So b basically made a fb page against an ex employer https://www.facebook.com/pages/Total-Energy-Systems-Queensla…
Now he is claiming defimation and says next week his lawyer will contact me
If i only wrote the truth can i get in trouble
Defamation case against me
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Apathy of the LSC is a perfectly valid reason as to why people can and should discuss legal matters and seek legal advice from laypeople. hah!
The LSC I think would:
-look at the effect of the advice on the person receiving it
-determine if there is enough to make the case that a person not qualified to give legal advice is in effect, giving legal advice
-determine if it is in the public interest to pursue a case against the unqualified legal advisorHaving said all that, Lysander is still correct in asserting that the best place to go is a community legal centre or a solicitor.
Lawyers are the ones that are the experts in giving advice on legal matters, they have a fiduciary duty to the client, and of course, they also must ensure that their advice is correct. Not only that, they have to hold up to professional standards to ensure that they keep their practising certificate.I think that legal 'opinions' and 'advice' in the way that gnarly construes it is a construct that can easily be dismantled by any judge who is grump enough. There's quite a risk/reward scenario here whereby the more catastrophic the advice, then the more scrutiny the layperson giving legal 'advice' will be under. This is no fun for anyone. But hey, we probably shouldn't be violating gnarly's right to free speech ;)
There has been no legal advice given within this thread. 'University hypotheticals aside', people have talked about the law, no-one has given the OP a legal direction. Such an example would be if the OP got served and was asking for advice: So since you've been served this is how you should proceed if you are representing yourself. You have 28 days to avoid default, now you should proceed by filing a notice of intention to defend (following rules 135, 137 of the UCPR, form 6) and you have to attach your defence (rule 139, form 17 etc), then you need to organised your submissions with your pleas on them with the aformentioned defence. If your statements are true in substance, you must give your argument credence by using (Polly Peck plc v Trelford [1986] QB 1000) which laid down the principle that the defendant must justify each imputation pleaded by the plaintiff). That's unless the plaintiff argued a common sting approach then you dont' really have to do this… but I haven't seen the application by the plaintiff because it doesn't exist because this is hypothetical…etc etc etc…
Legal advice and legal information is like the whole 'that's racist' thing. Nobody really knows what it is but they love to argue it passionately. I generally don't divulge to someone how to do something because I don't get paid for it and people are scabby like that, but there's a difference between outlining the above to someone and more and you know talking about what the law generally is.
Sure the LSC is meant to uphold a professional standard, but that is in regards to upholding standards of people in the profession! Otherwise they must have a massive backlog of people they need to pursue especially hearing say some of the parking fine defences I've heard. I like the unconstitutional arguments the best, usually read off some forum. Magistrate gets' pretty mad and his bad mood usually reflects on the others waiting their turn in front of the court
And would people not be justified in assuming you are qualified as you are dispensing legal advice? How do they know you are not qualified? Therefore, they must assume you are qualified and that is what gets you in hot water.
Cannot compare legal advice with other advice but I am sure that other professions also have regulatory provisions.Just to clarify, if you talk to your friend who definitely knows you are not a lawyer but an electrician etc. then a talk in private might be OK but if it someone you met and you give legal advice that person might assume you are legally qualified and you could get in trouble.
Same with your wife - I assume she knows your qualifications hence she won't assume you are legally qualified.Seriously, I don't understand why people who are not qualified are so keen on giving legal advice.
The safest bet is: unless you are qualified, just don't give advice."And would people not be justified in assuming you are qualified as you are dispensing legal advice?"
In both a general sense, and in these specific circumstances, that's ridiculous. Ask anyone what their opinion is on some random medical issue, such as food allergies, vaccinations, depression, etc.; and they will usually be happy to give you their opinion on it. At least more often than not. People like to share their opinions, that's what normal humans do. No one assumes that just because someone 'dares' to venture an opinion on something/give advice on something, that they must be formally qualified in that field.
"How do they know you are not qualified?"
You mean re this specific occasion (i.e. re me/in this particular thread)? Did you see the bit of one of my previous entries three days ago (see above; on the day the post was created) that reads:
"But I will insert the rather humourous acronym I just learned today in this thread here: IANAL"?
"Therefore, they must assume you are qualified and that is what gets you in hot water."
I've kind of addressed this already, but I may as well make it clear that I think this is a ludicrous statement. If someone gives you advice on your network set-up, is it so that they 'must assume' that you have an IT degree? If someone gives you medical advice, is it so that they 'must assume' that you have a medical degree? If someone gives you advice on a plumbing problem you're having, is it so that they 'must assume' that you have done a plumbing apprenticeship?
Of course not. Why do you suppose that law is different/some 'special privilege' should apply in the field of law? Surely you don't believe that unqualified legal advice can be more dangerous than, say, unqualified advice about electrical systems/circuits, psychological disorders, child-care, etc.?"Cannot compare legal advice with other advice but I am sure that other professions also have regulatory provisions."
As I've alluded to already in a previous entry in this thread, of course there are such provisions in other professions; but no profession is so deluded as to expect non-qualified people not to offer others their advice on things they are not officially qualified in, when prompted to do so. Suggesting that that is or even should be the case, is just plain naive. Re other professions, the provisions relate to charging people money when you're unqualified to actually physically performing a certain job (i.e. you don't have the right ticket re trades, etc.), or misrepresenting yourself as qualified when you are not (re for example, medical advice; so deception is involved), and the like. Not mere advice/opinion offered in response to a question or prompt. You seem to be suggesting that no one should be 'allowed' to provide advice in any field they are not officially qualified in, to anyone else. Not only is this simply unrealistic and counter to human nature; but it could also be construed as a pompous/somewhat 'elitist' stance. I'm not saying you are either of those things, I'm just telling you that that is how quite a bit of what you are saying is coming across to me, and therefore it will be the same for at least some others.
"Seriously, I don't understand why people who are not qualified are so keen on giving legal advice."
Frankly, again this sounds kind of deluded/somewhat unworldly, and a bit elitist, mixed with an ironic touch of personal insecurity. Please believe me when I say I'm certainly not trying to offend you there, but you yourself have opened this topic wide up for discussion here, so I am responding to your prompts, completely uncensored. Your stated lack of ability to "understand" why, suggests that you do not quite appreciate that many out there just like to help, or at least offer their opinions/share their knowledge; qualified or not, free of charge. And society generally holds that there is nothing wrong with that; provided there is no misrepresentation.
"The safest bet is: unless you are qualified, just don't give advice."
Hmmm. If you want to avoid getting run over by a car, the "safest bet" is to live out your days as a hermit, in a forest. If you want to avoid mosquito bites, the "safest bet" is to live out your days under a mosquito net. If you want to avoid ever being offended in an online forum, the "safest bet" is simply to never even visit one. If you want to avoid your children ever getting an illness or feeling sad, the "safest bet" is simply not to have any.
Do you get my point on this? What the "safest bet" is, is essentially irrelevant 99.9% of the time. Life is a constant play-off, between actual risk, and actual benefit/enjoyment of life/human nature. In a related point, you have repeatedly suggested that the QL law society or whatever it is called routinely trawls the internet looking to identify peeps dishing out unqualified legal advice in online chat forums; the implication being that they then 'go after them'. I'm gonna 'call shenanigans' on this, and invite you to prove me wrong; so how many peeps without a law degree who've provided advice on a potentially legal matter in a public online forum in Australia have been successfully sued by an aggrieved party for doing so? Ever?You're giving this 'not giving legal advice' thing much more clout in this thread that it really needs. It would be an issue if someone opened up a business purporting to be a lawyer, making any sort of representations as a lawyer - like offering cut-price legal ADVICE to the public and advertising as a 'legal expert'.
What you assume people assume is irrelevant, it's an internet forum! I could very well work at the LSC wearing a stupid tie and bad frames like pretty much every guy there. You could assume I drink goon at the bus stop in the evenings and sleep on the empty blown up bag (sometimes I mix it with tang orange powder - I call it goon-tang); you could assume I am a vagrant walking the streets spitting rhymes waxing legal rhetoric - anyone can talk law. Your hypothetical electrician/wife examples and you're 'seriously guys you're gonna get in twwouble' are a poignant display of your lack of legal nous let alone common sense. Maybe you're studying some law subjects. A law degree is like a creative writing degree, practising it is different.
"Hey your honour, I received what I constitute was legal ADVICE from a forum called ozbargain because some members sounded so 'legal-like' because they spouted some case names explaining the pillars on the tort of defamation …" (now imagine if someone had an avatar of a lawyer! WHAT A MISREPRESENTATION!) - I'm sure your learned friends and the judge would contact the LSC gestapo on the lawyerphone thusly! They need to instigate proceedings against the heretics that threaten the sanctity of the writings contained in the scrolls of LEGAL ADVICE with haste and fervour!!!
See what I did there? You're being insufferable. Anyone can talk the law, it's called 'legal INFORMATION'. Legal advice is advising how someone should proceed with such actions. No-one has told the OP what he should do with the specificity and rigour an actual lawyer would do, nor has anyone acted on the OP's behalf, nor has anyone signed any disclosures.
Now I wasted all this time writing this when I could have been on another forum outlining to another user a DIY guide to give your wife a boob job in your own backyard! BUT I'M NOT A SURGEON!
Look, if I follow your argument logic I could say that movie downloading is OK as everyone does and there have been few, if any, legal actions against people. Just because nothing is done by the companies at the moment or one does not get caught does not make it legal. Also, it does not mean that people will be left alone in the future.
You want proof: see the Dallas Buyers Club case (vs iiNet) currently in the courts. If they win, people will be pursued where they have not been pursued before.
Also, the majority of legal issue do NOT hit the court but are settled outside of court as otherwise the legal system would collapse (it is near to doing that anyway but that is a different discussion). Therefore, you would not even know unless you have been involved in such a settlement (I have been involved in one where a uni officer dispensed legal advice - at the end the woman cried and I am pretty sure she learned her lesson after paying a penalty and losing her job over it)
Furthermore, it is fine to argue that nobody has been pursued but I can guarantee that the person who is the first to be penalised will suddenly have a different opinion about it.Also, giving legal advice is different from giving advice on other matters as wring advice can have grave consequences. Medical advice is similar - and yes, there have been cases when holistic practitioners told parents that their child does not need chemotherapy but holistic and herbal medicine, and the parents relied on it. When the child subsequently died, the parents were done for manslaughter and so was the practitioner as he was not medically qualified.
If somebody gives you incorrect family law advice, and as a result you lose your parental right, I am sure you will not be so generous in your assessment anymore.
Regarding your example, in certain circumstances, the answer would be yes. If you have a child that gets bullied, gets depression etc. from being online on certain sites, the answer is indeed to not be on those sites.
If both parents have a genital disease, and the chances are 80% the child gets the disease but worse as it gets it from both parents, then yes, the answer will often be to avoid having children altogether until a cure is found.
If I am afraid of heights and always faint, yes, the answer is to avoid heights.
While I get your point there are many exceptions. What I do not understand - where is your benefit of giving legal advice when (a) it could be left to people like RolandWaites who are legally qualified, and (b) there is a risk that wrong legal advice could make the situation worse? Can you please elaborate on the benefit/enjoyment aspect, especially if you are not %100 certain your advice is correct and hence will effect a positive change?I guess as long as one does not get caught everything is fine - however, that does not necessarily make it legal.
But we can just agree to disagree. If I knew you personally I would advise you (as a friend and lawyer) to not give out any advice, especially in public, that could be construed as legal advice. Whether you take it or not is up to you.
I know quite a few people whose friendship got destroyed through things like that so in my experience it is not uncommon (and yes, one person was in fact pursued by the regulatory body and fined).
That is the end of the matter for me as from tomorrow onwards I have to deal with real cases and do my best to make a living while providing also some free work to the disadvantaged and poor. I cannot force anybody to listen to or act in accordance to what I say - all I can do is provide the information but the choice is the other person's.Your last two lines reveal everything about you. Maybe consider a brain job, too. Thanks for sharing. Ha, ha, ha.
I guess you are one of the people that thinks the internet is law-free space, where people can do everything and say everything without consequence. The rising number of legal questions on OZ shows you are wrong (people getting sued for websites, defamation, trademark infringement).
But anyway, I am sure that you will eventually end up in a court unless attitude adjustment occurs.
Have a great Monday.I am in court a lot. That happens when you practice law. Wouldn't call it a 'brain job' though
@Lysander:
Ah Lys, kudos for responding if your response is actually genuine, but TBH I’m beginning to suspect that you’re just pulling our legs for your own amusement. You seem to be either blatantly pretending not to understand relatively simple points I am making, or you genuinely don’t understand them. If the latter is the case, then I doubt that you could actually be qualified in the capacity you claim to be.Example 1: I asked you to cite even a single case where there’s been a successful prosecution of someone giving free/unqualified legal advice in an online forum; in order to lend at least a scrap of legitimacy to the ‘issue’ you seem intent on spreading fear about on this site, in your (self-proclaimed) capacity as a legal professional… and your response is an abstract digression about downloading movies, and a bizarre allusion to a case ‘against’ iiNET (which actually, is a request that they hand over information, not a quest for damages, yes?); on which no judgement is even close? Do you really think this is relevant to the matter we were discussing?
Example 2: I allude to the fact that dodgy advice on such things as electrical circuits, vaccination, etc. could result in death, and your response to that is “… giving legal advice is different from giving advice on other matters as wrong advice can have grave consequences.” So I’m naturally left wondering if you’re just pretending you’ve missed the point entirely, or whether you genuinely have.
Example 3: Re your ‘advice’ (or scare-mongering/ whatever OzB users may ultimately deem it to be given your subsequent contributions on the matter) to the OzB community that "The safest bet is: unless you are qualified, just don't give advice", I point out to you that the fact that a certain course of action represents “the safest course of action” is essentially meaningless, because the “safest bet” is usually far removed from the everyday reality that is the real world. I generate some obviously farcical examples of “the safest bet” in various situations, to illustrate this point. Your response to this is to (I suspect pretend to?) take the examples seriously, and deviate even further from your initial ‘point’ (which I can by now scarcely remember), into discussion of children being bullied visiting websites, parents with genital diseases etc… a quirky read, but nothing to do with the subject at hand…
Example 4: Particularly, that ‘somewhat questionable/odd’ (to be polite) paragraph where you specifically mention “RolandWaites” leads me to believe that perhaps you are not what/who you purport to be, and may just be having a laugh. I mean, why mention another entity, person or specific company, at this point when it is clear that you are failing to garner the endearment of the OzB community?
Given the diverse and sometimes volatile/unpredictable nature of the community-responses on this website, wouldn’t “the safest bet” have been not to actually drop the name of another entity you (supposedly) are recommending into the ongoing discussion/forum at this point? Particularly after supposing in public dialogue on the site that you are justified in telling the creators/owners of this site what ‘must now be done’, drawing hilariously nonsensical comparisons between how an entire European country operates and how you think this site should therefore operate, referring to an unnamed collective of the most frequent posters on the site (and loosely implicating some mods in this?) as “vultures”, etc.?
https://www.ozbargain.com.au/node/189173#comment-2667393My parting advice to you, given that you have indicated a willingness to wind-up this spiraling dialogue you have hitherto perpetuated, is as follows. Rather than assuming to know what is ‘wrong’ with OzB and how to fix it, and engaging the mods in protracted rants to that effect, start your own website. You seem to be quite bitter (or is it jealous?) that the creators of OzB have managed to eventually make some money out of it; as demonstrated by your repetitious/misguided suggestions that most of the money made by the site should go “back to the people” etc. Your analogies on that subject yet again demonstrate a level of naivety that renders me suspicious of your claimed qualifications. But if those are your legitimate sentiments on how such a website should work, then I strongly urge you to start your own website, and run it like that.
A word of warning though. What may well happen is that you will sink about a decade of unpaid time into the gamble, sacrificing literally years worth of income to establish it, run it, and attract patronage to it, and ultimately after a few years you may begin to derive a modest income from it… then some turkey will come along and cry foul because you are drawing a wage from the very entity that you yourself created, from nothing.
That would really suck, wouldn’t it?
Thank you for your detailed response.
I think we should just agree to disagree as I really do not have the time to continue this. I do believe you are pulling my leg and I would rather help people with their real problems.
In short form:
- decision in iiNet case handed down yesterday - so much to "it is not even close"
- you seem to know so much about things - please do your own research. Also I explained that many of those case are settled out of court indeed the reason being that no-one wants publicity and hence they are not on Austlii, Westlaw, LexisNexis etc. I am certainly not disclosing clients' names and breach professional confidentiality just so you are happy. Sorry. Just ask any lawyer about the number of out of court settlements if you do not believe me.
- giving wrong advice which might result in someone having to pay a lot of money or having to go to jail is different than causing a short. I do acknowledge though of course that there are other areas where wrong advice can have very grave consequences.
- obviously I am not the only one who thinks certain things could be improved - see the post about contributions being removed and other past threads in the forums. I am not naming names as that will just stir these people up which I have do not intend to do. Besides, I am certain you are intelligent enough to either know who I refer to or can easily find out as those people have a reputation on OB.
- I am not jealous at all - I believe in what I do and if I wanted to earn a lot more money I could just work somewhere else (such as Clayton Utz or Minters) - however since that would mean I could do no more pro bono work for the disadvantaged and poor I choose not to do that. Maybe you can find something wrong there, too - please do not hesitate to let me know and I pass it on to my clients when I explain to them that giving them free legal advice is not right, okay??! For me giving rewards to the people who provide the value is just and fair - maybe you and I have different standards in what is fair, just, moral, and ethical and that is OK. I just don't find it OK that you seem to attack me for my different standards. Just think for a second and imagine what your reaction would be if a big company like Google said to its YouTube contributors "Thank you for contributing the videos which make us a fortune in advertisement but we will not give you any money" - I am not sure if you would find that OK. You do want to get paid for your efforts at work because you give your time and labour to generate profits for the company and for that you get compensated - why should it be so different here??
Besides, there are much easier ways to make money from websites, and I think at least two people on OB (see a different post) know that, too. I leave it to you to find out how.
- in the end, if there is a hostile tone on here and people are not appreciated, people will post less deals or none at all. Therefore, everybody loses out which could be avoided with just a little bit of common sense and courtesy.So, let's end this now. I know that I won't be giving medical, electrical etc. advice as that is not my expertise. What you do is up to you.
I'd like to actually know what the letter of the law really is on this.
I could tell you, but its really not a good idea to post anything that could be construed as legal advice since I'm not a lawyer.
Chuckle… 'Touche'
I cannot think of a better place to get legal advice than an internet message board that isn't even focused on legal issues.
It is well known on the internet that so-called e-lawyers are a reliable source of legal advice and opinion and further that one can avail oneself of their services with 100% confidence in the advice one recieves.
+vote for humour (despite the spelling mistake)
".. (despite the spelling mistake)"
Sheesh Lys, 'glass houses' and all that… your posts above are riddled with grammatical errors/typos!
I have removed it…. the boss has promiced to meet within a few weeks and if he dont i may just have to pursue other options
Seems to prove he was bluffing i would turn the situation now and demand to meet by the end of this week with the threat of taking the matter further if he doesn't comply.Tell him at the meeting that the situation has got out of hand and how he and you can fix it.
And why would you do that? Why would you want to escalate the situation again for no reason? Would it not be best if the OP and the ex-boss peacefully go their separate ways? Why risk another conflict? Making threats is rarely, if ever, advisable.
So i come to you with a case my boss has defrauded me of $xxx your legal advice would be just walk away?
Why risk another conflict?
So the ex boss doesn't do it again to someone else.
I was always told, that if you removed it, it was a sign of weakness and kind of shows that you are admitting you are wrong. If so, they can exploit your weakness and still go after you. If I were you, stand your ground and leave it on.
There have been a few cases where people have made comments on Twitter or FB and been taken to court and the person claiming slander or defamation has won in most cases. Depends on how deep your former bosses pockets are as to how far he wants to take it, could be just threats to control you - a lot of people the first thing they say is 'I'll sue you' but they don't know the first thing about the law or how much this will all cost. Worst case scenario is you get sued, they win AND you have to pay their legal costs on top of yours. Most people vent on sites such as yelp or review sites which they can not really do anything about as it is your opinion. If the former employer did something wrong or illegal there are other avenues you can take such as fair trading or industry bodies that can get them delicensed etc. Good luck - hope this all goes away soon.
said cases please?
Courtney Love and the twitter trial is a high profile one, chefs suing bloggers for a bad review, do a google search and many more will turn up.
Any relevant to Australian jurisdiction? Google searches bringing up websites decanting a legal case are in most instances wrong, you need access to a legal database. Show me a website that's relevant to Australia involving the above circumstances because so far a quick search through casebase brings no favourable cases towards defamation on facebook in Australia, only one for orders of an interlocutory injunction and thus it is still ongoing.
Google is your friend. It seems you are a bit reluctant to do your own research. Maybe do it BEFORE next time.
google is not your friend when it comes to getting case law.
pseudo lawyer trying to hang with the real ones ;)
Heard of Google Scholar? Maybe try that. Many direct links into Austlii. Maybe re-evaluate who the pseudo-lawyer is?! ;-)
http://www.smh.com.au/technology/technology-news/the-tweet-t…
"A NSW school teacher has made legal history after a former student was ordered to pay $105,000 for defaming her on Twitter and Facebook.
In the first Twitter defamation battle in Australia to proceed to a full trial, District Court judge Michael Elkaim ruled that former Orange High School student Andrew Farley should pay compensatory and aggravated damages for making false allegations about music teacher Christine Mickle.
In November 2012, he posted a series of defamatory comments on Twitter and Facebook about Ms Mickle, who took over his father's job on an acting basis after the senior teacher left in 2008 for health reasons.
Duly noted. Come through with what I asked. It is ex tempore, nonetheless it is what I asked for…even read Burtenshaw v Knueppel from that. Appreciated.
Sounds like an idiot kid not knowing which side his bread is buttered on. It can be hard for some to distinguish from reality and online. Some of us that grew up before oz bargain and the Internet are lucky in knowing the 2 are different.
- Who gives a toss how much he's charging. Sunshine that extra $ is paying ur wages.
- Anyone can work Sunday's. There are penalty rates. U think doctors. Police. Army. Petrol stations. Fire ambulance don't work Sunday ?
Take this as a massive wake up call to ur self boy.
Alright, so let's make a few things clear with regards to defamation law in Australia.
As a defendant (your position if you were in America would be much stronger, your former employer would have to prove you were lying rather than the other way around!), you must prove at least one of the following defences:
A) Truth
- That what you have said is wholly, or at least almost entirely, true. And that no part of what you have written that may not be completely true is more defamatory than what you have proven to be true.B) Absolute privilege
- Not applicable to you.C) Qualified privilege
- You have relayed information to certain parties who stand to benefit from hearing your defamatory remarks. This might include, for example, a referee giving comment on a former employee with regards to their work history and their abilities. While you might argue you're making a comment on "Bruce" for the sake of the greater community, I would argue it looks more like a personal attack on a person rather than a qualified view on their services.D) Fair comment
- You've given a comment on a person or subject that the community deserves to hear. This might include a review on public services, an official's seemingly unprofessional conduct while in office (in that it is, perhaps, hypocritical to their political standpoint), a review on a play, restaurant etc. You've probably got the gist of it. The important word is "fair".Now moving on. From a look at your small (now deleted) Facebook page, it would be my view that your former employer probably has reason to start a defamation action against you. Your post "Don’t buy from them…" only says "Bruce's" company is more expensive than the rivals - this isn't defamatory, so I'm not sure why you felt the need to highlight this. Some companies are more expensive than others, it's the way capitalism works. You don't need to go to the streets to stress your point, the market will sort that out naturally. BUT in Australia, small businesses are able to launch defamation claims against persons who are perceived to have lowered their image in the eyes of the common person. I'd have to ask how many employees there were at this company (is the cut-off for defamation for a business 7 or 12 employees, or is it a different number?), but if it's within the threshold Bruce could argue his business has suffered as a result of your unfair, negative comments. "They will charge you around…" and "I have spoken with people…" are pretty poor sources, Bruce might argue you've made them up. You've only mentioned the price/savings for a 5kw system, why haven't you explained other systems they sell? If this is the only option they provide, fair enough, but Bruce might argue you have unfairly painted his business by only referencing a single product they sell at a slightly higher rate when there are a great deal more affordable options available.
I could go on, but I'll move onto the next point.
The "Bruce [Name] (director)…" post (I'll leave his name blank so as not to perpetuate the issue) is one of your two big issues. The next one I'll mention in the next paragraph. But for now, this post; You've painted Bruce as a scammer. "He will probably find a way of pulling out of it" is pretty defamatory. You're saying Bruce is an unscrupulous, untrustworthy business operator. Do you have any proof of this? It seems to me that you've compared Bruce terminating your employment while you were away from Brisbane (I'm sure you feel a grievance but that's not for this discussion) to him terminating contracts with customers after having taken their money. So is Bruce a thief and an untrustworthy man? You're going to need information to back up these claims - has Bruce ever "pull[ed] out of it" in the middle of a job? Have you records of him doing that and not re-embursing the money of customers? Yes? Fantastic. No? You've got a bit of trouble explaining it then. Suggesting Bruce would hire you illegally won't do you any favours at all either, unless you have proof that he had every intention of sending you out knowing that you weren't legally allowed to work on Sundays.
And what I will make the final paragraph: Your Facebook page title.
Oh dear, oh dear. I would not have used the word "unofficial". Are you saying that Bruce's business is uncertified or not legally fit to operate? I certainly hope not. That might not have been your intention, but would the average man see "[Business name] Queensland, unofficial do not work with" as "[Business name] Queensland, unofficial, do not work with"? That one's with you, and you'll need to prove that the imputation of what you have written is not that the business is unofficial, but that the page is unofficial. Unless, of course, you were suggesting the business was actually unregistered and operating illegally. That opens up a whole different can of worms.
Your argument will surely be aimed at truth, but can you prove what you have said is true? Is Bruce a swindler, a shonky employer, a dodgy operator to clients? Prove it and you'll be fine. But I think you'll have a bit of a challenge establishing all of your defamatory remarks, or even just the most defamatory one(s).
Very nice of you to compile such a considered/detailed response for the OP Rol. Informative stuff/good on you.
Wow, interesting post!
A learned friend ;)
Go to trash tv current affair and see if they will take up your cause
Depending on what state you're in, defamation laws are different.
In many states, proving that what you said is "true" is NOT enough to defend a defamation claim. You may need to show it is in the "public interest" or "public benefit", ie, that the public have an interest or derive a benefit from the true facts that you're espousing. And this is more than just an interest to get some gossip. This is actually something that the public at large have an interest in knowing about.
For example, if I say potentially defamatory comments about Mr Smith who lives down the road, it would probably be very hard for me to show those comments are in the "public interest" or are of "public benefit".
In contrast, if the local councillor has defrauded the council and I tell people about that, then it probably is in the "public interest" that people know their local councillor is a fraud.
So you could well be screwed in this situation, depending on what you wrote.
Good luck - better get a lawyer son, better get a real good one.
I sincerely hope that RolandWaites and nickster 9999 are legally qualified as it seems very strongly that those posts constitute some kind of legal advice.
See Legal Profession Act 2007 in Queensland or the equivalent in other states.
Many years experience in media law. I think it's fairly clear that at no point was I giving the OP advice, I think it's plain to see I was simply explaining Australian defamation law and broadly commenting on their situation.
Great. So happy to hear that.
Roland Waites and Nickster.
Does sound like a law firm.
Awww, I dunno… 'Nickster' sounds like some sorta under-aged petty thief, or a questionable file-sharing website… ;-P
Lysander you are so far off the mark on this. But so is just about everyone trying to say their piece on the law.
Dear humdogg,
how much are you willing to bet? ;-)
I have stated the correct law - the interpretation will be up to law society and ultimately the court.
Why risk it? I really do not understand - I have no idea about plumbing and would never say anything even remotely connected to it as I have no knowledge in that area. Easy.
I really do not understand why so many people here think they should give any kind of legally relevant advice (or advice that could be legally relevant). I assume that the the requirement to have a law degree is just so that lawyers have something to decorate their walls with. :-)Lysander Please supply a link to one actual case that what you have been saying applies to including description of case, argument for/against and outcome.
I have stated the correct law
Maybe i missed something in this post but i have not seen a link to this correct law.
I assume that the the requirement to have a law degree is just so that lawyers have something to decorate their walls with. :-)
I believe this to be partially true most lawyers really are overqualified property transaction clerks are they not?Lawyers and Accountants are very similar you can go to a Tax Agent who does accounting or you can go to a Accountant that does tax.With lawyers the only difference is there are two standards sharing the same title those that do property transfers etc and those that actually practice law i believe the ratio is around 80/20 but i could be wrong.
I assume that the the requirement to have a law degree is just so that lawyers have something to decorate their walls with. :-)
Where is the requirement to have a law degree i can represent myself in a court case and have done so in the past.. qualification at the time farmer/forklift driver.
See link to LPA 2007.
I see, all lawyers are either property lawyers or tax lawyers. I did not know that but thank you for educating me.
I guess you would not have a problem representing yourself for a complex criminal matter where say the prison sentence is 25 years since you know the law so well, correct?
Or is complex patent matter where the compensation can run into tens of millions?
I have a piece of advice: get that easy to get and useless law degree so you have a license to charge $500 an hour - should be easy for you.
If I had only know that all that was needed to be a lawyer is a tax course or a forklift licence I could have saved a lot of time and money spent on my useless degrees.
Thanks for the post - made my day and amused me very much.Bet anything.
Yes, you may have stated the correct law but you have applied it wrong.
If you were a lawyer, you'd know that those provisions are really aimed at worse conduct than a bit of opinion on a bargain website. It is obviously case by case but what is going on here is a far cry from the sort of behaviour the legislation is guarding against like a person handing a lawyer friend a contract and getting their "comments" or an unqualified rogue charging people for legal advice.
And your main point (in above comments) that non qualified people should be careful is really not on the LSC's mind. I don't think anyone who is a lawyer should be remotely worried about giving their opinion on the law. I am not sure if any cases exist for prosecution of an unqualified person who is not holding themselves out as a lawyer deliberately, usually for reward.
Nobody is going to "win" this argument. It is case by case. IMO though, you are way off the mark.
I see, all lawyers are either property lawyers or tax lawyers.
I never said that.
I guess you would not have a problem representing yourself for a complex criminal matter where say the prison sentence is 25 years since you know the law so well, correct?
Yes i would engage a lawyer but i do not have to.
I have a piece of advice: get that easy to get and useless law degree
I never said that either
If I had only know that all that was needed to be a lawyer is a tax course or a forklift licence
Once again i never said that.
It really concerns me that someone involved in law can misread what i had written so i will assure you that you will not be representing me in any complex criminal matter.
I notice you avoid my first request in your reply maybe you missed it? Here it is again just in case.Lysander Please supply a link to one actual case that what you have been saying applies to including description of case, argument for/against and outcome.
@Lysander:
Ah, there you go again Lys…Let me give you some medical advice: you need to take a break from this site, or you're gonna need therapy/counselling.
BTW, does anyone know how to say "accidental troll" in Latin?
You might be right in what it intended to do but fact is I have been involved in out of courts settlements for this stuff. Sometimes, the law is not drawn up clearly and is not used as it was intended to.
- Read other comments regarding availability of out-of-court settlements on Google.
- Who am I? Engage me and pay me then I do the research for me. Otherwise, do it yourself, especially since you seem to know the law so well. I am sure you have great legal research skills and access to databases like LexisNexis and Westlaw. Alternately, maybe ask your tax adviser.
P.S.: I am sure you won't engage a lawyer and then question everything he or she says demanding a case for every legal principle stated, or will you? ;-) If you do, you are one of those "lovely" clients every lawyer "loves" to see. In my old law firm, the one who came in latest had to deal with this sort of client, as a "reward".
"Engage me and pay me then I do the research for me."
Sounds about right…
And tsk tsk for such a childish response… talk about 'taking the bait'!
Anyways, this is getting really entertaining now that some 'real' (read 'experienced') lawyers/solicitors have stepped in to correct your BS Lys… I wonder if you will allow yourself to learn from them, or whether you will obstinately refuse to be educated?
Read other comments regarding availability of out-of-court settlements on Google
Out-of-court settlements in no way prove a case in law.
Who am I? Engage me and pay me then I do the research for me.
To be quite frank i do not care who you are (although i am sure a number of Ozbargainers are getting the idea of what you are)Why would i engage you if you are even employed in the legal profession when you try to avoid answering nearly every question asked of you and will not prove or backup your statements?
sloppy referencing. no pinpoint, no italicizing. You're gonna lose marks!
edit: and how will the law society and courts interpret this dissemination of unqualified legal advice.
How about we moot this situation at the LSC. I know the Principal Legal Officer there. Yes? (Don't tell him I said he looked like a dork though - I don't want prejudice)
Yes, let's. No probs for me. I got all registrations and qualifications.
pm me your number and if you don't feel safe you can swing by the legal office I practice at
I worked as a Lawyer for 10 years (not in Media or Defamation, but in Insurance Litigation) and my comments were from my general understanding of defamation law. I wholly agree with RolandWaites's assessment. It's one thing to be pissed off with a former employer, but it is another to make what could be determined by a court to be unsubstantiated defamatory remarks.
I agree totally with the assessment that the FB page was stupid and should never be made. In fact I know a couple of people who research the effects of FB etc. on defamation law, family law, employment law. Surprisingly, there is already a lot of case law in OZ, especially with regards to employment law.
Social media is such a great source of info for lawyers, especially since nothing that gets onto the net can never be really deleted due to archive bots.
Again, to clarify: I wholly agree with RolandWaite and you regarding the substance of the action - not smart and before one even considers doing such a thing one should sleep over it for a week and consider the possible consequences.
"I sincerely hope that RolandWaites and nickster 9999 are legally qualified…"
Gees Lys, you just keep "reeling 'em in", don't ya?!?
Are you perhaps deliberately trying to alienate yourself from the entire OzB community one-by-one (or in this case, two) as some sort of wacky social experiment? That's really the only explanation that makes any sense at this point.
I guess the other possibility is that 'you' are actually a group of a few 1st year law students who like to get together and troll on this site over a beer or two, for a laugh…
If you think that, why are you taking the bait? You really are something but I have to admit I do respect you for your tenacity and persistence.
"Just my 2c", trumps public forum legal advice. Sounds cooler too.
You can't beat corporations (or big businesses), whether you take the right or wrong path.
Btw, who's ever heard of a 'Total Energy Systems'?…. no point trying to defame one not famous enough.
Hey OP - check your Other message folder on facebook.
Am never a FB fan. But OP, you can deny you posted it, even it's under your FB wall - i.e., you may claim your account got hacked. Otherwise, simple deny that FB account is yours.
I'll just cut to it and actually give some real facts here:
Defamation is a civil law tort - meaning it's a civil wrong in the eyes of the law (not a criminal act) perpetrated against one person (or legal entity such as a company) by another. Until the end of 2005, each state and territory in Australia had its own defamation laws, some based entirely on defamation as a common law tort, and some with defamation addressed partly or totally in legislation. Now every state pretty much has an identical act, the Defamation Act 2005.
Here's the elements of Defamation: (If even ONE of these elements is missing, you have no ability to make a claim of defamation)
- The statement that is made is defamatory, it's a slur on a persons character. The typical test for this, is if a person is lowered in the eyes of members of society, by the comment/s made about them. Basically the comment/s have to be of a level where they would lower the opinion of them, by someone else.
- The statement refers to the plaintiff, or if not named a reasonable person would know who it refers to.
- The statement is published. Basically, a third party of any type is told by words, gesture, image or any permanent form. "Published" or "Publishing" covers not just print and media, but also anything spoken aloud. Basically this just means that you cant defame someone in a 1-on-1 setting, but if a third party is in the room and overhears it, you can.
- The defendant is unable to rely on a valid defence (defences listed below).
Here's the defences to Defamation: (If even ONE of these defences exist, you have no ability to win a claim of defamation)
- Justification/Truth. The comment/s are at least substantially true.
- Absolute Privilege. The statement is made in the course of court hearings or procedures, parliamentary proceedings, between high officers of State & between a solicitor and client.
- Qualified privilege. The maker has a moral/social/legal duty to make the statement, eg media publishing statements about politicians and public officials, or statements made in the context of a political debate.
- Fair comment. The statement is an inference from an opinion relating to matters of public interest, eg on matters of justice, parliament affairs, govt conduct, book reviews, art reviews, movie reviews & product reviews.
- Consent. This one is obvious and is of course a complete defence.
- Honest opinion. If the statement was made between two parties having a conversation, exchanging letters or direct communications online, then third party present or not, it's not defamation if the statement was made as part of an exchange of honest opinions. A good example here is that If i said to a co-worker that in my opinion, my boss was hopeless and likely not going to be here by the end of the year - that's not defamation. If on the other hand i said my boss is hopeless and wont be here by the end of the year because he's a thief (unsubstantiated rumor), then that would be defamation.
It's all listed in detail in every states Defamation Act. I'd advise having a read of it and then making a 30min appt (almost always free to do) with a lawyer who specialises in the area, who will give you some clear direction on what to do, if anything does need to be done. For what it's worth, more often than not with cases like these & specifically that OP refers to, when they end up in court, if the defendant loses the case, the judge just makes them put in an offer of amends (written statement of apology to the plaintiff and then paying to publish that apology publicly) and no money is awarded anyway. Each party then pays their x-thousand dollar legal fees and they go their own way. As you can see from that sort of outcome, it's almost entirely a waste of time and money in all defamation cases to ever bother going to court.
If you are someone tied up in a defamation situation, when people still charge ahead on "the principle of the matter" despite not having a real case, it can still end up being costly but will just be a waste of time anyway. These people should send shivers up your spine. Consider settling out of court and apologising. Will be a big money saver regardless if your in the wrong or not. But on the other hand, as a legal professional, people like that will give you a litigation-stiffy. You'll be able to bill them for hours and hours even though you've explained clearly to them they have no or minimal chances or getting any reasonable outcome. You can get as ludicrously creative as you want with your claims and refrence cases & getting paid for it is just gravy.
this is probably the best answer so far.
The reality is this case will certainly go nowhere because it is too expensive to run and the damages will be neglible meaning no rational person would go through with it, even if they are hella pissed off at the facebook post.
Great post! Very candid/informative, cheers.
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Another 'can't give legal advice' stipulation taken way out of context. There's nothing wrong with it. It's just a highly improbable insurance issue if someone tries to sue you for the advice given if it was bad (and good luck with that). The LSC hardly care about a forum talking law. Like academics they mostly live in fantasy land where ethics reign supreme.