DISTRICT COURT OF QUEENSLAND
CITATION:
Brose v Baluskas & Ors (No 6) [2020] QDC 15
PARTIES:
TRACEY ANN BROSE
(Plaintiff)v
DONNA JOY BALUSKAS
(First Defendant)and
MIGUEL BALUSKAS
(Second Defendant)and
TRUDIE ARNOLD
(Third Defendant)and
IAN MARTIN
(Fourth Defendant)and
KERRI ERVIN
(Fifth Defendant)and
LAURA LAWSON
(Sixth Defendant)
and
CHARMAINE PROUDLOCK
(Seventh Defendant)FILE NO/S:
D148 of 2016
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
District Court at Southport
DELIVERED ON:
28 February 2020
DELIVERED AT:
Southport
HEARING DATES:
8 October 2019 – 1 November 2019JUDGE:
Muir DCJ
ORDER:
1. It is ordered that the first defendant pay to the plaintiff damages for defamation in the sum of $3,000 for publication of the imputations pleaded at paragraphs 11(f),(g) and (h) of the further amended statement of claim filed on 3 October 2019.
2. It is ordered that the second defendant pay to the plaintiff damages for defamation in the sum of $3,000 for publication of the imputations pleaded at paragraph 16(f) and (i) of the further amended statement of claim filed on 3 October 2019.
3. The plaintiff’s claim against the third defendant is dismissed.
4. The plaintiff’s claim against the sixth defendant is dismissed.
5. The first defendant is permanently restrained by herself, and/ or her servants or agents, from publishing or causing to be published any of the matters complained of in paragraphs 11(f) (g) and (h) of the further amended statement of claim filed in these proceedings on 3 October 2019 or matters substantially to the same effect as those matters complained of.
6. The second defendant is permanently restrained by himself, and/or his servants or agents, from publishing or causing to be published any of the matters complained of in paragraphs 16(f) and (i) of the further amended statement of claim filed in these proceedings on 3 October 2019 or matters substantially to the same effect as those matters complained of.
CATCHWORDS:
DEFAMATION - PUBLICATION - GENERALLY - INTERNET PUBLICATIONS – SOCIAL MEDIA – where the plaintiff sued in respect of comments made on Facebook and Change.org – where the forums were specifically created to support the plaintiff – where the defendants admit publication – where features of social media are considered – where features of social media are part of the context in which imputations are read
DEFAMATION - PUBLICATION – EXTENT OF PUBLICATION – GRAPEVINE EFFECT whether the grapevine effect arises out of facts – where the publications were available for a limited period of time – where the plaintiff claimed publications had been read by thousands of people – where the evidence did not support a claim that the publications had been widely read – where evidence demonstrated limited grapevine effect – where grapevine effect arises out of media coverage of the proceedings
DEFAMATION – STATEMENTS AMOUNTING TO DEFAMATION – PARTICULAR STATEMENTS – IMPUTATIONS – where the plaintiff sued in respect of comments made on social media– whether alleged imputations are carried by the words of the publication – whether the alleged imputations are of and concerning the plaintiffs – whether the alleged imputations are defamatory of the plaintiffs – where the defendants admit imputations are carried – where the alleged imputations contain speculation around the circumstances leading to a school principal being suspended – where the action was tried by a judge sitting alone
DEFAMATION – STATEMENTS AMOUNTING TO DEFAMATION – DEFAMATORY MEANING – whether imputations carry defamatory meaning – where the defendants deny the carried imputations are defamatory – where contextual features of the forum impact upon whether meaning is defamatory – where some imputations were found not to have a defamatory meaning – whether imputations can be insulting but not defamatory
DEFAMATION – DEFENCES – JUSTIFICATION – TRUTH – CONTEXTUAL TRUTH – TRIVIALITY – where the defendants seek to establish defences of justification, contextual truth and triviality – where the defence of triviality fails – where the defence of justification fails – where the defence of contextual truth fails
DEFAMATION – DAMAGES – GENERAL DAMAGES – ASSESSMENT – IN GENERAL – whether damage to reputation has occurred beyond the presumed damage – where there were difficulties isolating the harm caused by the defamatory publications – whether prior reputational damage had occurred – where the plaintiff’s suspension as principal caused some reputational damage – where there are multiple origins of the plaintiff’s hurt and distress – whether hurt and distress arose from the defamatory publications – where hurt and distress also arose from other circumstances in the plaintiff’s life – where the plaintiff’s prior suspension as a teacher contributed to her hurt and distress – where there were multiple potential defendants not sued upon – where the fact of multiple potential defendants not sued upon was relevant to assessment of hurt and distress – where the damages awarded must reflect an appropriate and rational relationship to the harm suffered
DEFAMATION – DAMAGES – GENERAL DAMAGES – ASSESSMENT – GRAPEVINE EFFECT – where proceedings are covered extensively in the media – where grapevine effect occurs on social media – where the fact of the internet pile on is more notorious than the content of the individual posts
DEFAMATION – DAMAGES – GENERAL DAMAGES - ASSESSMENT – SPECIAL MATTERS – AGGRAVATION – CONDUCT OF THE PARTIES – where the plaintiffs claim aggravated compensatory damages on the basis that the defendants engaged in conduct that was improper, unjustifiable or lacking in bona fides – where defendants engaged in threatening behaviour – where defendants failed to publish an apology or retraction – where failure to apologise was not unreasonable or unjustified in the circumstances – where genuine attempts were made to remove publications – where retraction was not possible – where a defendant engaged in criminal conduct – whether the defendants’ conduct towards the plaintiff in the court precincts warranted aggravated damages
DEFAMATION – DAMAGES – GENERAL DAMAGES – ASSESSMENT – SPECIAL MATTERS – MITIGATION – where the plaintiff settled with three of the eight defendants sued to trial – where the plaintiff settled with a further defendant during trial – where the plaintiff had commenced separate proceedings against a government department – where the imputations found to be defamatory are substantially the same as imputations for which the plaintiff was already compensated – where compensation already received should mitigate damages – where any public vindication achieved by reversal of the plaintiff’s suspension should be considered in mitigation of damages – where any public vindication achieved by decisions made in interlocutory proceedings should be considered for the purpose of mitigating damages
LEGISLATION:
Defamation Act 2005 (Qld), Sections 18, 21, 22, 25, 26, 29, 34, 35, 37, 38, 40.
Uniform Civil Procedure Rules 1999 (Qld) Rules 155,174, 476.
CASES:
Allen v Lloyd-Jones (No. 6) [2014] NSWDC 40.
Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158.
Armagas Ltd v Mundogas SA ('The Ocean Frost') [1985] 1 Lloyd's Rep 11.
Attrill v Christie [2007] NSWSC 1386.
Australian Broadcasting Corporation v Reading [2004] NSWCA 411 (15 November 2004).
Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279.
Bennette v Cohen (2005) 64 NSWLR 81.
Belbin v Lower Murray Urban and Rural Water Corporation [2012] VSC 535 (9 November 2012).
Beynon v Manthey [2015] QDC 252.
Bolton v Stoltenburg [2018] NSWSC 1518.
Brose v Baluskas & Ors (No 3) [2019] QDC 101 (21 June 2019).
Brose v Baluskas & Ors (No 4) [2019] QDC 120 (19 July 2019).
Brose v Baluskas & Ors (No 5) [2019] QDC 185 (25 September 2019).
Bui v Huynh [2011] QDC 239.
Camden v McKenzie [2008] 1 Qd R 39.
Campbell & Anor v T. L. Clacher No. 2 Pty Ltd & Ors [2019] QSC 218.
Carson v John Fairfax & Sons Ltd (1992) 178 CLR 44; [1993] HCA 31.
Cerutti & Anor v Crestside Pty Ltd & Anor [2014] QCA 33; [2016] 1 Qd R 89.
Chalmers v Payne (1835) CM & R 156; 150 ER 67.
Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181.
Clark v Ainsworth (1996) 40 NSWLR 463.
Crampton v Nugawela (1996) 41 NSWLR 176; [1996] NSWSC 651.
DG Certifiers Pty Ltd & Anor v Hawksworth [2018] QDC 88.
Dow Jones & Company Inc v Gutnick [2002] HCA 56; 210 CLR 575; 77 ALJR 255; 194 ALR 433.
Favell v The Queensland Newspapers Pty Ltd [2005] HCA 52; 221 ALR 186.
Fox v Percy (2003) 214 CLR 118, 128-129 [30]-[31].
Guirguis Pty Ltd v Michel’s Patisserie System Pty Ltd [2018] 1 Qd R 132; [2017] QCA 83.
Hallam v Ross (No 2) [2012] QSC 407.
Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33.
Hocken v Morris [2011] QDC 115.
Hopman v Mirror Newspapers Ltd (1960) 61 SR (NSW) 631.
Jeynes v News Magazines Ltd [2008] EWCA Civ 130.
John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 201 ALR 77.
John Fairfax Publications Pty Ltd v O’Shane (No. 2) [2005] NSWCA 291.
Jones v Skelton (1963) 1 Weekly Law Reports 1362; (1964) NSWR 485.
Jones v Sutton (2004) 61 NSWLR 614.
Keohane v. Stewart, 882 P.2d 1293, 1301 (Colo. 1994)).
Lewis v Daily Telegraph [1964] AC 234.
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705.
Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117.
McEloney v Massey [2019] QDC 133.
Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632.
Mickle v Farley [2013] NSWDC 295 (29 November 2013).
Mundey v Askin [1982] 2 NSWLR 369.
Monroe v Hopkins (2007) EWHC 433 (QB).
Nationwide News Pty Ltd v Weatherup [2017] QCA 70 (21 April 2017).
Nevill v Fine Art and General Insurance Company Limited (1897) AC 68
New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57.
Noone v Brown [2019] QDC 133.
Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyds Rep 403.
O’Reilly v Edgar [2019] QSC 24.
Orchid Avenue Pty Ltd v Parniczky & Anor [2015] QSC 207.
Pritchard v Van Nes 2016 BCSC 686.
Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; 208 CLR 388.
Pedavoli v Fairfax Media Publications Pty Ltd & Anor (2014) 324 ALR 166; [2014] NSWSC 1674.
Queensland Newspapers Propriety Limited v Palmer [2012] 2 Qd R 139.
Radio 2UE Sydney Pty Ltd v Chesterton (2009) 254 ALR 606.
Ratcliffe v Evans [1892] 2 QB 524.
Rayney v Western Australia & Brown (No 9) [2017] WASC 367.
Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500.
Robert v Prendergast [2013] QCA 47; [2014] 1 Qd R 357.
Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327.
Rudd v Starbucks Coffee Company (Australia) Pty Ltd [2015] QDC 232.
Ryan v Premachandran [2009] NSWSC 1186.
Savige v News Ltd [1932] SASR 240.
Sierocki v Klerck [2015] QSC 92.
Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669.
Smith v ADVFN [2008] 1797 (QB).
Smith v Lucht [2016] QCA 267; (2017) Qd R 489.
Thompson v Australian Capital Television Pty Ltd & Anor [1997] 129 ACTR 14.
Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497.
Uren v John Fairfax & Sons Limited [1965] 66 SR (NSW) 223.
Voller v Australian News Channel Pty Ltd [2019] NSWSC 766 (24 June 2019).
Wagner & Ors v Harbour Radio Pty Ltd & Ors [2018] QSC 201.
Wagner & Ors v Nine Network Australia & Ors [2019] QSC 284.
Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58.
Watney v Kencian & Anor [2017] QCA 116.
Watson v Foxman (1995) 49 NSWLR 315.
Woolcott v Seeger [2010] WASC 19.
Wilson v Bauer Media Pty Ltd [2017] VSC 521.
Withyman (by his tutor Glenda Ruth Withyman) v State of New South Wales and Blackburn; Blackburn v Withyman (by his tutor Glenda Ruth Withyman) [2013] NSWCA 10.
Yunghanns v Colquhoun-Denvers [2019] VSC 433.
COUNSEL:
H Blattman for the applicant plaintiff
First and Second Defendants are self-represented
Sixth Defendant is self-represented
M De Waard and Mr N Boyd for the seventh defendant
No appearance by the third, fourth, fifth defendants
SOLICITORS:
Bennett & Philp Lawyers for the applicant plaintiff
First and Second Defendants are self-represented
Sixth Defendant is self-represented
Mills Oakley for the seventh defendant
No appearance by the third, fourth, fifth defendants
INDEX
PART ONE – INTRODUCTION
1 Overview
2 Factual Background
2.1 About the plaintiff
2.2 Plaintiff’s suspension as Principal in February 2016
2.3 Establishment of online forums to support the plaintiff
2.4 The Content of the posts on the Online Forums
2.5 The plaintiff’s decision to sue and the posts the plaintiff sued on
3 Issues common to the plaintiff’s case against each of the remaining defendants
3.1 How do you determine if the post is capable of bearing the imputation pleaded?
3.2 How do you determine if the post is defamatory?
3.2.1 Intersection between Insults or Abuse and Defamatory Matter
3.2.2 Importance of Forum & Context
3.3 What was the extent of the publications?
3.3.1 Proof of publication – discrepancy between Exhibits 3, 14 and 75
3.3.2 How long were posts accessible on the websites?
3.3.3 Extent of Publication – the pleadings and submissions
3.3.4 Extent of Publication – Evidence at Trial
Extent of publication of each of the remaining defendants’ posts
PART TWO - THE CASES AGAINST THE DEFENDANTS
4 The Case against the First Defendant
4.1 The statute barred post
4.2 Publication of the first defendant’s post
Issue on the face of the exhibits
Publication is proved in this case
4.3 Identification of the plaintiff
4.4 Concerns Notice sent to the first defendant
4.5 The Imputations
4.5.1 Are the imputations carried?
4.5.2 Are the imputations defamatory?
4.6 Defence raised by the first defendant
4.6.1 Triviality
4.7 Conclusion on the liability of the first defendant
5 The Case against the Second Defendant
5.1 Publication of the second defendant’s post
5.2 Identification of the plaintiff
5.3 The Concerns Notice sent to the second defendant
5.4 Imputations
5.4.1 Are the imputations made out?
5.4.2 Are the imputations defamatory?
5.5 Defences raised by the second defendant
5.5.1 Defence of Triviality
5.5.2 Defence of Justification
5.5.3 Defence of Contextual truth
First contextual imputation
Second contextual imputation
5.6 Conclusion of the liability of the second defendant
6 The Case against the Third Defendant
6.1 Publication of the third defendant’s post
6.2 Identification of the plaintiff
6.3 The Concerns Notice sent to the third defendant
6.4 Imputations
6.4.1 Are the imputations made out?
6.4.2 Are the imputations defamatory?
6.6 Conclusion of the liability of the third defendant.
7 The Case against the Sixth Defendant
7.1 Publication of the sixth defendant’s post
7.2 Identification of the plaintiff
7.3 The Concerns Notice sent to the sixth defendant
7.4 Imputations
7.4.1 Are the imputations made out?
7.4.2 Are the imputations defamatory?
7.4.3 Conclusions regarding imputations arising from the sixth defendants post
7.5 Conclusion on the liability of the sixth defendant
PART THREE - RELIEF SOUGHT
8 Matters of Credit
8.1 The Plaintiff’s Credit
8.3 Impact of Credit Issues
9 Damages
9.1 Principles of Law
9.1.1 Principles guiding award of general damages
9.1.2 Principles guiding the award of aggravated damages
9.1.3 Other awards
9.1.4 Mitigation of Damages – Principles of Law
9.2 Assessment of General Damages
9.2.1 Compensation for damage to reputation
Was there any damage to reputation arising from the plaintiff’s suspension?
Damage to reputation arising from other posts about the plaintiff authored by parties who are not defendants to these proceedings
Damage to reputation caused by the ‘grapevine effect’
9.2.3 The Plaintiff’s Hurt & Distress
The plaintiff’s evidence as to her hurt and distress
Causes of the Plaintiff’s Hurt and Distress
Conclusion re damage to reputation and hurt and distress.
9.2.3 Vindication
9.3.3 Factors in mitigation of damages under the legislation
Apology and attempts to make amends
Compensation already agreed or obtained by the plaintiff
9.3 Assessment of aggravated Damages
9.3.1 The plaintiff’s argument for aggravated damages
Aggravated damages claimed against the first defendant
Aggravated damages claimed against the Second defendant
9.4 Summary of Findings as to Damages
9.4.1 Damages awarded against first defendant
9.4.2 Damages awarded against second defendant
9.4.3 Other matters
10 Injunctive Relief
11 Costs
12 Orders
PART ONE – INTRODUCTION
Overview
The plaintiff, Tracey Brose, is a teacher and the longstanding principal of Tamborine Mountain High School, the only public high school on Tamborine Mountain. On 15 February 2016, she was suspended from this role pending the outcome of an investigation into alleged inappropriate conduct by her as principal. The School and the broader community were told that the plaintiff was “on leave” but knowledge that she had been suspended filtered out almost immediately. Speculation over the reasons for her absence led to rumour and innuendo within this community.
With the view to garnering support for a speedy resolution to the situation (and unbeknown to the plaintiff) on 7 March 2016, the President of the school’s Parents and Citizens association, David Hows, established an online Petition on a Change.org Internet discussion website entitled “A Fast And Fair Resolution for Tracey Brose,” calling for the Minister for Education to reinstate the plaintiff. Mr Hows also set up a private Facebook page called ‘Support Tracey Brose” which contained a link to the Change.org website. Over the next few days, around 600 people signed the Petition. The accompanying discussions on both forums attracted comments from over 350 individuals. Most were supportive and highly complementary of the plaintiff. Around nine percent of the comments were highly critical and unsupportive of her and many expressed this through emotive, provocative and abusive language.
Both forums were shut down six days later on 13 March 2016.
The plaintiff was reinstated as principal on 25 May 2016 and on 2 June 2016 she commenced legal proceedings against eight of the 34 individuals who had posted criticism of her on the online discussion forums. She claimed $150,000 in damages from each of the defendants for the tort of defamation together with an injunction restraining them from making further defamatory statements. Subsequently the claim for damages increased to $220,000 ($150,000 for general damages and $70,000 for aggravated damages).
All defendants filed defences to the plaintiff’s claim raising a variety of defences under the Defamation Act 2005 (Qld) including triviality, justification, honest opinion and contextual truth.
The proceedings played out under the spotlight of keen media interest and culminated in a four week trial heard before me from 7 October 2019 until 1 November 2019. There were a myriad of contested interlocutory applications and cross applications between the plaintiff and various defendants (mainly pleading stoushes) leading up to the trial. These applications left a number of defendants with substantial costs orders against them – which they were unable or refused to pay.
The plaintiff settled with the fourth, fifth and eighth defendants prior to trial, receiving a total amount of $182,500.00 from them.
The plaintiff and seventh defendant were legally represented throughout the proceeding. The first and second defendants were legally represented intermittently but appeared for themselves at trial. The third defendant is a bankrupt and was not an active participant in the trial but orders are sought against her. The sixth defendant represented herself throughout - with some assistance from the pro bono LawRight legal service.
The trial traversed numerous issues of fact and law (including an urgent and partially successful application by the seventh defendant on day three of the trial for further disclosure by the plaintiff).[1] Shortly after, the plaintiff settled with this defendant. The plaintiff’s case at trial then centred around six posts she complained were defamatory of her. But at the end of the trial, she conceded that any claim based on two of these posts was statute barred.
[1]This application was supported by the first and second defendants.
It follows that the issues for my determination are whether four posts: one each by the first and second defendants on the Change.org website; and one each by the third and sixth defendants on the Facebook page; are defamatory and if so, the quantum of damages that flow to the plaintiff.
The law of defamation seeks to strike a balance between, on the one hand, society’s interest in freedom of speech and the free exchange of information and ideas from all parts of society, and, on the other hand, an individual’s interest in maintaining his or her reputation in society free from unwarranted slur or damage.[2] Defamation laws vary from country to country but courts and legal scholars worldwide have recognised the struggle to achieve this balance, and acknowledged that the growing body of case law involving Facebook and other social media platforms “require[s] courts to map existing defamation doctrines onto social media fact patterns in ways that create adequate breathing space for expression without licensing character assassination.”[3]
[2]As observed by the High Court in Dow Jones & Company Inc v Gutnick [2002] HCA 56; 210 CLR 575; 77 ALJR 255; 194 ALR 433 at [23] per Gleeson CJ, McHugh, Gummow and Hayne JJ.
[3]Lyrissa Barnett Lidsky & RonNell Andersen Jones, Of Reasonable Readers and Unreasonable Speakers: Libel Law in a Networked World, 23 Va. J. Soc. Pol'y & L. 155 (2016), available at http://scholarship.ufl.edu/facultypub/ at 158.
Ultimately, I have determined that the third and sixth defendants’ posts are not defamatory but aspects of each of the posts of the first and second defendants are, although not to the extent claimed by the plaintiff. I have assessed damages by ensuring that there is an appropriate and rational relationship between the harm to the plaintiff’s reputation and the hurt and distress suffered as a result of each of the defamatory publications, as follows:[4]
(a)The plaintiff’s damages against the first defendant are assessed in the sum of $3,000.
(b)The plaintiff’s damages against the second defendant are assessed in the sum of $3,000.
[4]Defamation Act 2005 (Qld) s34.
The damages I have awarded are modest and well below what the plaintiff has sought. But I consider them sufficient to vindicate the plaintiff in light of the unique contextual features of social media forums[5]. I am satisfied that there is a real risk of further publication of the defamatory comments made by the first and second defendants, so I have ordered that they be permanently restrained from making them again.
[5]These features are discussed in detail in [64]-[77] of these Reasons.
In delivering the 2019 Spigelman Public Law Oration, Justice Keane of the High Court of Australia focussed on the constitutional concept of “the people” and the idea that freedom of speech in Australia is to be understood as an incident of the relationship between government institution and the people who sustain those institutions. In doing so, his Honour made the following observations which in my respectful view are most apposite to the present case:[6]
“In talking about civility and equal dignity among a people, we are talking about how the people live their lives together; and that does not occur in courtrooms. The late John Gardner wrote:[7]
‘[S]omething is amiss in the public life of a society when constitutional questions often have to be settled in the courtroom. Indeed, one might add, there is something amiss in the public life of a society when questions of any type often have to be settled in the courts’The sad reality is, however, in this vale of tears, these questions do have to be settled in the courtroom.” [Emphasis added][6]P A Keane Justice of the High Court of Australia delivering the Spigeleman Public Law Oration, Sydney, 30 October 2019.
[7]Garner, “Can There Be a Written Constitution?’ (2011) 1 Oxford Studies in Philosophy of Law 162 at 172-173.
The “sad reality” is well illustrated by this case. The fiscal and emotional toll on all those involved has been high. It has involved many hours, many witnesses and caused much antagonism and distress for all parties.
Ultimately this case serves to highlight two significant matters:
(a)first, the often unforeseen consequences that can arise for those who choose to engage in online discussion forums – particularly those who wish to speak their mind through personal and abusive attacks without any measure or respect for civil engagement but also to the recipients of such purges who seek re-dress through the courts; and
(b)secondly (and this is not a novel proposition), the ubiquitous nature of online discussion forums raise a myriad of complex legal issues in the context of the law of defamation (and more broadly) which warrant considerable legislative focus and solution.
Factual Background
2.1 About the plaintiff
The plaintiff and her husband (who is also a teacher at the school) and their three children reside at Mount Tamborine which at the time had a population of about 7000. The Brose family have lived in the area for 20 years and are well known in the local community. The children attend the School.
The plaintiff is the holder of a Bachelor of Science and a Graduate Diploma in teaching which she completed in 1989. She has been employed as a teacher by the Department of Education since 1990. The plaintiff taught at a number of locations including Emerald, Capella, Kilcoy, Toowoomba Macgregor and Murgon before becoming the principal of the School in approximately 2000.
In 2016, approximately 850 students attended the School and there were 110 teachers.[8] The deputy principals at the School in 2016 were Rosemary Falconer, Jackie Anderson and Graeme Locastro. They were all called by the plaintiff and gave evidence on her behalf at the trial.
[8]There are now 140 teachers at the School and 1,020 current students.
The plaintiff’s contribution to her local community is impressive and recognised by her receipt of a number of awards. In 2002, she was awarded the Scenic Rim Australian of the Year for her work “in turning Tamborine Mountain State High School around and setting a foundation for a good school.”[9] In 1994, she was awarded the Queenslander of the Year Telecom Environmental Award and in the same year she was also awarded the Australian of the Year Telecom Environmental Award. In 2008, the plaintiff was awarded the International Women’s Day Award for South East Queensland for her work in mentoring and working with aspiring leaders. The plaintiff also held community roles as a member of the local Zonta Group from 2002 until 2009 and is currently a member of the Mount Tamborine Chamber of Commerce.[10]
[9]Transcript 1-25, ll 42 to 44.
[10]Transcript 1-25 to 1.26.
2.2 Plaintiff’s suspension as Principal in February 2016
On 15 February 2016, the plaintiff received a letter from the Department of Education telling her that she was suspended immediately from her role as the principal of the School while allegations into alleged inappropriate conduct whilst employed as principal at the School were being investigated.[11] The plaintiff first knew of the allegations in December 2015.[12]
[11]Exhibit 18.
[12]Exhibit 19 – the letter of 8 March 2016 from the Department of Education refers to this fact.
The letter of 15 February relevantly stated:[13]
“During the course of your suspension, you are directed not to enter any departmental school site, unless you have sought and obtained the prior approval of your departmental contact. Further, you are directed not to contact any students or staff of the Department during the course of your suspension, without first obtaining permission from your departmental contact [Mr Alan Jones]. This direction includes, but is not limited to, verbal / physical contact and the use of electronic communications/ social networking mediums.”
[13]Ibid at page 2.
Upon receiving the suspension notice, the plaintiff said she was initially shocked. She received a phone call to come to a meeting at district office two hours later. The plaintiff said she was worried for her family’s financial stability as she was unaware as to whether her suspension was with or without pay (although I note the letter expressly states the suspension is with remuneration). The plaintiff showed this letter to her legal counsel, husband and a person she described as “the Queensland Teachers Credit Union support person”. It later transpired this person was Ms Falconer, one of the deputy principals, and a close personal friend of the plaintiff who was present in court with the plaintiff on many of the interlocutory applications and during most days of the trial. She also gave evidence at trial. Ms Falconer’s evidence, which I accept, was that she spoke to the Plaintiff on 15 February 2016 and that the Plaintiff sounded shocked and was crying.
The plaintiff’s evidence was that while she was under investigation she was “very confident, functioning normally” and “was preparing my responses”.[14] She said that she did not feel like something was wrong because she felt suspensions were not punitive; rather, they were administrative actions taken to ensure investigations happen transparently.[15]
[14]Transcript 7-29, l 30.
[15]Transcript 7-29, ll 37 to 39.
On 16 February 2016 Mr Hows, the President of the School P&C association from March 2012 until March 2019, was contacted by Ms Falconer and told that the plaintiff had been suspended from her role as principal. Up to that point Mr Hows had regular contact with the plaintiff in his role as President of the P&C and enjoyed a good working relationship with her. He considered the plaintiff a wonderful principal.[16]
[16]Transcript 4-61, l 35.
Prior to being told formally of her suspension Mr Hows had heard this news from a parent from another school at Beaudesert. He began screening enquiries from parents about the plaintiff’s suspension. Between 16 and 18 February 2016 he received more than 30 phone calls or emails from parents at the School wanting to know what had happened to the plaintiff. These enquiries were laced with rumour and innuendo and included “speculation around conduct that would have broken school rules or codes of ethics or operating procedures.”[17]
[17]T4-62.42 – T4-62.44.
The letters were not produced at trial but I accept that Mr Hows wrote to the relevant representatives of the Education Department over this time and expressed his concern about the lack of information coming from them. In doing so I also accept that he highlighted his concerns about the plaintiff’s distress and the need to communicate to the parents and the community about when the issue would be resolved.
This correspondence fell on deaf ears and the rumours continued. Consequently, on 2 March 2016, Mr Hows again wrote to the Education Department about the speculation in the community surrounding the plaintiff’s absence. Mr Hows’ evidence about this speculation at this point, which I accept, was that:
“Multiple things that were speculated, along the lines of her having physically assaulted a teacher or bullied a teacher or bullied and expelled students unlawfully, had sex with a year 12 male student and then become pregnant. There’s probably half a dozen things that – that were popping up commonly.”[18] [Emphasis added]
[18]T4-63.27 – T4-63.31.
At this point, parents and teachers at the School were not formally told by the Department of Education that the plaintiff had been suspended: the official story was that she was on leave. It was not a well-kept secret. I accept the evidence of Mr Hows that from 16 February 2016 knowledge of the plaintiff’s suspension was out in the community and rumour and innuendo was rife.
Mr Hows did not have any contact with the plaintiff about her suspension. He assumed that she was distressed about what had happened. Despite the protestations of the plaintiff to the contrary, which are discussed later, I find Mr Hows’ concerns and assumptions were genuine and reasonable, as was his desire to quell the rumour and innuendo infiltrating parts of the School and broader community at that time.
2.3 Establishment of online forums to support the plaintiff
The issue came to a head as a result of a P&C meeting at the School on 5 March 2016 at which it was decided to draw the Education Minister’s attention to the situation through the creation of an online petition. As a result of this meeting Mr Hows set up a petition entitled “A Fast and Fair Resolution for Tracey Brose” on a website called ‘Change.org,’ which Mr Hows described as a standalone site that has thousands of petitions on it globally.[19] Those who accessed the specific page on which Mr Hows’ petition appeared were able to electronically add their name to the petition and write comments.
[19]T4-47.38 – T4-47.40.
The petition went live on the Change.org site at 6.03pm on 7 March 2016. The preamble to the Petition – written by Mr Hows is both instructive and relevant:[20]
[20]Exhibit 1.
“Our community is in turmoil; we have just lost our Tamborine Mountain state High School (TMSHS) Principal Tracey Brose who has been suspended without notice or explanation to our school community. Repeated attempts by the Parents and Citizens’ Association President over the past 3 weeks to get clarification from the Queensland Education Department (DET) on if or when Tracey will return to her role have failed.
Tracey has served the Tamborine Mountain Community for 16 years and her leadership as principal has formed the bedrock for the quality of our young people who leave high school well educated, disciplined and ready to enter the next phase of their lives.
Many of our students, teachers and families are suffering from uncertainty, distraction, fear and anxiety. The effect on student and teacher morale is likely to flow into poorer education results, the longer this is left unresolved.
We now have an acting principal until further notice, who can also start making changes that undermine the values, beliefs and high standards of education and discipline our schools reputation and results have been built upon.
DET have now broken several assurances made by phone, email and text over the past 3 weeks, back-tracked on a commitment to communicate to our community and have actively blocked P&C attempt to send a newsletter update to parents. We don’t believe they are being honest, transparent or fair with the way they are handling this process.
Vote for change, sign the petition to help us force decisive action from the Education Minister; The Honourable Kate Jones.
The outcomes we are are seeking from the Minister:
1.To expedite the resolution of the outstanding issues that relate to Tracey Brose’s suspension (on 22 February) and complete the investigation by 11th April 2016.
2.That an independent legal counsel (to be approved by both parties) be appointed to oversee the process and ensure a fair and impartial outcome is achieved.
3.That the cost of this counsel is to be paid for by EQ.
4.If at resolution of the outstanding issues, it is found that Tracey Brose is suitable to continue in her role as School Principal, that she immediately be reinstated to her current role at Tamborine Mountain State High School…” [Emphasis added]
Mr Hows was dedicated to garnering support for the plaintiff. At the same time he set up the Petition, Mr Hows also created a “Support Tracey Brose” Facebook page and he attached a link to the Petition on this page. He paid $12 to Facebook for a “boost promotion”[21] to target the Tamborine Mountain community so that as many people as possible would see the page. Mr Hows also shared the Facebook page with about a dozen other Tamborine Mountain Facebook groups that he selected to draw the “widest possible attention to the plight.”[22] He also spoke to a journalist from the Courier Mail about the plaintiff being suspended, emailed the link to the Petition to the local papers and distributed 200 flyers around the mountain directing the community to the Facebook page and the Petition.
[21]T4-48.22.
[22]T4-48.37 – T4-48.43.
Mr Hows had sole access as the administrator of the Facebook page but according to his evidence, which I accept, when this page went live “anybody” could access it and input content and comments. Mr Hows accepted that by creating the Petition it provided an opportunity for both positive and negative comments to be made about the plaintiff.
I find that Mr Hows established both the Petition and the Facebook page without the plaintiff’s knowledge.
After the Facebook page went live Mr Hows continued to field calls speculating about the plaintiff’s situation - including whether she:[23]
“[had] sex with a year 12 student and is pregnant, she’s been suspended for assaulting a student. She’s been suspended because four different families have got together and had that occur because she illegally expelled somebody from the school, and a number of things along that kind of line of kind of commentary, and so people were ringing me to clarify what they read or they were ringing to ask what they’d read that she’d done some evil things to specific students according to Facebook and asking me to clarify if that was the real reason why she was suspended, and I didn’t know the answers to that so I couldn’t really say.” [Emphasis added]
[23]T4-49.21 – T4-49.29
Mr Hows checked the numbers of signatures on the Petition on a daily basis. There were 494 signatures in the first 36 hours and 600 signatures within the first 48 hours and then interest started to taper off. Mr Hows posted these numbers on the Facebook page to encourage more people to sign the Petition. He read the comments being posted on the Change.org site and the Facebook page. He recalled “nasty comments” about the plaintiff being mostly on the Facebook page. [24] Mr Hows did not think to remove these comments because he was focused only on trying to bring attention to the issue of the plaintiff’s suspension.
[24]T4-60.12.
2.4 The Content of the posts on the Online Forums
In order to give context to the plaintiff’s case it is necessary to consider generally all of the posts about the plaintiff - not only the ones she ultimately sued on.
Exhibit 14 is a copy of the Change.org site in the form it existed as downloaded by Mr Hows in June/July 2019 and tendered through him at trial.[25] Mr Hows’ evidence, which I accept, is that there were about 34 more posts on this site when he closed the Petition. – including those of the first and second defendants. As discussed in more detail below at [78]-[81] and [86], the contents of the “other” 32 posts is unknown – as is how and when they were removed.
[25]Exhibit 2 and Exhibit 3, as discussed in paragraphs [78]-[81] of these Reasons, shows 3 posts from the Change.org site that are not apparent on the face of Exhibit 14.
On the face of it, this document shows 609 signatures on the Petition and 266 comments. Objectively most of the comments posted on the Change.org site (as it now exists) were made by those who signed the Petition [some specifically refer to having signed the Petition]. The overwhelming majority speak of the plaintiff in a very positive way: tough but fair - an amazing, fantastic and excellent principal. A considerable number of comments focus on concerns around the lack of transparency and information about the plaintiff’s suspension. There are a smattering of other comments (four in all) which are not complimentary of the plaintiff nor relevant to this case.
The Facebook page contains about 92 posts.[26] Of these, 9 are posts made by the page administrator (7 of which encourage visitors to sign the petition and 2 of which are purely administrative). The remaining 83 posts are comments left by page visitors. Of these, 3 are replies which are referenced but not visible on the face of Exhibit 13. The rest can either be categorised as “positive” (ie, indicative of support for the plaintiff), “negative” (ie, critical of the plaintiff or of the efforts to support the plaintiff), or “neutral” (ie, they contain irrelevant commentary, tags of other users, or impartial speculation about the suspension process.) About 11 of the posts could objectively be classified as supporting the plaintiff (five of which were by the same person). Generally speaking these “positive” posts described the plaintiff as: tough but someone who gets you ready for the real world; a very good principal - strict but supportive, encouraging and someone who provides a top notch education to students; being responsible for a number of success stories; and the creator of one of the highest achieving schools in this state if not the country.
[26]Exhibit 13.
About 47 posts are non-supportive of the plaintiff (though some of these posts are authored by the same person). It is not constructive or necessary to repeat these posts word for word but leaving aside the ones that were ultimately sued on as set out below, the “negative” posts described the plaintiff as: a bully; intimidating; narcissistic; manipulative; prone to extremes; abusive; the enforcer of unnecessary rules; and a principal who favoured better performing students. The remainder of the Facebook posts are uncontroversial and fairly neutral.
2.5 The plaintiff’s decision to sue and the posts the plaintiff sued on
The plaintiff was unaware of the establishment of the Petition or of any of the online commentary about her until some unknown time on 7 March 2016 when she received a number of text messages from different people (whose names she cannot recall) stating things such as “Ignore the keyboard warriors; they’re cowboys; they’re cowards; am I allowed to sign petition; It’s yuk.”. She assumed there must be something online because of the reference to keyboard warriors. She did not have Facebook so she rang her younger brother Daniel and asked him to have a look online. Daniel was aware of the comments and, at the plaintiff’s request, read some of them out to her. He also took screen shots and sent some of them to her. It was not clear whether they were emailed or sent by text to the plaintiff. The plaintiff did not say what comments were read out to her or sent through to her. Daniel did not give evidence at trial. The screenshots he sent were not in evidence.
The plaintiff said that over a three-day period, her brother regularly sent her screenshots “of what was on Facebook”. Given the evidence from Mr Hows about the link to the Change.org site being on the Facebook page it is reasonable to infer that the comments on the Change.org site could potentially be accessed from the Facebook page by then going into the Change.org website from that page. Whether or not they were is, of course, a matter of evidence. The plaintiff did not realise she could go directly to the Change.org website without needing to be a Facebook member until about three days after her brother started sending her screen shots.
Approximately two days after the Change.org Petition and Facebook page went live, unbeknown to Mr Hows, the rest of the School and the broader community, the plaintiff received another letter from the Education Department. This letter was dated 8 March 2016 but received on 9 March 2016.[27] The effect of this letter was that four allegations relating to her conduct as principal had been found to have been substantiated on the balance of probabilities. This meant that the plaintiff was to remain suspended.
[27]Exhibit 19; T7-9.11 – T7-9.12
Three points must be made about this letter. First: this finding was subsequently overturned on 31 May 2016 following a grievance process instigated by the plaintiff;[28] secondly, the plaintiff was reinstated as principal at the School from June 2016;[29] and thirdly, the reasons for the plaintiff’s suspension and reinstatement are not under review in this case. The relevance of the letter and its contents lies in its timing. The plaintiff’s subjective knowledge at the time is relevant to a number of aspects of her case: the broader issue of how the allegations and suspension subjectively affected her (or moreover did not affect her) at the time is relevant to her credit; and the issue of how the plaintiff felt about the suspension and how it was handled by the Education Department is relevant to the issue of damage to reputation and assessment of the plaintiff’s hurt and distress.
[28]Exhibit 35.
[29]Exhibit 76.
The plaintiff explained she commenced proceedings against all of the defendants because “as a Principal, your brand, your uniqueness is your reputation”.[30] The plaintiff made a forensic decision about whom she sued. She limited the number of defendants to eight - the ones with “the most likely prospects [of success]” to make the case manageable. Otherwise, defendants were selected if they were not current students or parents at the School and if they owned property. The plaintiff was entitled to make a forensic decision as to who she wanted to sue. But there was no evidence and I find, that none of those who avoided being sued were served with a concerns notice, apologised, removed posts or paid any money to the plaintiff. Many of these posts contained comments similar to those made by the individuals the plaintiff chose to sue. The fact that there were other similar posts to those of the defendants is not relevant to ascertaining whether those posts sued upon are defamatory, but this evidence is relevant in my view to the plaintiff’s credibility, particularly in relation to her claim that she only wanted an apology and for people to be held accountable for their actions.[31]
[30]Transcript 2-32, l 39.
[31]Transcript 8-32, ll 37-38; 8-41, ll 43-44; 9-64, ll 42-43.
Issues common to the plaintiff’s case against each of the remaining defendants
The determination of the liability of the defendants to the plaintiff in defamation in respect of each of their posts requires a consideration of three issues common to each of them. These are:
(a)How do you determine if the post is capable of bearing the imputation pleaded?
(b)How do you determine if the post is defamatory?
(c)What was the extent of the publication of the posts?
3.1 How do you determine if the post is capable of bearing the imputation pleaded?
The onus is on the plaintiff to prove that the alleged imputations are defamatory. It is a question of law as to whether each of the publications are capable of bearing the imputations pleaded by the plaintiff to the ordinary reasonable reader.[32] But this question has a low threshold. As the President of the Queensland Court of Appeal observed relevantly in Queensland Newspapers Pty Ltd v Palmer: “different minds could reasonably reach different conclusions as to whether the pleaded imputations are to be drawn from the article,” but “it cannot be said that the ordinary reasonable reader, unequivocally could not draw the pleaded imputations.” [33]
[32]Queensland Newspapers Propriety Limited v Palmer [2012] 2 Qd R 139 at 19; Woolcott v Seeger [2010] WASC 19 at [10].
[33]Ibid at [2].
In determining whether the words used in the publication are capable of bearing the pleaded imputations, the guiding principle is one of reasonableness.[34] The ordinary reasonable meaning of the matter complained of may be either the literal meaning of the published matter or what is inferred from it. But any strained or forced or utterly unreasonable interpretation must be rejected.[35]
[34]Queensland Newspapers Proprietary Limited v Palmer [2012] 2 Qd R 139 citing Lewis v Daily Telegraph Ltd [1964] AC 234, 259, 266.
[35]Favell v Queensland Newspapers Pty Ltd [2005] 221 ALR 186, 189-190 [9].
The intention of the defendant is not relevant due to the requirement to apply the reasonableness test.[36] Similarly, the meaning of the words cannot be determined by evidence from the parties, but only by the interpretation reached through the ordinary reasonable person’s understanding of the words.
[36]Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181 at 189 per Lander J.
The court is to assume that an ordinary reasonable reader: does not live in an ivory tower, but is a person of “fair, average intelligence who is neither perverse nor morbid nor suspicious of mind or avid of scandal”;[37] reads the publication as a whole, and tends to strike a balance between the most extreme meaning that the publication could have and the most innocent meaning; reads between the lines and has a capacity for implication that is greater than that of a lawyer.[38]
[37]John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 201 ALR 77 at [26].
[38]Queensland Newspapers Proprietary Limited v Palmer [2012] 2 Qd R 139 at [19], [20], [22] citing Lewis, Jones v Skelton (1963) 1 Weekly Law Reports 1362, 1370; approved in Favell; John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 201 ALR 77 at [26].
The mode, manner or form of publication is also a material matter in determining what imputation is capable of being conveyed.[39] For example, the case of DG Certifiers Pty Ltd & Anor v Hawksworth [2018] QDC 88 concerned negative reviews published on a website inviting reviews of the plaintiff’s business. In that case, Rosengren DCJ relevantly observed:[40]
“[60] The plaintiffs have pleaded the imputations in general terms. A determination of whether statements about a particular incident, for example one involving untruthfulness, is capable of supporting a general imputation to the effect that a plaintiff is generally untruthful, is dependent on a careful analysis of the specific circumstances including the wording of the statements. The subject websites allowed for and in fact invited clients of the plaintiffs to write reviews about their experiences with the plaintiffs. They were clearly forums allowing clients of the first plaintiff to provide to other potential clients their accounts of their respective personal experiences of aspects of the services provided by the plaintiffs. By virtue of these matters, I consider the contents of the defendant’s reviews regarding his experiences with the plaintiffs, are not capable of supporting the more general imputations pleaded.” [citations omitted] [emphasis added].
[39]Ibid Palmer [19] at [22].
[40]DG Certifiers Pty Ltd &Anor v Hawksworth [2018] QDC 88 at 60.
3.2 How do you determine if the post is defamatory?
Once the legal issue of whether the publication is capable of carrying the pleaded imputations is resolved, it is then a question of fact whether the publication conveys a defamatory meaning. The test is whether, under the circumstances in which the matter was published, an ordinary reasonable person would understand the published words in a defamatory sense.[41] A matter is defamatory if it is likely to cause an ordinary reasonable person to think less of the plaintiff or to shun or avoid the plaintiff.[42]
[41]Favell v The Queensland Newspapers Pty Ltd (2005) 221 ALR 186 at [11]-[13]; Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500, 505-506, 507.
[42]Radio 2UE Sydney Pty Ltd v Chesterton (2009) 254 ALR 606 at [37]-[40], [49].
The test for determining whether the meaning is defamatory includes similar considerations as the one for determining whether the imputations are capable of being carried. For example, the authorities establish that:
(a)The defamatory meaning need not be conveyed directly by the words themselves. It can arise from inferences drawn or by implications which are reasonably capable of arising from the words published.[43] It is ultimately a matter of impression.[44]
(b)The natural and ordinary meaning of words may be their literal meaning or may be an implied, inferred or indirect meaning.[45]
(c)The interpretation of the subject publication must be approached in an objective and fair manner.[46]
(d)The interpretation of the subject publication involves a consideration of the publication as a whole, including the forum and context in which it is published and the mode or manner of the publication.[47]
[43]Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 641 per Mason and Jacobs JJ.
[44]Lewis v Daily Telegraph [1964] AC 234 at 260 per Lord Reid.
[45]Jones v Skelton (1963) 1 Weekly Law Reports 1362, 1370.
[46]Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165; John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 at [23]-[26].
[47]Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 at [17]; Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at 165; Watney v Kencian & Anor [2017] QCA 116.
Some further guidance in determining how to correctly interpret meaning is found in the observations of Sir Anthony Clarke in Jeynes v News Magazines Ltd, [48] as follows:
[48]Jeynes v News Magazines Ltd [2008] EWCA Civ 130.
“…
(1)The governing principle is reasonableness.
(2)The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available;.
(3)Over-elaborate analysis is best avoided;
(4)The intention of the publisher is irrelevant;
(5)The article must be read as a whole, and any “bane and antidote” taken together;
(6)The hypothetical reader is taken to be representative of those who would read the publication in question;
(7)In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, “can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation …
(8)It follows that “it is not enough to say that by some person or another the words might be understood in a defamatory sense.” [49]
[49]Jeynes v News Magazines Ltd [2008] EWCA Civ 130 at [14].
3.2.1 Intersection between Insults or Abuse and Defamatory Matter
Many of the words used by the defendants in this case are plainly insulting and abusive. It follows that it is necessary to consider whether matters that are ‘insulting’ are distinguishable from matters which are defamatory in nature.[50]
[50]See eg. Bennette v Cohen (2005) 64 NSWLR 81; Mundey v Askin [1982] 2 NSWLR 369; and Yunghanns v Colquhoun-Denvers [2019] VSC 433.
The authorities clearly establish that it is possible for words to be abusive or insulting without meeting the threshold of being defamatory – or to “injure a man's pride without injuring his reputation.”[51] But insulting or abusive comments can also be defamatory in nature. There is no magic in simply finding that a matter is ‘insulting,’ and no mutually exclusive distinction can be drawn between ‘insults' or ‘vulgar abuse’ and ‘defamation’.[52]
[51]Mundey v Askin [1982] 2 NSWLR 369 at 372.
[52]Bennette v Cohen (2005) 64 NSWLR 81 at [51].
The test for determining whether an insulting or abusive imputation is also defamatory remains a question of whether the insulting words would tend to lower the reputation of the party insulted in the eyes of the ordinary, reasonable person.
3.2.2 Importance of Forum & Context
The authorities clearly establish that forum and context are crucial considerations in determining whether a publication is defamatory.
The following observations of the Queensland Court of Appeal in Watney v Kencian[53] are instructive on this issue:
(a)The form in which words are communicated may affect the meaning they convey to an ordinary, reasonable person – by way of the transient nature of the medium;[54]
(b)The mode of publication can affect the way in which the ordinary reader absorbs the information, including the amount of time they devote to reading or viewing it;”[55]
(c)It is necessary to consider the context in which the words were used and the whole of the publication;[56]
(d)Words that are not defamatory in isolation may acquire a different meaning when they are read in the context of other statements;[57]
[53]Watney v Kencian [2017] QCA 116 per Applegarth J.
[54]With reference to Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158,166; Australian Broadcasting Corporation v Reading [2004] NSWCA 411 (15 November 2004), [121]-[122]; Rolph, Defamation Law, Law Book Co 2016 [6.160].
[55]Ibid Watney v Kencian [2017] QCA 116 at [50][19] with reference to Monroe v Hopkins (2007) EWHC 433 (QB) [32]-[34].
[56]Favell v Queensland Newspapers Pty Ltd [2005] 79 ALJR 1716, 1721 [17].
[57]Ibid Favell v Queensland Newspapers Pty Ltd [2005] 79 ALJR 1716, 1721 [17].
Words or sentences may be considered defamatory but there may be other passages which take away their sting.[58] But the mere presence of inconsistent assertions or a denial does not necessarily remove the defamatory charge or prevent the article being defamatory.[59] For example:
(a)Sometimes (but rarely), the inclusion of additional words completely remove something disreputable to the plaintiff stated in one part of the publication; “the bane and antidote must be taken together”;[60]
(b)Whilst the reasonable reader considers the context as well as the words alleged to be defamatory, this does not mean that the reasonable reader does or must give equal weight to every part of the publication: “The emphasis that the publisher supplies by inserting conspicuous headlines, headings and captions is a legitimate matter that readers do and are entitled to take into account.”[61]
[58]Gatley on Libel and Slander, 12th Ed Thompson Reuters (2013) [3.31]
[59]Gatley on Libel and Slander, 12th Ed Thompson Reuters (2013) [3.31, 32(2)]; John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 at [26] citing Savige v News Ltd [1932] SASR 240; Hopman v Mirror Newspapers Ltd (1960) 61 SR (NSW) 631; Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669.
[60]Chalmers v Payne (1835) CM & R 156 at 159; 150 ER 67 at 68.
[61]John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 at [26].
The question of the impact of the forum and context is a vexed one in cases such as the present one which involve publications made on social media online forums. In Monroe v Hopkins, the English High Court relevantly observed that:[62]
“These well-established rules are perhaps easier to apply in the case of print publications of long standing such as books, newspapers, or magazines, or static online publications, than in the more dynamic and interactive world of Twitter, where short bursts of pithily expressed information are the norm, and a single tweet rarely exists in isolation from others.”
[62]Monroe v Hopkins (2007) EWHC 433 (QB) at [34].
Despite the difficulties identified in ascertaining precisely what parts of the larger social media eco-system make up the relevant context, the court in Monroe found that:
“[34]… A tweet that is said to be libellous… may well need to be read as part of a series of tweets which the ordinary reader will have seen at the same time as the tweet that is complained of, or beforehand, and which form part of what Mr Price has called a “multi-dimensional conversation.”
[35]…. [Twitter] is a conversational medium; so it would be wrong to engage in elaborate analysis of a 140 character tweet; that an impressionistic approach is much more fitting and appropriate to the medium; but that this impressionistic approach must take account of the whole tweet and the context in which the ordinary reasonable reader would read that tweet. That context includes (a) matters of ordinary general knowledge; and (b) matters that were put before that reader via Twitter.”[63]
[63]Monroe v Hopkins (2007) EWHC 433 (QB) at [34]-[35].
A comment made as part of a discussion forum such as the Facebook page or the Change.org site in the present case, is clearly analogous to the “multi-dimensional conversation” discussed in Monroe.
It follows and I find that: it is relevant and necessary to examine the posts complained of in this case in the context they were posted; and, as part of the broader conversation that occurred on both sites; and, that such a task is not complete without a discussion and recognition of some of the more general and commonly known characteristics of social media.
The global proliferation of online forums over the last decade have prompted courts both in Australia and in overseas jurisdictions to identify unique contextual features of social media forums which can be used to distinguish modern cases from those that emerge from more traditional mediums. Six general propositions emerge from a consideration of these authorities in the context of this case.
First: in the present case Mr Hows established and administered both sites. As discussed in more detail below, [64] he observed the negative comments coming through particularly on the Facebook page but he did not think to take any steps to remove them or to take down the sites. He closed both sites six days later because he achieved his goal of obtaining a significant number of signatures in support of the plaintiff and he did not have time to keep monitoring the Facebook page. These facts highlight and exemplify what is common knowledge: that social media spaces are relatively unregulated. Whilst broad terms of service may apply to users of particular social networking sites, enforcement of these terms often relies upon other users taking up the role of moderators (for example, users voluntarily assume the role of moderator by managing the visibility of comments and posts on specific Pages or Groups they create, or by reporting other users to user-moderators or to the host website directly). Other Australian jurisdictions[65] have considered how user-moderation practices may impact issues of publication in defamation proceedings. It follows that moderation and regulation is rarely consistent even within particular social media sites.
[64]See the discussion in section 3.3.2 of these Reasons.
[65]See, eg. Voller v Australian News Channel Pty Ltd [2019] NSWSC 766 (24 June 2019) at [203-205].
Secondly: it is also common knowledge that social media sites have become notorious as breeding grounds for false or exaggerated claims, statements made with little or no explanatory context, and spaces where individuals air specific and personal grievances in obnoxious manners. It follows that there is a general acceptance in the community (and of course it will always depend on the circumstances) that online spaces are not the most reliable source of commentary and comments on such forums ought to be taken with a grain of salt – or ignored entirely. Even where online conversations are not inflammatory, the English courts have found that online discussions can be distinguished from more traditional, journalistic outlets because they more closely resemble:
“… contributions to a casual conversation (the analogy sometimes being drawn with people chatting in a bar) which people simply note before moving on; they are often uninhibited, casual and ill thought out; those who participate know this and expect a certain amount of repartee or ‘give and take… People do not often take a 'thread' and go through it as a whole like a newspaper article. They tend to read the remarks, make their own contributions if they feel inclined, and think no more about it.”[66]
[66]Smith v ADVFN [2008] 1797 (QB) at 14-16 per Eady J, cited in Judge Judith Gibson, ‘"Ridiculousness": Ridicule and defamatory meaning in the age of the Internet’ (Speech, College of Law, 27 August 2014).
Evidence of precisely this phenomenon emerged in the present case. The plaintiff’s friends told her to ‘ignore the keyboard warriors; they’re cowboys; they’re cowards; It’s yuck - Ignore it.”[67] Several of the plaintiff’s witnesses said they “skimmed” or became disengaged with the online conversation. Elizabeth Hele made a supportive comment on the Facebook page. Her evidence, which I accept, is most instructive on this issue. She only read comments that followed hers and when pressed by counsel for the plaintiff she said “Look, I basically said my piece, so I didn’t really want to go into all the negative comments that were on that page, but I do recall one about someone’s hair colour.”[68] Zarah Murray said she read quite a few comments (on the Facebook page) “and then it got a bit too much because they were quite – quite negative and full-on so I stopped going on there.”[69]
[67]Transcript 1-27, ll 9 to 12.
[68]Transcript 12-94, ll 43 to 45.
[69]Transcript 11-31, ll 12 to 14.
Thirdly: The ubiquitous nature of the unreliability of information posted online is such that the very fact that a statement appears on social media may, in conjunction with other cues, influence how that statement is interpreted. That is, the ordinary, reasonable reader of social media, being aware of the lack of thorough or consistent moderation inherent in social media forums, and being aware of the more general reputation of social media as containing a multitude of false or exaggerated claims, is likely in my view, to employ a more critical eye when interpreting social media posts. Consequently, (again depending on the circumstances), they may not give too much credence to the words used in specific posts. The observations of the Supreme Court of Colorado, (albeit made in the context of a letter published in the newspapers), lend support to the proposition that cues can be relevant in the interpretation of defamatory meaning: ”[70]
“The letter's placement in the editorial section of the paper also serves to put readers on notice that the assertions should be carefully scrutinized before being accepted as actual facts.”
[70]Keohane v. Stewart, 882 P.2d 1293, 1301 (Colo. 1994)); see also Queensland Newspapers Propriety Limited v Palmer [2012] 2 Qd R 139 at [22] where similar conclusions were drawn regarding allegedly defamatory material appearing in a gossip column.
Fourthly: Social media posts can vary hugely in their scope of publication. On the one hand, they are capable of being viewed by a global audience. But on the other hand, posts can be made in specific community groups dedicated to a particular topic. This narrower context can impact upon whether a reader would be more inclined to draw general conclusions from specific statements, or would be more likely to interpret statements as having narrow, personal meanings rather than general ones. In this sense English courts have determined that: “The hypothetical reader is taken to be representative of those who would read the publication in question.”[71]
[71]Jeynes v News Magazines Ltd [2008] EWCA Civ 130 [14].
In the present case, the posts appeared on sites dedicated to achieving a resolution to the uncertainty in the community about the plaintiff’s position as principal (whatever that may be) but moreover to elicit support for her. These sites clearly established a platform for those unsupportive of the plaintiff to voice their opinions. The hypothetical reader likely to frequent those specific pages would therefore be a person who had some nexus of connection either to the plaintiff personally, or else to the School more generally.
Fifthly: comments and posts made on social media forums are rarely read in isolation. The interpretation of individual comments can be greatly affected by other comments in the forum. Even comments made later in time. In this sense, it is possible for a post to mean one thing when read in context at one point in time, and something subtly different at a later point in time. The evolving nature of social media forums can make the task of assessing the precise meaning and impact of a particular post even more complex.
In this case, the posts sued upon are part of a long stream of other comments which on their face were made by a range of people, including parents, past students and other individuals with a personal connection to the School. As has been established: the two sites were connected; not all of the posts on the Change.org site are in evidence, and the ones that remain are overwhelming positive; most of the negative posts appeared on the Facebook page, but even still, the majority of comments on the Facebook page spoke positively of the plaintiff. There was obviously enormous support for her. In my view, the thread of posts across both sites must be considered as a whole and this consideration is one of the factors relevant to assessing how the ordinary reasonable reader would read and comprehend an individual post.
Sixthly: There are, as a matter of common sense, a number of unique textual features of social media posts which may impact upon their interpretation. Inclusion of emojis, pictures, and non-standard characters may influence meaning. Similarly, quirks of grammar, syntax and formatting all provide cues as to how the post is ultimately to be interpreted by a reader. For example, posts that contain improper or irregular spelling, capitalisation, grammar and syntax can create a tone of informality which, in conjunction with the presence of characteristics I have outlined above, may ultimately influence how much weight a reader places on a particular comment.
It follows and I find that ordinary reasonable readers of social media are alive to a wide range of cues as identified above which inform both the meaning and quality of the meaning conveyed.
3.3 What was the extent of the publications?
3.3.1 Proof of publication – discrepancy between Exhibits 3, 14 and 75
By their final written submissions, the first and second defendants contend that there is no evidence that their posts were ever published, so it must follow that the plaintiff’s case fails at inception.[72] In support of this submission they point to inconsistencies between Exhibits 3, 75 and 14:
(a)Exhibit 3 is a screenshot that shows the first and second defendant’s posts appearing on the Change.org website. The origin of this document is confusing. On its face, Exhibit 3 shows both a computer taskbar, which displays the date to be 29 March 2017, and an Internet Explorer window open to a page at the web address of “https://www.change.org...” The screenshot then appears to have been printed out and a handwritten annotation has been added to the print-out stating “change.org post from May 2017.” At one point the plaintiff referred to it being: “probably, live Facebook page [sic] …. It’s the support Tracey Brose page. I saw it through screenshots,”[73] although later she said it was a screenshot she had taken herself of the Change.org page on 29 March 2017.[74] More confusingly, the webpage depicted refers to there only being “300 signatures” on the petition, so it could not have been representative of the Change.org site in 2017, by which point the petition had been closed and marked ‘victorious’ for some 12 months, having reached almost 600 signatures. After cross-referencing Exhibit 3 with pages 1 and 2 of Exhibit 13, which contains petition “progress updates” posted to Facebook, I conclude that Exhibit 3 represents the comments of the first and second defendant as they appeared on the Change.org website at a point in time immediately before or shortly after 9.52pm on 7th March 2016, but certainly at no later point in time that 7.45am on 9th March 2016, when the petition had reached almost 500 signatures.
(b)Exhibit 75 is an email received by the plaintiff’s solicitors from Change.org in September 2019. It states that whilst Change.org keeps records of all comments posted to their petitions, their records did not include the comments that appear on the face of Exhibit 3.
(c)Exhibit 14 is a printout of the data from the Change.org website. It does not contain any reference to the comments that appear on the face of Exhibit 3.
[72]Annexure to final written submissions of the First and Second Defendant entitled “Review.”
[73]Transcript 1-29, ll 10-11.
[74]Transcript 2-5.
The first and second defendants submit that the apparent inconsistency between Exhibit 3, and Exhibits 14 and 75 means that I must conclude that the plaintiff has failed to prove publication of their posts.
I reject the first and second defendant’s submissions for several reasons:-
(a)First: by their pleadings they admit they published their posts (although I accept that the extent of publication was in issue); and at the time of these admissions they were legally represented; and, the trial was conducted on this basis.
(b)Secondly: they conducted their case at trial on the basis that they had each posted their posts on the Change.org site. For example most if not all of their cross examination or witnesses at trial was premised on their acceptance that they had authored and posted their respective comments on the Change.org site.
(c)Thirdly (and in any event), the discrepancy between Exhibit 3 and Exhibit 75 is not one which inevitably leads to the conclusion that it was impossible for the comments to have been published on Change.org. In fact, the likely reason for the discrepancy is apparent on the face of Exhibit 3:
(i)Firstly, the Facebook logo and the words “Facebook comment plugin” which appear on the face of Exhibit 3 denote that the first and second defendant’s comments were posted using a Facebook comment plugin – that is, a tool developed by Facebook which facilitates comments sections on websites other than Facebook.com (in this case, on Change.org). I consider that the question of who developed the comment-facilitating tool is not relevant to the question of where the comments were ultimately published, and that the comments were published to Change.org by virtue of the Facebook plugin.
(ii)The questions of why the staff at Change.org could not find the posts in their records, or why Exhibit 14 appeared to be an incomplete record of the Change.org posts, can then be answered by inference. As the first and second defendant point out in their final submissions, it seems that Change.org had also developed its own comment-facilitating tool aside from the Facebook plugin tool (which is evident from the aesthetic differences between comments made using the Facebook plugin and other comments made on the Change.org page). Again, there is no evidence before me as to whether the records said to have been kept by Change.org included comments posted using the comment tool developed by Facebook as well as the current comment tool, but I conclude that the existence of both the Facebook comment plugin and Change.org’s own comment-facilitating tool could explain the discrepancy between Exhibit 3 and 75. This inference could also explain why an estimated 34 comments appear to be “missing” from the face of Exhibit 14.
Taking all of the matters in (a)-(c) above into account, I find, on the balance of probabilities, that the first and second defendants’ comments were published on the Change.org website on 7 March 2016.
3.3.2 How long were posts accessible on the websites?
Before turning to the pleadings, evidence and arguments about the extent of publication in this case, it is instructive to consider the evidence about the accessibility of the posts on the two websites.
The Facebook page was live from 6.03pm, Monday 7 March 2016, until it was taken down by Mr Hows at 10.37 am, on Sunday 13 March 2016, with a parting comment from him as follows:[75]
“thanks to all that have supported this page, it’s served its purposed [sic] and raised awareness for helping the right people focus on bringing a resolution –whatever that may be, to this issue on behalf of our community. We are now removing this page.”
[75]Exhibit 13, page 1.
After Mr Hows removed the Facebook page he also changed the Change.org and Petition status to complete. The effect of Mr Hows closing down the Facebook page on 13 March 2016 was that although he could still access the page, no one else could view it as it was no longer public. He made no changes to the Facebook page after it was closed. Exhibit 13 is a print out of the Support Tracey Brose Facebook page as it existed when the page was closed on 13 March 2016 but printed by Mr Hows in mid-2019.
I accept Mr Hows evidence at trial that he closed these sites for two reasons. First, because of the number of signatures on the Petition [630] he considered the “job done”. Secondly, he did not have time to keep monitoring the Facebook page - which he read and included a number of “really nasty comments.”[76]
[76]Transcript 4-49, l 5.
Mr Hows did not say when he last went to the Change.org site – but I infer from his evidence that after he closed the Petition he did not visit this site until he was asked to print the copy in June/ July 2019 [Exhibit 14]. He did not remove the 34 or so missing posts and was unable to explain how they disappeared. The plaintiff had no knowledge as to why the comments are no longer on the Change.org site but she contacted the site four times in 2016 and three times in 2017 to ask “for the full petition or the comments only that were derogatory to be taken down.”[77]. The plaintiff received an automatic, non-substantive response. No document was tendered to support this evidence but as discussed above, a letter from the help desk at the Change.org website to the plaintiff’s solicitor dated 14 September 2019 was tendered at trial and this refers to there being no record of the first and second defendant’s comments.[78]
[77]Transcript 2-25.
[78]Exhibit 75.
The mystery of the removal of the 34 comments from the Change.org site was not solved at trial, though I have noted my inference in this respect at paragraph [80](c) above. In any case, I accept that the first and second defendant’s comments were removed at some unknown point after 13 March 2016.
The plaintiff’s evidence that she last saw the first and second defendant’s posts on the Change.org website on 22 May 2017 after being in court (the plaintiff’s pleaded case was that the posts were able to be viewed until June 2017). This evidence was not corroborated. For reasons discussed in more detail under heading ‘8. Matters of Credit,’ without corroboration, I do not accept the plaintiff as a reliable historian. It follows that I reject this evidence.
The evidence from the first and second defendants about when they last saw their posts was difficult to understand.
In her evidence in chief, the first defendant’s unchallenged evidence was that, when she received her Concerns Notice (dated 22 April 2016), she went to remove her post but that “it was already gone.”[79] Earlier in the proceedings, when cross-examining Mr Hows, she had also suggested to him that when she received her Concerns Notice she went to remove her posts and “they weren’t there” and that she could not access or remove them”.[80] Similarly, under cross examination, the first defendant said that she went back to remove her comment but there was no comment to remove [it is not specific to the first defendant’s Change.org or Facebook comment]:[81]
“And you didn’t reply to the letter, did you, from – the concerns notice. You didn’t write back to James McConvill & Associates?--- No, I didn’t have any need to. I went to remove my comment and I couldn’t, so no, there was no comment there for me to remove.”
[79]Transcript 13-47, ll 2 to 20.
[80]Transcript 4-74, ll 15 to 25.
[81]Transcript 13-63, ll 9 to 12.
The second defendant said that after receiving the Concerns Notice, he tried to remove and retract his statement. He said that his wife told him that she had tried to remove her comment but could not find it. The second defendant then went to find the Change.org website on the Facebook page and he went to where he had clicked on the link to the Change.org site. He said that he could not find the Facebook page. However, he could get onto the Change.org site. The second defendant tried to remove his comment as follows: [82]
“I managed to get myself onto Change.org. So I went in there, and on the Change.org – I can’t even remember the exact wordings. It basically says, “We have achieved our goal. Victory.” So then I tried clicking in to delete my comments and it wouldn’t let me. And then I thought to myself – I thought to myself, okay. It’s not letting me. …. Anyway, so I thought, okay, I can’t get in there. … So I left it.
I – I – like I just explained to you then, I actually went in there and went to Change.org, tried to get in, and I couldn’t get in because it wouldn’t let me, and it wouldn’t let me, because the page was shut. So once the page is shut, you can’t go back in there and comment; you can’t take anything off, because the page is shut.” [Emphasis added]”[82]Transcript 14-51, ll 9 to 13; 14-51, ll 9 to 13.
The plaintiff submits that the conduct of the first defendant in persisting with a justification defence was unjustifiable and, that the first defendant also persisted with gratuitous repetition of defamatory matter in court. I accept that the first defendant persisted in a justification defence which was ultimately struck out by another judge who also refused to permit these facts being pleaded in mitigation of damages on the basis that the allegations were baseless.[401]
[401]Brose v Baluskus [No 5] [2019] QDC 185 at [25] to [26] per Kent QC DCJ.
I also accept that the first defendant repeated a number of the pleaded imputations. But most of these I have found not to be defamatory.
In the overall circumstances, of this case, I am satisfied that the first defendant’s conduct of the proceeding and conduct during the trial did increase the harm to the plaintiff arising from the defamatory imputations carried by the first defendant’s post. But given the causation difficulty in isolating harm in this case, I find that only a very modest component should be allowed for aggravated damages.
Contacting Kylie Dobson
The plaintiff said that when she found out (through Ms Dobson) that the first defendant had contacted her on 3 March 2019 to ask Ms Dobson amongst other things if she had been poorly treated by the plaintiff, the plaintiff felt “undermined and insecure”.[402]
[402]Transcript 2-32, l 9.
The plaintiff submits that the issue with this conduct was not that the first defendant ought not to have contacted a potential witness but that the contact was unjustifiable because there was no issue in the proceeding about mistreatment of staff. The plaintiff’s submission refers to the defendant then making another defamatory statement about the plaintiff to this person.[403]
[403]Closing submissions of the plaintiff at [295].
At the point of time that the first defendant contacted Ms Dobson the parties were anticipating a four week trial. The first defendant could no longer afford consistent legal representation. Even accepting that it was a mistake and not an issue in the proceeding, Ms Dobson had been identified to the first defendant as a person who had some negative experience of the plaintiff. Such an experience I accept Ms Dobson denied at the time. The first defendant was entitled to contact Ms Dobson.
The fact that the plaintiff felt undermined and insecure about this contact is surprising given that Ms Dobson contacted the plaintiff shortly afterwards to tell her about her interaction with the first defendant. I accept the plaintiff’s evidence was that this was how she felt, but I do not consider it a rational or reasonable response in the circumstances of this case. In any event, I do not consider the first defendant’s conduct in the circumstances of this case justifies an award of aggravated damages.
Letter to the plaintiff’s solicitor
The first defendant sent an email to the plaintiff’s solicitor on 31 July 2019 which I accept was intimidating and apparently calculated to encourage the plaintiff to drop the proceedings.[404] The plaintiff said this email was extremely distressing to her. I accept that might be so. But it cannot be overlooked that the plaintiff set the tone of this litigation from the outset. Her Concerns Notice was aggressive and the evidence shows that she wrote other letters, including letters threatening to freeze the assets of the first and second (and sixth defendant). She unsuccessfully tried to stop the first and second defendants from selling their house. In the circumstances of this case, I am satisfied that the sending of this letter justifies a component of aggravated damages but only a very modest one.
[404]Exhibit 58.
The “wink wink” document in the plaintiff’s letterbox
The plaintiff sad that in August 2019 she went to the mailbox with her child and found six pieces of paper with the words “wink wink” written on them.[405] She rang the police about the matter. She said that receiving this paper scared her. I accept this evidence.
[405]Exhibit 12
There was a factual dispute about whether the first and second defendants were responsible for leaving the papers. The first defendant denied any involvement and said that she and her husband had been camping that weekend in New South Wales at the time the document was found. A receipt was tendered into evidence to support this evidence.[406] Both the first and second defendants denied they arranged for someone else to leave the documents for them. I accept this evidence.
[406]Exhibit 52.
The plaintiff submits that I would infer from other evidence that the first and second defendants were responsible for leaving the papers on the plaintiff’s letterbox.[407] There is some force to the plaintiff’s submission particularly given the same words “wink wink” appear in the earlier correspondence from the first defendant to the plaintiff’s solicitors. But I cannot be not satisfied on the balance of probabilities that both or either of the first and second defendants, or someone on their behalf, left these documents in the plaintiff’s letterbox.
[407]Closing submissions of the plaintiff at [301].
It follows and I find that this conduct cannot be included as part of an award of aggravated damages.
Pig snorting and statement made in the elevator
The plaintiff also claims a further entitlement to aggravated damages against the first defendant on the basis of her evidence, that on 7 September 2018 (when she had come to court with her legal team for one of the interlocutory applications), the first defendant :
(a)made “pig snorting noises” directed at her in the toilet; and
(b)then accompanied her to the lift and said “I hope you enjoyed wasting our time”. The first defendant had positioned herself towards the entrance of the lift, and the second defendant then told the plaintiff, “watch your back” and “Hows your house”.
The first defendant initially denied being in court that day. That is understandable given the passage of time and the number of interlocutory applications in this case. But then she later denied making these noises or being involved in the lift incident.
The plaintiff submits I should prefer the evidence of the plaintiff over that of the defendant. I reject this submission. I cannot be satisfied of the reliability of the plaintiff’s version.
None of these allegations were pleaded against the first defendant, despite there being a specific pleading against the second defendant in relation to the pig snorting and the lift incident on 7 September 2016. [408] Instructively, in that pleading, the allegation by the plaintiff is that it was the second defendant who said “hope you enjoyed wasting our time”. This suggests that the plaintiff’s evidence about these incidences involving the second defendant is a recent invention.
[408]Reply to second defendant at [8](vii)
It follows that I am not satisfied on the balance of probabilities that either of these events involving the first defendant occurred as the plaintiff alleges.
Aggravated damages claimed against the Second defendant
The plaintiff submits that there was conduct by the second defendant which was unjustifiable, improper or demonstrated a lack of bona fides such that it gives rise to claim for aggravated damages. In particular:
(a)His failure to apologise;
(b)The content of the second defendant’s pleadings, affidavits and submissions to the Court;
(c)The second defendant’s writing of a threatening email to the Plaintiff’s lawyers on 5 February 2018 stating:
“I highly recommend you ask your client if she is worried about her reputation dose [sic] she wants [sic] her dirty laundry aired to the public in court. I strongly suggest that she reads all the other comments on the petition and bas a good think about what her next move is as I’m not one to be told what I can and can’t do or say, keep in mind that I have nothing to lose. Your next email to me will either be that the claim is dropped or I’ll [sic] I will see you in court:)”
(d)The second defendant’s attempt to invade the plaintiff’s home at 9.30pm on Sunday 20 May 2018, while she and her husband were at home with their two children, in the course of which he broke through the front security grill and the glass component of her front door and threatened to kill her;
(e)The second defendant’s making of an online Facebook post at approximately 12.48pm on 21 May 2018 to the Mt Tamborine Community Message Board (for people in 4272/4271 and surrounds);
(f)The second defendant’s making of an online post to the Mount Tamborine Garage Sale website on 21 May 2018;
(g)The second defendant’s making of an online Facebook post on 25 May 2018 to the page “Mt Tamborine Community Message Board (for people in 4272/4271 and surrounds)”; and
(h)On 26 May 2018, the second defendant’s made a false complaint to police at the Tamborine Mountain Police Station to the effect that the plaintiff had made allegations on Facebook about him;
(i)the second defendant’s verbally and physically intimidating the plaintiff in the precincts of the Court as follows:
(i)at various times whilst waiting for the proceedings to be heard on 7 September 2018, whenever he was near the plaintiff the second defendant made snorting noises like a pig;
(ii)following the hearing of the applications listed on 7 September 2018 the plaintiff immediately sought to leave the Court as quickly as possible;
(iii)the plaintiff entered an elevator on the third floor with the intention of proceeding to the ground floor;
(iv)as the elevator doors were closing and were nearly completely closed the second defendant appeared at the elevator door and with both arms pulled open the doors of the elevator occupied by the plaintiff;
(v)the second defendant then entered the lift with the first defendant;
(vi)as the second defendant stood in the elevator he said:
(a)“Hope you enjoyed wasting our time;”
(b)“You better watch your back;” and
(c)“By the way, how is your house;”
(vii)as the said defendants entered the lift the plaintiff immediately tried to exit the elevator which was still located on the third floor of the building however the second defendant blocked the plaintiff’s exit;
(viii)the plaintiff had to move around the second defendant to get out of the lift and as she was doing so said words to the effect “You’re really going to do this? You are on clear bail conditions so leave me alone”; and
(ix)In response to the statement in [8] above, as the plaintiff sought to leave the elevator the second defendant make loud snorting noises.
(j)Sending a threatening email to the plaintiff’s solicitors dated 31 July 2019 stating inter alia:
“Best your client prepares herself for what we have install [sic] for her next because we are not done with her yet Mr Jones (wink, wink). You would know the saying ‘There is more than one way to skin a cat’. We did warn you if your client pursued us then we would air her dirty laundry out in public and we were not joking”; and
(k)on or about the evening of Sunday 11 August or the early morning of Monday 12 August 2019, leaving 6 pieces of A4 size paper in the plaintiff’s letterbox, each with the words “WINK WINK” typed on them, which were found by the plaintiff and her 15 year old daughter.[409]
[409]Reply to the second defendant at [7](b).
Failure to apologise
The second defendant did not apologise to the plaintiff. But for the same reasons articulated in relation to the first defendant, I am not satisfied that this failure has aggravated the harm to the plaintiff.
Second defendant’s pleadings and conduct during trial
For similar reasons as articulated under this heading dealing with the first defendant’s conduct, I am satisfied that a very modest award of aggravated damages ought to be awarded to the plaintiff for the harm suffered by the second defendant in maintaining parts of his justification defence; and the plea of mitigation, based on the plaintiff’s alleged dishonesty;[410] and for his repetition of defamatory in court, most relevantly she “gets rid of” underachieving students.
[410]Brose v Baluskus [No 5] [2019] QDC 185 at [25] to [26] per Kent QC DCJ.
Second defendant’s attendance at the plaintiff’s home on 20 May 2018
The plaintiff relies on the second defendant’s attendance at her home on 20 May 2018, during the course of which he broke through the security grill and glass component of her door and made threats of violence to her, as conduct entitling her to an award of aggravated damages. The evidence was that the second defendant was pushed over the edge after a writ of execution was executed over the first and second defendant’s home in relation to an unpaid costs order.[411] The schedule of agreed facts for the (then) impending sentence of the second defendant for offences arising from this conduct were tendered into evidence.[412] The plaintiff’s evidence was that this incident “made us feel violated and vulnerable in our own home. It terrified my children”. She gave other evidence about the ongoing impact on her and her family. I accept that evidence as a genuine reflection of the devastating impact of the second defendant’s conduct had upon her and her family.
[411]Transcript 14-27.
[412]Exhibit 64.
The second defendant submits that this evidence is not relevant to a claim for aggravated damages. I accept this submission.
There is a relatively wide breadth of conduct which may justify an award of aggravated damages but an award of aggravated damages is intended to compensate for conduct which has increased the harm originally caused by the publication of the defamatory material. The harm suffered by the plaintiff as a result of the second defendant’s attendance at her home is separate and distinct harm not causatively connected to the harm suffered by her as a result of the defamatory imputations found in the second defendant’s post.
This conduct by the defendant is serious criminal conduct and it has been appropriately dealt with in that jurisdiction. And in any case, the court has no power to award punitive or exemplary damages for defamation.[413]
[413]Defamation Act 2005 (Qld) s 37.
It follows and I find that this conduct does not support a claim for aggravated damages.
Second defendant’s Facebook post on 21 May 2018
The plaintiff relies on a post that the second defendant placed on the online Facebook page entitled “Mt Tamborine Community Message Board” at 12.48 pm on 21 May 2018 and submits that this post identified the plaintiff and was defamatory of her and that it is further aggravating conduct. The version of this post in evidence is very difficult to read but the post appears to attach a photograph of a writ of execution which I assume is the one issued over the first and second defendants’ property. Nearly every second word of the post is misspelt, and it does not repeat any of the imputations I have found defamatory in the second defendant’s publication, but I accept it is scathing of the plaintiff. Whether it is a separate defamatory publication in its own right is not an issue in these proceedings. I was not referred to any evidence from the plaintiff or anyone else about this post.
It follows that I am not satisfied that that this post justifies an award of aggravated damages.
Second defendant’s conduct on 7 September 2018
The final conduct relied upon by the plaintiff to support an award of aggravated damages is the second defendant’s alleged conduct in verbally and physically intimidating the plaintiff on 7 September 2018.
The plaintiff makes a number of allegations against the second defendant in her Reply to the effect that he verbally and physically intimidated her in the precincts of the court on 7 September 2016. [414] As in the allegations made against the first defendant, this involved another ‘pig snorting’ incident and the same lift incident the second defendant was alleged to have been involved in.
[414]Reply to second defendant at [7](b) (viii).
In terms of the pig snorting incident, the plaintiff’s pleaded case is that “At various times while waiting for the proceedings to be heard on 7 September 2018 whenever he was near the Plaintiff the Second Defendant made snorting noises like a pig.”[415] The plaintiff’s evidence at trial was that the second defendant snorted once at her during an adjournment or a break.[416] This evidence is a striking departure from her pleaded case. The plaintiff submits that there was an independent witness to the snorting noises and relies on the evidence of Ms Falconer. But Ms Falconer was not present when the second defendant was said to have snorted at the plaintiff, so her evidence does not corroborate the plaintiff’s evidence.
[415]Ibid at [1].
[416]Transcript 4-41, l 13.
The evidence about this incident is unsatisfactory and unreliable.
It follows that I cannot be satisfied on the balance of probabilities that the second defendant’s snorted once as alleged by the plaintiff at trial.
There is also a factual dispute about the lift incident. As discussed above, the plaintiff’s evidence departed from her pleaded case. By her pleading she alleged it was the first and not second defendant who said “hope you enjoyed wasting our time”. The plaintiff referred to the video footage shown at trial. But this footage does not advance the plaintiff’s version.
Again, the evidence about this incident is unsatisfactory and unreliable.
It follows, that I cannot be satisfied that the second defendant verbally and physically intimidated the plaintiff on 7 September 2016.
9.4 Summary of Findings as to Damages
A brief summary of my findings consistent with both my liability and damages analysis and relevant to my assessment of quantum in relation to the first and second defendants is set out below are as follows.-
(a)The defamatory imputations arising from the first defendant’s post are: ‘The plaintiff brings pain and stress on children who do not get “A”s’; ‘The plaintiff mistreats lower performing children;’ and, ‘the plaintiff mistreats lower performing children because those children affect her school ratings.’ The quality of these imputations falls at the lower end of seriousness. These defamatory imputations were initially published to at least 200 people, and then more broadly by virtue of the grapevine effect and the media coverage of this case.
(b)The defamatory imputation that I have to be defamatory arising from the second defendant’s post are: ‘the plaintiff is unjust;’ and ‘the plaintiff is not interested in children that are not high achievers.’ The quality of these imputations falls at the lower end of seriousness. These defamatory imputations were initially published to at least 200 people and, then more broadly by virtue of the grapevine effect and the media coverage of this case.
(c)Damage to reputation: There was some damage to the plaintiff’s otherwise good reputation arising from the circumstance and knowledge of her suspension prior to the first and second defendants’ defamatory publications; but the rational relationship between the first and second defendants’ publications and the subsequent damage to her reputation is very confined.
(d)Vindication: There is little need for vindication of the plaintiff’s reputation given the less serious nature of the defamatory publications and that to some extent she is vindicated by both this judgment and her reinstatement as principal.
(e)Hurt and distress: A very confined proportion of the hurt and distress suffered by the plaintiff is attributable to defamatory publications of the actions of the first and second defendants.
(f)General Damages must be mitigated to take into account some of the compensation received by the plaintiff.
(g)Aggravated damages: A component of the compensatory damages ought to include a very modest amount for aggravated damages.
9.4.1 Damages awarded against first defendant
Taking all of the above matters into account, in my view, compensatory damages in the sum of $3,000 bears an appropriate and rational relationship to the harm sustained by the plaintiff.
This is not an appropriate case for an award of interest.
It follows that the plaintiff’s damages against the first defendant are assessed in the sum of $3,000.
9.4.2 Damages awarded against second defendant
Taking all of the above matters into account, in my view, compensatory damages in the sum of $3,000 bears an appropriate and rational relationship to the harm sustained by the plaintiff.
This is not an appropriate case for an award of interest.
It follows that the plaintiff’s damages against the second defendant are assessed in the sum of $3,000.
9.4.3 Other matters
I have dismissed the claims against the third and sixth defendants. But if I had been required to assess damages, I would have assessed compensatory damages in the sum of $2,000 against each of them as bearing an appropriate and rational relationship to the harm sustained by the plaintiff. I would not have included a component for aggravated damages. Nor would I have awarded interest.
Injunctive Relief
The plaintiff seeks a permanent injunction restraining the first and second defendants from publishing defamatory material of them.
I am satisfied on the evidence that there is sufficient evidence that the first and defendants will continue to publish defamatory matter concerning the plaintiffs. I am also satisfied that the defendants will be likely to publish similar allegations against the plaintiffs unless restrained.[417]
[417]See paragraph 359 to 377 of the Closing submission of the plaintiff.
Costs
Under s 40(1) of the Defamation Act, in awarding costs in defamation proceedings, the court may have regard to:
(a)the way in which the parties to the proceedings conducted their cases (including any misuse of a party’s superior financial position to hinder the early resolution of the proceedings); and
(b)any other matters that the court considers relevant.
I will hear the parties if necessary on the question of costs. But there are a myriad of factors in this case that are relevant to the issue of costs, from all parties perspective. Subject to any further submissions, my current view is that each party should bear their own costs.
I will allow the parties until 4.00pm, Monday 16 March 2020 to provide short written submission of no longer than 2 pages, as to why another order should be made. These submissions should be emailed to the other parties and to my associate.
If no submissions are received by this time, the order I have foreshadowed will be made.
Orders
It is ordered that the first defendant pay to the plaintiff damages for defamation in the sum of $3,000 for publication of the imputations pleaded at paragraph 11(f),(g) and (h) of the further amended statement of claim filed on 3 October 2019.
It is ordered that the second defendant pay to the plaintiff damages for defamation in the sum of $3,000 for publication of the imputations pleaded at paragraph 16(f) and (i) of the further amended statement of claim filed on 3 October 2019.
The plaintiff’s claim against the third defendant is dismissed.
The plaintiff’s claim against the sixth defendant is dismissed.
The first defendant is permanently restrained by herself, and/ or her servants or agents, from publishing or causing to be published any of the matters complained of in paragraphs 11(f) (g) and (h) of the further amended statement of claim filed in these proceedings on 3 October 2019 or matters substantially to the same effect as those matters complained of.
The second defendant is permanently restrained by himself, and/or his servants or agents, from publishing or causing to be published any of the matters complained of in paragraphs 16(f) and (i) of the further amended statement of claim filed in these proceedings on 3 October 2019 or matters substantially to the same effect as those matters complained of.