Ashworth aka Otto v Nine Network Australia Pty Ltd (ACN 008 685 407); Otto (aka Ashworth) v Gold Coast Publications Pty Limited; Otto v Dailymail.com Australia Pty Ltd (No. 2)

[2019] NSWDC 188

District Court

New South Wales

Medium Neutral Citation:

Ashworth aka Otto v Nine Network Australia Pty Ltd (ACN 008 685 407); Otto (aka Ashworth) v Gold Coast Publications Pty Limited; Otto v Dailymail.com Australia Pty Ltd (No. 2) [2019] NSWDC 188

Hearing dates:

25, 26, 27 and 28 February 2019; 4, 5, 6, 7, 8, 11, 12, 13, 14, 19, 20, 21 and 26 March 2019

Date of orders:

16 May 2019

Decision date:

16 May 2019

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

(1) Judgment for the defendant in proceedings 2016/221796.
(2) Judgment for the defendants in proceedings 2016/338258.
(3) Judgment for the defendant in proceedings 2016/338264.
(4) Plaintiff to pay the defendants’ costs.
(5) Liberty to apply in relation to costs.
(6) Exhibits retained for 28 days.

Catchwords:

TORT – defamation – plaintiff brings claims for defamation for a broadcast and three online newspaper publications imputing he is famous for sleazy scams and shonky businesses, inter alia, that he engaged in dishonest business activities to trick young women into group sex – defences of justification and contextual justification – judgment for the defendants

Legislation Cited:

Bankruptcy Act 1966 (Cth), s 60
Civil Procedure Act 2005 (NSW), ss 56-62
Defamation Act 1974 (NSW), s 7A
Defamation Act 2005 (NSW), ss 23, 25, 26, 35 and 38
Evidence Act 1995 (NSW), s 140

Cases Cited:

Ajinomoto Sweeteners Europe SAS v Asda Stores Ltd [2010] All ER (D) 03 (Jun)
Arsic v Goodrich Aerospace Pty Limited [2007] HCATrans 68
Ashworth aka Otto v Nine Network Australia Pty Ltd (ACN 008 685 407); Otto (aka Ashworth) v Gold Coast Publications Pty Limited; Otto v Dailymail.com Australia Pty Ltd [2018] NSWDC 13
Bass v TCN Channel Nine Pty Ltd [2006] NSWCA 343
Besser v Kermode [2011] NSWCA 174
Browne v Dunn (1893) 6 R 67
Bryce v Rusden (1886) 2 TLR 435
Burstein v Times Newspapers Ltd [2001] 1 WLR 579
Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 11
Chel v Fairfax Media Publications (No 6) [2017] NSWSC 230
Cohen v Daily Telegraph Ltd [1968] 1 WLR 916
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Edwards v R (1993) 178 CLR 193
Fairfax Digital Australia & New Zealand Pty Ltd v Kazal [2018] NSWCA 77
Fairfax Media Publications v Zeccola [2015] NSWCA 329
Fleming v Advertiser News-Weekend Publishing Company Pty Ltd [2016] SASCFC 109
Gayle v Fairfax Media Publications Pty Ltd (No 2); Gayle v The Age Company Pty Ltd (No 2); Gayle v The Federal Capital Press of Australia Pty Ltd (No 2) [2018] NSWSC 1838
Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187; 66 NSWLR 186
Harbour Radio Pty Ltd v Trad [2012] HCA 44
Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682
Herald & Weekly Times Pty Ltd v Popovic (2003) 9 VR 1
Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96
Jeynes v News Magazines Ltd [2008] EWCA Civ 130
John Fairfax Publications Pty Limited v Blake (2001) 53 NSWLR 541
John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77
Jones v Dunkel (1959) 101 CLR 298
Li v The Herald & Weekly Times Pty Ltd [2007] VSC 109
Maisel v Financial Times Ltd [1915] 3 KB 336
Mallegowda v Sood [2019] NSWCA 37
Marsden v Amalgamated Television Services Pty Ltd [2000] NSWSC 520
Mizikovsky v Queensland Television Limited (No 3) [2011] QSC 375
Mizikovsky v Queensland Television Limited [2013] QCA 68
Mohammed v Nationwide News Pty Ltd (No 2) [2016] NSWSC 1365
Monir v Wood [2018] EWHC 3525 (QB)
Monroe v Hopkins [2017] EWHC 433 (QB)
Morgan v Odhams Press Ltd [1971] 1 WLR 1239
Mosslmani by his tutor Karout v DailyMail.com Australia Pty Ltd (ACN 166 912 465); Mosslmani by his tutor Karout v Nationwide News Pty Ltd (ACN 008 438 828); Mosslmani by his tutor Karout v Australian Radio Network Pty Ltd (ACN 065 986 987) (No. 2) [2016] NSWDC 357
Nanji v National Geographic Society 403 F Supp 2d 425 (D. Md., 2005)
National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309
Otto (a.k.a. Ashworth) v Gold Coast Publications Pty Ltd [2017] NSWDC 101
Otto v Nine Network Australia Pty Ltd [2016] NSWDC 308
PW v MS (No 3) [2014] WASC 202
R v Cooke [2004] NSWCCA 52
Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460
Reid v Brett [2005] VSC 18
Russin v Wesson, 183 Vt 301, 949 A. 2d 1019 (2008)
Singleton v John Fairfax & Sons Ltd (Supreme Court of New South Wales, Hunt J, 20 February 1980)
Smith v New South Wales Bar Association (1992) 176 CLR 256
Stocker v Stocker [2019] UKSC 17
Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB)
Toben v Nationwide News Pty Ltd; Toben v Mathieson [2015] NSWSC 1784
Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291
Webb v Bloch (1928) 41 CLR 331
Wen Yue He v Chinese Newspapers Pty Ltd [2005] NSWSC 253
Wilson v Bauer Media Pty Ltd [2017] VSC 521
Wing v Australian Broadcasting Corporation [2018] FCA 1340
Wootten v Sievier [1912] 3 KB 499

Texts Cited:

Professor R. E. Brown, Brown on Defamation (Canada, United Kingdom, Australia, New Zealand, United States) (2nd ed., Thomson Reuters)
Professor D. Rolph, “Reputation, Celebrity and Defamation Law” (1st ed., Sydney, 2008)
The Honourable Justice Dowsett, “Prejudice: the Judicial Virus”, 7 February 2009

Category:

Principal judgment

Parties:

Plaintiff in proceedings 2016/221796: David Ashworth aka David Otto
Defendant in proceedings 2016/221796: Nine Network Australia Pty Ltd (ACN 008 685 407)

 

Plaintiff in proceedings 2016/338258: David Otto (aka David Ashworth)
First Defendant in proceedings 2016/338258: Gold Coast Publications Pty Limited
Second Defendant in proceedings 2016/338258: Queensland Newspapers Pty Ltd trading as News Queensland

  Plaintiff in proceedings 2016/338264: David Otto
Defendant in proceedings 2016/338264: Dailymail.com Australia Pty Ltd

Representation:

Counsel:
Plaintiff: Mr M K Rollinson
Defendants: Mr A T S Dawson SC / Ms L Barnett

  Solicitors:
Plaintiff: Carters Law Firm
Defendants in 2016/221796 and 2016/338258: Macpherson Kelley
Defendant in 2016/338264: Mark O’Brien Legal

File Number(s):

2016/221796; 2016/338258; 2016/338264

Publication restriction:

None

Judgment

The plaintiff’s claims for defamation

1. The plaintiff brings proceedings for defamation for the following four publications:

1. David Ashworth (a.k.a. David Otto) v Nine Network Australia Pty Ltd (2016/221796): This is an action for the broadcast and online version of the programme A Current Affair first made on 24 July 2015. I note that, in Otto v Nine Network Australia Pty Ltd [2016] NSWDC 308, I granted leave nunc pro tunc for the plaintiff to continue these proceedings pursuant to s 23 Defamation Act 2005 (NSW) (“the uniform legislation”) notwithstanding proceedings having been commenced (and abandoned) in Queensland prior to commencement of these proceedings in this court.

2. David Ashworth (a.k.a. David Otto) v Gold Coast Publications Pty Limited and Queensland Newspapers Pty Ltd trading as News Queensland (2016/338258): This is an action for two largely identical articles. The first, published on the website of the Gold Coast Bulletin, is entitled “Island playboy’s indecent proposal: Gold Coast woman falls victim to a con”. The second is an article available on the website of the Courier Mail entitled “Island playboy’s indecent proposal: Gold Coast woman falls victim to a con”. The extent of publication in these claims is limited to online access to the website for each of these publications occurring after 9 December 2015, by reason of the circumstances in which this claim was not brought until shortly after the expiry of the limitation period for these newspaper online publications: see Otto (a.k.a. Ashworth) v Gold Coast Publications Pty Ltd [2017] NSWDC 101.

3. David Ashworth (a.k.a. David Otto) v Dailymail.com Australia Pty Ltd (2016/338264). This is an action for a publication in the Daily Mail, “Young woman, 21, stunned after applying for a receptionist position only to be told it was ‘group romance as an island girlfriend’”, published on 15 November 2015. This Daily Mail is only published online in Australia.

2. The text of each of the matters complained of is set out (as Schedules A to D respectively) at the end of this judgment.

The issues in the proceedings

3. The issues in these proceedings were substantially narrowed in the course of the trial. I note the following:

1. Proceedings arising from the four publications were consolidated: Ashworth aka Otto v Nine Network Australia Pty Ltd (ACN 008 685 407); Otto (aka Ashworth) v Gold Coast Publications Pty Limited; Otto v Dailymail.com Australia Pty Ltd [2018] NSWDC 13. The evidence in one proceeding is the evidence in the others.

2. Challenges to the plaintiff’s imputations by the defendants are limited to the following imputations:

1. Imputations (l), (m) and (r) in the A Current Affair broadcast;

2. Imputation (c) in the Gold Coast Bulletin and Courier Mail publications;

3. Imputation (f) in the Daily Mail publication.

3. The plaintiff brought an application during closing submissions for rulings as to the capacity and defamatory meaning (thereby challenging the principles set out in Chel v Fairfax Media Publications (No 6) [2017] NSWSC 230 at [6] and [14] – [17]) of contextual imputations 6(a)(i)/8(a)(i) and 6(a)(ii)/ 8(a)(ii) (T 1282, 1285).

4. The defence pleaded to each of the publications is only that of justification (to all of the plaintiff’s imputations pursuant to ss 25 and 26 Defamation Act 2005 (NSW) (“the Act”)). A defence of honest opinion was abandoned. A plea of contextual justification arises in relation to each of the three online newspaper publications, where two contextual imputations have been pleaded. In the course of closing submissions, Mr Rollinson made concessions as to the truth of one of the two contextual imputations (namely those pleaded at paragraphs 6(ii) and 8(ii) in each of the respective defences). The only submission made was that this contextual imputation, in relation to the second and third publications, was “just weightless in comparison with the plaintiff’s imputations which are conveyed” (T 1349). Although Mr Rollinson made no such concession in relation to contextual imputations 6(i) and 8(i), as the relevant section of his written submissions confirms, the plaintiff’s challenge was essentially to the capacity and form of this imputation.

5. Much of the factual evidence is documentary (for example, material on websites, emails and videos on YouTube) and neither the factual matrix this material discloses nor its authenticity are in dispute.

6. There is no claim for aggravated damages and the plaintiff called no reputation witnesses.

4. Although these proceedings were completed well within the allotted time, some interruptions occurred by reason of the following events:

1. On 27 January 2019, four weeks before the hearing, the plaintiff sent an email (addressed to me as the trial judge) to my associate asking for “a kind of witness protection” on the basis that the defendants were “trying to have me falsely incarcerated to stop me appearing because they’ll lose if I turn up there next month” (Exhibit 1, tab 1). He went on to say that he was “a good boy with respect for others and no criminal convictions and if I’m not there on the day it is because they have put something nasty on me right before the case” and that “I will sleep on the steps of the court if it means me safely being there on the day”. The plaintiff added that “since your order to keep reserved the particulars of the case” he had written “a 500-page book/biography” and that he would like to provide a copy “as part of my testimony as to my character.” As a result, when shown this email, the defendants called for production of this “book/biography” (later tendered by the defendants, on a restricted basis, as Exhibit 9). This required additional reading time.

2. In the course of cross-examination, answers given by the plaintiff resulted in calls for undiscovered documents to which he had referred. The plaintiff’s evidence in relation to many of these calls was that he had left the documents in a red Barina motor vehicle left in a car park and later towed away (T 49 - 51, 640 – 646). A limited number of documents were produced. The late production of those documents resulted in some delays.

3. As is often the case with longer hearings, the court and the parties were involved in other matters which required time out of court. The parties’ legal representatives greatly assisted the smooth conduct of these proceedings by adapting the conduct of the case to minimise the impact of these interruptions.

4. On the day that I reserved judgment (20 March 2019) the plaintiff sent nine emails to my associate which resulted in an application by the plaintiff for leave to reopen his case to adduce further evidence. This judgment includes my reasons for refusal of that application in relation to all but two of the documents (where leave to reopen was consented to by the defendants). This added a further two days of hearing time and delayed the termination of the trial.

A brief overview of the claims

5. The plaintiff, who is now 40 years old, had been an aspiring musician, guitar and music teacher, singer and bandleader since his early teenage years. His success as a musician has, however, been limited, in that, apart from some brief success in about 1999 - 2000, his music has not been professionally recorded or played on radio stations. Nor has it been performed at concerts or on concert tours attended by paying members of the public. On occasion, the plaintiff has participated in bands playing in hotels for the benefit of patrons and in “open mic [microphone]” evenings where members of the public may perform for free. However, the vast bulk of the musical events at which the plaintiff has performed over the past two decades have been organised by the plaintiff himself, frequently in his own home.

6. As is set out in more detail below, the plaintiff made the most determined efforts to bring himself to public attention by advertising his proposed activities on his own websites and on social media platforms such as Facebook. Those efforts included setting up Facebook pages and websites with alluring names such as “Girl Club”, illustrated by photographs of girls in bikinis and luxury accommodation that the plaintiff had copied from other internet sources, and descriptions of concerts and jobs which the defendants say were not merely “aspirational” (to use the description preferred by the plaintiff: T 167, 250, 272, 382, 396, 418, 470, 476, 500, 709), but fake.

7. The plaintiff’s unsuccessful attempts in 2015 to organise a series of musical events, most of which were aimed at featuring women under the age of 23 wearing bikinis and lingerie, came to the attention of the defendants in two quite separate circumstances:

1. The plaintiff promoted, on websites and social media posts set up by himself or others at his behest, concerts at which he and his band would be the sole performers. These promotions included advertising for sales girls for events such as a “Bikini Concert” at the Metricon Stadium and at the Marriott Hotel, Surfers Paradise. A reporter from A Current Affair interviewed four young women and the plaintiff about these activities and on 24 July 2015 the first matter complained of was broadcast. It remained accessible thereafter online where, the plaintiff alleged, it was viewed by many persons who refused to have dealings with him as a result.

2. The remaining three publications, published in November 2015 and thereafter also accessible online, describe separate but similar activities of the plaintiff. They described how a Ms Shayla Chandler had responded to the plaintiff’s Facebook post for a position of receptionist at an island resort and subsequently fled hotel premises asserting that the plaintiff and his girlfriend in fact wanted her to join in a sexual ménage à trois, as opposed to offering receptionist employment.

8. Although there is a substratum of common fact between them (in that these activities relate to the plaintiff’s musical career and sexual proclivities, as is reflected in the imputations pleaded), none of the matters complained of refer to the others.

9. As evidence going to the defences of justification and contextual justification need not be limited to the factual circumstances set out in each of the matters complained of, in addition to evidence based on events described in the matters complained of, the defendants led evidence concerning other activities of the plaintiff in organising other events and concerts. These include:

1. Additional examples of concerts which were described in submissions as “fake events”, such as promotions for events to be held at Auchenflower Scout Hall, the Royal Exchange Hotel, the Marriott Hotel and various Girl Club concerts.

2. Additional evidence of events the defendants submitted were “scams” created by the plaintiff falling within the terms of the imputations pleaded, including advertising holiday packages and jobs at islands and resorts, such as the “Whitsunday Music Festival Island Holiday Stays”, the “Secret Love Country Party Resort”, and additional evidence concerning the events at Tangalooma Island Resort involving Ms Chandler such as an attempt to drug her drink.

3. Evidence of the plaintiff’s “creepy” (imputation (d) in the A Current Affair broadcast), “sleazy” or “deluded” (imputation (p) in the A Current Affair broadcast) conduct towards other young women who participated in these events, such as the “House Agreement” the plaintiff was asserted to have used as part of his attempts to prevent girls leaving (Exhibit 3, Tab 68).

4. The circumstances of the plaintiff’s asserted ownership of property known as Temple Island (also called “Girl City Island” and “Whitsunday Music Festival Island”).

5. Advertisements in which the plaintiff sought to engage young women for the purpose of entering into what are called “polyamorous” relationships with the plaintiff, namely relationships in which there is more than one woman and where those women perform sexual acts on each other as well as on the plaintiff. This conduct is relevant to imputations of conduct of the plaintiff which is asserted to be “creepy” and “sleazy” and also as to whether the plaintiff is a liar and has lied about his age.

The imputations pleaded

10. The first issue for determination is the challenge to the form and capacity of five of the imputations pleaded.

Imputations pleaded in the Nine proceedings

11. The imputations pleaded by the plaintiff as arising from the A Current Affair broadcast published on 24 July 2015 in the Nine proceedings are as follows:

(a)	The plaintiff is one of Australia’s most notorious con-men.
(c)	The plaintiff asks women to work for him in return for minimal or no pay.
(d)	The plaintiff is creepy.
(e)	The plaintiff is famous for his sleazy scams.
(f)	The plaintiff is famous for his shonky businesses.
(g)	The plaintiff preys on young models that are just starting out.
(h)	The plaintiff tries to encourage young girls to engage in group sex.
(i)	The plaintiff is a fool.
(k)	The plaintiff promotes and sells tickets to events that don’t even exist.
(l)	The plaintiff has lied about his age.
(m)	The plaintiff is a pervert who films young women in underwear.
(n)	The plaintiff rips off photos of products from other business websites around the globe.
(o)	The plaintiff stole photos from his local real estate website.
(p)	The plaintiff is mysteriously deluded.
(r)	The plaintiff is a voyeur.
(s)	The plaintiff is a compulsive liar.
(t)	The plaintiff is so dishonest about his events that the police should be contacted.

Imputations pleaded in the Gold Coast Bulletin and Courier Mail proceedings

12. The imputations pleaded by the plaintiff as arising from the Gold Coast Bulletin article and Courier Mail article entitled “Island playboy’s indecent proposal: Gold Coast woman falls victim to a con” published on 14 November 2015 are as follows:

(a)	The plaintiff made an indecent proposal to Shayla Chandler.
(c)	The plaintiff tried to have sexual relations with Shayla Chandler against her will.
(d)	The plaintiff is a con-man.
(e)	The plaintiff asked Shayla Chandler to be one of a ménage a trois.
(f)	The plaintiff conned Shayla Chandler by making her believe he was offering her a proper job when his real motive was to seduce her.

13. The defendants’ contextual imputations are as follows:

8(a)(i)	The plaintiff is a sleaze.
8(a)(ii)	The plaintiff posted advertisements seeking to engage young women for the purpose of entering into polyamorous relationships with him.

Imputations pleaded in the Daily Mail proceedings

14. The imputations pleaded by the plaintiff as arising from the Daily Mail article entitled “Young woman, 21, stunned after applying for a receptionist position only to be told it was ‘group romance as an island girlfriend” published 15 November 2015 are as follows:

(a)	The plaintiff deceived Shayla Chandler by making her believe he was offering her a proper job when is real motive was to seduce her.
(c)	The plaintiff tried to con Shayla Chandler.
(d)	The plaintiff offered Shayla Chandler money if she would enter into a sexual relationship with him.
(e)	The plaintiff frequently posted job listings on his Facebook page with the intent of obtaining women for sexual relationships.
(f)	The plaintiff posted misleading and deceptive advertisements for women to apply for employment when his real aim was to have sex with them.

15. The defendants’ contextual imputations in relation to the online newspaper publications are as follows:

6(a)(i)	The plaintiff is a sleaze.
6(a)(ii)	The plaintiff posted advertisements seeking to engage young women for the purpose of entering into polyamorous relationships with him.

16. The A Current Affair broadcast does not plead contextual imputations.

17. The first issue for determination is the limited challenge to the capacity of the matters complained of to convey certain of the defamatory meanings pleaded.

The relevant principles of law

18. The relevant principles are set out in Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 at [5]-[6] and John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 at [26]. Both these decisions deal with perverse answers to questions on defamatory meaning returned by juries in the course of the now repealed s 7A jury trial procedure under the Defamation Act 1974 (NSW) as to defamatory meaning, at a time when the imputations was the cause of action, a procedure now discarded. However, the basic principle remains the same, namely whether the ordinary reasonable reader would have understood the matters complained of in the defamatory sense distilled within each imputation. This will include the inferences and conclusions such as an ordinary reasonable person may draw from the words used, particularly where the matter complained of is of a sensational nature (as is the case here), when a reader may engage in a certain degree of “loose thinking” (Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1245). This is all the more the case where a publication is on the internet, for the reasons explained by the Supreme Court in Stocker v Stocker [2019] UKSC 17 (“Stocker v Stocker”).

19. Where a judge, as opposed to member of a jury, performs such a task, it must be taken into account that ordinary reasonable readers or viewers of the broadcast are persons of ordinary intelligence, experience and education, who are neither naturally suspicious of mind nor avid for scandal. In particular, the ordinary reasonable readers or viewers are not lawyers and their capacity for implication may be greater than that of a lawyer.

20. The ordinary reasonable reader/viewer is taken to have read/viewed the whole of the newspaper article/television programme, and not merely the headline or a particular portion, although the reader/viewer of a sensational publication may not read/view it as carefully as may be the case with a serious publication.

21. In the present case, care must be taken to determine the imputations as arising solely from each matter complained of and not to have regard to, or to be subconsciously influenced by, imputations pleaded concerning the other publications.

Capacity issues in the A Current Affair proceedings

22. As to capacity issues, the defendant in these proceedings challenges only imputations (l), (m) and (r).

Imputation (l): “The plaintiff has lied about his age.”

23. From the commencement of the broadcast, there is an emphasis on the word “young” (“young women” in paragraph 2, “young girls” in paragraph 3, “young models” in paragraph 11, “women under the age of 23” in paragraph 15, “young women” in paragraph 18, “young women” in paragraph 27, “preying on young girls” in paragraph 48). It is in this context that a statement is made by Witness A that “he portrays himself as a 20 year old man on the internet when in fact he is not that age”. The plaintiff is seen in the matter complained of as being someone who is well past his 20th year.

24. A picture is therefore painted of an older man preying upon young girls and their dreams, and in addition the plaintiff is described as “a compulsive liar” (paragraph 62). He is someone who will “do just about anything to get young women into their bikinis” or under his control. The inference that the plaintiff is lying about his age, in the context of these passages and of the broadcast as a whole, is clearly capable of arising.

25. Mr Dawson SC next submitted that an imputation of lying about one’s age might not be defamatory. The context of such an imputation is, however, the deciding factor. For similar reasons as those enunciated by Dixon J in Wilson v Bauer Media Pty Ltd [2017] VSC 521 in relation to a similar imputation, any such submission must be rejected. A clear picture is painted of a much older man lying about his age in order to attract the attentions of young women who might otherwise not have been lured into his schemes.

26. I am satisfied that imputation (l) is conveyed and defamatory.

Imputation (m): “The plaintiff is a pervert who films young women in underwear.”

27. Mr Dawson SC submitted that this imputation is pitched too high. However, the matter complained of describes the plaintiff as “famous for his sleazy scams” including pitching his “sleazy job proposal” to a young woman who is “sucked into his band” so that she ends up sitting on a lounge where “you talk about stuff and you sit there in underwear while he films you”, in circumstances where the young woman in question said she felt she was “living in a cult”. The plaintiff’s interest in filming the young girl sitting on his lounge in her underwear is clearly portrayed, by these extracts, as being not merely untoward but for sleazy and sinister sexual purposes.

28. The ordinary reasonable reader/viewer, whose indulging in loose thinking might include visualising the scene in question, would come to the conclusion that a person filming the young woman in her underwear was a perverted person, particularly in the context of the innuendo derived from “sleazy scam” and the reference to the “stuff” the young woman is being filmed discussing.

29. This imputation is clearly conveyed to the ordinary reasonable viewer of the programme.

Imputation (r): “The plaintiff is a voyeur.”

30. Whereas a description of someone as a “pervert” is more general, the description of a person as a “voyeur” is very specific, in that the inference is clearly conveyed that the person accused of the conduct is secretly, as opposed to openly, seeking to observe another person performing activities such as undressing where that person is unaware of being observed. The sting of an imputation of being a voyeur (or to use Mr Rollinson’s words, a “peeping Tom”) is the secretiveness of the act.

31. That is not the case here. There is no secrecy and the thrill implicit in being a voyeur is not portrayed; the imputation is rather that the plaintiff is a pervert who is openly “perving”, as opposed to secretly watching the young woman in her underwear. Everything is out in the open, and the plaintiff is not only filming but, by inference, participating in discussing the “stuff” referred to.

32. This imputation is not capable of being conveyed.

Capacity issues in the Gold Coast Bulletin and Courier Mail proceedings

33. Only one imputation is challenged by these defendants in relation to these publications, namely imputation (c), which is “The plaintiff tried to have sexual relations with Shayla Chandler against her will.”

34. As the content of each of these publications is the same (save for the slight change in the headline noted at paragraph 33 of the Courier Mail), I set out the relevant parts of the matter complained of which are in common and then briefly note whether any difference in the headings would result in any different findings.

Imputation (c): “The plaintiff tried to have sexual relations with Shayla Chandler against her will.”

35. The key to this imputation is the reference to “Indecent Proposal” in the headings of both the Gold Coast Bulletin and the Courier Mail. This phrase is one of several film titles which have become part of the lexicon and thus come to have a special meaning. Other examples are “Sophie’s Choice” (according to Urban Dictionary, an impossible choice), “Bucket List” (according to Wiktionary, a list of things to do before one’s death), “The Full Monty” (according to the Cambridge Online Dictionary, to get everything you need) and “Gaslight” (according to Wikipedia, to cause a person to doubt his or her sanity through the use of psychological manipulation). In “11 Movie Titles That Became Part of the Lexicon”, journalist Eric D Snider (‘Mental Floss’, 25 July 2014) relates that the phrase “indecent proposal’ has “showed up occasionally in court documents and case files as a legalese euphemism for any sort of obscene suggestion allegedly made by a defendant”.

36. Not only the heading but the content of the matter complained of makes it clear that Ms Chandler was being asked to perform “extra duties” in the form of sexual favours. The description of how the offer is put to her is as an offer to “jump in bed with us and cuddle”. There is no suggestion of force or even verbal persuasion being used to persuade her to perform these acts against her will.

37. While Ms Chandler is quoted as saying that “all he wants us to do is book 10 girls into a hotel and keep them there for a month”, there is no suggestion that those young women will be kept there against their will, any more than is the case with Ms Chandler. Her position is that she “had no idea he wanted some sort of relationship”.

38. Even the suggestion that it was the plaintiff who tried to have sexual relations with her as part of the ménage à trois is difficult to make out, in circumstances where all that is described is the plaintiff and Kittie whispering to each other and then Kittie inviting Ms Chandler to jump into bed with them. Apart from following her “everywhere” (line 19), there is no conduct described of the plaintiff, let alone forceful conduct, upon which such an imputation could be based.

39. While I have considered each publication separately, in practical terms, the very minor differences of numbering are the only different factual issues. The very minor change in the Courier Mail headline is not relevant to the meaning and was not referred to in argument.

40. This imputation is not conveyed in either of these publications.

Form and capacity issues in the contextual imputations

41. The plaintiff in closing submissions raised issues in relation to form and capacity of the contextual imputations pleaded in Exhibits B, C and D, namely:

1. The plaintiff is a sleaze.

2. The plaintiff posted advertisements seeking to engage young women for the purpose of entering into polyamorous relationships with him.

42. In his written submissions, Mr Rollinson submits that contextual imputation (i) does not arise in addition to the plaintiff’s imputations, although conceding that a requirement for differing in kind is no longer the law: Fairfax Media Publications v Zeccola [2015] NSWCA 329.

43. I accept this, but I should additionally note that, if it were necessary, I would be satisfied that the imputation clearly arises. First, it is the “condition” for which the imputations pleaded by the plaintiff are the acts, and the entitlement to plead imputations of both act and condition has been well established since Singleton v John Fairfax & Sons Ltd (Supreme Court of New South Wales, Hunt J, 20 February 1980). Second, the circumstances in which the plaintiff advertised an employment position but then expected the successful applicant to perform “extra duties” in the form of a ménage à trois is conduct which is not acceptable and which relates to sexual matters, which is the dictionary definition of “sleazy”.

44. Mr Rollinson also objects to the form of this imputation, on the basis that an imputation of being a “sleaze” is a generalisation, “almost devoid of content, inspired by accumulating the meanings in the plaintiff’s imputations” (written submissions, p 10).

45. This challenge to form is bad by reason of the test set out by Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137 where Gleeson CJ, endorsing the availability of the imputation “X is disgusting” in an appropriate case, explains that the degree of specificity for an imputation should not need to be greater than that demonstrated in the matter complained of. The publications here are a good example of the application of those principles. The conduct of the plaintiff in expecting his employee to perform extra duties in the form of sex with himself and his female companion is conduct most aptly described as “sleazy”. It would be hard to find a more apt description.

46. As the objections to this imputation are limited to its form as a contextual imputation rather than amounting to a challenge to capacity, it is not necessary for me to determine whether the imputation arises in relation to each of the three publications. I formally note my finding, however, that I am satisfied that each of the three matters complained of, by reason of their respective content, carries this imputation.

47. The plaintiff’s objection to contextual imputation (ii) is that “if this imputation is conveyed, it is not defamatory, according to contemporary standards”. If this is a challenge to capacity (which is unclear), I formally note my finding in relation to the context of each of the three matters complained of, considered separately, that this imputation is capable of arising.

48. As to defamatory meaning, the question of whether a contextual imputation need be defamatory has been the subject of consideration in recent decisions in New South Wales (Chel v Fairfax Media Publications (No 6) [2017] NSWSC 230 at [6] and [13] – [17]]) and Queensland (Mizikovsky v Queensland Television Limited (No 3) [2011] QSC 375; Mizikovsky v Queensland Television Limited [2013] QCA 68). The rationale for these findings is the language of s 26 of the uniform legislation.

49. While the conclusions expressed in these judgments render this question otiose, the logic of a contextual imputation which is not defamatory is difficult to comprehend, as how else would the force of the contextual imputation be set against the plaintiff’s imputations? This may be an appropriate issue for consideration in current law reform initiatives, particularly since a similar problem arises in relation to injurious falsehood imputations, where the requirement for an imputation to be defamatory is the subject of conflicting authority: see PW v MS (No 3) [2014] WASC 202 and Ajinomoto Sweeteners Europe SAS v Asda Stores Ltd [2010] All ER (D) 03 (Jun).

50. Independently of that issue, I note my finding that the imputation is capable of defamatory meaning. It is no answer to say that members of the community today have more enlightened views about “polyamorous” sex. To say of a person that they advertise for young women to engage in group sex would be considered defamatory for the reasons explained by Hutley JA in Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 (in relation to an imputations that a doctor was an “abortionist”).

Capacity issues in the Daily Mail proceedings

51. The sole imputation the subject of challenge is imputation (f), namely that “The plaintiff posted misleading and deceptive advertisements for women to apply for employment when his real aim was to have sex with them.”

Imputation (f): “The plaintiff posted misleading and deceptive advertisements for women to apply for employment when his real aim was to have sex with them.”

52. The objection to this imputation is of a very narrow kind, namely the reference to “advertisements” in the plural and to women in the plural.

53. It is an implicit part of the storyline that this was not an isolated event, but a cautionary tale for other young women who could have been caught. The ordinary reasonable reader would readily assume that the plaintiff had posted not one but several advertisements of this kind, and that he was not looking for one woman, but for as many as cared to apply.

54. This imputation is conveyed.

Alternative findings in relation to imputations (r) and (c)

55. In the event I have erred in my capacity findings, I have made alternative findings for the defence of justification in relation to imputation (r) (in the Nine proceedings) and imputation (c) (in the Gold Coast Bulletin and Courier Mail proceedings), each of which I have found not to have been conveyed.

The defences of justification and contextual justification

56. The defence of justification (s 25 of the uniform legislation) is pleaded to each of the imputations pleaded in all four publications.

57. In addition, the defendants in the proceedings against the Gold Coast Bulletin, Courier Mail and Daily Mail each plead two contextual imputations (s 26 of the uniform legislation), namely:

1. The plaintiff is a sleaze.

2. The plaintiff posted advertisements seeking to engage young women for the purpose of entering into polyamorous relationships with him.

58. The word “polyamorous” refers to the “ménage à trois” nature of the relationships sought by the plaintiff. (I note that, at the commencement of the trial, I granted leave to the defendants to replace the word “polygamous” with the more syntactically correct word “polyamorous”.)

The plaintiff’s case

59. The plaintiff gave evidence on his own behalf and called no other witnesses.

The plaintiff’s music career

60. The plaintiff, who was born in 1979, in Brisbane and who received his High School Senior Certificate in 1996, has been interested in music from a very early age. He applied himself diligently to the study of music and was awarded an AMEB grade 6 in classical guitar in 1994. Between 1997 and 2000, he attended the Australian Catholic University (later Griffith University) where, receiving credit for courses at the Queensland Institute of Technology and Queensland Conservatorium, he was awarded a Bachelor of Arts with majors in music and screen production.

61. The plaintiff also obtained a certificate in event management from the Coorparoo TAFE in 2000, as well as a certificate in small business management at Sarina Russo College in 2001. He told the court that he had been a guitar and voice teacher as well as a performer (both in bands and solo) since his teenage years, as well as carrying on business as an event organiser. That means that he has been involved in the music industry for over a quarter of a century.

62. The plaintiff has provided to the court a lengthy summary of the many concerts, rehearsals, guitar classes and other musical activities in which he has participated over a period of approximately 27 years (Exhibit 3, Tab 14). He also wrote a 420-page autobiography, in which he outlined many of the events the subject of these proceedings (Exhibit 3, Tab 1). He was cross-examined on its contents by senior counsel for the defendant, Mr Dawson SC, and the document was admitted on a restricted basis in relation to that cross-examination (Exhibit 11).

60. The first 15 pages of Exhibit 3, Tab 14 cover his high school activities such as band practice. The plaintiff briefly belonged to a band; a newspaper item, tendered in the course of his application to reopen, shows him in a photograph of this band, active between 1997 to 1998 (Exhibit L). The plaintiff also participated in a radio interview on Brisbane radio station 4ZZZ in 1997 and on another radio station in 2000. However, the plaintiff acknowledged that he had few engagements prior to 2000:

“Q. Well, are there any other for example, I note that pages 1 to 15 relate to events up to 1997, and then there appear only to be a small number in 1998. Then there are only three in 1999.

A. That’s because I was spending time writing music and teaching guitar.” (T 22)

64. The plaintiff described, with some emotion, participating in an event on 19 April 2000 called “Molly Meldrum’s House of Hits”, where he performed with others in a musical segment that was televised:

“A. … Let’s put it this way: in the year 2000, I left my home, I went to Channel 10 studios. I played on TV with Molly Meldrum interviewing a singer of my band. I then flew to Mackay and played in [sic, probably ‘front of’ is omitted] 2,500 people. People wanted my autograph when I came into the city. We did an in store in that store because the single was an Aria nominated single. Then I was a little hung over, with my guitar, with wild withered(?) pants and this crazy shirt and a $200 haircut with a guitar in my hand walking from a plane down on the tarmac. Then the next gig we had, 20 people followed us back to the hotel room. I felt like a rock star.

Q. And that’s what I was about to say to you. You felt like one -

A. I might actually be also -

Q. but you’ve never been one, have you?

A. On that occasion, absolutely.

Q. But in no sense has that taste of being a rock star, as it might be called, translated into actual status as one. Would you agree with that?

A. At that moment, most definitely.” (T 166)

65. However, the plaintiff’s list of music activities in Exhibit 3, Tab 14 shows that for the following year, 2001, he was inactive. For the next 7 years, between 2002 and 2009, he was giving guitar classes to learner students, usually at his home.

66. The plaintiff’s “Girl Club” activities commenced at about this time. These activities consisted of playing his music in his front lounge room to any persons who dialled in for free on Ustream, the precursor to IBM Cloud Video, which was set up in 2006. The plaintiff estimated that between 10 and 30 people would have tuned in to these performances, which he was “really excited” (T 393) about, but these performances were few and far between:

“Q. On page 58, there's only one entry for Girl Club and you just say, "In 2008 sometime" you don't actually put a month or a day on it; correct?

A. That's correct, but it wasn't the only one

Q. And it was at some community event, was it?

A. Yes. It was called Big Night Out, I think it was a community event.

Q. You played one song.

A. No, we played a whole set. Q.

Then on page 59 in 2009 there were some Dahlia Street performances as you call them, which were upstream performances? I'm sorry, Ustream performances, thank you.

A. That's correct, with the camera that would stream it through to people that could log in on their computer. I don't think phones were there yet.” (T 393)

67. “Dahlia Street” was where the plaintiff lived at the time. The plaintiff also commenced posting recordings of live concerts onto YouTube in about 2005. One of his songs, featuring young women in bikinis smearing themselves with chocolate, attracted 10,000 views.

68. The plaintiff’s only other musical activity was to continue to give guitar classes at his home up until an unspecified date in 2011. Although there is a “ticketed concert” in a scout hall on Tuesdays during that year referred to in the plaintiff’s schedule, attendance appears to have been for free and there were at most three such concerts (T 394).

69. In May and June 2012, the plaintiff embarked upon a series of nine concerts at the Royal Exchange Hotel, Toowong, which Mr Rollinson indicated was one of the highlights of his career (T 1329). However, according to the plaintiff’s schedule, these concerts had, at most, six persons present; on three occasions there was nobody present:

“Q. Yes, and in relation to the RE Hotel, Mr Otto, you have recorded as performances events where you have recorded zero audience members, haven't you?

A. Sometimes, yeah.

Q. That's under the heading from page 1 of this document which is page 38 of the tender bundle, the first page behind tab 14, you describe this as crowd. A crowd of zero is not a crowd, is it?

A. Well crowd of zero is a crowd that has zero numbers, so it's not an inaccurate number.

Q. It means there was no one there, correct?

A. For that particular one, yes. I think it might have been that rainy night.

Q. There are three of them though, aren't there?

A. Yeah.” (T 394)

70. The plaintiff returned to performances in his front lounge room in the Bonton Street house where he now lived (T 394) for the balance of 2012 to 2014. Although there were performances in a park during 2015, these were acknowledged to have been attended by less than five persons.

71. The plaintiff’s methods of doing business seem to have changed in 2013, at about which time he entered into a relationship with a Ms Kittie Lee. She would contact members of the public to interest them in participating in music or social functions with the plaintiff. It was after contact from Kittie Lee that a young woman, Witness A, began to associate with them by visiting them on the weekends from March to August 2013. Witness A set up the Girl Club Facebook page and, on 25 August 2013, was one of two girls selling tickets to a Girl Club event in Brisbane that night. She was unable to sell any tickets to this event, which did not occur, and she terminated her association with the plaintiff shortly afterwards.

72. The plaintiff described Witness A as being one of his “entourage” (T 395):

“Q. When you say entourage, Mr Otto, that's a word that is often used to describe the group of staff and other attendants that travel with an internationally renowned band as they move their way from venue to venue playing performances, isn't it?

A. It's not. I use it in the reference to Mark Wahlberg who had an entourage of people, he actually had a TV show and then a movie made about him in that with that name as the title and then when they moved I think from New York to Los Angeles, there were a group of friends who moved out there and supported each other as they got more successful. So entourage is in the sense that it's a supportive group that follows around with the band to make them more successful. You don't have to be successful to have one.

Q. Is that what you were trying to create?

A. That's what I was trying to create, like Mark Wahlberg but for our band.

Q. Yes. The thing about that program, Entourage, and the movie made from it, is that the entourage is able to be funded by the success of the person whose entourage they are, correct?

A. That's right, in the case of the Grateful Dead it was the opposite.

Q. The problem with you having hey? The problem with your entourage set up was that you became resentful that you were funding the entourage, didn't you?

A. Entourage also refers to –

Q. Didn't you?

A. the Grateful Dead

Q. Didn't you, Mr Otto?

A. Yes, because

Q. You decided to start charging the entourage to be the entourage, correct? A. Because the entourage had become -

Q. Correct?

A. - mainly customers.

Q. Correct?

A. Correct.

Q. The problem with doing that is that it can't be an entourage after that point if you have to pay your own way to be in the entourage, correct?

A. Because the entourage didn't behave as an entourage in the manner of the Grateful Dead who people did follow along with them and make meals for them and support them.

Q. Comparing yourself to -

A. That's also an entourage.

Q. - the Grateful Dead and to Mark Wahlberg is delusional, isn't it, Mr Otto? A. No, it's aspirational as you said. For a guy who paid too many people it's not even –” (T 395 – 6)

73. Exchanges such as these, in the course of cross-examination, indicate some of the plaintiff’s thinking behind his schemes. He considered that the persons he involved in his schemes should not only “follow along” and “make meals” or provide other forms of assistance but also “support” (T 395) him.

74. This passage is also a good example of the plaintiff’s use of the “aspirational” explanation for making grandiose statements about himself. Shortly afterwards, while Mr Dawson SC was engaged in setting up the playing of a 2009 YouTube performance by three Girl Band members, the plaintiff volunteered an observation apparently designed to explain why he needed to make false statements about his activities:

“WITNESS: Somebody give me a record deal, I guess, and then I wouldn't have the money problem, somebody else could book the events and all that.” (T 397)

75. The video in question referred in the end credits to “sold out” concerts for the Girl Club. It was put to the plaintiff that there were no such “sold out” concerts and in some cases no concerts at all:

“Q. The cities were Sydney, for example. You never had a sold out Girl Club concert in Sydney, did you?

A. No.

Q. And to the extent that it suggests that there were sold out concerts in Brisbane on 16 October 2009, you didn't have a sold out concert for Girl Club in Brisbane on that date, did you?

A. 2009.

Q. Wasn't that the date you told her Honour this video was made?

A. No, no, well this is end of July/August 2009.

Q. Right, but you never had a sold out event in Brisbane, did you?

A. No. I probably got bad advice from somebody saying that it creates hype to say that; unavailability makes the other ones, you know, want more.

Q. So it's always someone else's fault for anything misleading on the website again, is it?

A. In that particular case, I was given that advice.

Q. Who gave you that advice?

A. It would have been an event promoter.

Q. We're just making this up, are we, as we go along, Mr Otto?

A. No, no.

Q. An event promoter? Are you suggesting that an event promoter suggested to you that you should lie to the public about whether or not an event was sold out?

A. Yep, yep.

Q. And it didn't occur to you there was something wrong with that?

A. It was just advice I was given.” (T 398)

76. The plaintiff acknowledged that he knew it was wrong but said he had to create interest “because I had to organise all this myself” (T 399). It was put to him that this was his modus operandi from that time onwards:

“Q. So you are prepared, aren't you, Mr Otto, to say whatever it takes to be able to sell tickets to events that you want to put on, but don't necessarily have a booking for?

A. I can't say yes to that; you said whatever it takes.

Q. You are prepared to say things that are not true to the public to generate ticket sales, aren't you?

A. No in that particular instance, but no.

Q. Your modus operandi is, isn't it, to say that there is an upcoming event before you have a booking, and to try to sell tickets to it, so that you can make that event happen?

A. No.

Q. Do you agree that is what you were doing with Metricon and the Marriott? A. No, we were preparing to make a proposal to secure the event, and then sell it out, so I could play my songs at it and have a worldwide following, like people would inspire me to practise.” (T 399)

77. Whether or not the plaintiff was prepared to admit it, the pattern of advertising concerts which had not in fact been booked became marked from about early 2014. In July 2014 he bought the domain for the “Be Our Girlfriend” website (Exhibit 3, Tabs 29 – 34) as well as using the “David Otto Music” Facebook page, where he described himself as “Australia’s greatest up and coming songwriter offering a great night every week on the Gold Coast playing his latest music”, when the only place he was playing this music was in his home. Additionally, he advertised that he was playing in concerts, and sold tickets to these concerts. The first of these was at a scout hall in Auchenflower on 3 February 2016, for which he sold at least one ticket, albeit to a very disgruntled concertgoer who later demanded his money back.

The Auchenflower concert

78. The plaintiff advertised a concert in a scout hall in Auchenflower for 3 February 2015 on the “Bands in Town” website. He sold one ticket to a Mr Dario Western, who complained to the plaintiff that when he arrived at the venue, there was no one there and no concert.

79. The plaintiff initially told the court that this concert took place, although he claimed it had taken place on 2 and not 3 February 2015:

“Q. Now, you promoted, didn’t you, a gig at Auchenflower; correct?

A. Whereabouts?

Q. Well, for example, you can see it on page 8 at the bottom there?

A. Mm.

Q. February the 3rd, 2015, Auchenflower, Australia, Park Lane.

A. It must be an error because the performance that night was on the 2nd.

Q. Well, in any event, you promoted a gig in early February at the Auchenflower Hall in Park Lane

A. Which I was at and performed at.” (T 183)

80. As the plaintiff later conceded (T 185), and as the schedule of events confirms (Exhibit 3, Tab 14 p. 65), the concert did not take place on either date, or at all.

81. After Mr Western contacted the plaintiff on arrival at this non-event, the plaintiff sent emails containing explanations of the reason. He was asked:

“Q. You know that Mr Weston bought a ticket for the gig in early February at the scouts hall, don’t you?

A. Yes.

Q. And you know that he went to Park Lane at Auchenflower to the scouts’ hall on 3 February to attend that gig, correct?

A. That’s correct.

Q. And you know that he was told that he got the wrong date?

A. He had communicated with, and I let him know it was the previous night, yes, he’d gone the wrong night.

Q. So you are the one who told him that he got the wrong date?

A. Yes.

Q. And you did that, didn’t you, on Facebook?

A. Yes.

Q. And you used the name Tyson to do that, didn’t you?

A. The first thing that he wrong to me, yes.

Q. Why did you use the name Tyson?

A. He proposed I give him advice on a concept that seemed illegal to me.” (T 189)

82. The plaintiff’s explanation is that the website he used to advertise the gig, “Bands in Town” must have put the “wrong” (T 190) date, although acknowledging that he had provided that information himself. He was then asked:

“Q. All right. Turn to the next page, and then you, trying to mask your identity but perhaps not very successfully, given that he identifies you with a photo with your name David Otto, even though this is from Tyson, you say, “Hey, Buddy, this is David’s account but he doesn’t manage it,” this is actually you writing this, isn’t it?

A. Yes, cause I didn’t want to be involved in what he said first.

Q. “Looks like you’ve got a ticket to the 1 March event in Brisbane. Tonight was in Toowoomba. Tickets closed for this month’s tours back in mid-January, so feel free to rock up at 7.30pm on 1 March and join us for a great night. David likes to have the event there at his old music teaching studio in Brisbane because it has some nostalgia as it’s where he used to teach guitar. Look forward to seeing you there, Tyson.”

A. So it explains that that is the venue for him to be at, yeah.

Q. But there is nothing in there, Mr Otto, about, “Sorry, mate, we put the wrong date on to Bandsintown, it was wrong on the Bandsintown website, but that’s our fault, sorry about that,” you don’t say that, do you?

A. I wasn’t aware of that till-

Q. You don’t say that, do you?

A. No, cause I wasn’t aware until you just showed me that. I didn’t really use Bandsintown; I don’t know where he’s looking it up, but anyway.

Q. But hang on, Mr Otto, you had put the detail onto Bandsintown. He specifically asked you, “Did Bandsintown get it wrong?” And you don’t deal with that question, do you?

A. I do deal with it, I just credit him for access to the March event, so I’ve understood the matter to be finalised with him, he comes to the next one.

Q. No, you suggest that he actually bought the wrong ticket?

A. Well, at that point, that’s what I thought he’d done, and until you showed me the Bandsintown.

Q. And you don’t say that in fact the event at Auchenflower was last night, 2 February, as you have suggested to her Honour in this case, do you?

A. I thought I actually to him it was on the previous night, but anyway.” (T 191)

83. The plaintiff’s Answers to Interrogatories aver that Mr Western’s refund had been donated to the Salvation Army but, when shown the records for this donation (in December 2018) post-dated this answer, explained this as being his intention. However, even the plaintiff’s schedule of events (Exhibit 3, Tab 14, which also post-dates the answers to interrogatories) sets out that the $80 remaining in an account for this concert included this sum (the remaining monies apparently relate to the sale of tickets to the “2 male roommates” of “Andi”: Exhibit 3, Tab 14 p. 65).

84. The plaintiff’s explanations to Mr Western are inconsistent with contemporaneous documents (including the documents produced by the scout organisation and the “Bands in Town” page (Exhibit 3, Tab 5) which promotes a gig in Toowoomba on 5 February 2015, not on 3 February or March 1 2015), as well as the plaintiff’s own schedule (Exhibit 3, Tab 14: there is no gig in Toowoomba on 3 February 2015 recorded). The plaintiff’s schedule does claim that there was an event booked for “1st Mon in March” (which would have been 2 March 2015). The gig at the Auchenflower Hall is listed in this schedule as occurring on 3 March 2015, accompanied by a long explanation about the event not taking place because the venue was “too small” and the plaintiff needed “a huge launch event to put us on the map” (Exhibit 3, Tab 14 p. 65).

85. I do not accept any of the plaintiff’s explanations. Not only is his evidence internally inconsistent, but it is inconsistent with the documents tendered. I am satisfied that no concert was scheduled to take place at Auchenflower on 3 February 2015 or on any other date in February or March 2015, and that the plaintiff’s promotion of the event on the Bands in Town website was a scam to obtain money from members of the public. This inference is supported by the letter from Scouts Australia stating they have no documents to produce in response to the defendants’ subpoena for documents relating to any concert or other event of this kind at the Auchenflower Hall in the period 1 July 2014 to 31 December 2015 (Ex 3, Tabs 12 and 13).

86. I am also satisfied that the plaintiff never refunded the $35 to Mr Western (T 186) and that the purported donation made in December 2018 was made for the purpose of falsely claiming to the contrary.

Use of the “Bands in Town” website

87. The plaintiff not only promoted these non-existent concerts on his own websites, but used independent and widely-consulted concert venue service sites such as “Bands in Town” to promote these fake concerts. This was because part of the scam was to rely on a respected concert website, as well as a known concert venue. Examples include events at Platinum International (5 February 2015), Mantra, Mountain Creek (7 February 2015) and the Marriott, Gold Coast (10 February 2015). In fact there was no such concerts, and the plaintiff’s own schedule of events (Exhibit 3, Tab 14) does not refer to any concerts for any of these nights. The schedule of events does claim that there were concerts at the Marriott on 10 and 17 March 2015 but the plaintiff’s own evidence was that he was at the Marriott to meet with Ms Patricia Higgins, not to perform. Ms Higgins’ uncontradicted evidence was that no music or guitar playing occurred during these meetings (T 1077).

88. This intermingling of fake events advertised on genuine websites and concert venues was an important part of the plaintiff’s modus operandi. Not only would members of the public be persuaded by the use of these websites and venues that there was a genuine concert, but the continued presence of the advertisements on the site gave the plaintiff a veneer of respectability, in that persons searching the internet months or years later might assume that such a concert did in fact take place. As a result, some of the persons associated with these websites came to have direct knowledge of the plaintiff advertising events that were not booked; this is relevant to imputations that the plaintiff was “notorious” or “famous” for scams and sleazy business activities referred to in the imputations in relation to the broadcast on A Current Affair.

The “Bikini Concert 2015”

89. The plaintiff began promoting the “Bikini Concert 2015” in March 2015, claiming that tickets were available for a concert on 16 October at the Metricon Stadium. The ticket for the concert, showing a girl losing her bikini top, speaks for itself.

90. Patricia Higgins (an aspiring model with a page on the model/actress website “StarNow”, where the plaintiff also advertised) applied for the position of “Promotional Model” for the Bikini concert. She and another young woman had a meeting with the plaintiff on 9 and 17 March 2015. In between these meetings, the Metricon Stadium staff contacted the plaintiff and told him to remove the Metricon Stadium reference as there was no contract. Despite this, the concert details remain online to this day (T 252 – 253).

91. The plaintiff denies that he had actually asked Ms Higgins to sell tickets, indicating that his intention was to see if he could obtain the numbers and that he would then book the event. However, Ms Higgins’ evidence at T 1077 lines 7-12 is as follows:

“Q.  In relation to the tickets, did he say anything to you about those and what you should do with them?

A.  He told me at this stage I was welcome to go ahead and try and sell them if I wish.  But in terms of what would happen in the future, he would be coaching us, so we would be able to learn more and be able to sell though to a greater extent.”

92. In cross-examination, Ms Higgins was asked at T 1088 lines 20-43 the following:

“Q.  The deal was, wasn’t it, as explained to you that there would be a series of meetings between Mr Otto and people like you over several months at training to ultimately sell these tickets, correct?

A.  Not to ultimately sell the tickets.  There would be training, but I was giving the tickets to sell, at the first meeting.

Q.  I suggest that you were not told in the first meeting that you were to go out immediately and selling tickets?

A.  I would sell ‑ I was told I had the option to if I wish.

Q.  The option to do so?

A.  Yes.

Q.  You were told, is this correct, that if you sold any tickets you would get 35% of the revenue of the tickets you sold?

A.  I can’t recall the financials.

Q.  Well, you were quite interested in the financials, weren’t you, that was what it was all about as far as you were concerned?

A.  Not really.

Q.  You understood this to be‑‑

A.  Not to that extent.  I was just after a site rate, not making a huge amount of money.  In fact, I found the financials a bit overblown.” (T 1088)

93. She was not challenged on her evidence that she was told to sell tickets; it was just put to her that this was an “option”. Her evidence in cross-examination was thus the same as her evidence in chief.

94. The plaintiff initially denied making the black and white flyers (T 219) (he acknowledged making the colour flyers and tickets); the only explanation he offers for the existence of tickets is that the pack the trainees were given were in fact a sales pack, not a training pack.

95. The plaintiff provided unconvincing explanations (T 252-253) as to why the material was still online. To the ordinary person reading about these events on Facebook, it would appear that the plaintiff actually did participate in some kind of event at the Metricon Stadium. The real explanation for the plaintiff’s failure to take this event down from the internet is, on the evidence before me, in the hope of promoting the illusion that he is a performer who has engaged in concerts of significance at venues such as the Metricon Stadium. As is clear from Exhibit 3, Tab 16, the plaintiff never had any booking with Metricon Stadium for any event, let alone this event, at any time or at all. He had never even spoken to anyone at Metricon Stadium about the event, as he eventually conceded at T 230, lines 40-48 as follows:

“Q.  Well, you hadn’t spoken to anyone at Metricon, had you?

A.  Because it wouldn’t have been smart to until I had a team that I could demonstrate that I could sell the event.

Q.  But you had had tickets printed?

A.  Yeah.

Q.  Flyers printed?

A.  To show what it would look like to the stadium.” (T 230)

96. The exchange of SMS messages between a representative from the Metricon Stadium, Mr Dan Smith, and the plaintiff, which is set out at pp 76-79 of the defendant’s tender bundle, shows the plaintiff’s response to being caught out advertising a fake event:

Mr Smith: “Please call Dan Smith from Metricon Stadium [mobile number redacted].” Missed Call Service is free. Call 159 to opt out

Mr Otto: Hi Dan. Do you have an email address?

Mr Smith: Who is this?

Mr Otto: I’ll explain in the email proposal.

Mr Smith: I am not sending you my work email address without knowing who you are. Is this regarding a bikini concert which lists Metricon Stadium as the venue? If so, a phone call would be appreciated.

Mr Otto: I’d rather come in if that’s okay?

Mr Smith: You have missed calls from [mobile number redacted]. Missed Call Service is free. Call 159 to opt out.

Mr Smith: You can come in if you answer my call or call me back, and tell me who you are. Further to this you will need to remove Metricon Stadium as the venue as you have no event contract with us, no discussions have been held to date, and you are simply assuming the stadium is available despite our current event calendar having tentative official event bookings throughout October. It would be appreciated if you call me back to discuss further. Cheers

97. The plaintiff never replied and never took down the advertised concert material.

98. The plaintiff’s evasive responses to the attempts of the Metricon Stadium staff to get in touch with him to require that this function no longer be advertised is consistent with being caught out in a lie. His claim that he was endeavouring to train Ms Higgins and Ms Sharp and to present the function to Metricon Stadium after he had sold tickets is contradicted by Ms Higgins’ evidence (at T 1088). Her evidence was that the plaintiff told her she could start selling the tickets immediately. The tickets cost $89. While there is no evidence that any tickets was sold, this is fortuitous.

99. This was a scam of some significance, given the plausibility of the advertising material. The professionalism of the website advertisements and the tickets was of a high order and would have been convincing to many members of the public. I am comfortably satisfied that the concert in question was a scam and that the whole activity was designed to scam not only members of the public but the Metricon Stadium itself.

100. As noted above, despite the stern request from Metricon Stadium to take the material offline, the advertising of this concert remains online today (T 252-253). The Metricon Stadium staff’s experience with the plaintiff is another example of respectable business operators in the entertainment industry having contact with the plaintiff in relation to a “scam” or shonky business proposal.

101. On 20 and 22 March 2015 Patricia Higgins began a series of posts on Facebook warning about the plaintiff being a “creep” and running a “scam” and a “fraud” (Exhibit 3, Tab 14B). She also contacted StarNow to have the advertisement taken down, which they did. Again, these social media posts and the circumstances in which StarNow took down the plaintiff’s advertisement are relevant to the defence of justification concerning whether the plaintiff is “notorious” and “famous” for his sleazy scams and shonky business.

The “Girl City Island” and Whitsunday Music Festival scams

102. Following Ms Higgins’ adverse publicity (which the plaintiff claims did him a great deal of professional damage), instead of continuing with the Metricon Stadium project, the plaintiff commenced a new venture. The plaintiff had become interested in buying an island a few years beforehand, and had contacted Private Islands Online on 12 – 13 August 2013 saying he had $2.2 – 3 million to spend. At some time during early to mid-2015, he started negotiating to buy Temple Island for $950,000 from a consortium represented by two of the owners, Mr and Mrs Collyer. On 16 June 2015 an agreement was sent to him requiring a deposit of $5,000. At no stage did the plaintiff have funds to pay even this modest sum.

103. Meanwhile, Kittie Lee had been looking for suitable young women on social media (Exhibit 3, Tab 43). On 18 June 2015, the plaintiff advertised his new scheme, called “Girl City Island” on the Girl Club webpage, promising music events on “a tropical Whitsunday island” where girls could “pay to stay” for $200 a week or “play to stay” where in return for accommodation the applicant would help out as well as book guests. Spaces were limited to 14 persons according to the advertisement. The advertisements were accompanied by misleading photographs, such as pictures of other venues.

The plaintiff’s business activities at the time of A Current Affair

104. It was while the plaintiff was involved in his “Girl City Island” activities that A Current Affair broadcast material concerning Ms Higgins and the Metricon Stadium “concert”, the circumstances in which Witness A was “sucked in” (Exhibit A, paragraph 23) to the Girl Club Band and the “rock band house on the gold Coast” (Exhibit A, paragraph 45) was published. The plaintiff is heard offering to sell “tickets to the next event” (Exhibit A, paragraph 56).

The plaintiff’s activities between the A Current Affair broadcast and the November 2015 publications

105. The plaintiff’s list of concerts refers to several concerts in Southport Community Hall. He complains that these were dropped after “severe sabotage by 9” (Exhibit 3, Tab 14), namely the defendant in the A Current Affair proceedings on or about 7 July 2015.

106. Although not referred to in the plaintiff’s schedule of his concerts, throughout August 2015, the plaintiff continued to promote his “Whitsunday Music Festival” activities on Facebook (Exhibit 3, Tab 39), including a “September Grand Opening Deal” and a $799 holiday package as well as jet ski races and live music. On 18 August 2015 he posted a 5-star “review” on the Girl City Island Facebook page, calling it the “best place on earth” although he had yet to visit the island for which he had paid only a fraction of the initial deposit.

107. On 26 August 2015, the plaintiff posted a “Staff wanted” advertisement which was seen by both Ms Thomson and Ms Chandler (T 884, T 994).

108. The next concert on the plaintiff’s schedule in Exhibit 3, Tab 14 is the Whitsunday Music Festival Island “visit” in September 2015, which the plaintiff says in his “biography” was “sabotaged by island vendor showing article [i.e. the A Current Affair broadcast] to fans/guests” (at p. 67). The “road trip” taken by Monique Thomson and another young applicant, Maha Villanueva, took place from 17 to 21 September 2015. They were accompanied by Mr Bill Collyer, one of the owners of the island. They left at the earliest opportunity, with the help or Mr Collyer. Monique Thomson and Mr Collyer’s evidence about this trip is set out in more detail below.

109. Undeterred by the failure of this “road trip”, on 26 September 2015, the plaintiff posted another “Staff Wanted” advertisement on the Whitsunday Music Festival Island Holiday Stays Facebook page (Exhibit 3, Tab 39). It was following this that Ms Chandler had an interview by phone with the plaintiff on 27 September 2015 about having a work trial as a receptionist.

110. Although on 29 September 2015 Mrs Barbara Collyer, on behalf of the other owners, advised the plaintiff that the contract for Temple Island was considered by them to be null and void, he posted another advertisement for his island activities. Apparently aware of adverse online publicity about the island, he stated that one of the girls on the recent trip had been fired for raising her voice and pointing a finger at the organisers, and claimed that there would be a security guard on future trips (Exhibit A, Tab 39).

111. Unaware of these events, a Ms Shayla Chandler paid $200 for her receptionist job trial, at about the same time. The circumstances of her involvement in the plaintiff’s activities are set out separately in relation to the proof of justification for the imputations for the three online newspaper publications.

112. The plaintiff’s schedule of concerts refers to the Whitsunday Music Festival Island hopping visit in October 2015 at Tangalooma Island Resort as a concert, although that was not the case. This is in fact the events the subject of the matters complained of in Schedules B, C and D, which were published on 13 November 2015. This function is described by the plaintiff in his book as resulting from “sabotage by Patricia [Higgins]” in the plaintiff’s biography.

113. These are the main events referred to in relation to the particulars of justification for the three online newspaper publications. However, one of the documents tendered, an internal email from the manager of the Tangalooma Island Resort, Ashleigh Patch, is of particular importance and is set out here as an indication of the plaintiff’s reputation at the time, in that it describes the plaintiff as “a notorious con man including appearances on A Current Affair”. This description of the circumstances in which Ms Shayla Chandler fled from a hotel room and sought assistance from the hotel staff management after coming to the hotel with the plaintiff and his partner Kittie Lee was as follows:

“Illy (F&B) advised that a young female was outside the beach café and was concerned about her safety when she realised that the couple that she arrived with after responding to an advertisement on Facebook actually had indecent intentions. It appears the girl had been scammed by David Otto, (B14 A:324077) whom appeared on A Current Affair recently, labelled as Australia’s biggest con artist. DM advised Normie, who had already flagged him as a potential problem guest prior to his arrival and advised reception to contact him if there were any issues. Sarah (rec) booked the female into K26 (Shailer Chandler A:324691) and she will be leaving on the 0830 launch. DM & Illy assisted Shailer to gather her belongings from B15 and ensured she made it to her room safely.

OTTO and his partner will be leaving on the 1530 Micat.

It is alleged that OTTO posed as a Tangalooma resort manager during negotiations with Shailer and promised her employment as part of his scam.

We are also advised that he intends to book here again from the 6trh November until the 8th of December and has already begun recruiting girls for this event.

We understand the girl contacted Police Link at the time. Brett has also mentioned that one of the staff from the bar had befriended this girl and later spoke to our staff after the incident and David Otto and company, went to her house and started harassing her for footage she had taken whilst on the trip. She refused and has contacted the police again to update them on this info. From what we’ve been told, she has taken out a restraining order and is looking to go back to A Current Affair.

Mel has done some rather thorough investigating on Facebook and to put it mildly, what is being advertised is quite concerning. It’s cleverly constructed in that it doesn’t mention Tangalooma and only appears to mention Moreton Island the once I could find. There’s a video that looks to be taken at Tangalooma given the backdrop and that it features recognisable staff (one in Quads and the other recently left TT but is still on island). Their voices are blocked out with music but if you were to look at the page, you’ll get the gist of why we’re concerned.

Normie had bought it to our attention that David Otto/David Ackerman is a notorious con man including appearances on A Current Affair. It was also noted in the booking from Friday that he couldn’t pay in full until he arrived at the island. If there is a booking due to be made in November, our strong suggestion is that it should be refused. I understand this is difficult given he’ll probably give us a different name but at least we can be on the look out.” (Exhibit 3, Tab 58)

Publication of the Gold Coast Bulletin, Courier Mail and Daily Mail articles

114. The plaintiff was forewarned of the publication in the Gold Coast Bulletin because he received a phone call from the journalist seeking his comments. The three articles were published on 14 and 15 November 2015. The plaintiff wrote to the editor of the Daily Mail on 17 November 2015 saying he had brought an action against Ms Chandler in the Queensland District Court. The plaintiff did commence defamation proceedings in Queensland but his claims were struck out: see Otto v Nine Network Australia Pty Ltd [2016] NSWDC 308.

The plaintiff’s activities following the publication of the Gold Coast Bulletin, Courier Mail and Daily Mail articles

115. The plaintiff was undeterred by this incident or the publications of the three online newspaper articles, which he saw or heard about at the time of publication. He was back advertising for a “band girlfriend” on the David Otto Music Facebook page on 19 December 2015 (Exhibit 3, Tab 78) and he continued to make further posts in February and March 2016.

116. On 5 December 2016, the plaintiff advertised as follows on the Secret Love Facebook page:

“Staff Wanted!!

Want some extra $$$ these holidays?

Our country party resort’s 1 or 2 month working holiday stay is a great way to save for a car, holiday or new wardrobe!

Live in tropical Queensland and help confirm bookings for our country party resort stays from 9am to 12pm each day, then relax by the pool and mountains in the afternoon!!

You cover your living for the first weekend while you complete training - $200 covers living, food and accommodation and full access around the property just one and a half hours behind the Gold Coast.

- Easy to follow systems provided for all duties- Paid Weekly- Amazing fun work environment- Upbeat supportive team of 5 already working- Exciting new weekend theme events coming up on our calendar you can be a part of

Interested?

Send your resume with contact phone number to our email address and we’ll get back to you for our next callback interview times in to look at when you’d come up for your trial.

Applications welcome from anywhere in Australia as we are holding interviews over skype with people in other areas.

Looking for upbeat, courteous supportive people with a love of music and leisure.

Suitable for people who are looking for a great lifestyle or just a working holiday away, loves the holiday party life and pet stays available on application.

[email protected]”

117. The plaintiff’s next venture was the “Secret Love Country Party Resort”. He had purchased land at 39 Coxen Street, Maryvale, Queensland which, as the photographs show, is an isolated block of land situated in a residential area a long way away from holiday resorts. From December 2016 onwards, the plaintiff promoted his “Secret Love Country Party Resort” on the “Secret Love” Facebook page (Exhibit 3, Tab 66). The representations for this property as being a lavish resort are wholly at variance from the photographs tendered. These representations included:

1. that the “resort” was located in “tropical Queensland” (Exhibit 3, Tab 66) and that it looked like the photographs shown at pp 439A-439I of Tab 66, when in fact these are photographs of other premises;

2. that the premises had a pool and “gorgeous bright coloured” beach style cabins (p 439A of Tab 66), when the cabins shown were in fact cabins on other premises. The premises did not even have one pool, let alone the three referred to at p 439A of Exhibit 3);

3. that there was “amazing scenery” and beautiful gardens on the property, as well as amusement sites such as a mud pit and twice weekly boating trips on a nearby river. There was a river, but there were no boat trips;

4. that the “resort” was operational, in that “past guests all said they felt completely energised from their visit and can’t wait to come back” (p 439C).

118. In his written submissions, Mr Dawson SC submitted that the reality of the property meant that the premises advertised online and the property at Maryvale “exist in parallel universes” (written submissions, paragraph 102). Having examined the photographs, I have to concur. Rather than set out a written description of the property, I simply invite examination of the photograph at Exhibit 3, Tab 74, showing a tin shed surrounded by large fence enclosing a timber cabin and small garden shed, as well as an outhouse-styled toilet. The interior is similarly primitive, consisting of a bathroom area with a camp shower, a bed and a couple of couches. I note the absence of a kitchen sink. Of particular concern are the locks seen on the gate in the fence fencing off the smaller cabin and shed (T 1108).

Proof of imputation (a): “The plaintiff deceived Shayla Chandler by making her believe he was offering her a proper job when is real motive was to seduce her.”

359. For the same reasons as my findings in relation to imputation (f) in relation to the Gold Coast Bulletin and Courier Mail publications, I am satisfied that the defendant has established the truth of this imputation.

Proof of imputation (c): “The plaintiff tried to con Shayla Chandler.”

360. This is the “act” for which imputation (d) of the Gold Coast Bulletin and Courier Mail publications is the “condition”. For the same reasons that I have set out in relation to that imputation, I am satisfied that the defendant has established the truth of this imputation.

Proof of imputation (d): “The plaintiff offered Shayla Chandler money if she would enter into a sexual relationship with him.”

361. I have accepted Ms Chandler’s evidence that the plaintiff offered her money if she would enter into a sexual relationship. I reject Mr Rollinson’s submissions that what he was offering was a genuine job and membership of a group where there would be a commitment not to interact with anyone outside the group. What he was offering was a sexual relationship to a young woman who had come with him to an island holiday resort in the expectation that she was to be offered a trial as a receptionist working in a holiday resort making bookings. The plaintiff effectively conceded in his evidence that he did make offers of money to Ms Chandler and I am satisfied that the defendant has established the truth of this imputation.

Proof of imputation (e): “The plaintiff frequently posted job listings on his Facebook page with the intent of obtaining women for sexual relationships.”

362. Given the plaintiff’s acknowledgement of the truth of contextual imputation (ii), the only issue for challenge would appear to be whether the plaintiff “frequently” made such postings. However, the plaintiff made no attempt to hide that this is exactly what he does and, as Mr Dawson SC points out in his written submissions at paragraph 162, he even goes as far as accusing the defendants of “orientation shaming” him (T 317) for his different sexual standards. The plaintiff frankly acknowledged that his orientation involved seeking to be in relationship with multiple women at once, including having sex with multiple women at once (T 293-294) and he admitted that this was one of the goals in his advertisements. These advertisements included:

1. The “Be Our Girlfriend” site (T 291-294) which was designed to attract women to be in a group relationship and engage in group sex with the plaintiff and Kittie Lee;

2. The “Bad Girlfriend application” (Exhibit 3, Tab 78);

3. Direct approaches to young women on social media, usually made by Kittie Lee on his behalf, as occurred in relation to Shayla Chandler and Witness A;

4. Advertising in relation to the Whitsunday Music Festival Island and the Secret Love Country Party Resort where the real intention was for there to be a sexual threesome as Witness B found out.

363. I am satisfied that the plaintiff was more or less continuously advertising these positions on social media, over a period of some years, and that this is sufficient to amount to “frequently”.

364. I am satisfied that the defendant has established the truth of this imputation.

Proof of imputation (f): “The plaintiff posted misleading and deceptive advertisements for women to apply for employment when his real aim was to have sex with them.”

365. I was not addressed in any detail as to whether such conduct amounted to the publication of misleading and deceptive advertisements but any person who advertises for a woman to apply for employment when their real aim is to have sex with them should expect such a charge to be levelled.

366. I am satisfied that the defence of justification has been made out to this imputation.

Conclusions concerning the Daily Mail publication

367. The defence of justification has succeeded in relation to each of the imputations pleaded by the plaintiff and there will accordingly be judgment for the defendant on this publication.

368. In the event that I have erred in relation to any of my findings of fact as to the truth of imputations in the remaining three publications, I set out brief observations concerning the defence of contextual justification.

Contextual justification

369. The plaintiff’s written submissions essentially were that “if [either of the contextual imputations] were true, which it is not, it could not conceivably weigh in the balance against any or all of the plaintiff’s imputations”.

370. However, calling a person a “sleaze”, if true, is just as serious as the imputations pleaded by the plaintiff, the more so in relation to imputations of actions involving Ms Chandler where only one person is involved, whereas an imputation of being a sleaze is of a more general nature. It should not be necessary to provide further actual evidence in order to demonstrate the truth of this imputation other than to refer to the substratum of findings of fact for any one of the imputations pleaded in any individual imputation in relation to each of the three publications for which this contextual imputation is pleaded. I do not need to enter into this exercise at all in relation to contextual imputation (ii), as justification is conceded.

371. The relevant principles for establishing whether the plaintiff has suffered any further harm as a result of the publications of which the plaintiff complains which are not found to be true do not need repetition. Taking into account that balancing exercise, I am satisfied from the evidence in support of these contextual imputations, particularly in relation to the plaintiff’s conduct to Ms Chandler, that the proof of justification in relation to each single imputation for which I have found justification to succeed is so serious that there is no capacity for any further damage to the plaintiff’s reputation arising from any imputations in relation to any of those imputations where my findings should be set aside.

372. If I have erred in relation to the balancing exercise by using only the imputation to which the plaintiff has conceded justification is made out, then I would rely also upon such imputations for which the defence of justification has been made out, using the approach taken by Beech-Jones J in Chel v Fairfax Media Publications (No 6) [2017] NSWSC 230, and preferring this approach to that advocated by the Court of Appeal in Fairfax Digital Australia & New Zealand Pty Ltd v Kazal [2018] NSWCA 77. I consider Fairfax Digital Australia & New Zealand Pty Ltd v Kazal to be plainly wrong, in that McColl JA accepted that the truth of a plaintiff’s imputation must be “given effect” to, not only for the purposes of mitigation of damages, but also because of the substantial truth of the contextual imputations as set out in section 26(b). To fail to do so creates tension in the legislation because it is acknowledged that the use of the truth findings of the plaintiff’s imputations is permissible for the purpose of mitigation.

373. Accordingly, in the event that I have erred in finding in favour of the defendants on the defence of justification in relation to any of the imputations, I am satisfied that the imputation for which the plaintiff admits the truth alone would be sufficient for the defence under s 26 Defamation Act 2005 (NSW) to succeed and additionally that the truth of contextual imputation (i) (which I have found to be true) would similarly outweigh the imputation for which the defence of justification fails. The truth of the plaintiff’s imputations, if taken into account, would further weigh against any imputation for which the defence of justification fails. Given the strength of the evidence against the plaintiff, and the fact that this is an alternative finding, it is unnecessary to enter into any further consideration of this defence.

374. I set out below, as alternative findings, some brief observations in relation to the issue of damages.

Damages

375. In the event that I have erred in relation to my findings as to liability, I make the following observations as to damages.

376. The plaintiff’s claim for general compensatory damages specifically excludes any claim for aggravated damages. Section 35 Defamation Act 2005 (NSW) provides for a maximum amount of damages for non-economic loss which is currently $398,500 (Gazette No 66 of 29.6.2018, p 3970).

377. The difficulties in making alternative assessments as to damages in cases such as the present is explained by McCallum JA in Mallegowda v Sood [2019] NSWCA 37, where leave to appeal from an alternative finding that it would be appropriate to award zero damages was refused (at [30]). That assessment was not undertaken on the alternative basis that the applicant was wholly successful, by reason of the plaintiff in those proceedings obviously playing some role in relation to publication (even if it fell short of amounting to actual publication) and also the significant mitigating factor that the plaintiff was convicted of contempt of court in relation to his conduct concerning a witness in the case.

Damages for the three publications where contextual imputation (i) is acknowledged to be true

378. The plaintiff faces extraordinary hurdles in getting to any damages award in relation to these three publications.

1. First, the plaintiff would have to be successful in relation not only to my findings as to the defence of justification in each case but also my alternate finding that, if the defence of justification failed in relation to any imputations, the truth of both contextual imputations (or, alternate to that, only the contextual imputation he acknowledges) is such that the contextual truth defence under s 26 of the uniform legislation would succeed.

2. Second, the acknowledged truth of the contextual imputation (ii) pleaded by the Gold Coast Bulletin, Courier Mail and Daily Mail, namely that the plaintiff posted advertisements seeking to engage young women for the purpose of entering polyamorous relationships with him, would amount to a substantially mitigating circumstance. (It is unclear to me why the plaintiff would not also be obliged to admit the truth of imputation (h) in the Nine proceedings, namely that “The plaintiff tries to encourage young girls to engage in group sex”, but I was not addressed on this issue). This means that, in relation to each of these three publications, even if the plaintiff were successful on all issues, there is already an acknowledgement of the truth of an imputation of significance, given the community standards applicable not only to group sex but to the fact that young women (such as teenagers). That would have a very significant impact on any damages awarded.

3. Third, whereas the A Current Affair broadcast was widely viewed, the plaintiff is only entitled to sue upon evidence of downloading of the three newspaper online publications and, in the case of the Gold Coast Bulletin and the Courier Mail, to those persons who downloaded the publication after the date on which the plaintiff was granted leave to commence proceedings. These figures are very small. Mr Rollinson acknowledges that “possibly as many as 163 persons” downloaded the Gold Coast Bulletin (submissions, page 10) while the number for the Courier Mail was 30 and for the Daily Mail a mere 9. No comments were posted. The identity of the persons who downloaded the material is unknown and Mr Rollinson acknowledged that some of the downloading could have been by legal representatives of the parties (which is not actionable: Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291 at 293; Wen Yue He v Chinese Newspapers Pty Ltd [2005] NSWSC 253.

379. The plaintiff’s admissions in cross-examination and his admissions, in three of the publications, as to the truth of one contextual imputation, make it difficult to see how the plaintiff could hope to receive any award in the three online publications.

380. However, as to the A Current Affair broadcast, it may be that an appellate court would consider that I have erred in accepting submissions that the plaintiff is “famous” and “notorious” for his conduct, or that the defendants have not established that the plaintiff is creepy and/or a voyeur or pervert.

Damages for the A Current Affair broadcast

381. In the event that the defendant in these proceedings has not established the justification of one or more of the imputations conveyed, for the reasons set out above I would award damages of zero dollars. This is because:

1. The plaintiff said he had not watched the matter complained of and gave no evidence of hurt to feelings.

2. No claim was made for aggravated damages and the plaintiff gave no evidence of hurt to feelings in relation to the falsity of the imputations.

3. The plaintiff called no evidence of damage to reputation. While there was cross-examination of witnesses called by the defendants as to whether they had seen the broadcast, they gave evidence that they had not done so. Witnesses who were in that broadcast, Patricia Higgins and Witness A, would have seen it, but that does not count.

4. The mitigating factors set out below all point to a nominal award at best.

Mitigation of damages

382. Issues relevant to mitigation of damages include:

1. Where damages are to be awarded in relation to four separate publications in circumstances, the court must be careful to avoid double or triple compensation: Gayle v Fairfax Media Publications Pty Ltd (No 2); Gayle v The Age Company Pty Ltd (No 2); Gayle v The Federal Capital Press of Australia Pty Ltd (No 2) [2018] NSWSC 1838 at [25]. Any award made to the plaintiff in the other proceedings would need to be taken into account for the purposes of s 38 of the uniform legislation. (As the proceedings have been consolidated, it is interesting to postulate as to what should be made of any judgments against the plaintiff in those proceedings, but as I was not addressed on this topic, I shall not speculate.)

2. Assuming the plaintiff is successful in relation to some of the imputations but not others, a defendant is entitled to rely upon mitigation of damages in relation to those imputations which were found to be substantially true, as well as to evidence before the court directed to a plea of justification: Besser v Kermode at [86]. In the present case, as the evidence in one is the evidence in the other proceedings, evidence in one proceeding may be relied upon in relation to mitigation.

3. A defendant may also rely upon evidence given in mitigation which was in support of an unsuccessful or only partially successful plea of justification (Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96 at [26]-[32]), or which is relevant to background context (Burstein v Times Newspapers Ltd [2001] 1 WLR 579). In the present case, the weight of that evidence is overwhelming.

383. Taking all of the above into account I am satisfied that this would be an appropriate case for the awarding not merely of derisory damages but an award of zero damages, conformably with the observations of the Court of Appeal in Mallegowda v Sood on the suitability of such awards in such circumstances.

Application for leave to reopen

384. After I reserved judgment, the plaintiff brought an application for leave to reopen, which was refused for the reasons set out below.

385. I heard submissions from the parties on all issues before reserving my judgment in the afternoon of Wednesday 20 March 2019. The plaintiff sent nine emails between 5:02pm and 6:21pm on 20 March 2019 to my associate. These emails were not sent to either the plaintiff’s or the defendants’ legal representatives. After receipt of these emails, my associate immediately forwarded them to the counsel present at the hearing. Mr Rollinson of counsel, who appears for the plaintiff, informs me, and I accept unreservedly, that neither he nor his instructing solicitor was consulted beforehand.

386. The proceedings were relisted for 3:30pm on Thursday 21 March 2019. The plaintiff’s emails were treated as an application to reopen his case.

The relevant principles of law

387. The principles relevant to applications to reopen a case, recall a witness or seek leave to adduce further evidence are set out in Reid v Brett [2005] VSC 18 at [41] as follows:

“[41] The criteria governing the exercise of the discretionary power to re-open a case to admit further evidence where the hearing has concluded but judgment has not been delivered have been said to be as follows:

(a) the further evidence is so material that the interests of justice require its admission;

(b) the further evidence, if accepted, would most probably affect the result of the case;

(c) the further evidence could not by reasonable diligence have been discovered earlier; and

(d) no prejudice would ensue to the other party by reason of the late admission of the further evidence.

In Smith v New South Wales Bar Assn., the High Court of Australia stated that in such a situation it was difficult to see why “the primary consideration should not be that of embarrassment or prejudice to the other side.”“ (Citations omitted)

388. In Smith v New South Wales Bar Association (1992) 176 CLR 256, the High Court noted at [27] the entitlement of a party to apply to the court to “review, correct or alter its judgment at any time until its order has been perfected”, subject to principles such as the public interest in the finality of litigation. However, since that time, ss 56-62 Civil Procedure Act 2005 (NSW) have materially impacted upon applications of this nature. In particular, s 60 concerning the proportionality of costs issues is of relevance to applications such as the present.

389. Mr Rollinson conceded that none of the documents proposed to be tendered were documents falling into the categories in Reid v Brett at [41]. These documents were:

1. submissions to the court by the plaintiff (documents 1, 2 and 18);

2. documents which had been discovered by the plaintiff or produced in answer to subpoena, but which had not been deployed by his counsel;

3. documents which had not been discovered by the plaintiff (which is in itself a difficulty) and which had been available for use during the trial but which had not been deployed by counsel for the plaintiff;

4. photographs taken of the plaintiff during his participation in a musical event which occurred while the trial was in progress and a photograph of the plaintiff as a member of a band in 1997 or 1998. No objection was taken to the tender of these documents.

390. The plaintiff did not adduce any evidence explaining the delay in seeking to adduce this material or to explain the departure from forensic decisions taken by his experienced counsel and solicitor during the trial.

391. In addition to the plaintiff’s failure to satisfy any of the criteria identified in Reid v Brett or to proffer any such explanation, the defendants point to the significant prejudice of being provided with a bundle of documents, many of which (notably documents 4, 5, 6, 7, 8, 9, 13, 14, 17 and 18) appear to be extracts from other documents of uncertain provenance (National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309). One of the documents, document 16, is an 11-minute audio recording of conversation between the plaintiff and a person named “Ariel” which Ms Barnett told me she had been unable to understand because Ariel’s voice was so indistinct. While Mr Rollinson said that he was able to hear it, no transcript has been provided. It would appear likely from Mr Rollinson’s description of the contents that “Ariel” was unaware that she was being recorded. The objections based on National Australia Bank Ltd v Rusu include challenges as to when and in what circumstances the recording was made and whether the person in question is in fact “Ariel”. These challenges to the tender of this material must therefore succeed.

392. Although Mr Rollinson’s submissions suggest that these documents could be rendered admissible in the course of re-examination of the plaintiff, the issues in cross-examination to which they went are difficult to identify. Both parties agree that not only would there be a necessity for the proceedings to be listed for hearing for at least one day for such a purpose, but that other witnesses would need to be called and the failure to put material to Shayla Chandler, Mr Collyer and Witness B would give rise to Browne v Dunn issues (Browne v Dunn (1893) 6 R 67).

390. I am particularly concerned about the document asserted to be “Chapter 16” of the plaintiff’s autobiography which was tendered by the defendants and is Exhibit 9. Exhibit 9 was tendered by the defendants for a non-hearsay purpose to establish material that the plaintiff wrote principally for the purpose of cross-examination of him in relation to inconsistent evidence in the witness box. Not only is the purported “Chapter 16” tendered for a hearsay purpose with no equivalent relevance, but it is not in fact “Chapter 16” at all, but a letter addressed to myself, composed during the trial, after Mr Rollinson has, in the words of the plaintiff in this document, “advised there is no way to get this final evidence to use so I am left with no other option than to just hand it up – perhaps as the remaining chapter of my book”.

391. The guiding principles set out in s 56 Civil Procedure Act 2005 (NSW) and the trial management rules set out in ss 57-62 (in particular s 60 as to costs), emphasise both the desirability of finality to litigation and the need for proportionality in relation to costs issues.

392. As to s 60, Ms Barnett drew to my attention the fact that the plaintiff is bankrupt. Unfortunately, the provisions of s 60(4) Bankruptcy Act 1966 (Cth) permit bankrupts to commence and continue defamation proceedings, so I do not consider that this is a factor that I should take into account. I note that McCallum J took a similar approach to the bankruptcy of Dr Toben in Toben v Nationwide News Pty Ltd; Toben v Mathieson [2015] NSWSC 1784. However, the other factors referred to in ss 56-62 as relied upon by the defendants are more than enough to warrant the refusal of this application.

Orders

1. Judgment for the defendant in proceedings 2016/221796.

2. Judgment for the defendants in proceedings 2016/338258.

3. Judgment for the defendant in proceedings 2016/338264.

4. Plaintiff to pay the defendants’ costs.

5. Liberty to apply in relation to costs.

6. Exhibits retained for 28 days.

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Schedule A (114 KB, pdf)

Schedule B (5.10 MB, pdf)

Schedule C (5.13 MB, pdf)

Schedule D (4.28 MB, pdf)