot Act to him and if there’s any problems, we’ll cancel him”.

C.3. Consultation with Dr Callan on 24 August 2020

39. On 24 August 2020, Mr Chawk attended a videoconference consultation with Dr Callan. Ms Parsons was again in attendance. Ms Parsons took handwritten notes of the consultation. Dr Callan dictated a file note immediately afterwards that was then typed. Dr Callan explained that he went through the previous letter he had written to Mr Russell on 10 July 2020 with Mr Chawk and explained the pertinent risks associated with the procedure.
40. In his oral evidence, Dr Callan relevantly gave the following account of what he said to Mr Chawk at the consultation on 24 August 2020:

And then I discussed with him the fact that he had seen Glen Watson and that that was - I was happy that the septum wasn't an issue, but then it was my - I said to him, “You really concern me and what really concerns me are the email exchanges with Christine about guarantees of results”. I explained to him that we are not - we are professionals, we do our best with the materials available at the time and we self-evaluate the entire time we’re doing it. So all I can promise him is that I will do the best possible surgery I can on the day... And I explained to him that I wasn't happy that these are the things he said. I explained to him that secondary surgery is definitely possible, a second operation is definitely - well, a third operation in his case was definitely possible. There may be asymmetries, there may be - it may not be straight. There will be asymmetric nostrils, I went through everything I possibly could and said to him, “These are the things that can go wrong”.

41. He also gave evidence that:

The pertinent things that I went through with Mr Chawk were the ones that were concerning me, and they were: needing another operation, the fact that he said to me he wanted everything fixed with one operation, he doesn't want another operation and I said that is not - I cannot possibly guarantee that. So a second operation or a third operation may be required and you have to accept that if you want to go ahead with me. I can’t guarantee that that won't be the case. I also talked about asymmetries, I remember talking about asymmetries, further collapse, scar - further scar tissue, needing rib cartilage, the nose not being perfectly straight and perfectly symmetrical.
...
I remember him telling me that he wanted it [fixed] in one operation, that this - the next operation was the only one he wanted to have, but I do remember him at the end, I said to him - he assured me that that was okay. That he could accept all of that, and I said, “Well, in that circumstance, I’m happy to go ahead, but you must affirm to me that that is the way you feel and the way that you can accept that that is the case.”

42. I accept Dr Callan’s recollection of the substance of what he conveyed to Mr Chawk in the course of the consultation on 24 August 2020. It is consistent with both Ms Parsons’ recollections and Dr Callan’s contemporaneous records of the consultation. Further, the extent of his specific recollection of the consultation is relatively unremarkable. I accept Dr Callan’s evidence that he had a state of heightened awareness during this consultation given the content of Mr Chawk’s emails to Ms Callan, leading up to the consultation.
43. Ms Parsons gave evidence that, before the second consultation, “There was words... where Mr Chawk wanted to have guarantees”, but that Dr Callan said he was unable to give guarantees. She testified that he “wanted to assure Mr Chawk that he’s just going to do the best he can on the day. There is no guarantee”. Ms Parsons was not challenged on this evidence in cross-examination.
44. Ms Parsons’ note records that they “Discussed result will be better but not perfect” and “Complications + risks associated with revision rhinoplasty” and “PC will do best he can”. She put multiple ticks next to the words “Complications” and “Asymmetry” under the heading “What was discussed today”. In oral evidence, Ms Parsons explained that the ticks next to certain topics indicated that those topics were important and discussed a lot. The cross-examiner also did not challenge Ms Parsons on this evidence.
45. Mr Chawk’s evidence was that it was he who raised a list of complications, not Dr Callan, and that in response to his queries, Dr Callan said “none of those things are going to happen” and that “you’re in good hands”. I do not accept this evidence. Those words were put to Dr Callan and he denied saying them. His oral evidence was consistent with the contemporaneous notes and Ms Parsons’ evidence. It was not put to Ms Parsons that Dr Callan said such words in response to a list of complications raised by Mr Chawk. On balance, I am satisfied that it is implausible that any experienced and competent plastic surgeon would disclaim any possibility of known complications of a rhinoplasty procedure to a patient in such a cavalier fashion.
46. Dr Callan’s evidence about the consultation is consistent with his contemporaneously dictated file note and with Ms Parsons’ recollections and her handwritten note. I do not accept Mr Chawk’s evidence concerning the consultation on 24 August 2020, to the extent that it is inconsistent, particularly given Ms Parsons unchallenged corroborative evidence that Dr Callan refused to give Mr Chawk any guarantees about the outcome of the rhinoplasty procedure.
47. In summary, I am satisfied that, on 24 August 2020, in the course of the consultation:

    (a) Mr Chawk was told that his septum was not the issue;

    (b) Mr Chawk was told in clear terms that Dr Callan could not provide any guarantee as to the outcome of the rhinoplasty procedure. Rather, Dr Callan responded to Mr Chawk’s request for a guarantee in words to the effect that all he could say was that he would do the best possible surgery on the day;

    (c) Mr Chawk said that he did not want to undergo a further revision surgery. Dr Callan responded in words to the effect that he could not possibly guarantee this, that follow-up surgery “is definitely possible”, and that Mr Chawk would have to accept this if he wanted to go ahead with Dr Callan;

    (d) Dr Callan explained the risks of the procedure including the possibility of asymmetry, the nose not being perfectly straight, further scar tissue, needing rib cartilage, and further collapse; and

    (e) at the end of the consultation, Mr Chawk confirmed that he understood and accepted all of this.

C.4. Rhinoplasty procedure on 27 August 2020

48. On 27 August 2020, Dr Callan performed the rhinoplasty procedure on Mr Chawk.

C.5. First post-operative consultation

49. On 3 September 2020, Dr Callan had a postoperative consultation with Mr Chawk. Ms Callan was also present. Ms Callan made a handwritten file note and Dr Callan dictated a note after the consultation. The splint and some stitches were removed. There appeared to be nothing untoward to Dr Callan. Dr Callan observed that Mr Chawk “looked good” and assessed his breathing as “excellent”. Dr Callan also recalls Mr Chawk “being happy”. A series of photographs were taken after the splint was removed.
50. Ms Callan remembered Mr Chawk being grateful and happy at the first postoperative consultation. She did not recall him being upset in any way.

C.6. Second postoperative consultation

51. On 10 September 2020, there was a second postoperative consultation. Ms Callan was again present. Dr Callan gave the following evidence about what happened at that consultation:

Do you recall anything specifically about that consultation? What he said to you, and what you said to him?--- Yes, I do. I recall that. He - when he came in, he said, “Bad news.”
Yes?--- And I said, “What’s the problem?” And he showed me that the right nostril collapsed slightly when he breathed in. And I said - well, I said, “It’s early days. The nose is not stiff yet. You will just have to wait, and we will just have to wait and see, because it may well stiffen up as time goes on.” It’s at the moment, when you first do a rhinoplasty, it’s a bit of a house of cards, and everything has got to firm up. And, at that stage, there was no scar tissue. It was just held together by a few sutures and bodily fluids which hold it together, which eventually turns into scar tissue.
And did he say anything to you after you told him that?--- I recall there being a little bit of a discussion about, if it stays, what do we do. And I said we will just have to wait and see. I mean, if there’s a problem - and I am talking generally in my usual practice now. That, if there’s a problem, we will sort it out for you.
And what do you mean by that?--- Well, that would be a second surgery, if necessary.
And how long do you have to wait after a rhinoplasty to determine whether another surgery is necessary?--- If everything has gone well, there’s no infection, there’s no problems and the rhinoplasty goes smoothly, you would wait at least six months, but probably 12 before operating, because you want the scar - scar tissue to firm up. You also want a lot of the swelling to go down. And with a rhinoplasty, the swelling can take up to two years to go down, especially in secondary rhinoplasties. It can take at least two years to go down.
Is that something that you told him?--- I told him that I - I - I can’t remember telling - what I exactly told him, but I told him there was nothing to do at that time.

52. Mr Chawk stated that he still had some collapse on one side, but his normal breathing was otherwise fine.
53. Ms Callan’s handwritten note and Dr Callan’s typed note record that Mr Chawk’s nose was still collapsing “a bit on the right side” but that he was otherwise “very much better”.
54. In cross-examination, Ms Callan was not challenged on the evidence in her note recording that the collapse was on the right-hand rather than the left-hand side.
55. A further set of photographs was taken during the second postoperative consultation. It is clear from a comparison of these postoperative photographs, side by side, with the preoperative photographs taken on 10 July 2020, that in a resting state, Mr Chawk’s nostrils were significantly more open on both sides. On inspiration, it can be seen that his right-hand nostril collapsed but significantly less than preoperatively. The left-hand nostril does not appear to be collapsing at all in the photograph.
56. Dr Callan booked Mr Chawk in for a further consultation in December 2020 but did not hear from Mr Chawk again.
57. Mr Chawk ultimately agreed with much of what was put to him about the consultation on 10 September 2020. He added that Dr Callan told him that everyone’s nose collapses on inspiration and gave him a demonstration, and Mr Chawk saw that his nose did in fact collapse on inspiration.
58. Notwithstanding this, Mr Chawk claims that by 8 October 2020, his left nostril was collapsing, more so than the right nostril. He sought to prove that by the photographs that he attached to the Review.
59. Dr Callan submits that the Court should not place any reliance on Mr Chawk’s photographs because they were not “controlled” photographs as it was not apparent from what distance they were taken. Mr Chawk’s evidence actually corroborated Dr Callan’s evidence in this regard, inasmuch as he noted that Dr Callan’s photography room had a mark on the floor indicating where he should stand for the photographs.
60. The photographs taken by Mr Chawk appear, somehow, to have been reversed. It is improbable that the right nostril significantly improved in that month and the left nostril reverted to its preoperative state. Further, a slight deviation on the tip of Mr Chawk’s nose to the left is apparent in the photographs taken on 10 September 2020, assuming it is reversed. If Mr Chawk’s photographs were correct, it would imply that his nose had completely changed the direction in which it deviated, which is implausible. He accepted that his nose deviated to the left, particularly having regard to his evidence about the taping of his nose. The left nose deviation could still be observed in Mr Chawk’s nose when he gave evidence.

C.7. Publication of the Review

61. On 16 October 2020, Mr Chawk posted the Review on the RealSelf website. Dr Callan’s office attempted to contact Mr Chawk on each of 17, 18 and 19 October 2020 by phone and email, and also by placing a post on his profile on the RealSelf website asking Mr Chawk to get in contact. Dr Callan did not receive a response from Mr Chawk to any of these enquiries.
62. Dr Callan’s solicitors sent correspondence to Mr Chawk on 24 October and 25 November 2020. These letters also went unanswered.
63. Mr Chawk claimed that none of these phone calls, emails and letters came to his attention, but that is implausible. I do not accept that evidence and I infer that Mr Chawk elected simply to ignore them.

D. ISSUE 1 – PUBLICATION

D.1. Legal principles

64. It is first necessary to determine whether this Court has jurisdiction to hear the proceedings. Section 9(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) confers on this Court the jurisdiction of the Supreme Courts of the Northern Territory (NT) and the Australian Capital Territory (ACT) to hear and determine defamation matters that would be within their jurisdiction: Colagrande v Telstra Corporation Limited [2020] FCA 1595 at [14] (Derrington J) citing Rana v Google Inc (2017) 254 FCR 1; [2017] FCAFC 156 at [24] (Allsop CJ, Besanko and White JJ); Crosby v Kelly (2012) 203 FCR 451; [2012] FCAFC 96 at [35] (Robertson J, Bennett and Perram JJ agreeing).
65. The tort of defamation focusses on damage to the reputation of the defamed person by publication of defamatory material which is comprehended by a third party: Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 at [25]- [26] (Gleeson CJ, McHugh, Gummow and Hayne JJ). Publication of defamatory material online is established by evidence that the material was downloaded and read by a third party: Dow Jones at [26] and [44]; see also Colagrande v Telstra at [15].
66. Publication, in the legal sense, may be established by pleading and proving a “platform of facts” which support the inference that the defamatory material was downloaded. An inference will not be drawn from the mere fact that the defamatory material was posted online: Sims v Jooste (No 2) [2016] WASCA 83 at [18] (Martin CJ, Buss JA and Mitchell J agreeing). Facts relevant to an inference that the defamatory material was downloaded include the number of “hits” on the website on which the material was posted and the period of time over which the material was posted online: Sims at [19].
67. In Colagrande v Kim [2022] FCA 409 at [39] (Jagot J), a case about a defamatory review on a doctor rating website, her Honour inferred that the matter complained of was read by a large number of people. Her Honour drew the inference from facts including (a) the period of time that the defamatory material remained online, (b) the size and popularity of the website on which the defamatory material was published, and (c) the number of views per month of the applicant’s profile on that website.

D.2. Evidence of publication

68. RealSelf is, by its own description, “the leading and most trusted source for people considering an elective cosmetic treatment”, and “Every month, millions of RealSelf visitors research procedures and connect with highly qualified providers”.
69. The Review was not taken down until around the time of the mediation which took place in November 2021. It was, therefore, visible online for a period of about a year.
70. In the period between October 2020 and November 2021, there were approximately 3,857 views of Dr Callan’s RealSelf page. There was an average of 275 views per month during this period with a high of 381 views in April 2021 and a low of 187 views in November 2011.
71. Dr Callan gave unchallenged evidence about how he would receive enquiries through RealSelf. He gave unchallenged evidence that in the six months after publication of the Review, he received, on average, half as many enquiries per month as he had received before the Review was published.
72. A number of users of RealSelf posted comments on the Review. The comments included:

    (a) “Sorry this happened to you. Thank you for letting us know about this incompetent surgeon!! I will spread the word!” (posted on 17 October 2020);

    (b) “So sad you have to go through this... I know how you feel...” (posted on 19 October 2020); and

    (c) “I’m 5 weeks post op and in the same situation you are in. I’m sorry you are going through this. Sending love” (posted on 20 March 2021).

73. The line directly beneath the text in the Review states “6 people found this helpful”. It is not apparent from the evidence whether those six people are the same or different than the people who posted comments on the Review.

D.3. Submissions

74. Mr Chawk submits that the evidence of publication relied upon by Dr Callan is insufficient to establish substantial publication of the Review for the following reasons.
75. First, Mr Chawk submits that substantial publication of the Review could not be established in the absence of analytical data. Such data includes how many people viewed the RealSelf website in Australia, how many looked at the sub-category “rhinoplasty”, the number of people registered on the site and the extent of any geographic filtering to identify doctors near the location of the person searching.
76. Second, given Dr Callan’s practice is not limited to rhinoplasty procedures, people may have reviewed his profile on the RealSelf website for other reasons.
77. Third, unlike in Colagrande v Kim, the number of page views was much less and there was no evidence of the ease with which users of the RealSelf website might have found the Review or the interaction of the RealSelf website with Google. In Colagrande v Kim, analytic data over a period from December 2020 to June 2021, showed that views of the relevant online page ranged from approximately 70,000 to 180,000 per month.
78. Fourth, there was no evidence of how the star rating system on the RealSelf website worked. In particular, there was no evidence, unlike in Lorbek v King [2022] VSC 218 at [70(iv)] (McDonald J), of whether the RealSelf website had the functionality for a quick search to see the “lowest or most scandalous ratings”.
79. Fifth, given the RealSelf website is only open to people who have registered and have a log in, there can be no presumption that the Review might have spread in a “viral” fashion.
80. Finally, Mr Chawk also submits that Dr Callan has not established that the Review was published in a federal jurisdiction, that is, in either the ACT or the NT. He submits that although the statement of claim refers to a publication of Ms Hannah Tonks in the ACT, she was not called to give evidence and the Court would be slow to infer publication in the ACT or the NT, given Dr Callan’s practice was limited to Geelong.

D.4. Consideration

D.4.1. Whether the Court has jurisdiction

81. In my view, it is not possible to infer that the Review was published in the ACT or the NT.
82. It has been said, in an interlocutory context, that the fact that a website is accessible throughout Australia is sufficient to establish that the Court is likely to have jurisdiction to hear a defamation claim: Colagrande v Telstra at [15] (Derrington J) citing Kabbabe v Google LLC [2020] FCA 126 at [16] (Murphy J). Similarly, in Boyd v Automatic, Inc [2019] FCA 86,
    Kerr J considered an application for an interlocutory injunction prior to the commencement of defamation proceedings and stated at [48]:

[I]n my view, where highly controversial material has been published regarding a resident of this country and made available to be read or downloaded from a website without restriction anywhere in Australia, it would be unrealistic to conclude other than those words may have been read in, inter alia, the ACT and the Northern Territory.
(Emphasis in the original.)

83. I do not consider the reasoning summarised above to be applicable in the present case. First, these proceedings are concerned with final, not interlocutory, relief. Second, each of the decisions in Colagrande v Telstra, Kabbabe and Boyd was concerned with publications on websites that were freely accessible. There was no suggestion in any of those cases that the websites could only be accessed by registered persons with log in details. Third, given the relatively limited actual views of Dr Callan’s profile, I am not satisfied that it can be inferred that a person in the ACT or the NT not only viewed Dr Callan’s profile but also downloaded the Review. The highest monthly view for Dr Callan’s profile in the period between October 2010 and October 2022 was only 381, in April 2021.
84. Establishing federal jurisdiction, however, is not dependent on satisfying this Court that there was publication of the matter complained of in the ACT or the NT. If the Court is satisfied that a “non-colourable” assertion of federal jurisdiction has been made, the Court has jurisdiction, and once such an assertion is made it cannot subsequently be lost: Oliver v Nine Network Australia Pty Ltd [2019] FCA 583 at [17] (Lee J) citing Burgundy v Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219 (Bowen CJ, Morling and Beaumont JJ) and the following statements by Allsop CJ in “An Introduction to the Jurisdiction of the Federal Court of Australia” (2002) 23 Aust Bar Rev 29 at 45:

Once a non‐colourable assertion is made, that clothes the court with federal jurisdiction, which, once gained, is never lost. Owen Dixon KC’s testimony to the Royal Commission on the Constitution in 1927 put the matter in pungent practical terms:

So, if a tramp about to cross the bridge at Swan Hill is arrested for vagrancy and is intelligent enough to object that he is engaged in interstate commerce and cannot be obstructed, a matter arises under the Constitution. His objection may be constitutional nonsense, but his case is at once one of Federal jurisdiction.

‘Colourable’ imports improper purpose: Burgundy Royale 18 FCR at 219, or a lack of bona fides: Hopper v Egg & Egg Pulp Marketing Board 61 CLR at 673. It is not judged by reference to the strength and weakness of the case alone. Improper purpose or lack of bona fides carries with it the notion of an abuse of process.
(Emphasis in original.)

85. Further, there was no allegation or suggestion by Mr Chawk that the assertion as to publication in the ACT in the statement of claim lacked bona fides, was done for an improper purpose or was otherwise an abuse of process.
86. I am, therefore, satisfied that the Court has jurisdiction because Dr Callan made a “non-colourable” assertion of federal jurisdiction in the statement of claim by alleging that the Review was downloaded and comprehended by Ms Tonks in the ACT.

D.4.2. Whether defamatory material was downloaded

87. I am satisfied that the evidence of publication relied upon by Dr Callan, summarised at [68]-[73] above, provides a “platform of facts” which supports the inference that publication is likely to have been greater than the people who commented on the Review or stated that they “found this helpful”. Only eight comments were posted on the Review and only four people indicated that they found the Review helpful.
88. In my view, however, Dr Callan has not established substantial publication of the Review on the RealSelf website given the relatively limited number of recorded views of Dr Callan’s profile on the RealSelf website following the publication of the Review. The average monthly views for Dr Callan’s profile, in the period between October 2010 and October 2022, was 205 views. In stark contrast, Jagot J readily inferred substantial publication in Colagrande v Kim in which Dr Colagrande’s profile on RateMD, a review and ratings website for doctors, had 70,000 to 80,000 views a month: at [38].
89. Moreover, there was no analytical data in evidence that might have supported any inferences as to the likely number of people who might have viewed Dr Callan’s profile on the RealSelf website and then downloaded and read the Review. The difficulty of drawing any specific inferences is compounded by the fact that Dr Callan’s practice was not limited to rhinoplasty procedures. Prospective patients may have reviewed Dr Callan’s profile but not downloaded the Review because they were not looking for a surgeon to perform a rhinoplasty.
90. Nor, given the closed nature of the RealSelf website, accessible only following registration and log in, is there any basis to infer dissemination on the internet beyond visits to the RealSelf website.
91. For the foregoing reasons, I am not satisfied that Dr Callan has established that there was a substantial publication of the Review.

E. ISSUES 2-3 – DEFAMATORY MEANING

E.1. Legal principles

92. The legal principles applicable to the determination of defamatory meaning are well-settled.
93. The applicant bears the onus of proving, on the balance of probabilities, that the alleged defamatory meanings or imputations were conveyed by the publication: Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 (Rush (No 7)) at [72] (Wigney J).
94. Whether the defamatory meanings were in fact conveyed is a question of fact and requires consideration of what the publication would have conveyed to an ordinary reasonable reader: Rush (No 7) at [73]-[74]; see also Schiff v Nine Network Australia Pty Ltd (No 2) [2022] FCA 1120 at [6] (Jagot J). The test uses the objective standard of reasonableness, based on how that hypothetical person would understand the alleged defamatory matter: Bazzi v Dutton (2022) 289 FCR 1; [2022] FCAFC 84 at [25] (Rares and Rangiah JJ).
95. The ordinary reasonable reader is a person of fair to average intelligence, experience and education. They are taken to be fair-minded and are neither perverse, suspicious of mind nor “avid for scandal”. They do not approach a publication over zealously or seek to construe it like a lawyer. Rather, they approach it with a degree of “loose thinking”. They can and do “read between the lines” in light of their general knowledge and experience of worldly affairs. They are likely to be influenced by the overall tone of the publication and draw implications, particularly derogatory imputations, more freely than a lawyer would: Rush (No 7) at [75]-[78]; Schiff at [6(2)].
96. The ordinary reasonable reader will also consider the publication as a whole, however, a headline designed to catch the eye and give the reader a predisposition about what follows may assume more importance in assessing defamatory meaning: John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50 at [26] (McHugh J) and [187]-[188] (Callinan J).
97. Although a publication may be capable of reasonably bearing more than one meaning, the Court must determine whether the alleged defamatory meaning was in fact the single natural and ordinary meaning of the words complained of: Rush (No 7) at [83]; Schiff at [6(3)].
98. It is, ultimately, the general impression that the publication creates in the mind of the ordinary reasonable reader that determines whether it conveys one or more of the alleged defamatory imputations: Bazzi at [47] (Rares and Rangiah JJ) citing Lewis v Daily Telegraph Ltd [1964] AC 234 at 285 (Lord Devlin).
99. In Bazzi, the Full Court of this Court also had regard to the decision of the Supreme Court of the United Kingdom in Stocker v Stocker [2019] UKSC 17; [2020] AC 593, which was a case that involved considering the meaning of an allegedly defamatory Facebook post. At [41], Lord Kerr JSC cautioned against elaborate analysis of a post on Facebook or a tweet on Twitter because they are “casual medium[s]... in the nature of conversation rather than carefully chosen expression”. The Full Court of this Court followed and applied this reasoning in Bazzi at [29] and [47] (Rares and Rangiah JJ) and [60]-[62] (Wigney J).

E.2. Are the imputations conveyed?

100. The Review appeared on Dr Callan’s profile and was necessarily about him. The Review is reproduced in Annexure A to these reasons.
101. The headline to the Review was “The Emotional Impact of a Failed Rhinoplasty is Severe”. There were three photographs of Mr Chawk underneath the headline, one looking down on the top half of Mr Chawk’s face and the other two looking up at the top half of his face focusing on his nostrils. At the conclusion of the Review, Mr Chawk awarded Dr Callan one star, being the lowest available out of five. The one star rating is reproduced in Annexure B to these reasons.
102. I infer that the reference to Mr Chawk’s nasal septum deviating to “onside leading to a nose blockage” was intended to read that is nasal septum was deviating to “one side leading to a nose blockage”.

E.2.1. The first and second imputations

103. It is convenient to address the first two imputations together. They are pleaded in the following terms:

Peter Callan, a specialist plastic surgeon, was negligent in performing a revisional rhinoplasty procedure on his patient Zachiarah Chawk. (First Imputation)
Peter Callan, a specialist plastic surgeon, negligently failed to correct his patient Zachariah Chawks’s deviated septum. (Second Imputation)

104. I am satisfied that both imputations were conveyed by the Review for the following reasons.
105. First, regard must be had to the medium in which the Review was published. As submitted by Dr Callan, the Review was published on a website intended to facilitate the rating and reviewing of doctors by their patients. I readily infer that people who use a website like RealSelf do so in order to find out what other people thought about a doctor. RealSelf users would expect to read reviews that would inform them about the experience, ability and competence of the doctor in question, so that they could decide for themselves whether to undertake a medical procedure with that doctor.
106. The headline to the Review described the rhinoplasty as “Failed”. The description of the rhinoplasty as “failed”, rather than “unsuccessful”, or “less successful than hoped”, immediately orients the reader to the impression that the procedure performed by the doctor, the subject of the review, was entirely unsuccessful.
107. I am satisfied that the general impression conveyed to the ordinary reasonable reader from the text of the Review, in the context of the headline and the photographs, is that Dr Callan failed to correct Mr Chawk’s nasal valve and collapsed septum. In the absence of any suggestion of dishonesty or fraud, the ordinary reasonable reader would readily conclude that the reason for Dr Callan’s failure to correct Mr Chawk’s nasal valve and collapsed septum was incompetence or negligence on the part of Dr Callan. No alternative explanation for the “failed” rhinoplasty procedure is proffered in the Review.
108. The opening observation in the text of the Review is that it was “mainly to help someone suffering the same symptoms make an informed decision” and the reference to the “additional challenge of finding a surgeon who feels comfortable they can achieve a better outcome”. These observations reinforce the general impression that Mr Chawk was seeking to warn readers not to seek treatment from Dr Callan because he had acted negligently and incompetently in performing Mr Chawk’s rhinoplasty procedure.

E.2.2. The third imputation

109. The third imputation was pleaded in the following terms:

Peter Callan, a specialist plastic surgeon, performed a rhinoplasty so incompetently that his patient Zachariah Chawk, suffered a debilitating nasal valve collapse. (Third Imputation)

110. Dr Callan submits that the Third Imputation was conveyed to the ordinary reasonable reader primarily by the sentence “Another problem was the nasal valve collapse creating limited airflow and causing very uncomfortable symptoms”. He submits that the ordinary reasonable reader would not be aware that the nasal valve collapse was an existing condition and would likely conclude, in the context of the Review as whole, that the “nasal valve collapse” had been caused by the failed rhinoplasty.
111. I do not agree.
112. In my view, the general impression conveyed by the Review to an ordinary reasonable reader was that the reference to the nasal valve collapse being “Another problem” was a reference to a “failure to fix” a pre-existing issue, rather than a “new problem” caused by the alleged “failed” rhinoplasty. I am satisfied that the ordinary reasonable reader would draw that implication from the use of the word “correct” in the statements that (a) “The septoplasty with Mr Callan was supposed to treat the nasal septum and correct it unfortunately that was not achieved”, and (b) the nasal valve collapse “was corrected only on one side as the attached pictures show”. The ordinary reasonable reader may engage in loose thinking, may read between the lines and may draw implications more freely than a lawyer but they do not search for hidden meanings and focus on sentences and words in isolation from the balance of a publication.

E.2.3. The fourth imputation

113. The fourth imputation alleged to be conveyed by the Review is in the following terms:

Peter Callan, a specialist plastic surgeon, ruined his patient Zachariah Chawk’s self-esteem and self-confidence by botching a rhinoplasty (Fourth Imputation)

114. Dr Callan submits that the Review conveyed the general impression that there was a connection between his conduct and the alleged “serious emotional impact” of the rhinoplasty on Mr Chawk.
115. I am satisfied that an imputation to the effect of the Fourth Imputation was conveyed to an ordinary reasonable reader of the Review. The heading refers to the “Emotional impact” of the procedure and it being “Severe”. It attributes that severe emotional impact to a “Failed Rhinoplasty” which is then identified in the text of the Review to have been performed by Dr Callan. The text of the Review includes the statement, “Not to mention the impact on self-esteem and self-confidence affecting nearly every aspect of my every day life”. In context, it is clear to the ordinary reasonable reader that the statement refers to the self-esteem and self-confidence of Mr Chawk and it is the rhinoplasty performed by Dr Callan that is the matter that has damaged Mr Chawk’s self-esteem and self-confidence.
116. Further, I am satisfied that the ordinary reasonable reader would draw the implication that an event that impacts a person’s self-esteem and self-confidence so much that it affects “nearly every aspect” of their “every day life” had also “ruined” their self-esteem and self-confidence.

E.3. Are the imputations defamatory?

117. This is no longer in dispute. Mr Chawk now accepts that, if conveyed, the imputations are defamatory.

F. ISSUES 4-6 – DEFENCE OF CONTEXTUAL TRUTH

118. The defence of contextual truth was ultimately not pressed by Mr Chawk and, therefore, requires no consideration.

G. ISSUES 7-9 – DEFENCE OF HONEST OPINION

G.1. Section 31 of the Act

119. The defence of honest opinion was set out in s 31 of the Act, at the relevant time, as follows:

31 Defences of honest opinion
(1) It is a defence to the publication of defamatory matter if the defendant proves that—

(a) the matter was an expression of opinion of the defendant rather than a statement of fact, and

(b) the opinion related to a matter of public interest, and

(c) the opinion is based on proper material.

...

(4) A defence established under this section is defeated if, and only if, the plaintiff proves that—

(a) in the case of a defence under subsection (1)—the opinion was not honestly held by the defendant at the time the defamatory matter was published, or

(5) For the purposes of this section, an opinion is based on proper material if it is based on material that—

(a) is substantially true, or

(b) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law), or

(c) was published on an occasion that attracted the protection of a defence under this section or section 28 or 29.

(6) An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material.

120. To rely, therefore, on the defence of honest opinion under s 31(1) of the Act, a defendant must prove that (a) the matter was an expression of opinion rather than a statement of fact, (b) the opinion related to a matter of public interest, and (c) the opinion is based on proper material.
121. If a defence under s 31(1) is established, the onus shifts to the plaintiff to prove by way of defeasance that the opinion was not honestly held by the defendant at the time the defamatory material was published: s 31(4)(a) of the Act.

G.2. Was the Review an honest opinion?

G.2.1. Was the Review an expression of opinion or a statement of fact?

122. There are two matters within s 31(1)(a) of the Act which must first be addressed because they bear upon the determination of whether the Review was, in fact, an expression of opinion or a statement of fact.
123. First, s 31(1)(a) of the Act directs attention to whether the matter was an expression of opinion or a statement of fact.
124. Section 4 of the Act relevantly defines matter in the following terms:

matter includes—

(a) an article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical, and

(b) a program, report, advertisement or other thing communicated by means of television, radio, the Internet or any other form of electronic communication, and

(c) a letter, note or other writing, and
(d) a picture, gesture or oral utterance, and

(e) any other thing by means of which something may be communicated to a person.

125. As White J observed in Dutton v Bazzi [2021] FCA 1474 at [70] (reversed on appeal but not on this aspect), matter as defined in s 4 of the Act, suggests that the defamatory matter in s 31 of the Act is to be construed as a reference to the medium by which the defamatory imputation is conveyed rather than the defamatory imputation itself. In contrast, the common law defence of fair comment on a matter of public interest focusses on the defamatory meaning found to have been conveyed: Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; [2007] HCA 60 at [83] and [85] (Gummow, Hayne and Heydon JJ).
126. The relevant question, therefore, is whether the matter would have been understood by the ordinary reasonable reader to be an expression or opinion rather than a statement of fact. This question is necessarily contextual and requires consideration of the meaning found to be conveyed in the matter but it is not constrained or dictated by their terms, so as to transform into a consideration as to how each imputation would be understood: Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15 at [131] (Lee J).
127. Second, the Act distinguishes between an expression of opinion and a statement of fact, however, an opinion is not defined in the Act.
128. An opinion has been understood to refer to “a deduction, inference, conclusion, criticism, judgment, remark, observation”: John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164 at [25] (Giles JA) citing Gatley on Libel and Slander, 10th ed, 2004, at [12.6]; State of New South Wales v IG Index plc (2007) 17 VR 87; [2007] VSCA 212 at [48] (Nettle JA); Stead at [128].
129. The distinction between facts and opinions can be elusive. As Giles JA stated in O’Shane at [27]:

There can not be a clear line between comment and statement of fact. Many defamatory words have elements of fact, conclusion from facts and expression of opinion. A characterisation must nonetheless be made, and the context and circumstances of the use of the words will be important.

130. Dr Callan submits that the Review is not an expression of opinion because (a) Mr Chawk is purporting to set out facts so that readers can make “an informed decision” – that is, he is the one informing them, by giving them the “facts” about Dr Callan, (b) Mr Chawk reinforces this in the third sentence in which he states “I regret to inform...”, and (c) Mr Chawk describes the alleged disappointing outcome of the rhinoplasty procedure as though it were a fact and asserts that the claims he is making are evidenced by the photographs in the Review by use of the language of “as the attached pictures show”.
131. I do not agree.
132. I accept that each of the matters relied upon by Dr Callan do not suggest any expression of opinion and rather purport to be an objective recitation of factual matters.
133. In my view, however, Dr Callan has not given sufficient attention to the context in which the matter was published and most critically, the “one star” rating. The review was published on a website that allowed patients to comment on their experiences with relevantly, plastic surgeons, and to provide a “star” rating from “one star” up to “five stars”. Objectively, the matter in that sense was inherently an expression of opinion. The allocation of a rating of one star at the conclusion of the Review would have readily been understood by the ordinary reasonable reader as “a deduction, inference, conclusion, criticism, judgment, remark or observation” that Mr Chawk had made from the facts stated or referred to by him in the body of the Review. The headline, “The Emotional impact of a Failed Rhinoplasty is Severe”, is also an expression of opinion. The imputations that I have found to be conveyed also reinforce my view that the ordinary reasonable reader would understand the Review as an opinion based on the facts asserted.
134. Dr Callan concedes that if the Review was conveyed as an expression of Mr Chawk’s opinion, it related to a matter of public interest, within the meaning of s 31(1)(b) of the Act.

G.2.2. Were expressions of opinion based on proper material?

135. Mr Chawk pleads that the expressions of opinion were “based on proper material” because the material was based on material that is substantially true: s 31(5)(a) of the Act.
136. Under s 31(6) of the Act, an opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material.
137. Mr Chawk relies on the following as “proper material”, within the meaning of s 31(5)(a) of the Act:

(a) The Applicant is a surgeon;

(b) The Applicant performed rhinoplasty and septoplasty revision surgery upon the First Respondent;

(c) The First Respondent had waited many years for the surgery;
(d) The First Respondent's septum was deviated to onside nose blockage;

(e) The surgery was to treat the First Respondent’s nasal septum and correct it, which did not occur, and further to treat the First Respondent's nasal valve collapse creating limited air flow and causing uncomfortable symptoms, which was only corrected on one side;

(f) The First Respondent now needs to find a surgeon who can achieve a better outcome from the surgery;

(g) The First Respondent had extra rib graft above his right rib;

(h) The photographs of the First Respondent's face and nose (as contained in the matter complained of).

138. Mr Chawk contends that all of this material was referred to in the Review and was substantially true. In the course of his closing submissions, counsel for Mr Chawk clarified that the reference in paragraph (d) to “onside nose blockage” reflected the wording in the Review but was intended to be a reference to “one side causing nose blockage”. Mr Chawk submits that he is best placed to give evidence of whether his breathing improved following the rhinoplasty performed by Dr Callan.
139. Dr Callan submits, and I accept, that the key material relied on by Mr Chawk as “proper material” is that contained in paragraphs (d) and (e).
140. Dr Callan submits that neither of these facts is substantially true. He submits that the deviation in Mr Chawk’s septum was not a significant functional issue affecting his breathing and the purpose of the rhinoplasty procedure was not to correct the deviated septum but rather, to correct the nasal valves. He submits that this objective was achieved because he achieved a substantial improvement in Mr Chawk’s nose, both aesthetically and functionally, and on both sides (albeit the improvement was more significant on one side). Further, Dr Callan submits that any expression of opinion to the effect that the surgery had “failed” could not reasonably be based on the remaining material if paragraphs (d) and (e) are not shown to be substantially true.
141. In my view, the material stated in paragraphs (d) and (e) cannot be shown to be substantially true.
142. I accept that Mr Chawk could be expected to give relatively reliable evidence as to the symptoms that he might have been experiencing, at least prior to the rhinoplasty. His evidence of his symptoms after the rhinoplasty, however, is difficult to reconcile with the objective evidence provided by the photographs taken by Dr Callan at the two post-operative consultations. I am satisfied that the photographs establish that it was the right nostril, not the left nostril that partially collapsed on forced inspiration. Mr Chawk was much less qualified or able to give reliable evidence of the medical conditions that might have caused those symptoms.
143. Mr Chawk’s evidence is also inconsistent with the contemporaneous medical records and the oral testimony of Dr Callan, Ms Callan and Ms Parsons concerning Mr Chawk’s consultations and medical procedures. It is readily apparent from the evidence that:

     (a) Mr Chawk was experiencing debilitating breathing difficulties at the time of his initial consultation with Dr Callan on 10 July 2020;

     (b) the nasoendoscopy performed on Mr Chawk by the ENT surgeon, Mr Watson, on 27 July 2020, confirmed that Mr Chawk’s septum deviation was not obstructing his airways;

     (c) the aim of the rhinoplasty performed by Dr Callan was to address the almost total collapse of Mr Chawk’s nostrils on forced inspiration and to improve the shape of his nose aesthetically; and

     (d) following the rhinoplasty procedure, there was an aesthetic improvement in the shape of Mr Chawk’s nose, his nostrils were significantly more open on both sides in a resting state and on inspiration, the right side nostril collapsed significantly less than it did pre-operatively, and there was no indication of any collapse in the left side nostril.

144. As the material in paragraphs (d) and (e), of the materials relied on by Mr Chawk as “proper material” under s 31(5)(a) of the Act have been shown to not be substantially true, the defence of honest opinion under s 31(1) of the Act, cannot succeed.

G.3. Defeasance of honest opinion

145. The defence of honest opinion under s 31(1) of the Act is defeated if, and only if, the plaintiff proves that the opinion was not honestly held by the defendant at the time the defamatory material was published: s 31(4)(a) of the Act.
146. I am satisfied that if Mr Chawk had, contrary to my finding above, established his defence of honest opinion, Dr Callan would have defeated the defence under s 31(4)(a) of the Act.
147. Dr Callan submits that s 31(4)(a) of the Act is satisfied because the evidence establishes that Mr Chawk was told by Dr Callan, before undergoing the rhinoplasty procedure, that (a) although Mr Chawk’s septum was deviated, it was not causing significant obstruction, (b) most of Mr Chawk’s functional problems were at the external valve, related to the collapse of his nostrils on inspiration, rather than with the internal structures of the nose, (c) the possibility of ongoing asymmetry and nasal valve collapse were risks of the surgery, and (d) Dr Callan could not guarantee the outcome of the surgery, and further revision surgery may be required.
148. Moreover, Dr Callan submits that Mr Chawk must have known that, while not perfect, his nostrils and, therefore, his breathing were significantly improved. Dr Callan submits that Mr Chawk was experiencing significant discomfort and distress due to breathing difficulties prior to the rhinoplasty performed by him.
149. I accept Dr Callan’s submissions in this regard. Further, I am satisfied that a comparison between the pre-operative and post-operative photographs, show discernible improvement.

H. ISSUES 10-11 – DEFENCE OF QUALIFIED PRIVILEGE

H.1. Section 30 of the Act

150. The defence of qualified privilege was set out in s 30 of the Act, at the relevant time, as follows:

30 Defence of qualified privilege for provision of certain information
(1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that—

(a) the recipient has an interest or apparent interest in having information on some subject, and

(b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and

(c) the conduct of the defendant in publishing that matter is reasonable in the circumstances.

(2) For the purposes of subsection (1), a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest.
(3) In determining for the purposes of subsection (1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, a court may take into account—

(a) the extent to which the matter published is of public interest, and

(b) the extent to which the matter published relates to the performance of the public functions or activities of the person, and

(c) the seriousness of any defamatory imputation carried by the matter published, and

(d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, and

(e) whether it was in the public interest in the circumstances for the matter published to be published expeditiously, and

(f) the nature of the business environment in which the defendant operates, and

(g) the sources of the information in the matter published and the integrity of those sources, and

(h) whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person, and

(i) any other steps taken to verify the information in the matter published, and

(j) any other circumstances that the court considers relevant.

151. If the defence of qualified privilege under s 30(1) of the Act is established by a defendant, the onus shifts to the plaintiff to prove by way of defeasance that the publication of the defamatory matter was actuated by malice: s 30(4) of the Act. The defence will not be defeated merely because the defamatory matter was published for reward: s 30(5) of the Act.

H.2. Did Mr Chawk act reasonably in publishing the Review?

152. Dr Callan has conceded the first two elements of the defence of qualified privilege under
     s 30(1)(a) and s 30(1)(b) of the Act.
153. It remains for Mr Chawk to prove that his conduct in publishing the Review was reasonable in the circumstances: s 30(1)(c) of the Act.
154. Section 30(3) of the Act sets out a list of factors that the Court may take into account in determining reasonableness. The list of factors should not be approached inflexibly as it is neither exhaustive, nor mandatory: see Rush v Nationwide News Pty Ltd [2018] FCA 357 at [139] (Wigney J); see also Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52 at [30] (Gleeson CJ and Gummow J).
155. As a general rule, a defendant’s conduct in publishing a defamatory matter will be reasonable if the defendant had reasonable grounds for believing the imputations to be true, took proper steps reasonably open to them to verify the accuracy of the material and did not believe the imputation to be untrue: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25 at 574 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ). In most cases, the more serious the imputation that is conveyed, the greater the obligation on the defendant to ensure that its conduct in relation to the publication was reasonable: Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185 at [109] (Wigney J), citing Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374 at 387C (Hunt A-JA, with Samuels JA agreeing).
156. Generally, the conduct of the defendant, will not be reasonable unless the defendant sought a response from the person defamed and published any response made, except when it is not practicable or unnecessary to seek a response: Lange at 574, citing Stephens v West Australian Newspapers Limited (1994) 182 CLR 211; [1994] HCA 45 at 252-253 (Brennan J); see also Herron v HarperCollins Publishers Australia Pty Ltd (2022) 292 FCR 336; [2022] FCAFC 68 at [188]- [192] (Rares J, Wigney and Lee JJ agreeing).
157. Mr Chawk submits that (a) the defence of qualified privilege gives rise to public policy issues about what a zone of protected communication is and how that zone of protected communication might be lost, (b) in assessing the reasonableness of the publication in this case, it is necessary to have regard to the relative lack of sophistication of those posting comments about matters of a deeply personal nature on the RealSelf website, and (c) the language used in the Review was “highly moderate”.
158. In my view, Mr Chawk has not established that his conduct in publishing the Review was reasonable within the meaning of s 30(1)(c) of the Act.
159. First, it can be accepted that issues might arise when people are posting reviews of their personal experiences with doctors on review sites on the internet. Dr Callan readily agreed that subscribers to the RealSelf website had an interest or apparent interest in having information on the outcome of Mr Chawk’s rhinoplasty procedure and the Review was published to them in the course of giving them information on that subject. So much was clear from the fact that only subscribers with log in details to the RealSelf website could access the Review and that the primary purpose of the RealSelf website was to inform prospective patients about plastic surgeons, including those performing rhinoplasties. Establishing the existence of an interest or apparent interest in receiving information on an issue, however, is not sufficient to establish that a publication was reasonable within the meaning of s 30(1)(c) of the Act.
160. Second, I am not satisfied that Mr Chawk established that he believed the imputations in the Review to be true. Most significantly, as I have found above at [47], Dr Callan did not make any promises to Mr Chawk that the rhinoplasty procedure would be successful. The post-operative consultations also revealed that Mr Chawk’s breathing had been improved, as had the appearance of his nose. Mr Chawk did not seek to adduce any evidence that he was suffering in the way described in the Review. At the time the Review was posted, it can be accepted that Mr Chawk honestly believed that the rhinoplasty had not achieved the outcome that he had hoped for. The existence of such a belief does not establish that he believed in the truth of the content of the Review given (a) the absence of any promise by Dr Callan that the rhinoplasty procedure would be successful, (b) the advice given to him as to the likely need for revision surgery and (c) the nature of the specific issues to be addressed by the surgery.
161. In my view, a failure to prove belief in the truth of the content of the Review is a significant factor weighing against a finding of reasonableness.
162. Third, contrary to Mr Chawk’s submissions, the language of the Review could not fairly be characterised as “highly moderate”. I accept, however, that the Review is largely devoid of emotive language and attempts to convey information to readers within an objective factual framework. The Review does contain some hyperbole, such as Mr Chawk’s claims that (a) he “invested much hope” in the surgery, (b) the impact of the surgery on his self-esteem and self-confidence is alleged to affect “nearly every aspect of my every day life”, and (c) the Review is stated “to stand” until the deviated nasal septum and nasal valve collapse “magically fix themselves”. The emotive character of these statements is somewhat diminished by the more moderate but targeted language of helping readers “make an informed decision”, the “regret to inform” readers that he had been left with a “disappointing outcome” and the “additional challenge” of finding a surgeon who could help him “achieve a better outcome”.
163. Fourth, Mr Chawk failed to inform readers of the Review that he had not even raised a complaint with Dr Callan before posting the Review. The Review included a reference to “the additional challenge of finding a surgeon who feels confident that they can help me to achieve a better outcome” The ordinary reasonable reader would likely assume from this statement that Dr Callan had either informed Mr Chawk that he was not confident that he could rectify Mr Chawk’s problems, or he had refused to do so. .
164. Fifth, at no time after 10 September 2020 did Mr Chawk raise his concerns with Dr Callan or give him an opportunity to respond to them before posting the Review in a public forum. This was inherently unreasonable, particularly because once the Review had been published, there was no practicable way in which Dr Callan could respond substantively to the Review, because he was constrained by obligations of patient confidentiality.
165. It is no answer to the lack of any approach to Dr Callan that Mr Chawk was best placed to determine the outcome of the rhinoplasty performed by Dr Callan and the impact on his general well-being and self-confidence. The sting in the Review was not simply that the operation had not corrected the deviated septum and only partly corrected the collapsed nasal valves. Rather, it was the negligent failure, or at best, inability of Dr Callan to deliver the “promised” outcomes. That allegation necessarily called for an explanation from Dr Callan to address matters such as the significance of Mr Chawk’s pre-existing difficulties prior to the rhinoplasty and the precise nature and implications of the explanations given by Dr Callan to Mr Chawk as to the likely results of the rhinoplasty. Mr Chawk held Dr Callan responsible for a surgical procedure that had not or only partly corrected existing conditions without giving Dr Callan any opportunity to explain why the apprehended result had not been achieved. This weighs strongly against a finding that the conduct of Mr Chawk in publishing the Review was reasonable.

H.3. Defeasance of qualified privilege

166. If I am otherwise mistaken in concluding that Mr Chawk did not establish the defence of qualified privilege, I turn now to consider whether Dr Callan could defeat the defence by proving that the publication of the Review was actuated by malice under 30(4) of the Act.
167. The term malice is not defined in the Act. In Roberts v Bass (2002) 212 CLR 1; [2002] HCA 57 at [75] (Gaudron, McHugh and Gummow JJ), their Honours interpreted malice to refer to an “improper motive or purpose that induces the defendant to use the occasion of qualified privilege to defame the plaintiff”. At [76], their Honours expanded on the meaning of improper motive in the following terms:

Improper motive in making the defamatory publication must not be confused with the defendant's ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest for making the publication. If one of these matters is proved, it usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication. Indeed, proof that the defendant knew that a defamatory statement made on an occasion of qualified privilege was untrue is ordinarily conclusive evidence that the publication was actuated by an improper motive. But, leaving aside the special case of knowledge of falsity, mere proof of the defendant’s ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice...

168. Their Honours further stated at [104], that in order to prove that the publication of the matter complained of was actuated by malice, the plaintiff must prove that the relevant improper motive was the dominant motive for publication.
169. Mr Chawk submits that his conduct in publishing the Review was not actuated by malice. He submits that (a) the Review, on its face, commenced with the statement that it was “mainly to help someone suffering the same symptoms make an informed decision” and Mr Chawk was not challenged about this purpose in cross examination, (b) there was no suggestion that the photographs included in the Review were fabricated, (c) there was nothing underhand in the manner in which the Review was published, (d) there was no exaggerated falsehood, and (e) the language in the Review was deliberately moderated.
170. Dr Callan submits that the Court would be satisfied that Mr Chawk was actuated by malice in publishing the Review because he must have known what he wrote in the Review was untrue. Dr Callan relies on the same submissions that he made with respect to defeasance of the defence of honest opinion.
171. Knowledge of falsity might generally establish that a matter was published for an improper purpose or motive, but it does not invariably do so.
172. Websites providing for ratings of services provided by professionals and goods provided by suppliers are becoming increasingly ubiquitous. Inevitably, those websites will contain a proportion of negative and, at times, highly negative reviews and comments. Some are justified, some are not. The people posting reviews of services and goods supplied to them often have very different expectations and abilities to provide an objective assessment of the services or goods. It can be a very fine line between the posting of a negative review for the purpose of assisting other people in making informed choices and the posting of a negative review to harm the reputation of the person providing the service or the goods. In many cases, both motivations might be present.
173. The context in which the Review was published and the largely moderated language weigh against a finding of malice. The Review was posted on a website that provided for reviews by patients to assist people to make informed choices about the selection of plastic surgeons. The purpose of the posting of the Review was expressly stated in the first sentence to be to “mainly help someone suffering the same symptoms make an informed decision”.
174. I accept that the more emotive statements in the Review, in particular, Mr Chawk’s statement that the “this review is to stand” until his deviated nasal septum and nasal valve collapse “magically fix themselves”, are more difficult to reconcile with a motive of only seeking to assist other people making informed decisions.
175. On balance, however, I am not satisfied that any motive of Mr Chawk to harm Dr Callan by posting the Review was the dominant motive for its publication.

I. ISSUES 12-14 – RELIEF

I.1. Damages for non-economic loss – legal principles

176. Damage to the reputation of the defamed person is presumed and need not be specifically proved by the defamed person: Ratcliffe v Evans [1892] UKLawRpKQB 131; [1892] 2 QB 524 at 528-530 (Bowen LJ). In practice, the presumption of at least some damage is effectively irrebuttable: Jameel (Yousef) v Dow Jones & Co Inc [2005] EWCA Civ 75; [2005] QB 946 at [32] (Lord Phillips of Worth Matravers MR); Bristow v Adams [2012] NSWCA 166 at [20]- [31] (Basten JA).
177. The three purposes of an award of general damages are consolation for the personal distress and hurt cause to the defamed person, recompense for damage to personal and, if relevant, business reputation, and vindication of reputation: Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; [1993] HCA 31 at 60-61 (Mason CJ, Deane, Dawson and Gaudron JJ); Rogers at [60] (Hayne J, Gleeson CJ and Gummow J agreeing). The first two purposes are often considered together because they account for the wrong done to the appellant. The third purpose, vindication, looks to the attitudes of others: Carson at 60-61; see also Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [70]- [78]. As to vindication, the sum of the damages award should be “sufficient to convince a bystander of the baselessness of the charge”: Cassell & Co Ltd v Broome [1972] UKHL 3; [1972] AC 1027 at 1071 (Lord Hailsham of St. Marylebone L.C.); Ali at [75].
178. The reputation of the person defamed, the extent of the publication and the seriousness of the defamatory sting are relevant considerations in assessing damages: see Nationwide News Pty Limited v Rush [2020] FCAFC 115 (Nationwide News v Rush) at [387]-[393] (White, Gleeson and Wheelahan JJ); see also Bauer Media Pty Ltd & Anor v Wilson (No 2) [2018] VSCA 154; 56 VR 674 at [165] (Wilson J).
179. Allowance should also be made for the “grapevine effect” which recognises that the dissemination of defamatory material is rarely confined to those to whom it is immediately published, the tendency of the “poison” in the defamatory publications to “percolate through underground passages and contaminate hidden springs” or to be “driven underground” only later to emerge from their “lurking place”: Rush (No 7) at [786] (Wigney J) and the cases cited therein; Webster v Brewer (No 3) [2020] FCA 1343 at [44] (Gleeson J).
180. The Court is required by s 34 of the Act to ensure that there is an appropriate and rational relationship between the harm sustained and the amount of damages of awarded.
181. Pursuant to s 35 of the Act, damages are capped to an indexed amount, which is currently $459,000: Gazette No 250, 9 June 2023. The cap, as it applies to publications before 1 July 2021, does not require the Court to engage in a scaling exercise. Rather, it is merely a “cut off” amount: Cripps v Vakras [2014] VSC 279 at [599]- [609] per Kyrou J; Bauer at [199]-[215]; Rush (No 7) at [671]; Nationwide News v Rush at [442]-[466]. The Review was published prior to 1 July 2021. This is pertinent because the amendments in relation to damages under the Defamation Amendment Act 2020 (NSW) came into force after that date and are, therefore, not relevant: see Sch 4, cl 7.

I.2. Damages for non-economic loss – evidence

182. Counsel for Mr Chawk properly conceded, at the outset, that Dr Callan’s reputation was that of a highly regarded and successful plastic and reconstructive surgeon.
183. The evidence of Dr Callan’s character witnesses was unanimously to the same effect.
184. Dr Daniel Kennedy has known Dr Callan since 1990 and has had regular contact with him since that time through conferences and the Australian Society of Plastic Surgeons. Dr Kennedy stated that Dr Callan had an excellent reputation. He said that Dr Callan was highly respected by the council of their professional society, and that he had international colleagues who held Dr Callan in high esteem, including the author of a text called the Encyclopedia of Plastic Surgery.
185. Dr Howard Webster has known Dr Callan since 1989. He has had regular contact with him since that time, both on a personal level and professionally, including through the National Society of Plastic Surgery. He testified to Dr Callan’s good reputation in the field. He noted, in particular, his contact over the last 10 to 20 years with surgeons who have trained with Dr Callan and who speak highly of him.
186. Dr George Marcells has known Dr Callan for the past 15 years, mainly through professional conferences. He said that Dr Callan has always had a reputation as an excellent surgeon and was very well regarded. He noted that Dr Callan often presented the results of his patients at professional conferences, and it was these impressive results which caused him to be regarded as having a level of expertise above that of normal surgeons.
187. Dr Richard Harvey has known Dr Callan for about 10 years and stays in contact with him regularly through conferences and events of their professional society. He said that Dr Callan was regarded as a benevolent, thoughtful, meticulous and self-reflective surgeon. He said he was regarded as someone who strived to get excellent results for his patients and to do the best by them. He said that Dr Callan is regarded as a leader in surgical training and is highly regarded by his trainees.
188. Ms Parsons has worked with Dr Callan for the past 5 years. She said that he “has always been well-regarded”, “has got a very strong reputation” and was well-known for his professionalism and knowledge.
189. Damage to reputation is presumed, as noted above, and that presumption is effectively irrebuttable. There is also some direct evidence of damage to Dr Callan’s reputation in the form of three comments posted on the Review by other RealSelf users. For example, in a comment posted on 17 October 2020 the writer stated “Thank you for letting us know about this incompetent surgeon!! I will spread the word!”.
190. The Court heard evidence about the hurt feelings experienced by Dr Callan from a number of the witnesses, and also from Dr Callan himself.
191. Dr Callan gave the following evidence:

I can still remember how I felt. It was like my heart started thumping. I get a - like, a rush of hot feeling all over. A deep feeling of - in here in my chest, just, like, a dread feeling type thing. Very uncomfortable feeling. And, like, incomprehensible feeling.

192. He said the following in relation to Mr Chawk’s rating of one star out of five:

Well, given that’s as low as you can get, and given the type of review it was, I was - I didn’t understand it. I couldn't understand how that could be or why that would happen. We had certainly done what I thought was a very good operation, and everything, to me, was travelling as expected after surgery.

193. Ms Callan was present when Dr Callan first read the Review. She explained that when Dr Callan gets stressed or overwhelmed, he goes silent. Ms Callan gave evidence that when Dr Callan read the Review, he did not say anything, but she could tell that he was rattled and disturbed. She said that Dr Callan was in a bit of shock, thinking “Where did this come from?” and “What happened?”, because there was no lead up to the publication. She stated that Mr Chawk had seemed happy when they last spoke to him.
194. Dr Webster spoke to Dr Callan about the Review over a telephone call. Dr Webster said it was obvious to him that Dr Callan was “pretty bothered by it at the time”, even though he described Dr Callan as a person who generally does not display a lot of emotion. He recalled Dr Callan saying words like “it’s terrible” and “it’s upsetting”.
195. Dr Marcells also spoke to Dr Callan about the Review. Dr Callan told Dr Marcells how distressed he was about the Review, and that he could not understand why his patient had written such a poor review. He was worried that it might have a deleterious effect on his practice. He seemed distressed and hurt by it.
196. Ms Parsons said that when he read the Review, Dr Callan was “shook” and “very surprised”. She had a recollection of him being “baffled” for the rest of the day. Like Ms Callan, she commented on how “he doesn't talk a lot when he has got a lot on his mind”.
197. Dr Callan’s own evidence about his personal distress and hurt was relatively understated, as indeed was the evidence of the other witnesses describing his distress and hurt feelings. Dr Callan submits that this is not a reason to conclude that his hurt was not significant. Dr Webster testified that Dr Callan is a person who tends not to display a lot of emotion. In Tribe v Simmons (No 2) [2021] FCA 1164 at [15], Lee J observed that one of the reasons why he found the applicant’s evidence compelling was that he was stoic and did not seek to “gild the lily” or overstate his reaction. Dr Callan submits that this Court would have the same impression of his evidence, and that of the other witnesses about his reaction to the publication of the Review.

I.3. Aggravated damages

198. An award of aggravated damages may be made where the respondents’ conduct towards the applicant is found to have been improper, unjustifiable or lacking in bona fides: Triggell v Pheeney (1951) 82 CLR 497; [1951] HCA 23 at 514 (Dixon, Williams, Webb and Kitto JJ); Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 497 (Hunt J); Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 74-5 (Hunt J); Rush (No 7) at [721]-[727]; Hanson-Young v Leyonhjelm (No 4) [2019] FCA 1981 at [245]- [248] (White J).
199. If the Court is satisfied that an award of aggravated damages should be made, the statutory cap is inapplicable: Bauer at [249]; Rush (No 7) at [671]-[672]; Nationwide News v Rush at [442]-[468]. As explained above at [181], the Review was published prior to 1 July 2021 and, therefore, the amendments in relation to damages under the Act and which have the effect of reversing the decision in Bauer, do not apply to this proceeding.
200. Circumstances of aggravation can be found in a respondent’s conduct from the date of publication up until the date of judgment: Cassell at 1071; Rush (No 7) at [723]. In particular, a respondent’s conduct during the litigation can provide the basis for an award of aggravated damages: Harbour Radio Pty Ltd v Tingle [2001] NSWCA 194 at [8] (Meagher JA), [16]-[34] (Beazley JA), [39]-[41] (Davies AJA); Rush (No 7) at [727].
201. Dr Callan submits that the factors in this case that justify an award of aggravated damages include Mr Chawk’s conduct by (a) ignoring all of Dr Callan’s pre-litigation correspondence in relation to the Review, noting the possibility that litigation might have been avoided if Mr Chawk responded to Dr Callan, (b) refusing to apologise for the Review, (c) leaving the Review online until the mediation which took place in November 2021, when it was quietly taken down, and (d) Mr Chawk’s conduct persisting to advance hopeless defences, particularly the defences of contextual truth and honest opinion, in the face of a wealth of contemporaneous documentary evidence which wholly contradicts those defences.
202. In my view, the matters relied upon by Dr Callan are not sufficient to give rise to an award of aggravated damages in this case.
203. First, in my view, failures to respond to pre-litigation correspondence, leaving the Review online until the mediation and refusing to apologise, do not, in and of themselves, justify findings that the conduct of the publisher was improper, unjustifiable or lacking in bona fides.
204. Second, vigorously pursuing ultimately unsuccessful defences of truth may well provide a basis for an award of aggravated damages. The same cannot, however, be said for Mr Chawk’s pursuit of subjective defences such as honest opinion. Nor, at least in the present case, does pressing a defence of contextual truth based on contextual imputations that, appeared on their face, to be no more defamatory than the pleaded imputations, provide a compelling reason to award aggravated damages.

I.4. Comparable damages awards

205. It has been said that in determining damages in defamation cases there is no useful purpose in going through individual cases in order to identify where there are similarities and where there are differences: Tribe at [48] (Lee J). Those remarks were endorsed by Jagot J in Colagrande v Kim at [66] in which her Honour observed that “each case is as fact-specific as human ingenuity permits”. Nevertheless, in fixing a sum for damages, including aggravated damages in Tribe in an amount of $550,000, Lee J ultimately stated at [50] that he considered the sum was appropriate, having regard to comparable cases.
206. Dr Callan has identified the following cases involving defamation by internet or social media. Ms Chrysanthou SC who appeared for Dr Callan accepted, however, that the cases are not particularly helpful and that the amount of damages for a particular publication will ultimately turn on the circumstances of the publication and the harm suffered by each person.

     (a) In Colagrande v Kim, a surgeon was awarded $420,000, including aggravated damages, for a two-line review of a doctor on a doctor rating website, including a link to a news article, which alleged that the surgeon had sexually assaulted a patient.

     (b) In Thunder Studios Inc (California) v Kazal (No 12) [2022] FCA 110, an Australian businessman was awarded $1,350,000, including aggravated damages and interest, in respect of two ongoing internet publications on a website that conveyed imputations that he had breached fiduciary duties, that he so lacked in integrity to pay a journalist to publish invented lies and that he attempted to pervert the course of justice.

     (c) In Tribe, the brother of a famous basketball player was awarded $550,000, including aggravated damages, for serious allegations of sexual assault and molestation of his half-sister (a minor), and causing her mental and permanent physical injury, in three “tweets” on Twitter, where the actual extent of publication was unknown.

     (d) In Nettle v Cruse [2021] FCA 935, a plastic surgeon was awarded $450,000, including aggravated damages, in an undefended hearing for internet publications alleging fraud and medical malpractice.

     (e) In Webster, a politician who was also a doctor, her doctor husband and a charity for women were defamed in seven Facebook written and video posts alleging they were participants in a secretive criminal network involved in the sexual abuse of children. The politician was awarded $350,000, including aggravated damages, her husband was awarded $200,000, including aggravated damages, and the charity was awarded $300,000.

     (f) In Tavakoli v Imisides (No 4) [2019] NSWSC 717, a plastic surgeon was awarded $530,000, including aggravated damages and interest, for imputations of incompetence and cruelty in a Google review.

     (g) In Al Muderis v Duncan (No 3) [2017] NSWSC 726, a surgeon was awarded $381,000 in general damages and an additional $99,000 in aggravated damages for imputations of medical malpractice, cruelty and fraud on five internet publications. The actual extent of publication on the evidence was unknown.

I.5. Damages to be awarded

207. Mr Chawk submits that Dr Callan has greatly exaggerated the effect of the publication on him. He submits that the premise of Dr Callan’s case, that the complaint by a single client of a bad outcome is highly hurtful to him, is not credible. Mr Chawk submits, in this regard, that (a) Dr Callan could easily have quashed the review with “informed counter-posts”, and (b) Dr Callan presumably has “many hundreds of satisfied patients”. Mr Chawk submits that the expense of the trial is a function of Dr Callan “trying in vain to prove malice and defeat the conceded prima facie existence of qualified privilege”.
208. In my view, an award of damages in an amount of $50,000 is sufficient consolation for hurt feelings, recompense for damage to reputation and vindication. The sum provides an appropriate and rational relationship between the harm sustained and the amount of damages awarded. I have come to that view for the following reasons.
209. First, the publication of a review on a ratings website for plastic surgeons to assist prospective patients in selecting plastic surgeons to undertake highly personal, expensive and often confronting surgery, self-evidently, has the potential to cause distress and hurt to a plastic surgeon and damage their professional reputation. A negative review to the effect that a plastic surgeon failed to correct a nasal valve collapse and a deviated septum, contrary to what they had represented to the patient, constituted a material attack on the professional competence of the plastic surgeon. I do not accept that Dr Callan could have made “informed counter-posts” given doctor-patient confidentiality issues and the success that Dr Callan had otherwise achieved with patients would only intensify the hurt and distress to him of the publication of the inaccurate Review.
210. Second, the imputations that I have found to have been conveyed were serious but less serious than the Third Imputation. A negligent failure to correct a deviated septum is materially less serious than causing a debilitating nasal valve collapse. I accept that Dr Callan was hurt by the attack on his professional reputation but, ultimately, there was no suggestion that it had affected his ability to practice. Nor was there any evidence of significant enduring emotional distress or harm beyond his initial and understandable distress when he first read the Review. Further, Dr Callan has not advanced any tangible evidence of damage to his reputation. Each of the character witnesses relied upon by Dr Callan spoke highly of his character and none suggested their view of Dr Callan’s professional reputation had been diminished by the publication of the Review. In my view, an award of damages necessary to vindicate the reputation of an otherwise highly regarded plastic surgeon in the wake of an ill-informed but relatively restrained review on a website from a single disappointed patient, is comparatively modest.
211. Third, the imputations alleged by Dr Callan and that I have found to have been conveyed by the Review, were limited to allegations of negligence and incompetence with respect to a single rhinoplasty procedure. The imputations were not imputations to the effect that he was an incompetent or negligent plastic surgeon.
212. Fourth, given that only registered users with a log in could access Dr Callan’s profile on the RealSelf website and read the Review, the potential for wider dissemination of the defamatory matter was significantly reduced.
213. Fifth, the cases involving defamation by internet or social media identified by Dr Callan provide little assistance given the comparatively more serious imputations found to have been conveyed in those cases and the likely extent of publication. The defamatory imputations that I have found in the present case, are materially less egregious. They do not involve malpractice, fraud, cruelty, sexual abuse of children, participation in a criminal network or perversion of the course of justice. Further, although the actual extent of publication in many of the cases could not be determined the defamatory matter appeared to be accessible to all internet users, it was not restricted to registered users with log in details.

J. DISPOSITION

214. Orders for damages for non-economic loss will be made, together with interest. Mr Chawk is to pay Dr Callan’s costs.

Associate:

Dated: 3 August 2023

ANNEXURE A

ANNEXURE B