Defamation and Breach of Contract: A Case Analysis of Tom Burt and Shannon's Cafe

This article analyzes the legal issues surrounding Tom Burt and Shannon's Cafe, including defamation and breach of contract. It explains the elements of defamation and the defenses available to defendants. It also discusses the importance of express terms in contracts and the consequences of breaching them. The article cites relevant case law and statutes to support its analysis.

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Business Law

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Part 1
Issue:
Whether Tom Burt can take any action against the Shannon’s for posting negative comments
against him?
Law:
Defamation is considered as the action through which person spreads bad or wrong things about
another person, and such spreaders cause harm to that person. A person can be defamed by
spreading false things about that person to the third person. For the purpose of defaming any
person, it is not necessary makes the false news by themselves. In other words, person can
defame the person by repeating the words said by any other person1.
Section 6 of the Defamation Act 20052 states that defamation is the tort under the common law,
as per this tort, defamation is concerned in context of the protection of the reputation of the
person. This tort is mainly divided into two parts that are slander and Libel. Slander includes the
defaming someone orally and Libel focus on the written defamatory statements.
Any plaintiff, who suffered the injury or loss because of the tort of defamation committed by the
defendant, can seek compensation in form of damages by the defendant. Defamation includes the
communication in any form such as social media, news, letter, etc. by one person to another
person3.
For the purpose of seeking damages from the defendant under tort of defamation, plaintiff must
prove these three things:
Defamatory statement has been communicated to the third person, which means, statement must
be communicated to the third party other than plaintiff.
Communication made by the defendant identified the plaintiff. In other words, plaintiff made the
defamation statement clearly against the plaintiff.
Communication made by defendant must be defamatory in nature. in other words, if
communication does not damage the reputation of the person then it cannot be considered as the
defamation under tort law. It must be noted that, following are the ways through which
defamation accusation can be arise in the communication:
 By conducting natural and ordinary meaning of the words.
 Any communication which results in false suggestions in context of person.
 Any communication which results in true suggestions.
1 Legal Vision, Elements of Defamation, <https://legalvision.com.au/defamation/>.
2 Defamation Act 2005- Section 6
3 Law Vision, Law of torts, <http://www.lawvision.com.au/uploads/PDFs/Tort%20Law%20.pdf>.

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In case law Morgan v Odhams Press 19714, story was published by defendant in which
defendant communicates that plaintiff involved in the kidnapping. In this case, court stated that
statement made by defendant was wrong, and plaintiff can seek damages.
It must be noted that, State passed the uniform defamation laws and also the Act in 2005. These
laws are effective from the date of 1st January 2006.
Currently, Court dealt with number of issues of defamation in context of the social media, and
Courts of Australia shows the increasing willingness to give the significant damages to those
plaintiffs who are defamed at social media. In the year 2016, NSW Court held that, Facebook
post is defamatory in nature because it results in the doubts of a pedophile in the community.5
This can be understood through case law Reid v Dukic [2016] ACTSC 3446 in which Court
stated that reputation was breached on social media and fall under the defamation law.
There are some defenses which can be used by the defendant against the accusation of
defamation made by plaintiff, and these defenses are fair comment, truth or justification,
qualified privilege, and other defenses.
Application:
In the present case, Tom Brut can file case under tort of defamation against the Shannon’s
because they defame the reputation of Mr. Brut by posting “that Mr. Burt is a liar and a thief and
had left the café high and dry sabotaging their first day and they are going to sue him”. This is
considered as defamation because all the necessary element of defamation are present in this
case:
Defamatory statement has been communicated to the third person, which means, statement must
be communicated to the third party other than plaintiff. As comment is posted on Facebook, and
number of people sees that comment. In Pullman v Hill 18917. In this case, court stated that
plaintiff must prove that statement of defamation must be made to any other person. In other
words, if that statement was only read by the plaintiff, as there was no publication of the
statement then no defamation was made.
Communication made by the defendant identified the plaintiff. In other words, plaintiff made the
defamation statement clearly against the plaintiff. Name of Mr. Burt is clearly stated in the
comment posted by Shannon’s.
This can be understood through case law Hulton v Jones 19108. In this case, story written by
publisher clearly identify the barrister, which means communication of defamation was made
against the barrister.
4Morgan v Odhams Press 1971.
5 Lavan, 2017, Going viral: social media defamation cases on the rise,
<https://www.lavan.com.au/advice/commercial_corporate_litigation/going-viral-social-media-defamation-cases-
on-the-rise>.
6Reid v Dukic [2016] ACTSC 344
7Pullman v Hill 1891
8Hulton v Jones 1910

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Communication made by defendant must be defamatory in nature. In other words, if
communication does not damage the reputation of the person then it cannot be considered as the
defamation under tort law. In the present case, comment made by Shannon’s is defamatory in
nature as it damages the reputation of Mr. Burt. This can be understood through case law
Random House Pty Ltd v Abbott 19999. In this case, statement was published by the defendant
which indicates that political parties was changed by two politicians after they indulged in
physical relations with two females, and later one of the female married with the one politician.
The presentation in this communication was false, as it reflects that each politician fails to
comply with their political principles in exchange of their sexual favors. In this case, court
allowed the damages to the plaintiff.
After considering the above facts, it can be said that, Shannon’s defame the reputation of Mr.
Burt by posting negative comments.
Conclusion:
Therefore, Mr. Burt can file case under tort of defamation against the Shannon’s for posting the
comment on Facebook.
Part 2
Issue:
Whether Mr. Tom Burt is liable to face any liability in context of his own actions?
Law:
Terms of the contract are considered as most important part of the contract, and it mainly
determines the rights and liabilities of the parties enter into the contract. Terms are of two types
that are express terms and implied terms. Express terms are defined as those terms which are
clearly written in the contract, and on other side, implied terms are introduced by the common
law or by statute.
It must be noted that, express terms are considered as those terms which are decided by the
parties before entering into the contract. Generally, it is very easy to determine these terms
because they are clearly written, but on other occasions it is less clear. For the purpose of
creating a binding term, it is necessary for the parties to be promissory in nature. In other words,
parties related to the contract must have intention to create legal relations with each other.
Intention for this purpose is determined objectively10.
In Ellul and Ellul v Oakes, (1972) 3 SASR 377, Supreme Court of South Australia,11 in which
court stated that if statement was not the part of the contract then it was not the contractual
statement. In this case, court further stated that if representation was made while negotiating the
9Random House Pty Ltd v Abbott 1999
10 ACL, Terms of a contract, <https://www.australiancontractlaw.com/law/scope-terms.html#express>.
11Ellul and Ellul v Oakes, (1972) 3 SASR 377, Supreme Court of South Australia

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contract in context of inducing the other party to act upon it by signing the contract, then it can
be considered as the prima facie ground to considered it as express term of the contract.
Application:
In the present case, while negotiating the contract, it is decided between the parties thatMr. Brut
needs to be available till the date 19th May on telephone in context of providing any assistance
required by the Shannon’s.
Later, when Shannon’s call Mr. Burt on the day of opening because of number of issues faced by
them, his phone’s ring out and he fail to attend the call. At that time, Shannon’s required the
assistance from Mr. Burt because of all the mess happened at the café.
It can be said that Mr. Brut breach the express term of the contract by not providing assistance to
the Shannon’s when they required. This statement of availability is the terms which are decided
by the parties before entering into the contract. This term is the binding term, and reflects that
parties are promissory. Parties related to the contract have intention to create legal relations with
each other.
It can be said that, express term of the contract is breached by Mr. Tom Brut.
Conclusion:
Therefore, Shannon’s can take action in context of breach of express term of the contract against
the Tom Brut.
BIBLIOGRAPHY
Website
Legal Vision, Elements of Defamation, <https://legalvision.com.au/defamation/>.

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Lavan, 2017, Going viral: social media defamation cases on the rise,
<https://www.lavan.com.au/advice/commercial_corporate_litigation/going-viral-social-media-
defamation-cases-on-the-rise>.
Law Vision, Law of torts, <http://www.lawvision.com.au/uploads/PDFs/Tort%20Law%20.pdf>.
ACL, Terms of a contract, <https://www.australiancontractlaw.com/law/scope-
terms.html#express>.
Case law
Morgan v Odhams Press 1971.
Reid v Dukic [2016] ACTSC 344.
Pullman v Hill 1891.
Hulton v Jones 1910.
Random House Pty Ltd v Abbott 1999.
Ellul and Ellul v Oakes, (1972) 3 SASR 377, Supreme Court of South Australia.
Statute
Defamation Act 2005